Law · Society

Child-friendly Justice

Vidit Goyal  analyses the International and Indian scenario regarding how child-friendly the courts are under the current system.

For children are innocent and love justice, while most of us are wicked and naturally prefer mercy.”- G.K. Chesterton

The Children’s Justice Campaign reminds us of our sacred obligation as adults to raise ourselves into consciousness so that our children may thrive.”- Dr. Shefali Tsabary, Clinical Psychologist and Award Winning Author, “The Conscious Parent”

Children being a weaker section are provided some privileges over adults. In the international community also even if a child has committed any wrong then he/she will be treated liberally as compared to adult offenders. Children come in direct contact with courts and the legal system in various contexts, for example, as offenders and witness to crime. Also family matters like divorce, separation, adoption, guardianship, etc, can bring a child to the courts. However, these children are not treated in the similar way as adults. Two most commonly accessed courts by children are juvenile courts or juvenile justice courts and family courts.

Treatment of children- International Regime:

In the international regime there are two most important conventions which places obligation on the member states to follow child friendly justice these are: Convention on the Rights of Child (CRC) and Optional protocol on sale of children, child prostitution and child pornography. All the member states are obliged to follow these conventions.

CRC articles which are primarily dealing with juvenile justice are Article 37, 39 and 40. Article 37 provides basically that children should be treated with utmost humanity and should have prompt access to legal assistance. They shall not be arrested unless it is the last resort. It also forbids capital punishment. Article 39 provides for rehabilitation of juveniles and says that such recovery shall take place in a child friendly environment to protect dignity of children. Article 40 provides for procedure for administration of justice to children. According to this Article every child alleged as or accused of having infringed the penal law has at least the following guarantees:

  1. To be informed about charges against him in a prompt manner and shall receive legal assistance for the same.
  2. The adjudication of matters in a fair and transparent manner keeping in mind the mental situation, age of the child and of his/her parents.
  3. Shall not be compelled to give testimony or to confess guilt; shall not be examined or put under exact same condition as of a witness under the regime of equality.
  4. To have the free assistance for the language which he can understand and speak;
  5. To have his or her privacy rights protected at every stage of the proceedings.”

Optional Protocol on the sale of children, child prostitution and child pornography also talks about child friendly justice. Article 8 of the said convention provides for special treatment to every child victim and every child witness. They shall be provided legal assistance and appropriate support services throughout the legal proceedings. It also obliges state to provide legal and psychological training, for the persons who assist child victims. Article 9 provides for States Parties to take all measures for proper rehabilitation and social reintegration of child victims. It also provides that all child victims have access to adequate procedures to seek, without discrimination, compensation for damages from those legally responsible. A child does not feel comfortable and hence cannot be heard effectively where the environment is, inappropriate, insensitive, hostile or intimidating for her or his age. Proceedings must be both accessible and child-appropriate.

Indian Scenario:

India is a signatory to CRC and thus to follow its guidelines has brought into picture some provisions for the special treatment when a child is tried in the court. There are so many judgements and orders of court to establish a proper child-court relationship. Several issues were raised before the court by social activists, journalists or newspaper reports or taken up sue moto by the courts. Some of the landmark decisions are:

  1. C. Mehta v. State of Tamil Nadu[1]This judgement passed elaborate directions to stop child labour in hazardous occupation and processes.
  1. Sanjay Suri Delhi Administration[2]: The court ordered transfer of some guilty officers and laid down rules to protect children in jails.
  1. Sheela Barse the Secretary, Children’s Aid Society & Ors.[3]: The petition was filed in public interest with regard to improper functioning of childcare institutions in Mumbai. The Supreme Court directed that in no case should a child be kept in jail and central law must be enacted to bring uniformity in juvenile justice system.
  1. Sarita Sharma Sunita Sharma[4]: The court held that in the issue relating to custody of children, paramount consideration should be given to the welfare of the children.

Juvenile justice (Care and Protection) Act, 2015 mandates for liberal treatment with respect to juvenile offenders and provides for their trial before juvenile justice board. It also provides for the establishment of children’s courts.

Due to the appreciable efforts of Justice and Care, an NGO, the Metropolitan Sessions court, and the Crime Investigation Department (CID), this concept of child friendly courts has been conceptualized and made practical. As mandated under POSCO Act, 2012[5], these Child Friendly courts have features like video camera trial for the accused and separate waiting rooms for children. In Juvenile Justice courts, judge does not sit on the Dias to come across as more approachable and the police accompanying the child also does not wear uniform. There are total 6 Juvenile Justice Courts in India. Most recently, Juvenile Justice Court has been inaugurated in Hyderabad on 24th August, 2016. Now, facilities permit the witness/victim to have direct interaction with the Judge, while the accused would be able to view and hear the proceedings via two-way video conferencing in the courtroom. The juvenile offender/child will be able to look and listen to  the proceedings via two-way video conferencing in the courtroom. Now the child-friendly space for recording the witness and testimony of the child will aid in improving the conviction rates for the crimes against children, as quoted by Director General of Police at the time of inauguration.

The Government of India is also implementing about 120 schemes and programs for welfare and development of children and women through more than thirteen ministries and departments in association with several NGOs.[6] Many of such programs also aim at improving the child friendly justice system in India such as National Initiative for Child Protection (NICP). But still a child focused a child-focused culture has to be developed. The legal system should interpret laws in the context of the rights and standards given in the CRC. This will give the child access to justice through the court system. There has to be child-centred focus in legal proceedings. All the children legislation should be reviewed in the context of CRC and its protocol and there has to be linkage between them. The Indian legal system has to evolve a great deal for securing the rights of child and providing them justice. The child’s right to development is crucial, both to safeguard the right to future as well as the rights of future children.[7]

So in conclusion special treatment to a child for the administration of justice is well recognized throughout the world. Conventions like CRC and Optional Protocol are fountainhead for child friendly justice and recognize their vulnerability. India being a signatory to CRC also enacted some provisions for child friendly justice and establishment of Child Friendly Court is a major step.

References-

[1] AIR 1997 SC 699

[2] AIR 1986 SC 414

[3] AIR 1987 SC 656

[4] (2003) 3 SCC 14

[5] Protection of Children from Sexual Offences Act, 2012

[6] India Report on World Summit for Children 2000, Development women and Child Development, Government of India

[7] Clarence Dias, ‘The Child in the Developing World: Making rights a reality’ Report of a seminar on Rights of the Child, National Law School of India University, Bangalore, 1990.

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