The demands for amendments to the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) (JJ Act) have been in the alley for a while now. The protest began in the wake of the brutal Delhi Gang-rape incident, wherein the juvenile who as described as the vilest of the accused, was awarded three year imprisonment, the maximum tenure prescribed under the JJ Act, in a correctional home. The protestors called for more stringent punishment to the offender. Further, the violence witnessed against juveniles has also arisen as an important issue to be addressed as a priority through strengthening of existing provisions and introduction of new clauses in the Act.
In March, refusing to read down the provisions of Juvenile Justice Act to account for the mental and intellectual competence of a juvenile offender, a three Judge Bench of the Supreme Court comprising Chief Justice P Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh refused to interfere with the age of juvenility in cases where juveniles are found guilty of heinous crimes, in a Public Interest Litigation (PIL) filed by Subramanian Swamy. It was held by the Court that the provisions of the Act are in compliance with the Constitutional directives and international conventions. The Court further observed that it was not obligatory for a sovereign nation to be commanded by the laws of foreign jurisdictions. The Court held that the classification of juveniles as a special class stood the test of Article 14, and stated that it should restrict itself to the legitimacy and not the inevitability of the laws.
But S. Syed Ahmed, former chairman of Child Welfare Committee, a statutory body, said the aim of the Juvenile Justice Board is not to punish but reform offenders. “I can understand the agony and anguish of women victims of rape. At the same time, I expect them to understand the circumstances that lead to juveniles committing heinous crimes,” he said.
“There is nothing wrong with the Juvenile Justice Act. If at all something has to be changed, it is the functioning of the correctional homes run by the government. At present, these homes are places where even petty offenders are groomed to become hardcore criminals. The government must and change this situation,” he suggested. The draft does exactly this. While the maximum punishment is still 3 years, it places the onus on authorities to decide the punishment in cases of specific offences, as well as provides a detailed structure for reforming and reintegration of the juvenile with the society.
The Government of India is now contemplating amendments to the Act, constituting a review committee under the Ministry of Women and Child Development.
The Ministry website talks about proposed amendments in the following areas:
a) Increase in reported incidents of abuse of children in institutions, families and communities;
b) Inadequate facilities, quality of care and rehabilitation measures in Homes;
c) Delays in various processes under the Act, such as decisions by Child Welfare Committees (CWCs) and Juvenile Justice Boards (JJBs) leading to high pendency of cases;
d) Delay in adoption process;
e) Inadequate provisions to deal with offences against children;
f) Provisions related to juveniles in conflict with law, in the age group of 16 to 18 years etc.
The Draft JJ Act incorporates the principles of the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption (1993) which was absent in the original Act.
It provides for application of the act to
(i) cases involving detention, prosecution or penalty of imprisonment;
(ii) matters or processes relating to apprehension, production before court, disposal orders and restoration, and
(iii) procedures and decisions related to adoption of children and rehabilitation and reintegration of children, in conflict with law or, as the case may be, in need of care and protection, under such other law
It also defines an “abandoned child” as well as “aftercare”, unlike the present enactment. According to the draft, an “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, “aftercare” means provision of support, financial or otherwise, to young adults, who have completed the age of eighteen years but have not completed the age of twenty-one years, and have left institutional care, to help them to join mainstream society. The draft also provides for a definition for “best interest of Child”, “Central Adoption Resource Authority”, “Chief Medical Officer”, “child friendly”, “child legally free for adoption”, “open shelter”, “Child Welfare Officer”, “corporal punishment” and many others required for effective implementation of the Act.
Also, the word ‘juvenile’ is replaced in ‘child’ and the expression changed to child in conflict with law. The responsibility affixed on the child differs to the extent that while the Act defines juveniles in conflict with law having the accused, the draft affixes the phrase only to those against whom the guilt has been proved, who is found by the Board to have committed an offence.
Chapter II is the most notable feature of the draft which provides for “Fundamental Principles for Care, Protection, Rehabilitation and Justice for Children. It incorporates internationally accepted principles of presumption of innocence, participation, dignity and worth, best interest, family responsibility, safety (no harm, no abuse, no neglect, no exploitation and no maltreatment), positive measures, non-stigmatizing semantics, non-waiver of rights, equality and non-discrimination, privacy and confidentiality, repatriation and restoration, fresh start, diversion and natural justice. It provides for institutionalization as the last resort.
The functions and responsibilities of the Juvenile Justice Board have also been defined clearly, keeping in mind the best interest of the child. It defines the role of the custodian of child in conflict with law as also provides the conditions for bail of a child alleged to be in conflict of law.
Draft section 14 provides for inquiry into commission of specific offences by a child who has completed 16years if age. The inquiry, for offences alleged to have been committed under sections 302, 326A, 376,376A or section 376D of the Indian Penal Code is provided to be committed within a month of the child’s appearance before the board.
With regard to these specific offences, section 19 bars capital punishment or life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of Indian Penal Code.
The draft makes a provision for the children who have completed 16 years of age, and the Board is satisfied that the offence is of serious nature or that the child’s conduct and behavior have been such that it would not be in the child’s interest, or in the interest of other children housed in a special home, to send such child to the special home; or if the child is a habitual offender, or if the person is above eighteen years of age at the time of final orders; the Board may order such child or person to be kept in a place of safety and in such manner as it thinks fit and the period of detention so ordered shall not exceed in any case the maximum period provided for under this Act.
The Draft also includes provision with respect to a run-away child in conflict with law and provides for the functions and responsibilities of the Child Welfare Committee.
Section 30 provides for mandatory reporting in case of a child found separated and non-compliance is declared as an offence with an imprisonment up to 6 months, or fine of Rs. 10,000/- or both.
The provisions for surrender of a child are clearly defines, providing for a surrender deed before the Committee. An entire section with regard to orders that can be passed regarding a child in need of care and protection has been added. This section provides for declaration of the child as being in need of care and protection and makes provision for restoration, placement, sponsorship, foster-care and declaration of child as legally free for adoption. However, the committee is not empowered to pass adoption orders or resolve custodial matters in a marital dispute.
It also provides for registration of child care institutions housing a child, and also penalty for non-registration as imprisonment for 1 year or a fine of 1 lakh rupees or both.
The State Government is empowered to establish and maintain by itself or through voluntary or non-governmental organizations, as many “Open Shelters” as required.
Unlike the current Act, the draft provides for a detailed procedure to place the child under foster care, and empowers the State Government to make rules for defining procedure, criteria and manner for providing foster care services. Provision for after care of young adults leaving institutional care is also made, along with rehabilitation and re-integration services in institutions registered under the Act.
The Sections with regard to adoptions have been introduced, with special emphasis on inter-country adoptions. It gives a detailed insight into the functioning of the Central Adoption Resource Authority (CARA).
Defining other offences against children, section 74 prohibits the media from disclosing the identity of children or propagating any such information which would lead to the same. All reports relating to the child are also provided to be treated as confidential under section 100. Punishment for cruelty to child has been prescribed, as also punishment for employment of child for begging. Punitive measures have been prescribed for adoption without following the proper procedure, as well as sale or procurement of children for any purpose.
Corporal punishment and ragging is also made punishable in the draft.
The draft hence provides a comprehensive mechanism to deal with children in conflict with law as well as children who need care and protection. JJ Act has been amended twice, in 2006 and 2011. However, the suggestions have never been this comprehensive. The draft actually provides for repeal and re-enactment of the Act, and rightly so, in the wake of the demands for such amendments. The Ministry has invited comments over the draft till 3rd of July.
Read the entire draft here.