Children are considered to be the future of the nation. Children are to be taken care of and their future needs to be secured. The first statute of the Juvenile Justice Act came into force in 1986 for the purpose of protecting juveniles. This was not perfect legislation and this was then amended various times to get the desired result of the juveniles being treated in a way which would not harm them and would, in fact, make provisions to take care of them. Now, a juvenile is basically someone who is below the age of eighteen. The Juvenile Justice (Care and Protection) Act thus deals with children or people who are not adults in the eyes of law.1 The Juvenile Justice Act was enacted to regulate the interaction of the legal system with children.2
The Juvenile Justice act is an important piece of legislation. Before this legislation came into being, there was no uniform statute to deal with the issue of the care and protection of juveniles or children. Every state had its own separate legislation for children and these legislations varied a lot. The intended target groups of these legislations were also different as the definitions also varied significantly and there was no uniformity on a national level.3 The definition of ‘child’ also varied from state to state. In a landmark case; Sheela Barse v Union of India4, the Supreme Court highlighted the significance of having uniform legislation for children across the territory of India. The Supreme Court further stated that “The Act so enacted by Parliament should contain not only provisions for investigation and trial of offences against children below the age of 16 years but should also contain mandatory provisions for ensuring social, economic and psychological rehabilitation of the children who are either accused of offences or are abandoned or destitute or lost.” Further, the court mentioned the importance of children by stating “The greatest recompense the State can get for expenditure on children is the building up of powerful human resources ready to take its place in the forward march of the nation.” Thus, as one can see, the importance of this particular piece of legislation is manifold as it deals with children, who, after all, are the future of the nation. Also, with it came uniformity in dealing with issues and with children. It must also be kept in mind, that this piece of legislation helped India, to some extent, in keeping its promises and upholding the various international treaties or sanctions which were signed including those of the United Nations.
The basic aims and objectives of the Act are to provide for and look into matters relating to children or juveniles. Some of the basic salient features of the Act are:
- The Juvenile Justice Act was brought into place to deal with two kinds of juveniles or children. (a) child in conflict with the law and (b) child in need of care and protection. As I mentioned before, a juvenile or a child is a person who is below the age of 18. The age was brought up to 18 years from the previous 16 years by the amendment of the Act in the year 2000.
- Child in conflict with the law as the name suggests is a child who has allegedly committed an offence whereas a child in need of care and protection is a child who has been abandoned or is destitute.
- The Act provides for rules and regulations to be followed and institutions to be instituted to try and hear cases of children in conflict with the law.
General Principles of the Juvenile Justice Act, 2015:
The Juvenile Justice Act, 2015 provides for 16 basic or general principles as guidelines to the Government and also the institutions and authorities constituted under it. These are provided for in section 3 of the Act and are as follows:
- “Presumption of Innocence: Every child who has been accused with the commission of any offence shall be presumed to be innocent and no criminal intent or malafide intention will be attributed to the child.
- Best interest: Any decisions made under the Act with regard to the child shall be so made keeping in mind the best interest of the child.
- Principle of Participation: Every child has the right to participate in all the processes and decisions affecting his interests and the child has the right to be heard and put across his or her viewpoint in the matter which may be taken into consideration based on the age and maturity of the child.
- Principle of dignity and worth: This is a universal principle and should also apply to the Act. All humans are to be treated with equal dignity and rights.
- Family responsibility: The first and foremost responsibility of the child is on the biological family or adoptive parents. It is their responsibility to care for, nurture and protect the child.
- Positive measures: The measures taken should be positive in nature and the best interests of the child should be taken into consideration. These measures include promoting well-being and facilitating the development of the child by providing an inclusive and enabling environment so as to reduce the need for intervention under this Act.
- Safety: The child’s safety is of extreme importance and all types of measures should be taken to ensure the same. The child should be shielded from harm, abuse, and maltreatment.
- Principle of non-stigmatising semantics: Adversarial or accusatory words should not be used in the processes pertaining to the child.
- Non-waiver of rights: The child cannot waive his rights. No waiver of rights is permissible or valid.
- Privacy and Confidentiality: Every child has the right to protect his privacy and confidentiality.
- Equality and Non-discrimination: Discrimination on any basis including cast, gender, sex, etc should not be done at any cost. Every child should be treated equally and should have equal opportunity.
- Principles of Natural Justice: The basic principles of natural justice are to be followed. These include basic procedural safeguards and standards of the right to a fair hearing and the rule against bias.
- Principle of institutionalisation as a last resort: A child should not be placed in institutional care unless absolutely necessary and as a last resort. A proper inquiry must be done before the child is placed in institutional care.
- Fresh Start: Every child has the right to a fresh start and to enable this all past records are to be erased except in special circumstances.
- Principle of repatriation and restoration: Every child in the system has the right and should be reunited with his family at the earliest. The child should be restored to the same socio-economic and cultural status unless this goes against the child’s best interests.
- Principle of diversion: Judicial proceedings must not be used unless in the best interests of the child. Alternate measures for dealing with a child in conflict with law should be promoted and used.”
There were two major changes in the Act and were done in the years 2000 and 2015. The Juvenile Justice (Care and Protection) Act, 2015 is the latest act and is currently in force. Some major amendments were made in these. In the JJ Act, 2000, the definition of a juvenile was changed and the age was raised from 16 years to 18 years. The JJ Act, 2015 aims to consolidate the laws relating to children in conflict with the law and children in need of care and protection by considering basic needs. The Act also tries to focus on the rehabilitation of juvenile offenders.
A few important subjects dealt with in the Juvenile Justice (Care and Protection) Act, 2015:
A few extremely important things have been dealt with in the JJ Act, 2015. The Juvenile Justice Board, the concept of Children’s Court as well as the concept of juvenility.
- The Juvenile Justice Board: Section 4 of the Act deals with the Juvenile Justice Board. The Juvenile Justice Board is a board that is basically constituted for the sole purpose of hearing and inquiring into matters relating to a child in conflict with the law. This board is constituted of a Principal Magistrate and two social workers. Out of the two social workers appointed at least one of them has to be a woman. Principal Magistrate takes the final decision. Further, the Board is to not operate from a regular court. The aim of this is to shield and protect the juvenile in conflict with the law as well as to deal with them in a different manner than adult offenders. A procedure different than that of regular courts has been established for the Juvenile Justice Board. The hearing that takes place by the Juvenile Justice Board is to be kept informal as well as confidential.
- Children’s Court: The concept of Children’s court is dealt with under section 2(20) of the Act. The Children’s Court is a designated court for the trial of offences under the JJ Act. A children’s court has the competence and jurisdiction to try offences committed against children, punishment for which is an imprisonment term of 7 years or above as well as offences committed by children in conflict with the law. A court constituted under the Commissions for the protection of Child Right Act, 2005 and special courts constituted under the Protection of Children from Sexual Offences (POCSO) Act, 2012 are considered as children’s court.
- Concept of Juvenility: Under the JJ Act, 2015, a juvenile is a person who is below the age of 18 years. Further, it is important to note that the date of commission of crime is to be considered while figuring out the juvenility and culpability of the child who has allegedly committed the offence. Courts have had a differing viewpoint as to what date should be considered; the date of commission of the offence or the date at which the offence was tried. Later, the consensus was reached that the date of commission of the offence should be taken into consideration to decide the juvenility of the child in conflict with the law. Also, a child’s date of birth in the school register is admissible as evidence which helps in determining the age of the child.
Offences under the JJ Act
The Juvenile Justice Act deals with offences committed against children as well as offences committed by children in conflict with the law. The Act tries to have a wholesome approach and as many offences as one can think of that can be committed against children are mentioned in the Act. The Act also prescribes punishments for each of the offences.
- Disclosure of identity of certain kinds of children is prohibited and is a punishable offence. Newspapers and other people are prohibited from revealing the identity of children who have been involved in serious crimes or who have had serious crimes committed against them. (section 74)
- Punishment for cruelty to child: Cruelty done to a child will not be tolerated. It includes assaults, abandonment, and abuse as well as willful neglect. (section 75)
- Employment of child for begging is an offence. (section 76)
- Administering any kind of intoxicating substances or any kind of psychotropic substances to a child is also an offence under (section 77). Further using children to vend, pedal and smuggle such intoxicating substances like liquor or psychotropic substances is also an offence under (section 78)
- Exploitation of a child employee is also an offence. Children above the age of 14 years can be employed but their exploitation is strictly prohibited. Their wages need to be given properly in the proper currency and their work hours cannot be way too much. (section 79)
- Adoption needs to be done following proper procedures. If a child is adopted without following the proper procedure and guidelines, the person adopting the child can face punitive measures. (section 80)
- The sale and procurement of children for any purpose is illegal and is considered to be an offence and is punishable under the Act. (section 81)
- Giving corporal punishment to a child is also an offence. A child should not be punished physically. The punishment for administering corporal punishment to a child can go upto 3 years of imprisonment. (section 82)
- Use of child by militant groups or other adults for illegal purposes is strictly prohibited. (section 83)
- Kidnapping and abduction of child is an offence. A child should not be kidnapped or abducted at all. Provisions of the Indian Penal Code which deal with kidnapping and abduction shall apply here. (section 84)
- Offences committed on disabled children is looked down upon. It is considered to be worse than the other offences that are committed. Thus offences committed on disabled children carry twice as much punishment than the regular offence. (section 85)
- Abetment of any of the offences against children is also considered to be an offence and is punishable. (section 87)
It is to be noted that any of the offences mentioned above, if committed by a child, then the child will be considered as a child in conflict with the law. (section 89).
The offences that are committed by or against children are classified into three types of offences; petty offences (offences whose punishment is from 0 – 3 years), serious offences (offences whose punishment is between 3 – 7 years) and heinous offences (offences whose punishment is above 7 years). Section 86 of the act classifies these offences on the basis of them being cognizable or non-cognizable and bailable or non-bailable. It is also to be noted that if a person aged between 16-18 years commits a heinous offence or is alleged to have committed heinous offence, then this person will be tried in a court of law as an adult.
The Juvenile Justice Act is an important piece of legislation which was first brought into place for a better more uniformed approach and laws for the welfare of as well as protection and care of the children in need of protection as well as in conflict with the law. This piece of legislation was first put into place to adhere to international obligations and was later developed and changes were made in the years 2000 and 2015. This piece of legislation tries to be holistic legislation which is all-encompassing in nature with regards to the specific subject matter.
4. Sheela Barse v Union of India (1986) 3 SCC 632
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