Critical Analysis: Juvenile Justice (Care and Protection of Children) Act 2015

Abstract

The Juvenile Justice (Care and Protection of Children) Act 2015[1] was passed by the Parliament of India amidst intense controversy, prolonged debates and street protests by child rights groups, as well as some members of Parliament. This legislative note gives an overview of the background and processes that led to the passing of this Act. It discusses the positive provisions in the Act, like change in nomenclatures to remove negative connotations, the inclusion of several new definitions such as orphaned, abandoned and surrendered children, setting timelines for an inquiry by the Juvenile Justice Board, streamlining procedures for adoption, the inclusion of new offences committed against children and mandatory registration of Child Care Institutions. It discusses the controversial provision of “transferring” children between 16 and 18 years accused of “heinous offences” to the adult criminal justice system. It gives recommendations for law reform and better implementation of the law.

Definition of Juvenile[2]

The Children Act 1960 introduced the sex-based definition of the child in the realm of juvenile justice in India for the first time. 16 years was considered to be the right cut-off age for the purpose of juvenile justice in the light of what had been done in other countries.

In that act Section, 2 of the act says “child” means a boy who has not attained the age 16years or a girl who has not attained the age of 18 years. In this act, there are two categories of children. Neglected children and delinquent children have been included. According to JJ 1986, the word “child’ is not defined but instead the word “juvenile” is used.

“Juvenile” means a boy who has not attained the age of or a girl who has not attained the age of 18years. The definition of “juvenile” given herein verbatim the same what has been given for a child in the Children Act 1960. But the Dictionary meaning of the juvenile is a person physiologically immature or underdeveloped characteristic of children.

The Juvenile Justice (Care and Protection of Children) Act 2015 adopted a similar sex-based definition of a juvenile without further explanation. The JJ (C&P) Act 2000 has modified the age to 18, not because of such perceived unconstitutionality in the definition but to bring it in accordance with the definition of the child in the UN Convention on the Rights of the child. Now the new Act so-called Juvenile Justice (Care and Protection of Children) Act 2015 it replaced the old Act

About Juvenile Justice Act[3]

Juvenile Justice (Care and Protection of Children) Act 2015 has come into force and repeals the Juvenile Justice (Care and Protection of Children) Act, 2000. Juvenile Justice (Care and Protection of Children) Act 2015 was passed by Lok Sabha on 7th May 2015; was passed by Rajya Sabha on 22nd December 2015 and received Presidential assent on 31st December 2015.

Juvenile Justice (Care and Protection of Children) Act 2015 provides for strengthened provisions for both children in need of care and protection and children in conflict with law. Some of the key provisions include: change in nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, across the Act to remove the negative connotation associated with the word “juvenile”;  inclusion of several new definitions such as orphaned, abandoned and surrendered children; and petty, serious and heinous offences committed by children;  clarity in powers, function and responsibilities of Juvenile Justice Board (JJB) and Child Welfare Committee (CWC); clear timelines for an inquiry by Juvenile Justice Board (JJB); special provisions for heinous offences committed by children above the age of sixteen years; a separate new chapter on Adoption to streamline adoption of orphan, abandoned and surrendered children; inclusion of new offences committed against children; and mandatory registration of Child Care Institutions.

Under Section 15, special provisions have been made to tackle child offenders committing heinous offences in the age group of 16-18 years. The Juvenile Justice Board is given the option to transfer cases of heinous offences by such children to a Children’s Court (Court of Session) after conducting the preliminary assessment. The provisions provide for placing children in a ‘place of safety’ both during and after the trial till they attain the age of 21 years after which an evaluation of the child shall be conducted by the Children’s Court. After the evaluation, the child is either released on probation and if the child is not reformed then the child will be sent to jail for the remaining term. The law will act as a deterrent for child offenders committing heinous offences such as rape and murder and will protect the rights of the victim.

To streamline adoption procedures for an orphan, abandoned and surrendered children, the existing Central Adoption Resource Authority [4](CARA) is given the status of a statutory body to enable it to perform its function more effectively.  A separate chapter (VIII) on Adoption provides for detailed provisions relating to adoption and punishments for not complying with the laid down procedure. Processes have been streamlined with timelines for both in-country and inter-country adoption including declaring a child legally free for adoption

The frightful incident of Nirbhaya rape case raised many debates and many prime issues among these were the involvement of the juvenile perpetrator, who was only six months short of becoming an adult . This attracts the law of Juvenile Justice (care and protection act, 2000) and the culprit was sentenced by the court only for three- year confinement. Against this decision of Apex Court, several protests were made, which demanded amendment in the existing Juvenile Justice Law.

The Juvenile Justice law in the country has been heavily debated in the aftermath of the Nirbhaya rape case leading to even  a change in the law as per which children between the ages of 16-18 can now be tried as adults for heinous crimes

Features of Juvenile Justice Act

1 .Definition of ‘child in need of care and protection’ expanded- The definition as per the new Act now also includes a child who is found working in contravention of labor laws, at imminent risk of marriage before attaining the lawful age for the same or who resides with such a person who has or had threatened to injure, exploit, abuse or neglect the child or violate any other law or whose parents or guardians are unfit to take care of him.

2..CWC is no longer the final authority in cases of children in need of care and protection- The District Magistrate (hereinafter, the DM) shall be the grievance redressal authority for the CWC and anybody connected with the child may file a petition before the DM, who shall consider and pass appropriate orders.

3. Procedure for inquiry- The CWC shall now conduct an inquiry of any child produced before it, as opposed to children for whom production reports are received. The procedure now includes orphaned and surrendered children as well.

 4. An extensive definition of ‘adoption’ provided- an extensive definition of adoption has now been provided and child’s rights have been recognized.

The need of new Juvenile Justice Enactment Act of 2015

The Articles 15(3), 39 (e) and (f), 45 and 47 of the Constitution of India confer powers and impose duties on the State to ensure that all the needs of the children are met and their basic rights are fully protected. SUMMARY CRIMINAL LAW JJ ACT 2015 4/20, It was the need of the time to re-enact the Juvenile Justice Act, 2000 taking into consideration various international conventions.

The concept of the juvenile in India, until the passing of Children Act, 1960; there was no uniformity regarding age limitation of a juvenile delinquent. Bombay Children Act 1948, Haryana Children Act defined “Child” to mean a boy who has not attained the age of sixteen years or girl who has not attained the age of eighteen years. The U.P. Children Act and The East Punjab Act, Andhra Pradesh (Telangana Area) Children Act defined “Child” as a person under the age of sixteen years. Under the A.P. Children Act, 1920 “child” means a person under 14 years.

The Saurashtra & West Bengal defines a ‘child” a person who has not attained the age of eighteen years. Juvenile Justice Act, 1986 defined a juvenile or child to be a person who in case of a boy has not completed the age of 16 years and in case of a girl 18 years of age. The JJ Act, 1986 was repealed by 2000 Act and the distinction with regard to age between male and female juveniles has been done away with by the Government of India in performance of its obligation to the international obligations. Now the age of juvenile in conflict with the law for male and female has been fixed at 18 years.

Juvenile Delinquency[5]       

Juvenile delinquency is one of the most important problems which has attracted the attention of scholars. It exhibits a specific pattern of behaviour. It involves wrongdoing by a child or a young person who is under the age limit specified by law.

As per section 2(k) of the juvenile justice (care and protection of children act 2000), juvenile or child means a person who has not completed eighteenth year of age. ‘juvenile’ in conflict with the law means a juvenile who is alleged to have committed an offence. A juvenile in conflict with law is called a juvenile delinquent.

A delinquent is a person under age who is guilty of anti-social and whose misconduct is an infraction of the law. To a psychologist, any and every child, either sex, between the ages of 15 and 18, who commits a crime, whether apprehended or not, is a juvenile delinquent.

A juvenile delinquent is a person of 15 and 18 years who breaks the law, is vagrant, persists in disobeying orders whose behaviour endangers his moral life as well as others moral life. Delinquency is a type of abnormality which may not be regarded as criminal behaviour. Juvenile delinquency is a type of behaviour of children which is injurious to society and therefore is prohibited

Causes of Juvenile Delinquency – Factors leading to delinquency

There are various opinions expressed regarding causation of delinquency, explanation of delinquency in terms of slum living, broken homes, films or moral deprivation, etc. are failed to provide us with a comprehensive picture about the juvenile delinquency.

There are various factors involved in the causation of delinquency;

•  Bad company.
• Mental conflicts
• Adolescent instability
• Poor recreation
•  Social suggestibility
•  Emotional conflicts.
• Physical condition.
• Motion pictures.

Social causes consist of undesirable conditions at home particularly quarrels between parents, intoxication, the immorality of the parents, poverty and lack of employment, the cruelty of step-parent.

Historical origin and evolution of Juvenile Justice [6] system in India

Long ago, somewhere, sometime in the history the voice of the great Abraham Lincoln echoed” “A child is a person who is going to carry on what you have started. He is going to sit where you are sitting, and when you are gone, attend to those things you think are important. You may adopt all the policies you please, but how they are carried out depends on him. He is going to move in and take over your churches, schools, universities and corporations, The fate of humanity is in his hands”.[7]

The Problem of Juvenile delinquency [8]is not a product of the modern world of 21 st century as shown by historical evidence that it occurs in all societies simple as well as complex, that is wherever a human relationship is affected between a group of individuals leading to maladjustments and conflicts. In developing countries that form the third world the problem of juvenile delinquency is very serious.

With reference to India, the share of INDIAN PENAL CODE crimes committed by juveniles to total IPC crimes reported in the country during 2003-2005 remained static at 1.0% which marginally increased to 1.1% in 2006  and remained static in 2007. This share marginally increased to 1.2% in 2008 thereafter decreased to 1.1% in 2011 and 1.2% in 2012 and remained static at 1,2% in 2013. However, the juvenile crime rate has shown a mixed trend during 2003-2013 which proves that the shares of the crime committed by juveniles to total crimes reported in the country have also increased in the last three years.

Considering the gravity of the problem and issues involved, analysis indicates that the number of factors for neglect and delinquency are mostly common and correlated. Based on socio-economic and psychological reasons. Poverty, insufficient education, family tensions, emotional abuse, substance abuse, rural-urban migration, lack of strong social and moral; values and joint family system, atrocities and abuses by parents or guardians, degraded educational system, atrocities or abuses by parents or guardians, degraded educational system, the influence of media besides the unhealthy living condition of slums and such other conditions explain the phenomena of juvenile delinquency.

International stands on the Rights of Children

A ‘child’ is defined in the UN Convention on the Rights of the Child (CRC) [9]as a person under the age of 18. This includes infancy, early childhood, middle childhood and adolescents.

The UN convention [10]on the Rights of the Child , 1989 draws attention to four sets of civil, political, social , economic and cultural rights of the Child.

These are:

1.Right to Survival: Which includes the right to life, the highest attainable standard of health, nutrition and adequate standards of living. It also includes the right to name and a nationality.

2.Right to Protection: Which includes freedom from all forms of exploitation, abuse, inhuman or degrading treatment and neglect including the right to special protection in situations of emergency and armed conflicts.

3.Right to development: Which includes the right to education, support for early childhood development and care, social security and the right to leisure, recreation and cultural activities.

4.Right to Participation: Which includes respect for the views of child, freedom of expression, access to appropriate information, and freedom of thought, conscience and religion.

The convention provides the legal basis for initiating action to ensure the rights of children in Society.

Relevant articles from the UN Convention on the Rights of the Child [11]

Article 34:

State Parties undertake to protect the Child from all forms of sexual exploitation [12]and sexual abuse. For these purposes State Parties shall in Particular take all appropriate national, bilateral and multilateral measures to prevent:

a. The inducement or coercion of a child to engage in unlawful sexual activity.

b. The exploitative use of a children in prostitution or other unlawful sexual practices.

c. The exploitative use of a children in pornographic  performances an materials.

Article 35:

State Parties shall take all appropriate, national, bilateral and multilateral measures to prevent the abduction of. The sale or traffic[13] in children for any purpose or in any form.

Article 36:State Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the Child’s Welfare. Any child primarily on account of his dependence and vulnerability deserves to be looked after by the others. As a child, he needs support and care to survive since nature does not provide to the human infant any protection at all.

The need for survival and protection continues till the child attains maturity and adulthood. The Child is the nursery of all civilizations and human potential has to be provided with various institutional and non-institutional system of development which consists programs pertaining  to education, life skills, nutrition health shelter and most important the right to a childhood.

Article 40: of the U.N. Convention provides that a child who has been accused of having violated the penal law shall have the following guarantees to be presumed innocent until proven guilty according to law, to be informed promptly of the charges against him and to have legal or other appropriate assistance in the preparation of his defence, to have the matter determined without delay by a competent and impartial authority or judicial body not to be a  compelled to confess guilt and to examine the witness. Moreover, the State can establish a  minimum age below which children shall be presumed not to have the capacity to infringe the penal law.

Major problems identified with the Juvenile Justice Act of 2000[14]

1.No flexible procedure for sentencing,

2. This is a system in which the maximum amount of sentence served by a delinquent who says partakes in an armed robbery in order to feed himself is the same as the one given out to a serial rapists or murderer, just so long both are under eighteen years of age. This is the serious problem identifies with the act.

3. There is no logical or scientific reason which shows that total and complete rehabilitation can be achieved by a delinquent/offender/ child in conflict with the law within a maximum period of three years.

4. The act does mot deal with physical and psychological maturity of a Juvenile.

5.Provisions of Hague Convention on Protection of Children and Cooperation in Respect of Inter Country Adoption [15], 1993 failed to reflect in the act.

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

The Government even after facing strong oppositions and condemnation from various sections of the Society passed the Juvenile Justice act 2015, which will not allow children in the 16-18 years to be tried as adults if they commit heinous crimes. The bill which was pending in Parliament where the government despite lacking a majority, managed to get it passed. The amendments were prepared in the backdrop of public outcry over the Delhi gang-rape case of 2012 in which a juvenile accused received a  lighter punishment because of his age.

Apart from the hue and cry from society against the act, several members in Lok Sabha also opposed the controversial amendments that provide for treating juveniles between the age of 16-18 years on par with adults for crimes such as rape. It is necessary to understand that rehabilitation and not retribution should be the policy and therefore it is necessary to examine the provisions of the Act carefully to assess its possible impact on society.

Examination of the Act: Analysis of Notable Amendments[16]

• Any child that found committing any crime will now be sent for a  preliminary assessment for a period of three months, up from the earlier one month.

• Clarification is added that the preliminary assessment is not a trial, but to assess the child’s capacity to commit the crime.

• The Act will allow a Juvenile Justice Board, which would include psychologists and sociologists, to decide whether a Juvenile criminal in the age group of 16-18 years should e tried as an adult or not.

• A new clause on fair trial is added, under which the assessment will look into the special needs of the child, under the tenet of a fair trial under a child- friendly atmosphere.

• The Child will not suffer from any disqualification that arises from any conviction under the Act.

• The records of any conviction will be destroyed after the expiry period of the appeal except in the case of heinous crimes.

• Biological Parents giving up children for adoption will be given three months to rethink their decision instead of existing one month.

• This Act introduces foster care in India.

• The aftercare of the child in institutional care will not be restricted to only one time.

• Any child leaving institutional care can now receive financial support for more than one time.

• Disabled children  will be give precedence inter- state adoption.

• Abandoned Children, found by the childcare facilities will be kept for 60 days before being given up for adoption or foster care instead of existing b30 days.

• Any child who has been abandoned by biological parents due to unavoidable circumstances will not be considered to be willfully giving up the child.

• In acting on an appeal against an order passed against the child, the board will now take help of experienced psychologists and medical specialists.

• There will be now proper training of special juvenile unit in the police force.

Brief comparative analysis of Juvenile Criminal Law

France

France has three stages of criminal minor:

1. The infant who does not have his own perception of his acts yet does not commit any offence and consequently can’t be convicted.

2. Minor between 7/8 and 13 years old has its own discernment.No Criminal Punishment but the educative measure can be pronounced against him, since a 2002 law.

3. Minor between the 13 and 18  commit an offence, and punishment can be educational and criminal in special cases.

Canada

The YCJA (Youth Criminal Justice Act)  [17]governs the application of criminal and correctional law to those 12 years old or older, but younger than 18  at the time of committing the offence. Youth aged 14 to 17  may be tried and sentenced as adults under certain conditions as described later on in the act. Though all trials will take place in a youth court under the Youth Criminal Justice Act for certain offences and in certain circumstances, youth may receive an adult sentence.

Pakistan

Where a child under the age of fifteen years is arrested or detained for an offence, which is punishable with imprisonment of fewer than ten years if he was accused of commission of bailable offences. No child under the age of fifteen years shall be arrested under any of the laws dealing with preventive detention or under the provisions of chapter 8 of criminal procedure code. Provided that the child of fifteen years of age or above is arrested, the Court may refuse to grant bail if there are reasonable grounds to believe that such child is involved in an offence which in its opinion is serious, heinous, gruesome, brutal sensational in character or shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment for life. Despite the variance in specific issues across regions, some general comments can be made about the administration of juvenile justice While the majority of the countries have committed in a principle to a comprehensive juvenile justice system, with many having specific legislation for young offenders, there remains a lack of full implementation practice.

Constitutional provisions and safeguards for Children in India [18]

After Independence, the constitutional provisions have inspired the developments in the field of juvenile justice. Part 3 and Part 4 of the Constitution which deals with fundamental rights and Directive Principle of State Policy respectively contain some special provision with respect to children.

Article  15(3): Permits the State to make special Provisions   for Children and women

Article 23: Prohibits the traffic in human beings and forced labor

Article 24: Forbids the employment of children below the age of 14 years in factories, mines and other hazardous occupations.

Article 39 (e): Directs the state to safeguard the tender age of children from entering I to jobs unsuited  to their age and strength forced but economic necessity.

Article 39(f): Directs the state to secure facilities for the healthy development of children and to protect childhood and youth against exploitation and moral and material abandonment.

Article 45: Requires the state to provide free and compulsory education to all the children up to the age of 14 years.

Article 47: states it is the duty of the state to raise the level of nutrition and standard of living Parliament has enacted the 86th Constitutional amendment in 2002 and made Right to education as a fundamental Right.

Conclusion

For over a century, states have firmly believed on the notion threat the juvenile justice system as a weapon to protect the public by providing a system that responds to the Criminal acts of children who are maturing into adulthood. States recognize that children who commit crimes are different from adults: as a class, they are less blameworthy and they have a greater capacity for transformation. To respond to the differences, states have established a judicial system for juveniles and they have created a separate youth-based service delivery system that is provided to adults. It has seen that the countries with economies in transition have witnessed a dramatic rise in the delinquency rates. Most children and young people in conflict with the law have committed minor crimes barring some exceptions.

RECOMMENDATIONS:

• Implementation of the Juvenile Justice Act should be made heavily. Act without hands willing to implement it is ineffective and dangerous. Therefore, the Government should see that the act is properly implemented by the authorities.

• India should not have common Juvenile age for every crime. The System can be made on the lines of USA, UK and FRANCE  to categorize and divide the Juvenile Justice system into different age groups.

• Case of Juvenile should not be transferred to the adult court.

• Every Juvenile Justice board should work with local child welfare organizations to improve their effectiveness in providing abused and neglected children with safe shelters.

• Members of the Juvenile Justice Board  [19]should work with local child welfare organizations to improve their effectiveness in providing abused and neglected children with safe shelters.

• Possibility of creating Non-Judicial Juvenile Justice System should be examined.

• Ensuring and enhancing the quality of the process of the juvenile correctional services would bring about justice to juveniles in conflict with the laws.

• The age with reference to Juvenile should not be reduced at all, because it will have a far-fetching impact on the Criminal Justice System [20]in India which will detrimental to the growth of Justice and Equity.

REFERENCES:

• Bhattacharya S (2000) Juvenile Justice: An Indian Scenario, New Delhi Regency Publications

• Chowdhary R ( 2005)  Law relating to Juvenile Justice in India, Allahabad, Orient Publishing Company 3.R.V Kelkar, Criminal Procedure, Sixth Edition, Eastern Book Comp

Author: Akansh Sharma | Amity University, Chhattisgarh

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[1] Juvenile Justice ( Care and Protection of Children) Act , 2015 has been passed by Parliament Of India amidst intense controversy, debate and protest  on many of its provisions  by Child Rights fraternity.

[2] Juvenile basically means of, for or involving young people who are not yet adults.

[3] Juvenile justice ( Care and Protection of Children) Act 2015 has been passed by the Parliament of India .

[4] CARA is a statutory body of Ministry of Women & Child Development, Government of India.

[5] Juvenile delinquency: The habitual committing of Criminal acts or offences by a young person , especially ne below the age at which ordinary criminal  prosecution is possible.

[6] Juvenile Justice is the area of criminal law applicable to persons  not old enough to be  held responsible for criminal acts .In Most states  the age for criminal  culpability is set at 18 years.

[7]    Wrobleski.M.Henry(2000) an introduction to law enforcement and criminal justice, Thomson learning USA pp 540-541

[8] Juvenile delinquency: The habitual committing of Criminal acts or offences by a young person , especially ne below the age at which ordinary criminal  prosecution is possible.

[9] Children rights  are a subset  of human rights  with particular attention to the rights of special protection and care afforded to minors.

[10] The United Nations Convention on the rights of person with disabilities(UN CRPD) is an international human  rights treaty that affirms  all persons with disabilities must enjoy all human rights and fundamental freedoms.

[11] Rights are a legal, social, or ethnical principles of freedom or entitlement.

[12] In the form of child Pornography, Child Prostitution sale and trafficking of Children.

[13] Trafficking basically for the purpose of sexual exploitation.

[14] Juvenile Justice ( Care and Protection of Children) Act, 2000 . The act provides for a  special approach towards the prevention  and treatment of juvenile delinquency and provides a framework  for the protection, treatment and rehabilitation of children in the purview of juvenile justice system.

[15] International adoption is a adoption in which an individual  or couple becomes the legal and permanent parent of a child  who is a national  of a  different country.

[16] Amendments basically these are types of modifications in any pre-exiting laws.

[17] YCJA is a Canadian statute , which came into effect on April 1, 2003. It covers the prosecution of youths for criminal offences.

[18] Constitutional Provisions is a law that is written in the constitution itself and does not come from a law or statute.

[19]Juvenile Justice detained of a crime are bought before the Juvenile Board.

[20] Criminal Justice is the delivery of justice to those who have committed crimes.