Wisdom Crux

Juvenile Justice (Care and Protection of Children) Act, 2015

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[Volume 2, Issue 7] – July, 2017

Author – Kartik Sabharwal, B. Com LLB(Hons.), University of Petroleum and Energy Studies, Dehradun.

Co-Author – Harshika Kapoor, B.Com LL.B.(Hons.), University of Petroleum and Energy Studies, Dehradun.

ABSTRACT

Juvenile delinquency i.e. crimes committed by young people, it refers to the antisocial and criminal behavior committed by persons under the age of 18. Once persons reach adulthood, antisocial and criminal behavior is known as crime. However, every state and the central government have extraordinary laws characterizing the starting and end period of juvenile.

The aim of this article is to investigate into the provisions of the newly amended Juvenile Justice Act, 2015 which expanded the domain of the Act that has been considered as a close immaculate arrangement, by our administrators, to the crimes committed by the Juvenile Delinquents. The focal question which this article looks at whether the article is sufficiently complete to take out the potential outcomes of wrongdoing by the juveniles as it is based on principle of reformation and rehabilitation of children who are otherwise presumed to be innocent not to commit a crime. There is no arrangement in the Bill for isolated correctional facilities for the 21-year- old’s, however ladies who guided the Bill, claims they would not be permitted to blend with grown-up detainees. Our research is based on doctrinal method however some parts will be conducted through empirical study where most of research is done through journals, books, reports of NGO’s and other secondary sources.

The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2015 disregards the truth of adolescent wrongdoing and debilitates the most defenseless segment of our public. So Even if we want to try these juveniles as adults, it is the responsibility of the society to make sure that a lot more is done in the direction of taking care and providing help and support to this section because the life and dignity of these misguided juveniles is because of this society and state.

KEY WORDS-Juvenile, Delinquents, Justice, Administrators.

Introduction

Juvenile delinquency is not new. However, it has turned into a reason for worry in India with the release of Crime in India Report, 2014, which demonstrates that from 2003 to 2014 crimes committed by children have expanded from 1% to 1.2%.Offspring of the age amass 16-18 years were in charge for 66% of crimes committed by all youngsters in 2013 mirroring an expansion of ten percent points from 2003 records (Crimes in India, 2014: 128-129). The recently passed Juvenile Justice (Care and Protection of Children) Act (henceforth, JJ Act) by the Indian Parliament on the 22 December 2015 means to correct the existing Juvenile Justice (Care and Protection of Children) Act of 2000 by endeavoring to look at the intellectual capacities of the tyke who carries out a wrongdoing and not concentrate on the age. The bigger question is about the justification behind keeping 18 years as cut-off check for adulthood when there is an approaching level headed discussion about whether human cerebrum is totally created until that age.((Preeti Jacob, Assistant Professor, Department of Child and Adolescent Psychiatry at the National Institute of Mental Health and Neuroscience, Bengaluru, says that there is no valid, magic age which can work as a marker to define individuals as juveniles or adults. “Neuroscience has shown that the brain continues to develop well into the third decade of life. The 18 years’ cut-off is an arbitrary number” [Rao and Krishnan, 2015])) Also, is the Act sufficiently extensive to eliminate the conceivable outcomes of juvenile crime by laying stress on complete rehabilitation of juvenile delinquents by providing psychological help and enabling social conditions that can assimilate them in society?

To understand these issues, it is important to situate the Act in the context in which it was produced and its possible implications. This Act was passed in the background of the release of one of the convicts of the infamous Delhi rape case of December 2012,((On the night of 16 December 2012, a paramedical student was brutally gang-raped by six men on a moving bus in Delhi. The incident shook the nation for the torture inflicted upon the girl which eventually led to her death. The gruesome case outraged the collective conscience of the people which was reflected in protest demonstrations all over the country on the issue of safety of women in the national capital [Bhattacharyya, 2013, 2015; Durham, 2015; Rao, 2014; Singh, 2013])) on the guise that he was 18 years of age when the crime was committed and as per existing laws he had to be treated as a juvenile. There were solid challenges from a few fourth of the common society against the arrival of the convict.

The government introduced the Act in order to react straightforwardly to the questions raised about the skill of the current law as an impediment and, at the same time, to review for the possibilities of redefining the content and scope of laws concerning juveniles.((This was the second important legislation to be passed in the aftermath of the Delhi rape case of 2012. Soon after the incident, the Government appointed a high power three-member committee under former late Chief Justice of India, J. S. Verma to recommend amendments to the criminal laws for quicker trials and enhanced punishment for criminals accused of committing sexual assaults on women. Following some of the recommendations of the committee, the government passed The Criminal Law (Amendment) Act, 2013 in March 2013. This new law expanded the definition of rape to include any non-consensual penetration of sexual nature and made provision for death penalty for criminals accused of rape. This new law also initiated significant changes to the punishments on crimes like trafficking, acid attack, sexual harassment, voyeurism, and stalking [The Gazette of India, 2 April 2013; also, Bhattacharyya, 2013, 2015])) While debating the Act in the Parliament, Mrs. Maneka Gandhi, the Minister of Women and Child Development, remarked that it was a ‘comprehensive Act’ which included issues regarding adoption and foster care as well (Rajya Sabha Debates, 22 December 2015: 60). She recognized that the primary dispute was about the ‘proposed reduction from 18 to 16 years for allowing a juvenile to go to jail, if it is perceived that he committed a heinous crime’ (Rajya Sabha Debates, 22 December 2015: 6061). To clear up the reason for the statement, she gives two cases. In one case, there is a youngster whose tipsy father beats his mom ordinary and delivers torment on him and his kin by stubbing cigarettes on their body. One day the youngster hits back at the father which prompts to his demise. For another situation, few young men of 16 years old medication a seven-year-old young lady and seize her. She is kept in a field for three days.

Highlights of this Act

Age Cap: Proceeding with the age cap of juvenile at 18 years, this act presents a new classification of 16-18 years who could be convicted as adults in case of heinous crimes (offences with punishment of 7 years or more under Indian Penal Code) [JJ Act, Sec. 2(33)].((It is important to note here that different countries of the world have different age cap as of when a child can be treated as an adult in case of serious and heinous crimes. For example, in England it is 17 years; in South Africa and France it is 16 years; in Canada and Germany the age cap is at 14 years, and in the USA, it is at 13 years [Institute for Policy Research, 2015])) A heinous crime is an action that is not just illegal, but it is also considered derisive or indefensible. Governments sometimes judge whether crimes such as murder are heinous to survey punishments. The death penalty, for instance, is a capital punishment used in some municipalities to condemn heinous crimes.

Boards & Committees: The 1986 Act established Juvenile Welfare Boards and Juvenile Court. The 2000 Act skipped the establishment of a special court but the Juvenile Welfare Boards were carried on and Child Welfare Committees were established. However, the 2015 Act carries the provision for 3 members on the Boards (Metropolitan or judicial Magistrate + 2 Social Workers) (JJ Act, Sec. 4); establishes Child Welfare Committee (JJ Act, Sec. 27); and revives the Children’s Court for every district (The Commissions for the Protection of Child Rights Act 2005, Sec. 25; Protection of Children Against Sexual Offences Act 2012, Sec. 28). In the former two bodies, at least one woman member is mandatory which was also present in the 1986 and 2000 Act.

Juveniles accused of a crime or detained for a crime are brought before the JJB (Juvenile Justice Board under the Juvenile Justice (Care and Protection of Children) Act 2000 (amended in 2006).

Structure of the Juvenile Justice Board– Consists of a metropolitan judge or a legal justice of the top of the line and two social laborers, no less than one of whom ought to be a lady.  All three individuals frame a seat that are to work as a unit.  Though they have diverse parts they are required to arrange for the best enthusiasm of the kid.

Working conditions of the Juvenile Justice Board– Child is normally brought before the JJB by a cop or individual from the Special Juvenile Police Unit (SJPU). The individual or cop who brings the youngster before the JJB is required to finish a report of the capture/confinement. Once the youngster has been brought before the JJB he/she is enrolled into the nearest Observation Home. Most conditions the adolescent can be discharged on safeguard by the JJB.  If the police wish to investigate the youngster or lead a test distinguishing proof parade the JJB needs to give a request permitting so and it must be directed within the sight of the administrator of the home. The home post trial supervisor (P.O.) in control will likewise present a give an account of the youngster.

Current condition of the Juvenile Justice Board- JJB for the time being can give greatest discipline of three years. Arrangements of the said new arrangement any tyke above 16 years old be attempted under IPC. JJB can’t give passing of life sentences.  The period of adolescent won’t be lessened to 16 as India is signatory to the United Nations Convention on Child Rights (UNCRC), which characterizes a youngster as anybody matured under 18 years. JJB will can choose which wrongdoing is a grievous wrongdoing.

As affirmed the acquaintance of Amendment with the Juvenile Justice (Care and Protection of Children) Bill 2014. The alterations to the draft Bill strike a fine harmony between the requests of the partners requesting proceeded with assurance of privileges of adolescents and the mainstream request of residents in the light of expanding rate of horrifying violations by young men. The revised rendition of the Bill is the consequence of an expand consultative process attempted by the Ministry of Women and Child Development which included territorial/national discussions and additionally conferences with state governments. The draft Bill was set on the site for perspectives of the general population. The Ministry had gotten an exceptional number of information sources/proposals which have been appropriately considered while drafting the Bill.

The Ministry of Women and Child Development had presented the Juvenile Justice (Care and Protection of Children) Bill 2014 in the Lok Sabha on twelfth August 2014. This draft Bill tried to make more vigorous, viable and responsive the administrative system for youngsters needing consideration and insurance and in addition kids in strife with law. Its arrangements reacted to the discernments, enunciated by a wide cross-segment of society for the need a viable and reinforced arrangement of organization of adolescent equity, care and assurance.

The proposed enactment, which would supplant the current Juvenile Justice Act 2000, unmistakably characterized and ordered offenses as insignificant, genuine and grievous, and characterized separated procedures for every classification. Keeping in view the expanding number of genuine offenses being conferred by people in the age gathering of 16-18 years and perceiving the privileges of the casualties as being similarly essential as the privileges of adolescents, extraordinary arrangements were proposed to handle deplorable offenses submitted by people in this age bunch.

The new proposed Act gives that if a horrifying wrongdoing has been carried out by a man in the age gathering of 16-18 years it will be analyzed by the Juvenile Justice Board to evaluate if the wrongdoing was conferred as a “youngster” or as a ‘grown-up’. Since this evaluation will happen by the Board which will have clinicians and social specialists, it will guarantee that the privileges of the adolescent are appropriately secured on the off chance that he has carried out the wrongdoing as a tyke. The trial of the case will as needs be occurring as an adolescent or as a grown-up on the premise of this appraisal. Per the Ministry of Women and Child Development, this extraordinary instrument of a two-organize evaluation/trial realizes an adjust that is touchy to the privileges of the tyke, defensive of his true-blue interests but aware of the need to stop wrongdoings, particularly fierce violations against ladies. The proposed change assist strengthens these standards through presentation of another arrangement that prohibits the security from preclusion in situations where an adolescent is attempted and indicted under the grown-up framework.

The new enactment proposed to streamline appropriation strategies for stranded, deserted and surrendered kids. It builds up a statutory status for the Child Adoption Resources Authority (CARA). The enactment assist proposed a few recovery and social combination measures for institutional and non-institutional youngsters. It likewise accommodated sponsorship and child care as totally new measures. It accommodated obligatory enlistment of all organizations occupied with giving youngster mind. New offenses including unlawful selection, flogging in kid mind organizations, the utilization of kids by aggressor gatherings, and offenses against incapacitated kids were likewise consolidated in the proposed enactment.

The Bill was alluded to the Department related Parliamentary Standing Committee. In their report of 25th February 2015, the Committee made a few suggestions to assist fortify the Bill. The clear majority of the suggestions of the Committee have been acknowledged. Likewise, the Ministry of Women and Child Development has proposed to attempt Amendment to the said Bill on the premise of the suggestions of the Committee.

Adoption: Foundation for State Adoption Resource Agency((Mr. Ravi Shankar Bose vs Social Welfare Women andChild on 2 July, 2014)) and Central Adoption Resource Agency which screens, controls, make rules, and so forth with respect to reception of kids (JJ Act, Sec. 67-68). It facilitates sets down criteria for imminent guardian’s reception which was truant in before Acts. This condition would help in speeding the appropriation procedure. Month to month visit by Child Welfare Committees((Bachpan Bachao& Ors. Vs Union of India & Others on 24 December, 2010)) to non-permanent family has been included. Salient Provisions the Central Adoption Resource Agency will outline guidelines and controls for selection of stranded kids. Between nation selection is permitted when no Indian new parents are accessible inside 30 days of kid being pronounced free for reception. New parents ought to be fiscally and physically solid. One thing is certain that different people adopt with different motives, sometime the motive may be base, just as one may adopt to despise a prospective heir who could take the property, in the absence of a son. Whatever it may be, the main purpose of the law of adoption(()) is to provide a consolation((the comfort received by a person after a loss or disappointment)) and relief to a childless person. The law of adoption enables a childless person to make somebody else’s child as his own. It means to supplant the current Indian adolescent((WHO identifies adolescence as the period in human growth and development that occurs after childhood and before adulthood, from ages 10 to19. It represents one of the critical transitions in the life span and is characterized by a tremendous pace in growth and change that is second only to that of infancy)) misconduct law, Juvenile Justice (Care and Protection of Children) Act, 2000, so that adolescents in strife with Law in the age gathering of 16–18, required in Heinous Offenses, can be attempted as grown-ups. The Act came into drive from 15 January 2016. The new juvenile law defines “adoption” as 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. Section 2 of the 2015 Act mandates that adoption regulations should be framed by the authority notified for the purpose by the Centre. Noting that the interests should be kept “first and foremost” during adoption, the Supreme Court on Monday directed the Centre and the States to frame regulations under the Juvenile Justice (Care and Protection) Act,((Under the JJ Act 2015, juveniles between 16 and 18 years of age, who are found guilty of committing heinous offences through a preliminary inquiry by the Juvenile Justice Board, will be sent to a children’s court that can pronounce the child guilty. Such juveniles can be detained in a ‘place of safety’ until they reach the age of 21)) 2015 to implement the new guidelines for in-country and inter-country adoption to make the process transparent, friendly and fool-proof.

Child Care Institutions: Unlike the Act of 2000, the registration of Child Care Institutions has been made mandatory (JJ Act, Sec. 41).

Per the UNCRC a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. In India, various laws related to children define children in different age limits.

Children Homes strives to nurture, protect & care the children in need of care and protection. Its purpose is to promote the total development of children through loving care in a homely atmosphere with adequate nutrition and healthy social interaction and to educate all children till they are old and mature enough to venture out independently.

The main aim of the care and protection laws in the Children, Young Persons, and Their Families Act [CYPF Act((It is contended that statutory child protection services be based on an understanding of communal identity and a “whole-of-community” rather than individually-focused response. Further, they require a more collaborative, community-based “grass-roots” approach. This should be based in part on the development of comprehensive neighborhood-based supports and services, which draw on family networks and other informal resources))] is to promote the well-being of children, young people, and their families. The Act seeks to do this by:

  • Establishing and promoting appropriate, accessible, culturally sensitive services and facilities within the community that will advance the well-being of children, young people, and their families
  • Helping parents and families to care for their children and young people
  • Assisting children or young people whose relationship with their family has broken down
  • Helping children and young people to prevent them from suffering harm or harming themselves or others
  • Encouraging co-operation between organizations that provide services for the benefit of children, young people and their families.

Any court or person exercising powers under the Children, Young Persons, and Their Families Act, whether under its care and protection provisions or its youth justice provisions, must be guided by the following principles:

  • Family participation in decision-making– Wherever possible, a child or young person’s family should participate in making decisions affecting that child or young person.
  • Family’s views– Wherever possible, regard should be had to the views of that family.
  • Maintaining the child-family relationship– Wherever possible, the relationship between a child or young person and his or her family should be maintained and strengthened.
  • Effect on the child and the family’s stability– Consideration((Consideration in contract law is simply the exchange of one thing of value for another. It is one of the six elements that must be present for a contract to be enforceable. Consideration must be both legally sufficient and bargained-for by the receiving party. Section 25 in The Indian Contract Act, 1872)) must always be given to how a decision about a child or young person will affect:
    • his or her welfare, and
    • The stability of his or her family, family group.
  • Child’s sense of time– Decisions affecting a child or young person should, wherever practicable, be made and carried out within a time-frame appropriate to the child or young person’s sense of time.
  • Holistic approach– Decisions affecting a child or young person should take a holistic approach that considers, among other factors, their age, identity, cultural connections, education and health.
  • A child is usually brought before the JJB be a police officer or person from the Special Juvenile Police Unit((Special Juvenile Police Unit is a unit of the police force designated for handling juveniles at district level.  SJPU consists of five members, each Special Juvenile Police Unit is headed by an officer not below the rank of Police Inspector designated as “Senior Child Welfare Officer (Sr.CWO)” and two police constables are deputed to the Special Juvenile Police Units to handle cases and assist in documentation and reporting. The two Social Workers appointed at the District Child Protection Unit shall also assist the Senior Child Welfare Officer at the Special Juvenile Police Units and the Child Welfare Officers at the police stations in handling cases relating to children. [828 police stations])) (SJPU) (previously called JAPU). Any organization or person who brings a child before the court should inform their local police units first. The police have 24 hours to produce a child before the court once he is arrested. The person or police officer who brings the child before the JJB is required to complete a report of the arrest/detainment. Once the child has been brought before the JJB he/she is registered into the closest Observation Home. Most circumstances the juvenile((for or relating to young people)) can be released on bail by the JJB. If the police wish to interrogate the child or conduct a test identification parade the JJB must give an order allowing so and it can only be conducted in the presence of the superintendent((a person who manages or superintends an organization or activity)) of the home. The home probation officer (P.O.) in charge will also submit a report on the child.

Youngster Welfare Committees (CWCs) ought to be set up in every region with executive and four different individuals who be involved in managing kids. Between nation selection is permitted when no Indian new parents are accessible inside 30 days of kid being pronounced free for reception. New parents ought to be fiscally and physically solid. A solitary or separated individual may embrace a tyke. The determination of the non-permanent family depends on the family’s capacity, goal, limit and related knowledge of dealing with youngsters. Purchasing and offering of a tyke draws in detainment up to five years. Giving an inebriating or opiate substance to a youngster draws in detainment up to seven years. Foundations for youngster mind must be enlisted. Beating of youngsters in kid mind establishments is likewise culpable. Non-revelation of personality of adolescent guilty parties by media.

Noncompliance with the UNCRC in treatment of 16-18-year age group

The Bill requires certain juveniles between the ages of 16-18 years to be tried as adults about offences.  The Standing Committee observed that the Bill violates the UNCRC as it differentiates between children below 18 years of age.((The Juvenile Justice (Care and Protection of Children) Bill, 2014, Standing Committee on Human Resource Development, February 25, 2015)) The UNCRC states that signatory countries should treat every child under the age of 18 years in the same manner and not try them as adults. It prescribes that those nations that treat or propose to regard 16-18-year-old as grown-up hoodlums, change their laws to adjust to the guideline of non-segregation towards kids. The 2000 Act was enacted to implement the UNCRC guidelines in the Indian context.  Unlike the Bill, the 2000 Act complies with the UNCRC guidelines and does not distinguish between persons below the age of 18 years.

Possible violation of Articles 14, 21 and 20(1) of the Constitution

Clause 7 of the Bill states that any person who is between the ages of 16-18 years and has committed a serious (between three to seven years’ imprisonment) or heinous offence (minimum seven years’ imprisonment), will be tried as an adult if he is apprehended after the age of 21 years (subject to other provisions of the Bill).  This provision could violate some Fundamental Rights guaranteed by the Constitution.

Article 14 states that every person shall be treated equally before law.  It has been interpreted that unequal treatment may be permitted between different sets of people only if there is a clear public purpose sought to be achieved by such unequal treatment.  The Bill creates a distinction between two juvenile offenders committing the same offence based on the date of apprehension.  It is unclear what public purpose is being achieved by differentiating between two individuals, committing the same offence, based on date of apprehension.

As can be seen, in case of the same serious offence, juvenile’s A and B will be tried differently based on the date of apprehension.  Juvenile A will be treated as a child and juvenile B will be tried as an adult.  In case of heinous offences, juvenile C may be tried as an adult subject to a preliminary inquiry, which determines the mental/physical capacity of the juvenile and ability to understand the consequences of the offence, etc.  On the other hand, for the same offence, juvenile D will be tried as an adult without the process of a preliminary inquiry.  The question is whether the differentiation between juvenile’s A and B, and that between juvenile’s C and D, based only on the date of apprehension, would satisfy the requirements of Article 14 of the Constitution.  

Article 21 states that no person can be deprived of their right to life or personal liberty, except per procedure established by law.  Courts have interpreted this to say that any law or procedure established should be fair and reasonable.((Maneka Gandhi vs Union of India, AIR 1978 SC 597)) The differentiation based on the date of apprehension may fail this standard.

In 2005, a Constitution Bench of the Supreme Court, while determining the age of a juvenile and the resulting penalty (under the 2000 Act and an earlier 1986 Act) decided that the date on which the offence is committed matters, and not the date of apprehension.((Pratap Singh vs. State of Jharkhand & Anr., Appeal (Crl.) 210 of 2005))  The provision of the Bill mentioned above contradicts this ruling of the Constitution Bench, and considers the date of apprehension when deciding the penalty given to a juvenile.  

Article 20(1) of the Constitution states that a person cannot be subjected to a penalty greater than what would have been applicable to him, under a law in force at the time of commission of the offence.  Under the Bill, if a juvenile between the ages of 16-18 years commits an offence and is apprehended later, he may face a higher penalty than what would be applicable to him if he had been apprehended at the time of commission of the offence.  This provision does not directly contradict Article 20(1) as provisions of the Bill do not apply retrospectively.  However, if the spirit of Article 20(1) is that a person should not get a penalty higher than what would be applicable at the time of commission of the offence, then this objective is not being met by the Bill.  

Key observations and recommendations of the Standing Committee 

The Standing Committee on Human Resource Development (Chair: Dr. Satyanarayan Jatiya) submitted its report on the Bill on February 25, 2015.  Key recommendations include((The Juvenile Justice (Care and Protection of Children) Bill, 2014, Standing Committee on Human Resource Development, February 25, 2015)):

  • Constitutional provisions: The Committee noted that the 2000 Act recognizes the sensitive age of 16-18-year-old and is reformative and rehabilitative in nature. Subjecting juveniles to the adult judicial system would go against the principle of Articles 14 (unequal treatment of 16-18-year-old) and 15(3) (against the objective of protecting children) of the Constitution.  It also said that the Bill was in violation of Articles 20(1) and 21 of the Constitution.
  • NCRB data: One of the reasons cited for the Bill’s introduction is an increase in heinous offences committed by 16-18-year-old. The Committee stated that this data compiled by NCRB is misleading as it is based on filing of FIRs and not actual convictions.

CRITISISM- During the debate in the Lok Sabha in May 2015, Shashi Tharoor, an INC Member the Parliament (MP), argued that the law was in contradiction with international standards and that most children who break the law come from poor and illiterate families. He said that they should be educated instead of being punished.[2]

Child Rights Activists and Women Rights Activists have called the bill a regressive step and have criticized the Bill. Many experts and activists viewed post December 2012 Delhi Gang Rape responses as creation of media denationalisation of the issue, and cautioned against any regressive move to disturb the momentum of Juvenile Justice Legislation in the Country. However, some sections in the society felt that in view of terrorism and other serious offences, Juvenile Justice Act of 2000 needed to be amended to include punitive approaches in the existing Juvenile Justice Law, which so far is purely rehabilitative and reformative. Some argued that there is no need of tampering with Juvenile Justice Act for putting up effective deterrent against terrorism. Retired Judge of Delhi High Court, Justice RS Sodhi on 8 August 2015 told Hindustan Times, “We are a civilised nation and if we become barbaric by twisting our own laws, then the enemy will succeed in destroying our social structure. We should not allow that but we must condemn this move of sending children to fight their war”