This article is written by Astitva Kumar, a student at JIMS, School of Law (An Affiliate of Guru Gobind Singh Indraprastha University). This article deals with an analysis of adoption under the Juvenile Justice (Care and Protection of Children) Act, 2015.
Table of Contents
Introduction
“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want, and that they can grow up in peace.”
-Kofi Annan
Close to half of the world’s population is made up of children. They are humankind’s future and the nation’s greatest asset. They are both inheritors of the past and forerunners of the future. They have the right to be children and grow up. Children, on the other hand, who are unaware of their rights, become victims of abuse or delinquent behavior. In 1986, the Juvenile Justice Act was enacted for the first time to safeguard juveniles.
The Juvenile Justice (Care and Protection of Children) Act, 2015 was passed by the Indian Parliament amid heated debates, lengthy discussions, and street protests by child rights organizations and even certain members of Parliament.
It replaced the Juvenile Justice (Care and Protection of Children) Act, 2000, in India, and allows juveniles in conflict with the law between the ages of 16 and 18 who are involved in heinous crimes to be tried as adults. The Act also intended to create a universally accessible adoption law for India, overtaking but not replacing the Hindu Adoptions and Maintenance Act, 1956 (applicable to Hindus, Buddhists, Jains, and Sikhs) and the Guardians and Wards Act, 1890 (applicable to Muslims). The Act went into effect on January 15, 2016. The Lok Sabha passed it on May 7, 2015, despite strong opposition from some Members of Parliament and the Rajya Sabha passed it on December 22, 2015.
The Juvenile Justice (Care and Protection of Children) Act, 2015
The Juvenile Justice (Care and Protection of Children) Act of 2015 refers to children in conflict with the law as well as children who demand care and protection. It, in particular, offers a complete framework for domestic and international adoption of orphans, abandoned children, and surrendered children. Adoption is a legal procedure in which a child legally becomes the lawful child of his adopted parents and is therefore permanently separated from his birth parents.
Brief history
The Apprentice Act of 1850 was the first piece of juvenile justice law in India, requiring that adolescents aged 10 to 18 who were convicted in Court receive vocational training as part of their rehabilitation process. The Reformatory Schools Act of 1897, the Indian Jail Committee, and, subsequently, the Children Act of 1960 all replicated this Act. The National Children’s Act, 1960, was the first proper action by the government of India in the injustice of children. This Act was later superseded by the Juvenile Justice Act of 1986. India adopted the United Nations Convention on the Rights of the Child (UNCRC) in 1992. To conform to the Convention’s norms, the 1986 statute was repealed and the JJ Act, 2000 was enacted. The JJ Act of 2000 addressed two types of children: “child in dispute with the law” and “child in need of care and protection.” The aforementioned Act was amended from time to time to include new Sections and concepts about children.
Importance
The Juvenile Justice Act is indeed a significant piece of legislation. There was no universal statute dealing with the subject of the care and protection of adolescents or children before the enactment of this legislation. Every state had its own set of laws governing children, and these laws varied greatly. The intended target groups of these laws were also diverse, as definitions diversify substantially and there was no national uniformity. The definition of a child differed from one state to the next.
The Supreme Court emphasized the importance of having similar rules for children across India’s territory in a landmark case, Sheela Barse v. Union of India (1986). The Supreme Court went on to say, “The Act so enacted by Parliament should include not only have provisions for investigating and prosecuting offenses against children under the age of 16, but should also have mandatory provisions for ensuring social, economic, and psychological rehabilitation of children who are either accused of offenses or abandoned, destitute, or lost.” Furthermore, the Court emphasized the importance of children, adding, “the best recompense the State may get for expenditure on children is the development of powerful human resources ready to assume its position in the nation’s upward march.”
As one can see, the significance of this specific piece of legislation is multifaceted because it deals with children, who are, after all, the nation’s future. It also brought with its consistency in dealing with difficulties and with children. It should also be noted that this piece of law aided India in honoring its obligations and upholding the numerous international treaties or sanctions agreed, including those of the United Nations.
Theories on child behavior
Two views that may aid in understanding the causes of juvenile delinquent conduct:
Psychodynamic theory
Sigmund Freud established the Psychodynamic Theory, which claims that a child is born with animal instincts and that the ego is the realization of real life. Interaction with parents fosters the development of the superego. However, if a youngster does not receive such direction, the ego and superego are unable to regulate the animal impulse, and the juvenile becomes a criminal.
Social Learning theory
It argues that a child is good when he or she is born, but the environment changes his or her nature because the youngster learns by emulating elders.
In both circumstances, however, the role of parents, society, and the environment is critical. Many neuroscientists agreed that the human brain’s prefrontal lobe, which is responsible for planning, reasoning, judgment, and impulse control, does not develop until the age of twenty-five. Delinquency can also be caused by the environment in which a youngster lives.
Objective and scope
Objectives of the Act
Justice V.K. Krishna Iyer, a former Chief Justice of India, once said that we need a penal code since the child is the father of a man, and if we disregard the underdevelopment of children, we will be guilty of many flaws and errors linked to abandoning our children.
On December 16, 2012, the terrifying “Nirbhaya Delhi Gang Rape Case” stunned the entire nation, sparking numerous arguments among the legal community and socialists. The main reason for the dispute was the involvement of the accused, who was only six months away from reaching the age of 18. The accused’s involvement in such a horrible crime of rape compelled the Indian Legislation to enact new legislation, and thus the Indian Parliament enacted the “Juvenile Justice (Care and Protection) Act, 2015.” It went into effect on January 15, 2016.
The Juvenile Justice Act of 2015 replaced the Juvenile Justice (Care and Protection of Children) Act of 2000, allowing juveniles in conflict with the law who commit heinous offenses to be tried as adults.
The Juvenile Justice (Care and Protection of Children) Act, 2015 has the following objectives:
- The Act provides the basic principles for delivering justice to a juvenile or child.
- To make the juvenile justice system, which is intended for children, more sensitive to developmental requirements in comparison to the criminal justice system, which is intended for adults.
- To bring juvenile legislation into line with the United Nations Convention on the Rights of the Child.
- To set a uniform age of eighteen for both males and females.
- To guarantee that cases involving juveniles or children are dealt with as quickly as possible by the authorities envisioned by this Act, within a time restriction of four months, as established in Article 21 of the Indian Constitution.
- To define the State’s functions as a facilitator rather than a doer by involving voluntary organizations and local governments in the execution of proposed legislation.
- Through sensitization and training of police employees, specific juvenile police units with a humanitarian attitude will be established.
- To make juveniles and children more accessible by establishing Juvenile Justice Boards, Child Welfare Committees, and Homes in each area or set of districts.
- To reduce stigma and to accommodate the developmental needs of the juvenile or child, the Act should be divided into two sections, one for juveniles in violation of the law and the other for the juvenile or child in need of care and protection.
- To provide adequate measures and numerous choices for rehabilitation and social reintegration of abandoned, poor, neglected, and delinquent juvenile and child offenders, such as adoption, foster care, sponsorship, and aftercare.
- To allow juveniles between the ages of 16 and 18 to be tried as adults for heinous crimes.
Scope of the Act
- The Act allows teenagers between the ages of 16 and 18 to be tried as adults for severe crimes.
- Anyone between the ages of 16 and 18 who commits a less serious offense may be tried as an adult only if he is captured after the age of 21.
- In each district, Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) will be formed.
- The JJB will undertake an initial investigation to decide whether a juvenile offender should be sent for rehabilitation or tried as an adult.
- The Convention on the Rights of the Child (CWC) will determine institutional care for children in need of care and protection.
- The Act includes provisions regarding adoptive parents’ eligibility and the adoption procedure.
- Penalties for cruelty to a child, providing a narcotic substance to a youngster, and kidnapping or selling a child.
Categories of Juvenile or Children Act deals
The Juvenile Justice (Care and Protection of Children) Act, 2015 addresses three sorts of juvenile or child issues:
- Juvenile in conflict with the law;
- Child in need of care and protection; and
- Rehabilitation and social reintegration of a child.
Major provisions
- To remove the negative connotation associated with the word “juvenile,” the Act’s nomenclature was changed from “juvenile” to “child” or “child in conflict with the law.”
- Several additional definitions were added, including orphaned, abandoned, and surrendered children, as well as small, serious, and heinous crimes committed by children.
- The clarity in the powers, functions, and responsibilities of the Juvenile Justice Board (JJB) and the Child Welfare Committee (CWC); precise timelines for Juvenile Justice Board (JJB) inquiries; The Act requires that Juvenile Justice Boards and Child Welfare Committees be established in each district. Each must have at least one female member.
- Special measures for children over the age of 16 who commit heinous crimes – Specific measures have been developed under Section 15 to deal with child offenders aged 16 to 18 who commit serious crimes. After conducting the preliminary assessment, the Juvenile Justice Board has the option of transferring cases of severe crime by such minors to a Children’s Court (Court of Session). The regulations provide for children to be placed in a “safe place” both during and after the trial until they reach the age of 21, at which point the Children’s Court will evaluate the youngster. After the evaluation, the youngster is either freed on probation or sent to jail for the remainder of the sentence if he or she has not reformed. The law will serve as a deterrent to minor offenders who commit horrible crimes like rape and murder, while also protecting the victim’s rights.
- A new chapter on adoption has been included to help in the adoption of orphaned, abandoned, and surrendered children. The current Central Adoption Resource Authority (CARA) has been given the status of a statutory entity to enable it to fulfill its duty more effectively to streamline adoption procedures for orphaned, abandoned, and surrendered children.
- A completely separate chapter (VIII) on adoption contains extensive requirements on adoption as well as penalties for failing to follow the procedure. Timelines for both in-country and inter-country adoption have been shortened, including declaring a child legally free for adoption. A single or divorced individual can adopt under the conditions, but a single male cannot adopt a girl child.
- Inclusion of new offenses against children – The Act includes several new offenses against children that have yet to be fully addressed by any previous law. These include the following:
- Sale and procurement of children for whatever purpose, including unlawful adoption, and corporal punishment in child care institutions.
- Child use by militant groups.
- Offenses targeting children with disabilities and kidnapping and abduction.
- Penalties have been imposed for a child’s abuse, offering a youngster a drug, and kidnapping or selling a youngster. Any officer who does not report an abandoned or orphaned child in 24 hours shall be liable for up to 6 months in prison or a Rs. 10,000 fine, or both. The penalty for non-registration is a prison term of up to 1 year or a fine of 1 lakh or both. The punishment for administering liquor, narcotics, or psychotropic drugs to a child shall be imprisonment for up to seven years or one lake or the other.
- Registration of child care institutions – Any institution which, wholly or partially, receives subsidies from the government or which is run by the State Government or by a non-governmental organization is to be mandatorily registered under the Act within 6 months from the date of the Act, irrespective of whether it is to be received. Child care institutions must be registered by law. In cases of non-compliance, astringent punishment is provided.
- For children in conflict with the law and who need care and protection, certain rehabilitative and social re-integration procedures were introduced. Children in institutional care receive different services to enable them to play a productive part in society, such as education, health, nutrition, de-addiction, disease treatment, professional training, skill development, life education, counseling, etc. Among the non-institutional options are sponsorship and foster care including group foster care for placing children in a family environment that is other than the child’s biological family, which is to be selected, qualified, approved, and supervised for providing care to children.
Important definitions under the Act
Below are some of the important definitions mentioned under Section 2 of the Act.
Abandoned child [Section 2(1)]
It refers to a child who has been abandoned by his birth or adoptive parents or guardians and has been pronounced abandoned by the Committee after a thorough investigation.
Adoption [Section 2 (2)]
It refers to the procedure by which an adopted kid is permanently separated from his biological parents and becomes a lawful child of his adoptive parents, with all of the rights, benefits, and duties that a biological child enjoys.
Adoption regulations [Section 2 (3)]
It refers to the adoption regulations drafted by the Authority and published by the Central Government.
Authorized foreign adoption agency [Section 2 (6)]
It means a foreign social or child welfare agency authorized by the Central Adoption Resource Authority on the recommendation of their Central Authority or a Government department of that country to sponsor the application of a non-resident Indian or overseas citizen of India, or a person of Indian origin, or a foreign prospective adoptive parent for the adoption of a child from India.
Authority [Section 2 (7)]
This means the Central Adoption Resource Authority is constituted under Section 68.
Child [Section 2 (12)]
It means a person who has not completed eighteen years of age.
Child in conflict with the law [Section 2(13)]
It means a child who is alleged or found to have committed an offense and who has not completed eighteen years of age on the date of commission of such offense.
Foster family [Section 2 (30)]
This means a family found suitable by the District Child Protection Unit to keep children in foster care under Section 44.
Heinous offenses [Section 2 (33)]
Includes the offenses for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more.
Juvenile [Section 2 (35)]
Means a child below the age of eighteen years.
Orphan [Section 2 (42)]
Means a child—
- Who is without biological or adoptive parents or legal guardian; or
- Whose legal guardian is not willing to take, or capable of taking care of the child.
Adoption under the Act of 2015
Meaning of adoption
Adoption is the legal act of permanently placing a child with a parent or parents other than the biological parents. Adoption results in the severing of the parental responsibilities and rights of the parents and the placing of those responsibilities and rights onto the adoptive parents. It is a worldwide institution. Almost all religions and mythologies contain some reference or other to adoption. In the contemporary world, the thirst for the concept of adoption has changed from providing a child to childless to providing a home to the homeless.
Whole Chapter VIII has been dedicated, this deals with “Adoption under the Juvenile Justice (Care and Protection of Children) Act, 2015 from Section 56-73.
Section 2 (2) of the Juvenile Justice Act,2015, defines ‘adoption’ as the process by which an adopted kid is legally separated from his biological parents and becomes the lawful child of his adoptive parents, with all of the rights, privileges, and responsibilities that come with being a biological child.
The effectiveness of the provision
Initially, the option of adoption was only accessible to the Hindu community after the Hindu Adoption and Maintenance Act came into effect in 1956, which facilitated the adoption of Hindu children by a person adhering to the Hindu community, and did not apply to communities such as Muslims, Christians, and Parsis, who had to depend on the Guardians and Wards Act, 1890, under which they could become guardians. However, the procedure only established a guardian-ward connection. The Juvenile Justice (Care and Protection) Act of 2000, which was last updated in 2015, was the first step toward a secular adoption law.
The Juvenile Justice Act establishes elaborate procedures for both in-country and intra-country adoption, which are governed by the Central Adoption Resource Authority, a statutory authority of the Government of India. A prospective parent can apply at their state’s Adoption Coordination Agency (ACA), which is a CARA-accredited agency in each state. This adoption agency prepares a complete assessment of the family, including pre-adoptive counseling that is valid for three years. At this point, potential parents can express their preferences. Once a suitable child has been selected, the agencies can arrange for potential parents to meet the youngster. If the match is made, the child can be placed in pre-adoption foster care after signing the foster care agreement.
Meanwhile, within 10 working days of matching, the Specialized Adoption Agency/Child Care Institution and the prospective parents submit an application with the District Court as co-applicants. According to Section 61(2) of the Juvenile Justice Act, all processes must be held in private and concluded within two months after filing. However, figures from the Ministry of Women and Child Development show that there is a large number of pending adoption cases in India’s Civil Courts that have been there for longer than the time limit specified in section 61(2) of the Juvenile Justice Act. Even though several adjustments have been made over the years to address concerns encountered during the Act’s implementation.
In cases of children in need of care and protection, the CWC is no longer the “ultimate authority.” The District Magistrate will be the CWC’s grievance redressal authority, and anyone linked with the child may file a petition before the district magistrate, who will consider and issue appropriate orders.
One advantage is that the district magistrate will be able to manage the process more efficiently and promptly since he has access to and is more familiar with all of the departments in his jurisdiction.
Loopholes if any: a highlight
Sections 14(1) and (2) of the Act are primary core issues. The first is the basis on which the Juvenile Justice Board will decide whether a 16- or 17-year-old should be tried in a Regular Court or under the JJ Act. The most problematic feature of these tests is that almost all of them carry a presumption that the child is guilty of having committed the charge if they are positive. Furthermore, the question of how the Board will make these decisions in one month and before the actual trial remains unaddressed. Juveniles between the ages of 16 and 18 who are found guilty of committing terrible crimes after a preliminary inquiry by the Juvenile Justice Board will be transferred to a Children’s Court, which will be able to proclaim the youngster guilty. These minors can be held in a “safe environment” until they reach the age of 21. Even if they are deemed to have been “reformed” by the age of 21, they may be sent to adult prisons. The ‘place of safety,’ also known as ‘borstals,’ is currently unavailable in the majority of states.
Beyond rape and murder, the new juvenile laws have broadened the category of terrible crimes. All offenses punishable by seven years or more in jail are classified as heinous. Experts have examined the law and identified several offenses for which children can face adult charges. Offenses relating to drugs, war, trafficking, abetment of crimes, enabling one’s property to be utilized, and many others are among them.
According to the Juvenile Justice Act of 2015, there is a provision for specialists to be available in about 600 of the country’s above-mentioned districts to provide advice to JJBs. It will be determined whether or not a child committing a crime is in a ‘child-like frame of mind based on their findings. On paper or in a political debate, this theory may appear sound, but it is highly subjective in practice. It lays an excessive amount of responsibility on the Juvenile Justice Board, which may cave to public pressure and, as a result, minors may be moved to the adult criminal justice system.
This law has grown contentious as a result of the growing incidence of adolescent elopement and consensual sex among teenagers. The boys may now face rape charges. A kid cannot consent to a sexual act until the age of 18, hence any act of sex, even consensual, is considered rape under the Protection of Children from Sexual Offenses Act (POCSO).
It contradicts UN commitments derived from several conventions and guidelines to which India is a signatory, particularly recommendations 79 and 80 of the UN Committee on the Rights of the Child, which specifically request that India “ensure that persons under the age of 18 are not tried as adults, following the principle of non-discrimination contained in Article 2 of the Convention.
Recommendations and suggestions
- The Juvenile Justice Act should be aggressively implemented. Acting without willing hands is inefficient and harmful. As a result, the government should ensure that the legislation is appropriately enforced by the authorities.
- India should not have a uniform juvenile age for all crimes. The system can be designed along the lines of those used in the United States, the United Kingdom, and France to categorize and divide the Juvenile Justice system into distinct age groups.
- Juvenile cases should not be moved to Adult Courts.
- Every Juvenile Justice Board should collaborate with local child welfare agencies to improve their efficacy in providing safe shelter to abused and neglected children.
- Members of the Juvenile Justice Board should collaborate with local child welfare agencies to improve their efficacy in providing safe havens for abused and neglected children.
- The feasibility of establishing a non-judicial juvenile justice system should be investigated.
- Ensuring and improving the quality of the juvenile correctional services process would result in justice for minors who have broken the law.
- The juvenile age should not be reduced at all since it will have a far-reaching impact on India’s criminal justice system, which will be adverse to the advancement of justice and equity.
Case laws associated with the same field
Shilpa Mittal v. State of NCT of Delhi and Anr. (2020)
Issue of the case
Whether an offense has a maximum punishment of more than seven years in jail but no minimum term, or with a minimum penalty of fewer than seven years, can be regarded as a ‘heinous offense’ under Section 2 (33) of the Juvenile Justice (Care and Protection of Children) Act, 2015.
Judgment
While considering the case, the Court stated that it was not the Court’s responsibility to fill in the gaps and fix them. The Court stated that it could add or delete words from the legislation if the legislature’s meaning was apparent. In circumstances where the aim of the legislature is unclear, however, the Court cannot add or eliminate words to offer meaning that the Court believes would fit into the scheme of things. The Court was interpreting a statute, which had to be construed by its wording and intent. The goal of the Act of 2015 is to ensure that children who violate the law are dealt with separately, rather than as adults. We cannot wish away the word “minimum” when the language of the clause stipulates a minimum of 7 years imprisonment when dealing with severe crime.
The Court dismissed the appeal by resolving the issue and ruling that an offense that does not carry a minimum penalty of seven years cannot be considered heinous. However, the Act does not address the fourth category of offenses, namely, offenses where the maximum sentence is more than seven years in prison but no minimum sentence or a minimum sentence of fewer than seven years is provided, which shall be treated as serious offenses within the meaning of the Act and dealt with accordingly until Parliament decides on the matter.
VikramDeo Singh Tomar v. State of Bihar (AIR 1988 SC 1782)
The Supreme Court has taken notice of the poor conditions in the State of Bihar’s care homes for women and children and has ordered the State to improve affairs in these facilities and provide at least the minimum living standards necessary to ensure human dignity.
Gaurav Jain v. Union of Indian (1997)
The Supreme Court ruled that the children of prostitutes have the right to equal opportunity, dignity, care, protection, and rehabilitation to be included in the mainstream of social life without stigma. The Court ordered the formation of a committee to devise a plan for the rehabilitation of such children and child prostitutes, as well as its implementation and submission of the registry’s quarterly report.
Laxmikant Pandey v. Union of India (AIR1984 SC469)
In this landmark case, the Supreme Court of India established a couple of doctrines controlling the requirements for inter-country adoption. The lawsuit was initiated based on a letter filed to the court by a lawyer, Laxmikant Pandey, saying that social organizations and volunteer organizations engaged in the activity of selling Indian children to foreign parents are indulging in malpractices.
Conclusion
It is possible to conclude that a separate legal system for juveniles is required for better treatment of juvenile delinquent concerns. The reforming component of juvenile criminal legislation must take precedence over the deterrence component. It can be observed that, despite its inadequacies, the 2015 Act strikes a balance between the penal and the protective, such that the juvenile is effectively rehabilitated while also discouraged from committing the crime.
For more than a century, states have firmly believed in the concept of using the juvenile justice system as a weapon to protect the public by establishing a system that responds to criminal acts committed by children as they mature into adulthood. The rising rates of juvenile delinquency and crime committed by juveniles are pressing issues that must be addressed. Even though the government has enacted legislation to address this issue, these laws have done nothing to reform juveniles or stop them from committing crimes.
States acknowledge that children who commit crimes differ from adults in two ways: they are less culpable as a group and have a greater possibility for reform. To address the disparities, states have built a Court system for juveniles as well as a separate youth-based service delivery system that is available to adults. The reforming aspect of juvenile criminal law must take precedence over the deterrent aspect. It can be seen that the 2015 Act, despite its flaws, finds a balance between the penal and the protective, so that the minor is appropriately rehabilitated while also being dissuaded from committing a crime.
References
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