By Aditya Singh Raghav
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The Act was passed in the Lok Sabha on 7th May 2015 and came into force on 15th January 2016. The provisions of this Act apply to all matters concerning children. Some of the important changes introduced by the Act of 2015 were:
1. It allowed juveniles of ages 16-18 to be tried as adults in some cases
2. It facilitated faster adoption of children and the setting up of foster care homes
3. It included corporal punishment and ragging in the category of criminal offences
4. It allowed for the provision of sentences for life imprisonment but prohibited the death penalty and life imprisonment without the possibility of early release
5. The Act also provided for the establishment of two bodies be set up in each district in the country – Juvenile Justice Boards (JJBs) and Child Welfare Committees (CWCs)
Juvenile Justice Boards: Composition and Functions
This Board is to be established in each district and consists of a Principal Magistrate and two social workers, one of whom has to be a woman. It conducts an enquiry to decide whether the juvenile offender is to be tried as an adult or sent for rehabilitation.
Child Welfare Committees: Composition and Functions
CWCs deal with children who need care and protection. These children are underprivileged and mostly from backward sections of society, living under poverty from birth. The Committee aims at providing institutional care to such children and to provide means for their rehabilitation, reintegration, and restoration. It consists of a Chairperson and four members, among whom, one has to be a woman and one must be an expert on matters of children.
Important amendments and salient features in the Juvenile Justice (Care and Protection of Children) Act 2015
1. The Act classified offences into three categories:
a. Heinous offences – carrying a minimum penalty of seven-year imprisonment
b. Serious offences – imprisonment between three to seven years
c. Petty offences – imprisonment up to three years
2. The requirement of a preliminary assessment of the child between 16 to 18 years of age before trying her or him as an adult for heinous offences was added
3. The Act required children who are found to be in need of care and protection and are orphaned, abandoned, or surrendered, to be brought before the Child Welfare Committee within 24 hours
4. A “child in need of care and protection” was defined under Section 2(14) to include “a child who is found working in contravention of labour laws, at imminent risk of marriage before attaining the lawful age, or who resides with such a person who has threatened to injure, exploit, abuse, or neglect the child or violates any other laws, or whose parents or guardians are unfit to take care of him.”
5. “Adoption” was properly defined and the child’s rights were recognized. Section 2(2) defined adoption as the “process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges, responsibilities that are attached to a biological child” and section 2(3) required the framing of adoption regulations by the authority (to be notified by the Central Government), which was missing in previous legislations.
6. Penalties for offences against children were provided, for example, the penalty for giving a child intoxicating or narcotic substances is imprisonment for seven years and fine up to one lakh; and the penalty for buying or selling children is imprisonment of five years and fine up to one lakh
7. New provision for children’s court under section 19 – this court can conduct enquiries and conduct the proceedings under section 18(1) of the Act
8. Child-friendly approach – no child should be ill-treated in custody; child care institutions should be mandatorily registered
9. Provision for “Right of child to be heard” and the “best interest” principle were included
10. Section 2(17) provided for a Child Welfare Officer which was missing in previous legislations
Criticism of the Juvenile Justice Act 2015
One of the most criticized parts of the Act of 2015 is the “Judicial Waiver System” where a juvenile can be tried as an adult. The Bill was referred to a Parliament Standing Committee which rejected this provision. But, as the recommendations of the standing committee are not binding, the Bill was still passed. Other major criticisms of the act are as follows:
1. Experts believe that the Act focuses on a retributive approach rather than a reformative and rehabilitative approach. The perception that juveniles commit most of the heinous crimes was not on par with the NCRB data which said that 3.4% of rape cases were registered against juveniles. It was believed that such crimes reflect mental culpability of offenders and children of this age group cannot possess such mental culpability.
2. Statutory problems – Experts pointed that this act was in violation of the United Nations Convention on Rights of the Child (UNCRC), which requires that every child under 18 should be treated equally. It also violated article 14 of the Indian Constitution (the right to equality) and article 21 (the right to life). The preliminary assessment by the Juvenile Justice Board violates article 21 because an accurate assessment of mental capacity for the purpose is not possible and will result in arbitrary subjective assessments and transfers. It also violates article 15(3) which states that the government can make special provisions for children as, by trying juveniles of 16 to 18 years of age as adults, it removes the protections given to such juveniles in previous legislations.
3. Technical problems – A psychological test is to be conducted to determine the maturity of the juvenile and such tests are subjective and arbitrary in nature. Such tests can also be manipulated by the juveniles who can behave or pretend to be immature during the test. There is also an opaque age determination system.
4. Ineffective deterrence – It is more important to deal with the issues that provoke juveniles in the commission of crimes as most of these juvenile offenders come from families that are poor and have little or no education. Instead of providing strict punishments to juvenile offenders, the focus should be on solving the problem from the root cause and on promoting welfare of children.
5. Delay in disposal of cases – The disposal of cases might take too much time due to the availability of a range of appeals and revisions provided under the Act of 2015, and the constitutional remedy of special leave petitions.
The next article in the series gives the author’s overview and opinion on the juvenile justice framework in India.
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Aditya is a 2nd year law student at National Law University Delhi. An adventurous person, he actively participates in sports activities and loves to go trekking. He is a football fan and you can easily find him discussing football matches with his friends. His interests include Commercial Law, Constitutional Law, Criminal Law and Competition Law.
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