Human Rights under Juvenile Justice

Human Rights as defined in sec. 2 (i) (d) of THE PROTECTION OF HUMAN RIGHTS ACT 1993 is too narrow and technical as it lays down that, “ Human Rights means the right relating to, life, liberty, equality and dignity to individual guaranteed by the CONSTITUTION or embodied in the INTER NATIONAL COVENANTS and enforceable by courts in India”

It appears that enforceability by courts is made condition precedent for recognition of Human Rights under the Act.

Democracy in fact could not survive unless certain nominal rights, which are essential for a free and civilized existence, are assured to every member of the community including children.

Civilization as understood in the modern society is, “ Social order promoting cultured creation “ In other words we might say that “civilization in organization of life, which makes civil society to grow”. Such civil society is a necessary condition for corporate life, in which alone an individual can pursue fruitful and creative activities.

Prior to the Prevention of Human Rights Act 1993 “Human rights” are already stands protected substantially under the Indian Constitution as is evident from the language used in section 2(i)(d) of Human Rights Act 1993 and the Act made them enforceable only. Similarly in the matter of Juvenile Justice Act 1986, the children or Juveniles were dealt with under various CHILDREN ACTS prevailing in different forms in different STATES of the country. For the first time, the half hearted attempts was made by introducing a PARLIAMENTARY ACT to provide for the care, protection, treatment, development and rehabilitation of neglected and delinquent juveniles and for the adjudication of certain matters relating to, and disposition of delinquent juveniles as may be explained with the help of STATEMENT OF OBJECT AND REASONS of Act 56 of 1986 in the following words, “ A review of the working of the existing children Acts would indicate that much greater attention is required to be given to children who may be found in situation of social maladjustment , delinquency or neglect”

On 20^th November 1989 GENERAL ASSEMBLY OF UNITED NATIONS adopted the convention on the RIGHT OF THE CHILD where in a set of standards to be adhered to by all the STATE parties in securing the best interests of child, has been prescribed.

The convention emphasis’s social reintegration of the child victims to the extent possible, without resorting to judicial proceedings.

Thus it is clear enough from the statement of object and reasons that entire community of children not provided benefit of convention but only those children who are subject of social maladjustment, delinquency or neglect included for providing assistance under the Act.

The Government of India having ratified the convention on the 11^th December 1992 has found it expedient to re-enact the existing law relating to juveniles bearing in mind the standards prescribed in the convention on the RIGHTS OF CHILD which are no more to my mind are HUMAN RIGHTS at the inception of childhood, giving a foundation leading to a more reformed citizen of the country.

The Constitution of India empowered the STATE under Art. 15 (3), Art. 39 clause (e) and (f), Art. 45 and Art. 47 for making special provisions for woman and children to promote and ensure the better health, dignity including protection against exploitations. The verbatim recitation is as below :-

Art. 15(3) – “Nothing in this Article shall prevent the State from making any special provision for woman and children.”

Art. 39 (e) – “The State shall in particular direct its policy towards securing ---------“

(e) That the health and strength of workers man and woman, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter a vocations unsuited to their age or strength.

(f) The children are given opportunity and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Art. 45 – PROVISION FOR FREE AND COMPOLSORY EDUCATION FOR CHILDREN - The state shall endeavor to provide within a period of ten years from the commencement of this CONSTITUTION, for free and compulsory education for all children.

Art. 47 – DUTY OF THE STATE TO RAISE THE LEVEL OF NUTRITION AND STANDARD OF LIVING AND TO IMPROVE PUBLIC HEALTH. – THE state shall regard the raising of the level of nutrition and standard of living of its people and the improvement of public health as among its primary duties and in particular, the State shall endeavor to bring about prohibition of the consumption except for medical purposes of intoxicating drinks and of drugs, which are injurious to health or drugs which are injurious to health.

Prior to Juvenile Justice Act 1986 the children or Juveniles were dealt with under various CHILDREN ACTS enforced in different forms in different States of the country. For the first time, the half hearted attempt was made by introducing the PARLIAMENTARY ACT to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to, and disposition of, delinquent juveniles, as may be explained with the help of STATEMENT OF OBJECT AND REASONS in the following words: -

“A review of the working of the existing CHILDREN ACTS would indicate that much greater attention is required to be given to children who may be found in situation of social, maladjustment, delinquency or neglect.”

On 20^th November 1989 GENERAL ASSEMBLY OF THE UNITED NATIONS adopted the convention on the rights of the child where in a set of standards to be adhered to by all the State parties in securing the best interests of the child, has been prescribed.

The convention emphasis’s on social reintegration of the child victims to the extent possible, without resorting to judicial proceedings.

The recent enactment on the subject of Juvenile is JUVENILE JUSTICE (Care and Protection of Children) Act 2000, which deliberately omitted the word “delinquent” to identify the Juvenile offenders and in place used a phrase, “Juvenile in conflict with law” which gives an impression of lacking willful disobedience of existing statutory law and presumed to be compelled to indulge in conflict under circumstances beyond their control. The primary object of this enactment is to implement the prescribed set of standards with special emphasis on social reintegration of child victim in the extent possible without resorting to judicial proceedings. The Statement and object of this Act are given in the following words: -

“An Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment”

Whereas the Constitution has, in several provisions, including clause (3) of article 15, clause (e) and (f) of article 39, article 45 and 47, impose on the State a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected.

And whereas, the General Assembly of the United Nations has adopted the Convention on the Rights of the child on the 20^th November 1989.

And whereas, the convention on the rights of the child has prescribed a set of standards to be adhered to by all State parties in securing the best interest of the child.

And whereas, the Convention on the rights of the child emphasis social reintegration of child victims, to the extent possible, without resorting to judicial proceedings.

And whereas, the Government of India has ratified the Convention on the 11^th December 1992.

And whereas it is expedient to re-enact the existing law relating to juveniles bearing mind the standards prescribed in the Convention on the Rights of the child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985(the Beijing Rules), and all other relevant international instruments. Be it enacted by Parliament in the Fifty First year of the Republic of India as follows:-

The Act under section 2(k) defines ‘juvenile’ or ‘child’ as a person who has not completed eighteen years of age but is not made clear why the age of Juvenile enhanced from 16 years to 18 years particularly in the event of present environment where the age of adult franchise decreased from 21 to 18 in Article 326 by sixty-first CONSTITUTIONAL AMENDMENT in the year 1988.

Section 2(l) defines ‘juvenile in conflict with law’ as a juvenile who is alleged to have committed an offence. And

Section 2(d) defines ‘child in need of care and protection as a child –

(i) Who is found without any home or settled place or abode and without ostensible means of subsistence.

(ii) Who resides with a person (whether a guardian of the child or not) and such person-

(a) has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or

(b) has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person.

(iii) Who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after.

(iv) Who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child.

(v) Who does not have parent and no one is willing to take care of or whose parents have abandoned or surrendered him or who is missing and run away child and whose parents cannot be found after reasonable injury.

(vi) Who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts.

(vii) Who is found vulnerable and is likely to be inducted in to drug abuse or trafficking.

(viii) who is being or is likely to be abused for unconscionable gains.

(ix) who is victim of any armed conflict, civil commotion or natural calamity.

The word ‘victim’ is nowhere defined in the Juvenile Justice (care and Protection of children) Act 2000, it appears that it is presumed that even delinquent children are ‘victim’ and ignored all the situations where both parties involved may be juveniles. In that case there is no provision made in the Act to compensate the real ‘juvenile victim’

Act 56 of 2000 empowered State Government to establish two types of institutions one named JUVENILE JUSTICE BOARD under section 4 and CHILD WELFARE COMMITTEE under section 29. The powers of Juvenile Justice Board are mentioned in section 6 as under –

(1) Where a Board has been constituted for any district or a group of districts, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have powers to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law.

Similarly the powers of childs welfare committee are mentioned in section 31 as under –

(1)The committee shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs and protection of human rights.

The Act of 2000 specially prohibits publication of name, address or school or any other particulars calculated to lead to the identification of the juvenile in conflict with law under section 21 of the Act, similarly section 19 removes disqualifications attaching to conviction, all these provisions reflects recognition of HUMAN RIGHTS. It is also not clear why the benefits of INTER NATIONAL COVENANT not extended to each and every child of the country and limited to few who indulge in anti social activities only. The act is silent on the point that who is the victim of actions of Juvenile in conflict with law if they themselves are put in the category of victim for the purpose of Act. The Act completely ignored the situation where two Juveniles are in conflict and silent on the point of remedy to victim Juvenile who is not offender. Never the less recognition of Human Rights of children through provisions of Juvenile Justice (Care and Protection of Children) Act 2000 is a step further in assisting and promoting the attitude to respect and honor the Human Rights of juvenile in conflict with law by society and by Juveniles too.

Author

Naresh Chandra Dubey

LL.M., Advocate

148 Ansal`s Courtyard

100 Ft, Road, Dehtora

Near Shastripuram,

Agra 282007 (U.P.)