Repeal of The Juvenile Justice (Care and Protection of Children) Act, 2000 and re-enactment of The Juvenile Justice (Care and Protection of Children) Bill, 2014.
The Juvenile Justice (Care and Protection of Children) Act, 2000, relating to juveniles/ children in conflict with law besides dealing with children in need of care and protection have been amended earlier twice in 2006 and 2011. The further demands for amendments to the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) (JJ Act) have been in the reckoning again in 2012.After the unfortunate Delhi Gang-rape case, the juvenile who was the prime accused was given the maximum three year tenure imprisonment in a correctional home under the JJ Act. A public outcry agitated a more stringent punishment for this principal offender. Moreover, violence witnessed against juveniles themselves, is also emerging as an alarming issue required to be redressed on priority by strengthening of existing provisions in a new enactment through introduction of new clauses in the fresh Act.
The Apex Court in a public interest litigation decided on March 28, 2014, in Dr. Subramanian Swamy and others versus Raju and others reported as JT 2014 (4) SC 328, refused to read down the provisions of Juvenile Justice Act, 2000, in order to account for the mental and intellectual competence of a juvenile offender and refused to interfere with the age of a juvenile accused, in cases where juveniles were found guilty of heinous crimes. It was held by the Court that the provisions of the Act are in compliance with the Constitutional directives and international conventions. The Court further directed that the classification of juveniles as a special class stood the test of Article 14 of the Constitution of India, and that it should restrict itself to the legitimacy and not the certainty of the law.
The Government of India is now contemplating amendments to the Act by repealing the existing JJ Act, 2000 and re-enacting a new JJ Act, 2014 for which a review committee has been constituted under the Ministry of Women and Child Development (WCD), Government of India.
The WCD Ministry had posted on its website a proposed draft of The Juvenile Justice (Care and Protection of Children) Bill, 2014 suggesting broad amendments and enacting fresh better provisions for the welfare of the children in the following areas needing urgent legislative action:
a) Increase in reported incidents of abuse of children in institutions, families and
communities;
b) Inadequate facilities, quality of care and rehabilitation measures in private and
Government run children Homes;
c) Delays in various processes under the JJ Act, such as decisions by Child Welfare Committees (CWCs) and Juvenile Justice Boards (JJBs) leading to high pendency of cases relating to juveniles;
d) Delay in inter country adoption process under Central Adoption Resource Agency (CARA);
e) Inadequate provisions to deal with offences against children;
f) Provisions related to juveniles in conflict with law, in the age group of 16 to 18 years etc.
g) The Draft JJ Act incorporates the principles of the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption (1993) which was absent in the original JJ Act, 2000.
The proposed JJ Bill, 2014 seeks to make the following provisions of law:
The JJ Bill, 2014 seeks to enact a law to consolidate and amend the law relating to children in need of care and protection by catering to their developmental needs through proper care, protection and treatment, and by adopting a child friendly approach in the adjudication and disposal of matters in the best interest of children and for their ultimate rehabilitation through processes provided, and institutions established, under the proposed new enactment.
The new JJ Bill, 2014 provides for application of the proposed Act in the following cases and matters:
(i) cases involving detention, prosecution or penalty of imprisonment;
(ii) matters or processes relating to apprehension, production before court, disposal orders and restoration, and
(iii) procedures and decisions related to adoption of children and rehabilitation and reintegration of children, in conflict with law or, as the case may be, in need of care and protection, under such other law.
It also defines an “abandoned child” as well as “aftercare”, unlike the present enactment. According to the draft, an “abandoned child” means a child deserted by his biological or adoptive parents or guardians, who has been declared as abandoned by the Committee after due inquiry. Further, “aftercare” means provision of support, financial or otherwise, to young adults, who have completed the age of eighteen years but have not completed the age of twenty-one years, and have left institutional care, to help them to join mainstream society.
The draft bill also provides for a definition for “best interest of Child”, “Central Adoption Resource Authority”, “Chief Medical Officer”, “child friendly”, “child legally free for adoption”, “open shelter”, “Child Welfare Officer”, “corporal punishment” and many others required for effective implementation of the proposed Act.
The word ‘juvenile’ is replaced with the word ‘child’ and the expression ‘juvenile in conflict with the law’ has been changed to ‘child in conflict with law’. The responsibility affixed on the ‘child’ differs to the extent that while the JJ Act, 2000 defines juveniles in conflict with law as the ‘accused’, the draft Bill ,2014 identifies a ‘child in conflict with law’ to be a child who is found by the Juvenile Justice Board to have actually committed an offence.
Chapter II is the most noteworthy characteristic of the proposed Bill which provides for “Fundamental Principles for Care, Protection, Rehabilitation and Justice for Children”. It incorporates internationally accepted principles of presumption of innocence, dignity and worth, participation, best interest, family responsibility, safety (no harm, no abuse, no neglect, no exploitation and no maltreatment), positive measures, non-stigmatizing semantics, non-waiver of rights, equality and non-discrimination, privacy and confidentiality, repatriation and restoration, fresh start, diversion and natural justice. Institutionalization as a measure of last resort is suggested if no other family based care option is possible or available.
The functions and responsibilities of the Juvenile Justice Board have also been defined clearly, keeping in mind the best interest of the child. Draft Section 10 defines the role of the custodian of child in conflict with law and draft Section 11 provides the conditions for bail of a child alleged to be in conflict of law.
Draft Section 14 provides for inquiry by the JJ Board into commission of specific offences by a child who has completed 16 years of age. The inquiry, for offences alleged to have been committed under sections 302, 326A, 376,376A or section 376D of the Indian Penal Code is provided to be committed within a month of the appearance of the child before the JJ Board.
With regard to the said specific offences, draft Section 19 bars capital punishment or life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of Indian Penal Code.
Under Section 17 of the draft Bill there is a provision for children in conflict with law who have attained 16 years of age who have committed an offence to be lodged in a Special Home, if the Board is satisfied that the offence is of serious nature or that the child’s conduct and behaviour has been such that it would not be in the child’s interest, or in the interest of other children housed in a special home, to send such child to the special home; or if the child is a habitual offender, or if the person is above eighteen years of age at the time of final orders; the JJ Board may order such child or person to be kept in a place of safety and in such manner as it thinks fit and the period of detention so ordered shall not exceed in any case the maximum period provided for under this Act.
Section 24 of the draft Bill includes provision with respect to a run-away child in conflict with law and Section 28 of the draft Bill provides for the functions and responsibilities of the Child Welfare Committee.
Draft Section 30 of the JJ Bill,2014 provides for mandatory reporting in case of a child found separated and non-compliance is declared as an offence under Section 32 of the draft Bill with an imprisonment up to 6 months, or fine of Rs. 10,000/- or both.
Section 30 of the draft Bill provides for the provisions for surrender of a child are clearly defines, providing for a surrender deed before the Committee. An entire draft Section 35 with regard to orders that can be passed regarding a child in need of care and protection has been added. This section provides for declaration of the child as being in need of care and protection and makes provision for restoration, placement, sponsorship, foster-care and draft Section 37 of the Bill provides for a declaration of child as legally free for adoption. However, under Section 36 of the draft Bill the committee is not empowered to pass adoption orders or resolve custodial matters in a marital dispute.
Under Section 41 of the draft Bill, a penalty for non- registration of institutions housing children is provided and a penalty for non-registration is provided by imposition of punishment of imprisonment for 1 year or a fine of 1 lakh rupees or both.
Under Section 42 of the draft Bill, the State Government is empowered to establish and maintain by itself or through voluntary or non-governmental organizations, as many “Open Shelters” as required.
Unlike the current JJ Act, 2000, Section 42 of the draft Bill provides for a detailed procedure to place the child under foster care, and empowers the State Government to make rules for defining procedure, criteria and manner for providing foster care services. Draft Section 45 of the Bill provides for the provision for after care of young adults leaving institutional care is also made, along with rehabilitation and re-integration services in institutions registered under the Act.
Chapter VIII of the draft Bill deals with Adoption. Section 58 of the draft Bill lays down special emphasis on inter-country adoptions. It states that all applications for adoption by prospective adoptive parents shall be filed before a Principal Magistrate of the concerned jurisdiction where the specialised and registered adoption agency is located. However, the proposed provision for adoption orders to be passed by the Principal Magistrate on the first date of hearing itself or within a period of two weeks, failing which it will be construed by the higher authority of the Principal Magistrate, “as dereliction of duty” does not seem to be practical, realistic and possible for actual implementation. Judicial proceedings have to be regulated by the Code of Civil Procedure and hence, no short circuit fast track procedure by passing rules of evidence etc., can be proposed in contravention of law.
Sections 67-69 of the draft Bill gives a detailed insight into the functioning of the Central Adoption Resource Authority (CARA) which has been made a statutory body vested with functions of in-country and inter-country adoptions besides issuing guidelines on adoption as also carrying out the functions under the Hague Convention on protection of children.
Defining other offences against children in Chapter IX of the draft Bill, Section 74 prohibits the media from disclosing the identity of children or propagating any such information which would lead to the same. All reports relating to the child are also provided to be treated as confidential under Section 100 of the draft Bill. Sections 75 and 76 of the draft Bill relates to punishment for cruelty to child has been prescribed, as also punishment for employment of child for begging. Corporal punishment and ragging is also made punishable under Sections 82 and 83 of the draft Bill. Under Sections 80 and 81 of the draft Bill provides for punitive measures for adoption without following the proper procedure, as well as sale or procurement of children for any purpose.
Hence, the draft Bill provides a comprehensive mechanism to deal with children in conflict with law as well as children who are in need care and protection. The issue of inter country adoption and the role of CARA has been simplified and made very comprehensive. The JJ Act, 2000 had been amended twice, in 2006 and 2011, but the amendments have never been these transparent or non cumbersome. The draft Bill, 2014 is an excellent comprehensive draft which is the need of the day. Rights of children of all categories need urgent attention, simplification and expeditious disposal. Any delay or insensitive handling of the rights of children must be remedied. The draft Bill is a positive step in that direction. The framers of the draft Bill have done well. The Ministry has invited comments over the draft Bill. It is hoped that positive suggestions will come from all concerned to help in making the proposed enactment a better law for the welfare of children and juveniles.
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