LEAVE OF ABSENCE” TO JUVENILES IN COVID-19 TIMES

A salutary and laudable order of April, 3 in a Suo Moto Writ petition, initiated by the Supreme Court itself pro bono, and decided on the same day, “In Re Contagion of COVID-19 Virus in Children Protection Homes”, decided by video conferencing must be highly valued. The Supreme Court passed a slew of directions to prevent the spread of COVID-19 virus in Child Care Institutions (CCI) all over the country. Consequently, all Child Welfares Committees (CWC), Juvenile Justice Boards (JJB), CCI and all State Governments have been put under a mandate, that children in conflict with law in observation, special and children homes, as also in foster and kinship care, should be adequately protected from the intensifying COVID-19 pandemic. As an immediate noteworthy valued consequence, Justice Jaswant Singh headed Juvenile Justice Monitoring Committee of Punjab and Haryana High Court, reportedly sent 25 Juveniles to their families from child care homes in UT ,Chandigarh,  by granting them   “leave of absence” .

The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) provides an exhaustive machinery, procedure and mechanism to deal with children in conflict with law and for  children in need of care and protection. JJBs and CWCs oversee the implementation. The JJ Act, mandates that a child in conflict with law if apprehended or detained, shall be released on bail. There are three exceptions to this rule i.e. there appears to be reasonable grounds that the child to be released is likely to be in association with any known criminal or expose the child to moral, physical or physiological danger or the child's release will defeat the ends of justice. The gravity or the seriousness of the offence is not a ground to deny bail to the juvenile, who in the first place is apprehended or detained, and cannot be arrested. Bail, therefore, is the rule as directed by the Supreme Court and followed by all High Courts as a settled precedent. Children are not jailed, but bailed.

Depending on the nature of the offence, a child in conflict with law can be punished for a petty, serious or heinous offence, for which the punishment varies under the JJ Act. The process of coming to this conclusion is taken by the JJB, except when a conscious decision is taken under the JJ Act for the case to be decided by a Children’s Court (CC). The JJ Act provides that if a child in conflict with law has committed a punishable offence, the detention of such child shall be in a special home for such period not exceeding three years.

There is another category of children governed by the JJ Act. These are orphan, abandoned or surrendered children, whose parentage is unknown and who by a process of rehabilitation and social re-integration, are kept in special homes or in foster and kinship care, and to be ultimately given in adoption. The JJ Act, has a statutory authority namely Central Adoption Resource Agency (CARA), which under the Adoption Regulation, 2017, provides a detailed procedure for this process of intra and inter-country adoptions. The JJ Act, has also provided the JJ Model Rules, 2016, with liberty to State Governments to frame separate rules, in conformity with these rules. Till such children mould in the mainstream, they are in special homes.

The very scheme of the JJ Act, contemplates that children in conflict with law shall not be placed in police lockup or lodged in a jail. Whenever detained, children in conflict with law are kept in observation, special or children’s homes, which are registered CCIs run by the State Government or by recognized NGOs. Likewise, children in need of care and protection in foster care, are lodged in registered children’s homes or with specialized adoption agencies, till they are rehabilitated. The JJ Act provides for special, observation and children’s homes, besides places of safety for keeping such children. It may be noted that children in conflict with law and children in need of care and protection ,are kept in such separate homes, but are not kept together. They are segregated and kept apart in independent premises.

The Supreme Court Order now directs CWCs to decide in the best interest, health and safety concern, whether the children should be kept in CCIs or be at home.Wherever children in conflict with law are in observation homes, the JJB/CC shall now consider releasing them on bail under the JJ Act. The Supreme Court has directed video conferencing or online sittings for speedy disposal and to avoid contact. The Supreme Court adds that to consider that “sexual violence may be exacerbated in contexts of anxiety and stress produced by lockdown and fear of the disease, JJBs will need to monitor the situation in the observation homes on a regular basis.”  Likewise, all State Government have been directed to pre-empt emergency and disaster situations with regard to children in State care.

All CCIs have been directed to practice social distancing, clean and disinfect rigorously ,besides  “pro-actively and diligently take all necessary steps to keep the children safe from the risk of harm arising out of COVID-19” and ensure that no “staff or other individual found to be exhibiting symptoms of COVID-19 be permitted to enter the CCI.” The Supreme Court Judgment has been transmitted to every State/ Union Territory with a direction that its translated version in local languages be sent to all CWCs and CCIs, besides Registrar Generals of all High Courts for further transmission to Magistrates presiding over JJBs and to Judges of CCs. It is now an independent initiative of every High Court and State Government to effectively implement the Supreme Court directives for the welfare of marginalized children and other juveniles in conflict with law. An independent child rights jurisprudence is already in place. The well-oiled and effective machinery has been put in motion. Unprotected children are the most vulnerable sections of society. The omnibus order of the Apex Court was a brilliant independent initiative. The array of commands could not have been more timely. Ordinarily ,such unique comprehensive directions may have resulted after years of protracted hearings. The Supreme Court as a harbinger of human rights, has come forth to the rescue of special children, who are a class apart under the JJ Act. The lead shown by the Punjab and Haryana High Court in invoking theJJ Act “leave of absence” provision of children placed in  CCI shows the true import in letter and spirit implementation of the beneficial verdict of the top Court. Children wherever they are ,cannot wait to be protected. Without any further ado, all others States and Courts ought to follow suit. The path is well laid out. Let us tread on it. Children at risk, wherever they are, whoever they may be, whatever they be, should not suffer or be put to risk. They must be kept away from the ill-effects of the pandemic COVID-19.  They must live for a better future. No delay can be pardoned.