12 Access To Justice And Children

Dr.Mrunmayi M. Vaidya

1.  Introduction

Children are epithets of innocence, thus making them special beings. Their fragile bodies and immature minds require a special and different treatment them as distinguished from adults. Children constitute over 40 percent of India’s total population. They being the future of the nation, need special nurturing and consideration in their process of growth and development, which has to be healthy and all-round. This includes, not only their physical development through healthy diet, but also overall wellbeing including mental and psychological health, which can be done through strong legislations and good policies.

i. Vulnerability of child

There are various factors which compromise with secure environment which hamper the growth of the child, like the child labour, child sexual abuse and exploitation, trafficking, etc. These compromising issues are varied in nature and are not limited to a particular economic or social status. A child by nature is vulnerable irrespective of its class or gender and therefore susceptible to exploitation of various kinds. At such a time, it becomes necessary that the law comes to the aid of the child and not only rescue those in difficult circumstances but create a framework which accords protection to the child and its rights at all times and in all situations so that the world becomes a safer place for the child to live in .

ii. Age as determining factor

There are various age limits to classify a person as child, depending on the purpose for which such identification is required. For example, the marriage laws of Hindusi prescribe the marriageable age for boys as 21 and for the girls as 18 years. In case of guardianship of a person, the age of minority is ordinarily 18 yearsii. The law prescribes different age limits for different purposesiii.

2. Learning outcome

After reading this unit, the reader shall be able to:

1) Understand the need for special protection of law in case of children.

2) Identify special enactments meant to guarantee child rights.

3) Analyse the procedural protection to children in relation to administration of justice.

4) Know the grievance redressal mechanism under various laws pertaining to children.

5) Know the approach of judiciary relating to child in relation to administration of justice.

Legislations protecting Child Rights

If rights are viewed as entitlements, then issues of social justice, equal treatment, non-discrimination and empowerment become pertinent. It is well accepted that younger the children, the more vulnerable they are physically and psychologically and less able to protect themselves. There are several International Instrumentsiv which address various rights of children. Keeping this in mind, a number of legislative attempts have been made to identify and ensure child rights. India has a plethora of legislationsv covering various rights of children.

The concept of child rights in India got its importance and expression only through the provisions of the Constitution. There are two parts in the Constitution, which relate to recognition of rights of the children; Part III on Fundamental Rights, and Part IV on the Directive Principles of State Policy.

The Constitution lays down the rules to protect people from unjust action by the Government. These are rights that the Government cannot take away. Children have all rights as citizens of India, just as any other adult male or female. The Constitution of India also has special provisionsvi for children .The Constitution contains the most explicit form of constitutionalism with respect to child rights. The most crucial feature of the fundamental rights is that their violation is capable of being redressed through the Courts in all situations. Thus the interpretation of the child rights in the Constitutional perspective by the higher judiciary has contributed to widening of the ambit of child rights.

However, legislations alone cannot protect the rights. The right is meaningful only with the mechanism for its enforcement. It is necessary to have an efficient judicial system as well as an easy procedure for the redressal of grievances.

Procedural protection to children

In case of rights of the children, the aspect which needs to be taken care of is the child faced with the process of administration of justice. The child in this situation is most vulnerable. It is in need of real care and protection. There are certain provisions in the general laws like the Indian Penal Code 1860, Criminal Procedure Code 1974 and the Indian Evidence Act 1872 which deal with certain aspects of the child in the justice delivery process.

i. Indian Penal Code 1860 (IPC)

In case of children, the Code presumes that they have inability to have a guilty mind to be liable for offences. The child under the age of seven years is considered to be incapable of committing a crime as it cannot form the requisite mens rea required for any offence. However, in case of a child above seven years but below the age of twelve years, the Code gives exemption on basis of immaturity of the child. The child, who has no maturity to understand the consequences of his act, is given protection by the law.

ii. The Code of Criminal Procedure 1974 (Cr.P.C)

Like the Indian Penal Code, the Code of Criminal Procedure, 1974 too gives protection to child in a certain way. There are a few direct provisions but some of the provisions are general in nature and to be read with reference to the children.

According to the Cr.P.C, the police may secure the attendance of any witness within their local limits or the adjoining station. The Code gives a special exemption to children considering their age and the fact that they should not be exposed to the intimidating atmosphere of the police station. Therefore, ‘women’ which include female children; and boys below the age of fifteen years are exempted from attendance in the police station. The police are under an obligation to record their statements at their residence only.

The Code requires that in case a search has to be conducted of a female, it shall be done by another female with strict regard to decency. Even where a female is to be medically examined, the examination has to be strictly carried out under the supervision of a female registered medical practitioner. This goes a long way in ensuring that female children are not exploited and also that the inconvenience to them is minimized.

The Code also grants special permission in matters of prosecution for offences against marriage. The general requirement of law is that the Court shall not take cognizance of any offence unless the complaint is filed by the person aggrieved. However, where the aggrieved person is below the age of eighteen years, the Code allows the complaint to be made by any other person with the leave of the Court.

iii. Law of Evidence and the Child

The Indian Evidence Act 1872 has a specific section relating to children which refers to competency of witnessesvii to testify. The section states that all persons are competent to be witness unless they are unable to testify properly due to presence of certain factors. Among the various factors, is the tender age of a person.

There is no standard age laid down by the law but the words “tender age” are used. This is so because a child cannot be prima facie relied upon due to its immaturity. Therefore, if a child is unable to understand the questions or unable to give rational answers due to the age; the testimony cannot be considered. In case of a child witness, the Court has to be very careful and if the testimony has discrepancies, corroboration is required. A child of Tender years is a competent witness when such a child is intellectually sufficiently developed to understand what he or she had seen and afterwards to inform the Court about it.

The Legal Services Authorities Act, 1987

The child who is faced with the justice delivery process needs legal representation to justify his rights. Therefore there has to be a provision for legal assistance. Such facility is provided by the Legal Services Authorities Actviii by providing for free legal assistance to certain categories of persons including children. An application has to be made to the Legal Services Authority regarding the same.

5. Grievance Redressal Mechanism

The commission of an offence calls for the redressal of the grievance by the Justice Delivery System. The laws governing this process therefore become important. It is all the more so, when children become the part of the judicial process as the victims of offences. Following are the relevant laws providing for mechanism for redressal of violation of child rights.

i. Commission for Protection of Child Rights

National & State Commission: There exist National Commission and State Commissions for protecting the rights of children by virtue of the Commissions for Protection of Child Rights Act 2005. It has a very important role to play in cases of violation of child rights. It has to inquire into such cases and recommend initiation of appropriate proceedings. The Commission has the specific and very important responsibility of looking into the matters of children in need of special care and protection including those in distress, marginalized and disadvantaged children, children in conflict with law, juveniles, children without family and children of prisoners. The Commission also has the responsibility of inspecting any place where children have been kept in care.

The Commission is not an adjudicatory body but a recommendatory body. Upon investigation and inquiry if it finds that there is violation of child rights then it can recommend to the concerned Government to take further action, as well as approach the Supreme Court or High Court to issue appropriate writs or orders. The Commissions are vested with all the powers of the Civil Court.

Children’s Court: In addition, the Act provides for the setting up of Children’s Court for the speedy trial of offences against children. These Courts need not be constituted if there is already a Court constituted under any other legislation or where the Sessions Court has been designated as Children’s Court. Each such Court has a Special Public Prosecutor.

Special law for redressing Sexual Offences

Children are the most vulnerable category when it comes to sexual abuseix. The fact that they do not understand sexual behaviour or may be reluctant to reveal it to related adults, they become more susceptible to it. The remedy in such cases is provided under “The Protection of Children from Sexual Offences Act, 2012”x. There are Special Courtsxi constituted for trial of such offences. The Act lays down elaborate procedure for reporting and investigation. It places responsibility on persons who have knowledge or information about such offence, to report it to the local police or the Juvenile Police Unit.

Recording of the statement is required to be done in the language of the child. The Act states that the statement should be recorded at child’s residence or any place at which child would be comfortable. The police are prohibited from wearing uniform while dealing with such children. The Act speaks about all the safeguards like use of audio-video technology, protecting the identity of the child, presence of parent/ guardian during recording of statement as well as medical examination of the child victim. One noteworthy provision in the Act is the requirement that the medical examination of girl child victim should be compulsorily done by a lady doctor.

iii. Child Victim of Domestic Violence

Domestic violence is the violence which one suffers within the household. Children have always been the primary and silent victims of all types of domestic violence worldwide. By their very nature and vulnerability, they are unable to protect themselves from such onslaught. The legislature therefore has enacted Protection of Women from Domestic Violence Act 2005. It mentions various types of abusexii. The Act does not really provide relief to all children as it is meant only for protection of women. Therefore it accords protection only for a girl below the age of eighteen years. The aggrieved female child is entitled to various reliefs like protection orders,xiii residence order,xiv monetary reliefs, xv custody ordersxvi and compensation orderxvii. Even in case where the aggrieved person is a woman of major age, she can get orders in her favour for the maintenance as well as custody of the child, thus protecting the interest of children.

Juvenile Justice Care & Protection of Children Act 2000

Children being the vulnerable section of the society are prone to be victims of the situations. They may be the sufferers or they may indulge in commission of crimes. It has been a great concern for all the legal systems of the world to have a juvenile justice system which will cater to the needs of such children and ensure them protection. The Juvenile Justice (Care and Protection of Children) Act 2000xviii addresses this need. This Act contemplates a separate set of justice delivery system for children who commit an offence, as distinct from the Court system.

This Act has a wide ambit as it does not only cover Juvenile Offenders but also gives due consideration to those children who are neglected or are in need of been taken care of and provided by the Law. The Act brings about the basic distinction between ‘children in conflict with the law’ and the ‘child in need of care and protection’.

Child in conflict with lawxix:

The Central Government has framed rules in 2007 to give effect to the Act. These rules lay down the fundamental principlesxx on which the juvenile justice system is expected to function.

Special Juvenile Police Unit: Every District has a ‘Special Juvenile Police Unit’ which is meant for dealing with the juvenile in conflict with law. At least one police officer is designated as Juvenile or Child Welfare Officer who is specially trained and instructed. This officer has to have a sensitive approach while dealing with children. On apprehension of a juvenile in conflict with law, the juvenile has to be handed over to the care of such Unit.

The Unit is prohibited from sending a juvenile to police lock up or jail on apprehension. The officer has to produce the juvenile before the Juvenile Justice Board. The unique requirement of the Act is that the police have to wear plain clothes at all times except during the arrest.

Probation Officer: Probation Officer plays an important role in juvenile justice system beginning with apprehension of juvenile by police and continues to supervise the juvenile till his rehabilitation and social reintegration. The officer may have a role to play at three different stages, viz; the bail, final order and post release. He is expected to deal with all the problems and difficulties of the concerned juvenile as well as help in the rehabilitation. He has to prepare a Social Investigation Report regarding the juvenile and submit to the Juvenile Justice Board.

Juvenile Justice Board: The most unique feature of the procedure under the Act which makes it child friendly is the provision for the establishment of Juvenile Justice Board. This is a very informal set up to decide matters in relation to Juveniles in conflict with law as distinct from the regular Court system which is adversarial in nature.

The proceedings before the Board have to be held in premises of an Observation Home or somewhere near to it but not in the Court premises. The law lays down the particulars to be taken care of to make the ambience child friendly including the child friendly look of the Court room and absence of witness box.

The Magistrate may dispose the case if evidence is unfounded or matter is trivial, or transfer the juvenile to Child Welfare Committee or consider release on bail or release under supervision of Probation Officer or else detain the juvenile in an Observation Home pending inquiry for serious offences.

Throughout the proceedings, the juvenile has to be given proper hearingxxi. The Act lays down the duration of four months within which the inquiry has to be completed after the first summary inquiry.

Final orders which can be passed by the JJ Board

• Transfer to Child Welfare Committee
• Release on probation of good conduct under supervision
• Release on admonition & advice
• Transfer to Special Home for 3 years
• Require juvenile to perform community service
• Direct juvenile to participate in group counselling
• Order fine to parent or juvenile if juvenile is above 14 years & earning

Institutions under the Act: The juveniles who come in conflict with the law cannot be detained in jail like any other accused. They are to be housed in separate institutions called as “Observation Homes” and “Special Homes”. Observation Homes are meant for juveniles in conflict with law during the pendency of their inquiry before the Board .If the juvenile is found guilty after inquiry, he/she is sent for institutional care at the Special Home. Such homes are separately maintained for boys and girls.

Child in need of care and protectionxxii:

The Act provides for the constitution of Child Welfare Committees in every District to receive children and provide care and protection including shelter, safety and rehabilitation. Any child in need of care and protection may be produced before the Committee by the following persons:

Such children who are found to be in need by the Committee, may be send to Shelter Home if they are in urgent need of accommodation or else to the Children’s Home which is a comprehensive Child Care Centre. Such children are then rehabilitated by giving them in adoption, foster care or by finding sponsors for them or sending them to After- care Organization.

Appeal from the orders of Juvenile Justice Board as well as the Child Welfare Committee lies to Sessions Court and further to High Court and Supreme Court respectively.

Maintenance

Very important aspect of child rights is the right to get maintenance from parents. Various Family lawsxxiii as well as the Code of Criminal Procedure provide for maintenance to the child. Such a child who has no income of its own and cannot maintain itself can make application for maintenance through next friend against either of the parents. This applies even to an illegitimate child.

Under the Personal Laws application can be made to the District Court having jurisdiction over Family matters, or to the Family Court wherever it exists or under Sec. 125 Cr.P.C to the Judicial Magistrate First Class.

6 Judicial approach towards Child Victims/Witnesses

The judiciary has been proactive regarding rights of child. Among all the situations in which the child is placed, the most difficult situation seems to be when it is face to face with the criminal justice system. This is when the child as a victim seeking redress, becomes part of the judicial process. The trial of the accused should not turn out to be a trial of the victim himself. Unfortunately, in our legal system there is high probability of the same.

In the Indian system, there is no special law which deals with the child victim vis a vis the criminal justice system except the Protection of Children from Sexual Offences Act, 2012 which cover only victims of sexual offences. Therefore, the judiciary is under a duty to step in and ensure that the child victim of alleged offence is not further victimized by the legal system. The Courts have made recommendations as to the investigation and trial of offences against children to see to it that they are not traumatized by the legal procedure.

The child who testifies may himself be the victim of the alleged offence. It may also happen that the child is merely a witness, but not the victim of the offence. In both the situations however the child suffers through the process of recording of evidence as it has to live through the whole of the experience that it already had as a victim or as a witness to the offence. It is this trouble that needs to be eased.

This aspect came up for consideration in a very landmark judgment before the Apex Court in Sakshi v. Union of India (UOI) and Ors xxiv . The Court gave following specific directions for trial of child sexual abuse or rape in the Sakshi’s case ;

• Requirement of a screen or such arrangement where the victim or witness will not be able to see the face or body of the accused as it may lead to trauma and fear during deposition.
• The questions to be asked in cross-examination which are directly related to the incident should be forwarded to the presiding officer who will put it to the child. This is to avoid embarrassment and purposeful questions meant to degrade the witness/victim.
• Sufficient breaks should be provided to child victim/witness while giving testimony. These propositions would go a long way to ensure that the child victims are not further traumatized and their rights are protected to a larger extent.

Summary

Children are considered to be in need of special treatment due to the fact that they are physically and emotionally weak. This becomes all the more necessary when they come in contact with the justice delivery process. The law therefore accords them special protection. There are several International Instruments as well as national laws meant for the same.

There are special provisions exempting the child from attendance in the police station, as well as in some cases from liability itself. There are special courts for the purpose of trying sexual offences against children and a special procedure. There also exist a Children’s Commission at the Central and State level for protecting rights of children. Complaints of violation of child rights can be filed before the Commission which can take the matter to appropriate authority.

The most pertinent law in relation to children is the Juvenile Justice Care and Protection of Children Act 2000 which provides protection to child in need of care and protection and children who are in conflict with law. The Juvenile Justice Board specially constituted for purpose of trying child offenders is a unique and special system which gives due consideration to the age of the person. The judiciary has been proactive in relation to access to justice to children and has passed several judgments to ensure rights of such children.