Collective Civil Society effort needed to address juvenile delinquency

 

By Ram Awadh Yadav

Juvenile Justice (Care and Protection of Children) Act, 2015 has been passed by Parliament of India. It aims to replace the existing Indian juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, so that juveniles in conflict with Law in the age group of 16–18, involved in Heinous Offences, can be tried as adults. It came into force from 15 January 2016 after being passed on 7 May 2015 by the Lok Sabha amid intense protest by several Members of Parliament. It was passed on 22 December 2015 by the Rajya Sabha.

Under the new Act the existing Central Adoption Resource Authority (CARA) has been given the status of a statutory body to enable it to perform its function more effectively and to streamline adoption procedures for orphan, abandoned and surrendered children.

There is a separate chapter on Adoption which provides detailed provisions relating to adoption and punishments for not complying with the laid down procedure. Processes have been streamlined with timelines for both in-country and inter-country adoption including declaring a child legally free for adoption.

After the attack of 2012 Delhi gang rape, it was found that one of the accused was a few months away from being 18 years old. So, he was tried in a juvenile court. On 31 July 2013, Rajya Sabha member Subramanian Swamy filed a Public Interest Litigation in the Supreme Court of India seeking that the boy be tried as an adult.  The Court asked the juvenile court to delay its verdict. After the Supreme Court allowed the juvenile court to give its verdict, the boy was sentenced to three years in a reform home on 31 August 2013. The victim’s mother criticised the verdict and said that by not punishing the juvenile the court was encouraging other teenagers to commit similar crimes.

In July 2014, Minister for Women and Child Development, Maneka Gandhi said the Ministry was preparing a new law which would allow trial of 16-year-olds as adults. She said that 50% of juvenile crimes were committed by teens who thought that they can get away with it. She added that changing the law would scare them. The bill was introduced in the Parliament by Maneka Gandhi on 12 August 2014. On 22 April 2015, the Cabinet cleared the final version after some changes.

Summary: The bill will allow a Juvenile Justice Board, which would include psychologists and sociologists, to decide whether a juvenile criminal in the age group of 16–18 should tried as an adult or not. The bill introduced concepts from the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 which were missing in the previous act. The bill also seeks to streamline the process for adoption of orphaned, abandoned and surrendered children.

The bill also introduces foster the concept of care in India where families can sign up for foster care and abandoned, orphaned children, or those in conflict with the law will be sent to them. Such families will be monitored and shall receive financial aid from the state. In adoption, disabled children and children who are physically and financially incapable will be given priority. Parents giving up their child for adoption will get three months to reconsider, compared to the earlier provision of one month.

A person giving alcohol or drugs to a child shall be punished with seven years imprisonment and/or Rs 100,000 fine. Corporal punishment will be punishable by Rs 50,000 or three years imprisonment. A person selling a child will be fined with Rs 100,000 and imprisoned for five years.

One of the most criticized steps in the new JJ Bill 2015 is the introduction of “Judicial Waiver System” which allows treatment of juveniles, in certain conditions, in the adult criminal justice system and to punish them as adults. This is for the first time in India’s history that such a provision has been prescribed. Given its severe criticism, the Bill was referred to a Standing Committee of Parliament which also rejected such provisions. Since recommendations of Parliament’s Standing Committee are not binding, the Government moved ahead and introduced the Bill in the Lok Sabha, where it stands passed. The Bill is also criticized for prescribing an opaque Age Determination System and its poor drafting. The bill was passed in the Rajya-Sabha on 22 December 2015, after the Nirbhaya case accused juvenile was released.

Functioning: There is a separate legal framework for children accused of committing crimes. The Juvenile Justice (Care and Protection of Children) Act, 2015 applies whenever the person accused of committing a crime is a child. It also applies to vulnerable children who need the government to take care of them (even if it’s for a short while). For such children who need help with getting a better and fulfilling life, the law provides several mechanisms (including adoption, sponsorship and foster care).

Normally, if a person is accused or arrested or detained in India, the regular criminal procedure under the Criminal Procedure Code 1973 applies. An accused person can be kept in custody for months.

The code also explains how persons would face trial to decide guilt or innocence. The JJ Act ensures that such harsh procedures do not apply to children. So, for Children in Conflict with Law, it has created an alternate, more lenient and child-friendly setup. The setup is largely controlled by the Juvenile Justice Board, and ensures that children are not kept together in regular jails with regular offenders. It also ensures children are re-integrated into society after having completed the terms of their punishment.

The JJ Act lists the following possible punishments that can be awarded by the JJB for Petty Offences and Serious Offences:

  • Giving the child a firm warning, letting the child go home while simultaneously counselling the parents;
  • Ordering the child to attend group counselling sessions;
  • Ordering the child to perform supervised community service;
  • Ordering the parents or guardians to pay fine
  • Releasing the child on probation.

The parents or guardians will have to execute a bond (of up to three years) which may include surety and be responsible for the child’s behaviour. 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. Under the Act the child can also be sent to a Special Home for up to three years. If, the JJB thinks that keeping the child in the Special Home would be against her best interests, or other children in that home, then the child can be sent to a Place of Safety. Do not forget that the JJ Act follows a principle of institutionalization as last resort, meaning that these penalties are supposed to be highly exceptional. The JJB may also pass orders directing the child to attend school or vocational training, or preventing the child from going to a specified place.

Criticism: During the debate in the Lok Sabha in May 2015, Shashi Tharoor, an INC Member the Parliament (MP), argued that the law was in contradiction with international standards and that most children who break the law come from poor and illiterate families. He said that they should be educated instead of being punished.

Child Rights Activists and Women Rights Activists have criticized the Bill calling it a regressive step. Many experts and activists viewed the responses a result of media sensationalism post the December 2012 Delhi Gang Rape, and cautioned against any regressive move to disturb the momentum of Juvenile Justice Legislation in the Country. However, some sections of the society felt in view of terrorism and other serious offences, Juvenile Justice Act of 2000 needed to be amended to include punitive approaches in the existing Juvenile Justice Law, which so far is purely rehabilitative and reformative. Some argued that there is no need of tampering with Juvenile Justice Act for putting up effective deterrent against terrorism.

Retired Judge of Delhi High Court, Justice RS Sodhi on 8 August 2015 told Hindustan Times, “We are a civilized nation and if we become barbaric by twisting our own laws, then the enemy will succeed in destroying our social structure. We should not allow that but we must condemn this move of sending children to fight their war”.

Conclusion: No doubt this Act has been passed by the Parliament to protect the childhood of children and to stop the criminalization of children. However, it is also a fact that many crimes are being committed by juveniles with gangs resorting to crime by teenager to escape the law.

We need to make our juveniles realize that their life is valuable, and they should not be involved in criminal activities at any cast. This goal can be only achieved by collective efforts of the society.

The author is an Advocate and can be reached through hellovvwa@gmail.com