This Act came into force on January 15, 2016 replacing The Juvenile Justice (Care and Protection of Children) Act, 2000. The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter “the Act”) was enacted to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection and to adhere to the set of standards in the best interest of children, prescribed in The Convention on the Rights of the Child, adopted by the General Assembly of United Nations, to which the Government of India acceded on 11th December, 1992.
OBJECTIVE:
- To provide a framework for the care, protection, treatment, development and rehabilitation of children in need of care and protection.
- To protect the rights of children who are in conflict with the law and ensure that they are treated in a manner that is consistent with the principles of justice, dignity, and reformation.
- To promote the rehabilitation and social reintegration of children who are in conflict with the law and to prevent them from becoming repeat offenders.
- To establish specialized institutions and mechanisms for the care, protection, treatment, and rehabilitation of children in need of care and protection or who come in conflict with the law (Child Welfare Committees and Juvenile Justice)
Definitions:
This Act classifies Children into “children in conflict with law” & “children in need of care and protection”. The Act defines:
- “Child” a person who has not completed eighteen years of age;
- “Children in conflict with law” is defined as a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence;
- “Children in need of care and protection” is defined as a child who meets certain criteria, including being found without a home or means of subsistence, engaging in illegal labor, living on the streets or begging, residing with an abusive guardian, being at risk of drug abuse or trafficking, facing unconscionable exploitation, suffering from incurable diseases or disabilities, being a victim of armed conflict or natural disasters, or being at risk of early marriage.
Amendment:
The main reason behind amending the previous Act was increasing rapes and murders committed by children in the age group of 16-18. Especially The Nirbhaya gang rape case[i], although not directly related to the Juvenile Justice Act of 2015, this case brought attention to the issue of juvenile offenders in heinous crimes. One of the rapists in the Nirbhaya case, often said to be the most brutal of all, was a minor and sentenced under the Juvenile Justice Act then in force. The incident led to debates and discussions about the age of criminal responsibility in India, eventually leading to the amendment and enactment of the JJ Act, 2015.
Following the outrage, the Juvenile Justice Act was amended to enable the trial of accused aged 16-18 years as an adult if accused of “heinous crimes”. The decision to try the accused as an adult was taken by the Juvenile Justice Board (JJB), as per the JJ Act.
The amended Act says, “In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence.”[ii]
Juvenile Justice Board:[iii]
The Act provides for one or more Juvenile Justice Boards to be constituted in every district for exercising the powers and discharging its functions relating to children in conflict with law under this Act. The JJ Board consists of a Judicial magistrate of the first class, having at least 3 years of experience and two social workers of whom at least one should be a woman.
The social workers shall be actively involved in health, education, or welfare activities pertaining to children for at least seven years or a practicing professional with a degree in child psychology, psychiatry, sociology or law. The Board has the power to exercise territorial jurisdiction and to deal exclusively with all the proceedings under this Act, relating to children in conflict with law.
Child Welfare Committee:
The Act provides for one or more Child Welfare Committees to be constituted in every district which consists of One Chairperson and 4 other members of whom at least 1 should be woman and another, an expert on the matters concerning children.
The Committee must meet at least twenty days in a month and observe rules and procedures. A visit to an existing child care institution is considered a sitting, and a child in need of care and protection can be produced before an individual member. In the event of a difference of opinion, the opinion of the majority will prevail.
The Committee’s functions and responsibilities include taking cognizance of and receiving children, conducting inquiry, directing Child Welfare Officers or probation officers to conduct social investigation, directing placement of a child in foster care, ensuring care, protection, rehabilitation or restoration of children in need of care and protection, selecting registered institutions for placement, conducting at least two inspection visits per month of residential facilities, and certifying the execution of surrender deeds.
The Committee is responsible for restoring abandoned or lost children to their families, declaring them legally free for adoption, taking suo-moto cognizance of cases, taking action for rehabilitation of sexually abused children, dealing with cases referred by the Board, coordinating with the police, labor department, and other agencies involved in the care and protection of children, conducting an inquiry, accessing legal services for children, and other functions and responsibilities.[iv]
Procedure in Relation to Children in Conflict with Law:[v]
A child alleged to be in conflict with law must be placed under the charge of a special juvenile police unit or designated child welfare police officer within 24 hours of apprehending, without any loss of time.
Child alleged to have committed a bailable or non-bailable offence must be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person. When not released, the officer-in-charge of the police station must cause the person to be kept in an observation home until they can be brought before a Board.
The Board shall hold an inquiry in accordance with the provisions of the Act when a child alleged to be in conflict with law is produced before them. The inquiry must be completed within a period of four months from the date of first production of the child, unless the period is extended for a maximum period of two more months. A preliminary assessment in case of heinous offences under section 15 of the Act shall be disposed of by the Board within a period of three months. For serious or heinous offences, the Chief Judicial Magistrate or Chief Metropolitan Magistrate may grant further extension of time for completion of inquiry.
Place of Safety:
The Place of Safety is an institutional mechanism in the Juvenile Justice System that provides a safe place of stay for children in conflict with law who have committed a certain category of offence and are in a particular age group or for children whom it is perceived that any other existing residential arrangement will not be suitable for them or in their best interest.[vi]
The State Government must set up at least one place of safety in a State registered under section 41 to place a person or child accused of or convicted of committing a heinous offence. Each place of safety must have separate arrangements and facilities for stay of such children or persons during the process of inquiry and those convicted of committing an offence. The State Government may prescribe the types of places that can be designated as place of safety.[vii]
Child in Need of Care and Protection:[viii]
To ensure the well-being of these children, the Act establishes Child Welfare Committees (Hereinafter CWCs) in each district, as mandated in Section 27. These committees, as per Section 31, are responsible for the production of any child in need of care and protection before them within 24 hours, excluding the time necessary for the journey. Under Section 36, the CWCs are required to conduct inquiries to determine the best interests of the child and make appropriate orders for their care, protection, treatment, development, and rehabilitation.
The Act also provides for restoration and protection of a child, as mentioned in Section 37, which empowers the CWCs to restore the child to their parents, guardian, or fit person after verifying their credentials. Alternatively, the CWCs may place the child in a Children’s Home or suitable facility for their care and protection. Foster care options are addressed in Section 44, while Section 45 provides for sponsorship programs to support the education, vocational training, and rehabilitation of children in need of care and protection.
The Act aims to safeguard the rights of children in need of care and protection, ensuring their safety, well-being, and development within a legal framework that promotes their best interests.
ADOPTION:[ix]
This Act further deals with Adoption. It defines adoption as the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.[x]
The JJ Act, 2015 provides for adoption in both in-country as well as intra-country. It provides for procedures and safeguards to be followed before and after the Adoption of child.
Specialized Adoption Agencies:
The Act empowers State Government to recognize Specialized Adoption Agencies in each district, providing details of their services and certificates. The State Government must inspect every Specialized Adoption Agency annually and take remedial measures if required. If any Specialized Adoption Agency is in default in taking necessary steps for getting an orphan or abandoned or surrendered child legally free for adoption from the Committee or in completing the home study report of the prospective adoptive parents or in obtaining adoption order from the court within the stipulated time, they will be punishable with a fine of up to fifty thousand rupees and recognition of the agency may be withdrawn by the State Government.[xi]
Adoption of children residing in institutions not registered as adoption agencies.
Institutions registered under this Act, which may not be recognized as Specialized Adoption Agencies must ensure that all orphan or abandoned or surrendered children under their care are reported, produced and declared legally free for adoption by the Committee. They must also develop formal linkages with nearby Specialized Adoption Agency and provide details of the children declared legally free for adoption. If any institution contravenes these provisions, it is liable to a fine of fifty thousand rupees and de-recognition.[xii]
A State Adoption Resource Agency the State Government must set up to deal with adoptions and related matters in the State[xiii] whereas The Central Adoption Resource.
Agency established under any previous act shall be deemed to have been constituted as the Central Adoption Resource Authority (hereinafter CARA) under this Act.[xiv]
The Central Authority is responsible for promoting in-country adoptions and facilitating inter-State adoptions, regulating inter-country adoptions, drafting regulations on adoption and related matters, carrying out the functions of the Central Authority under the Hague Convention, and other functions as prescribed.
CASES:
1. Sampurna Behura v. Union of India & Ors[xv]
Sampurna Behura filed a writ petition against the Union of India and others. The case was heard in the Supreme Court of India. The petitioner, Sampurna Behura, had done her Masters in Sociology and was working with children in conflict with the law. The case dealt with the implementation of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Juvenile Justice (Care and Protection of Children) Act, 2015.
The Supreme Court held that the State needs to ensure that the JJ Act is implemented properly to cater to the needs of children in society. The court also suggested that Chief Justices of each High Court should consider establishing child-friendly courts and vulnerable witness courts.
2. Jhabua Murder Case[xvi]
The case took place in the Jhabua district of Madhya Pradesh in December 2016. The two minors, aged 16 and 17, allegedly stabbed the victim, Radhu Nana Palia, to death for a petty sum of Rs 500. The two accused were arrested and sent to a juvenile home. The trial was held in a sessions court in Jhabua. The prosecution argued that the two accused had committed a heinous crime and that they should be sentenced to life imprisonment. The defense argued that the two accused were minors and that they should be rehabilitated instead of being punished.
After hearing the arguments of both the prosecution and the defense, the court convicted the two accused and sentenced them to life imprisonment. This was a landmark decision as it was the first time that minors had been tried as adults under the amended Juvenile Justice Act.
The Jhabua murder case has sparked a debate about the age of criminal responsibility in India. Some people believe that the age of criminal responsibility should be lowered so that minors who commit heinous crimes can be punished more severely. Others believe that the age of criminal responsibility should be raised so that minors who commit crimes can be rehabilitated instead of being punished.
CONCLUSION:
In conclusion, the Juvenile Justice (Care and Protection of Children) Act, 2015 is a significant legislation in India that focuses on the care, protection, and rehabilitation of children in conflict with the law. The Act strikes a balance between the rights of the child and the need for justice and rehabilitation. It emphasizes a reformative approach for juvenile offenders while ensuring their protection and reintegration into society. The Act has been instrumental in addressing the challenges surrounding juvenile justice and promoting a child-centric approach within the legal system. It plays a crucial role in safeguarding the rights and well-being of children involved in the criminal justice system and serves as a foundation for their rehabilitation and future prospects.
It establishes Juvenile Justice Boards and Child Welfare Committees to handle cases related to children in conflict with the law. It also prioritizes the principle of diversion, aiming to prevent the unnecessary criminalization of children and promoting their reformation through various measures, including counseling, education, skill development, and community-based programs. The JJ Act, 2015 places a strong emphasis on the protection and rehabilitation of child victims and witnesses. It ensures their privacy, dignity, and safety throughout the legal process. The Act also prohibits the disclosure of the identity of the child in media or public domain.
[i] (2017) 6 SCC 1
[ii] https://www.outlookindia.com/national/how-laws-changed-after-nirbhaya-rape-case-have-amendments-deterred-crimes-against-women-news-245368
[iii] Juvenile Justice (Care & Protection) Act, 2015; Section 4
[iv] Juvenile Justice (Care & Protection) Act, 2015; Section 27-30
[v] Juvenile Justice (Care & Protection) Act, 2015; Chapter IV
[vi] Ministry of Women & Child Development; Living Conditions in Institutions for Children in Conflict with Law; pg 177; March 2017; https://wcd.nic.in/sites/default/files/Final%20Manual%2024%20April%202017_5.pdf
[vii] Juvenile Justice (Care & Protection) Act, 2015; Section 49
[viii] Juvenile Justice (Care & Protection) Act, 2015; Chapter VI
[ix] Juvenile Justice (Care & Protection) Act, 2015; Chapter VIII
[x] Juvenile Justice (Care & Protection) Act, 2015; Section 2(2)
[xi] Juvenile Justice (Care & Protection) Act, 2015; Section 65
[xii] Juvenile Justice (Care & Protection) Act, 2015; Section 66
[xiii] Juvenile Justice (Care & Protection) Act, 2015; Section 67
[xiv] Juvenile Justice (Care & Protection) Act, 2015; Section 68
[xv] Writ Petition (Civil) No. 473 of 2005
[xvi] Cr.A. No.1045/2007
Author: Abhishek Gupta, Senior Associate (assisted by Esha Sarda)
Disclaimer: The content of this article is intended to provide a general guide to the subject matter and that the same shall not be treated as legal advice. For any queries, the author can be reached at info@samistilegal.in
