The Delhi Commission for Protection of Child Rights (DCPCR) has filed a writ petition in the Supreme Court challenging the amendments made to the Juvenile Justice(Care and Protection) Act 2015 in 2021 by which certain categories of offences against children have been made non-cognizable.
The Commission is challenging the 2021 Amendment to the extent it made the following categories of offences non-cognizable :
A. Use of children for drugs peddling
B. Use of children by terrorists
C. Exploitation of child employee
D. Cruelty against children
When the offences are non-cognizalbe, the police cannot register FIR and the investigation can commence only on the basis of a complaint filed before the concerned Magistrate.
In 2021, the Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 was passed to amend various provisions of the Juvenile Justice Act, 2015 which received the assent of the President on 07th August 2021. However, the Amendment Act is yet to be notified. There are 29 Amendments carried out in the Juvenile Justice (Care and Protection of Children) Act, 2015 by the Amendment Act, 2021.
Section 26 of the Amendment Act categorizes serious offences i.e. offences with imprisonment for a term of three years and above, but not more than seven years as non-cognizable. Such offence includes sale and procurement of children, exploitation of child employee, employment of children for child begging, giving intoxicating liquor or narcotic drug to a child, etc.
The Commission argues that such categorization violates Article 14 and 21 of the Constitution of India and also various other international obligations under the United Nations Convention on the Rights of the Child to which India is a signatory. Further, such categorization is contrary to the scheme of the Juvenile Justice Act which is progressive in nature and protects children against all forms of exploitation.
It is argued that the categorization is also contrary to the general scheme of IPC wherein offences punishable with imprisonment for more than three years are categorized as Cognizable whereas offences are punishable with imprisonment for up to three years as non-cognizable. There is no reasonable justification or rational nexus sought to be achieved by reclassifying the cognizable offences as non-cognizable offences, the plea states..
It is mentioned that on 08.04.2022, five State Commissions for Protection of Child Rights representing the States and Union Territories of Chandigarh, Delhi, Punjab, Rajasthan and West Bengal in exercise of their powers vested under Section 15 of the Commissions for Protection of Child Rights Act, 2005 recommended to the Government of India that a Bill be tabled in the Parliament to further amend the Juvenile Justice Act, 2015 in order to restore the cognizability status of the serious offences under the Juvenile Justice Act, 2015. DCPCR says that no response has been received from the Central Government on the recommendations.
In this backdrop, the petition has been filed seeking a declaration that declaring the amendment to Section 86 of the Juvenile Justice (Care and Protection of Children) Act, 2015 by way of Section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2021 as unconstitutional and violative of Articles 14 and 21 of the Constitution to the extent it makes offences under the Act which are punishable with imprisonment for a term of three years and above, but not more than seven years as non-cognizable.
The petition has been filed through Preteek K Chadha, Advocate on Record.