According to UNICEF, the term \'children in conflict with the law\' refers any person below 18 years who has come in contact with the justice system for committing a crime or has been suspected of committing a crime. Most children in conflict with the law have committed petty crimes such as vagrancy, truancy, begging or alcohol use. But there are some who have committed serious offenses such as murder or sexual assault. Some children are coerced into crime by adults, knowing that kids would get away with lenient punishment.
In India, children in conflict with law are governed by the Juvenile Justice (Care and Protection of Children) Act, 2015 which replaced the earlier Juvenile Justice Act, 2015. The law relates to children alleged or found to be in conflict with the law and seeks to protect children in need of care by catering to their basic needs, adopting a child-friendly approach to adjudicate matters and to rehabilitate them. Children in conflict with the law or juvenile offenders have to be presented before the Juvenile Justice Board in each city. This statutory institution has been set up under the Juvenile Justice (Care and Protection of Children) Act, 2015. However, in many cases children are reported to the police, who then follow protocols set up for each case. In some cases children are provided with legal support.
Juvenile in Conflict With Law
Juvenile Justice (Care and Protection of Children) Act 2000, as amended in 2006
The Government of India enacted the Juvenile Justice Act in 1986. In 1989 the General Assembly of the United Nations adopted the Convention on the Rights of a Child. India ratified the UNCRC in 1992. The convention outlines the right of the child to reintegration into society without judicial proceedings where avoidable. Hence the Government, to fulfil the standards of the way, felt a need to re-write the law. Thus in 2000, the old law was replaced by the Juvenile Justice (Care and Protection of Children) Act.
In this act, a child or juvenile is defined as a person who has not completed his/her 18th year of age. It outlines two target groups: Children in need of care and protection and Juveniles in conflict with the law. This act protects not only the rights of children but a person's rights when he/she was a child. Meaning that if a crime or an incident took place while the person was a child, and then during the proceeding, the juvenile ceased to be of age, the case would continue as if the juvenile has not turned eighteen yet.
The second chapter of the Act addresses Juveniles in Conflict with Law (JCL). This section calls for the establishment of Juvenile Justice Boards (JJBs) where the State Government sees fit. JJBs must contain a Metropolitan or Judicial magistrate and two social workers, where one of the workers must be a woman. The magistrate is required to have a background in child psychology or child welfare. JCL cases can only be heard in the JJB and not by another court. The powers of the JJB can be exercised in a High court or Court of Session when an appeal has been made as part of the act, and the state is required to set up a number of institutions where the needs and protection of juveniles may be fulfilled. For the reception and rehabilitation of JCLs, the state must set up Observation Homes and Special Homes in every district or group of districts. The state may directly set up these homes or contract a voluntary organisation to do so. Observation homes are for institutions for juveniles while their proceedings are underway. After the proceedings of a particular case are complete, the JJB may decide that the rehabilitation of the child is not complete and hence place them in a Special home for no longer than three years.
When a police officer comes in contact with a juvenile, he must place the child with the Special Juvenile Police Unit (SJPU), who must report the child to the board without delay. Bail is available to juveniles in all cases as long as the Board finds the release of this child will not place him in any danger or in the influence of criminals. If the child is not released on bail, he is only to be placed into the custody of an Observation Home. The SJPU are responsible for informing the juvenile's parents of the arrest, as well as inform the Probation Officer who will make the necessary enquiries about the child.
The JJB must make an inquiry into the case, and if they determine the child is guilty of the crime, then they may release the child after advice and counselling. The child can be released either to his parents/guardians or into an institution, with or without a bond. The Board may also make the child pay a fine (if he is above fourteen and earns) or complete hours of community service. A social investigation report from the probation officer is required for the child to be discharged. The probation officers may be required to continue a follow up of the child even after discharge. A child can not be charged with the death penalty, imprisonment, which can extend to life imprisonment or committed to prison for inability to pay a fine or providing security for the bond.
Under this act, juvenile cases can not be processed with non-juvenile cases. A juvenile can not be rendered unfit or 'disqualified". Juveniles are not exposed to the media as magazines, newspapers and visual media are not permitted to release information about the juvenile. Juveniles who run away from the Observation or Special homes can be brought back without a warrant and without punishment. Cruelty (such as assault or neglect) towards juveniles in the home or by any person in charge of him/her is a punishable offence. This act also has provisions to penalise people who exploit children for a crime. A person who employs a child in a hazardous industry employs him/her for begging or provides a child with drugs or alcohol is liable to serve prison time and pay fines.
Chapter III addresses Children in Need of Care and Protection (CNCP). In place of a JJB, CNCP cases are heard by the Child Welfare Committee (CWC). The committee is meant to have a chairperson and four other members of whom at least one should be a woman and at least one expert in children's issues. The purpose of the CWC is to provide for the care, treatment, protection, rehabilitation and development of the child and, in doing so, uphold the rights of the child. The child may be brought in front of the CWC by a police officer, public servant, social worker, CHILDLINE, the child or anyone public citizen. The committee may commit a child to the Children's home or a Shelter home if the child has no immediately available family or support system.
Like in the case of JCL, CNCP is provided with Children's Homes and Shelter Homes. The state may directly set up these homes or contract a voluntary organisation to do so. Shelter homes are for children whose family can not be located or whose case has been completed. Children who come from a different area or state are meant to be transferred to an institution and CWC that is closest to his/her residence. The main aim of this system is to restore the child to his family or family environment after determining the safety of the environment.
The fourth chapter discusses the importance of rehabilitation and social integration as the purpose of this act. This section discusses certain non-institutional solutions, such as adoption, foster care, and sponsorship. Orphaned and abandoned children are eligible for adoption. The CWC may declare a child fit for adoption and refer him/her to an adoption agency (set up by the government) for placement. Foster care in this act is only for looking after infants before the adoption takes place. Sponsorship programmes are to help provide supplementary educational, nutritional, medical and other services to families, guardians, and homes. After-care organisations are also to be set up to take care of children after they leave their homes.
The last chapter of the act contains many miscellaneous provisions. Some of the notable provisions are as follows. The act allows for children with special needs such as a mental or physical disease to be given the necessary attention at an approved institution that specialises in the form of care. Under this act, the government can set up advisory boards at different levels to advise them about various implementation aspects of the act. The JJB and CWC have the authority to release a child to his/her parents or give the child leave because of a death in the family, a wedding, a school examination, etc. For the carrying out of this act, the state shall create a Child Protection Unit, whose officers are responsible for ensuring that the act is properly implemented. Rules for this act are to be made by each State Government.
To access CHILDLINE publications regarding the JJ Act, click on the following links: Child Protection & JJ System for Children in Need of Care & Protection and Child Protection & JJ System for juveniles in Conflict with Law.
The Juvenile Justice (Care and Protection of Children) Act, 2015 came into force on January 1, 2016, after the President of India gave his assent to the bill on December 31, 2015. The 2015 Act repeals and replaces the Juvenile Justice (Care and Protection of Children) Act, 2000. It provides to treat juveniles aged between 16 and 18 as adults if they are charged for commission of heinous crimes, a new legal position that has been criticised by the child rights activists.
The Ministry of Women and Child Development had introduced the Juvenile Justice (Care and Protection of Children) Bill 2014 in the Lok Sabha on 12th August 2014. It sought to make a more robust, effective and responsive legislative framework for children in need of care and protection as well as children in conflict with the law. Its provisions responded to the perceptions articulated by a wide cross-section of society for the need to have an effective and strengthened system of administration of juvenile justice, care and protection.
The Act provides that in case a heinous crime has been committed by a person in the age group of 16-18 years, it will be examined by the Juvenile Justice Board to assess if the crime was committed as a ‘child’ or as an ‘adult’. Since this assessment will take place by the Board, which will have psychologists and social experts, it will ensure that the rights of the juvenile are duly protected if he has committed the crime as a child.
The Act streamlines adoption procedures for orphaned, abandoned and surrendered children. It establishes a statutory status for the Child Adoption Resources Authority (CARA). The legislation further proposed several rehabilitation and social integration measures for institutional and non-institutional children. It also provided for sponsorship and foster care as completely new measures. It provided for mandatory registration of all institutions engaged in providing child care. New offences including illegal adoption, corporal punishment in child care institutions, the use of children by militant groups, and offences against disabled children were also incorporated in the proposed legislation.
The major amendments include removal of Clause 7 that relates to the trial of a person above the age of 21 years as an adult for committing any serious or heinous offence when the person was between the ages of 16-18 years; enhancing the period of preliminary inquiry by the Juvenile Justice Board in case of heinous offences committed by children in the age group of 16-18 years; increasing the reconsideration period for the surrender of children by parents or guardians; enhancing the period for inter-country adoption in case the child is not given for domestic adoption; assigning the role of designated authority to monitor the implementation of the Bill to the National Commission for Protection of Child Rights; and making the Central and State Governments responsible for spreading awareness on the provisions of the Bill.