Mandatory Minimum Sentence for a Child in Conflict with Law: Contrary to the Spirit of Juvenile Justice

The Constitution of India¹ treats children as a distinct category requiring special protection.² That child offenders should be treated differently from adults was the recommendation of the Indian Jail Committee Report 1919-1920.³ Consequently, Children Acts were enacted to deal with child offenders, which through the years underwent amendments and replacements. The prevailing legislation dealing with children alleged to have committed or found to have committed an offence is the Juvenile Justice (Care and Protection of Children) Act, 2015⁴ (the JJ Act, 2015).

Public outcry after the Nirbhaya case⁵ of 2012 triggered an overhaul of the then existing juvenile justice legislation, resulting in enactment of the JJ Act, 2015. It was this 2015 Act which for the first time allowed for transfer of the trial of a child in conflict with law (CCL) from the Juvenile Justice Board (JJB) to the Children's Court.⁶ Under the new Act, a CCL who has completed sixteen years of age and alleged to have committed a heinous offence⁷ could now be shifted out of the juvenile justice system, after conducting a preliminary assessment.⁸

The object of juvenile justice legislation is rehabilitative, and not penal, in nature. Sections 18(1) and (2) of the JJ Act, 2015⁹ lists the orders that may be passed by the JJB when a CCL is found to have committed the offence — the JJB has the option to select the most suitable order for rehabilitation of that particular CCL, such as, admonition and counselling, performing community service, detention in a Special Home. The legislation is seemingly silent on what order may be passed by the Children's Court on finding the CCL to have committed an offence. Is it that the Children's Court is bound by the punishment prescribed under the relevant criminal law for the offence committed or may the Children's Court impose less than the mandatory minimum sentence?

The Supreme Court has repeatedly held that courts have the discretion to impose punishment “subject to any mandatory minimum sentence prescribed by the law”.¹⁰ The Supreme Court on referring to previous judgments held “that the court cannot impose less than the minimum sentence”.¹¹ The Supreme Court opined that this embargo cannot be overridden by any court, including the Supreme Court under Article 142¹² of the Constitution.¹³

That may be the case for an adult offender, but should the same apply to a CCL? Is the Children's Court bound to impose the mandatory minimum sentence upon a CCL? Answer to both these questions is a NO — the Children's Court is not so obligated. It is the intrinsic difference between a child and an adult that enables one to categorically say NO.

The purpose of enacting distinct legislation for CCLs is that they are less culpable and more amenable to reformation and rehabilitation than adults. There are those who advocate that a child who is capable of committing a brutal crime should be treated as an adult, for such CCL by his actions reveals himself to be an adult. Response to this contention is that an adolescent is, of course, responsible for the crime committed, but due to his developmental immaturity and age-related traits, which are transitory, should be treated differently from an adult offender sentenced for a similar crime.

On the international platform, the United Nations Convention on the Rights of the Child (UNCRC) expresses that CCLs should “be treated in a manner … which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society”.¹⁴ Towards this understanding, the Committee on the Rights of the Child (the CRC) elaborates, “Children differ from adults in their physical and psychological development. Such differences constitute the basis for the recognition of lesser culpability, and for a separate system with a differentiated, individualised approach .”¹⁵

Studies on brain science too indicate “that adolescents are less psychosocially mature than adults, they are likely to be deficient in their decision-making capacity, even if their cognitive processes are mature (Cauffman & Steinberg, 2000; Scott et al., 1995; Steinberg & Cauffman, 1996).”¹⁶ Moreover, it is argued by Steinberg & Scott, “adolescent criminal conduct is driven by transitory influences”. Steinberg & Scott, in conclusion, state, “In our view, however, there is sufficient indirect and suggestive evidence of age differences in capacities that are relevant to criminal blameworthiness to support the position that youths who commit crimes should be punished more leniently than their adult counterparts” — they base their conclusion on scientific evidence that adolescents are less psychosocially mature than adults, that they are likely to be deficient in their decision-making capacity, even if their cognitive processes are mature.¹⁷

The Supreme Court in several judgments has acknowledged the rationale for treating CCLs differently from adults. In 1982, the Supreme Court observed¹⁸:

“28. … Children Act was enacted to protect young children from the consequences of their criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of an adult.”

That, “The justice system as available for adults is not considered suitable for being applied to juveniles” and that the juvenile justice system is “in keeping with the developmental needs of the child found in any situation of social maladjustment ”, was noted in Pratap Singh v. State of Jharkhand¹⁹.

In Subramanian Swamy v. Raju²⁰, on scrutinising scientific material regarding brain development, the Supreme Court said:

“37…The works and opinions placed goes to show that studies of adolescent brain anatomy clearly indicate that regions of the brain that regulates such things as foresight, impulse control and resistance to peer pressure are in a developing stage up to the age of 18. These are normative phenomenon that a teenager cannot control and not a pathological illness or defect.”

Further, in 2020, the Allahabad High Court has judiciously stated²¹:

“114. The personality of a child is in constant evolution and its character traits are not permanent. The causes which impel a child to be on the wrong side of law or commit deviant acts are often traceable to its environment. A child has no control over its environment and its deviant behaviour is reversible. A child’s conduct is capable of correction and a child is reformed over the years. Good authority in law and the field of child psychology has concluded that the character traits which impelled a child into a criminal act are transient and will be reformed with age.”

The JJ Act, 2015 reflects that though a CCL's trial is shifted from the JJB, such CCL is not to be treated in the same manner as an adult — the JJ Act, 2015 itself mentions the procedure to be followed in such event, which is very different from that of an adult.

Firstly, transfer of trial is an exception to the rule that CCLs should be dealt within the juvenile justice system²² and detailed procedure has been prescribed for the JJB to strictly follow prior to passing an order under Section 18(3) of the JJ Act, 2015.²³ Secondly, upon transfer, it is not the court that has jurisdiction to entertain an adult's trial for such offence, namely, the Sessions Court, but a specially designated court, namely, the Children's Court, that is empowered to conduct a transferred CCL's trial. Thirdly, upon the CCL's trial being transferred, the Children's Court shall first conduct a hearing to decide whether that CCL should be tried by the Children's Court as a child or as an adult.²⁴ Fourthly, the Children's Court should at the time of sentencing a CCL who is being tried as an adult, consider the “special needs of the child”.²⁵ Fifthly, upon sentencing, such CCL is sent to place of safety to undergo sentence,²⁶ and not to prison. Sixthly, on attaining twenty-one years, the Children's Court may suspend remainder of the sentence and release the CCL. The Children's Court is instructed to “pass appropriate orders after trial subject to the provisions of this section²⁷ and Section 21²⁸,²⁹ considering the special needs of the child, the tenets of fair trial and maintaining a child-friendly atmosphere”³⁰ — the words “special needs” denotes that the characteristics associated with adolescence should be considered during sentencing.

Furthermore, the Children's Court is required to adhere to the general principles to be followed in administration of the Act,³¹ inter alia, principle of best interest, principle of family responsibility, positive measures, principle of institutionalisation as a measure of last resort, principle of repatriation and restoration and the principle of fresh start. These principles unambiguously indicate that the factors to be considered at the time of sentencing a CCL are very different from that of an adult.

That CCLs are exempted from imposition of the mandatory minimum sentence prescribed for adults is reflected also under Section 21 of the JJ Act, 2015. Order that may not be passed against a child in conflict with law — “no child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release ”. Section 21 recognises that certain sentences are too harsh for a CCL to undergo. The same yardstick will also apply to any sentence of imprisonment, less than that of imprisonment for life.

Prof. Ved Kumari, in her critique of the JJ Act, 2015, while referring to Section 19(1)(i), mentions, “It is important to emphasise that Section 19 does not direct the Children's Court to impose the punishment as prescribed for the offence in the IPC or any other law in force.”³² She further says that Section 19(1)(i) does not specify that the sentence “has to be equal to the period of mandatory minimum imprisonment prescribed for the offence”. She then examines Section 19(1), along with other provisions of the JJ Act, 2015, thereby, concluding that the Children's Court has been given wide discretion regarding the period of sentence.

As detention is to “be used only as a measure of last resort and for the shortest appropriate period of time”,³³ the CRC states, “Mandatory minimum sentences are incompatible with the child justice principle of proportionality and with the requirement that detention is to be a measure of last resort and for the shortest appropriate period of time.”³⁴ There are jurisdictions that have argued that courts can grant less than mandatory minimum punishment for CCLs. USA does not have a progressive approach towards CCLs — it has not ratified the United Nations Convention on the Rights of the Child, and until 2005³⁵, death penalty could be awarded to children between sixteen to eighteen years on the date of offence. But regarding imposition of sentence on juveniles transferred into the criminal justice system, several States have expressly abolished the application of mandatory minimum sentences for such juveniles. For example, Washington State, in 2005 abolished mandatory sentencing of juveniles convicted as adults on the ground “that emerging research on brain development indicates that adolescent brains, and thus adolescents' intellectual and emotional capabilities differ significantly from those of mature adults.”³⁶ The underlying purpose for abolition of mandatory minimum sentencing is recognition of “diminished culpability of juveniles” and that “instability and emotional imbalance of young people may often be a factor in the crime ”. Columbia District too has so legislated in 2014³⁷, and the Iowa Supreme Court in 2014 held that mandatory minimum sentences are unconstitutional when applied to child offenders.³⁸

CCLs conduct is inherent to their age and is transitory. Children are amenable to positive influences. Long periods of incarceration, deprives CCLs the opportunity to “rehabilitation” and ‘social reintegration ”, which is the aim of the JJ Act, 2015, thereby, denying them of their right to life and personal liberty guaranteed under Article 21 of the Constitution of India³⁹. Imposing the same mandatory minimum punishment to a CCL as prescribed for an adult is unreasonable, arbitrary, and contrary to Article 14 of the Constitution⁴⁰ and the framework of the JJ Act, 2015. It also violates the principle of best interest, which assures a CCL individualised treatment, depending on the circumstances of a particular CCL.

Mandatory minimum sentence prescribed in substantive criminal laws has not taken into account the specificities and characteristics of adolescents. Applying the same mandatory minimum sentence to CCLs, denies them of considerations relating to their physiological and psychological differences, which is the crux of the matter. The doctrine of proportionality ordinarily indicates that punishment should be commensurate to the crime committed, whereas, in the context of juvenile justice legislation, the doctrine relates to commensurate treatment of CCLs per their characteristics and developmental stage. Therefore, to say that a CCL whose trial has been transferred from the juvenile justice system, should be punished as an adult, defeats the rationale of juvenile justice legislation and the doctrine of proportionality.