According to the Oxford English Dictionary, democracy, is “a system of government in which all the people of a state or polity are involved in making decisions about its affairs, typically by voting to elect representatives to a parliament or similar assembly.” The term originates from the Greek word “demokratia” meaning the “rule of the people”, which was formed from the two words “demos” (people) and “kratos” (power or rule), in the 5th century BC to denote the political systems then existing in Greek city-states, notably Athens; the term is an antonym to “aristokratía” meaning “rule of an elite”.
From the outset, the Indian government was primarily seen as an indispensable means of establishing and promoting certain universally recognized public values, such as justice, equality, and liberty. And today, as citizens, we need to recognize in government what the founding fathers saw in it: that it is the only institution we can rely on to nourish and protect these kinds of values in our society.
To really appreciate the unique role that government plays in promoting these basic political principles, we need to take a more careful look at some of these key values and see how they can be ensured only by government and how they are embodied in particular legislations and policies.
The most obvious manifestation of this is the criminal and civil justice system. It is the primary way we as a society ensure that criminals are punished and that wrongs are righted. This kind of legal justice is not something that can be reliably provided by the private sector. We would not want, for instance, for there to be a market in legal justice. We would not want this justice to be something provided to the highest bidder.
In the light of the principles of Justice, Liberty and Equality forming the basis of various laws and policy measures adopted by the Government of any Democratic Nation, this article seeks to analyse The Juvenile Justice (Care and Protection) of Children Act of 2015.
THE JUVENILE JUSTICE (CARE AND PROTECTION) OF CHILDREN ACT OF 2015
Underlying Philosophy and Historical Background
Differential treatment of juvenile offenders, in the institution field in traced back to 1704 when a centre “for the correction and instruction of profligate youth, that they who when idle were injurious, may when taught became useful to the State,” was set up at the Hospital of Saint Michael in Rome.
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. Subsequently, the Reformatory Schools Act, 1897 provided that children up to the age of 15 years sentenced to imprisonment may be sent to reformatory schools rather than prison. The Madras Act started the era of diversion of all children from the criminal justice system by establishment of a separate juvenile court and the residential institutions under it in 1920 which was followed by many other States. The Children Acts passed around this time had certain common features though they laid down different cut-off ages for defining children. They all included two categories of children: delinquent and neglected children. However, the definition of ‘neglected children’ differed in these legislations. They all provided for establishment of a separate children’s court to deal with all cases of children covered by the Children Act. These Children Acts also made provisions for the establishment of separate residential institutions to house the children during the pendency of their proceedings or after disposal of their cases by the children’s courts, directing them to be sent to an institution. Use of prison was permitted in exceptional circumstances under these legislations.
Parliament enacted the first central legislation, namely, the Children Act, 1960 as the model legislation. All the states that enacted their Children Acts after 1960 followed the same pattern. The central Act was applicable only to the Union Territories. The Education Minister, who moved the Children Bill in 1959, stated that the subject matters constituting juvenile justice fell in the State list of the Constitution of India. The Children Act, 1960 introduced a sex-discriminatory definition of child and established two separate adjudicatory bodies to deal with children in conflict with law and children in need of care. It prohibited imposition of death penalty or sentence of imprisonment or use of jails or police station for keeping children under any circumstance. It did not recognize the right to a lawyer in the proceedings before the children’s courts. A similar provision in the Saurashtra Children Act was declared to be unconstitutional by the Gujarat High Court in 1969. The Children Act, 1960 was amended in 1978 to permit lawyers before the children’s courts but not before the Child Welfare Board.
In 1986, Parliament passed the Juvenile Justice Act for the whole country. There was no discussion during Parliamentary debates on the competence of Parliament to enact such legislation. The Act was enforced throughout the territory of India except the State of Jammu and Kashmir on October 2, 1987, bringing in a uniform system of juvenile justice throughout the country. While it retained the scheme and primary features of the Children Act 1960, the JJA substituted the word ‘juvenile’ for ‘child’. It continued the same sex-discriminatory definition of child. It provided two separate authorities to deal with the two categories of delinquent and neglected children. It had the same three categories of residential institutions as provided by the Children Act, 1960. The three new provisions provided for establishment of Advisory Boards, creation of a Children’s Fund and appointment of visitors for each institution. In 2000, Parliament enacted the JJA 2000 as it found it “expedient to reenact the existing law relating to juveniles bearing in mind the standards prescribed in the Convention on the Rights of the Child, 1989 (hereinafter CRC), the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and all other relevant international instruments.” The JJA 2000 was amended in 2006 and new Model Rules, 2007 under it were notified on October 26, 2007. These Model Rules are applicable to every state unless replaced by their own new Rules. In Pratap Singh v. State of Jharkhand, (hereinafter Pratap Singh) the Supreme Court had not found itself bound by the Model Rules framed by Parliament as it had no rule making power under the provisions of the JJA 2000 as it existed then. However, a proviso has been inserted in § 68 making the Model Rules framed by Parliament binding till the State Government frame new rules.
Under the JJ Act 2015, juveniles between 16 and 18 years of age, who are found guilty of committing heinous offences through a preliminary inquiry by the Juvenile Justice Board, will be sent to a children’s court that can pronounce the child guilty. Such juveniles can be detained in a ‘place of safety’ until they reach the age of 21. If still not found to have been “reformed” by 21, they can be sent to jails housing adults. At present, most states do not have the ‘place of safety’, also known as ‘borstals’.
“Children are all around us. They represent about a quarter of the world’s population. They are not equipped to defend themselves; they must depend on what is given to them. They are victims of circumstances. They bring us joy, they bring us tears, they are our reason to hope. They are your children, they are my children, they are the children of the world.”
Childcare and protection had been accepted as the responsibilities of the modern welfare state but have become obligations of the state with the shift from welfare to rights for fulfilling the needs of children following the UN Convention on the Rights of the Child. Since 2 October 1987, the JJA brought into force normative uniformity in the scheme and approach of the Juvenile Justice System for dealing with delinquent and neglected juveniles in the whole of India.
Studies have shown that the schemes are inadequate and the JJS is malfunctioning. It is due to a non-systematic approach to the JJs, the examination of the profile of juveniles, historical developments, normative structure, legislative and judicial processes and implementation pattern contain innumerable and incontrovertible evidence of a non-systemic and fragmented approach to the JJS which results in the malfunctioning of its various organs.
The JJA has been re-enacted as the JJ (C&P) Act in view of the primary responsibility imposed on the state, under Articles 39 (e) and (f), 45 and 47 of the Constitution of India, of ensuring that all the needs of children are met with and their basic human rights are fully protected. It also sought to incorporate the standards prescribed by the UN Convention on the Rights of Child (CRC), the UN Rules for Administration of Juvenile Justice 1985 (Beijing Rules), and the UN Rules for Protection of Juveniles Deprived of Liberty 1990 (PJDL Rules).
The new amendment to the Act created a lot of controversy regarding whether it was arbitrary or not to lower the age of adult trial by 18 to 16. Many believe that if the purpose of a juvenile justice act is to ensure that the minors who come in conflict with law are properly rehabilitated then why subject them to adult treatment by prison or death row sentences. Adolescents are at an age where he/she is not mature enough to understand the consequences of his/her actions. It is crucial to understand that brain systems responsible for logical reasoning and basic information processing mature earlier than systems responsible for self-regulation and the coordination of emotion and thinking. It is seen to do more harm than good when juveniles are punished as adult with stringent prison sentences.
The primary trigger for this amendment and for the government pushing the change in the law was the gruesome gang rape in Delhi in December 2012 in which one of the perpetrators was 6 months short of 18 years when the incident happened. This meant that the maximum punishment he could have been given was three years’ confinement in a juvenile home. The act of crime is against the state and it is the duty of that state to protect its citizens from any anti-social elements that are harmful to them. Crime is seen as a lack of social appreciation or mental illness to certain extent and it is not only against the state but also extremely harmful to let such people with criminal tendencies off especially without assessing their mental capacity.
In lowering the age there also exists a danger of arbitrary power use of the police or local authorities which subject these adolescents from 16-18 years to prison in remote areas with no regulations. The Justice Verma Committees’ recommendations spoke of the importance of rehabilitating such minors rather than pushing them into the justice system, awaiting trials, prison terms and coming out more prone to commit offences than deter away from them. The parliamentary standing committee investigating into the matter stated that the “existing juvenile system is not only reformative and rehabilitative in nature but also recognises the fact that 16-18 years is an extremely sensitive and critical age requiring greater protection. Hence, there is no need to subject them to different or adult judicial system” In Knight v. State the U.S. Supreme Court noted that by imprisoning a young offender for a long period, as an adult would for the similar crime, makes the minor less susceptible to rehabilitation.
There are other provisions that the new renewed act includes such as provisions regarding foster care and easing of adoption rules. Foster care would enable children to be placed with willing families instead of children’s homes, and the government would pay for this. It seeks to make Central Adoption Resource Authority (CARA) a statutory body, which means it will have powers to regulate inter-country adoptions, and issue guidelines on adoption and related matters.
More than a century ago, Abraham Lincoln said: “A child is a person who is going to carry on what you have started. He is going to sit where you are sitting, and when you are gone, attend to those things you think are important. You may adopt all the policies you please, but how they are carried out depends on him. He is going to move in and take over your churches, schools, universities and corporations. The fate of humanity is in his hands”
In a society the welfare of it’s youth is integral to its growth, progress and development and thus a national policy for the welfare of the children is essential. Children are a supremely important national asset. In pursuance of the objective of achieving the welfare of children the Government enacted Juvenile Justice Act governing juveniles involved in offences mentioned under the Indian Penal Code in force in India. The Act is considered to be extremely progressive legislation and the Model Rules 2007 have further added to the effectiveness of this welfare legislation.
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. The Juvenile Justice Bill was first introduced in the Lok Sabha on 22 August 1986. This Act was further amended in 2006 and 2011 and 2015 is now known as the Juvenile Justice (Care and Protection) Act, 2015. While provisions relating to the Juveniles in conflict with law are very important from jurisprudence point of view, this Act 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 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 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. One of the convicts was found to be juvenile and sentenced to 3 years in a reform home. 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 Act specifies the children who come under its purview and makes provision for taking their charge, adjudication of their matters, pre- and post-adjudication care and aftercare. Police, persons or voluntary organizations authorized in this regard could bring a delinquent and neglected children before the competent authority.
After public outrage because one of the offenders in the 2012 gang rape case was a few months short of 18 years of age the Parliament amended the existing Juvenile Justice Act and replaced it with the new Juvenile Justice (Care and Protection of Children) Act,2015. The bill allows for juveniles 16 years or older to be tried as adults for heinous offences like rape and murder. Heinous offences are those which are punishable with imprisonment of seven years or more. The bill mandates setting up Juvenile Justice Boards and Child Welfare Committees in every district. Both must have at least one woman member each. Once the bill becomes law, the decision to try a juvenile 16 years or older as an adult will be taken by the Juvenile Justice Board, which will have a judicial magistrate and two social workers as members. If the board decides against it, the juvenile will be sent for rehabilitation. The Child Welfare Committees will look at institutional care for children in their respective districts. Each committee will have a chairperson and four other members, all specialists in matters relating to children. The government says it listed the bill more than a dozen times in the monsoon session and the ongoing winter session but it could not be taken up due to disruptions. The opposition, led by the Congress, had assured support to pass the bill today. The bill aims to “consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach.” The proposed law also aims at adjudicating and disposing cases dealing with juveniles keeping in mind “the best interest of the children and their rehabilitation.” India is a signatory to the UN Convention on the Rights of the Child which mandates that all children under the age of 18 years be treated equal. The pending bill has been criticised for violation of the Convention. The bill also deals with adoption of children and lays down the eligibility criteria for adoptive parents. A central adoptive resource agency will frame the rules for adoption, which will be implemented by state and district level agencies.
The establishment of juvenile courts and juvenile welfare boards, celebrated as the beginning of the JJS, was the culmination of a process that began with the parens patriae and mens rea principles and progressed through separate institutional facilities.
Juvenile justice worldwide must have a reformative rather than a punitive system. Adolescents, even at the age of sixteen and seventeen are immature in their psychosocial and emotional development, and this likely affects their decisions about involvement in crime in ways that distinguish them from adults.
It violates fundamental rights guaranteed under Article 14 and 21 of the Constitution if it leads to mere distinction based on the age groups because in that case, the next time a crime is committed by someone about to turn 16 in a few months will again be let off. The aim of the government with the Juvenile justice Act, even after coming a long way should be to make the provisions more objective and not subject to the decision of the Board that is formulated during the time of the crime. Juvenile Justice is a broad concept; it not only speaks of the rehabilitation it sheds light on the other aspects of child welfare. Finally, in the words of Kofi Annan, “There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare protected, that their lives are free from fear and want and that they grow up in peace.
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