CHILD RIGHTS IN THE CRIMINAL JUSTICE SYSTEM: NEED FOR LAW REFORM of innocence.25 Under this principle, any child shall be presumed to be innocent of any mala fide or criminal intent up to the age of eighteen years. This is clearly violated by the preliminary assessment. The principle of non-waiver of rights26 is also violated by the preliminary assessment. Under this principle there cannot be any waiver of any of the rights of the child. This is neither permissible nor valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee. By assumption of the accused as guilty by the preliminary assessment, the principle of equality and non-discrimination— is violated. This by itself is also a violation of the fundamental criminal law principle of presumption of innocence. ‘Innocent until proven guilty beyond reasonable doubt’ is the general legal principle adopted by courts in India. In a criminal matter, unless the State makes out a prima facie case of guilt, no unfavourable inference can be drawn against the accused. The preliminary assessment is generally subjective depending on the findings of the expert, the methods used, based on the interpretation of the expert and his qualifications and experience. Such preliminary assessments should be forensic assessments that can answer psycho-legal questions and their validity and the findings must be subjected to legal scrutiny. Over-reliance on psychological assessment for judicial transfer has been questioned by the courts in cases where it found that the juvenile justice boards failed to apply their judicial mind in the assessment. For example, in some cases, the courts found the process inconsistent and age inappropriate.27 There were initially no guidelines as to how the Board would conduct the preliminary assessment. Each JJB would have its own ‘procedure and experts’. Recently, the Supreme Court observed in the case titled Barun Chandra Thakur v. Master Bholu And Anr 28 that “…we are of the view that 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 25 26 27 28 JJ Act, Sec 3(i) JJ Act, 2015, Sec 3(ix) Bharti Ali, Enakshi Ganguly, “Why preliminary assessment is against the idea of juvenile justice,” India Development Review (IDR), Sept. 27, 2022, https://idronline.org/article/rights/why-preliminary-assessment-is-against-the-idea-of-juvenile-justice/ Barun Chandra Thakur v. Master Bholu & Anr. In the Supreme Court of India Criminal Appellate Jurisdiction Dinesh Maheshwari; j., Vikram Nath; j. July 13, 2022 Criminal Appeal no.950/2022 (Arising out of SLP(Crl.) No.10123 of 2018.. Available at: https://indiankanoon.org/ doc/34328129/ accessed on 5 October 2022 53