JUVENILE JUSTICE ACT: THE OBJECT AND ACHIEVEMENT

 

JUVENILE JUSTICE ACT: The object AND achieveMENT

 

The Juvenile Justice Act was comprehensively enacted in the name of The Juvenile Justice (Care and Protection of Children) Act 2015 and periodically the provisions were amended with a view to reach out to the victim in effective way. The constitution, more particularly, Article 15(3) and Article 39 clause (e) & (f) as well as Article 45 and Article 47 contains power and stipulates duties on the authorities in this regard. It is emphasized therein that basic needs of children are met and the rights of children are protected. The same is also in sync with article 21 of Constitution of India relating to Right to Life and Personal Liberty. What is required to be noted further is that Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted earlier, but it was felt that a comprehensive provisions are required. In the backdrop of standards prescribed in the convention on the Rights of the Child and the United Nation Rules for the Protection of Children and Co-operation in respect of Inter country Adoption (1993) and such other International Instruments. 

Though the object as set out under the Act is laudable, still, the same has been achieved only partially. The India is a nation of youth and the children. The children, being the precursor of youth are also in vast numbers. The age group of children and adolescents shall inevitably be the backbone of tomorrow and therefore, adequate emphasis is required to ensure their welfare and gradual progression to maturity in a better environment, if not in an ideal environment. The vast majority of children who are in slums and are not blesses with prosperity are often victim of circumstances. No doubt, the welfare schemes existed and government of the days have worked hard for catering to this segment and law and legislation have also been enacted. However, the moot question shall be : is it adequate? Or how much is too much?

The provision of existing law and amendments in Juvenile Justice Act in the backdrop of above shall be anaylyzed. Unfortunately, the children are perceived as a commodity for sale despite the law and welfare measures in favour of the children.      

There is no denying that despite the progress made by the nation, since independence, the lot of children have not improved substantially.

The existing Act of 2015 is sought to be amended yet again and The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 was introduced in Lok Sabha on March 15, 2021 and is also stated to have been passed from Rajya Sabha.  The Bill amends the Juvenile Justice (Care and Protection of Children) Act, 2015.  The Statement of Objects and Reasons of the 2021 Bill inter alia states that adoption cases have witnessed significant delay in courts.  Further, it states that adoption cases are non-adversarial in nature and can be dealt through a well laid out process. 

THE PRELUDE TO JUVENILE JUSTICE ACT 2015

The Law Commission of India have made recommendation in 1993 inter alia seeking prohibition of sale of children and various high courts of India has emphasized the need for implementing the recommendation of Law Commission. However, there was no much headway in this regard for quite some time. The Juvenile Justice (Care & Protection of Children) Act 2000 was earlier enacted, but it was felt that with a view to give fillip to the prevailing situation, a comprehensive legislation prescribing various measures shall be necessary. The bill seeks to laid down a proscription to the prevailing situation. The Juvenile Justice (Care & Protection of Children) Act 2015 was enacted for catering to the prevailing situation, still, the amendment was felt necessary and therefore the 2021 Bill seeks to achieve that. The proposed amendment through 2021 Bill has however introduced some feature, which may not have helped the cause.

In any case, the Juvenile Justice (Care & Protection of Children) Act 2015 is amended and the same are likely to be notified as about to be notified as The Juvenile Justice (Care & Protection of Children) Act 2021. A “juvenile” as per the Act is a person less than 18 years of age.  We also know that the Juvenile Justice (Care and Protection of Children) Act, 2015 addresses children in conflict with law and children in need of care and protection.  India is a signatory to the United Nations Convention on the Rights of the Child, at Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption in 1993 and it is only natural that the Act may be seen as India's commitment to child rights. The India is obligated to initiate and take all appropriate measures to ensure the rights of children with regard to juvenile justice, care and protection, and adoption.

The offence against the children is defined and offences are made cognizable. As per Sec6tion 154 of the Criminal Procedure Code, the police is mandated to register F.I.R, if a cognizable offence is disclosed and investigation shall be the necessary corollary to that. Though, since then, progress is made but the contemplated amendment could well turn out that progressing by making one forward step may be hit and that may be akin to take a step back. The cognizable offences are investigated by the police and that is the mandate in law, however, the proposed amendment seeks to suggest that the offences hitherto, cognizable shall be non cognizable. Therefore, in the event complaint is reported, the victim is to approach courts of law i.e courts of Metropolitan Magistrate or Judicial Magistrate, as the case may be,  u/s 156(3) of Cr.P.C for seeking registration of F.I.R. What could have been achieved as a matter of course, shall now be subject to the orders passed by Magistrate. The courts in any case are overburdened with their respective roster and if such a case is also to flow on them, the delay shall be inevitable. Moreover, many children , their parents or organization supporting them may not be as resourceful and therefore, the proposed amendment needs a fresh look. The Juvenile Justice (Care & Protection of Children) Amendment Act 2021 deserves a relook. No doubt, there are also provision of free legal aid, but many does not have the wherewithal to approach for the legal aid. That apart, the delay owing to the pre-requisites of a direction from a courts of Magistrate may inevitably delay the process.

INFRASTRUCTURE and Lack of availability and limited capacity of institutions

The infrastructure and institutions set up under the Act are far from adequate.  The 2015 Act provides for setting up one or more Juvenile Justice Boards (JJBs) and Child Welfare Committees (CWCs) in every district.  The Standing Committee on Human Resource Development (2015) had noted that statutory bodies under the Juvenile Justice Act, 2000 including JJBs and CWCs were not present in many states. Moreover, several bodies existed only on paper, and were not functioning.  Further, populous districts which were likely to produce larger caseloads had inadequate CWCs.  

The National Legal Services Authority (2019) noted that only 17 of 35 states/Union Territories (UTs) had all basic structures and bodies required under the Act in place For example, states such as Assam, Bihar, and Haryana, did not have CWCs in all districts. The Standing Committee on Human Resource Development (2015) also noted that CWCs and JJBs lack authority to manage their financial and human resources and are dependent on the state or district administration.  Due to lack of infrastructure or specific funds, action taken by them was limited and delayed.  It recommended greater financial allocation, training and cadre-building for various bodies.  

Child-care institutions (CCIs): 

CCIs refer to institutions including open shelters and specialised adoption agencies, which provide care and protection to children in need of such services.  As of March 2020, there were 2,162 CCIs across India.  The Committee on review exercise of CCIs (2018) noted that many CCIs fail to provide even the basic amenities or services to the children including individual bedding, proper nutrition and diet.  The hon’ble Supreme Court has recently recommended that state governments should evaluate CCIs across India to ensure that minimum standards of care are being complied with.  The Committee also noted that despite registration being mandatory under the 2015 Act, only 32% of total CCIs across the country were registered.  Though the Supreme Court has already recommended that all children in CCIs be registered compulsorily and the same be verified and validated.  

Role of High Courts: 

The Supreme Court has also requested the Chief Justice of every High Court to register proceedings on its own motion to ensure effective implementation of the Act.  It was also suggested that Juvenile Justice Committees should be set up in every district and should comprise of High Court judges, who have a constitutional obligation to protect the fundamental rights of children.

The features of proposed amendment may be anlysed hereinafter:

        ISSUE OF ADOPTION & DELAY

The 2015 Act empowered Central Adoption Resource Authority (CARA) to regulate and promote adoptions in India.  In 2017, the Madhya Pradesh High Court noted that children declared legally free for adoption were not being given timely referrals by CARA.  The Court recommended that the Steering Committee of CARA may monitor and investigate the conduct of CARA.  Further, action must be taken against individuals responsible for the delay. 

 

The Juvenile Justice (Care and Protection of Children) Act, 2015 states that adoption of a child is final on the issuance of an adoption order by the civil court.  The 2021 Bill, however, provides that instead of the court, the District Magistrate (including Additional District Magistrate) will issue such adoption orders. The issue of adoption and its requisites entails law and the same has to stand judicial scrutiny and therefore delegating the power to executive authority may have inherent pitfalls. If the idea of early decision was the driving factor, then the same is contrary to the proposal that offence under the Act shall be non-cognizable and delay is inbuilt there and therefore expedition appears to be not the object.  The order of adoption may also hit roadblock, given the nature and act being judicial and ought to be passed by courts of law. 

Under the Act, once prospective adoptive parents accept a child, an adoption agency files an application in a civil court to obtain the adoption order.  The adoption order issued by the court establishes that the child belongs to the adoptive parents.  The Bill provides that instead of the court, the District Magistrate (including Additional District Magistrate) will perform these duties and issue all such orders. 

Appeals: The Bill provides that any person aggrieved by an adoption order passed by the District Magistrate may file an appeal before the Divisional Commissioner, within 30 days of such order.  Such appeals should be disposed within four weeks from the date of filing of the appeal.

The Act provides that there will be no appeal for any order made by a Child Welfare Committee concluding that a person is not a child in need of care and protection.  The Bill removes this provision.

Incidence of crime:

Under the Indian Penal Code, 1860 (IPC), the minimum age at which any person can be charged for a crime is seven years^.  The total number of children arrested year wise has shown a trend of significant increase in number. The Children in the 16-18 years’ age group account for majority of children arrested. More than half of the children were arrested for offences such as theft, causing hurt, burglary, and riots.  

Under the 2015 Act offences committed by juveniles are categorised as heinous offences, serious offences, and petty offences.  Serious offences include offences with Three (3) to Seven (7) years of imprisonment.  The present Bill adds that serious offences will also include offences for which maximum punishment is imprisonment of more than seven years, and minimum punishment is not prescribed or is less than seven years.    

Serious offences: The Act provides that the Juvenile Justice Board will inquire about a child who is accused of a serious offence.  Serious offences are those for which the punishment is imprisonment between three to seven years.  The Bill adds that serious offences will also include offences for which maximum punishment is imprisonment of more than seven years, and minimum punishment is not prescribed or is less than seven years.

Designated Court: The Act has designated court for trying juvenile cases.

The Act, hitherto, provided that offences against children that are punishable with imprisonment of more than seven years, will be tried in the Children’s Court (equivalent to a Sessions Court).  Other offences (punishable with imprisonment of less than seven years) will be tried by a Judicial Magistrate.  The Bill amends this to provide that all offences under the Act will be tried in the Children’s Court.  

Offences against children:

The Act earlier provided that an offence under the Act, which is punishable with imprisonment between three to seven years will be cognizable (where arrest is allowed without warrant) and non-bailable.  The present Bill, however, now provides that such offences will be non-cognizable and non-bailable.

Child Welfare Committees (CWCs): 

The Act provides that states must constitute one or more CWCs for each district for dealing with children in need of care and protection.  It provides certain criteria for the appointment of members to CWC.  For instance, a member should be:

(i)          involved in health, education, or welfare of children for at least seven years, or

(ii)        a practicing professional with a degree in child psychology, psychiatry, law, or social work.

The Bill adds certain criteria for a person to be ineligible to be a member of the CWC.  These include: (i) having any record of violation of human rights or child rights, or (ii) being a part of the management of a child care institution in a district.

The Juvenile Justice (Care and Protection of Children) Act, 2015 states that adoption of a child is final once a civil court issues an adoption order. The Bill seeks to amend this to provide for the District Magistrate (including the Additional District Magistrate) to issue such adoption orders instead.  Any person aggrieved by such an adoption order may file an appeal with the Divisional Commissioner.  

Lack of judicial scrutiny in adoption orders

Under the Act, adoption of a child is final once a court issues an adoption order.  With this, the child becomes the lawful child of his adoptive parents with all the rights, privileges, and responsibilities that are given to a biological child.  The Bill shifts the power to issue adoption orders from the court to the district magistrate (including the additional district magistrate).  The question is whether it is appropriate for an administrative authority to issue adoption orders instead of a judicial body. 

The SOR of the Bill states that adoption cases are non-adversarial in nature and can be dealt as per the process laid out.  Adoption of a child is a legal process which creates a permanent legal relationship between the child and adoptive parents.  When deciding on adoption, courts review documents, ensure necessary procedures have been complied with, and conduct an inquiry of the child and adoptive parents.  This helps ensure that due consideration is given to the wishes of the child, and the adoption is for the welfare of the child.  It may be argued that determining whether the adoption is in the best interests of the child requires judicial training and competence.  

Further, the Bill provides that any person aggrieved by an adoption order, may file an appeal before the Divisional Commissioner.  Thus, it does not provide for judicial overview even at the appeal stage as well.  District Magistrates and Divisional Commissioners are trained to be administrators and perform functions of the government.  They may not have the competence to issue adoption orders or hear appeals related to them.  Vesting of such core judicial functions with them may also raise concerns of separation of powers between the executive and the judiciary.  

Note that, since the Juvenile Justice (Care and Protection of Children) Act, 2000 (replaced by the 2015 Act) came into force, the power to issue adoption orders has rested with the courts. There are several countries such as United Kingdom, Germany, France, and several states in the United States of America, where adoption orders are issued only by the court. 

   

                           REMARK

From the broad canvas of above discussion what may emerge is that the proposed amendments as per 2021 Bill which may be notified in due course raises many questions that it seeks to answer. The fact that the several offences against the Act is made non- cognizable could be construed as a step back in as much as involving Magistracy for direction to register F.I.R under the proposed amendment shall be cumbersome and adding to the woes of overburdened Magistracy. Moreover, delay is inbuilt in it and hence, the victim is likely to suffer. Apart from that, even if legal aid could be made available to a child or victim, the fact remains that time shall be consumed and the same may be wrangled into procedural complicacies. The issue of adoption, on the other hand is a legal act and trained judicial prowess in pith and substance shall be necessary. In this backdrop, according the power on District Magistrate and even the Appellate Authority being an Executive body in this regard may be counter- productive. The procedure that adoption entails and the law is quite elaborate in this regard and therefore judicial pondering over the issue is a must. The proposed amendments therefore seeks to relegate many issue from the 2015 Act and the same are not desirable and should be done away with.

                                           Anil K Khaware

                                           Founder & Senior Associate

                                           Societylawandjustice.com