The Ministry of Women and Child Development on Thursday released the draft of rules that will govern the Juvenile Justice Act that came into effect this January. Among the salient features of the draft are specific rules for trial of juveniles between the age of 16-18 years, the provisions for setting up, composition and functioning of a Juvenile Justice Board (JJB), more comprehensive rules on adoption and foster care, as well as crimes against children.

Reports suggest that the new rules will focus on reformation, rehabilitation and reintroduction of reformed children into the society rather than retribution for the offenses committed.

“The power of apprehension shall only be exercised with regard to heinous offences, unless it is in the best interest of the child,” says the draft. It also postulates that an FIR cannot be registered against a child unless the offense committed by him/her entails imprisonment of 7 years or more for an adult for the same crime.

However, the buzz around the draft has increasingly been the legislation for children between 16-18 years of age involved in heinous crimes. The provision came in the context of the 2012 Delhi gang-rape where one of the accused was a minor.

In such a scenario, the JJB would have to ensure that the age of the child is ascertained within 30 days from the date of submission of the application. Then, the JJB will decide if the child will be tried as an adult at all. This assessment would be based on various criteria specified in Section 14 of the rules, like the mental state child, exposure to media, personality traits, history of violent or abusive acts, gravity of the offense committed etc.

Arlene Manoharan, a fellow at the Center for Child and the Law, National Law School of India University (CCL NLSIU), finds some of these criteria problematic.

“The Center for Child and the Law has taken a stand against the transfer of children in conflict with law to be tried in the court as adults. Having said that, neither the gravity of the offense nor the previous involvement of the child in violent or abusive acts should be used as criteria for the preliminary assessment by the JJB or the Children’s Court.”

Even in the scenario where the JJB might decide in favour of trial of the child as an adult, the draft rules mandate that the child never be tried with an adult.

However, there appears to be another flaw in the rules which may create bias in the trial. Swagata Raha, senior legal researcher with CCL NLSIU points out how the rules seem to have created a loophole that the Act had mitigated.

“In the Act, an appeal to challenge an order by JJB can be made in the Children’s Court. However, an appeal against the JJB's order in a preliminary assessment will lie only before the Court of Sessions,” explains Raha.

It must be noted here that while a Children’s Court is a designated Court of Sessions, all Courts of Sessions are not Children's Court – a distinction that the Act ensured based on the purpose of the appeal.

“It would compromise the fairness of the assessment by the Children's Court and the subsequent trial if the Children's Court were to also hear the appeal against a preliminary assessment. The [draft of] rules blur this distinction,” she adds.

Mathews Philip, the executive director for South India Cell for Human Rights, Education and Monitoring (SICHEM) has taken a stand against the trial of children as adults as well and says that the provision is not in line with international norms.

“When the international definition of an adult is above 18 years of age, then why are some specific cases being allowed to make exceptions to this definition here? Besides, what constitutes a ‘heinous crime’ is subject to interpretation,” he argues.

Meanwhile, the rules have also made provisions for infrastructure to house children in conflict with law along with city, district and state level inspection committees to be set up to scrutinize child care institutions. The draft also envisions that a child welfare officer be designated at each of these shelters.

However, the real challenge lies in the implementation. Nina Nayak, former chairperson of Karnataka State Commission for Protection of Child Rights and child rights activist explains that when there is an acute shortage of skill and staff in the existing institutions under existing laws for children, implementing the new rules is not going to be an easy feat.

“The rules do not address the operational issues like training, building a skill base, funding etc. So many of these officers appointed for child welfare schemes have little to no domain expertise. For these rules to be implemented properly, they would need a committed taskforce as well as ongoing audit and monitoring,” she says.