Determination of Age in Juvenile Justice Act,2015

Introduction

Age determination is of paramount importance for ascertaining whether an accused comes  within the purview of Juvenile Justice Act, 2015 or not. The Act of 2015 grants minor accused of committingcrimes some special privileges. The “judicial waiver” system, which permits treating juvenile criminals as adults if they are suspected of committing a heinous crime, has increased the significance of age determination (between 16-18 years of age).

The provisions for age determination lean strongly in favor of juvenile offenders. In this regard, the Child Welfare Committee (CWC) has been granted extensive authority. If an accused person seemed to be younger than 18 years old based on appearance, the committee will note this and move on without further investigation. 

The committee consults the matriculation certificate or birth certificate if there are good reasons to question the applicant’s age. The committee will only use an ossification test or another medical test to determine age if a birth certificate or other pertinent school records are missing.

Significance of Age Determination 

The Juvenile Justice (Care and Protection of Children) Act, 2015 only makes the benefits available to those under the age of 18, therefore determining age is an important consideration. Juvenile was defined as a child under the age of eighteen in Section 2(35) of the 2015 Act. 1 The 2015 Act increased the significance of age determination by creating an exception that allows a child over sixteen to be prosecuted as an adult if he is accused of committing a serious crime. 

Procedure for determination for age 

A three-layered process is described in the 2015 Act for determining age:

1. Based upon appearance- In this case, a presumption is drawn in favour of a juvenile. If a person appears to be a child below 18 years, then the Child Welfare Committee (CWC) shall record the approximate age and proceed without waiting for further confirmation.

2. On the basis of documentary evidence – If there are good reasons to doubt the age, the date of birth listed on the matriculation certificate or birth certificate should be used as proof.

3. Based on medical evidence – Only in the absence of documentation evidence should medical opinion be trusted.

4. If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule. the court or Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. 

5. Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. 

6. The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.

Documentary evidence’s reliability.

When a birth certificate or matriculation certificate is presented, courts generally won’t consider any objections that are over a juvenile’s age. This is primarily because, according to the Indian Evidence Act of 1872, documentary proof is the predominant kind of evidence. 4 According to his birth certificate and other school records, Nirbhaya’s accused age was 17 years and 6 months. The police asked the judge to order an ossification test. However, the court rejected the argument and declared that it could not approve the test in the presence of conclusive proof, such as a birth certificate. 5 The court accepted a “mark sheet” as proof of age in Raju Kumar v. State of Haryana

The Juvenile Justice Act’s provisions have always been construed favourably by courts. In Arnit Das v. State of Bihar,7 the court concluded that a hyper-technical approach should not be used when evaluating the evidence presented on behalf of the accused in order to determine whether or not the accused is a juvenile. When two views are possible are possible on the same evidence, the court should lean in favour of holding the accused to be juvenile in borderline cases.

In a few cases, court has rejected school documents for determination of age if they do not fulfil the requirements of Indian Evidence Act, 1872. The court in Ravindra Singh Gorkhi v. State of Uttar Pradesh 8 dismissed the school diploma because it didn’t meet the criteria set forth in the Indian Evidence Act of 1872. The court determined that there was no adequate register kept and that the original register was not presented to the court. The register wasn’t kept up to date during regular business hours. It was determined that the certificate was created exclusively for that case. As a result, the court denied the claimed certificate.

The curious case of Bihar

Forging a school leaving certificate is relatively easy as compared to other documents. This is evident by a scandal which was busted in Bihar. Bihar police arrested a school principal who made fake certificates for adult criminals and certified in courts that they were juveniles. His modus operandi was very simple. Since he was the principal, it was relatively easy for him to fake a school leaving certificate. On an additional charge of Rs. 50,000, he would certify in court that his clients were juveniles. Police suspects that he sold more than 100 forged school leaving certificates during his tenure as a principle. He even sold them to criminals from other states as well. As per police reports, there are many other people selling fake certificates.

Determination of age of juvenile with reference to different documents: 

 School Leaving Certificate- Where school leaving certificate was produced but nothing was shown as to whether any register was required to be maintained under any statute, any register was maintained was also not shown, original register was not produced, none was examined to prosecute entries made in the register, school leaving certificate was not issued by a person who was in school at the time when the accused was admitted therein, then interpreting the provisions of Sec. 35, Evidence Act, the Supreme Court held that such school leaving certificate cannot be relied upon to ascertain the age of a juvenile. The age of a person requires to be determined in a manner laid down under a statute and different standard of proof should not be adopted.

 Medical Board Report versus School Certificate– In case of conflict of date of birth recorded in the certificate of the school first attended and the opinion of the medical board, the date of birth recorded in the certificate from school first attended should be given preference. In terms of the provisions of Sec. 68 of the Juvenile Justice (Care & protection of Children) Act, 2000, the Central Government has framed Juvenile Justice (Care & Protection of Children) Rules, 2001. Rule 22 of the said Rules provides for the procedure to be followed in respect of determination of the age of a person. It indicates that the opinion of the Medical Board is to be preferred only when a date of birth certificate from the school first attended is not available. It was held in the case of Ram Suresh Singh vs. Prabhat Singh. 

 Entries of Admission Register of School not a public document – Age recorded in school admission register cannot be treated as a public document and it must be proved in accordance with the law. Entry of date of birth made in School Admission Register should be considered from the perspective that often persons give false age of the child at the time of admission so that he may have an advantage later in his life. When no reliable material is produced on record to show that date of birth was recorded in School Register on the basis of statement of any responsible person and the Admission Register and T.C. fails to satisfy the requirement of Sec. 35, Evidence Act and the same are also found “forged and fabricated”, then held that no reliance can be placed upon such entries contained in Admission Register of the school

Entries of Electoral Roll– In the case of Sushil Kumar vs. Rakesh Kumar, Entry of age of a person recorded in electoral board is recorded as per the statement made by the person concerned. But it is for the court to consider the said material on record in its proper perspective. Such entries have been held by the Supreme Court as not conclusive.26 (E) Entries of Family Registers—- Extracts of family register do not indicate correct date of birth. The entries made in family register regarding the age of a person are not conclusive proof of the correctness of the date of birth. Entries in Kutumb Register cannot be relied upon for determination of age of a person without holding enquiry.

Entries of Family Registers– Extracts of family register do not indicate correct date of birth. The entries made in family register regarding the age of a person are not conclusive proof of the correctness of the date of birth. Entries in Kutumb Register cannot be relied upon for determination of age of a person without holding enquiry.

But in the cases of Budh Ram vs. State of U.P., 30 & Harpal Singh and anothers vs. State of H.P.  it has been held that the entries made in the family register, if produced from proper custody, should not be ignored lightly.

 Parents evidence regarding age- In the matter of conviction of an accused for offences u/s. 366, 376 IPC, the evidence of parents of the prosecutrix (their daughter) to the effect that she was below 16 years of age, it has been held by the Supreme Court that the parents of the victim of rape are most natural and reliable witnesses with regard to her age. Case on the subject is- Fateh Chand vs. State of Haryana.

Use of previous orders of courts in determination of age of Juvenile- In determining the juvenility of a person on the date of commission of offence the earlier orders passed by the court regarding the age of the juvenile are also relevant. Case on the point is Jyoti Prakash Rai vs. State of Bihar. 

Entries in register of births & deaths- As per Sec. 35, Evidence Act, while ascertaining the age of an offender, the entries contained in register of births & deaths recorded by an official in performance of his duties cannot be doubted merely on the ground that the same were not contemporaneous with the suggested date of birth of the offender. More so, when LIC policy and matriculation certificate also mentioned the same date of birth as mentioned in Register of births and deaths. Case on the point Santenu Mitra vs. State of W.B.

Medical Opinion Reliability

In the absence of birth certificate or matriculation certificate, age is determined based upon medical opinion. The ossification test is the main method for estimating age. Ossification, a process in which new layers of bone material are laid, remodels human bones (or osteogenesis).  Ossification testing is done based on this phenomena.

DECONSTRUCTING OSSIFICATION

Before delving into the intricacies of this discussion, it is better to get acquainted with the process of ossification in the first place. Ossification leads to the formation of bone cells (osteoblasts), which is why it’s also known as osteogenesis. Since the ability to form bones is associated with biological and skeletal maturity, ossification qualifies as a test for age determination. The standard and most common procedure compare the X-ray of the left wrist (as it is less prone to fracture and deformation) with the radiographs present in the standard atlas (Greulich & Pyle method) or the local regions of interests. Prima facie, the method does look alluring and reliable as it was developed after years of testing and research. However, a bare perusal of the medical limitations of this test indicates that the uncertainties clearly outweigh the evidence.

Accuracy is the highlight of a good test for age determination. The simple reason is the high stakes of the people at margin i.e., whose estimated age through the test lies in the 15-19 years range. This range becomes even more significant in light of the 2015 Amendment regarding the trial of a child above 16 years as an adult in case of heinous offences. It is noteworthy that higher punishment is not the only reason why the stakes of juveniles in such a case are high. Such kind of a trial snatches away their Right to Fresh Start according to which their criminal records would be destroyed post-rehabilitation. This clearly indicates how essential it is to come up with an accurate age estimate.

As of now, in a situation when the age estimated through the ossification test may fall on either side of the 16th or the 18th year mark, the Indian courts award any benefit of the doubt to the accused, as was held in Shweta Gulati v. State (NCT of Delhi). However, the high margin of doubt obtained by the ossification test is prone to manipulation by its beneficiaries.

Ossification test flaws

The fact that the ossification test only provides an individual’s “estimated” age rather than their actual age is one of its primary drawbacks. It merely provides an estimate of a person’s “biological” age, which is different from “legal” age. Even if the test is performed on numerous joints, the ossification test leaves a margin of at least six months on either side. It occasionally varies by four years.  If a test is done on only one bone, there might be a two-year mistake on either side. The margin may be shortened by up to six months on either side if it is performed on numerous joints with overlapping fusion ages. 

But it’s impossible to rule out the chance of a mistake. The age of a person cannot be determined with certainty by an osseification test, especially when it is performed in a border area, which allows more space for speculation.

Another major flaw is that the test is not useful when a person has crossed 25-27 years of age. This is primarily due to the fact that by the age of 25, skeletal growth has stopped and almost all bones have fully ossified. 16 In the case of Mukarrab Etc vs State Of U.P the medical report said that since both of the defendants were older than 25, there was no need for dental x-rays.

WHAT IS THE SOLUTION TO THIS PROBLEM?

In light of these discrepancies, the question arises as to what could be an appropriate solution to this problem? This is where we enter the realm of forensic dentistry, which is currently used by the U.S. Immigration Department for age determination. Under forensic dentistry, the author proposes the Demirijian Method. It is primarily based on the stages of development of the mandibular third molar (commonly known as, wisdom tooth). Further, this test is specifically concerned with individuals in the range of 15-19 years of age, making it suitable for the purposes of the JJ Act. This is because the development of the roots of the wisdom tooth takes place in this period. Several other features of this test also render this test suitable for adoption in the Indian context.

Firstly, the enamel of a tooth is one of the strongest and most resilient parts of the human body. Moreover, as teeth are protected by various hard and soft tissues, they are resistant to external factors like high temperature, acidic or alkaline decomposition, etc. Secondly, this measure has a comparatively lower margin of deviation in the estimated age, i.e., 0.76 years. Thirdly, even across different ethnic groups, there are very few deviations in the growth rate, formation, and structure of the wisdom tooth. Fourthly, this test not only keeps into account the standard emergence phase (commonly, but wrongly referred to as ‘eruption’) but also other anomalies like overcrowding of the molar, ankylosis, or the delayed emergence or extraction of the milk teeth. Fifthly, it is noteworthy that forensic dentistry is already used by organizations like the Indian Dental Association for conducting dental research and orthodontic treatments. So the question of whether we have ample technological resources to introduce this test for age determination is also satisfactorily addressed.

There are several other tests for age determination that may be considered as a replacement for the ossification test. In the field of the skeletal examination itself, the advanced methods like Tanner & Whitehouse, Gilsanz & Ratibin and Magnetic Resonance Imaging (MRI test) are relatively newer and use better quality equipment for age determination than the current standard ossification test. However, the superiority of forensic dentistry over the skeletal examination, as proved above, always gives Demirijian method an edge over others. Proven facts like dental growth rate deviation being lesser than the skeletal growth rate deviation and that the resilience of teeth is higher than that of the bones further strengthen this contention.

Moreover, even in the realm of forensic dentistry itself, there are other tests like the Bang & Ramm’s method of dentine translucency. However, this test is only useful to determine the age of older persons as teeth begin to appear translucent post the third decade of human life. Therefore, for the purposes of the JJ Act, Demirijian’s method stands out and remains the most viable choice.

Section 94 in The Juvenile Justice (Care and Protection of Children) Act

 Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining

• The date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof
• The birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board 
• Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
• The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.