33 JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015

Varalaxmi Moganty

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Table of Contents:

  1. Introduction
  2. History
  3. Juvenile Justice (Care And Protection Of Children) Act, 2015
  4. Criticism
  5. Summary
  6. References

1. Learning Outcomes:

  • This chapter helps the students to understand the Juvenile Justice act, liable people; especially minors who commit crimes and are susceptible to punishment.
  • By the end of this chapter one will be well versed with the working structure, implementation and monitoring of the programmes and notice various special provisions described in the act.

2. Introduction

 

Juvenile Justice (Care and Protection of Children) Act, 2015 was enforced by Government of India to repeal and re-enact the existing Juvenile Justice (Care and Protection of Children) Act, 2000 and it was in force from 15th January 2016. The major objective of the present act was to address the issues related to juveniles in conflict with Law especially between 16 to 18 years. These crimes include heinous offences by committed by juveniles along with other offences.

3. History:

It is after the incident of 2012 Delhi gang-rape it was found that a juvenile boy who was nearing his 18th too was found to commit along with other adult offenders. Though he was tried he was to be treated as an adult. It in this context on 31 July 2013, Subramanian Swamy, a politician filed a Public Interest Litigation in the Supreme Court of India pleading that the boy in this case should be tried as an adult in a court.

Further the Supreme Court asked the juvenile court to delay its verdict. Then the juvenile court through its verdict sentenced the juvenile in conflict with 3 years stay to get reform- home on 31 August 2013. This made victims’ mother to feel unhappy for the boy was instead of being punished was given a shelter and in doing so the court was encouraging other teenagers too cause such offences to women.

There are other initiatives for the evolution of this new Act 2015. The key person was Maneka Gandhi the minister for women and child development in 2014 who took interest in preparation of the new legislation which would cover all the crimes especially of heinous nature by juveniles between age group-16-18 years too to be treated as adults. The data says that Maneka Gandhi opined that 50% of crimes were found to be committed by teen-aged boys who are being escaped. Thus a bill was introduced in the Parliament on 12 August 2014 in this regard3.

4. The Juvenile Justice (Care and Protection of Children) Act, 20154:

The gazette of India describes the juvenile justice act as “An Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, herein under and for matters connected therewith or incidental thereto.”

The present act is divided into ten chapters and one hundred twelve sections. We shall deal with the major and relevant provisions for juveniles in conflict with law for our discussion purpose; chapter wise.

Chapter I: Preliminary

Prologue of the chapter states about the short title of the ct etc., : “This Act may be called the Juvenile Justice (Care and Protection of Children) Act, 2015. It extends to the whole of India except the State of Jammu and Kashmir. Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law, including —

  • Apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in conflict with law;
  • Procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection”(Section 1(4)).

Definitions:

The first chapter provides for definitions. Here are some significant definitions provided in the Section 2 of the Act. Accordingly, “A child is a person who has not completed his eighteen years of age”; “A child in conflict with law means a child who is alleged or found to have committed an offence and who has not completed his eighteenth year of age on the date of commission of such offence” and “Abandoned child” means a child deserted by his biological or adoptive parents or guardians, who has been declared as abandoned by the Committee after due inquiry”. Further “juvenile” means a child below the age of eighteen years. And, “Child line services” means a twenty-four emergency service for children in crisis which links them to emergency or long-term care and rehabilitation service”.

Further according to the act, “Adoption” means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child; “Administrator” means any district official not below the rank of Deputy Secretary to the State, on whom magisterial powers have been conferred and “Aftercare” means making provision of support, financial or otherwise, to persons, who have completed the age of eighteen years but have not completed the age of twenty-one years, and have left any institutional care to join the mainstream of the society”.

Other definitions need to mention include, “Authorised foreign adoption agency” which means a foreign social or child welfare agency that is authorized by the Central Adoption Resource Authority on the recommendation of their Central Authority or Government department of that country for sponsoring the application of non-resident Indian or overseas citizen of India or persons of Indian origin or foreign prospective adoptive parents for adoption of a child from India; “Best interest of child” means the basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development; “child friendly” means any behaviour , conduct, practice, process, attitude, environment or treatment that is humane, considerate and in the best interests of the child”; and “Central Authority” means the Government department recognized as such under the Hague Convention on Protection of Children and Cooperation in Inter-country Adoption (1993)”.

 

Some other definitions important for discussion on the Act are on, “corporal punishment” which means the subjecting of a child by any person to physical punishment that involves deliberate infection of pain as retribution for an offence, or for the purpose of disciplining or reforming the child”; “Heinous offences” includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more; “Sponsorship” means provision of supplementary support, financial or otherwise, to the families to meet the medical, educational and developmental needs of the child and “Surrendered child” means a child, who is relinquished by the parent or guardian to the Committee, on account of physical, emotional and social factors beyond their control, and declared as such by the Committee. “Petty offences” as per the act are offences for which the maximum punishment under the Indian Penal code or any other law for the time being in force is imprisonment up to three years. According to the act definition on “Serious offences” includes the offences for which the punishment under the Indian penal code or any other law for the time being in force, is imprisonment between three to seven years”

Chapter II: General Principles of Care and Protection of Children

There are some fundamental principles to be followed by the Central Government, the State Governments, the Board, and other agencies, as the case may be. These are:

  • Principle of presumption of innocence
  • Principle of dignity and worth
  • Principle of participation
  • Principle of best interest
  • Principle of family responsibility
  • Principle of safety
  • Positive measures
  • Principle of non-stigmatising semantics
  • Principle of non-waiver of rights
  • Principle of equality and non-discrimination
  • Principle of right to privacy and confidentiality
  • Principle of institutionalisation as a measure of last resort
  • Principle of repatriation and restoration
  • Principle of fresh start
  • Principle of diversion
  • Principles of natural justice”

Chapter III: Juvenile Justice Board

Chapter III prescribes for constitution of Juvenile Justice Board. Section 4 (2) reads:

“A board should consist of a Metropolitan Magistrate or a Judicial Magistrate of First Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal Magistrate) with at least three years experience and two social workers selected in such manner as may be prescribed, of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class”.

Section 4 (3) insists that no social worker shall be appointed as a member of the Board unless such person has been actively involved in health, education, or welfare activities pertaining to children for at least seven years or a practicing professional with a degree in child psychology, psychiatry, sociology or law.

Section 4(5) insists the State Government to ensure for training and sensitization of all members including Principal Magistrate of the Board on care, protection, rehabilitation, legal provisions and justice for children, within a period of sixty days from the date of appointment.

As per Section 4(6) of the act, the appointment of any member of the Board, except the Principal Magistrate, may be terminated when he :

  • Has been found guilty of misuse of power vested under this Act; or
  • Fails to attend the proceedings of the Board consecutively for three months without any valid reason; or
  • Fails to attend less than three-fourths of the sittings in a year; or
  • Becomes ineligible under sub-section (4) during his term as a member”.

Chapter IV: Procedures in Relation to Children In Conflict With Law:

The subject matter between Sections 10-18 provides for this procedure.

On apprehension of child alleged to be in conflict with law: Sections 10 reads:

“Such child shall be placed under the charge of the special juvenile police unit or the designated child welfare police officer, who shall produce the child before the Board without any loss of time but within a period of twenty-four hours of apprehending the child excluding the time necessary for the journey, from the place where such child was apprehended.”

Other provisions include from Section 11-18:

  • Role of person in whose charge child in conflict with law is placed
  • Bail to a person who is apparently a child alleged to be in conflict with law;
  • Information to parents, guardian or probation officer;
  • Inquiry by Board regarding child in conflict with law;
  • Preliminary assessment into heinous offences by Board;
  • Orders regarding a child not found to be in conflict with law;
  • Orders regarding child found to be in conflict with law.

Let us detail the Section 12(1) of the Act that deals with bail to a person who is apparently a child and is alleged to have committed bailable or non-bailable offence:

“When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person:

Provided that such person shall not be released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person’s release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision”

Other inclusions in the chapter are: From Section 19 to 23 are dealt with the other provisions.

  • Powers of Children’s Court.
  • Child attained age of twenty-one years and yet to complete prescribed term of stay in place of safety.
  • Order that may not be passed against a child in conflict with law.
  • Proceeding under Chapter VIII of the Code of Criminal Procedure not to apply against child.
  • No joint proceedings of child in conflict with law and person not a child.
  • Removal of disqualification on the findings of an offence.
  • Special provision in respect of pending cases.
  • Provision with respect of runaway child in conflict with law.

CHAPTER V: Child Welfare Committee

Section 27 provides for constitution of Child welfare Committe

“The State Government shall by notification in the Official Gazette constitute for every district, one or more Child Welfare Committees for exercising the powers and to discharge the duties conferred on such Committees in relation to children in need of care and protection under this Act and ensure that induction training and sensitisation of all members of the committee is provided within two months from the date of notification”. (Section 27 (1))

 

“The Committee shall consist of a Chairperson, and four other members as the State Government may think fit to appoint, of whom at least one shall be a woman and another, an expert on the matters concerning children”.( (Section 27 (1))20

Functions and responsibilities of Committee:

The functions and responsibilities of the Committee shall include—

  • Taking cognizance of and receiving the children produced before it;
  • Conducting inquiry on all issues relating to and affecting the safety and wellbeing of the children under this Act;
  • Directing the Child Welfare Officers or probation officers or District Child Protection Unit or non-governmental organisations to conduct social investigation and submit a report before the Committee;
  • Conducting inquiry for declaring fit persons for care of children in need of care and protection;
  • Directing placement of a child in foster care
  • Ensuring care, protection, appropriate rehabilitation or restoration of children in need of care and protection, based on the child’s individual care plan and passing necessary directions to parents or guardians or fit persons or children’s homes or fit facility in this regard

Further this section also deals with other functions viz., selecting registered institution for placement of each child; conducting at least two inspection visits per month of residential facilities; taking suo motu cognizance of cases and reaching out to children in need of care and protection; taking action for rehabilitation of sexually abused children who are reported as children in need of care and protection to the Committee; co-ordinate with the police, labour department and other agencies involved in the care and protection of children; accessing appropriate legal services for children; such other functions and responsibilities, as may be prescribed.

CHAPTER VI: Procedure In Relation To Children In Need Of Care and Protection

Sections from 31 to 38 deal with this procedure. This procedure involves the following aspects.

  • It includes the procedures like Production before Committee; Mandatory reporting regarding a child found separated from guardian;
  • Offence of non-reporting; Penalty for non-reporting; Surrender of children;
  • Orders passed regarding a child in need of care and protection;
  • Procedure for declaring a child legally free for adoption.

CHAPTER VII: Rehabilitation and Social Re-Integration

The text starting from Section 39 to 55 deal with the process of rehabilitation and re-integration.

Section 39(1) reads: “The process of rehabilitation and social integration of children under this Act shall be undertaken, based on the individual care plan of the child, preferably through family based care such as by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster care: Provided that all efforts shall be made to keep siblings placed in institutional or non-institutional care, together, unless it is in their best interest not to be kept together”.

Further according to the Section 53(1) Rehabilitation and reintegration services in institutions registered under this Act include:

  • Basic requirements such as food, shelter, clothing and medical attention as per the prescribed standards;
  • Equipment such as wheel-chairs, prosthetic devices, hearing aids, Braille kits, or any other suitable aids and appliances as required, for children with special needs and
  • Appropriate education, including supplementary education, special education, and appropriate education for children with special needs.

Further this Section 53(iii) details the educational needs in tune with the provisions of Right of Children to Free and Compulsory Education Act, 2009 as prescribed for the children between the age of six to fourteen years. Hence this section provides also for the child in terms of skill development; occupational therapy; and life skill education; recreational activities; legal aid; referral services of education and also for follow-up of individual care plan.

Inspection of institutions registered under this Act:

Section 54 (1) deals with this: “The State Government shall appoint inspection committees for the State and district, as the case may be, for all institutions registered or recognised to be fit under this Act for such period and for such purposes, as may be prescribed”.

Evaluation of functioning of structures

This is another aspect with regard to rehabilitation and re-integration. Section 55 (1) of the act reads: “The Central Government or State Government may independently evaluate the functioning of the Board, Committee, special juvenile police units, registered institutions, or recognized fit facilities and persons, at such period and through such persons or institutions as may be prescribed by that Government”.

CHAPTER VIII: Adoption

This chapter on adoption includes sections from 56 to 73. Some of the major sections are dealt here.

Major provisions are:

  • Procedure for adoption by Indian prospective adoptive parents living in India
  • Procedure for inter-country adoption of an orphan or abandoned or surrendered chil
  • Procedure for inter-country relative adoption
  • Effect of adoption
  • Adoption shall be resorted to for ensuring right to family for the orphan, abandoned and surrendered children, as per the provisions of this Act, the rules made there under and the adoption regulations framed by the Authority.
  • Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the provisions of this Act and the adoption regulations framed by the Authority. Nothing in this Act shall apply to the adoption.
  • The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him. In case of a couple, the consent of both the spouses for the adoption shall be required.

Procedure for adoption by Indian prospective adoptive parents living in India:

Section 58(1) of the act provides for this: “Indian prospective adoptive parents living in India, irrespective of their religion, if interested to adopt an orphan or abandoned or surrendered child, may apply for the same to a Specialised Adoption Agency, in the manner as provided in the adoption regulations framed by the Authority.

(2) The Specialised Adoption Agency shall prepare the home study report of the prospective adoptive parents and upon finding them eligible, will refer a child declared legally free for adoption to them along with the child study report and medical report of the child, in the manner as provided in the adoption regulations framed by the Authority”.

Procedure for inter-country adoption of an orphan or abandoned or surrendered child:

Section 59(1) of the Act reads: “If an orphan or abandoned or surrendered child could not be placed with an Indian or non-resident Indian prospective adoptive parent despite the joint effort of the Specialised Adoption Agency and State Agency within sixty days from the date the child has been declared legally free for adoption, such child shall be free for inter-country adoption; Provided that children with physical and mental disability, siblings and children above five years of age may be given preference over other children for such inter-country adoption, in accordance with the adoption regulations, as may be framed by the Authority”.

Procedure for inter-country relative adoption:

Section 60(1) provides for this “A relative living abroad, who intends to adopt a child from his relative in India shall obtain an order from the court and apply for no objection certificate from Authority, in the manner as provided in the adoption regulations framed by the Authority”.

Effect of adoption:

Section 63 deals with this: “A child in respect of whom an adoption order is issued by the court, shall become the child of the adoptive parents, and the adoptive parents shall become the parents of the child as if the child had been born to the adoptive parents, for all purposes, including intestacy, with effect from the date on which the adoption order takes effect, and on and from such date all the ties of the child in the family of his or her birth shall stand severed and replaced by those created by the adoption order in the adoptive family:

Provided that any property which has vested in the adopted child immediately before the date on which the adoption order takes effect shall continue to vest in the adopted child subject to the obligations, if any, attached to the ownership of such property including the obligations, if any, to maintain the relatives in the biological family”.

CHAPTER IX: Other Offences against Children

Other offences included in the chapter from Section 74 to 78:

  • Prohibition on disclosure of identity of children;
  • Punishment for cruelty to child
  • Employment of children for begging
  • Causing a child to any intoxicating liquor or narcotic drug
  • Using child for smuggling intoxicating liquor or narcotic drug
  • Engaging child in bondage for employment
  • Sale of children
  • Corporal punishment
  • Use of child for militant groups
  • kidnapping

Prohibition on disclosure of identity of children:

Section 74 (1) prohibits this: “No report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published”.

Penal measures:

Punishment for cruelty to child:

The following are some of the measures enlisted here:

“Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both”(Section 75).

“Whoever gives, or causes to be given, to any child any intoxicating liquor or any narcotic drug or tobacco products or psychotropic substance, except on the order of a duly qualified medical practitioner, shall be punishable with rigorous imprisonment for a term which may extend to seven years and shall also be liable to a fine which may extend up to one lakh rupees ”(Section 77).

Whoever uses a child, for vending, peddling, carrying, supplying or smuggling any intoxicating liquor, narcotic drug or psychotropic substance, shall be liable for rigorous imprisonment for a term which may extend to seven years and shall also be liable to a fine up to one lakh rupees.

Notwithstanding anything contained in any law for the time being in force, whoever ostensibly engages a child and keeps him in bondage for the purpose of employment or withholds his earnings or uses such earning for his own purposes shall be punishable with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine of one lakh rupees” (Section 79)

CHAPTER X: Miscellaneous

This chapter includes sections from 90 to 112 of the Act. Section 90 provides for the attendance of the parent or guardian of the child: “The Committee or the Board, as the case may be, before which a child is brought under any of the provisions of this Act, may, whenever it so thinks fit, require any parent or guardian having the actual charge of the child to be present at any proceeding in respect of that child”.

Other miscellaneous details of the act are described under this chapter which mainly include:

  • Dispensing with attendance of child.
  • Placement of a child suffering from disease requiring prolonged medical treatment in an approved place.
  • Transfer of a child who is mentally ill or addicted to alcohol or other drugs.
  • Presumption and determination of age.
  • Transfer of a child to place of residence.
  • Transfer of child between Children’s Homes, or special homes or fit facility or fit person in different parts of India.
  • Release of a child from an institution.
  • Leave of absence to a child placed in an institution.
  • Reports to be treated as confidential.
  • Protection of action taken in good faith.
  • Procedure in inquiries, appeals and revision proceedings.
  • Power of the Committee or the Board to amend its own orders.
  • Juvenile justice fund.
  • State Child Protection Society and District Child Protection Unit.
  • Child Welfare Police Officer and Special Juvenile Police Unit.
  • Public awareness on provisions of Act.

Monitoring of implementation of Act:

Section 109(1) of the provides for this: “The National Commission for Protection of Child Rights constituted under section 3, or as the case may be, the State Commission for Protection of Child Rights constituted under section 17 (herein referred to as the National Commission or the State Commission, as the case may be), of the Commissions for Protection of Child rights Act, 2005, shall, in addition to the functions assigned to them under the said Act, also monitor the implementation of the provisions of this Act, in such manner, as may be prescribed”.

Monitoring of implementation of Act:

Section 109(2) reads: “The National Commission or, as the case may be, the State Commission, shall, while inquiring into any matter relating to any offence under this Act, have the same powers as are vested in the National Commission or the State Commission under the Commissions for Protection of Child Rights Act, 2005”.

5. Criticism:

The new act was positively taken by researchers like Aggarwal and Kumar (2016) wherein they held:

  • As National Crime Records held that an increase in the juvenile crimes is rooted in financial and backwardness of families whose income not more than Rs 25, 000 per annum children of such families who commit crimes as theft, burglary need to be provided with healthy environment. . Thus they reaffirm the Act that includes a clause for adoption of such children by allowing inter-country adoption in case foster parents are not available in the country (JJ Act, Sec. 36)”.
  • Some sections in the society felt that in view of terrorism and other serious offences, Juvenile Justice Act of 2000 needed to amend to include punitive approaches in the existing Juvenile Justice Law, which so far is purely rehabilitative and reformative.

Further some other expressed differently:

  • Child Rights Activists and Women Rights Activists have called the bill a regressive step and have criticized the Bill.
  • Some argued that there is no need of tampering with Juvenile Justice Act for putting up effective deterrent against terrorism.
  • Sayashi Saha(2016) refers to Prof. Faizan Mustafa who said “Adolescents in conflict with law need guidance not the company of hardened criminals”(The wire , May12, 2015, cited., Syashi Saha)

6. Summary: The Juvenile Justice (Care and Protection of Children) of Act, 2015 with its elaborate provisions for a juvenile in conflict with law is a very important intervention for two reasons: the changing life styles and impact on young mind to behave deviant are causing harm to girl children and other criminal tendencies on the other hand. Another is these young minds need a protection as well as rehabilitation and reformation. Hence taking into consideration of opinions of social scientists and psychologists this welcoming act is expected to provide the reformatory needs of society.

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Reference: 

  1. Juvenile Justice (Care and Protection of Children) Act,2015 at http://uphome.gov.in/writereaddata/Portal/Images/j-j-act.PDF.
  2. https://en.wikipedia.org/w/index.php?Juvenile_Justice_(Care_and_Protection_of_Children)_Act, 2015.
  3. Smitha Agarwal and Nishanth Kumar (2016). Juvenile Justice Care and Protection of Children) Act, 2015: A Review, Space and Culture, India 2016, 3:3, pp.5-9.
  4. “Commencement notification” (http://egazette.nic.in/WriteReadData/2016/167578.pdf) (PDF).
  5. “16-Year-Olds to be Tried as Adults in Extreme Crimes, Says Lok Sabha” (http://www.ndtv.com/india-news/changes-to-juvenile-justice-act-spurred-by-gang-rape-outrage-passed-in-lok-sabha-761221).NDTV.7
  6. “Juvenile Justice Bill passed; 16-18 years to face adult laws in heinous crimes” (http://www.dnaindia.com/india/report-juvenile-justice-bill-passed-16-18-years-to-face-adult-laws-in-heinous-crimes-2084153). DNA India. 8 May 2015. Retrieved 14 May 2015.
  7. “Towards a comprehensive Juvenile Justice law” (http://www.thehindu.com/opinion/op-ed/towards-a-comprehensive-juvenile-justice-law/article6221909.ece). The Hindu. 18 July 2014.
  8. Sayashi Saha(2016) Critical Analysis Of Juvenile Justice (Care And Protection Of Children) Act, 2015 In The Light Of Reduced Age Of Criminal Responsibility Of Juvenile In International Journal Legal
  9. Development and Allied Studies at Indiahttp://ijldai.thelawbrigade.com/wp-content/uploads/2016/05/sayashi.pdf