To

Shri N.S. Walia

Director, Rajya Sabha Secretariat,

Room No. 515, Fifth Floor,

Parliament House Annexe, New Delhi- 110001.

(Tel: 23034187 and Fax: 23793633)

E-mail: rsc_hrd@sansad.nic.in & committeehrd@gmail.com

Please find attached a Memoranda on the proposed Juvenile Justice (Care and Protection of Children) Bill 2014 addressed to the Department-related Parliamentary Standing Committee on Human Resource Development headed by Shri Jagat Prakash Nadda, MP, Rajya Sabha. We request you to consider these opinions seriously and favorably in the finalization of the bill and the consequent Act.

Please note that the time given to elicit comments from the public is very short and does not speak positively for the accountability and transparency of the Rajya Sabha Secretariat. In fact the secretariat as a Public Authority could have used its suo-moto powers under Section 4 of the Right to Information Act and Published in all leading newspapers in English and Regional Languages the full text of the bill 2014. Having not done this, we require that the Rajya Sabha Secretariat provide additional time until November 30^th for receiving views from the public. If this is accepted an advertisement, fairly prominently, should be made in all leading newspapers together with publishing the full text in the same newspapers as per the requirement under Section 4 of the Right to Information Act.

We also use this occasion to request you for a meeting to provide oral evidence to the standing committee or Shri Jagat Prakash Nadda, MP, Rajya Sabha.

Your Sincerely,

Contact Addresses:

Human Rights Advocacy and Research Foundation

No.54, LDG Road, Little Mount, Saidapet, Chennai – 600 015. Tamil Nadu.

Ph: 044 – 22353503, Mob: 9841053936, Email: humanrightsadvocacyandresearch@gmail.com

Centre for Child Rights and Development – CCRD

Pillaiyar Koil Street, Near Panchayat office, Pattipulam, Mamallapuram – 603 104, Kanchipuram District. Tamil Nadu. Mob: 9444406060, Email: ccrdtamilnadu@yahoo.in

Department Related

Parliamentary Standing Committee

on Human Resource Development

Memoranda on the Juvenile Justice (Care and Protection of Children) Bill, 2014

Contact Addresses:

Human Rights Advocacy and Research Foundation (HRF)

No.54, LDG Road, Little Mount, Saidapet, Chennai – 600 015. Tamil Nadu.

Ph: 044 – 22353503, Mob: 9841053936, Email: humanrightsadvocacyandresearch@gmail.com

Centre for Child Rights and Development – CCRD

Pillaiyar Koil Street, Near Panchayat office, Pattipulam, Mamallapuram – 603 104, Kanchipuram District. Tamil Nadu. Mob: 9444406060, Email: ccrdtamilnadu@yahoo.in

Parliamentary Standing Committee on Human Resource Development Memoranda on the Juvenile Justice (Care and Protection of Children) Bill, 2014

Introduction

The Department of Women and Child Development, Government of India has brought out a bill on Juvenile Justice (Care and Protection of Children) bill, 2014 to replace and repeal the Juvenile Justice (Care and Protection of Children) Act, 2000 which was amended in 2006 and also in 2011. Frequent changes in legislation like this would hamper the very objectives of child rights preservation, development of children and approach towards their holistic development including the protection issues, child rights activists, legal experts have viewed and advocated.

Perspective Imperatives for a Policy on Juvenile Justice (Care and Protection of Children) Bill 2014

Justice to Children

The goal of the justice for children approach is to ensure that children[1] are better served and protected by justice systems. It specifically aims at ensuring full application of international norms and standards for all children who come into contact with justice systems as victims, witnesses and alleged offenders; or for other reasons where judicial intervention is needed, for example regarding their care, custody or protection[2]. Whatever the reasons for children being in contact with justice systems, they are usually dealt with by the same institutions and professionals.

Access to justice can be defined as the ability to obtain a just and timely remedy for violations of rights as put forth in national and international norms and standards (including the CRC). Lack of access to justice is a defining attribute of poverty and an impediment to poverty eradication and gender equality. Proper access to justice requires legal empowerment of all children: all should be enabled to claim their rights, through legal and other services such as child rights education or advice and support from knowledgeable adults.

There is a correlation between poverty and child’s development. Poverty deprives children from being treated with dignity and honour. Either direct or indirect, children are the worst victims of poverty.  Children living in poverty not only experience material deprivation but also emotional and spiritual impoverishments that are also abrogation of their rights. These dimensions of child poverty and their interaction with material deprivation and lack of community resources are poorly researched and documented, and internationally comparable data related to child protection is still sparse. (The status of world children 2005-UNICEF).

Hundreds of millions of children are especially in difficult circumstances mostly in urban setting either due to migration or run away from home due to multifaceted reasons. They engage in picking rubbish, shoe polishing, porters, vendors, street boys and they are always at the risk of either being evicted or being caught by police. Children in difficult circumstances are therefore those who were/are destitute, abandoned, neglected, abused, child labour, street children, begging children, children infringing criminal laws etc. Without opportunities for education due to learning difficulties or disabilities or lack of opportunities, inaccessible health care, and nutritional supports etc., they engage in various activities in unorganized or informal labour sectors. In view of these factors, they look dirty and face discrimination, exploitation, abuse and ill treatment. Hence, an important conceptual distinction of children in difficult circumstances   need be made. They may be (1) visible children like street children, begging children, child labour etc. (2) Children who are away from the public eye (working in poor urban hood) and (3) children whose problems have not been fully recognized – invisible children (children in domestic work). The above factors are the ground realities of the juvenile justice system. The need is not criminalizing children by reducing the age of juveniles’ conflict with law but to strengthen the service deliveries effectively through preventive and curative initiatives with the social reintegration of vulnerable children.

The Justification for the Juvenile Justice (Care & Protection of Children) Bill, 2014 is not valid.

The December 16, 2012 gang rape has made people to react to the outrage of women and children and their abuses were being poorly handled at all level as one among the accused in the case was a juvenile and who has been accused of committing the brutal, inhumane and barbaric nature of crime on the victim. But, this has been disputed as there was no eye witness in the case except the co-victim of the offence who was also thrown out while the brutal crime was committed.  Therefore there was a hue and cry and there were lobbies for redefining the Juvenile in Conflict with law as a person who has alleged to have committed an offence and has not completed 16 years of age on the date of commission of crime/ at the time of commission of crime.

Investigating Officer Anil Sharma went on record to state that police investigation found nothing to conclude that the juvenile accused in the Nirbhaya case was the most brutal. The fallacy, of him being the most brutal, was perpetuated by the media (the same media that then reported his not being the most brutal) and lapped up by the public. Therefore, there is no strong ground for the amendment of the Juvenile Justice (Care and Protection of Children) Act, 2000 taking into consideration of the Delhi rape-case.

Further people lobby for the reduction on the definition of Juvenile in Conflict with Law from 18 years to 16 years as there is a sudden and rapid increase of crime committed by juveniles in the age group of 16 and 18 years. This is also not factual. The statistics published by the Bureau of Police Research & Development, New Delhi annually has shown no adverse trend. This is exhibited in the annexure. The statistics for the period from 2006 to 2013 was analyzed and has shown a constant status of juvenile infringing criminal laws. Therefore, this also not a valid reasons for criminalizing children and thereby destructing the human resources in the country.

Vulnerability of children in the age group of 16 and 18

The educational policy has insisted that no children shall be retained in any classes till they are promoted to 9^th standard. The purpose was to ensure the children to have learning environments through proper guidance and support and prevent children being branded as “incapable.” Therefore, children in schools till they complete their primary education (8^th standard) and it means sizable children were/are certainly in schools till they attain 14 or 15 years.

Pratham, New Delhi brings out Annual Status of Educational Report every year. Analysis was made regarding the educational status of children in Tamil Nadu based on the report published by Pratham. Though the State of Tamil Nadu is a progressive State in terms of providing education, the ASER reports has indicated that there were/are sizable children do not have the ability to read, write and do simple mathematics. Such children were/are mostly from poor families and their parents were/are daily wagers. Such children could be the victims of the prevalence of learning difficulties or learning disabilities or the lack of learning opportunities. Such children are unable to cope the educational pressure in the school after 8^th standard and therefore dropout from schools and coming into contact with the community as street child or working child or runaway child. Such children are/were easy fallen to the false promises of gangs and antisocial and involve in crime and delinquency. The statistics on ASER Report is positively correlated with the profile of juveniles infringing criminal law. The National statistics and the Tamil Nadu Crime statistics’ are in the same wavelength. Therefore, children infringing criminal laws require constructive interventions at the school and at the community level to reduce the level of children’s learning difficulties or disabilities or the lack of opportunities. Hence, the children infringing criminal laws in the age group of 16 and 18 were mostly those who have dropout from schools because of the difficulties in learning. If constructive measures were initiated at the school and the community level, children dropout from schools would be minimized and such children would concentrate on their education. Since, the learning difficulties of children induce or push them  to come into contact with the community as street child or working child, they have been easily target and exploited by gangs and antisocial. Their poor level of thinking and analyzing the consequences make them being targeted easily. Therefore, there is no valid ground to argue that juveniles in conflict with law were in the age group of 16 and 18 and that necessitated the reduction in the upper age limit from 18 to 16. Such move would further jeopardize the development of human resources in the country. Therefore, there are no substantive reasons to reduce the upper age limit of children in conflict with law from 18 to 16 years.

Age of criminal responsibility

In India the Criminal responsibility of children has been defined in the Indian Penal Code. Section 82 of IPC has defined that “nothing is an offence if it is committed by a child less than seven years of age.” Further, Section 83 of IPC has also defined that nothing is an offence if it is committed by a child above seven years and less than twelve years, who has not attained sufficient maturity or understanding to judge  the nature and consequences of his conduct on that occasion. But, the age of criminal responsibility vary from country to country. Criminal responsibility means the level of maturity of a person who commits a crime. In crime and delinquency, the mensrea or the actusrea has to be established and this is the base for providing punishment. In the case of children the possibility of establishing mensrea or actusrea is not feasible.

The Age of No Criminal responsibility in various countries

In the context of age, there were two contrasting senses of criminal responsibility. The first sense concerned the capacity of a person to engage in criminal conduct. The second related to the process whereby a person was held answerable for such conduct. The distinction between responsibility as capacity and as answerability was important for the more pragmatic outcomes. Therefore, children do not deserve punishment, at least in any sense of criminal punishment, in the same way as adults. After all, they are only children and do not have the same level of development of their mental and intellectual capacities as adults. (Gerry Mather, Professor of Criminal law).

At some age, the stage of a child’s moral and intellectual development would be reached, such that, at and above that age the child could be treated as a responsible agent (for purposes of the criminal law), and below that age the child could not be so treated. The question then became one of determining that age, and as the issue seemed to involve child development, the answer would be discovered by consulting the works of child psychologists.

There were two different ways in which a legal system could deal with “age of criminal responsibility.” In the first sense this is the age below which a child is deemed to lack the capacity to commit a crime. By contrast another sense of age of criminal responsibility is the point at which the age of a suspect or offender has no relevance for his treatment or disposal as part of the criminal justice system, most typically the age at which an accused person becomes subject to the full, or “adult,” system of prosecution and punishment. Therefore, instead of criminalizing children by reducing the age limit, it is required to strengthen the system rather than approach a short cut method which would harm the development of children from under privileged families who have been the victims of juvenile justice system.

Critical analysis of statistics on Juvenile in Conflict with Law

On a perusal of the bill, it is understood that the Government desire to reduce the upper age of children in conflict with law from 18 to 16 through back door. It means, the juvenile in conflict with law shall be a person who has been alleged to have committed an offence and has not completed 18 years of age. But, with regards to the handling of children infringing criminal laws in the age group of 16 and 18 years who have involved in heinous crime, provisions have been made for differential treatment.  Therefore, there are possibilities for the children affluent families and influential families shall get benefit and the children from poor families would be branded as criminals.

On a perusal of the statistics of juveniles infringing criminal laws being published by the National Crime Record Bureau, New Delhi, it is evident that there is no alarming trend or rapid increase of heinous crime committed by children in the age group of 16 and 18. Apprehension of juveniles in the age group of 16 and 18 could be mostly in petty crimes also. Further, the NCRB statistics lack clarity on the heinous crime committed by juveniles as there is no substantive statistics available in this context. Further, there are no indicators in how many heinous crimes were committed by juveniles in the age group of 16 and 18 and in how many cases, such juveniles committed crime along with the adults and what is the percentage on such cases are not available. From the classification of crime, it appears there are possibilities for the juveniles have been framed and exploited. Example in the dowry death, women harassment and similar such offences for which the juveniles have been apprehended, there were possibilities of such framing. Because of the percentage of children in the age group of 16 and 18 years apprehended have been little high comparative to the children in the age group of 12 and 16, we could not conclude that they were more prone to crime and delinquency, unless a scientific data collection on various probabilities of crime committed by juveniles have been published.

Further an analysis was made regarding the types of disposition ordered in respect of juveniles in conflict with law. Sizable children have been released on admonition, released after payment of financial penalty, benefit of probation extended (permitted to live in the community under the supervision of probation officers), it is inferred that the adjudication has been done by the Boards after examining the nature of crime and delinquency and such dispositions has been made that children infringing criminal laws were not serious and those who have committed such serious crimes have been sent to Special Homes for necessary interventions. Hence, the juveniles in the age group of 16 and 18 committing crime are imaginary and wrong perception.

Probation services –Diluting the important functions of Probation Officers

In the proposed bill, it has been proposed to get the services of probation officers from DCPU, CWO, and NGOs. The concept of probation has not been fully understood by people. Its importance lays with the accountability and responsibility a person and not the organization. Therefore, probation officers who have major and important roles to e performed from the beginning a child’s apprehension and till he/she has been rehabilitated and socially reintegrated.

What is probation?

Probation of offenders is universally accepted, effectively tried and widely practicing non-institutional method of dealing offenders. Probation and related measures are therefore constitute an integral part of the more general movement away from the traditional punitive and repressive approach towards a more humanitarian and utilitarian consideration for general deterrence and punishment. Probation concept is not inflicting suffering on the client, rather to prevent the client from suffering. Probation is the process of treatment prescribed by the court or any adjudication agency for persons convicted of offences and instead of imprisonment or institutionalization, the individual or probationer lives in the community and regulate his own life with the promise to the court for his or her good behaviour and willing to accept conditions to be adopted during the period under supervision.  The adjudication agency is at liberty upon conviction, suspend the sentence of imprisonment and release the offender to live in the community for the promise of good behaviour and impose any such conditions to be adopted, keeping in mind the best interest of the individual  and also the best interest of the community.  Probation is therefore a conditional suspension of punishment. This presupposes that the released offender is not likely to resume a criminal behaviour.

Probation is therefore a judicial function to be carried out by academically qualified and professionally trained person(s) to ensure the best interest of the community and also the probationer, whose rehabilitation is the focus. During the period the probationer would not only receive assistance and supports but also being regulated.

Justice A. Gopal Reddy in the Amidelu Pottanna @ Pottinaidu V. State of Andhra Pradesh represented by Public Persecutor of Andhra Pradesh (MANU/AP/0897/2006 quoted the observations of Bernard Flexer & Reuben Oppenheimen for the U.S. Department of Labour, Children’s Bureau reprinted in Legal Aspect of J.C. 57, AM.L.Rev 65 (1923) in relation to the Judge of a Juvenile Court. It is more relevant and appropriate to the Juvenile Justice Board and the Child Welfare Committee.

According to Bernard Flexer described by Justice A. Gopal Reddy   “it is desirable that he be a lawyer’s realization of the rights of the individual; he should be in deep sympathy with the principles underlying juvenile Court Laws, should have the ability to put himself in the child’s place, and, most important of all, his personality should be such as to win the confidence of the child, where the judge hearing juvenile cases has other duties it is important that he be allowed sufficient time from his other work to keep in touch with the administrative side of the juvenile work and with the work of the Probation Officers.”

Justice A. Gopal Reddy further quoted that children are to be dealt with separately from adults. Their cases are to be heard at a different time, and, preferably, in a different place; they are to be detained in separate buildings, and, if institutional guidance is necessary, they are to be committed to institution for children. Through its Probation Officer the court can keep in constant touch with the children who have appeared before it. Taking children from their parents is, when possible to be avoided; on the other hand, parental obligations are to be enforced. The procedure of the court must be an informal as possible. Its purpose is not to punish but to save. It is to deal with children not as criminals but as persons in whose guidance and welfare that is peculiarly interested.

Therefore, obtaining the social enquiry report by the board or the committee shall be made from the Probation Officer and not from other persons. However, for effecting follow-up (supervision during the bail period or under the period of supervision) could be done by persons who could be identified, trained and placed as Voluntary or Honorary probation Officer. The provision is already in the PO Act, 1958.

Inspection of NGOs by Child Welfare Committee/Juvenile Justice Board

The policy planners have carefully planned and demarcated the roles and responsibilities of legislature, judiciary and executive. Judicial bodies or adjudication bodies have the accountability of proper judicial functions with appropriate disposition of enquiries towards social reintegration.

Inspection of organizations and their standardizations are the responsibilities of Executive or the administrative authorities. The amendment Act has attempted to encroach the administrative or executive powers. There are incidents in which the quasi-judicial functionaries (Chairpersons and members of CWC) have acted with conflicts of interest and do no good rather they use as a tool for personal gain.

The fundamental perspectives of Beijing Rules are as follows:-

1. Member States shall endeavour to develop conditions that will ensure for the juvenile a meaningful life in the community and also ensure a personal development programme to prevent him or her to indulge in deviant behavior.

2. It should be the integral part of national development.

3. It emphasizes not only the wellbeing of the juvenile offender but also the application of “the principles of proportionality” to protect the interest of the victims also.

4. In view of the above facts the appropriate scope for discretion is allowed at all level including investigation, prosecution, adjudication and the follow-up of dispositions.

5. The most important perspective was/is the principles of diversion. This has paved the way to deal with a juvenile without restoring to formal trial or enquiry. The Police, the Prosecution or the other agencies mostly the probation services shall at their discretion deal with the juveniles informally to ensure the prevention of deviant behaviors in future and ensure their meaningful life. Diversion may therefore include case follow-up, counseling and guidance, family accountability, services deliveries to remove the bottlenecks in the reintegration process. Reintegration process includes the family well-being and their development, services to those in the family for alcoholic treatment or psychological counseling, income generative supports etc.

6. In respect of those who have been dealt with in the adjudication process shall also have the opportunities of availing various disposition options; but, such dispositions shall ensure the meaningful rehabilitation and reintegration.

Conclusion

Crime is an act of deviance from the accepted norms of society which are so vital as to effect the survival, security and development of society, and as such have been codified into law (Prof. S.M. Diaz). The concept of “Eye for any eye and tooth for a tooth” was adopted during Hamurabi’s law. In 1764, Caesar Beccaria’s Essay on “Crime and Punishment,” defined the need for an acceptable proportionality between the pleasurable satisfaction enjoyed by an offender in committing the crime and the painful experience judicially inflicted on him by punishment. The neo-classiest like Gabriel Trade, redefined this approach to punishment to include some consideration for immaturity, mental imbalance and also extenuating circumstances. This slowly took the shape that punishment should ensure corrective and curative results.

The concept of correction therefore covers all the three processes of Reformation, Rehabilitation and Resocialisation, which are expected to be concurrently co-existing. In this process, the punishment whether through institutionalization or in-community programmes under the concept of Probation and Parole or under work-release programmes should ensure that treated persons, through counseling and guidance, work therapy and family relationship could become a person suitable for reintegration into society as a useful citizen.

Therefore there was a worldwide movement to ensure that the Juvenile Justice Systems are in accordance with the international human right standards. Article 40 of UN Convention on the Rights of Children [herein after UNCRC] together with the Riyadh guidelines emphasized that children in conflict with law should be treated in a manner which promotes the child’s sense of dignity and worth. It should take into consideration the age and the situations of children in social risk aiming at the child’s assuming constructive role in society. It includes the application of non-punitive measures and facilitates their social mainstreaming.

Keeping in mind the various factors discussed supra, changes have been proposed to Juvenile Justice (Care and Protection of Children) Bill, 2014 as follows:-

Suggestions for the Juvenile Justice

(Care and Protection of Children) Bill 2014

Section 2 (1)

“abandoned child” means a child deserted by his biological or adoptive parents or guardians, who has been declared as abandoned by the Committee after due inquiry;

Suggestions

Abandoned child” means a child deserted by his biological parents who has been declared as abandoned by the Committee after due inquiry;

Section 2 (4)

“Administrator” means any district official not below the rank of Deputy Secretary to the State, on whom magisterial powers have been conferred;

Suggestions

This may be deleted

Section 2 (14)

Who is found working in contravention of labour laws for the time being in force or is found begging or living on the street:

Suggestions

The definition in the 2000 Act namely, Who is found begging, or who is either a street child or a working child is more appropriate

Section 2 (18)

“Child Welfare Officer” means an officer attached to a Children’s Home, for

carrying out the directions given by the Committee or, as the case may be, the Board

with such responsibility as may be prescribed;

Suggestions

Child Welfare Officer” means an officer appointed in each of the home to maintain the profile of children and performs the role of case worker.

Section 2 (19)

Child Welfare Police Officer means an officer designated as such under sub-section (1) of Section 108

Suggestions

Child Welfare Police Officer means an officer appointed as such under sub-section (1) of Section 108

Section 2 (25)

Childline services

Suggestions

This may be deleted

Section 2 (35)

(35) “Juvenile” means a child below the age of eighteen years;

Suggestions

The words who has not completed 18 years of age shall be substituted

Section 2 (29))

“foster care” means placement of a child, by the Committee for the purpose of alternate care in the domestic environment of a family, other than the child’s biological family, that has been selected, qualified, approved and supervised for providing such care;

Suggestions

 “foster care” means placement of a child, by the Committee for the purpose of alternate care in the domestic environment of a family, preferably in the extended family that has been identified, approved for providing such care;

Note: The change has been proposed to prevent the foster families concept could not pave the way for procuring domestic help under the concept of foster care. Instead the child shall be placed in any extended families or with relatives. This is possible for the probation officer to identify the family on the individual cases.

Section 2 (30)

“foster family” means a family found suitable by the District Child Protection Unit to keep children in foster care under section 45

Suggestions

 (30) “foster family” means a family found suitable by the Child Welfare Committee  as per the recommendation of the Probation Officer to keep children in foster care under section 45

Section 2 (33)

Heinous crime

Suggestions

The definition may be deleted

Section 2 (40)

Observation Home

Suggestions

In the definition the words for group of districts shall be deleted.

Section 2 (45)

Petty Offences

Suggestions

This may be deleted

Section 2 (48)

(48) “probation officer” means an officer appointed by the State Government as a probation officer under the Probation of Offenders Act, 1958 or the Legal-cum- Probation Officer appointed by the State Government under District Child Protection Unit;

Suggestions

Probation Officer means an officer appointed as Probation Officer under the Probation of Offenders Act, 1958 or any other person conferred with the powers of Probation Officer under the PO Act, 1958 after proper selection, training and orientation shall be inserted.

Section 2 (52)

“relative”, in relation to a child for the purpose of adoption under this Act,

means a paternal uncle or aunt, or a maternal uncle or aunt, or paternal grandparent or maternal grandparent;

Suggestions

This is not relevant for the implementation of the Act in the best interest principles and hence the same may be deleted.

Section 2 (54)

Serious Offences

Suggestions

This may be deleted

Section 2 (55)

Special Juvenile Police Unit

Suggestions

The word designated shall be replaced with the word appointed

Section 2 (60)

“surrendered child” means a child, who is relinquished by the parent or guardian to the Committee, on account of physical, emotional and social factors beyond their control, and declared as such by the Committee;

Suggestions

 “surrendered child” means a child, who is relinquished by the parent to the Committee, on account of physical, emotional and social factors beyond their control, and declared as such by the Committee;

Section 3 (xiii)

Principles of repatriation and restoration

Suggestions

The words the same socio economic and shall be deleted

Section 4 (2)

(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the First Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal Magistrate) with at least three years of experience and two social workers from two different reputed non-governmental organisations selected in such manner as may be prescribed, of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the First Class.

Suggestions

The provisions prescribed for the selection of Chairperson and Members of the Child Welfare Committee shall be incorporated for the other members.

Section 7

Any person, who is apprehended after completing the age of twenty-one years, for committing any serious or heinous offence when such person was between the age of sixteen to eighteen years, then he shall, subject to the provisions of this Act, be tried as an adult.

Suggestions

This provision is analogous in many aspects. Therefore, it has to be deleted

Note: The provision is against the spirit of the Act.  There are possibilities for the misuse of the provisions. This would also pave the way for differential procedure for the same offence. For example if two or three persons involved in heinous crime(s), and one or a few  among the person(s)  involved in the crime were  apprehended prior to complete the age of 21, such persons are/were entitled to preferential procedure under the JJ Act. But, If other person(s) involved in crime along with his friends of same age group, were apprehended after completing the 21 years of age, such person would get deterrent punishment. This is analogous.

Section 9 (3) (e)

Directing the Probation Officer, or in case a Probation Officer is not available to the Child Welfare Officer or a social worker, to undertake a social investigation into the case and submit a social investigation report within a period of fifteen days from the date of first production before the Board to ascertain the circumstances in which the alleged offence was committed;

Suggestions

In the provisions, the words commencing from or in case a Probation Officer is not available to the Child Welfare Officer or a social worker, shall be deleted

Section 9 (3) (g)

Transferring to the Committee, matters concerning the child alleged to be in conflict with law, stated to be in need of care and protection at any stage, hereby recognizing that a child in conflict with law can also be a child in need of care simultaneously and there is a need for the Committee and the Board to be both involved;

Suggestions

This has to be suitably modified

Section 9 (3) (h)

disposing of the matter and passing a final order that includes an individual care plan for the child’s rehabilitation, including follow up by the Probation Officer or the District Child Protection Unit or a member of a non-governmental organization, as may be required;

Suggestions

The wording coming after the word probation officer shall be deleted.

Section 14 (1)

Where a child alleged to be in conflict with law is apprehended, the officer

designated as Child Welfare Police Officer of the police station, or the special juvenile police unit to which such child is brought, shall, as soon as possible after apprehending the child, inform — (i) the parent or guardian of such child, if they can be found, and direct them to be present at the Board before which the child is produced; and (ii)the probation officer, or if no probation officer is available, a Child Welfare Officer, for preparation and submission within two weeks to the Board, a social investigation report containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board for making the inquiry. (2) Where a child is released on bail, the probation officer or the Child Welfare Officer shall be informed by the Board.

Suggestions

In sub-section 14 the word designated may be replaced by the word appointed. In Section 14 (1) (ii) the words or if no probation officer is available, a Child Welfare Officer shall be deleted Where a child is released on bail, the probation officer shall be informed by the Board.

Section 16

 (1) In case of a heinous offence committed by a child who has completed or is above the age of sixteen years, the Board shall conduct a preliminary inquiry with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 19: Provided that for such an inquiry, the Board may take the assistance of experienced psychologists, psycho-social workers and other experts. (2) Where the Board is satisfied on preliminary inquiry that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973: Provided that the inquiry under this section shall be completed within the period specified in section 15.

Suggestions

This has to be deleted

Section 17(2)

The number of cases pending before the Board, duration of such pendency, nature of pendency and reasons thereof shall be reviewed in every six months by a high level committee consisting of the Executive Chairperson of the State Legal Services Authority, who shall be the Chairperson, the Home Secretary, the Secretary responsible for the implementation of this Act in the State and a representative from a voluntary or nongovernmental organisation to be nominated by the Chairperson.

Suggestions

17 (2) The number of cases pending before the Board, duration of such pendency, nature of pendency and reasons thereof shall be reviewed in every six months by a high level committee constituted at the High Court in every State

Note: Review of the judicial function is the authority of the judiciary and no executive has role in this consent. The participants have agreed that the bi-annual review shall be made by the High level Committee constitute by the respective High Court having jurisdiction on the board. In view of the above facts, the Section has to be revised

Section 20

 (1) After the receipt of preliminary inquiry from the Board under section 16, the Children´s Court may decide that—

(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 and pass appropriate orders after trial subject to the provisions of this section and section 22; or

(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the  provisions of section 18.

Suggestions

This is not relevant and therefore may be deleted

Section 20

(2) The Children’s Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker.

(3) The Children’s Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:

Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.

(4) The Children’s Court shall ensure that there is a periodic follow up report every year by the probation officer or the District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill-treatment to the child in any form.

(5) The reports under sub-section (4) shall be forwarded to the Children´s Court for record and follow up, as may be required.

Suggestions

This shall be deleted

Section 24

 (1) Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973 or in any other law for the time being in force, there shall be no joint proceedings of a child alleged to be in conflict with law, with a person who is not a child.

(2) If during the inquiry by the Board or by the Children’s Court, the person alleged to be in conflict with law is found that he is not a child, such person shall not be tried along with a child

Suggestions

This has to be relooked

Section 25

(2) The Board shall make an order directing the Police or the Children’s Court and its own registry that the relevant records of such conviction shall be destroyed after the expiry of the period of appeal or, as the case may be, a reasonable period as may be prescribed.

(3) In case of a heinous offence when such a case is transferred to a Children’s Court under section 19, the Children’s Court shall keep the record of the child only when the child is sent to a jail.

Suggestions

The Section has to be revised

Section 28 (10)

(10) The District Magistrate shall be the grievances redressal authority for the Child Welfare Committee and anyone connected with the child, may file a petition before the District Magistrate, who shall consider and pass appropriate orders.

Suggestions

The District & Sessions judge shall be the authority for the Child Welfare Committee and anyone connected with the child, may file a petition before the District & Sessions, who shall consider and pass appropriate orders (Tamil nadu State Rules)

Section 31

The functions and responsibilities of the Committee shall include—

(i) taking cognizance of and receiving the children produced before it;

(ii) conducting inquiry on all issues relating to and affecting the safety and wellbeing of the children under this Act;

(iii) directing the Child Welfare Officers or probation officers or District Child Protection Unit or Non-Governmental Organisations to conduct social investigation and submit a report before the Committee; selecting registered institution for placement of each child requiring institutional support, based on the child’s age, gender, disability and needs and keeping in mind the available capacity of the institution;

(viii) conducting at least two inspection visits per month of residential facilities for children in need of care and protection and recommending action for improvement in quality of services to the District Child Protection Unit and the State Government

Suggestions

31 (iii) directing the Child Welfare Officers or probation to conduct social investigation and submit a report before the Committee; selecting registered institution for placement of each child requiring institutional support, based on the child’s age, gender, disability and needs and keeping in mind the available capacity of the institution;

(viii) conducting at least two inspection visits per month of residential facilities for children in need of care and protection and recommending action for improvement in quality of services to the District Child Protection Unit and the State Government

Section 31

(xiii) taking action for rehabilitation of sexually abused children who are reported as children in need of care and protection to the Committee by Special Juvenile Police Unit or local police, as the case may be, under the Protection of Children from Sexual Offences Act, 2012;

Suggestions

This may be suitably modified that in case of child sexual abuses, the provisions of the POCSO Act shall prevail. Care is required

Section 33

3. (1) Any individual or a police officer or any functionary of any organization or a nursing home or hospital or maternity home, who or which finds and takes charge, or is handed over a child who appears or claims to be abandoned or lost, or a child who appears or claims to be an orphan without family support, shall within twenty-four hours (excluding the time necessary for the journey), give information to the Childline Services or the nearest police station or to a Child Welfare Committee or to the District Child Protection Unit, or hand over the child to a child care institution registered under this Act, as the case may be.

(2) The information regarding a child referred to in sub-section (1) shall be mandatorily uploaded on a portal as may be specified by the Central Government or the Committee or the District Child Protection Unit or the child care institution, as the case may be.

Suggestions

The words childline services or the district Child Protection Unit shall be deleted.

Section 37

(4) The Committee shall submit a quarterly report on the nature of disposal of cases and pendency of cases to the District Magistrate in the manner as may be prescribed, for review of pendency of cases.

(5) After review under sub-section (4), the District Magistrate shall direct the

Committee to take necessary remedial measures to address the pendency, if necessary and send a report of such reviews to the State Government, who may cause the constitution of additional Committees, if required:

Provided that if the pendency of cases continues to be unaddressed by the Committee even after three months of receiving such directions, the State Government shall terminate the said Committee and shall constitute a new Committee.

Suggestions

The word District magistrate shall be substituted by the word District & Sessions Judge or the State Legal Service Authority

Section 38

8. The Committee on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view, pass one or more of the following orders, namely:—

Suggestions

The word child welfare officer shall be replaced by the word Probation Officer

Section 42

(3) On receipt of application for registration under sub-section (1), from an existing or new institution housing children in need of care and protection or children in conflict with law, the State Government may grant provisional registration, within one month from the date of receipt of application, for a maximum period of six months, in order to bring such institution under the purview of this Act, and shall determine the capacity of the Home which shall be mentioned in the registration certificate:

Provided that if the said institution does not fulfill the prescribed criteria for registration, within the period specified in sub-section (1), the provisional registration shall stand cancelled and the provisions of sub-section (5) shall apply. (4) If the State Government does not issue a provisional registration certificate within one month from the date of application, the proof of receipt of application for registration shall be treated as provisional registration to run an institution for a maximum period of six months.

(5) If the application for registration is not disposed of within six months by any officer or officers of any State Government, it shall be regarded as dereliction of duty on their part by their higher controlling authority and appropriate departmental proceedings shall be initiated.

(6) The period of registration of an institution shall be five years, and it shall be subject to renewal in every five years.

Suggestions

This may be deleted

Note: This would create legal battle and unnecessary administrative chaos.  Further, the law could not be used as a tool by the unregistered organizations to create as many institutions as possible. There were incidents in which a few organizations after closure upon allegations have started new organizations in different names. Therefore, this provisions have to be deleted. Instead, the provisions for the creation of an authority of registration with prescribed standards for such registration as in the case of UK, Ireland, USA etc., could be explored.  Law should be specific and should not provide for ambiguity

Section 45

5. (1) The children in need of care and protection may be placed in foster care, including group foster care for their care and protection through orders of the Committee, after following the procedure as may be prescribed in this regard, in a family which does not include the child’s biological or adoptive parents or in an unrelated family recognized as suitable for the purpose by the State Government, for a short or extended period of time.

(2) The selection of the foster family shall be based on family’s ability, intent, capacity and prior experience of taking care of children.

(3) All efforts shall be made to keep siblings together in foster families, unless it is in their best interest not to be kept together.

Suggestions

The children in need of care and protection may be placed in foster care, including group foster care for their care and protection through orders of the Committee, after following the procedure as may be prescribed in this regard, in an extended family or in the neighbourhood

 (2) The selection of the foster family shall be based on family’s ability, intent, capacity and prior experience of taking care of children.

(3) All efforts shall be made to keep siblings together in foster families, unless it is in their best interest not to be kept together.

Section 55

5. (1) The State Government shall appoint inspection committees for the State and district, as the case may be, for all institutions registered or recognized to be fit under this Act for such period and for such purposes, as may be prescribed.

(2) Such inspection committees shall mandatorily conduct visits to all facilities housing children in the area allocated, atleast once in three months in a team of not less than three members, of whom atleast one shall be a woman and one shall be a medical officer, and submit reports of the findings of such visits within a week of their visit, to the District Child Protection Units or State Government, as the case may be, for further action.

Suggestions

The word medical officer shall be deleted.

Section 56

 (1) The Central Government or State Government may independently evaluate the functioning of the Board, Committee, special juvenile police units, registered institutions, or recognized fit facilities and persons, at such period and through such persons or institutions as may be prescribed by that Government.

(2) In case such independent evaluation is conducted by both the Governments, the evaluation made by the Central Government shall prevail.

Suggestions

56 (1) The words board and the committee shall be deleted

56 (2) The High Court Committee shall evaluate the functioning of the board and the committee including the allegations.

Section 87

 (1) Where an offence under this Act is punishable with imprisonment for a term more than seven years, then, such offence shall be cognizable, non-bailable and triable by a Children’s Court.

(2) Where an offence under this Act is punishable with imprisonment for a term of three years and above, but not more than seven years, then, such offence shall be cognizable, non-bailable and triable by a Magistrate of the First Class.

(3) Where an offence, under this Act, is punishable with imprisonment for less than three years or with fine only, then, such offence shall be non-cognizable, bailable and triable by any Magistrate.

Suggestions

The section may be deleted

Section 92 (2)

(2) Where the attendance of a child is required before the Board or the Committee, such child shall be entitled to travel reimbursement for self and one escort accompanying the child as per actual expenditure incurred, by the Board, or the Committee or the District

Child Protection Unit, as the case may be.

Suggestions

 (2) Where the attendance of a child is required before the Board or the Committee, such child shall be entitled to travel reimbursement for self and one escort accompanying the child as per actual expenditure incurred. The State Government shall make rules in this aspect

Section 94

 (1) Where it appears to the Committee or the Board that any child kept in a special home or an observation home or a children’s home or a shelter home or in an institution in pursuance of the provisions of this Act, is a mentally ill person or addicted to alcohol or other drugs which lead to behavioural changes in a person, the Committee or the Board , may order removal of such child to a psychiatric hospital or psychiatric nursing home in accordance with the provisions of the Mental Health Act, 1987 or the rules made thereunder.

(2) In case the child had been removed to a psychiatric hospital or psychiatric nursing home under sub-section (1), the Committee or the Board may, on the basis of the advice given in the certificate of discharge of the psychiatric hospital or psychiatric nursing home, order to remove such child to an Integrated Rehabilitation Centre for Addicts or similar centres maintained by the State Government for mentally ill persons (including the persons addicted to any narcotic drug or psychotropic substance) and such removal shall be only for the period required for the inpatient treatment of such child.

Suggestions

In sub section (1) after the words the nursing homes, the words the treatment cum rehabilitation center for drug addicts shall be inserted

Section 100

 (1) All reports related to the child and considered by the Committee or the Board shall be treated as confidential:

Provided that the Committee or the Board, as the case may be, may, if it so thinks fit, communicate the substance thereof to another Committee or Board or to the child or to the child’s parent or guardian, and may give such Committee or the Board or the child or parent or guardian, an opportunity of producing evidence as may be relevant to the matter stated in the report.

(2) Notwithstanding anything contained in this Act, the victim shall not be denied access to their case record, orders and relevant papers.

Suggestions

The report of the probation officer alone shall be confidential.

Section 108

 (1) In every police station, at least one officer, not below the rank of assistant sub-inspector, with aptitude, appropriate training and orientation may be designated as the child welfare police officer to exclusively deal with children either as victims or perpetrators, in co-ordination with the police, voluntary and non-governmental organisations.

(2) To co-ordinate all functions of police related to children, the State Government shall constitute Special Juvenile Police Units in each district and city, headed by a police officer not below the rank of a Deputy Superintendent of Police or above and consisting of all police officers designated under sub-section (1) and two social workers having experience of working in the field of child welfare, of whom one shall be a woman.

(3) All police officers of the Special Juvenile Police Units shall be provided special training, especially at induction as child welfare police officer, to enable them to perform their functions more effectively.

(4) Special Juvenile Police Unit also includes Railway police dealing with children.

Suggestions

In sub section (1) and (2) the word designated shall be substituted with the word appointed

Your Sincerely,

Annexure –I

The concepts of child development and protection issues are positively correlated with the services that they have either received or failed to receive. Sizable children are living in difficult circumstances who were the candidate of severe poverty, abandonment, neglect, mal-treatment etc., If such children are not channeled properly they may fall   pray to the exploitation by deviants and anti-social elements and become the victims of circumstances. It is being supported by the statistics on children infringing criminal laws published by the Bureau of Research & Development, Government of India that children infringing criminal laws are either illiterate or drop-out from schools prior to the completion of primary schooling.

Table: Socio-economic profile of children infringing criminal Laws (NCRB, New Delhi)

From the above statistics it is evident that the failure of school system to retain children in school was/is the foundation for children to deviate from the normal life to delinquency. Another factor is that the children infringing criminals are from poor families and living with parents. This is another evident that the poor families withdraw children from schools and force children to engage in labour sector leading to unethical and unbalance life style by children as stated by the superintendent. Various studies on the situational analysis of street children have supported the above arguments.

Annexure –II

Situational analysis of children’s education IN Tamil Nadu.

Statement showing the status of children’s learning abilities in Tamil Nadu

Out of school children in Tamil Nadu

The report has highlighted that there were/are possibilities of children with learning difficulties or disabilities are being taken care adequately resulting poor performances and without interventions such children are left-out. These children are forced to leave the schools and entered into labour market or indulging in crime and delinquency. An analysis of children in fringing criminal laws both at the National and State level has highlighted the positive correlation between school drop-out and children infringing criminal laws. The statistics on children infringing criminal laws has further highlighted that sizable children indulging in crime and delinquency were/are from poor families and living with parents.  The following statistics may expose the relationship between children with learning difficulties or disabilities to withdraw from schools and such children being used for crime and delinquency. Children infringing criminal laws therefore may be either children with learning difficulties or disabilities.

Annexure –III

Juveniles involved in IPC crimes (Sources NCRB, New Delhi)

Annexure –IV

Statistics on Crime of Juveniles in Conflict with Law

[1] As per article 1 of the UN Convention on the Rights of the Child a child is « [e]very human being below the age of eighteen years unless, under the law application to the child, majority is attained earlier »

[2] Justice for children goes beyond juvenile justice – i.e. work with children in conflict with the law – to include all children going through justice systems, for whichever reason (victims, witnesses, care, custody, alleged offenders, etc.)