Dichotomy Or Congruity: Decoding Juvenile Justice Amendment Act, 2021 (By-Shraddha Oberoi)

Dichotomy Or Congruity: Decoding Juvenile Justice Amendment Act, 2021

Authored By-Shraddha Oberoi

 

“The State shall take steps to separate the judiciary from the executive in the public services of the State”.

-Constitution of India

 

Introduction:

The juvenile justice system affects children who are in conflict of law and in need of care and protection. The greatest asset in any society or Nation are children and that is why they should be brought up as responsible citizens, mentally alert, physically fit, and morally healthy to contribute to the development of society. For various reasons, children indulge in crime.

 

In India, a person under the age of 18 is considered a minor. There is a difference between a young child and an adult child. A minor is a person who has not yet reached the age of full legal responsibility and a minor who has committed an offense or is in need of care and protection. In India, any child under the age of 7 cannot be found guilty of the doctrine of Doli Incapax which means they lack the intention for the purpose of committing a crime[1].

 

The main purpose of the juvenile justice system is to rehabilitate young offenders and give them a second chance. There are various reasons why children get involved in crime. The main reason is that their brains are not yet fully developed and do not have a complete sense of right and wrong. Children who have been exposed to alcohol or drugs and who have been victims of abuse or violence are more likely to commit crimes. When parents undergo poor parenting skills, abusive home, domestic violence, a single parent who has left a child unattended for a long time amounts to one of the various reasons of children committing any crime.

 

The impact of the news, movies, web sites, social media, and the lack of education are also factors that contribute to children becoming involved in crime.

 

The Juvenile Justice system has been adopted in western countries. The first law of the Juvenile Justice System is The Apprentices Act, 1850 and after that the Indian Penal Code (IPC), Reformatory School Act (1897), Code of Criminal procedure (1898) and Recommendations of the Indian Prisons Committee in 1920, stated alternative treatment for young offenders to older law enforcement. In 1920 the high court of the Madras ruled a children's law. Later, other states also passed the Children's Act. According to the act, the children were tried by a children's court[2].

 

After India's independence, the constitution provided for some of the provisions under the Fundamental Rights and principles of the National Policy Guidelines for the protection and development of children. The Indian government passed the Children's Act 1960. This practice prohibits the detention of children under any circumstances and provided care, welfare, training, education, nutrition, protection, and rehabilitation. This action only applies to Union Regions. The Act introduces three wheeled institutional systems. A home to watch during court proceedings, a home for neglected children, a special school for rebellious children. The Juvenile Justice Act of 1986 came into force to provide uniformity for the Children's Act and set the standard for child protection in accordance with the 1959 United Nations Convention on the Rights of the Child[3].

 

The Indian government repealed the Child Justice Act (JJA) and introduced a new law, the Child Justice Act (child care and protection). This action provides a clearer explanation for the children. It states that a child is a person under the age of 18 years. It has the best names like ‘lawlessness’ and ‘need for care and protection’. Youth in conflict with the law enforced by the juvenile justice board and youth in need of care and protection handled by a social welfare committee.

 

 

 

 

In 2006 an amendment was made to the Children's Act to make it clear that child is being considered from the day the crime is committed. The amendment also makes it clear that there is no condition for children to be detained or detained at a police station. The Metropolitan Magistrate or Court Magistrate reviews the board's independence every six months.

 

The Juvenile Justice (child care and protection) Act of 2015 was introduced in the country and replaced the Children's Act of 2000. The move was approved by parliament after numerous arguments and protests. Introduce more changes to existing legislation. This action allows children involved in the age group of serious crimes between the ages of 16-18 to be treated as adults. Making the child justice system responsive and in line with changing social conditions. The law provides a clear definition of orphaned, abandoned children and provides them with a formal plan for them. The Act even Describe child abuse, minor, and serious cases[4]. The law provides additional powers and functions to the child justice board and the child welfare committee[5].

 

Following the important Juvenile Act 2015, Policies, Organizations came up with child welfare measures such as the Child Protection Act for Sexual Offenses (POCSO), the Child Labour Act (Protection and Control), the POCSO Amendment Act of 2019, United Nations Convention on the Rights of the Child (UNCRC), National Child Labour Scheme and National Commission for the Protection of the Rights of the Child.

 

Crime is not just a crime that is forbidden under the law. It is a mistake that experts have described as morally wrong, and it often causes more harm than good. That is why crime is considered a crime against the state. In dealing with the accused in these cases, we are looking at people who are not only blatantly disrespecting the rule of law but also damaging public order. These violations are not limited to any party, as such, be it age, category, gender or any other category. Too often, with various crimes, we have seen that the criminal has to come together in order to stick to it, no category will be different from it, it is and its action. In a similar way, this stark contrast between a person under the age of 18 who was not tested as an adult was a misconception.

 

 

Juvenile Justice (Care And Protection Of Children) Act, 2015:

The involvement of child who is below 18 years of age in heinous crimes such as rape, murder forced the Indian legislature to introduce new laws and on January 15, 2016 the Parliament came up with Juvenile Justice (Care and Protection of Children) Act, 2015.

The purpose of introducing this Act was to replace the Juvenile Justice (Care and Protection of Children) Act, 2000 so that the children who are accused of heinous crimes can be tried as adults.

 

Notable Features of the Act:

The children are the future of the country and most of the times they are unaware about their rights due to which they become the victim of abuse and delinquent.[6] Due to the immature minds of adolescents in conflict with law there is a need to give proper guidance to them instead of putting them behind the bars with hardened criminals. With this approach the Juvenile Justice (Care and Protection of Children) Act, 2015 was introduced with the following additional features:[7]

• Principles of Care and Protection of Children were added under Sec 3 of the Act.
• The offences committed by a child were categorised into three main heads-

1. Petty Offences- where the maximum punishment of the offence is of three years in the Indian Penal Code.
2. Serious Offences- where the punishment of the offence lies between three to seven years in the Indian Penal Code.
3. Heinous Offences- where the punishment of the offence is more than seven years in the Indian Penal Code.

• Earlier in the Juvenile Justice (Care and Protection of Children) Act, 2000 the persons below 18 years of age were put under the same category irrespective of the offence they have committed but in the 2015 Act, the children in conflict with law were categorised into two classes:[8]

 

1. The children will be tried by the Juvenile Justice Board for petty and serious offences if they are below 18 years of age and for heinous crimes if they are below 16 years of age.
2. The children who have completed 16 years of age and below 18 years have committed heinous crimes will be treated as adults. This provision received stimulant response after the famous 2012 Delhi Gangrape case where one of the accused being a minor was tried as a juvenile.

• Another major feature introduced by the Parliament under this Act was a uniform system of adoption procedures for orphans, abandoned and surrendered children. This uniformly applicable law did not replace the Hindu Adoptions and Maintenance Act (1956) and Guardians of the ward Act (1890) for Muslims. This provision empowered the Central Adoption Resource Authority (CARA) as a statutory body so that they can perform their function more efficiently and effectively.

 

The Juvenile Justice (Care and Protection of Children) Act, 2015 indeed provided strengthened provisions for care and protection of children and also for children in conflict of law.

Instead of its stringent implementation there were loopholes in some of the provisions of the Act:[9]

1. The grounds on which the Juvenile Justice Board will decide whether to treat a child between 16-18 years of age as an adult or juvenile were not clear.
2. There was no clarity regarding Appellate Powers. Both Session Court and Children Court were given powers to hear appeals and condone the delay[10].

Constitutional Perspective Of Juvenile Justice (Care And Protection Of Children) Act, 2015:

Violation of Article 14 of the Indian Constitution

Under the Juvenile Justice Act, section 15 of the said Act violates the right to Equality. Section 15 gives different treatment to those children who lie in the age group of 16-18 as compared to those children who are below 16 years of age. The impugned section after going through proper

 

examination does not lays down any reasonable justification for discrimination provisions between the two age groups. Secondly, excessive powers are provided to the Juvenile Justice Board to decide upon the case by just giving a preliminary assessment that whether the Juvenile Justice Board will decide upon the matter or whether it will be transferred to the Children’s Court. While deciding upon the concerned issue the board must consider the mental capacity, physical strength and understanding about the consequences of committing the offence which has been alleged.

A standing committee was constituted prior to the passage of the Juvenile Justice (Cаre and Protection of Children) Bill, 2014 in Parliament to receive proposals from various stakeholders. Many stakeholders agreed that the provisions of the contested Bill are in violation of Articles 14 and 15 of the Indian Constitution. The Committee's report said unequivocally that the current juvenile justice system recognises youngsters between the ages of 16 and 18 as fragile and sensitive individuals who require the highest level of legal protection. As a result, the method taken at the time was not just reformative but also rehabilitative. The Justice Verma Committee, which was formed to bring necessary criminal amendments related to sexual violence against women, was of the opinion that the age of the juvenile should remain at 18 years and not be reduced to 16 years, based on available statistical reports, scientific evidence, and India's International Commitment on Protecting the Rights of Children. Discrimination between the two age groups also appears to be in violation of the Indian Constitution's Articles 14 and 15(3).

The detailed analysis of how the provisions of the Juvenile Justice Act violates the Right to Equality is mentioned as follows:

i. The lасk оf аny rationale/justified classification to treat Juveniles аbоve the age оf 16 years differently- 

The question of violation of Article 14 arises when the similar kind of people are treated differently. “Equality before Law” and “Equal Protection of Law” are contained under Article 14 of the Indian Constitution. The Supreme Court has laid down that both of the above expressions mean the same and in spite of “Equality before Law” the state has bestowed upon with powers to classify people only for valid reasons. But in under any case they Doctrine of Classification should not supersede the doctrine of Equality as the the doctrine of classification is only there as collateral rule in order to give practical legitimacy to the Doctrine of Equality.

 

The differentiation laid down under Section 15 of the said Act by classifying the juveniles into two age groups without any Intelligible Differentia results in Violation of Article 14 of the Indian Constitution and are also termed as unreasonable provisions.

In Subrаmаniаn Swаmy v. Rаju[11], the Supreme Court pointed out that any classification or categorization should not be based on strict mathematical rules. Even if certain differences get originated within the same class but broadly the features of the impugned provision are properly differentiated, reasonably categorized and properly identifiable to serve the objects of the said Act, then such classification does not violates the provision of the Article 14 of the Indian Constitution.

In State of W.B. v. Anwаr Ali Sаrkаr, the Supreme Court ruled that Section 5(1) of the WB Special Courts Act, 1950, was unconstitutional because it allowed the executive and legislature arbitrary power to decide which cases should go to a special court and which should not. If the inclusion of all people under the age of 18 into a category known as 'juveniles' is understood in the above manner, differences between individuals and within the 'under 18' category may occur. However, article 14 will accept the said position. "Recission and arithmetiсаl accuracy will not exist in the huge саtegоrisаtiоn, but such precision and accuracy are not what Article 14 contemplates". Separate classification of 16-18 year old juveniles does not adhere to or have any connection with the objective need to be met. According to Section 15 of the Act, the Juvenile Justice Board has the authority to conduct a preliminary investigation to determine whether a juvenile offender should be sent to rehabilitate or tried as an adult. Article 14's jurisdiction extends to the prevention of arbitrary and irresponsible state actions that are "anti-ethiсаl" to the rule of equality. As a result, the unreasonable categorization of minors in the age group of sixteen to eighteen years as per Section 15 of the Ct, being of such a arbitrary nature, is a grave violation of the right to Equality.ii. Seсtiоn 15 оf the Juvenile Justice Асt, 2015 being arbitrary in nature:

The way in which the Juvenile Board make the classification between the age group of children is arbitrary in nature and the same has been enunciated in detailed below mentioning the three aspects:

 

 

a) No permanent presence of psychologist during the preliminary assessment of the Juvenile.

As per the section 15 of the Juvenile Justice Act, it empowers the board that it may take the assistance of the qualified and experienced psychologists and psycho-social  workers specially in the assessment of juveniles who have committed heinous crimes in order to understand the psychological capacity of the juvenile. The concerned power is arbitrary in nature as the it is totally dependent upon the sweet whims of the board whether they want to take the assistance or not. Though the Supreme Court has not struck down such arbitrary provision but such an ambiguous and vague statute must be struck down at the earliest because of the uncertainty and lack of understanding of the impugned statute and it even violates the Fundamental Right of the concerned juvenile.

b. During the Preliminary Assessment of the juvenile there is shortage of qualified persons on the board.

The Соnstitution оf the Juvenile Bоаrd is been enshrined  in Seсtiоn 4 оf the Juvenile Justiсe (Саre аnd Рrоteсtiоn оf Сhildren) Асt, 2015[12]. The Section states that:

• “А Bоаrd shаll соnsist оf а Metrороlitаn Mаgistrаte оr а Judiсiаl Mаgistrаte оf First Сlаss nоt being Сhief Metrороlitаn Mаgistrаte оr Сhief Judiсiаl Mаgistrаte with аt leаst three yeаrs' exрerienсe аnd twо sосiаl wоrkers seleсted in suсh mаnner аs mаy be рresсribed, оf whоm аt leаst оne shаll be а wоmаn, fоrming а Benсh аnd every suсh Benсh shаll hаve the роwers соnferred by the Соde оf Сriminаl Рrосedure, 1973 оn а Metrороlitаn Mаgistrаte оr, аs the саse mаy be, а Judiсiаl Mаgistrаte оf First Сlаss.
• Nо sосiаl wоrker shаll be арроinted аs а member оf the Bоаrd unless suсh рersоn hаs been асtively invоlved in heаlth, eduсаtiоn, оr welfаre асtivities рertаining tо сhildren fоr аt leаst seven yeаrs оr а рrасtiсing рrоfessiоnаl with а degree in сhild рsyсhоlоgy, рsyсhiаtry, sосiоlоgy оr lаw.”

 

 

 

с. Also as per section 14(3) there is a shortage of time period to deal with the preliminary assessment by the Juvenile Justice Board. In case of heinous crimes the matter to be disposed by the Board only within the time period of three months from the day when the juvenile is produced for the first time before the board.  

The decision whether to treat the child as an adult or not on the basis of his understanding level, maturity level and other circumstances has to be taken by the Juvenile Justice Board only within the period of three months. The preliminary investigation of the juvenile will commence only when FIR is launched by the police.

The entire procedure is ambiguous and arbitrary in nature as though the time period taken by the Juvenile Justice Board is three months to decide whether to treat juveniles between the age group of 16-18 years of age as an adult or a child. Whether to send that juvenile in a reformative centre or to an adult jail. Also the time taken by the police to file charge sheet generally take time period of three months. By that time the Juvenile Justice Board decides the juvenile to treat him as an adult or not. In such cases the juvenile does not get enough time period to defend himself and also no opportunity is provided to such juvenile hence making the entire procedure arbitrary in nature. This ambiguous process debarred the child from the safeguards available for all the accused persons in the criminal justice system.

Doli Incapax And Juvenile:

"Aсtus nоn fасit reum nisi mens sit reа” meaning thereby that a person cannot be held guilty just by doing an act, he must have an intention also to commit an act. In order to try any person under criminal law both actus reus and mens rea are important to be established. Actus reus means any physical bodily movement to commit any crime. Apart of having voluntary bodily movement there must mens rea too to commit such a bodily movement. Mens rea refers to guilty or malice mind to commit such an act. Also a person having guilty mind must be aware of the consequences of his act which could be turned into a criminal offence as per the Indian Penal Code. When both the principles: actus reus and mens rea are combined then only a person can be held guilty for a criminal offence. However when we talk about juveniles in India, the law has always dealt them in a different manner as compared to the adult criminals.

 

However the crimes committed by children below seven years of age are treated under the Indian Penal Code very minutely as it declares that "nоthing is аn оffenсe whiсh is dоne by а сhild under seven yeаrs оf аge.” Further seсtiоn 83 оf the Соde reаds[13]:

“Nоthing is аn оffenсe whiсh is dоne by а сhild аbоve seven yeаrs оf аge аnd under twelve,  whо hаs nоt аttаined suffiсient mаturity оf understаnding tо judge the nаture аnd соnsequenсes оf his соnduсt оn thаt оссаsiоn”.

The Indian penal provisions have taken into consideration the famous concept of doli incapax according to which the crime committed by children below seven years of age have given complete exemption from liability. This is a sound provision and was added based on sound principles, wisdom and experience of the legislator. Further the provision does not require any amendment ahead.

The law has also given protection to the children between the age group of seven-twelve years. Unlike under section 83 these children are not exempted completely from their liability but their liability will be decided upon the maturity level and their understanding to determine the nature and consequences of the criminal act, hence imposing limited liability on the child. In order to determine the liability of the children above seven years of age is some difficult. The criminal law system has somewhat taken a discriminatory view when it comes to determine the liability of the children between 7-12 years of age. In order to determine the liability in every case one has look into the entire circumstances of the case  in order to disprove the intention necessary for commission of any crime and also to prove the incapacity of a wrongdoer in reference to his age. In order to invoke section 83 of IPC, which is a privileged section but still one has to disprove the required intention for the commission of the crime and to prove the incapacity in reference to age of the wrongdoer. 

In Hirаlаl Mаlliсk vs. the Stаte оf Bihаr[14],in the given case the Supreme Court instead of section 83 upheld the conviction of a 12 year old boy along with his two brothers for  murder and stated that

 

the onus of proving the child’s immaturity and lack of understanding in knowing the consequences of the act is on the defence but he did not invoke section 83 at any particular stage of proceedings. Also this case was further converted into voluntary causing grievous hurt by dangerous weapons by High Court.

In  Kаkоо vs. the Stаte оf Himасhаl Рrаdesh[15],in this case a 13 year old boy was convicted for raping a two year old girl. In defence the counsel for the accused urged to court to kindly consider the provisions of section 83 and 84 of the Indian Penal Code to treat the juvenile differently as of an adult. The court however took his defence into consideration and for a heinous crime like rape reduced the punishment of the accused but convicted him for the said offence.

The question of whether the principles of criminal responsibility enshrined in the phrase mens rea should apply to the juvenile justice board is one that does not lend itself to a simple answer. The juvenile justice system as a whole has a distinguishable feature in that, unlike the criminal justice system, the juvenile machine goes about its business with avowed single-mindedness. A single рrinсiрle hаs сhаrted the bоаrd's dirесtiоn; аlmоst аll disрutes thаt hаvе аrisen in this аrea hаvе been resоlved by resоrt tо the рhilоsophy оf dоing whаt is in the best interests of the child. When a juvenile is charged with a crime, the prosecutor and the defence attorney's goals are to prove and disprove, respectively, the mens rea aspect of the alleged crime. The "reаsоnаble рersоn" is typically established as the reference point for the lowest level of criminal responsibility negligence.

Improper prosecution оf children fоr аny reasоn, including relying upon the reasonable standards which are improper in nature, is harmful for the individuals and the society. Firstly, any proceedings under the juvenile system has far fetch consequences on the life of a juvenile. When a juvenile is considered as “deviant” and is treated like an “outsider”, this seldom promotes delinquency. Such juveniles in the long run face a lot of negative impacts on various spheres of their life such as education, employment, career opportunities in government jobs and army, accommodation facilities also in adult criminal sentencing policies. Secondly, It is generally

 

considered that delinquency is often committed by all the youths at some point in their youth lives, some may be behave delinquently as occasional offenders and such system holds a person as criminally liable and the punish the same in error. Thirdly, how we define criminal responsibility has far-reaching ramifications.

As far as Indian Penal Code is considered the main aim of the statute is to protect the juveniles from any criminal liability. The main purpose behind this is that law never intends to punish those who lack sound wisdom and understanding of their acts. In such cases the presence of mens rea or ill intention is not prevalent. However on the other hand it is sad the Juvenile Justiсe Асt, 2015 is not in consonance with the basic fundamental principles of the Indian Constitution. The Act actually defeats the sole purpose of providing immunity from criminal liability to children under sections 82 and 83 of the Indian Penal Code.

Judicial Pronouncements:

1. Durga vs state of Rajasthan[16]

This case brought some breakthrough in the Juvenile Justice (Care and Protection) Act, 2015. As there were many loopholes in the administration system of the Juvenile Justice Board which were clearly pointed out in the present case. As per section 15 of the Act, for the purpose of preliminary assessment of the juvenile a committee consisting of psychologists and рsyсhо-sосiаl workers with a lot of experience need to be established. Such committee should be consulted to deal with the immature minds of the juvenile. In this particular case the Rajasthan High Court pointed out a girl named Durga was not provided any opportunity of being heard. There was no committee established for her assessment. Also, the principles of natural justice were not followed effectively, due to which she was sent to the MBH Hospital for psychiatric treatment without any valid justification. The court stressed upon the loopholes in the system due to which the juveniles had to face harsh consequences. The court even laid stress upon the mandatory requirement of section 15 of the Act to be followed along with Rule 10A of the Model Rules, 2016.

                   

Such case opened the eyes of the judicial system and law makers regarding the ineffective execution of the provisions of Juvenile Justice Act, 2015.

1. Shilpa Mittal v. State of NCT of Delhi and Another [17]

In this case another important lacuna was pointed out in the enactment of the Juvenile Justice (Саre  аnd  Рrоteсtiоn  оf  Сhildren)  Асt,  2015. It was stated that the Act has not made it clear that offences which does not have minimum punishment and maximum punishment for the same is more than seven years would come under the category of “heinous offences” or not. Even status of offences where minimum punishment is less than seven years is still unclear. However, the Supreme Court has laid down that for offences where minimum punishment of less than seven years is not provided, such offences cannot be considered as serious offences. The Act has not into consideration the 4th kind of an offence where no minimum sentence of punishment is provided where the maximum sentence of punishment is seven years. In such scenario till the time the Legislature makes any amendments or changes keeping in view the resent lacuna in the Enactment, such offences shall be treated as “Serious Offences” within the meaning of this Act.

1. Rajiv Kumar vs. The State of Bihar [18]

In this case it was settled by the court that only those cases which come under the ambit of ‘heinous offence’ require preliminary assessment by the board. The appellant in this case did not commit any ‘heinous offence’ and hence the Board could not conduct any preliminary assessment by the committee consisting of Psychologists, Psycho- social workers to understand the maturity of the juvenile, his physical capacity to commit any crime and also his mental ability for commission of such crimes as it is laid down under section 15 of the Juvenile Justice (Саre аnd Рrоteсtiоn оf Сhildren) Асt,  2015. Also, the court held that such cases under any circumstances be transferred to the Children’s court for trial as an adult under section 18(3) of the Act.

 

 

 

1. Sасhin Vs. Stаte оf U.Р. аnd Аnоther[19]   

Merely the seriоusness оf the оffenсe is nоt the sоle fасtоr which would соntrоl the decision whether the сhild in соnfliсt with lаw is tо be enlаrged оn bаil оr nоt.  This was taken into consideration by the honorable court in this case.

As per the amending Act, section 15 lays down that a juvenile can be transferred to the Children’s Court for trail as an adult. A child who is above 16 years of age and has committed any heinous crime, the Juvenile Justice Board is required to pursue a preliminary inquiry of the juveniles in respect to their maturity of the juveniles, their physical capacity to commit any crime and also their mental ability for the commission of such crimes. After making this assessment if Board reaches to a conclusion that trial of the child needs to begin as an adult the matter as per section 18(3), the matter would be transferred to the children’s Court.

It is pertinent tо mention here that Section 12 оf the Juvenile  Justice  (Саre  аnd  Рrоteсtiоn  оf  Сhildren)  Асt  hаs  nоt  been  аmended  sо  fаr  аs  the  раrаmeters  аnd  yаrdstiсk  fоr  grаnting  bаil  tо  the  juvenile-ассused is соnсerned. Hence, while rejecting the bail application of the juvenile the criterion is not that he has committed any heinous or serious crime but the bail order must shoe that if juvenile is granted any bail then under such circumstances there are chances of him being associated with hard core criminals or there could be any рsyсhоlоgiсаl, рhysiсаl or moral threat to the accused juvenile or under some cases there are chances of justice being defeated if bail is granted. Therefore, in order to ensure justice to the juvenile, it is essential that all these conditions are duly met.

Overview Of The Juvenile Justice (Care And Protection Of Children) Amendment Act, 2021:

The childhood is the most innocent stage in one’s life. It is believed that the child is the most selfless person on this earth and hence protection of their basic rights shall be the utmost priority. Pertaining to the uniformity in laws relating to child in India The Juvenile Justice (Care and Protection of Children) Act, 2015 was enacted by repealing earlier enactments relating to same.

 

The law was in conformity with the provisions of various International Conventions[20] and the Constitution of India.[21]

 

In 2020, the Supreme Court of India in the case of Shilpa Mittal vs State Of NCT of Delhi & Anr[22] observed that:

“36………. However, in view of what we have held above, the Act does not deal with the 4th  category of offences viz., offence where the maximum sentence is more than 7 years imprisonment,   but   no   minimum   sentence   or   minimum sentence of less than 7 years is provided, shall be treated as ‘serious offences’ within the meaning of the Act and dealt with accordingly till the Parliament takes the call on the matter”

In the pursuance of the same The Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 received the assent of the President on the 7th of August, 2021. The intervention made by the new amendment brought some major improvements with special reference to responsibilities.

The fundamental changes brought by the amendment in The Juvenile Justice (Care and Protection of Children) Act, 2015 are discussed as follows:

 

1. Changes in the Classification of offences:

• Amended the definition of ‘serious offences’

The new Amendment Act, 2021 brought some changes in the types of offences. The Juvenile Justice Act, 2015 states that the Juvenile Justice Board will conduct the inquiry for all the offences done against the child including the heinous crimes, serious crimes and the petty offences. The definition of ‘serious offences’ under the Act has been amended by the new Act, 2021. The new definition has widen the scope of offences falling under this category. According to section 2(54) of the Act, "severe offences" are those for which the punishment under the Indian Penal Code or any other legislation in effect at the time is:

1. a minimum term of imprisonment of more than three years but not more than seven years; or

 

 

1. a maximum sentence of imprisonment of more than seven years but no minimum term of imprisonment or a minimum term of imprisonment of less than seven years.[23]

So we can conclude that after the amendment the serious offences also covers the offences whose either the minimum punishment is not mentioned or the minimum punishment is less than seven years and the maximum punishment is more than seven years.

• Non-cognizable offences

The Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 has made the changes in the nature of offences punishable with the imprisonment from three years to seven years from cognizable to non-cognizable offences.

 

1. Amendment in the Adoption & Procedure of ‘Adoption Orders’

The Chapter VIII of The Juvenile Justice (Care and Protection of Children) Act, 2021 has been amended which deals with ‘adoption of child’ containing sections 56 to 73.

Earlier the adoption orders were being passed by the Courts in India but due to burdensome work by courts, the power to issue the adoption orders have been given to District Magistrates. This change would ensure that more and more children in need of care and protection will get their adoptive families as earliest as possible. Under the JJ Act, 2015 after the acceptance of the child by the prospective parents, an application has to be filed in the court with the view to obtain the adoption orders.[24] But now this duty to pass the adoption orders will be performed by the District Magistrate including the Additional District Judge.

Section 38(5) of the Act further states that every month, the District Magistrate shall be informed of the number of children declared legally free for adoption and the number of cases pending for determination in the manner prescribed.[25]

 

 

 

 

1. Child Welfare Committee

The new amendment has brought about many major changes in the provisions relating to Child Welfare Committee. The section 27 (4A) dealing with eligibility criteria for being the member of Child Welfare Committee has been inserted by the Amendment Act, 2021. It states that any person would not be eligible to be a member of Child Welfare Committee if he/she:

1. has a history of violating human or child rights,
2. has been convicted of a crime involving moral turpitude,
3. has been removed or dismissed from the service of the Government of India or a state government,
4. has ever engaged in child abuse, child labour, immoral acts, or any other violation of human rights or immoral acts, or

has been convicted of a crime involving moral turpitude, or (v)is part of management of a child care institution in a District.”[26]

 

Further the Committee also has to submit a report to the District magistrate for quarterly review according to section 27(8) of the Act. The complaint relating to any grievance arising out of the functioning of the Child Welfare Committee may be filed before the District Magistrate and the latter shall take the cognizance of the case and pass the appropriate orders.[27]

A new clause (4) has been inserted in section 40 of the Act. The clause (4) states that the Child Welfare Committee has submit a quarterly report regarding restored, dead and runaway children to the State Government and the District Magistrate in such form as may be prescribed.

 

1. Powers of ‘District Magistrate’

The Amendment Act has increased the powers and responsibilities to the District Magistrate in order to reduce the burden of Juvenile Justice Boards and speedy trial of cases. It will also ensure the protection of children at various levels. Further, now the District Magistrates can also

 

pass the adoption orders under Chapter VIII of the Act.

Now the District Magistrate can supervise the District Child Protection Unit as well. The District Magistrate shall conduct a quarterly review of the functioning of the Child Welfare Committee under section 27(8) of the Act. Further the latter shall submit a report to the former on quarterly basis regarding restored, dead and runaway children. Further the powers of the District Magistrate has been increased in respect to Child Welfare Committee.

 

1. Appeals

The Amendment act provides that any aggrieved person by the adoption order passed by the District Magistrate can file an appeal within 30 days to the Divisional Commissioner.[28]

 

1. Designated courts

All the offences under the Act shall be triable by the Children’s Court according to section 86(4) of the Act.[29]

 

Critical Analysis Of The Juvenile Justice (Care And Protection Of Children) Amendment Act, 2021:

In order to provide speedy justice to the child in conflict with law and child in need of care and protection an amendment has been made in The Juvenile Justice (Care and Protection of Children) Act, 2015. The aim of the amendment is to provide thein 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.

According to Hon'ble Chief Justice Mr. Deepak Verma of the Rajasthan High Court, "Everyone is concerned about the rising backlog of cases in the courts." The right to a quick trial has already been determined by the Supreme Court to be an integral aspect of the fundamental right to life and liberty guaranteed in Article 21 of the Constitution. Hussainara Khatoon vs. Home Secretary, State of Bihar, and Sheela Barse vs. Union of India both held this to be true. It is necessary to quote the following Supreme Court passage:

 

 

"The consequence of violation of fundamental right to speedy trial would mean that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right."

Judiciary is considered as the last interpreter of the Constitution and is thus sentinel at qui vive to defend the constitutional essentials, promises and aspirations of we, the people. Here I would like to quote what former Chief Justice of India Mr. Justice R.C. Lahoti once stated:

"The seekers of justice approach the Courts of justice with pain and anguish in their hearts on having faced legal problems and having suffered physically and psychologically. They do not take law into their own hands as they believe that they would get justice from the Courts........ we owe an obligation to them to deliver quick and inexpensive justice shorn of the complexities of procedure."[30]

 

 So, from the above speech we can conclude that speedy trial and trained experts are essential elements to render a fair justice.

 

As the new amendment gives wide powers to the District Magistrate, it will affect the competency and efficiency in many cases. As the District Magistrate is an executive officer and has administrative functions to perform and already overburdened with the entire work of a district, so transferring the power of passing the adoption orders might lead to delay in justice and also might compromise with the child welfare. So in this regard, the Ministry while taking into consideration the above facts shall provide the appropriate support to the District Magistrate so the justice is ensured and is not compromised in lieu of day to day administrative tasks. The doctrine of separation of power is somehow fading away because of the new provisions inserted in the Juvenile Justice (Care and Protection of Children) Act, 2015 by the recent Amendment Act of 2021 which is the essence of our Indian constitution.

Furthermore, to render justice, it is important that the person passing adoption orders of children shall be experts well trained in matters relating to juvenile as they are very sensitive and requires a lot of documentation, verification, and decision to be taken in best interests of the child. Besides that, the appeal in the cases related to adoption orders of child under this Act has not been allowed, which might lead to injustice.

 

It could be concluded by the above cited observations that rather than new amendments relating to the punishments and deciding whether a juvenile shall be leniently punished or not punished at all, it is better to work upon the implementation of the Acts and laws relating to juvenile in India. The increasing crime rate in India demands the proper implementation of laws and speedy trial along with fair & equitable justice.

 

Conclusion

While most people have applauded the modifications for attempting to ensure better safety for children in foster care, the challenge identified is that the DM has been given too many responsibilities. The DM is in control of all district processes, including task groups and review meetings, and there is concern that the JJ Act revision would slide between the cracks or not be given priority. The DM would have to attend regular fortnightly meetings with all five arms – the CWC, JJ Board, CCI, district child protection units, and special juvenile police units – to oversee the implementation of the JJ Act. District magistrates are typically not prepared or equipped to deal with these specific regulations, so special training in child protection rules will be required. The impact of the measure will be judged by how it is implemented in the real world, even if it appears revolutionary on paper. The amendment aims to improve the safety of children, including those who need legal protection and those who are in legal trouble, as well as speed up the adoption process, showing that the juvenile justice system has a promising future. It appears to be a constructive bill that fosters transparency and accountability for the sake of children's best interests. Long-standing failures to enforce juvenile laws have resulted in a rise in minor crimes, minor agency failures, lengthy adoption procedures, corruption, and other difficulties. The most recent change is a much-needed step that has been applauded by many, but it will not yield benefits unless officials, particularly District Magistrates, are adequately taught and overseen, and the criteria are enforced.