The Juvenile Justice (Care and Protection of Children) Act, 2000 and The Juvenile Justice (Care and Protection of Children) Act, 2015 – A comparative analysis
The Juvenile Justice (Care and Protection of Children) Act, 2000(hereinafter the Act of 2000 or the JJ Act, 2000 or the 2000 Act) was enacted to consolidate and amend the law relating to juvenile in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this law. The law saw its course and proved to be quite effective with a number of convicts been held for commission of offences under the Act of 2000, which earlier went unnoticed due to absence of a specific law in this regard.
Under the Indian Constitution, Articles 15(3), 39(e), 39(f), 45 and 47 impose a constitutional obligation on the State to ensure that all the needs of the children are fulfilled and their basic rights are protected. The United Nations General Assembly (hereinafter the UN GA), on 20thNovember, 1989 adopted the Convention on the Rights of Child (hereinafter the CRC). This Convention prescribed a standard set to be followed by all the member nations. It insists on social re-integration of child victims and on the part of state parties to secure the best interest of child.
On 11thDecember, 1992, the Indian government ratified the said Convention, and hence, the need was felt to enact a law relating to juvenile justice that is in consonance with the provisions of the CRC. Consequently the Parliament enacted new law relating to juvenile justice, The Juvenile Justice (Care and Protection of Children) Act, 2000 which came into effect on 30thDecember, 2000. The law saw its course and over the years the JJ Act, 2000 proved to be a combative law to deal with the problems of juvenile crimes.
However, over the passing years with the change in the society, juvenile crimes have seen a drastic change with certain juveniles becoming more and more accustomed to crimes of a serious nature such as rape and murder. Hence, the need was felt to control such deviation of children towards crime of such high order. Thus, the Parliament came up with a Bill in 2014 which later became a law in 2015. Today, juvenile delinquency in India is dealt by the new law, The Juvenile Justice (Care and Protection of Children) Act, 2015(hereinafter the Act of 2015 or the JJ Act, 2015 or the 2015 Act).
This paper shall focus on drawing a comparison between the two laws, the changes brought about, the loopholes in both the laws and whether the new law is able enough to curb offences committed by juveniles in India completely in India.
However, before that, we would like to give a brief account of the situation in existence till date ever since legislations dealing with children in conflict with law, came into existence.
The Apprentices Act, 1850 was the first of its kind punishing delinquent children under the age of 15 involved in petty offences as apprentices. Subsequently, the Reformatory Schools Act, 1897 provided that children up to the age of 15, sentenced to imprisonment may be sent to reformatory schools rather than prison. The Madras Act started the era of diversion of all children from the criminal justice system by establishment of separate juvenile courts and residential institutions in 1920 which was then followed by many other States. The Children Acts passed around this time had certain common features though they laid down different cut-off ages for defining children.All of them included provision for establishment of a separate children’s court to deal with cases of children covered by the requisite Children Act. These Acts also made provisions for separate residential institutionsto house children during pendency of their proceedings or after disposal of their cases by the children’s courts, directing them to be sent to an institution. Use of prison was permitted in exceptional circumstances under these legislations.
The Parliament enacted the first central legislation, namely the Children Act, 1960 as the model law. Henceforth, all the states followed the same pattern while enacting their respective legislations. The central Act was applicable only to the Union Territories. The education minister, who moved the Children Bill in 1959, stated that the subject-matter constituting juvenile justice was listed in the State Listof the Indian Constitution. The Children Act, 1960 introduced a sex-discriminatory definition of childand established two separate adjudicatory bodies to deal with children in conflict with lawand children in need of care.It prohibited imposition of death penalty or sentence of imprisonment or use of jails or police station for keeping children under any circumstance. It did not recognise the right to appoint a lawyer in the proceedings before the children’s court. A similar position in the Saurashtra Children Act was declared to be unconstitutional by the Gujarat High Court in 1969.The Children Act, 1960 was amended in 1978 to permit lawyers to appear before the Child Welfare Board.
In 1986, the Parliament passed the Juvenile Justice Act (hereinafter, the 1986 Act or the JJ Act, 1986 or the Act of 1986) applicable to the whole of India. There was no discussion during the parliamentary debates on the competence of the Parliament to enact such legislation. The Act was enforced throughout the territory of India (except the state of Jammu and Kashmir) on 2ndOctober, 1987, bringing a uniform juvenile justice law throughout the country. While it retained the scheme and primary features of the Children’s Act, 1960, the Act of 1986 substituted the word ‘juvenile’ for ‘child’. It continued the same sex-discriminatory definition of child, though. It provided two separate authorities to deal with the two categories of delinquent and negligent children. The new provisions provided for establishment of Advisory Boards, creation of a Children’s Fund and appointment of visitors for each institution.
However, all this went in vain and the Parliament finally enacted The Juvenile Justice (Care and Protection of Children) Act, 2000. The Parliament found it expedient to re-enact the existing law relating to juveniles bearing in mind the standards prescribed in the CRC, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (hereinafter, the Beijing Rules), the United Nations Rules for the Protection of Juveniles deprived of their Liberty, 1990 (hereinafter, the 1990 Rules), and all other relevant instruments. The Act of 2000 was amended in 2006 and new Model Rules, 2007 were notified in October 26, 2007.
The Juvenile Justice (Care And Protection Of Children) Act, 2000 And The Changes Brought About By It
The Act of 2000 was a sincere effort made by the Indian legislature to inculcate the principles of the United Nations Conventions like the CRC, the Beijing Rules and the 1990 Rules. According to the Supreme Court of India, the JJ Act, 2000 is enacted to deal with offences committed by juveniles in a manner which was meant to be different from the law applicable to adults. The very scheme of the Act is rehabilitation in nature and not adversarial which the Courts are generally used to. Its implementation thus required a complete change in the mindset of those who are vested with authority of enforcing the same without which it will be almost impossible to achieve its objectives.
Applicability of the Act: The Honourable Supreme Court in Jameel v. State of Maharashtra ruled that so far as contention of the appellant is concerned regarding applicability of the JJ Act, 2000, it is not in dispute that the appellant on the date of occurrence had completed 16 years of age. The offence of unnatural intercourse having been committed on 16thDecember, 1989, the JJ Act, 2000 had no application. In terms of the Juvenile Justice Act, 1986, Juvenile was a boy who had not attained the age of 16 years or a girl who had not attained the age of 18 years. Hence, the plea that the JJ Act, 2000 would apply as accused had not attained the age of 18 on the date of occurrence of the event, is not tenable since on the date of enforcement of the JJ Act, 2000 accused was above 18. Notably, accused had completed 16 years on the date of incident, therefore, the JJ Act, 2000 is categorically not applicable.
Non-applicability of any other Act for the time being in force: The Supreme Court in Raj Singh v. State of Haryanaheld that legislations dealing with juveniles shall reign supreme in cases dealing with juveniles irrespective of the nature of offence committed.
When the plea of juvenility can be raised: The plea of juvenility can be raised at any stage, even after the person has been sentenced by the trial court.
Juvenile Justice Board: The State Government is empowered to set up a Juvenile Justice Board (hereinafter, the JJB) for a district or a group of districts. Section 4 of the JJ Act, 2000 deals with the setup and constitution of the Board. Section 5(2) provides that a child who has committed offence may be produced before an individual member of the Board in case the Board is not presiding. Section 6(1) gives the Board exclusive powers to deal with all proceedings under the 2000 Act relating to juvenile in conflict with law.
Juveniles in conflict with law: Observation homes are to be established in each district or group of districts for temporary reception of such juveniles during pendency of enquiry.Special homes are to be established in each district or group of districts for reception and rehabilitation of such juveniles which implies that orders have already been passed by a JJB in such cases.The juveniles shall be classified based on age, considering physical/mental health and nature of offence.
Process: No juvenile for any reason can be lodged in a police lock-up or in jail.On receipt of a report under section 32, the Committee or any police officer or special juvenile police unit or the designated police officer shall hold an inquiry in the prescribed manner and the Committee, on its own or on the report from any person or any agency as mentioned in section 32(1), may pass an order to send the child to the children’s home for speedy inquiry by a social worker or child welfare officer. The inquiry under this section shall be completed within four months of the receipt of the order or within such shorter period as may be fixed by the Committee. Provided that the time for the submission of such enquiry report may be extended by such period as the Committee may, having regard to the circumstances and for reasons recorded in writing, determine. After the completion of such inquiry, if the Committee is of the view that the said child has no family or ostensible support, it may allow the child to remain in the children’s home or shelter home till suitable rehabilitation is found for him or till he attains the age of 18.
Children’s home: The State government may establish and maintain either by itself or in association with a voluntary organisation/organisations, children’s homes, in every district or group of districts, as the case may be, for the reception of child in need of care and protection during the pendency of any inquiry and subsequently for their care, treatment, education, training, development and rehabilitation. The State Government may, by rules made under this Act, provide for the management of children’s homes including the standards and the nature of services to be provided by them, and the circumstances under which, and the manner in which, the certification of a children’s home or recognition to a voluntary organisation may be granted or withdrawn.
Inspection: The State government may appoint inspection committees for the children’s homes for the State, a district and city, as the case may be, for such period and for such purposes as may be prescribed. The inspection committee of a State, district or of a city shall consist of such number of representatives from the State government, local authority, Committee, voluntary organisation and other medical experts and social experts as may be prescribed. The Central and State governments may monitor and evaluate the functioning of the children’s homes at such period and through such persons and institutions as may be specified by that government.
Juvenile Justice (Care and Protection of Children) Act, 2006 and 2010: Section 21 of the Act of 2000 as amended by the 2006 Act states:
21. Prohibition of publication of name, etc., of juvenile or child in need of care and protection involved in any proceeding under the Act.-(1)No report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with law or a child in need of care and protection under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published: Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile or the child.
(2)Any person who contravenes the provisions of sub-section (1), shall be liable to a penalty which may extend to twenty five thousand rupees.
The Apex court in 2009 in Hari Ram v. State of Rajasthanconfirmed the retrospective effect of the Act of 2000, which was earlier confirmed by some High courts in India, particularly by the Bombay High Court. Pursuant to an order of the Delhi High Court, the Act was further amended in 2011whereby certain provisions which were discriminatory to the persons affected by leprosy have been deleted.
The Juvenile Justice (Care And Protection Of Children) Bill, 2014
The Women and Child Development Ministry introduced the Juvenile Justice (Care and Protection of Children) Bill, 2014 in Lok Sabha on August 12th, 2014. This Bill sought to make more robust, effective and responsive the legislative framework for children in need of care and protection as well as children in conflict with law. Its provisions responded to the perceptions, articulated by the society for the need to have an effective system of administration of justice, care and protection of juveniles.
The Bill proposed a legislation which replaced the Act of 2000. It clearly defined and classified offences as petty, serious and heinous, and defined different processes for each category. Considering the growing number of serious offences being committed by persons between the age of 16-18 and recognising rights of victims as equally important as those of juveniles, special provisions were proposed to tackle heinous offences committed by individuals in the above-stated age group.
The Bill proposed that in case a heinous crime is committed by persons between 16-18 years of age it will be examined by the JJB to asses if the crime was committed as a ‘child’ or as an ‘adult’. Since this assessment will be made by the JJB which will have both psychological as well as social experts, it will ensure that the rights of the juvenile are duly protected if he has committed the crime as a child. The trial of the case will take place accordingly as a juvenile or an adult on the basis of this assessment. As per the Women and Child Development Ministry, this unique instrument of a two-stage trial brings a balance that is sensitive to the rights of the child, protective of his legitimate interests and yet conscious of the need to deter crimes, specially brutal crimes against women. The proposed amendment further reinforces these principles through introduction of a new provision that disallows the protection from disqualification in cases where a juvenile is tried and convicted under the adult system.
The new law proposed to streamline adoption procedures for the orphaned, abandoned and surrendered children. It establishes a statutory status for the Child Adoption Resources Authority (hereinafter, CARA). The law further proposed several rehabilitation and social integration measures for institutional and non-institutional children. It also provided for mandatory registration of all institutions providing child care. New offences including unlawful adoption, corporal punishment in child-care institutes, use of children by militants and offences against disabled children have been incorporated.
The Bill was referred to the Parliament Standing Committee. In their report dated 25thFebruary, 2015, the Committee made several recommendations to strengthen the Bill. Most of such recommendations have been accepted. Accordingly, the Women and Child Development Ministry proposed to undertake Amendment to the said Bill on the basis of the recommendations of the Committee.
The major amendments include:
1.Removal of clause 7 that relates to trials of individuals above the age of 21 as an adult for committing any serious or heinous offence when the person is in the age group of 16-18;
2.Enhancing the period of preliminary inquiry by the JJB in case of heinous crimes committed by children (16-18 years);
3.Increasing the reconsideration period for surrender of children by parents or guardians;
4.Enhancing period for inter-country adoption in case the child is not given for domestic adoption;
5.Assigning role of designated authority to monitor implementation of the Bill to the National Commission for Protection of Child Rights; and
6.Making Central and State Governments responsible for spreading awareness on the provisions of the Bill.
The Juvenile Justice (Care And Protection of Children) Act, 2015
The key purpose to bring a new legislation was the increased number of crimes (particularly rapes), by juveniles (16-18 years). However, several questions were raised on the new law, as being more retributive than reformative. Retributive because it contains provisions for teenagers who commits heinous crime (with punishment of 7 years or more) shall be tried like adults but in the children’s court. The Children’s Court shall make sure that the child found guilty of heinous crime shall be sent to a place of safety till he/she attains the age of 21 and afterwards, the person shall be shifted to jail. This means that on being found guilty of committing a heinous crime, he/she shall not get benefit of being a child.
The new Juvenile law was also criticised by many protestors as being unconstitutional. In Pratap Singh v. State of Jharkhand, it was observed by the Court that in Rule 4 of the United Nations Standard Minimum Rules for the administration of Juvenile Justice, while holding a juvenile responsible for a crime, the moral and psychological components must be given importance.According to Prof. Ved Kumari, if a juvenile of the age of 16 commits a heinous crime and his or her offence is punishable with 7 year imprisonment, then he/she need to be produced before the JJB,who will adjudge on the physical and mental capacity of the child; whether that juvenile has committed such offence has the ability to understand consequence of the offence and in what circumstances the offence has been committed.This work of the JJB is challenging and there is a huge chance of uncertainty.
Another issue raised by many activists is that the 2015 Act violates the spirit of Article20(1),where a person cannot be subjected to greater punishment that what would have been applicable to him under the law of the land. Under the new Act, if a juvenile sentenced under the law who has completed 21 years of age but has not completed the full period of his sentence may be sent to jail if it is considered appropriate.This new law undermines the spirit of Article 20(1).
Salient Features of the JJ Act, 2015:
1.Definition of ‘child in need of care and protection’ expanded- The definition as per the new Act now also includes a child who is found working in contravention of labour laws, at imminent risk of marriage before attaining the lawful age for the same or who resides with such a person who has or had threatened to injure, exploit, abuse or neglect the child or violate any other law or whose parents or guardians are unfit to take care of him.
2.CWC is no longer the final authority in cases of children in need of care and protection- The District Magistrate (hereinafter, the DM) shall be the grievance redressal authority for the CWC and anybody connected with the child may file a petition before the DM, who shall consider and pass appropriate orders.
3.Procedure for inquiry- The CWC shall now conduct an inquiry of any child produced before it, as opposed to children for whom production reports are received. Procedure now includes orphaned and surrendered children as well.
4.Extensive definition of ‘adoption’ provided- an extensive definition of adoption has now been provided and child’s rights have been recognised.
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000 AND THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 – THE COMPARISON
Any fool can make a rule, and any fool will mind it, said Henry David Thoreau.After all, law is another creation of one man to pull strings of many men and thus can never be ideal. Flawlessness being a mirage in any human creation, even law has succumbed to cracks and crevices.
The Juvenile Justice Act of 2000 and 2015 have considerable differences. The changes have been brought about to provide an enhanced and more effective law to tackle with growing complexities in juvenile delinquencies. The same are listed below:
The preamble to the Act has been enhanced to widen the ambit of the Act. The previous Act stated as follows:
An Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment. WHEREAS the Constitution has, in several provisions, including clause (3) of article 15, clauses (e) and (f) of article 39, articles 45 and 47, impose on the State a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected; AND WHEREAS, the General Assembly of the United Nations has adopted the Convention on the Rights of the Child on the 20th November, 1989; AND WHEREAS, the Convention on the Rights of the Child has prescribed a set of standards to be adhered to by all State parties in securing the best interests of the child; AND WHEREAS, the Convention on the Rights of the Child emphasises social reintegration of child victims, to the extent possible, without resorting to judicial proceedings; AND WHEREAS, the Government of India has ratified the Convention on the 11th December, 1992; AND WHEREAS, it is expedient to re-enact the existing law relating to juveniles bearing in mind the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and all other relevant international instruments.
The enhanced definition reads 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, hereinunder and for matters connected therewith or incidental thereto. WHEREAS, the provisions of the Constitution confer powers and impose duties, under clause (3) of article 15, clauses (e) and (f) of article 39, article 45 and article 47, on the State to ensure that all the needs of children are met and that their basic human rights are fully protected; AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be adhered to by all State parties in securing the best interest of the child; AND WHEREAS, it is expedient to re-enact the Juvenile Justice (Care and Protection of Children) Act, 2000 to make comprehensive provisions for children alleged and found to be in conflict with law and children in need of care and protection, taking into consideration the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993), and other related international instruments.
In the Preamble, there is change in language and exclusion of paragraph referring to social integration of child victims through diversion. There is also reference made to the Hague Convention.
Section 1(4) of the Act deals with application of the law.The new definition includes reference to ‘children in need of care and protection’.
The provision now includes reference to ‘children in need of care and protection’, and specifies that it is applicable to procedures, or decisions or orders relating to rehabilitation, adoption, re-integration and restoration of juveniles. As regards ‘children in conflict with law’ includes apprehension, social integration and rehabilitation.
The Act of 2000 defined ‘advisory board’ under section 2(a).Under the new law, no provision for advisory board has been provided.
Under the old law, the Juvenile Justice Model Rule 2(a) defined abandoned as an unaccompanied and deserted child who is declared abandoned by the Committee after due inquiry. As per the 2015 Act, section 2(1) makes specific provision for ‘abandoned child.
authorized foreign adoption agency
The new law makes a new provision authorising foreign adoption agency, which was not prevalent in the previous legislation.
Provision made for CARA
Section 2(7) of the new Act defines Authority to include within its ambit the Central Adoption Resource Authority.Provision for the same has been made under Section 68 now.
Child Welfare Officer
New provisions under Section 2(17) for Child Welfare Officer and under Section 2(18) for Child Welfare Police Officer are made.The same was missing in the previous law.
A new and important provision has been made for Children’s Court. This was missing in the previous legislation. This is a very important amendment brought about.
Administration of the Act
A new provision has been added dealing with some fundamental principles that must be followed while administering the Act.
Principle of presumption of innocence
The principle under section 3(i) of the new Act and is precise and to the point, unlike the old legislation.
Right of child to be heard
The new provision is precise and has included the clause giving due regard to age and maturity as per the UN Principle.
‘best interest’ principle
The ‘best interest’ principle has been included as a principle, in addition to the definition of best interest in Section 1.
Juvenile Justice Board
may has been replaced with shall, thus making it mandatory for the State Government to constitute JJBs in every district.Chief Metropolitan Magistrate and Chief Judicial Magistrates cannot be appointed as Principle Magistrate of JJBs. The Magistrate should have atleast three years experience. The selection procedure for the appointment of social workers should be prescribed by State Government.
Bail to a person who is apparently a child alleged to be in conflict with law
As per the new law the JJBs need to record reasons for denying bail as well as the circumstances that led to such a decision. If the child is unable to fulfil the conditions of the bail order within 7 days, he/she must be produced before the JJB for modification of the order.
Section 14(4) of the new law provide that inquiry into petty offences can be terminated if the proceedings are not completed even after 6 months. Extension of inquiries for serious and heinous offences have to be granted by the CJM/CMM for reasons to be recorded in writing.
Child friendly approach must be taken. JJB should ensure that no child is ill-treated in police custody and order corrective steps in case the same has happened. Petty offences to be disposed off through summary proceedings.
Preliminary assessment into heinous offences must be made by the JJB before proceeding.
Powers of children’s court
New provision for Children’s Court has been made and its powers are listed under Section 19. The court can either try the child as an adult or conduct an inquiry and pass orders under Section 18(1) if it doesn’t see the need for trial of the juvenile as an adult.
Order that can be passed
Under the new law, juveniles can be sentenced to imprisonment including imprisonment for life. However, it prohibits imposition of death penalty and life imprisonment without the possibility of release.
Child Welfare Committee
Under the new provision, setting up of CWC has been mandated upon the State Government for each district (one or more). Also it must ensure that induction training and sensitisation of all members of the committee is provided within 2 months from date of notification. The District Magistrate shall conduct a quarterly review of the functioning of the Committee.Also, functions and responsibilities of the Committee which earlier found mention under the JJ Model Rule 25, are now listed under Section 30.
Procedure in relation to children in need of care and protection
New provision has been made on mandatory reporting regarding a child found separated from guardian has been added.Also new provision penalising failure to report a child found separated from guardian has been added. Also penalty for non-reporting can be imposed.
Surrendering the child
A new provision for surrendering of children has been made to curb the incidents of abandonment. The provision reads as:
35. Surrender of children.
(1) A parent or guardian, who for physical, emotional and social factors beyond their control, wishes to surrender a child, shall produce the child before the Committee.
(2) If, after prescribed process of inquiry and counselling, the Committee is satisfied, a surrender deed shall be executed by the parent or guardian, as the case may be, before the Committee.
(3) The parents or guardian who surrendered the child, shall be given two months
time to reconsider their decision and in the intervening period the Committee shall either allow, after due inquiry, the child to be with the parents or guardian under supervision, or place the child in a Specialised Adoption Agency, if he or she is below six years of age, or a children‘s home if he is above six years.
Registration of child care institutions and open shelter
Stronger provisions have been made with wider scope and more details, wholly or partially for housing children in need of care and protection or children in conflict with law, regardless of whether or not they are receiving government grants. Also, a new provision has been added imposing penalty for non-registration of child care. Open shelters shall also be registered. Objectives of shelter homes must be clarified and information about the children using Shelter Homes to be sent to the District Child Protection Unit (DCPU) and CWC.Also, the children in need of care and protection must be placed in foster care. The State government is responsible for the same.
State to designate the same for children with special needs. Individual Care Plans shall be the basis of monitoring and management.
Eligibility of prospective adoptive parents
A new and credible provision has been inserted in the new law with regard to eligibility of prospective adoptive parents.This very important provision was missing in the previous legislation.
At the outset it can be concluded that the new Juvenile Justice law is a credible enactment with more enhanced and effective provisions.
In brief the analysis of the new law can be listed below:
1.There is a change in language in the Preamble. Reference has also been made to the Hague Convention.
2.The provision dealing with application of the Act has been enhanced to include ‘children in need of care and protection’.
3.Provision with regard to Advisory Board has been done away with which makes it a less complex legislation now.
4.Specific provision for ‘abandoned child’ in the Act itself now is a credible step in the right direction.
5.New provision for Child Welfare officer and Children’s Courts is a very important change brought about.
6.A very important and welcoming step is the provision with regard to administration of the Act which was missing in the old law.
7.Provision has been made for ‘right to be heard’ of a child or a juvenile for that matter. This is a credible provision introduced by the new Act.
8.The new law mandates the State government to constitute JJBs in every district. This mandatory provision was missing in the earlier law.
9.Bail to a child in conflict with law has to be given on conditions failing which he/she must be produced before the JJB within 7 days for modification of order, which makes it a more combative Act.
10.Classification of heinous offences is one of the best amendment brought in. Inquiry in petty offences needs to be completed within 6 months thus providing a speedy justice mechanism. Petty offences to be disposed off through summary proceedings.
11.New provision made for ‘Children’s Court’ giving the court the power to try the juvenile as a minor or an adult, depending on the case and circumstances. This provision is certainly prone to misuse but it cannot be alleged as of now before the law actually is brought into practice. It’s too early to predict the misuse and hence this new provision is certainly a credible addition in the law.
12.Enhancement of punishment for juveniles engaged in heinous crimes is also a brilliant amendment. By enhancing the punishment to life imprisonment but not imposing death penalty, the legislature has brilliantly balanced the heinousness of an offence and the scope given to the child to improve and correct himself or herself.
13.Penalties and punitive provisions will help the agencies under the Act function more diligently and effectively. This again is a very good introduction in the Act.
14.Registration provisions for child care institution will help working of the Act in a more legal and formal manner.
15.Provision for eligibility of adoptive parents will help in identifying whether or not a person taking a child in adoption is suitable for the child’s growth and development.
Every new law has some or the other flaw but that doesn’t mean that it’s enactment shouldn’t be welcomed and celebrated. The new law on juvenile delinquency is a credible enactment and a right step forward. We shall wait to see how effective the law proves to be over the years.
# Act 56 of 2000.
# Act 2 of 2016.
# For instance, the Madras Children Act defined child as persons below the age of 14 but applied it to young offenders till the age of 18. The Bombay Children Act included children till the age of 16 and the West Bengal # Children Act included children up to the age of 17.
# The nomenclature of these institutions differed in different legislations. They were referred to as (junior or senior) remand homes, or children home or special home etc.
# The Constitution of India, En. 1 and En. 3, List II, Schedule VII.
# It applied to girls till the age of 18 and boys till the age of 16.
# Namely, the Children’s court.
# Namely, the Child Welfare Board.
# Kario @ Mal Singh Malu and Ors.v.State of Gujarat, (1969) 10 CrLJ 66.
# Renamed as Juvenile Court and Juvenile Welfare Board.
# Hari Ramv.State of Rajasthan & Ors.,2009 (8) JT 47 (SC).
# AIR 2007 SC 971.
# (2000) 6 SCC 759.
# Jayendra & Anr.v.State of U.P.,(1981) 4 SCC 149.
# Umesh Singh & Anr.v.State of Bihar, (2000) 6 SCC 89.
# The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act 56 of 2000), s.8(1).
# Ibid., s.9(4).
# Ibid., s.10(1).
# Ibid., s.34.
# Ibid., s.35.
# Ibid., s.36.
# SupraNote 13.
# The Juvenile Justice (Care and Protection of Children) Amendment Act, 2011 (Act 12 of 2011).
# The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act 56 of 2000), s. 48(2).
# (2005) 6 SCC (J) 1.
# Id., at p. 78.
# The Juvenile Justice (Care and Protection of Children) Act, 2015 (Act 2 of 2016), s. 4.
# Id.,s. 15.
# The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act 56 of 2000), s.20.
# Apoorva Shankar, The juvenile justice bill, 2015: All you need to know PRS Legislative Research (2015),available at:http://www.prsindia.org/theprsblog/?p=3610(last visited: 25-10-2017).
# H. D. Thoreau,Journal of Henry David Thoreau (Gibbs Smith, Boston: Houghton Mifflin, 1906).
# Section 1(4): Not withstanding anything in any other law for the time being in force, the provision of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under such other law..
# Section 1(4): 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 —
(i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in conflict with law;
(ii) procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection..
# Section 2(a): advisory board means a Central or a state advisory board or a district and city level advisory board, as the case may be, constituted under section 62;.
# Section 2 (1): 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;.
# Section 2(6): authorised foreign adoption agency means a foreign social or child welfare agency that is authorised 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;.
# Section 2 (7): Authority‖means the Central Adoption Resource Authority constituted under section 68;.
Section 2 (17): Child Welfare Officermeans an officer attached to a Children‘s Home, for carrying out the directions given by the Committee or, as the case may be, the Board with such responsibility as may be prescribed;.
# Section 2 (18): Child Welfare Police Officer means an officer designated as such under sub-section (1) of section 107;.
# Section 2(20): Children‘s Court‘‘means a court established under the Commissions for Protection of Child Rights Act, 2005 or a Special Court under the Protection of Children from Sexual Offences Act, 2012, wherever existing and where such courts have not been designated, the Court of Sessions having jurisdiction to try offences under the Act;.
# The Juvenile Justice (Care and Protection of Children) Act, 2015 (Act 2 of 2016), s.3.
# Section 3(i):Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years..
# Section 3(iii):Principle of participation:Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child‘s views shall be taken into consideration with due regard to the age and maturity of the child..
# Section 3(iv): Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.
# Section 4. Juvenile Justice Board.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government shall, constitute for every district, one or more Juvenile Justice Boards for exercising the powers and discharging its functions relating to children in conflict with law under this Act.
# The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act 56 of 2000), s.4(2).
# Ibid., s.12.
# Ibid, s.14(4).
# Ibid, s.15.
# Ibid., s.19.
# Ibid., s.21.
# Ibid., s.27.
# Ibid., s.32.
# Section33- Offence of non-reporting-If information regarding a child as required under section 32 is not given within the period specified in the said section, then, such act shall be regarded as an offence.
# The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act 56 of 2000), s.34.
# Ibid., s.35.
# Ibid., s.41(1).
# Ibid., s.42.
# Ibid., s.43.
# Ibid., s.43.
# Ibid., s.44.
# Ibid., s.50.
# Section 57- Eligibility of prospective adoptive parents- (1) 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.
(2) In case of a couple, the consent of both the spouses for the adoption shall be required.
(3) A single or divorced person can also adopt, subject to fulfilment of the criteria and in accordance with the provisions of adoption regulations framed by the Authority.
(4) A single male is not eligible to adopt a girl child.
(5) Any other criteria that may be specified in the adoption regulations framed by the Authority.