“Children are like buds in a garden and should be carefully and lovingly nurtured, as they are the future of the nations and citizens of tomorrow”
– Jawaharlal Nehru.
As said by the Nehru, children are the asset of the country and must be protected and developed. The constitution of India dreams of a healthy society, and in furtherance of it has granted many rights to children. Such as basic survival rights of life, development rights a regard to education, religion, cultural and freedom of thought, conscience and thought and also protection rights from several kinds of abuses and exploitation.
Still, India has been a country which has a large population of street children and who don’t have families or has been neglected and other reasons such as poverty, broken families, improper nurture, and lack of parental control after etc., quite often results into the breaking of the law by them.
And if they are prosecuted and punished like the adults in such tender age the probability of them turning into hardened criminals is possible so, there is need of special protection and care, as the future of the country depends on their proper care.
History of Juvenile Justice Act
During British Raj, in 1897 Reformatory schools Act was introduced in India, the Madras Children Act, Bengal Children Act, and Bombay Children Acts were introduced in the years 1920, 1922, 1924 respectively.
And In the year 1960, a model legislation Children Act was passed for use in Union Territories.
Criminal Justice administration as per the Constitution of India is the subject of the State, the State governments have passed special laws for trial and punishment of the offenses committed by children which also included the special institutions for treatment of such underage criminals.
The primary legal frame of juvenile justice law in India was Juvenile Justice Act 1986, which provides protection, treatment and rehabilitation of children and delinquent juveniles and for the adjudication of certain matters related to the disposition of delinquent juveniles and also it repealed all other Children Acts and provided for a uniform legal framework for the juvenile justice system throughout the country.
Again in 2000, The Juvenile Justice Act was re-enacted with some modifications. It came into effect in April 2001 and many major amendments were made to it in the year 2006 and 2010.
And in the wake of Delhi Gang Rape in 2012, an new act was passed Juvenile Justice Act, 2015 which was an complete and consolidated act, considering the provisions of the Constitution, Convention on child rights 1992, the UN Standard Minimum Rules for the Administration of JJ, 1985., the UN Rules for the Protection of Juvenile Deprived of their Liberty (1990), the Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption (1993), and other related international instruments.
Highlights of the Juvenile Justice Act
- Principles of Care and Protection
Chapter II, Section 3 of the Act, provides certain general principles which should be followed by the Central government, State government and other such agencies, the following are such fundamental principles:
- The principle of presumption of Innocence, where any child is presumed to be innocent of criminal intention up to the age of 18 years.
- The principle of dignity and worth.
- The principle of Participation, where every child shall have right to be heard and participate the process and decisions affecting his interests and his views to be taken into consideration.
- The principle of best interest, wherein all the decisions the primary consideration regarding the child must the child’s best interest.
- The principle of family responsibility where the primary responsibility of care, nurture and protection of child shall be that of parents either biological or foster as the case may be.
- The principle of safety, where all measures must be taken to ensure the safety of the child.
- Positive measures: All resources are to be mobilized including those of family and community, for promoting the well-being, facilitating the development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act.
- The principle of non-stigmatising semantics, where adversarial or accusatory words are not to be used in the processes pertaining to a child.
- The principle of non-waiver of rights, where no waiver of any of the right of the child is permissible or valid, by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to a waiver.
- The principle of equality and non-discrimination, where no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child.
- The principle of the right to privacy and confidentiality, where every child shall have a right to protection of his privacy and confidentiality, by all means, and throughout the judicial process.
- The principle of institutionalization as a measure of last resort where a child shall be placed in institutional care as a step of last resort after making a reasonable inquiry.
- The principle of repatriation and restoration where every child in the juvenile justice system shall have the right to be reunited with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless it is not in his best interest.
- The principle of a fresh start, where all past records of any child under the Juvenile Justice system should be erased except in special circumstances.
- The principle of diversion, where measures for dealing with children in conflict with the law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole.
- Principles of natural justice where basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.
- As per the Act, Child means a person who has not completed 18 years of age and Child in conflict with law means a child who is alleged or found to have committed an offence and not completed age of 18 years on the date of commission of such offence and Child in need of care means any child without a settled home and without any visible means of living; being forced to work, or beg, or live on the street; living with an abusive or negligent person; mentally or physically challenged, without anyone to support her or with unfit parents or guardians supporting her; having an unfit parent or guardian; without parents or abandoned by her parents; A runaway child, whose parents cannot be found; who is being abused or tortured for sexual abuse or illegal acts. Even if there is only a threat that this can happen, the child would a Child in Need of Care and Protection; who might is being forced into drug abuse or trafficking; who is being or could be abused for unethical gains; who is a victim of war, unrest or natural disaster or who is being forced by her parents or guardians into getting married.
- Juvenile Justice Board, which state government shall constitute for every district, to discharge duties under this Act. The board must consist of Metropolitan Magistrate or Judicial Magistrate of First Class with at least 3 years’ experience, 2 social workers and of whom at least one shall be a woman. They should have knowledge of child psychology and child welfare.
- Child Welfare Committee, which deals with the children in need of care which consists of 5 members and one of whom a woman and another expert on children who is to function as a Bench of Magistrates.
- No child can be kept in a police lock-up and observation homes shall take care of children in conflict with the law when proceedings are pending and if they are ordered to give institutional treatment, shall be sent to special homes established under this Act.
- A preliminary assessment in case of child in conflict with law of heinous offenses under section 15 shall be conducted by the Board and disposed of within a period of three months from the date of the first production of the child before the Board/
- The board may pass orders against children in conflict with law, such as
- Giving the child a firm warning, letting the child go home while simultaneously counseling the parents;
- Order to attend group counseling sessions;
- Order to perform supervised community service;
- Order to parents or guardians to pay fine.
- Releasing the child on probation, where the parents or guardians will have to execute a bond (up to 3 years) which may include surety and be responsible for the child’s behavior. The responsibility can also be handed over to a ‘fit person’ or ‘fit facility’ which is a recognized person or government organization or NGO which is prepared to accept the child’s responsibility.
- Sending the child to a Special Home for up to three years.
- Order to attend school or vocational training center or therapeutic center.
- Order to prohibit the child from visiting, frequenting or appearing at a specified place or undergo de-addiction programme.
- Special provisions and procedure for adoption, including inter-country adoption.
- Specific provisions with the matter of determination of age where it is obvious for the Committee or Board they shall record such observation and proceed with an inquiry.
In case of any reasonable doubt it shall undertake the process of age determination by seeking evidence such as date of birth certificate from school or matriculation or equivalent certificate from concerned exam board, in case of its absence birth certificate given by corporation or municipal authority or panchayat and only in absence of those can determine by ossification test or any such other latest medical test and it has to be completed within 15 days.
- The new Act classifies the offenses based on the gravity of offenses into three categories – Petty, Serious and Heinous.
Because of the outrage caused by the people after the Delhi Gang rape case, where one of the accused tried as juvenile merely as age being the primary factor who was on the date of commission of offence was 17 years 6 months, was tried as juvenile and was given the maximum punishment of only 3 years despite the commission of such heinous crime.
So the new Act enables the JJ Board to examine the child and to assess if crime was committed as child or adult and law permits juveniles between 16-18 years of age to be tried as adults for heinous offences and with psychologists and social experts will ensure rights of juvenile are protected if crime was committed as a “child”.
In many recent cases, this provision has been used and children were tried as adults.
But the new problem has arisen where children are committing certain dreadful crimes such instances where
On November 2017, a Class XI student of Ryan International School has slit the throat of a 7-year-old Class II kid and when asked reasoned he wanted the parent-teacher meeting and exams to be postponed
Again in November, when a rape case has been filed on a 4 and half-year-old boy for sexually assaulting his classmate. According to the deputy commissioner of police, legal experts were consulted “since an offense was made out and there was a victim”, and a case of rape under the Protection of Children from Sexual Offences (POCSO) Act was registered. Though they registered a case, police were unsure how to proceed with the prosecution because of the suspect’s age.
As per law, he can be exempted from punishment as according to Section 82 of Indian Penal Code, Nothing is an offense which is done by a child under seven years of age.
But that is not the solution to the problem, as what is triggering the children of such tender age to commit such crimes and how the mentality of the children is changing because of the rapid growth of technology and access to anything within fingertips.
The major task for the government, schools, teachers and mainly for parents is to how to filter the access of such information to children and to protect them from evil influences of T.V, Internet, and movies.
– Vaishnavi Sabhapathi
Content Writer @ Legal Bites