17.
(SC) 13-07-2022
A. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15 -- Child in conflict with law – Preliminary assessment -- Obligation of the Board in making the preliminary assessment on the four counts largely dependent upon the wisdom of the Board without there being any guidelines as to how the Board would conduct such preliminary assessment -- In the absence of any such framework or guidelines, the Board has to use its discretion in taking into consideration whatever material it deems fit for assessing the four attributes.
(a) mental capacity to commit the offence.
(b) physical capacity to commit the nature of the alleged assault.
(c) maturity and ability to understand the consequences of his action.
(d) circumstances in which the offence was committed.
(Para 62)
B. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15 -- Child in conflict with law – Preliminary assessment -- Mental Capacity to commit offence -- Ability to understand the consequences of offence – Both are different.
(Para 67)
C. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15 -- Child in conflict with law – Preliminary assessment -- Consequences of offence – Language used in section 15 is “the ability to understand the consequences of the offence” -- Expression used is in plurality i.e., “consequences” of the offence and, therefore, would not just be confined to the immediate consequence of the offence or that the occurrence of the offence would only have its consequence upon the victim but it would also take within its ambit the consequences which may fall upon not only the victim as a result of the assault, but also on the family of the victim, on the child, his family, and that too not only immediate consequences but also the far-reaching consequences in future -- Consequences could be in material/physical form but also affecting the mind and the psychology of the child for all times to come.
(Para 68)
D. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15 (1) -- Child in conflict with law – Preliminary assessment – Mental capacity -- Consequences of offence – Evaluation of -- Children may be geared towards more instant gratification and may not be able to deeply understand the long term consequences of their actions -- They are also more likely to be influenced by emotion rather than reason -- While they do consider risks cognitively (by weighing up the potential risks and rewards of a particular act), their decisions / actions may be more heavily influenced by social (e.g. peer influences) and/or emotional (e.g. impulsive) tendencies -- Lack of experience coupled with the child’s limited ability to deeply understand the long term consequences of their actions can lead to impulsive / reckless decision making -- Individualised assessment of adolescent mental capacity and ability to understand the consequences of the offence is one of the most crucial determinants of the preliminary assessment -- This evaluation of ‘mental capacity and ability to understand the consequences’ of the child in conflict with law can, in no way, be relegated to the status of a perfunctory and a routine task -- Process of taking a decision on which the fate of the child in conflict with law precariously rests, should not be taken without conducting a meticulous psychological evaluation.
(Para 71-75)
E. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15(1) – Child in conflict with law – Preliminary assessment -- Child psychologist/ psychiatrist/ expert – Expression “May” – Interpretation as mandatory -- Where the Board is not comprising of a practicing professional with a degree in child psychology or child psychiatry, the expression “may” in the proviso to section 15(1) would operate in mandatory form and the Board would be obliged to take assistance of experienced psychologists or psychosocial workers or other experts -- However, in case the Board comprises of at least one such member, who has been a practicing professional with a degree in child psychology or child psychiatry, the Board may take such assistance as may be considered proper by it; and in case the Board chooses not to take such assistance, it would be required of the Board to state specific reasons therefor.
(Para 76)
F. Interpretation of Statute – Expression “May” as Mandatory -- It is a well settled principle of interpretation that the word ‘may’ when used in a legislation by itself does not connote a directory meaning -- If in a particular case, in the interests of equity and justice it appears to the court that the intent of the legislature is to convey a statutory duty, then the use of the word “may” will not prevent the Court from giving it a mandatory colour.
(Para 77)
G. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15 – Child in conflict with law -- Preliminary assessment -- Task of preliminary assessment u/s 15 of the Act, 2015 is a delicate task with requirement of expertise and has its own implications as regards trial of the case -- It appears expedient that appropriate and specific guidelines in this regard are put in place -- Without much elaboration, Court left it open for the Central Government and the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights to consider issuing guidelines or directions in this regard which may assist and facilitate the Board in making the preliminary assessment under section 15 of the Act, 2015.
(Para 87)
