UNIVERSITY INSTITUTE OF LAW

Child in need of Care and Protection JJ Act 2000 Juvenile in conflict with law

Submitted by: JASMINE KAUR, 25/09F, B.A.LLB(HONS) 6th Sem

Contents
History of Juvenile Justice ........................................................................................................3 Juvenile Justice amended Act 2006. .........................................................................................3 The Child Welfare committee (CWC). .....................................................................................4 The Juvenile Justice Board (JJB). ............................................................................................4 Police ..........................................................................................................................................5 Probation Officer ......................................................................................................................5 State Government .....................................................................................................................5 Prevention is always better then cure. ......................................................................................6 Legal Protections for child in conflict with the law .................................................................6 Points specific to child in need of care and protection .............................................................7 Custodial framework for dealing with child in need of care and protection .........................7 Restoration as option for child in need of care and protection................................................8 CHILD CARE INSTITUTIONS: .............................................................................................8 Shelter Homes: ..........................................................................................................................8 Childrens Homes: ....................................................................................................................9 Observation Homes: ..................................................................................................................9 Special Homes: ..........................................................................................................................9

This article has been written by Jasmine Kaur 25/09F, B.A.LLB(Hons)

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Child in Need of Care and Protection JJ Act 2000

Juvenile Justice Act 2000 is the only beneficial legislation for the children in India, but there are various aspects of it in terms of its implementation; such as the machineries, the professionals involved in it, which play an important role in its implementation. There are various grey areas which are not spelt out in the legislation and the same is left with the competent authorities for interpretation. This interpretation is further governed by the Principles of Best Interest of the Child. The main objective is to provide a protective umbrella for all children in difficult circumstances. The Act covers all types of children below the age of 18 years, and further support to children till the age of 21 years.

History of Juvenile Justice

The first legislation recognizing the need to cater to children came into force in the year 1850 this was the Apprentice Act which provided that children in the age group of 10-18 convicted by courts were intended to be provided with some vocational training which might help in their rehabilitation. It was followed by Reformatory Schools Act, 1897. The Indian Jail Committee (1919-1920) brought to the fore the vital need for a fair trial and treatment of children in conflict with law. Its commendations prompted the enactment of the Children Act in Madras in 1920. This was followed by Bengal and Bombay Acts in 1922 and 1924 respectively. The Central enactment, the Children Act, 1960 was passed to cater to the heads of the Union Territories. The Children Act 1986 was later amended in the year 1978. But the need of a uniform legislation regarding juvenile justice for the whole country had been expressed in various forums including Parliament but it could not be enacted on the ground that the subject matter of such legislation fell in the State List of the Constitution. To bring the operations of the juvenile justice system in the country in conformity with the UN Standard Minimum Rules for the Administration of Juvenile Justice, Parliament exercised its power under Article 253 and on the 22nd August, 1986, the Juvenile Justice Bill, 1986 was introduced in the Lok Sabha. Later came the Juvenile Justice (Care and Protection Act) 2000. Juvenile Justice amended Act 2006. Juvenile Justice Act 2000 (amended act 2006) is more elaborative than the1986 Act and caters widely to two categories of children; children who have committed crimes and children who are in need of care and protection. JJ Act 2000 lays special emphasis on the rehabilitation and social integration of the children. The Act has provided for institutional and non-institutional measures for care and protection of children. The act also envisages a system of partnerships with local communities and local governments to implement the legislation. The 2000 Act came into force to make an attempt to cover the lacunae which were existing in the existing laws. This article has been written by Jasmine Kaur 25/09F, B.A.LLB(Hons) Page 3

JJ Act further provides for the establishment of childrens homes, for the care, treatment and protection of neglected and abandoned children. Institutional care still appears to be the largest service for the care of the destitute and orphan children. The JJ act also speaks for the setting up of Observation homes, Juvenile homes, Special homes, Aftercare homes and recognising fit persons/institutions for the temporary reception of both children in need of care and protection and that of children in conflict with law. In order to deal with children in need of care and protection and children in conflict with law the JJ Act 2000 has authorized constitution of two competent authorities. They are: Child Welfare Committee (CWC) for children in need of care and protection (Section 29) Juvenile Justice Board (JJB) for children in conflict with law. (Section 4). The Child Welfare committee (CWC). CWC is the sole authority constituted to deal with cases concerning children in need of care and protection for each district. The Committee is the final authority to dispose off cases pertaining to the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs and safeguarding their human rights. The CWC does play an important role in catering to the needs of the children in conflict with law. The Juvenile Justice Board (JJB). The JJB is an authority constituted to deal with matters concerning children who have committed crimes for each district or group of districts. Once a crime is committed and the child is apprehended, the child within 24 hrs is produced before the JJB. Till the inquiry is pending the child is kept in an observation home, unless otherwise released on bail. On conviction, the child is sent to the special home or place of safety. Under this Act, children in conflict with law has a right to bail; and granting a bail is mandatory, except under three instances; i. If his release would bring him into association with any known criminals, ii. Exposes him to moral, physical and psychological danger, iii. His release would defeat the end of justice. Instead of being sent to a jail on conviction, the law takes a reformatory approach and the juvenile can be released on probation after advice and admonition or, placed in custody of special homes. The act puts grave responsibilities on the Board and the Committee to look into the rehabilitation and social reintegration of the children who are in conflict with law, thus putting an obligation on the Board to be cautious that the child does not end up becoming a criminal in the future. The Board ought to take into consideration about the time specification given by the Juvenile Justice Act 2000. If cases against children are allowed to remain pending for indefinite time beyond stipulated time frame. then it would lead to exploitation of the juvenile and his/her guardian by the player within the system. The Act puts the burden on the Board to keep a track of such cases and dispose them at the earliest.

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Police For the purpose of achieving such rehabilitation and social integration, elaborate procedures are prescribed under the Act. The Act under Section 63 provides that the Police Officers with adequate aptitude and appropriate training and orientation, be designated as a Juvenile or Child Welfare Officer, to handle the juvenile in coordination with the local Police. The key responsibility of Police Officers, whether designated as a Juvenile or Child Welfare Officer or not, is that the Officer, should always keep in mind that a juvenile in conflict with law or a child in need of care and protection, is required to be handled gently and cannot be treated on par with persons, who are, otherwise, called criminals. A special juvenile polices unit needs to be opened by Goa police as envisaged under the JJ act 2000 and Rules 2007 therein. As per the rule 11 (11) of the JJ act 2000 where the punishment is less than 7 years the police are not suppose to register FIR in cases but it is learnt that the practice of filing a FIR even in petty cases is still carried on, which is a violation of the JJ Act. Even in theft of rupees 120/- the police have registered an FIR. There are various cases where children are made the scape goat for increasing detection of crime at the police station levels. I have come across children during my legal intervention at the board who are apprehended and lodged in the observation home inspite of such children not involved in the crime. Till date a total number of 80 cases have been dealt most of it leading to acquittal with no convictions. Probation Officer In the said act Probation Officers role is very vital in providing effective implementation. Inorder to discharge his duties the Probation Officer ought to know the very fundamental principle underlying the Juvenile Justice Act. Primarily the Probation Officer plays duel role; one as a investigator and the other as a supervisor. Secondly; he has a vital role in reformation, rehabilitation and reintegration of the children who come within the purview of the Juvenile Justice Act. State Government Inorder to achieve the prime objective enshrined in the Juvenile Justice Act, the State Government is required to provide all the support system to ensure that the Board functions effectively. The State Government is under the obligation to provide logistic support to ensure all the provisions are enforced in its true spirit. It is not possible with the sole participation of Government to enforce the Act in its true spirit. The need for collaboration and partnership with stakeholders can alone make it viable for the enforcement of the Act in its true spirit and in toto. The Act also does put to a certain extent an onus on the legal fraternity to look into other aspects rather than solely legal. The functioning of all the stake holders revolves around the infrastructure and facilities provided by the State Government. Juvenile justice is the only existing legislation on children, which purely and primarily deal with children in conflict with the law and their rehabilitation. This law has been designed to apply the This article has been written by Jasmine Kaur 25/09F, B.A.LLB(Hons) Page 5

principle of reformation rather than the punitive approach. It has been noted that the enforcement of this law in terms of protection of the children is weak. The ultimate purpose of the Juvenile Justice amended Act, 2006 is repatriation, rehabilitation and social reintegration of children who are in conflict with law and children in need of care and protection. One of the crux of this Act is that the inquiries pertaining to all children in conflict with law should conclude within the period of 4 to 6 months as envisaged under the law and records to be destroyed after 7 years. Inspite of having such a comprehensive and beneficial legislation in operation, there still stands a risk of violations of Childrens Rights within the system. Within the society there are other issues of serious nature which affects the children e. g drug use and addiction to tobacco has been one of the common factors among the children in conflict with law. This issue evolves around peer influence. This makes it important for the children to be counselled and treated before they become victims to other drugs and should be referred for detoxification. The place where the children are housed is known as observation home. If one interprets the term HOME, it would mean love, protection, security and a family setup which would cater to the emotional and mental aspect, of a child. There is no dearth of laws concerning the welfare and protection of children; but what we lack in is the logistical support required for its implementation. Juvenile Justice Act 2000 is a comprehensive legislation which provides elaborative procedure to be followed keeping the Principle of Best Interest in the forefront. Goa has witnessed an alarming increase in reporting of crimes committed by children and those committed against them. Concern over violation of child rights in such situations, is growing. While going through these provisions of the legislations, clearly lacks in the area of accountability of various stake holder and bodies constituted under the law. There is a need to come up with guidelines and proper understanding as to procedures to be followed. Prevention is always better then cure. It is high time we tap the children who are vulnerable who can become the future criminals. This can surely be achieved by keeping in mind the best interest of the children and the Principle of restoration, rehabilitation and social reintegration. This can only be ensured with effective partnership with the civil society. There is a need for greater sensitivity and care while dealing with children in conflict with law. This can be achieved by giving utmost importance to child welfare and protection, along with creating social responsibility and greater awareness among stake holders.

Legal Protections for child in conflict with the law

The protections under the Juvenile Justice Act , 1986, continue with the new enactment with their being no additional protection guaranteed to the child in conflict with the law. The protections can be enumerated as follows: Whether the juvenile commits a bailable or non-bailable offence, the child shall be released on bail with or without surety. The only grounds on which the juvenile can be detained is if there is This article has been written by Jasmine Kaur 25/09F, B.A.LLB(Hons) Page 6

reasonable ground for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. Further detention can only be in observation home and not in prison or police station. The bail provisions for young offenders are far more liberal than those applicable under the criminal procedure code.(Sec 12) In terms of the orders which the Board may pass regarding the juvenile, there is a discretionary power to send the child home after admonition or advice, order the juvenile to perform community service , release the child on probation of good conduct etc.(Sec 15) The only controversial part of the power of the Board is the power to send the child to a special home for a minimum period of not less than two years for a child who is over seventeen and less than eighteen and in case of any other juvenile till he ceases to be a juvenile. There is a proviso under which the child could reduce the period of stay having regard to the nature of offence and circumstances of the case. However this provision is in clear contravention of Art 37(b) of the Convention of the Rights of the Child, which notes that No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of the last resort and for the shortest appropriate period of time. The Act also clearly prohibits sentencing a child to death or life imprisonment or committing to prison in default of payment of fine or furnishing of security.(Sec16) For a juvenile sentenced under the Act, there is a clear mandate such juvenile shall not suffer any disqualification attaching to a conviction of an offence under the law. Further after a reasonable period of time the Board is enjoined to remove the records.(sec19) The Act also stipulates that there shall be no joint trial of a juvenile with a person who is not a juvenile. (Sec 18) The Act also protects the privacy of the child by mandating that no report by newspaper etc shall disclose the name, address or school or other particulars calculated to lead to the identification of the juvenile nor shall any picture of such juvenile be published.(Sec 21)

Points specific to child in need of care and protection

Expansion of category of child in need of care and protection The category of children in need of care and protection has been expanded to include victims of armed conflict, natural calamity, civil commotion, child who is found vulnerable and likely to be inducted into drug abuse etc. The expansion of the category of children in need of care and protection has itself led to serious questions as the system still remains custodial in nature and what one in effect does is bring more children within a criminal justice framework.

Custodial framework for dealing with child in need of care and protection
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The framework of the law remains within the criminal justice system as the police still have power to contact a child and produce him before the Committee. In fact the powers of the police have been expanded as under the new Act the police have also been empowered to hold an inquiry regarding the child in the prescribed manner. Further if the child is sent to a Juvenile Home, then such home remains a place where the child is deprived of her liberty, thereby re-inscribing the custodial nature of the institution.

Restoration as option for child in need of care and protection

The innovation the law makes with respect to children in need of care and protection is the conceptualization of restoration of the child as being the focal point, with restoration being conceptualized as restoration to parents, adopted parents or foster parents. (Sec39). This being the crux, the law then outline four options for children in juvenile homes and special homes which include adoption, foster care, sponsorship and after care. While the aim of minimizing the stay of the child in the juvenile home and special home as conceptualized is laudable, there are serious concerns as to whether restoration can be the only solution. Especially in the case of sexual abuse the solution can be ill conceived. Further in the case of children in difficult circumstances such as children on the street, children in prostitution restoration might not be an immediate solution. The other concern is as to the fact that no safeguards have been built into the procedures regulating adoption and foster care in the Act itself leaving it entirely to the discretion of states, which have the power to make rules under the Act. Inspite of these changes and continuing protections, one needs to be conscious of the fact that it still falls short of the international obligations undertaken by the Indian state both in the form of treaties as well as declarations.

CHILD CARE INSTITUTIONS:

The Juvenile Justice (Care and Protection of Children) Act, 2000, and the Amendment Act, 2006, lay down provisions for institutional care mechanisms for children in need of care and protection, and those in conflict with law. These centres address the care, development and rehabilitation needs of such vulnerable children. The Juvenile Justice (Amendment) Act 2006 also stipulates that the State should establish after-care organisations for the rehabilitation and social reintegration of young adults leaving these centres as they reach the age of 18 years. The different types of care and rehabilitation centres for children are described below.

Shelter Homes:
The Juvenile Justice Act, 2000 (section 37), provides for the establishment of 24-hour residential shelters and drop-in centres for children in urgent need of care and protection, such as street children, abandoned and runaway children. It also permits establishment of government-recognised centres by voluntary organisations.

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Children can be referred to the shelters through the Child Welfare Committee, Special Juvenile Police Unit, public servants, the Childline (child helpline service), voluntary organisations, social workers; children may also refer themselves or other children to these homes. A child may remain at the shelter till suitable rehabilitation is found or till s/he attains the age of eighteen years.

Childrens Homes:
Childrens Homes provide residential care to children in the juvenile justice system. Run by the Child Welfare Committee, these provide comprehensive childcare facilities including family and individual counselling and training in skills to facilitate the rehabilitation of these children and their reintegration into society. There are three government-run childrens homes in the State, one for girls and two for boys.

Observation Homes:
Juveniles in conflict with law under the Juvenile Justice (Care and Protection of Children) Act, 2000, can be housed in an observation home temporarily before being handed over to a parent or guardian. This is often needed during the process of inquiry or when an inquiry is pending under the Juvenile Justice law. The observation home provides residential care and protection. Bihar has ten such observation homes and construction of another 17 have been proposed.

Special Homes:
Juvenile in conflict with the law can require institutional services for long-term rehabilitation and protection. If a child is convicted he / she could be sent to a special home. When the Juvenile Justice Board is satisfied on inquiry that a juvenile has committed an offence, the Board could pass any of the following orders: allow the juvenile to go home after a warning or reprimand and advise participation in group counselling; order the juvenile to perform community service; order the parent of the juvenile or the juvenile himself / herself to pay a fine; or, order the juvenile to be sent to a special home. As per the Juvenile Justice law, special homes can be established in every District by the State Government or by a voluntary organisation and certified by the Government. Bihar has only one special home at present; the Government is planning to establish more special homes in the Districts. After-care Organisation: The Juvenile Justice (Care and Protection of Children) Act, 2000, provides for institutional care mechanisms for children in need of care and protection, and juveniles in conflict with law under the age of 18 years. However, after attaining the age of 18 years, the children residing in these institutions are obliged to leave and look for alternate shelter as well as other means of livelihood. Since many of these children do not have families or any other place to go, the Juvenile Justice law mandates after-care organisations and programmes to facilitate the transition of such young people from an institutional-based life to mainstream society. This article has been written by Jasmine Kaur 25/09F, B.A.LLB(Hons) Page 9

The Directorate runs two after-care homes for girls and has initiated the process of identifying suitable NGOs to run recognised after-care homes.

This article has been written by Jasmine Kaur 25/09F, B.A.LLB(Hons)

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