This article is written by Ms Kishita Gupta from Unitedworld School of Law, Karnavati University, Gandhinagar. This article discusses the salient features of the recent Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021.
Ms Smriti Zubin Irani, Minister of Women and Child Development, introduced the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 (hereinafter referred to as the Bill), in the Lok Sabha on March 15, 2021, which was then passed on 24 March 2021. The Bill is yet to be introduced in the Rajya Sabha for discussion and approval. The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as JJ Act 2015) is amended by this bill. The Act includes measures for children who are in dispute with the law as well as children who require care and protection. Child adoption and severe crimes committed by juveniles are among the topics covered in this Bill. The purpose of the 2015 Act was to eliminate the difficulties in interpreting the preceding Juvenile Justice Act.
Need for amendments
The JJ Act 2015, which repealed the Juvenile Justice (Care And Protection of Children) Act, 2000, went into effect on January 15, 2016, with a complete provision for children alleged or found to be in conflict with the law, as well as children in need of care and protection. The Juvenile Justice Act 2015 was enacted in accordance with the Indian Constitution, which guarantees equal rights to children and requires the state, among other things, to take appropriate measures to safeguard children. India’s commitment as a signatory to the United Nations Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (commonly known as the Beijing Rules 1985), the Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption (1993), and other related international instruments is also fulfilled by the Act.
The infamous Nirbhaya Rape Case, in which a child inmate was convicted as per the JJ Act 2000 under the guise of being a juvenile. This decision drew a lot of criticism, and it was questioned why the age of 18 was used as a criterion for adulthood. And it was against this backdrop that the Juvenile Justice (Care and Protection of Children) Act of 2015 was enacted, allowing juveniles who had broken the law between the ages of 16 and 18 to be tried as adults for severe offences.
Even though juvenile misbehaviour is not new in India, the rate of crime is not decreasing, prompting major concern. According to the NCRB data for 2019, the number of juvenile offences increased from 28677 in 2018 to 29287 in 2019. Even different data and audits presented by national and state agencies highlighted the lack of and ineffective laws in place (following the 2015 amendment) to monitor the working of Child Care Institutions.
In 2020, the National Commission for the Protection of Child Rights (NCPCR) examined Child Care Institutions and discovered that 90% of them were run by non-governmental organizations (NGOs) and that more than 39% of CCIs were not registered. According to the research, these home cares placed a higher premium on obtaining finances than on the rehabilitation of children. As a result, the law was submitted to put in place measures to improve child protection forums.
Objectives of the Bill
The Bill has the following objectives:
- It aims to improve child protection at the district level by allowing District Magistrates, including Additional District Magistrates, to efficiently coordinate and supervise the responsibilities of numerous agencies charged with enforcing the Juvenile Justice Act’s requirements;
- Further, it aims to give the District Magistrates, including Additional District Magistrates, the jurisdiction to issue adoption orders in order to resolve adoption delays, and to suggest that appeals of adoption orders be sent to the Divisional Commissioner;
- It seeks to improve the Child Welfare Committee by including provisions relating to educational credentials for members and specifying eligibility criteria for committee membership;
- It proposed to categorise those offences wherein maximum sentence is more than 7 years of imprisonment but no minimum sentence, or a minimum sentence of less than 7 years has been provided as “serious offences” under the Juvenile Justice Act; and
- To resolve issues with the Juvenile Justice Act’s interpretation.
Salient features of the Bill
Expansion of definition of child in need of care and protection
Under the modified law, children who are victims of human trafficking, drug abuse, or who have been abandoned by their guardians will be included in the term “child in need of care” and protection.
A new definition of serious offences
A serious offence, according to Section 2(54) of the JJ Act, is one for which the required punishment is between 3 and 7 years. The Juvenile Justice Board shall address such offences by following the procedure for trial in summons proceedings set out in the CrPC.
The Supreme Court held in Shilpa Mittal v. State of NCT of Delhi (2020) that the Juvenile Justice Act does not deal with the fourth category of offences, namely those with a maximum sentence of more than seven years but no minimum sentence or a minimum sentence of less than seven years, and that they are treated as “serious offences” under the Act. It had directed the Law Ministry and the Home Ministry to ensure that the issue of the 4th Category of Offenses raised in this ruling is addressed by Parliament as soon as practicable.
To give effect to the aforementioned advice, the Bill seeks to redefine the term “serious offences” to encompass offences that are punishable by:
- minimum imprisonment for a term of 3-7 years;
- maximum imprisonment for a term of more than 7 years but no minimum imprisonment or minimum imprisonment of less than 7 years.
Classification of offences
The Bill proposes to change Section 86 of the JJ Act 2015 to make non-cognizable and non-bailable offences punished by three to seven years in jail. (At the moment, such offences are both cognizable (meaning they can be arrested without a warrant) and non-bailable.)
In addition, the Bill proposes that, notwithstanding anything in the Code of Criminal Procedure (CrPC), the Protection of Children from Sexual Offences Act, 2012 (POCSO), or the Commission for Protection of Child Rights Act, 2005, offences under the JJ Act shall be triable by the Children’s Court. The Children’s Court is currently only equipped to hear cases involving crimes that carry a sentence of more than seven years in prison. Other offences (with a maximum sentence of less than seven years in jail) are tried by a Judicial Magistrate.
Provisions relating to adoption
The provisions related to adoption in the JJ Act 2015 are also proposed to be amended by the Bill. Section 58 and Section 59 of the Act majorly deals with adoption-related procedures. While Section 58 discusses the Procedure for adoption by Indian prospective adoptive parents intra-country, Section 59 covers the inter-country adoption procedures. Section 60 of the JJ Act 2015 allowed a relative living abroad to adopt a child from their relative in India.
The Civil Court must give its seal of approval before the final adoption order may be issued. In both intra-country and inter-country adoptions, the Bill specifies that the District Magistrate (including the Additional District Magistrate) will issue such adoption orders instead of the court.
In the Statement of Objects and the Reasons of the Bill, it is claimed that the Bill proposes that appeals on adoption orders be directed to the Divisional Commissioner, which will help to address concerns of adoption delay.
Amendment in the provision relating to appeals
Section 101 of the JJ Act 2015 deals with the provision relating to appeals. There shall be no appeal for any order made by a Child Welfare Committee (under Section 27 of the JJ Act 2015) finding that a person is not a child in need of care and protection (defined under Section 2(14) of the JJ Act 2015), according to Section 101(3)(b) of the JJ Act. This provision is proposed to be removed by the bill from the JJ Act 2015.
Subsections 6 and 7 of the Act’s Section 101 are also proposed to be included in the Act. The proposed regulations stipulate that anyone who is aggrieved by a District Magistrate’s adoption order has 30 days to submit an appeal with the Divisional Commissioner. It will be attempted to resolve such appeals within four weeks.
Child Welfare Committees (CWC)
The Bill aims to strengthen Child Welfare Committees (CWCs) by including provisions relating to educational credentials for committee members as well as defining eligibility criteria for committee selection.
Currently, Section 27 of the Act mandates that each district establish one or more CWCs to deal with children in need of care and protection. CWC members must be either:
- A practising professional with a degree in child psychology, psychiatry, law, or social work for at least 7 years, or
- A practising professional with a degree in child psychology, psychiatry, law, or social work.
The Bill proposes to establish a sub-section (4A) to Section 27 to specify additional criteria for CWC member appointments.
It states that no person shall be eligible for selection as a member of the CWC if he:
- Has a history of violating human or child rights;
- Has been found guilty involving moral turpitude, and such conviction has not been reversed or granted full pardon in respect of such crime, or
- Has been removed or dismissed from service with the Government of India or a State Government or any of its corporations or undertaking owned or controlled by the Government.
- Has ever indulged in any practice of child abuse or employed child labour or committed any immoral act or any other sort of violation of human rights.
- Is already a part of the management of a child care institution in a District.
Additional functions of the District Magistrate
The Bill proposes to give the District Magistrate, including the Additional District Magistrate, the authority to effectively coordinate and monitor the duties of the numerous agencies in charge of enforcing the principal Act’s requirements.
They have been given the authority to:
- Supervise the District Child Protection Units and Special Juvenile Protection Units
- Conduct a quarterly evaluation of the Child Welfare Committee and Juvenile Justice Boards’ operations and functionings.
Concerns over the Bill
- The Bill places the whole responsibility for children’s welfare on District Magistrates, despite the fact that DMs are already overburdened with the responsibility for the entire district as well as other responsibilities. The Ministry should consider giving them appropriate help to ensure that this critical problem does not get lost in the shuffle of their daily tasks.
- Centralizing all authorities related to children’s rehabilitation in one authority (DMs) may cause delays and have broader consequences for child welfare.
- The executive has been given the power of grievance redress under the Act, which was previously held by the courts. It aims to eliminate the function of judges, who are experts in dealing with the complexities of the law. This has major ramifications for the separation of powers doctrine.
Though the measure appears revolutionary on paper, its impact will be determined by how it is implemented in the real world. The amendment aims to increase the protection of children, including those who require legal protection and those who are in conflict with the law, as well as speed the adoption process, indicating that the juvenile justice system has a bright future. It appears to be a positive bill that promotes transparency and accountability in the best interests of children. The long-standing failure to enforce juvenile legislation has resulted in an increase in minor crimes, the failure of minor agencies, protracted adoption procedures, corruption, and other issues. The latest amendment is a much-needed step that has been hailed by many, but it will not produce results until officials, particularly District Magistrates, are properly trained and monitored, and the requirements are implemented.
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