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

INTRODUCTION

The frightful incident of Nirbhaya rape case raised many debates. And the prime issue among these was the involvement of the juvenile perpetrator, who was only six months short of becoming 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

The New Juvenile Justice (Care and Protection of children), 2015, has introduced some of the remarkable changes in the existing Juvenile Law

Major changes:

• Juvenile of age group of 16 to 18 are to be tried as an adult.
• the person who has attained the age of twenty-one while in sentence will be sent to the jail for rest of the time span.
• New offence and enhanced punishment
• The term juvenile almost abolished
• Separate chapter for adoption
• Change of definition function, process and institution set up
• Appeal against acquittal made applicable
• CHANGE IN NOMENCLATURE FROM JUVENILE TO CHILD OR CHILD IN CONFLICT WITH LAW.
• Including several definitions such as orphaned, abandoned, and surrendered children and petty, serious and heinous offence committed by child.
• Clear the power and function and responsibility of JJ BOARD & CHILD WELFARE COMMITTE.
• Clear timeline for inquiry by JJ BOARD
• MANDATORY REGISTRATION OF CHILD CARE INSTITUTION.

The Juvenile Justice (Care and Protection of Children) Act, 2015 has heralded a new era of juvenile justice in India by introducing the provision of transfer of 16-18 years old children alleged to have committed a heinous offence to an adult criminal court. The juvenile justice boards have been given the responsibilities of determining age, determining whether the offence is heinous, conducting a preliminary assessment, and then taking the decision whether to transfer or not to transfer the child to the children's court. The children's court, then is required to reassess if the child so transferred, should be tried as a child or as an adult..

The Juvenile Justice (Care and Protection of Children) Act 2015 has came in to force 15th January 2016 and repeals the The Juvenile Justice (Care and Protection of Children) Act 2000.

The act provides for strengthened provisions for both children in need of care and protection and children in conflict with law.

Salient Features of the Juvenile Justice Act 2015

• The preamble states that the Act is aimed at catering to their basic needs through proper care, protection , development, treatment, social re-integration , by adopting a child -friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation
• The JJ Act 2015 also deals with both categories of children.

Children in conflict with law

Children in need for care and protection

• The Act known as 'The Reformatory Act’ deals with two categories of children, namely children in need of care and protection and children in conflict with the law.
• The JJA, 2015 has introduced legislative classification of offences into three categories, namely, petty, serious and heinous. 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
• It treats all the children below 18 years equally, except that those in the age group of 16-18 can be tried as adults if they commit a heinous crime
• A child of 16-18 years age, who commits a lesser offence (a serious offence), may be tried as an adult if he is apprehended after the age of 21 years.
• Under new Juvenile Justice law, those in 16-18 age group will be examined by Juvenile Justice Board (JJB) to assess if crime was committed as child or adult.
• The Children's Court to Decide the aspect as to whether the child is to be tried as an adult if age group of child is 16-18 (committed heinous crime having minimum imprisonment of more than seven years ).or,
• who commits a serious offence, may be tried as an adult if he is apprehended after the age of 21 years.
• It mandates setting up of Juvenile Justice Boards (JJBs) in each district with a metropolitan magistrate and two social workers, including a woman. The JJBs will conduct a preliminary inquiry of a crime committed by a child within a specified time period and decides whether he should be sent to rehabilitation centre or sent to a children’s court to be tried as an adult. The board can take the help of psychologists and psycho-social workers and other experts to take the decision.
• A Children’s court is a special court set up under the Commissions for Protection of Child Rights Act, 2005, or a special court under the Protection of Children from Sexual Offences Act, 2012. In absence of such courts, a juvenile can be tried in a sessions court that has jurisdiction to try offences under the Act.
• Use of new terminology – alleged and found to be in conflict with law, instead of the term juvenile in conflict with law'

JUVENILE JUSTICE BOARD

Sec 4 makes it mandatory for State Governments to constitute JJBs in every district. The State Government shall, constitute for every district, one or more Juvenile Justice Boards for exercising the powers and discharging its functions relating to children in conflict with law under this Act.

CONSTITUTION OF JJ BOARD

A Board shall consist of a Principal Magistrate with at least three years' experience and two social workers.

CMM and CJMs cannot be appointed as Principal Magistrate of JJBs

The Magistrate should have at least three years' experience. The selection procedure for the appointment of social workers should be prescribed by the State Government and two social workers selected as may be prescribed, of whom at least one shall be a woman,

POWER OF JJ BOARD

The Boards is exercising the powers and discharging its functions relating to children in conflict with law under this Act. forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class.

Qualifications

Requirement of Magistrate to have special knowledge of child psychology/welfare has been dispensed with. -Inclusion of practicing professionals with a degree in child psychology, psychiatry, sociology or law as eligible to be appointed as Members of the JJB.

Eligibility for selection as member of the Board

No person shall be eligible for selection as a member of the Board, if he -

1. has any past record of violation of human rights or child rights;
2. has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or has not been granted full pardon in respect of such offence;
3. has been removed or dismissed from service of the Central Government or a State Government or an undertaking or corporation owned or controlled by the Central Government or a State Government;
4. has ever indulged in child abuse or employment of child labour or any other violation of human rights or immoral act

The State Governments have to ensure that the Principal Magistrate and Members are trained within 60 days of their appointment.

Termination of member of the JJB

Conviction of an offence involving moral turpitude is no longer a ground of removal. The removal process cannot be invoked against the Principal Magistrate.

Procedure etc. in relation to Board

JJBs have to ensure that the procedures are child-friendly and the Board doesn't resemble regular courts

A child in conflict with law may be produced before an individual member of the Board, when the Board is not in sitting

A Board may act notwithstanding the absence of any member of the Board, and no order passed by the Board shall be invalid by the reason only of the absence of any member during any stage of proceedings: Provided that there shall be atleast two members including the Principal Magistrate present at the time of final disposal of the case or in making an order under sub-section (3) of section 18.

In the event of any difference of opinion among the members of the Board in the interim or final disposal, the opinion of the majority shall prevail, but where there is no such majority, the opinion of the Principal Magistrate, shall prevail

Sec-8.provides Powers, functions and responsibilities of the Board

the Board constituted for any district shall have the power to deal exclusively with all the proceedings under this Act, relating to children in conflict with law, in the area of jurisdiction of such Board

The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Children's Court, when the proceedings come before them under section 19 or in appeal, revision or otherwise

Sub-section (3) details 13 functions of the JJB that include ensuring informed participation of the child, protection of rights throughout, legal aid, interpreters and translators.

They must direct the PO/CWO/SW to submit the SIR within 15 days from the date of the first production to ascertain circumstances in which the alleged offence was committed.

The JJB can transfer to the CWC matters concerning care and protection of a CICL. ICP for rehabilitation should be included in the final order along with follow-up by the PO/DCPU/NGO.

They must conduct at least one inspection a month of residential facilities for CICLS and recommend action for improvement of quality of services to DCPU and State Government.

They must also regularly inspect jails meant for adults to check if children are lodged and take immediate measures for transferring the child to the OH. They can also direct the police to register FIR for offences against CICL/ CINCP. These are far more substantive than the functions listed in Rule 10, JJ Model Rules

PROCEDURE IN RELATION TO CHILDREN IN CONFLICT WITH THE LAW

Apprehension of child alleged to be in conflict with law

As soon as a child alleged to be in conflict with law is apprehended by the police, such child shall be placed under the charge of the special juvenile police unit or the designated child welfare police officer, who shall produce the child before the Board without any loss of time but within a period of twenty-four hours of apprehending the child( excluding the time necessary for the journey)

Provided that in no case, a child alleged to be in conflict with law shall be placed in a police lockup or lodged in a jail.

The State Government shall make rules consistent with this Act,—

1. to provide for persons through whom (including registered voluntary or non-governmental organizations) any child alleged to be in conflict with law may be produced before the Board;
2. to provide for the manner in which the child alleged to be in conflict with law may be sent to an observation home or place of safety, as the case may be

Role of person in whose charge child in conflict with law is placed.

As per sec-11 of the Act any person in whose charge a child in conflict with law is placed, shall, have responsibility of the said child, as if the said person was the child's parent and responsible for the child's maintenance

Bail to a person who is apparently a child alleged to be in conflict with law.

Sec-12 of the Act provides

When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall

• 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
• Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.
• When such person having been apprehended is not released on bail under sub- section (1) by the officer in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.
• When such person is not released on bail by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.
• If the child is unable to fulfill the conditions of the bail order within seven days, he/she must be produced before the JJB for modification of the order

Information to parents, guardian or probation officer.

Sec-13 of the Act provided

Where a child alleged to be in conflict with law is apprehended, the designated which such child is brought, shall, as soon as possible after apprehending the child, inform -

1. the parent or guardian of such child, if they can be found, and direct them to be present at the Board before which the child is produced; and
2. the probation officer, or if no probation officer is available, a Child Welfare Officer, for preparation and submission within two weeks to the Board, a social investigation report containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board for making the inquiry.

Orders that may be passed by a JJB

Sec-15 provides that

These disposition alternatives are available in cases of all children found to have committed petty or serious offences and children below 16 years found to have committed a heinous offence. -The nature of the offence, need for supervision/ intervention, circumstances as brought out in the SIR and past conduct of the child have to be considered by the JJB

As per sec-18

• allow the child to go home after advice or admonition by following appropriate inquiry and counseling to such child and to his parents or the guardian
• direct the child to participate in group counseling and similar activities;
• order the child to perform community service under the supervision of an organization or institution, or a specified person, persons or group of persons identified by the Board;

Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated

• direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child's well-being for any period not exceeding three years;
• Reformative services including psychiatric support should be provided in the SH. -The child can be sent to a place of safety if the child's conduct is such that it would be against the child's interest or the interest of other children to keep her/him in the SH.

The JJB does not have the power to reduce the period of stay in the SH, as per Sec 15 (1) g) JJ Act 2000 Board may, in addition pass orders to

1. attend school; or
2. attend a vocational training centre; or
3. attend a therapeutic centre; or
4. prohibit the child from visiting, frequenting or appearing at a specified place; or
5. undergo a de-addiction programme.

Power of the JJB to transfer a child to the Children's Court

The JJB can transfer children to the Children's Court for their trial as adults based on the preliminary assessment having jurisdiction to try such offences.

Powers of Children's Court. (sec-19)

• The Children's Court can either try the child as an adult or conduct an inquiry and pass orders under Section 8(1 ) if it doesn't see the need for the trial as an adult.
• If it tries the child an adult, it should consider the special needs of the child, tenets of fair trial, and maintain a child friendly atmosphere.
• ICP should form part of Children's Courts final order and follow up by the DCPU/PO/SW should also be included.
• Child found to be in conflict with the law for having committed a heinous crime should be sent to a Place of Safety till he/she attains 21 years after which he/she will be transferred to jail.
• Reformative services should be provided to the child during the stay in the Place of Safety.
• The Children's Court should ensure periodic follow-up report every year by the DCPU/SW to evaluate the progress of the child and to ensure that no ill-treatment has been meted out to the child in any form

Order that may not be passed against a child in conflict with law (sec-21)

The proposed provision allows juveniles to be sentenced to imprisonment including life imprisonment. It prohibits the imposition of death penalty and life imprisonment without the possibility of release.

CHILD WELFARE COMMITTEE

Sec-27 provides

Setting up of CWC mandated to the State Government For each district

The State Government shall by notification in the Official Gazette constitute for every district, one or more Child Welfare Committees for exercising the powers and to discharge the duties conferred on such Committees in relation to children in need of care and protection under this Act and ensure that induction training and sensitisation of all members of the committee is provided within two months from the date of notification

Constitution of CWC

The Committee shall consist of a Chairperson, and four other members as the State Government may think fit to appoint, of whom at least one shall be a woman and another, an expert on the matters concerning children The District Child Protection Unit shall provide a Secretary and other staff that may be required for secretarial support to the Committee for its effective functioning.

Qualification

• No person shall be appointed as a member of the Committee unless such person has been actively involved in health, education or welfare activities pertaining to children for atleast seven years or is a practicing professional with a degree in child psychology or psychiatry or law or social work or sociology or human development.
• No person shall be appointed as a member unless he possesses such other qualifications as may be prescribed.
• No person shall be appointed for a period of more than three years as a member of the Committee.

Procedure, etc., in relation to Committee

SEC-28 provides

• The Committee shall meet at least twenty days in a month and shall observe such rules and procedures with regard to the transaction of business at its meetings, as may be prescribed.
• A visit to an existing child care institution by the Committee, to check its functioning And well being of children shall be considered as a sitting of the Committee.
• A child in need of care and protection may be produced before an individual member of the Committee for being placed in a Children's Home or fit person when the Committee is not in session.
• In the event of any difference of opinion among the members of the Committee at the time of taking any decision, the opinion of the majority shall prevail but where there is no such majority, the opinion of the Chairperson shall prevail.
• There shall be at least three members present at the time of final disposal of the case

Powers of Committee

As per Sec-29

• The Committee shall have the authority to dispose of cases for the care, protection, treatment, development and rehabilitation of children in need of care and protection, as well as to provide for their basic needs and protection.