Updated: August 5, 2021 8:25:00 am
The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021, which seeks to amend the Juvenile Justice Act, 2015, was passed in Rajya Sabha on July 28. The Bill was tabled in Lok Sabha during the budget session in March this year where it had received overwhelming support from both the ruling party as well as the Opposition.
What is the Juvenile Justice (Care and Protection of Children) Act, 2015, which is being amended through this new Bill?
The Act was introduced and passed in Parliament in 2015 to replace the Juvenile Delinquency Law and the Juvenile Justice (Care and Protection of Children Act) 2000. One of the main provisions of the new Act is allowing the trial of juveniles in conflict with law in the age group of 16-18 years as adults, in cases where the crimes were to be determined. The nature of the crime, and whether the juvenile should be tried as a minor or a child, was to be determined by a Juvenile Justice Board. This provision received impetus after the 2012 Delhi gangrape in which one of the accused was just short of 18 years, and was therefore tried as a juvenile.
The second major provision is with regards to adoption, bringing a more universally acceptable adoption law instead of the Hindu Adoptions and Maintenance Act (1956) and Guardians of the Ward Act (1890) which was for Muslims, although the Act did not replace these laws. The Act streamlined adoption procedures for orphans, abandoned and surrendered children and 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.
Why has the Juvenile Justice (Care and Protection Amendment) Bill, 2021 been brought by the government?
Women and Child Development Minister Smriti Irani, who tabled the Bill in Rajya Sabha, said the changes, which give increased powers and responsibilities to District Magistrates, were being made to not only ensure speedy trials and increased protection of children at the district level, with checks and balances in place, but to also speed up the adoption processes in the country.
According to the amendment, District Magistrates, including Additional District Magistrates, can now issue adoption orders under Section 61 of the JJ Act, in order to ensure speedy disposal of cases and enhance accountability. Adoption processes were currently under the purview of courts, and with an overwhelming backlog, each adoption case could take years to be passed. This change will ensure that more orphans in need of homes, will be adopted faster.
The District Magistrates have been further empowered under the Act to ensure its smooth implementation, as well as garner synergized efforts in favour of children in distress conditions. This means that DMs and ADMs will monitor the functioning of various agencies under the JJ Act in every district – this includes the Child Welfare Committees, the Juvenile Justice Boards, the District Child Protection Units and the Special Juvenile Protection Units.
The amendment has been brought in based on a report filed by the NCPCR in 2018-19 in which the over 7,000 Child Care Institutions (or children’s homes) were surveyed and found that 1.5 per cent do not conform to rules and regulations of the JJ Act and 29 per cent of them had major shortcomings in their management. The NCPCR report also found that not a single Child Care Institution in the country was found to be 100 per cent compliant to the provisions of the JJ Act. CCIs can be government-run, government-aided, privately-run or run through government, private or foreign funding. These institutions, while falling under the CWC and the state child protection units, had very little oversight and monitoring. Even to receive a licence, after an application was made, if the children’s home were to not receive a reply from the government within three months time, it would be “deemed registered” for a period of six months, even without government permission. The new amendment ensures that this can no longer happen and that no new children’s home can be opened without the sanction of the DM.
Now, DMs are also responsible for ensuring that CCIs falling in their district are following all norms and procedures. During the NCPCR survey, for instance, CCIs with large funds, including foreign funding, had been found keeping children in unsanitary conditions in portacabins.
Since the survey, the WCD Ministry shut down 500 illegal child welfare institutions that had not been registered under the JJ Act.
How will the Child Welfare Committees be monitored?
The DM will also carry out background checks of CWC members, who are usually social welfare activists, including educational qualifications, as there is no such provision currently. The DMs are also to check possible criminal backgrounds to ensure that no cases of child abuse or child sexual abuse is found against any member before they are appointed. The CWCs are also to report regularly to the DMs on their activities in the districts.
What are the changes made in offences by juveniles?
Under the 2015 Act, offences committed by juveniles are categorised as heinous offences, serious offences, and petty offences. Serious offences include offences with three to seven years of imprisonment.
Most heinous crimes have a minimum or maximum sentence of seven years. According to the Juvenile Justice Act 2015, juveniles charged with heinous crimes and who would be between the ages of 16-18 years would be tried as adults and processed through the adult justice system.
The Bill adds that serious offences will also include offences for which maximum punishment is imprisonment of more than seven years, and minimum punishment is not prescribed or is less than seven years.
Both heinous and serious crimes have also been clarified for the first time, removing ambiguity. This provision has been made to ensure that children, as much as possible, are protected and kept out of the adult justice system.
Heinous crimes with a minimum imprisonment of seven years pertain mostly to sexual offences and violent sexual crimes.
Presently, with no mention of a minimum sentence, and only the maximum seven year sentence, juveniles between the ages of 16-18 years could also be tried as adults for a crime like the possession and sale of an illegal substance, such as drugs or alcohol, which will now fall under the ambit of a “serious crime’’.
The Act provides that offences against children that are punishable with imprisonment of more than seven years, will be tried in the Children’s Court while offenses with punishments of less than seven years imprisonment will be tried by a Judicial Magistrate.
Have there been any concerns regarding the changes?
While the amendments have been welcomed by most, in its attempt to provide better protection to children in care of need, the challenge perceived is that of having given too many responsibilities to the DM.
The DM is in charge of all processes in a district including all task forces and review meetings, and the fear is that the JJ Act amendment may fall through the cracks or not be given a priority. To ensure proper implementation of the JJ Act, the DM will have to hold regular fortnightly meetings with all five arms – CWC, JJ Board, CCI, district child protection units and special juvenile police units.
Specific training in child protection rules will also need to be imparted, as district magistrates usually are not trained or equipped to deal with these specific laws.
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