The development of any country depends on the future generation. It is the duty of the citizens and the state to note the development, education etc of the children. In recent times the children or juveniles have been stated to do much more mature and grievous crimes than earlier times, so as to make amendments in the existing laws.
Globally there have been various laws as well as convention for juveniles such as United Nation Conventions on the Child which defines a child as ‘a child means every human being below the age of 18 years unless under the law applicable to the child, majority is ascertained earlier.’
There have previous laws in India which have been there for the children as well as provisions in the law. The Indian Penal Code lays some of the following provisions:
- 82. Act of a child under seven years of age —
Nothing is an offence which is done by a child under seven years of age.
- 83. Act of a child above seven and under twelve of immature understanding—
Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
- 317. Exposure and abandonment of child under twelve years, by parent or person having care of it —
Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
- 361. Kidnapping from lawful guardianship —
Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. The words “lawful guardian” in this section include any person lawfully entrusted with the care of custody of such minor or other person.
Exception — This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
The Criminal Procedure Code and The Constitution of India also contain certain provisions for the children.
The first legislation on juvenile justice in India came in 1850 with the Apprentice Act which required that children between the ages of 10-18 convicted in courts to be provided vocational training as part of their rehabilitation process. This act was transplanted by the Reformatory Schools Act, 1897, the Indian Jail Committee and later the Children Act of 1960. The Juvenile Justice Bill was first introduced in the Lok Sabha on 22 August 1986. The Juvenile justice act was passed in 1986 which was further overruled by Juvenile Justice (Care and Protection of Children) Act 2000. The 2000 Act was later amended in 2006 and 2011.
Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) was amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 While provisions relating to the Juveniles in conflict with law are very important from jurisprudence point of view, the Act of 2000 becomes very crucial for Children in Need of Care and Protection, as they are very large in number. Section 29 of the Act provides constituting five members District (Administrative unit in India) level quasi-judicial body “Child Welfare Committee”. One of the members is designated as Chairperson. At least one of the members shall be woman. The Committee shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the ‘Children in Need of Care and Protection’ as well as to provide for their basic needs and protection of human rights.
The Supreme Court of India vide Judgement in Hari Ram Versus State of Rajasthan confirmed the retrospective effect of the Juvenile Justice Act, 2000 in 2009, which was earlier confirmed by some of the High Courts in India, particularly by Bombay High Court.
Pursuant to an order of Delhi High Court, the Act was further amended in 2011 whereby certain provisions which were discriminatory to the persons affected by leprosy have been deleted.
The Ministry of Women and Child Development started contemplating bringing several desired amendments in 2011 and a process of consultation with various stake holders was initiated. A draft Bill in this regard was prepared and was pending before the Ministry of Law and Justice for scrutiny and was put up on the official website of Ministry of Women & Child Development in June 2014 for public inputs.
The Delhi gang rape case in December 2012 had tremendous impact on public perception of the Act. Contrary to the reality, Media highlighted that the juvenile allegedly involved in this case was the “Most Brutal” of all accused persons. Eight writ petitions alleging the Act and its several provisions to be unconstitutional were heard by the Supreme Court of India in the second week of July 2013 and were dismissed, holding the Act to be constitutional. Demands for a reduction of the age of juveniles from 18 to 16 years were also turned down by the Supreme Court, when the Union of India stated that there is no proposal to reduce the age of a juvenile.
The Juvenile Justice (Care and Protection of Children) Bill, 2014 was introduced by the Minister of Women and Child Development, Maneka Gandhi, in the Lok Sabha on August 12, 2014. It repeals the Juvenile Justice (Care and Protection of Children) Act, 2000 and had been a debatable issue ever since.
The Bill seeks to achieve the objectives of the United Nations Convention on the Rights of Children as ratified by India on December 11, 1992. It specifies procedural safeguards in cases of children in conflict with law. It seeks to address challenges in the existing Act such as delays in adoption processes, high pendency of cases, accountability of institutions, etc. The Bill further seeks to address children in the 16-18 age group, in conflict with law, as an increased incidence of crimes committed by them have been reported over the past few years.
The General principles of the bill include
(i) principle of presumption of innocence for any child up to the age of 18 years;
(ii) principle of best interest for all decisions taken regarding the child;
(iii) principle of institutionalisation stating that a child shall be placed in institutional care as a step of last resort, etc.
One of the most discusaable issue which was dealt in the bill was reducing the juvenile age from 18 years to 16 years and the same has debated for a very long time. The Bill defines a child as anyone less than 18 years of age. However, a special provision has been inserted for the possibility of trying 16-18 year olds committing heinous offences, as adults. A heinous offence is defined as one for which the minimum punishment under the Indian Penal Code is seven years.
The Union Minister for Women and Child Development Maneka Gandhi stated “One of the features, for instance, is overhauling the tedious process of adoption. We’ve also introduced the idea of foster care in the country, for those who don’t want to adopt. This will involve the backending of all foster homes, and the people who want to keep children in their homes and give them affection without adopting them. The idea was to take children out of child care homes and take the non-adoptables, children who are 8 or 10 years, and find them suitable foster care. These are some of the salient features of the act, those that have much more play.”
In Shabnam Hashmi v. Union of India, the apex court that upheld the right to adopt and to be adopted as a fundamental right, also held that every person, irrespective of the religion he/she professes, is entitled to adopt.
The apex court in a public interest litigation decided on March 28, 2014, in Dr. Subramanian Swamy and others v. Raju and others, refused to read down the provisions of the JJ Act, 2000, in order to account for the mental and intellectual competence of a juvenile offender and refused to interfere with the age of a juvenile accused, in cases where juveniles were found guilty of heinous crimes. It was held by the Court that the provisions of the Act are in compliance with Constitutional directives and international conventions. The Court further stated that the classification of juveniles as a special class stood the test of Article 14 of the Constitution, and that the Court should restrict itself to the legitimacy and not certainty of the law.
The proposed Bill also prohibits the media from disclosing the identity of children or propagating any such information which would lead to identifying them. All reports relating to children are to be treated as confidential. Corporal punishment and ragging, cruelty to children, employment of children for begging, adoption without proper procedure, and sale or procurement of children for any purpose are all acts that are punishable under the draft Bill.
The Bill therefore provides a comprehensive mechanism to deal with children in conflict with law as well as children who are in need of care and protection. However, only a stringent implementation can provide a meaningful disposition to make it a true letter of law.
About the Author
Aayushi is currently pursuing her 4th year in B.A.LLB from M.S. Ramaiah College of Law, Bangalore. Corporate Law has always been her field of special interest. She likes to travel and in her free hours she loves reading. Besides, she is passionate about phtography. She has participated in various essay writing competitions. She has done internships from organisation like AALI (Association of Advocacy and Legal Initiatives) and various advocates. Presently, she is interning with the Model Governance Foundation.