This article is written by Parul Chaturvedi pursuing LLB from Dr. R.M.L Law College Bangalore Sri Vaishnavi. M.N., a first-year student of Damodaram Sanjivayya National Law University, Vishakapatnam, and Rohit Raj, a student pursuing a B.A.LLB. (Hons.) from Lloyd Law College. This is an exhaustive article that deals with an overview of the Juvenile Justice Act and rights of Juveniles and proceedings before the court jurisdictions.
“There can be no more intense discovery of a society’s spirit than how it treats its youngsters.”
“With their inception, youth lawfulness has preceded the belief that the youngsters and juveniles, by dint of their relative immaturity, are less ready to control their desire, less ready to comprehend the reality of the offences and less ready to foresee the consequences of their action.”
– John Pitts
An apparent set of principles focused on reformation and rehabilitation has dominated academic and political discourse concerning the drafting of laws related to juvenile justice and children in conflict with the law. The Juvenile Justice Act of 1986 and its subsequent amendments can be considered in many ways a landmark in signifying changes in the thought process of lawmakers. At the turn of the 21st century, a need was felt to update the laws bearing in mind prescribed standards set by the UN Convention on the Rights of the Child, 1989. The UN Standard Minimum Rules for Administration of Juvenile Justice, 1985, as well as the UN Rules for Protection of Juveniles Deprived of their Liberty, 1990. The legislative exercise subsequently culminated into the Juvenile Justice (Care and Protection of Children) Act, 2000, along with the Juvenile Justice (Care and Protection of Children) Model Rules of 2000, are replaced by the Juvenile Justice (Care and Protection of Children) Model Rules of 2007. In the wake of the 2012 Delhi gangrape and murder case, one of the accused, who was a juvenile, was sentenced to three years in a reformation home as per the provisions of the juvenile justice Act, 2000. In light of the Supreme Court judgement upholding the constitutional validity of the Act, in December 2015, the Delhi High Court held itself to be bound by the provisions and refused to extend the sentence of the accused. This led to a widespread feeling of a failure of justice, with the masses protesting in unity with the victim’s family. Drawing much flak from various sections to correct the supposed gap in the previous act, the government delivered the juvenile justice (Care and Protection of Children) Bill, 2014, which was surpassed by the Parliament in its present shape on 22nd December 2015. It acquired the President’s assent on 31st December 2015, and came into impact on 15th January 2016, as the juvenile justice (Care and Protection of Children) Act, 2015.
In order to achieve the objectives of the United Nations Convention on the Rights of the Child as ratified by India on 11 December 1992, the Juvenile Justice Act has been promulgated. The procedural guarantees applicable to children in conflict with the law are specified in this law. The current law addresses the problems of the existing law, such as delays in adoption processes, the high number of pending cases, the accountability of institutions, and so on.
The law also addresses the growing number of crimes committed by children aged 16 to 18 in recent years and by children in conflict with the law. Since January 15, 2016, the Juvenile Justice (Care and Protection of Children) Act, 2015 has come into force. It repeals the Juvenile Justice (Care and Protection of Children) Act, 2000.
If a child is found guilty of committing a crime, then the Juvenile justice board takes several measures regarding the minor’s reformation and they are as follows:
- Allow the child to return home after proper advice and caution regarding the crime that the child has committed and what is the punishment of that crime as per the provisions of law.
- Juvenile justice boards sometimes also instruct the children to engage in social work and social welfare so that this engagement can help in imparting good social values in the accused child.
- It also makes children busy in group counselling and group activities as much as possible so that the child can learn the value of working together and can learn how to cooperate with each other in a society.
- If the child has committed a grave crime then, in that case, the child can be sent to the reform house for a minimum of 3 years or it can be exceeded if required.
- Sometimes the Juvenile justice board releases the convicted child on trial if the child is seen to exhibit good conduct towards the society or an individual.
To know more about introduction and overview of the Juvenile Justice Care and Protection Act, 2015, please watch the video below:
The Historical Evolution of Juvenile Justice Act in India
The United Nations Minimum Rules for Administration of Juvenile Justice of 1985 ratified by the United Nations Member States in Beijing in 1985, also known as the Beijing Rules, set out the rules, general principles and rules governing investigation and prosecution, adjudication, delivery, non-institutional treatment and institutional treatment. Two essential concepts are explained in these principles. They are-
- Diversion– If children are treated in the criminal justice system, stigmatizing criminality increases the authority of the child, whose authority has been established from Rule 11 of the Criminal Code. Therefore, these principles aim at minimizing the contact of minors with the criminal justice system. To divert the child from the system, the second part of the rule legitimizes police officers, prosecutors and other authorities. This is why juvenile court judges do not wear the black coat and other judicial officials also try not to be as formal and put the child or minor at ease.
- Detention– A deliberate sentence imposed on minors but imposed for the shortest possible period and called “detention as a last resort”.
Juvenile Justice is construed
A juvenile felon is an adolescent who has been convicted or has been found condemned for an offence that is punishable by law. Such a juvenile is known as Child in Conflict with Law (CCL) according to juvenile justice (Care and Protection of Children) Act, 2015. This meaning of ‘Juvenile’ is obscure and bears no solid importance and requires more further discussion. Further, the act done by a child under seven years old is found in strife with the law and not treated as an offence and isn’t culpable under any act and such a child is certifiably not a criminal according to Section 82 of Indian Penal Code. Thus, a child whose age is under seven years old can’t be known as a juvenile and is not convicted of any crime. The specific juvenile justice Body and its partners need to control the juvenile offences as well as wrongdoings. An offence is any conduct that is culpable under the separate lawful system and juvenile misconduct is any conduct done by juveniles which is anomalous to the society and not culpable under the Indian Penal Code. In the Indian juvenile justice system, no reprobate child(wrongdoing) is responsible to confront the legitimate procedures for their conduct reformation.
IPC and CrPC effect in Juvenile Justice
IPC and CrPC have a huge effect in dealing with the crime of minors in Juvenile Justice. We have seen in the above arguments how sections of Juvenile Justice Act, 2015 explain about the whole constitution of Juvenile justice board and explain in detail about the requirement needed to be a member of Juvenile justice board and in what circumstances they can be terminated. But, IPC and CrPC also play a major role in deciding the cases of a juvenile by proper implementation of sections of Criminal law.
The Indian Penal Code (IPC), 1860 demarcates the punishment of a child, on the basis of age. According to Section 82 of IPC, “Nothing is an offence which is done by a child under seven years of age.” And, Section 83 of IPC clearly states that “Nothing is an offence which is done by a child who is above seven years of age and under the age of 12 who has not attained sufficient maturity to understand the consequences of their actions. These both sections of IPC give a better view of the Juvenile justice board.
In the context of CrPC, the code of criminal procedure talks about the jurisdiction of juveniles through the help of Section 27. According to Section 27 of CrPC, any offence committed by a person who is below the age of 16 whose punishment does not include death or imprisonment will be dealt with the law which provides treatment, training, imparting good social values and rehabilitation of convicted minors.
Another Section of CrPC which is most essential for Juveniles so that the juveniles can be benefited from it is Section 437 of The Code of Criminal Procedure. According to this section, any child who is convicted of any crime can request or demand anticipatory bail which is maintainable in the High Court as well as the Court of Session.
However, since there are very few cases of anticipatory bail for minors, The Juvenile Justice Board finds it difficult to deliver judgments and thus making the system of anticipatory bails in case of minors, more time consuming than in the case of adults.
Juvenile Justice System Comparison on Global level
Juvenile Justice is a concept which is prevalent in India as well as other Countries where the Juvenile Justice is on the rise. As above, the UN General Assembly adopted a Convention on the Rights of the Child and made the member state adhere to it and follow the rules and principles which were laid down in that convention for the security and protection of child rights and development of a child.
- The juvenile justice system in the US is a flexible, effective and most active system among all the countries. In India children who commit crime are put under trial and put in rehabilitation to reform the child and change his behaviour and teach the value of togetherness and other social values. But, in the US the juvenile is also treated as an adult if the age of juvenile is nearer to be adult or in the circumstances where the juvenile is a repeated offender.
- The juvenile justice system in the UK came in the year of 1908 in England and juvenile courts were set up in order to protect the rights of the children and care of the children. In the UK the Juvenile court also focuses on the negative element which is present in the society which affects the children to inhabit negative elements and commit crime towards the society as well as an individual. And to make this Juvenile justice more effective in the UK they came up with two acts i.e. Children and Young Offenders Act,1993 and Criminal Justice Act, 1948.
The Children and Young Offenders Act, 1993 act provides immense powers to the juvenile court in the UK. Any child who commits offence will be put into trial in Juvenile court and not in any other court. Whereas, the Criminal Justice Act, 1948 deals with the rights of the minor offenders or juvenile offenders. The main motive of this act was to provide security to the juveniles and also protect the rights of juveniles.
Juvenile Justice Act, 1986
Following the adoption of the United Nations Minimum Rules for Administration of Juvenile Justice of 1985, the term “minor” used in international law was coined for the first time. With the adoption of the Juvenile Justice Act of 1986, this change in terminology had a considerable effect on domestic law.
Before 1979, while Lakshadweep, Arunachal Pradesh, Tripura, Chandigarh and Sikkim had the Children’s Act but they did not apply it. In the case of Assam and Himachal Pradesh, although the laws have been enforced, no institution has been created to deal with the same thing and Nagaland does not even have a separate law for children. The Children’s Acts have been applied in 236 of the 334 districts in the case of other Indian states. In the mid-1980s, out of 444 districts, the number of children’s laws was increased to four hundred and forty-two.
As from October 2, 1987, the Juvenile Justice Act 1986 was applied by notification in all areas where it was extended. The need is for uniform laws over time for juvenile justice throughout the country and for the need to implement uniform laws that are fulfilled by the Juvenile Justice Act of 1986. In addition, there are States with no law in the area of justice of the sixteen, as well as uniformity at the national level. The Juvenile Justice Act, 1987 is nothing more than a full copy of the Children’s Act, 1960 which makes only minor and valueless changes here and there; some of them are as described below:
- A significant symbolic semantic change in the preamble, the words maintenance, social assistance, training and education, has been replaced by the words training and development. Similarly, the minor term has been replaced by the word child. The most benevolent and appropriate judgment of judgment on certain issues related to the trial rules and regulations.
- Section 2 of the Juvenile Justice Act of 1986 contains new definitions of a suitable person, a suitable institution and a safe place. A minor who was or was likely to be abused or exploited for illegal or immoral purposes or for an unjustified gain also included in the definition of a neglected child had been expanded to include.
- Section 10 of Juvenile Justice Act of 1986, does not change the current status of Section 11 of Juvenile Justice Act of 1986, which provides for the temporary reception of juveniles of all varieties in the juvenile justice system. the houses of observation, of their antecedents.
- Sections 52, 53 and 54 of Juvenile Justice Act of 1986 also provided for the establishment of social welfare and juvenile rehabilitation funds, the establishment of advisory councils and the appointment of visitors to juvenile institutions.
Juvenile Justice Act of 2000
The Indian legislator made a sincere effort in adopting the 2000 Act to inculcate the principles set out in the UN Conventions, such as the CRC, the Beijing Rules and the 1990 Rules. minors were promulgated to deal with offences committed by minors in a manner supposed to be different from the law applicable to adults according to the Supreme Court of India. The rehabilitation of the minor is the main concern of the Juvenile Justice Act, 2000 and not the adversarial procedure to which the courts are generally accustomed. A complete change in the mentality of those with the power to do so is necessary for its implementation, without which it will be almost impossible to achieve its goals.
Applicability of the Act
The Supreme Court held that, to the extent that the appellant was concerned about the applicability of the Juvenile Justice Act 2000 in the case of Jameel v. the State of Maharashtra. Since the offence of unethical intercourse was committed in 1989, the Juvenile Justice Act 2000 was not enforced and it is not disputed that the appellant at the time of the accident had 16 years old.
A boy under the age of 16 or a girl under the age of 18 is considered a minor within the meaning of the Juvenile Justice Act 1986. Since the implementation of the Juvenile Justice Act 2000, the accused was over the age of 18, arguing that the Juvenile Justice Act 2000 would apply since the accused did not have attained the age of 18 on the date of the event, is not defensible. Notably, the Juvenile Justice Act 2000 is categorically unenforceable because the accused was 16 years old.
Non-applicability of any other Act for the time being in force
The Supreme Court ruled that regardless of the nature of the offence committed, juvenile justice law should prevail in juvenile cases in Raj Singh v. State of Haryana. When the juvenile plea can be raised, at any time, even after the person has been convicted by the court of the first instance, the plea of a minor can be raised.
Juvenile Justice Board
Section 4 of the Juvenile Justice Act of 2000 deals with the establishment and constitution of the council and also empowers the state government to establish a juvenile justice board for a district or group of districts. A child who has committed an offence may be brought before a member of the board if the board is not chaired in accordance with Section 5(2). Section 6(1) conferred on the Commission exclusive powers under the 2000 Juvenile Law in Conflict with the Law Act to hear all court proceedings.
Juveniles in conflict with the law
Observation points must be set up in each district or group of districts for the temporary reception of these minors for the duration of the survey. Special shelters must be set up to receive and rehabilitate these minors, which implies that orders have already been issued by a juvenile justice council in such cases in each district or group of districts. Given the physical/mental health and the nature of the offence, the minor must be classified according to his age.
No juvenile may be housed in a police jail or in prison for any reason. Under Section 32, the Committee, any police officer or special juvenile police unit or designated police officer shall conduct an investigation in the manner prescribed upon receipt of a report and order send the child to the children’s home so that a quick inquiry can be conducted. the worker or child protection officer may be approved by the Committee, alone or on the report of a person or body referred to in subsection 32(1).
The investigation must be completed within four months of receipt of the order or within the shorter time limit set by the Committee under Section 32(1), and the deadline for the submission of the report of investigation may be extended. that the Committee may, depending on the circumstances and for reasons stated in writing, determine. If, after completion of the investigation, the Committee is of the opinion that the child has no apparent family or support, he or she may allow the child to remain in the children’s home until his/ her rehabilitation is found or until he reaches the age of 18.
The state government, alone or in association with one or more voluntary organizations, may establish and maintain homes in each district or group of districts, as the case may be, to accommodate children in need of care and protection. during free time. any investigation and thereafter for their care, treatment, education, training, development and rehabilitation.
The state government may provide for the management of children’s homes, including the standards and the nature of the services they must provide, as well as the circumstances under which and the manner in which the certification of a children’s home or the recognition of a voluntary organization may be granted or withdrawn under rules made under this Act.
Inspection committees may be appointed by the state government for the state, district and city children’s homes, as the case may be, for the period and for the prescribed purposes. It is prescribed that the inspection committee of a state, district or city must be composed of the number of representatives of the state government, the local authority, the committee, an organization volunteer and other medical experts and social experts. The operation of children’s homes can be monitored and evaluated by central and state governments during the period and through the persons and institutions designated by that government.
Juvenile Justice Care and Protection Act, 2015
The accompanying Act of Parliament obtained the consent from the President on 31st December 2015 and is thus circulated for general info. This is an Act to combine and amend the law associated to children which are positively asserted and found in conflict with the law and the child needs to provide care and security by taking into account their essential needs through legitimate consideration, assurance, advancement, treatment, social re-mix, by embracing a child cordial approach in the mediation and removal of issues to the most progressive growth of the child and for their restoration through procedures given, and organizations and bodies as mentioned in the recent amendment of juvenile justice Act 2015 Section 1(1)(2)(3)(4) it represents that:
- This Act might be popularly known as the juvenile justice (Care and Protection of Children) Act, 2015.
- It reaches out to the entire of India aside from the State of Jammu and Kashmir.
- It will come into power on such date as the Central Government may, by notification in the Official Gazette, choose.
- Notwithstanding anything contained in some other law for now in power, the social arrangements of this Act will apply to all issues concerning child’s needs care and security and youths in strife with law, including anxiety, confinement, arraignment, appropriate punishment or detainment, restoration and social re-incorporation of kids in a struggle with law.
The increase in the number of crimes (including rapes) committed by juveniles (aged 16 to 18) was the main reason to introduce the new legislation. More retributive than reforming, the new law raised several questions. The new law is considered retributive because it contains provisions for teenagers who commit a heinous crime (punishable by 7 years or more) must be tried as adults but in the juvenile court. The child found guilty of the heinous crime is sent to a safe place until the age of 21, after which he is transferred to prison. The children’s court ensures it. This means that the benefit of a child is not granted to the minor when found guilty of committing a heinous crime.
Many protesters criticized the new law on minors for being unconstitutional. The Court noted that in Rule 4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, in the case of Pratap Singh v. the State of Jharkhand , one had to give all its importance to the moral and psychological elements even when responsible for a crime.
According to Professor Ved Kumari , if a 16-year-old commits a heinous crime and his is punishable by 7 years of imprisonment, he must be brought before the Juvenile Justice Council, which decides on the physical and mental capacity of the child; if the minor committed such an offence has the ability to understand the consequences of the offence and under what circumstances the offence was committed. This work of the Juvenile Justice Commission is difficult and there is a good chance of uncertainty.
Many activists have raised another problem, namely that the 2015 law violates the spirit of Article 20(1), which states that a person can not be sentenced to a harsher sentence than that which would have been applied to him or her. by the law of the country. Under the new law, if a sentenced minor reaches the age of 21 but has not completed his entire sentence, he can be sent to prison if deemed appropriate. This new law undermines the spirit of Article 20(1).
Salient Features of the Juvenile Justice Act, 2015-
- Definition of ‘child in need of care and protection’ expanded– Under the new law, the definition now also includes a child caught working in violation of labour law, with imminent risk of marriage before reaching the legal age for the same resides with a person who has threatened or threatened to hurt, exploit, abuse or neglect the child or to violate any other law, or whose parents or guardians are unable to care from him.
- Child Welfare Committee is no longer the final authority in cases of children in need of care and protection– Anyone related to the child may apply to the district judge, who will review and make appropriate orders as a district judge. the authority of the Child Protection Committee.
- Procedure for inquiry– Unlike children for whom production reports have been received, the Child Protection Committee must now investigate any child produced before it. Orphaned and delivered children are also included in the procedure.
- An extensive definition of ‘adoption’ provided– The rights of the child have been recognized and a detailed definition of adoption has now been provided.
Important definitions under the Act
In the Indian juvenile justice system, the ‘child in Conflict with Law’ is utilized in place of juveniles. In this way, the Child in Conflict with Law is smarter to be utilized as opposed to utilizing juveniles. The ideas conceived by the term’s ‘juveniles’ ‘child’ and ‘child in Conflict with Law’ have contrasts and similitudes. In this way, complete deserting the term ‘juvenile’ is unimaginable.
Below tables shows the similarities and contrasts of the three terms:
|1||Child||younger than 18 years.||
|2||Juvenile||younger than 18 years.||
|3||Child in conflict with the law.||younger than 18 years.||
Section 2(13) of the juvenile justice act 2015 signifies a child who is in conflict with the law and asserted or found to have convicted an offence and not finished the 18 years of age on the date of the delegation of such an offence.
Section 2(35) characterizes the significance of a juvenile as “juveniles” and a child underneath the age of 18 years.
Juvenile Justice (Care and Protection of Children) Rules, 2016 are the primary rules. The constitution of India and UN Standard Minimum Rules for the Administration of juvenile justice, 1985 also known as the Beijing Rules are guiding fountains. United Nations Convention on the Rights of the Child, 1989 known as UNCRC is the source of all protection issues for children.
Rule 2.2 of the Beijing Rules mentioned
- A juvenile is a child or young person who, under the governing legal systems, may be dealt with an offence in a manner that is different from an adult.
- An offence is any behaviour (act or omission) that is punishable by law under the respective legal systems.
- A juvenile offender is a child or young person who is alleged to have committed or who has been found to have committed an offence.
Recent amendments in the Juvenile Justice Act Bill 2015 passed by the Lok Sabha
These are 14 notable changes mentioned below:
- Depending upon the severity of crime like a crime committed atrociously and brutally, the juveniles between the ages of 16 to 18 years have the trial and the legal proceedings in adult courts.
- Any child that is convicted of any crime will currently be sent for a preliminary evaluation for a time of a quarter of a year (3 months), earlier it is one month now extended to three months.
- Another clause on fair trial is included, under which the evaluation or assessment period will investigate the special needs of the child, under the child-friendly atmosphere.
- The child will not go through any form of disqualification or elimination in education or jobs due to being guilty of any crime under the Act.
- The guilty records shall be ruined after the completion period of appeal, except in the case of atrocious crimes.
- The time period to rethink the decision of adoption is changed from one to three months.
- The aftercare of a child shall be unrestricted to one month in institutional care.
- Receive financial aid more than one time after evacuating institutional care.
- Priority for disabled children in interstate adoption.
- Increase in the time period for left alone children kept under observation in child care facilities from 30 days to 60 days.
- In the case of an inevitable situation, it will not be considered purposely or willfully giving up the child by biological parents.
- Consultation and advice from experienced psychologists and medical specialists if an order passed against the child.
- Training of special juvenile units in the police force.
- NCPCR and SCPCR will be the nodal specialists to be liable for observing implementation, the exposure of the amended act, and to investigate cases that emerge out of the act.
Recommendations of the Justice Verma Committee Report, 2013
The Justice Verma Committee was framed in 2013 to audit criminal laws and to make proposals considering the 16th December 2012 Delhi Gangrape case. The Committee got a scope of recommendations, including the proposal that the time of juvenile blamed for egregious wrongdoing must be characterized as one underneath 16 years old and the individuals who are 16 years or more should be treated as an adult in a courtroom and must not be presented with the Juvenile Justice Act 2000. On this particular issue, the board of trustees held a wide scope of consultations with the attorneys, women rights activists, child experts, psychologists and child rights activists. The report of the board of trustees mentioned that if a small child is old enough at 16 years, he committed a crime and was sentenced for a long term, at the time when he completes his term in jail he will turn to 30 years and this also points out the terrible condition of rehabilitation programs in Indian jails.
General principles of care and protection of children
General standards to be followed in the organization of Act- The Central Government, the State Governments, the Board, and different offices, by and large, while executing the provisions of this Act will be guided by the accompanying basic principles, specifically:
Section 3 of the Juvenile Justice Act 2015 states the principles of care and protection of children:
- Principle of the Best Interest of the Child- “Best interest of the child” signifies the reason for any choice taken with respect to the child, to guarantee satisfaction of his fundamental rights and needs, character, social prosperity and physical, enthusiastic and scholarly improvement.
- The Principle of Presumption of Innocence- It will be regarded all through the procedure of justice and protection, from the underlying contact to elective consideration, including aftercare. Any unlawful behaviour of a child which is done for endurance, or is because of environmental or situational factors or is done under the control of adults, or peer groups.
- Principle of Right to maintain privacy and Confidentiality- Each child has an option to the right of his protection and privacy by all methods and all through the legal procedure. No report of the juvenile will be distributed that may prompt the recognition of the juvenile but to the situations where the exposure of their distinguishing proof identity would cause protection of them.
- Principle of equality and non-discrimination- That there shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child. Every single suitable measure should be taken to ensure that the child is secured against all types of discrimination or punishment based on the status, activities, expressed opinions or convictions of the child’s parents, lawful guardians, or family members.
- Principle of Participation- The child should be provided with an opportunity to being involved and the child who is capable of forming his or her own views has the right to express those views freely in all matters which is affecting the child’s growth and development, the views of the child is given due importance in accordance with the age and maturity of the child.
- Principle of institutionalization- It is a measure of last resort, in certain circumstances the family is not capable of taking care of the well being of the child and when the child has no family to be cared for and there is no one to look after the child, the government must make alternative provisions.
- Principle of Diversion- Diversion presents a few preferences when contrasted with the conventional criminal justice framework which can be excessively unbending, awkward, slow and inert to the necessities of children who are often first-time or non-genuine offenders. Police are the first point of contact between the juvenile and the juvenile justice Board or the court and as such the police think that it is not essential to proceed for the juvenile to the judicial bodies on the consideration that the rights of the child, protection of the society and the rights of the victims, they may divert the juvenile from the formal court processes based on the acts and rules.
- Principles of Natural Justice- Every child should be treated fairly and equally, regardless of his or her race, ethnicity, colour, gender, language, religion, political or another opinion, national, ethnic or social origin, property, disability, and birth or another status. In certain cases, special services and protection will need to be instituted to ensure children’s rights are met equally.
- Principle of Family Responsibility- Guardians or parents of a juvenile must be associated with the groundwork for the inquiry and trial and be available when it happens. They ought to be educated by police, investigators or judges that a conventional request will happen and that they are welcome to join in.
- Principle of Dignity and worth- The treatment of the child will be predictable with the child’s feeling of pride and worth. Every single person is brought into the world free and equivalent in poise and rights. They are invested with reason and conscience and should act towards each other in a soul of fellowship (Article I of UN Declaration Human Rights). All children will be managed with respect due to their inherent dignity and human beings.
- Principle of Safety- The state has a greater responsibility for ensuring the safety of every child in its care and protection, without resorting to restrictive measures and processes in the name of care and protection.
- Principle of Positive Measures- The main theme of the principle is the promotion of the wellbeing of the juveniles. The characters and behaviours of the juveniles shall be corrected and reformed by following positive measures.
- Principle of non-stigmatizing Semantics- The principle of non-stigmatizing semantics proposes not to utilize words that are utilized in ordinary criminal procedures, choices, and activities that may stigmatize the juveniles. The rule command to maintain a strategic distance from the utilization of antagonistic or accusatory words, for example, capture, remand, blame, charge sheet, preliminary, indictment, warrant, summons, conviction, detainee, reprobate, ignored, custody or prison.
- Principle of non-waiver of Rights- The Constitution of India carefully precludes the waiver of rights. The equivalent is epitomized in the juvenile justice system in India. The legal rights enforced by the Juvenile Justice Act should not be postponed under any circumstances by any juvenile, competent authority and stakeholder working under the juvenile justice system. Also, further, the non-exercise of fundamental rights doesn’t add up to the waiver of the equivalent.
- Principle of Repatriation and Restoration- States that it shall be ensured that a child shall not be separated from his or her parents against their will. However, the Board or the Court considers the separation is necessary for the best interests of the child in accordance with the law and procedures, such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
- Principle of Fresh Start- The principle of fresh start promotes a new beginning for the juvenile in conflict with the law. This rule also instructs to destroy all past records of the juvenile within a stipulated period. They are ensured to erase all their past records.
What are two categories of Children who are protected under the Juvenile Justice
Children in conflict with the law
The new law reinforces the approach of the juvenile justice system to children in conflict with the law as well as children in need of care and protection. The Juvenile Justice Act of 2015 redefined the “minor” in conflict with the law into a “child” in conflict with the law. Offences were classified as small/serious/ obnoxious. In the case of heinous crimes, children between the ages of 16 and 18 can be tried as adults after a preliminary assessment by the juvenile justice commission.
During the investigation, a child in conflict with the law will be temporarily sent to an observation house. Depending on age, sex, physical and mental state and the nature of the offence, the child will be isolated. A child will be placed in a special home if convicted of an offence by the Juvenile Justice Commission.
For children over the age of 18 or children aged 16 to 18 charged or convicted of committing a heinous crime, a security site will be established. for the children in the process of trial and the children who are convicted; the place of safety will have a separate layout and facilities. The juvenile justice commission will carry out a regular inspection of adult prisons to check whether a child is accommodated there and take immediate measures to transfer the child to the home of observation [Section 8(3)].
Within three months, the Juvenile Justice Council will make a preliminary assessment before referring the case to the juvenile court. The law stipulates that the final order must include an individual plan for the rehabilitation of the child, including a follow-up by the probation officer, the District Child Protection Unit or a worker. when the child is considered an adult by the juvenile court.
The juvenile court ensures that the child is kept in a safe place until the age of twenty-one.
The juvenile court must determine whether it should be transferred to prison or whether it has undergone reform changes and that it could be saved by incarceration once it reaches the age of death and the sentence is still pending. The law provides for a complete embargo on capital punishment or life imprisonment without the possibility of release for child offenders who are treated as adults by juvenile justice. The juvenile court decides whether the child should be released or sent to prison after reaching the age of 21.
Children in need of care and protection
Within 24 hours, a child in need of care and protection must be brought before the Child Protection Committee. The law provides for the compulsory declaration of a child separated from his guardian. Non-reporting was treated as a punishable offence. The child in need of care and protection is sent to the appropriate child protection institution and directed by the child protection committee under the direction of a social worker. Within 15 days, the social worker or child protection officer must conduct the social inquiry. At least 20 days a month. The child protection committees meet and the district magistrate conducts a quarterly review of the functioning of the child protection committee.
For care, treatment, education, training, development and rehabilitation, a child in need of care and protection will be placed in a children’s home. Shelters open for children who need community support in the short term to protect them from abuse or keep them away from street life under the law. The Child Protection Committee could recognize an institution that is able to temporarily assume a child’s responsibility. The rehabilitation of orphans, abandoned or delivered children is taken care of by the Agency specialized in adoption.
What is the Institutional Care provided for the juveniles?
Rule 3 of the Juvenile Justice (Care and Protection of Children) Rules of 2007 states that “the institutionalization of a juvenile must be a measure of last resort after a reasonable inquiry and this also for the minimum possible duration”.
This replaced the twelfth fundamental principle of the juvenile justice system. Institutional care measures are as follows:
Section 8 of the Juvenile Justice Act of 2000 provides that the state government may establish and operate observation houses in each district or group of districts. A minor is temporarily received in these homes. For the duration of any investigation into them under the Juvenile Justice (Care and Protection of Children) Act 2000, minors are detained in observation houses. Minors are kept for a few weeks in the observation houses for the social study of minors.
The minor’s story is prepared by the probation officer during his brief stay at the observer’s home. The competent authority then decides, depending on the case, to keep them in the institution or to entrust them to their parents. During the stay in the establishment, medical and psychiatric services were also provided, as well as basic equipment such as food, clothing and accommodation for minors. To keep the mind and body healthy, young people should water the plants, help in the kitchen and clean the premises of the shelter.
Section 9 of the Juvenile Justice Act of 2000, states the state government may establish and maintain special homes in each district or group of districts. When the offence committed by a minor is proven and condemned by the competent authority, it is placed in the special home established by the state governments. In the special home, minors are treated for a long time or until their age ceases.
The ultimate goal of the rehabilitation of juveniles in the homes under the Juvenile Justice (Protection and Protection of Children) Act of 2000 has therefore been implemented to ensure that all necessary efforts are made to change the of juveniles. minors of evil to good. Special shelters for minors pay more attention to the education and vocational training of minors. Minors receive food, clothing, shelter, medical and psychiatric services, and counselling.
Section 34 of the Juvenile Justice Act of 2000 states “The state government may establish and maintain children’s homes in each district or group of districts.” The children’s home is a home where children in need of care and protection are placed on the order of a competent authority.
In accordance with the Juvenile Justice (Protection and Protection of Children) Act of 2000 of the Children’s Home, children are provided with all the services necessary for overall development up to a fairly high age, that is, until ‘at 18 years old. Services include the provision of food, clothing, shelter, medical and psychiatric treatment, including counselling and referral. Education and vocational training are also provided to children.
According to Section 37 of the Juvenile Justice Act of 2000, Shelters Homes as for children in need of urgent support. Shelter homes provide children with space where they can play and engage in creative activities. Children are engaged in music, dance, theatre, yoga and meditation, computers, indoor and outdoor games, etc, to spend their time productively. These creative activities are designed to encourage meaningful participation and interaction among peer groups.
These activities will ensure the overall growth and development of children. The main purpose of these shelters is to keep them away from socially deviant behaviours, in addition to meeting their basic needs for food, nutrition and health. Children can safely keep their property and income in the conditions provided for in these shelters.
What is the Non-Institutional Care provided for the juveniles?
Section 40 in The Juvenile Justice (Care and Protection of Children) Act, 2000 talks about the process of rehabilitation and social reintegration. The rehabilitation and social reintegration of a child must begin during his stay in a children’s home or special home monitoring organization.
Foster care is one of the non-institutional measures used for the temporary placement of children in accordance with Section 42 of the Juvenile Justice Act of 2000. Homeless, abandoned, neglected and deprived children benefit from a foster family. He replaces parents with others to provide care outside their own home. The child is placed in foster care when natural parents are faced with problems such as sentencing, life-threatening illnesses and being abroad. The actual parents pay the corresponding price.
Foster parents are generally interested in childcare. In the foster home, the child receives parental care and parenting education. Being placed in a foster home helps to avoid the stigma of being in an institution and adapting to other children. It is considered satisfactory in every way possible. Although foster families lead to drastic changes in the child’s life and are enough to change their behaviour, the foster family is solely responsible for the overall development of the children.
Restoring family care for children deprived of their real family life Adoption is another non-institutional measure. Section 2(2) of the Juvenile Justice Act of 2015 defines adoption as the process by which the adopted child is permanently separated from his biological parents and becomes the legal child of his adoptive parents with all rights, privileges and responsibilities that are attached to a biological child.
Adoption is done with the mutual consent of the family, who hands over the child and who receives the child. By adoption, the child receives a new name, a legal status and a permanent family. It also meets the needs of a childless couple. Adoption gives hope to many orphaned, neglected, abandoned and abused children by their parents to start a new family. The main purpose of adoption placement is rather a family for the child than a child for a family.
For the orphan child who is legally free to adopt, it is the most ideal and permanent rehabilitation. Adoption and foster care are intended to give family life to the child, but the main difference is that foster care is a temporary placement, even perhaps in the long term, but that adoption ensures permanent care without involving payment. Foster care can even be adopted.
Another type of non-institutional measure called the Sponsorship Program provides additional assistance to families, children’s homes and special homes to meet the medical, nutritional, educational and other needs of children. Sponsorship is given to improve their quality of life. There are many types of sponsorship programs for children, such as individual-to-individual sponsorship, group sponsorship or community sponsorship.
The juveniles are taken care of in the organization of the aftercare, which is a transition home, after leaving the special homes and the children’s home. Minors in conflict with the law and children in need of care and protection, both categories are placed in aftercare organizations. Monitoring organizations allow minors to lead an honest and industrious life. Follow-up agencies are committed to the primary goal of enabling children and youth to adapt to society. In child care agencies, children and adolescents are motivated to stay in the wider society of their lives in institutional homes.
Monitoring organizations are nothing more than a temporary home set up for a group of young people. In monitoring organizations, young people are encouraged to learn a trade and also contribute to the management of the monitoring centre. Any volunteer agency or organization designated as a custodial organization strives to prepare children, as well as adolescents, to become self-reliant and to acquire the social and fundamental skills necessary for their full integration into the community.
In the monitoring program, children and adolescents also have access to social, legal and medical services, as well as appropriate financial support. Continuing education services are regularly offered to children and youth in the follow-up organization to help them become financially independent and generate their own income.
The monitoring organization should ensure regular follow-up and support after the reintegration of the child or minor into the community or society. Members of various government agencies also work together to reintegrate children or minors into society by enabling them to live psychologically and economically, as well as by providing ongoing assistance after their integration into society. Institutional and non-institutional measures have been used not only for the proper care and development of children but also to address children’s issues adequately as a last resort for the well-being of children and minors. to be used.
What is the role of the police?
The first contact of a juvenile with the judicial system is mainly by the police because it is the police who arrest the juvenile and produce it in the juvenile justice court. In rare cases, this has been done by a private party or a voluntary organization. The Juvenile Justice Act of 2000 clarifies the need to establish a special juvenile police unit in each district and city.
It also contemplates that at least one police officer be assigned to a police station as a minor or child protection officer. This is important because it is the police officer who produces the children or the minor in court and prepares and submits the indictment of the offence committed by the child or minor.
Special Juvenile Police
The special juvenile police often and exclusively deal with juveniles and mainly work to prevent juvenile delinquency or to deal with juvenile delinquency under the Juvenile Justice Act. Therefore, they are specially educated and trained to handle children and adolescents. The representative designated as a minor or child protection officer in each position is trained to possess the appropriate skills, training and orientation.
At least one designated police officer will be designated in each police station and will take care of the minor or child in coordination with the police. To improve the treatment of minors and children by the police, the Special Police for Minors has been designated in each police station.
Pursuant to section 84(1) of the Special Police Regulations for Juveniles, the Juvenile Police Task Force shall include a Child Protection or Youth Protection Officer with the rank of Inspector of Police. and two paid social workers, including work experience in the field of child protection. In 1952, in Greater Mumbai, the Juvenile Police Unit (JAPU) was established primarily to care for destitute and neglected children. He continues to act as a special force within the police.
What is the role of state government?
Within two months of their appointment, the law provides for the initial training of the members of the Juvenile Justice Council and the Child Protection Committee (Sections 4 and 27). The Chief Magistrate or Chief Metropolitan Magistrate review the juvenile justice case once every three months. Its main purpose is to direct the Council (Section 16). The law also provides for the establishment of a high-level committee to review cases pending before the Juvenile Justice Council.
Under section 36 of the Juvenile Justice Act, the district magistrate must submit quarterly reports to the district judge on the length of the proceedings and the nature of the disposition of cases. The District Magistrate conducts a quarterly review of child protection committees and proposes direct corrective measures. This is done to solve the problem. A district magistrate’s review report is sent to the state government, which may result in the formation of additional committees if necessary. Even after three months. In case processing persists, the existing committee is dissolved and a new committee is formed by the state government.
Within six months of the entry into force of the Juvenile Justice Act of 2015, state governments must also register all institutions, whether administered by the government or an NGO and are destined in full. or partly to housing children. Whether they receive government subsidies or not, institutions are required to register with the state government. A provisional registration certificate to the institution within one month from the date of the application should be issued by the state government. A penalty for non-registration in a child care facility may be up to one year in prison or a fine of at least Rs. 1 lakh.
According to section 49 of the Act, state governments are expected to create at least one place of safety for the placement of persons over 18 years of age or children aged 16 to 18 years who have committed a heinous crime. Inspection committees must be appointed at both state and district level and, at least once every three months, they must inspect all institutions (Section 54).
The central government and the states may carry out an independent evaluation through persons or institutions determined by the Government of the functioning of the Juvenile Justice Council, the Child Protection Committee, the Special Section of the juvenile police, approved institutions, facilities and persons adapted under Section 55.
Under section 65 of the Act, the state government recognizes one or more institutions in each district as the adoption agency with respect to adoption. The public agency shall provide the Central Authority for Adoption Resources (CARA) with the details of the specialized adoption agencies, such as name, address and contact details, as well as copies of the certificate and letter of recognition or renewal. Every adoption agency inspected at least once a year and takes corrective action by the state government. for a fine up to Rs. 50,000/- in the event of default by the Specialized Adoption Agency, in addition to the withdrawal of recognition for repeated default provided for by law.
Under the Juvenile Justice Act, 2015, all registered institutions that may not have been recognized as a specialized adoption agency must establish formal links with a nearby adoption agency. All orphans or children returned or abandoned declared legally free for adoption by the registered institution. Any breach of this provision will result in a fine of Rs. 50,000/- and even non-recognition if a persistent violation of the provisions is found (Section 66).
Central and national governments are required to sensitize the general public, children, parents and guardians to the provisions of the law. In addition to other persons concerned or government officials, they must also undergo periodic training (Section 108).
Juvenile Justice Board
One of the most important and progressive features of the Act of 2000 was the foundation of juvenile justice Boards. Each board is inquired to decide the age of the child, the question of bail, and the subject of a commission of the offence, and pass proper orders. The composition of the board incorporates a principal magistrate and two social workers, in this way guaranteeing not only are legitimate complexities secured, however, the financial, psycho-social and familial conditions are also considered to be secured. The social workers engaged with the juvenile justice system are called correctional social workers globally.
Section 4(1) states that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State Government will comprise for each region, at least one juvenile justice Board for practising the forces and releasing its capacities identifying with youngsters in conflict with the law under this act and other section and acts can be provided in Chapter 3 section 4(1) to (7).
Apparently, children entering before the juvenile justice System are already addicted to face the grave dangers in their lives, yet their predicament is frequently overlooked. Police misuse is ordinary in certain purviews. Children grieve in the framework for quite a long time, either as inhabitants of decrepit detention facilities without access to schooling and education or as the subject of unlimited procedures that draw them away from training or work, bringing about a financial emergency for the child’s family. If so, in addition to the fact that we fail the child as a state, yet additionally when they come in conflict with the law.
The Juvenile Justice Council (JJB) is headed by a senior magistrate. He has exclusive jurisdiction to deal with juvenile cases. The magistrate of the Commission for Juvenile Justice is a magistrate “who should be a metropolitan magistrate or a first class magistrate with special knowledge in child psychology and child protection”. In the juvenile justice commission, two members are social workers, one of whom must be a woman.
The fundamental requirement of board members is that they have a postgraduate degree in social work, psychology, child development or any other social science discipline and that they are required to actively participate in activities related to children’s health, education or well-being for seven years. A selection committee chaired by a retired High Court judge selects and appoints social workers from the Juvenile Justice Council. The term of office of the members is 3 years and they can be appointed for a maximum of 2 consecutive terms.
The Senior Magistrate who is an officer of the court is governed by the conditions of service set out in the State Judicial Services Regulation and the allowances of the Senior Magistrate who is an officer of the court are governed by his service regulations. The member of the juvenile justice council may be dismissed after an investigation by the state government for the following reasons:
- If he has been found guilty of misuse of power under this Act, or
- He/she has been convicted of an offence involving moral turpitude, and this conviction has not been reversed or he/she has not been totally pardoned for this offence, or
- He fails to attend Board proceedings for three consecutive months without cause or fails to attend at least three-quarters of the meeting in one year.
A social worker member of the Commission receives a minimum of 500 rupees per meeting. The Juvenile Justice Council has been granted exclusive jurisdiction over juveniles. The Juvenile Justice Council decides and adjudicates cases involving minors. “The Juvenile Justice (Care and Protection of Children) Act of 2000” has a preponderant effect on several acts of the Indian Penal Code.
The Juvenile Justice Council investigates ordinary criminal courts for offences under the Narcotic Drugs, Psychotropic Substances Act, Weapons Act, SC / ST on the prevention of atrocities allegedly committed by a minor. This includes Section 18 (prohibition of anticipatory bail) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Role of Social Workers and Non-governmental Organisations?
Social worker’s responsibility in the juvenile justice system is to implement the principle with the right counselling and opportunities to change an individual into a decent resident. Nonetheless, unnecessary deferrals in procedures, bringing a backlog of cases, an insufficient infrastructure, deferred justice they deal with them efficiently and promptly. Social workers can move in the direction of the reintegration of the juvenile inside society. The association with the justice System may cause disgrace and seclusion, and effect the minor’s future training and work possibilities. Social workers may work with the family, neighbourhood, and schools, empowering them to acknowledge the child and bolster him in remaking his life. Officials can urge schools to readmit juveniles and continue their schooling, forestalling drop-out rates. Admission to open schools may likewise be upheld where the juveniles can proceed with the guidelines by means of self-teaching and work at the same time to help himself and his family. Social workers should assist juveniles with securing positions and work with managers to enlist them. They also work with the family of juveniles and guide them to reshape their child’s future by making him a good member of society.
Wizner and Keller discussed the juvenile criminal justice system “It has neither given satisfactory assurance to society from juvenile crimes nor prevailing within rehabilitating young offenders.”
The Juvenile Justice (Care and Protection of Children) Act focuses on the participation of voluntary social workers and community services for the benefit of minors at different times. This requires the participation of social and community workers from non-governmental organizations in admission, decision-making, community placement, institutionalization and rehabilitation of neglected and delinquent children.
The larger role of volunteer social workers allows the child to stay in touch with society. It also allows the juvenile justice system to be more transparent. The idea is to consider it with the idea that, without the cooperation of the community, the goal of social reintegration of delinquent children cannot be achieved.
In the child protection sector, non-governmental organizations (NGOs) play a key role: they must provide a framework that ensures that every child, even as they enter the system, is treated with care and compassion. They are also fighting for the rights of the child to be recognized and protected. Social workers continue to play a crucial role in the treatment of juvenile offenders, although since the 1980s the welfare approach has been brought to justice.
The Juvenile Justice Council is composed of a metropolitan magistrate or a first class judicial magistrate and two social workers, as mentioned above. The Model Rules set out the criteria for being a social worker on the board: “The social worker to be appointed to the board must be a person aged 35 or over who holds a postgraduate degree in social sciences, work, health, education, psychology, child development or other social science disciplines and is actively involved in the planning, implementation and administration of measures related to the protection of childhood for at least seven years. Social workers who are members of the Juvenile Justice Council should have been actively involved in health, education or welfare activities for children for at least seven years.
The model rule also mentions the selection process for members and both social workers must be appointed by the state government on the recommendation of the selection committee. The selection committee for government and justice representatives consists of two representatives of well-known non-governmental organizations working in the field of child protection. Social workers who are members of the Juvenile Justice Commission must assert themselves and not be submerged by the magistrate (the judicial member) and play an important role in the rehabilitation of the juvenile.
Social assisting members may dismiss the magistrate under Section 5(4) of the Juvenile Justice Act of 2000.
Social assisting members should be familiar with the provisions of the juvenile legislation and the documents and procedures of each case pending before the Juvenile Justice Council. This is emphasized for justice to be rendered to the minor. Gain the confidence of the minor, while showing him that even if his best interests are in his mind, he will be treated with severity, which is the main duty of the social worker members.
The minor is placed in an institution on the order of the juvenile justice council. It is therefore imperative that the social workers who are members of the Juvenile Justice Council regularly visit the observation houses, special houses and other institutions where minors are referred. This is to ensure that the goal of reform and rehabilitation is achieved.
Although justice is done to minors, the importance of social workers is recognized in the 1986 law. A panel of two honorary social workers attends the juvenile court. The group of at least one woman is appointed by the state government with persons with the qualifications required by law.
Instead of simply assisting the magistrate, the 2000 law elevated the social worker to the court that constitutes the Juvenile Justice Council. Intervention in social work has always been expressed alongside words such as “honorary”, “voluntary”, “charitable” although playing an important role. Under the 1986 law, not only did “two honorary social workers” assist the juvenile court but under the 2000 law, a similar pattern continued. The social worker members of the Juvenile Justice Council should receive a “travel allowance”.
Senior managers employed in the homes and superintendents of child protection institutions are also social workers who have received academic training. several critical roles played in the lives of minors by the staff attached to the institutions. Since offenders often report that their families do not care about their well-being, the role of social workers is important.
The social worker works as a friend so that the child feels comfortable talking freely with him. They assume the role of counsellor and guide to have the confidence of the child to approach him when needed. They work as a reformer to make the child understand that what he did was wrong. They also act as healers to help the child reach his full potential and direct him to his future. It is essential to set up a children’s referral clinic in an institution, as repeated sessions with minors are essential to change one’s attitude. In a child welfare centre, it is a child psychologist or psychotherapist who can make a positive difference in the future of the minor.
Under the Juvenile Justice Act of 2000, NGOs also play a central role in the search for a pending or investigative juvenile charge as a “person or institution”. The 2000 Act allows voluntary organizations to establish and maintain observation houses and special houses. In addition, to ensure the minor’s full rehabilitation services in institutions set up and managed by the state government are provided by voluntary organizations, such as counselling, education and vocational training, etc.
It has been speculated that the institutional set-up required under the Juvenile Justice Act has not been built up completely and district-level institutions generally lack the infrastructure and staff to adequately execute it. This hampers the work of the rehabilitative and reformative programs leads to disappointment in accomplishing goals of restoration and reintegration work. There has been practically nil spotlight in organizing rehabilitative plans. Also, the role of the staff is not under satisfaction. There is a lack of coordination between staff and children. This leads to fewer opportunities for children to showcase their talent and skill and health issues of workers to implement certain roles and duties.
Procedure in relation to children in conflict with the law
A Child in Conflict with Law has a number of rights starting from the pickup up by the police up to the release from the juvenile justice Institutions.
Section 10 to 26 of juvenile justice Act 2015 defined procedure in relation to children in conflict with law in which some of them we discussed here:
Section 10- Apprehension of the person alleged to be in conflict with the law.
- A child may be apprehended on the ground of committing an offence. At the time of apprehension, they have certain rights mentioned below.
- They shall not be kept in the police lock-up or jail. Instead, they shall be kept in safe custody prior to the production before the Board.
- In every police station, safe custody may be arranged by following the Principle of Child-Friendly Atmosphere.
Section 10(1) of the juvenile justice Act, 2015 states that “Provided that in no case, a child alleged to be in conflict with the law shall be placed in a police lockup or lodged in a jail”.
Section 8(3) juvenile justice Rules, 2016 mentions that the police officer apprehending a child alleged to conflict with the law.
Section 14 Inquiry by Board regarding a child in conflict with the law- this provision describes whether a child is produced before Board or he may fit in sections 17 and 18 of the act. It also categorizes the types of offence depending upon how it is committed below.
- Petty offence– Section 2(45) “petty offences” includes the offences for which the maximum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment up to three years inquiry is disposed of by the Board through summary proceedings, according to the procedure endorsed under the Code of Criminal Procedure 1973.
- Serious offence– Section 2 (54) “serious offences” includes the offences for which the punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force, is imprisonment between three to seven years; Enquiry is disposed of by the Board, by following the strategical procedure, for preliminary trial in summons cases under the Code of Criminal Procedure 1973.
- Heinous offence– Section 2(33) includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more. Section 15– Preliminary assessment into heinous offences by Board it deals with inquiry (I) if a child beneath the age of sixteen years as on the date of commission of an offense will be discarded by the Board under proviso (e);(ii) for a child over the age of sixteen years as on the date of commission of an offense will be managed in the way recommended under section 15.
These are all culpable by law. The acts and rules recommend the rights and reformatory methodology of the juveniles and it has no obvious framework about juvenile crime. Antisocial behavior done by youngsters which harm society is called juvenile delinquents or misconduct. These misconducts create an atmosphere that provokes juveniles to commit crimes or violations. The expansion of juvenile misconduct will enhance juvenile violations. The decline of juvenile crime will lead to a decline in juvenile violations. The most probable cause of juvenile violations is misconduct.
Right at the time of apprehension
A child may be apprehended on the ground of committing an offence. At the time of apprehension, they have sure rights. They shall no longer be kept inside the police lock-up or jail. Instead, they shall be kept inside the secure custody prior to the production before the Board. In every police station, secure custody can be organized with the aid of following the Principle of Child-Friendly Atmosphere. Section 10 (1) of Justice Juvenile Act, 2015 states that “Provided that in no case, a child purported to be in a battle with law shall be located in a police lockup or lodged in a jail”. And Section 8(3) Justice Juvenile Rules, 2016 mentioned that the police officer apprehending a child supposed to be in conflict with law.
Procedure to be followed
- Not send a child to a police officer lock-up and not delay the child being transferred to the Child Welfare Police Officer from the nearest police station. The police officer may under sub-section (2) of section 12 of the Act send the person apprehended to an observation home only for such period till he is produced before the Board i.e. within twenty-four hours of his being apprehended and appropriate orders are obtained as per rule 9 of these rule.
- Do not handcuff, neither put a chain or fetter around the ankles of a child and do not exert any coercion or force.
- Inform the child promptly and directly of the charges levelled against him through his parent or guardian and if a First Information Report (FIR) is registered, copy of the same shall be made available to the child or copy of the police report shall be given to the parent or guardian.
- Provide appropriate medical assistance, assistance from an interpreter or a special educator, or any other assistance which the child may require.
- Not compel the child to confess his guilt and he shall be interviewed only at the Special juvenile Police Unit or at child-friendly premises or at a child-friendly corner in the police station, which does not give the feel of a police station or of being under custodial interrogation. The parent or guardian may be present during the interview of the child by the police.
- Not ask the child to sign any statement.
- Inform the District Legal Services Authority for providing free legal aid to the children.
Principle of Right to maintain privacy and Confidentiality- Is applied when a crime is committed and child under trial in police custody inside the juvenile court
Further, Section 24(2) of the act mentions that the board shall order and direct the Police, or through children’s court that the relevant records of such conviction shall be destroyed after the expiry of the period of appeal from the registry or, as the case may be, a reasonable period as may be prescribed. Provided that in case of a heinous offence where the child is found to be in conflict with law under clause (i) of section 19, the relevant records of conviction of such child shall be retained by the Children Court.
Next, Section 74, of the act mentions:
- No report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published. Provided that for reasons to be recorded in writing, the Board or Committee holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child.
- The Police shall not disclose any record of the child for the purpose of character certificate or otherwise in cases where the case has been closed or disposed of.
- Any person contravening the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or fine which may extend to two lakh rupees or both.
Section 99, of the act, proclaims:
- All reports related to the child and considered by the Committee or Board shall be treated as confidential: Provided that the committee or the board, as the case may be, may, if it so thinks fit, communicate the substance thereof to another Committee or Board or to the child or to the child’s parent or guardian, and may give such committee or the board or the child or parent or guardian, an opportunity or producing evidence as may be relevant to the matter stated in the report. (1) Notwithstanding anything contained in this Act, the victim shall not be denied access to their record, orders and relevant papers.
Section 24(5) POCSO, 2012 stresses for the police to make sure officers that the identity of the child is covered from the public media unless otherwise directed through the Special Court within the benefit of the child.
Child welfare committee
Section 27 to 30 of the 2015 act explain the Various aspects of Child Welfare Committee about the Child Welfare Committee and its Role:
Sec 27 (1): The State Government by notification in the Official Gazette in each district, set up at least one Child Welfare Committees to practice the powers and to release the obligations bestow on such Committees by comparing to youngsters needing care and security under this act and assure that training and sensitization of all individuals from the board of trustees is implemented within two months from the date of notification.
Composition: Committee consists of one chairperson, four members of state government in which one is women and others are an expert on children related matters.
Role of the committee
Section 9 and 10 deals with the role of Committees:
Sec (9): The Committee will work as a Bench and will have the forces given by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, by and large, a judicial Magistrate of First Class.
Sec (10): The District Magistrate will be the complaints redressal expert for the Child Welfare Committee and anybody associated with the youngster may record an appeal before the District Magistrate, who will consider and pass suitable requests.
Procedure for the Committee
Section 28 of the Act shows the procedural way:
- It implies that the Committee will meet at least 20 days in a month and will watch such guidelines and methodology with respect to the exchange of business at its meetings, as might be endorsed.
- A visit to a current child care organization by the Committee, to check its working and prosperity of the child will be considered as a sitting of the Committee.
- A child needing care and insurance might be delivered before an individual from the Committee for being set in a Children’s Home or fit individual when the Committee isn’t in the meeting.
- In case of any difference of views among the individuals from the Committee at the hour of taking any choice, the assessment of the dominant party will win however where there is no such majority, the assessment of the Chairperson will win.
- Subject to the arrangements of sub-section (1), the Committee may act, despite the nonattendance of any individual from the Committee, and no structure made by the Committee will be invalid by reason just of the nonappearance of any part during any phase of the procedure.
Given that there will be in any event three individuals present at the hour of definite removal of the case
Power of Committee
Section 29 deals with the Power of Committee:
(1) The Committee will have the position to discard cases for the consideration, security, treatment, improvement, and recovery of youngsters needing care and insurance, just as to accommodate their essential needs and assurance.
(2) Where a Committee has been comprised for any zone, such Committee will, despite anything contained in some other law until further notice in power, however spare as in any case explicitly given right now, the ability to manage all procedures under this Act associated with children needing care and security.
Functions and Responsibilities of Committee
- Promoting awareness;
- Conducting inquiry;
- Directing the child welfare officers to conduct a social investigation;
- Inquiry for fit persons taking care and security of children;
- Handling placement of a child in foster care;
- Taking care, insurance, proper recovery or reclamation of kids needing care and security, in light of the child’s individual consideration plan;
- Conducting 2 inspection visits per month;
- Making a move for the restoration of explicitly mishandled youngsters who are accounted for as kids needing care and assurance to the Committee by Special Juvenile Police Unit or neighborhood police, all things considered, under the Protection of Children from Sexual Offenses Act, 2012 (32 of 2012); and
- Orphan and abandoned children are legally free for adoption.
Procedures to be followed for children who need care
Section 31 deals with production before the committee:
Production before Committee— (1) Any child needing care and security must be produced before the committee by any of the accompanying people— Any cop or special juvenile police unit or an assigned child welfare police officer or any official of the district child protection unit or controller designated under any work law in power. Any community worker, childline services or any deliberate or non-legislative association or any organization as might be perceived by the State Government. Child Welfare Officer or post-trial agent, any social specialist or a child protection specialist by the child himself or any medical attendant specialist or the board of a nursing home, clinic or maternity home.
Given that the juvenile will be created before the Committee with no loss of time yet inside a time of twenty-four hours barring the time important for the excursion.
(2) The State Government may make rules predictable with this Act, to accommodate the way of presenting the report to the Committee and the way of sending and entrusting the child to the child’s home or office or fit the individual, by and large, during the time of the request.
A child needing care and security is to be present before the Child Welfare Committee inside 24 hours. To accommodate youngsters isolated from his/her family. By announcing it has been treated as a culpable offense. The Child Welfare Committee is to send the kid needing care and security to the suitable Child Care Institution and direct a Social Worker, Case Worker or the Child Welfare Officer to lead the social examination within 15 days. The Child Welfare Committees will meet at least 20 days in a month and the District Magistrate will direct a quarterly survey of the working of the Child Welfare Committee.
A youngster needing care and security will be set in a Children’s Home for care, treatment, guidance, preparing, advancement, and restoration. The Act accommodates Open Shelters for Children needing network support on the momentary reason for shielding them from misuse or getting them far from an actual existence in the city. The Child Welfare Committee could perceive an office to be a fit facility to incidentally assume the liability of a youngster. The Specialized Adoption Agency is to deal with the recovery of vagrants, deserted or gave up kids.
Rehabilitation and Social Reintegration
Section 40 to 55 deals with provision rehabilitation and social reintegration:
Sect (40)- Process of rehabilitation and social reintegration—
(1) The reclamation and social integration of a youngster will be the prime target of any Children’s Home, Specialized Adoption Agency or open safe house.
(2) The Children’s Home, Specialized Adoption Agency or an open safe house, all things considered, will make such strides as are viewed as vital for the rehabilitation and social re-integration of a youngster denied of his family condition briefly or for all time where such child is under their consideration and insurance.
(3) The Committee will have the forces to re-establish any youngster needing care and rehabilitation and social reintegration to his families, institution or fit individual, all things considered, subsequent to deciding the reasonableness of the guardians or institutions or fit individual to deal with the child, and give them appropriate bearings.
Clarification- For the motivations behind this segment, “restoration and safety of a child” means restoration to signify reclamation to like Parents, adoptive parents, foster parents’ guardian or fit person or a fit individual.
Section 39: States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse torture or any other form of cruel, inhuman or degrading treatment or punishment or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect, and dignity of the child.
Institutional personnel and training
Rule 29 Capacity-building for staff employed in women’s prisons shall enable them to address the special social reintegration requirements of women prisoners and manage safe and rehabilitative facilities. Capacity-building measures for women staff shall also include access to senior positions with key responsibility for the development of policies and strategies relating to the treatment and care of women prisoners.
The media and the public shall be informed about the reasons that lead to women’s entrapment in the criminal justice system and the most effective ways to respond to it, in order to enable women’s social reintegration, taking into account the best interests of their children.
Right to be Reformed
The juveniles who are alleged and found committed an offence shall be reformed by restorative justice, deserving rehabilitation and social reintegration than punitive and retributive punishments. Awarding punitive and retributive punishments to the children prevents society from moving on. Children are presumed innocent and immature to understand the consequences of crimes. Therefore, they must not take responsibility for criminalization. The traditional objective of criminal justice, retribution and repression must be given away.
Section 27 CrPC clearly mentions that the law is executed for the “treatment, training and rehabilitation of youthful offenders” who are juveniles. Whereas juveniles justice Rules 2016 is providing rules that allow the juveniles may get away from treatment, training, and rehabilitation, etc. These are contradictory concepts.
Case Law: The reformatory approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending communal conscience and to secure social justice.
Narotam Singh v. The State of Punjab, AIR 1978 SC 1542; Section 27 CrPC
The jurisdiction in the case of juveniles- Any offence not punishable with death or imprisonment for a life committed by any person who at the date when appears or is brought before the Court is under the age of sixteen years, maybe tried by the Court of a Chief Judicial Magistrate, or by any court specially empowered under the Children Act, 1960(60 of 1960), or any other law for the time being in force providing for the treatment, training, and rehabilitation of youthful offenders.
The juvenile who is addicted to alcohol or drugs which lead to behavioral change in a person shall be referred to an Integrated Rehabilitation Centre for Addicts or Similar centers maintained by the State Government for mentally ill persons for the period required for in-patient treatment of such juveniles. Section 34 and 35 of Juvenile Justice Rules 2016 defines the manner of health and medical facilities to be provided.
Efforts shall be made to provide juveniles, at all stages of the proceedings, with necessary assistance such as lodging, education or vocational training, employment or any other assistance, helpful and practical, in order to facilitate the rehabilitative process.
Rules relating to adoption
Meaning of Adoption
Section 2(2) of Juvenile Justice Act “adoption” signifies the procedure through which the adopted child is for all time isolated from his biological guardians and turns into the legitimate child of his adoptive parents with all the rights, benefits and duties that are joined to a biological child:
HAGUE CHILD ABDUCTION CONVENTION 25TH OCTOBER 1980
special features- protect children-simplify the court proceeding in the interest of justice to the child.
Section 57 to 73 in juvenile act 2015 describes the different procedures of Adoption.
Case Study: L.K. Pandey v. Association of India
It was held by the Supreme Court in public interest litigation – The child has the right to love and affection. The first condition is to look for a legal guardian within the country for welfare and security of the child’s considered as of prime importance. Other legal requirements are a Marriage Certificate with recent photographs of couples, Income records. It had framed the guidelines governing intercountry adoptions for the benefit of the Government of India. A regulatory body, i.e., the Central Adoption Resource Agency was recommended and set up by the Government of India in the year 1989.
As indicated by section 56 of the Act vagrant, relinquished or given up child might be embraced, independent of the connection, religion, nation hindrance by the sets of equipped court.
Section 57 deals with the competency of Prospective adoptive parents must meet the legal adoption requirements of their country of residence and those of the country whose nationality the child holds. They ought to be genuinely fit, financially stable, intellectually alert and profoundly energetic to embrace a child for giving them a decent childhood to him. If there should be a requirement of a couple-consent a single or separated couple can give the consent for adoption. A single male doesn’t have the right to adopt a young girl child.
Section 58: The Prospective Adoptive Parents (Indian PAPS) applied an application for adoption to a Specialized Adoption Agency (SAA). The authority checks proper House Safety Records (HSR)of the PAPs if finding them legally eligible, it mentioned if a child is legally free for adoption alongside a CSR (child study report)and MER(medical examination report). On acknowledgement, Specialized Adoption Agency will give the child in pre-adoption child care with proper documents along with an application applied in the court for getting the request for adoption, in this way by appropriate guidelines by the Authority.
Difference between Domestic and Intercountry case: Domestic adoption case is filed u/s 58(3) whereas in Intercountry it is filed u/s 59(7) or 60 of the Act
To encourage domestic adoption pre-adoption care is given to children. In the case of inter-country adoption, it is not mentioned. For intercountry adoption, the person or couple becoming the legal or permanent parent of a child of another country. Inter-country adoption is specifically regulated by the 1993 Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption though no such obstruction is in Domestic Adoption in which the person or couple of the same country as the child belongs.
Follow up activity after request in inter-country adoption- Sec 59(11)The approval from organization, or Central Authority, or the concerned Government division, by and large, will confirm the progress reports of the child in the adoptive family and will be liable for making alternate option on account of any disturbance, by concerning with Authority and concerned Indian diplomatic mission, the way as given in the appropriation guidelines encircled by the Authority.
Fulfillment of the court- Sec-61 Adoption is for the welfare of the youngster; Due consideration is given as per age and understanding of a child.No payment or fees have to pay to any PAP and SAA. The appropriate proceedings will be held in camera and the case will be disposed of by the court within a time of two months from the date of recording.
The adoption process in the court is definitely not a general court proceeding in that the assembly is not litigant or arguing it is an application where the strict rule of Criminal.Procedure.Code (Crpc)and evidence act aren’t applicable. Adjournment must be explained as you need to dispose of the case within two months and the record of the case ought to be guarded in custody.
An investigation was done by the court the Petition filed must be documented according to requirements of the Child Adoption Resource Authority rules alongside the testimony of the Secretary of Specialized Adoption Agency and the Prospective Adoptive Parents. Annexure should be according to CARA rules nothing less nothing more. The case is filed within ten days of the NOC or Pre-adoption consideration.
Proposed adopters are permitted to take the child with them and in the application mentioned the details of the child taken for adoption- The Proposed adopters are proclaimed as the new parents of the said minor child having rights of parent’s privileges, benefits, and obligations.
Adoptive guardians should take the child out of the ward of the court where all legal proceedings are going on and take the child to their new home. The Municipal Corporation issued birth certificates to the minor child referencing the proposed adopters as guardians of the child.
Offences against Children
The Juvenile Justice Act of 2015 is far less behind in controlling the juveniles’ misconduct. By reviewing the juvenile justice Act 2015, there are sorts of offences.
Section 74 to 89 deals with offences against children.
The juvenile justice Act, 2015 remembers a different section for offenses against youngsters and a few of the offenses recorded right now so far not enough secured under some other law. These incorporate deal and obtainment of the child for any reason including unlawful appropriation.
- Beating in a childcare home;
- Giving children inebriating alcohol or opiate sedate or psychotropic substance;
- Misuse of youngsters by militant or adult groups;
- Offenses against handicapped kids; and
- Grabbing and snatching kids.
Draft amendment in Rules
For the powerful execution of these plans, the Draft Rules will specify children’s cordial methodology to summarize and to keep a record of it. It is recommended that each police headquarters will have a child cordial room, and a special children’s room will be assigned in each Court complex. Notwithstanding the Draft Rules, forms have likewise been drafted to institutionalize and improve to execute plans. An aggregate of 49 Forms has been drafted which is more than twofold the forms in Model Rules, 2007. Separate individual consideration rules for kids needing care and insurance and those in a struggle with legal matters have been made, a draft structure for social foundation recording data report has been created to help the police in recording data about kids. Rules are designed for the regular audit of youngsters in the age group of 16-18 years for their wellbeing. A few different rules are identified with the occasional report by a post-trial supervisor, case checking sheet, Comprehensive psycho-social report, Rehabilitation card, and so on will go far in better understanding and execution of the Act and Rules surrounded thereunder.
How is the JJ Act in India is different from other countries?
- Table 1
|Country||The minimum age for the Juvenile at which he can be charged with an offence|
|United States of America||the age ranges from six to ten years|
|United Kingdom||the age limit is ten years|
|South Africa||the age is often years|
|France||by offence committed|
|Canada||after the age of twelve years.|
|Germany||at the age of fourteen years.|
|India (Juvenile Justice Act 2015)||Under IPC after the age of seven years.|
- Table 2
|Country||The age in which Juvenile can be tried as an adult|
|United States of America||From the age of 13 years|
|United Kingdom||17 years in England, Wales and Northern Ireland, 16 years in Scotland|
|South Africa||The juvenile can be treated as an adult from the age of sixteen years|
|France||The age of being an adult is sixteen|
|Canada||The age of the juvenile who will be treated as an adult is fourteen years|
|Germany||At the age of fourteen years.|
|India (Juvenile Justice Act 2015)||From the age of sixteen in the case of heinous crimes|
- Table 3
|Country||Type of offences for which the minor can be tried|
|United States of America||aggravated sexual abuse, murder, assault, robbery, firearms offences, and drug|
|United Kingdom||Murder, rape, causing any explosion likely to endanger life or property|
|South Africa||robbery, murder, rape|
|France||Armed robbery, murder, rape and drug offences|
|Canada||Serious bodily harm to any person, murder, and aggravated sexual assault|
|Germany||Abuse of persons who are incapable of resistance, or sexual abuse, or child abuse leading to death|
|India (Juvenile Justice Act 2015)||“Serious offence (punishment 3-7 years e.g. cheating, counterfeiting) or heinous offence, (punishment more than seven years e.g. murder, rape, robbery)”|
The need for the legislation
The loopholes in the execution of different safeguarding plans for children needing care and assurance depend on the circumstantial investigation it believes. The broadened gaps due to misuse of laws and enactment need proper evaluation as we’re not done before. Juveniles security administrations at the region/city/state level, still to the huge educated child needing care and education are outside the wellbeing net, inadequate projects and subsidizing which bring Juveniles to be included in poor kids, a lopsided portion of irrelevant assets, no appropriate spotlight on institutional and non-institutional administrations, absence of coordination of projects/benefits, no opportune reclamation of kids with families, absence of qualified experts, absence of parallel linkages with Education, Health, Police, judiciary, Services for the handicapped, and so forth. Additionally featured explicit holes, for example, the absence of gauges in the institutional foundation in the workplace of Child Welfare Committees (CWC) and juvenile justice Boards (JJB), lacking offices for the viable working of Child Welfare Committee and Juvenile Justice Board, Inadequate under-qualified members in Child Welfare Committee and Juvenile Justice Boards. They are lacking behind in compelling observing and assessment of the juvenile justice system, no legitimate offices for home alone kids, abandoned children. Just a couple of children have profited through Non-Institutional Care choices like Adoption, Foster Care and Sponsorship and many who are deprived of all support.
According to a 2015–16 economic analysis, it is found that there is a sharp decrease in government school enrolments in provincial regions from 2007 to 2014. It stressed the need to build these numbers significantly to accomplish the Universalization of Education. However, considering such proposals, funds assigned to the Sarva Shiksha Abhiyan was raised by a minimum percent. There exists just a single welfare scheme identified with child labour scheme for the welfare of working children in needing care and security and that too saw a certain decline in funding.
It is appropriate to take note of those children needing care and security just as children in conflict with the law scarcely discover whether there any place in the budget allocation. An expansion in wrongdoings against juveniles and juveniles makes them much progressively powerless, henceforth the absence of consideration regarding child security is perturbing. Deficient financing for essential plans will undoubtedly negatively affect the reformative and rehabilitative methodology received by the acts of 2000 and 2015.
Juvenile Justice (Care and Protection) Act 2015 was passed in light of the failure of Child protection. Yet at the same time there exists a similar circumstance due to the absence of duty and commitment, coordination between different partners in Child Protection and due to the absence of experienced and logical social work experts in the usage of ICPS at state to grass-root level. Child protection should go under a single organization following with a positive, adequate and proficient hierarchical structure which should root till the village level.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: