Commission writes to all States to inform about procedure followed
The National Human Rights Commission (NHRC) has issued notices to all States and Union Territories asking them to inform, within a period of four weeks, whether the due process of law was being followed to ascertain the age of juveniles in conflict with law.
The processes have been defined in the Juvenile Justice (Care and Protection of Children) Act. The NHRC has also written to States to inform it about where the juveniles in conflict with law are being lodged: regular jails or juvenile homes.
According to a communiqué on the NHRC’s website, the Commission took suo-motu cognisance of the issue after Yogesh Dubey, Member, National Commission for Protection of Child Rights, stated that during his visit to the Agra District Jail, 38 juvenile inmates claimed that they were below 18 years on the date of offence for which they were accused. Seeking the NHRC’s intervention in the matter, he added that several juveniles were languishing in Chandigarh, Amritsar, Jaipur, Moradabad, Dhanbad and Lucknow prisons. The Commission, in its notice, observed that the right to determine the age of a child, implicated in a criminal case, is ensured by the Constitution.
The relevant rules of the JJ Act clearly state that the Juvenile Justice Committee would decide, within 30 days, after an application is submitted to it for determining the age of a juvenile in conflict, or not in conflict with the law, on the basis of physical appearance or documents like the matriculation or an equivalent certificate or birth certificate. It is only in the absence of these certificates that a medical opinion would be sought from a duly-constituted Medical Board. In case, an exact assessment of age could not be done, it was necessary to give the benefit to the child, by considering the age on the lower side within the margin of a year.
The determination of the age by the Investigating Officer in the case, particularly in the absence of any of the documents or the proof required, is not recognised in law, and therefore cannot be the basis to legally deal with the juvenile. The NHRC has also observed that if the age as determined by the Investigating Officer was accepted as final, it would amount to a serious violation of the human rights of a child.
The Commission has also observed that the Magistrate concerned, also could not act on the determination of the age by the Investigating Officer alone and send such juvenile or a child in conflict with law to a regular prison instead of a Juvenile Home. If the determination of age by the Investigating Officer was accepted as final, it would amount to serious violation of human rights of a child.
Shailesh Rai of the Amnesty International says, in practise, birth certificates were often used, but some States use bone and dental age tests. “However these assessments can be influenced by a person’s socio-economic background and nutrition levels, making it difficult to use standardised charts. There is also a margin of error up to two years,” he adds.
The United Nations Committee on the Rights of the Child has stressed the need for a more holistic approach, insisting that “age assessment should not only take into account the physical appearance of the individual, but also his or her psychological maturity.”
A UNICEF document which debates age assessment procedures, says they can be confusing for the child and frightening too, especially if the child has experienced trauma or distress earlier. “For this reason it is vital that the child is supported through the procedure by an adult whose primary interest is to promote the best interest of the child in all aspects of the assessment.” This adult must also be independent from the authorities involved in the procedure or those with a vested interest in the outcome of the procedure.
The UN High Commission for Refugees in evaluating children who seek asylum, says, “It is important that such assessments are conducted in a safe, child and gender-sensitive manner with due respect for human dignity.”