Introduction (Children in Conflict with Law)
Child in conflict with law refers to any child who is below the age of 18 years and encounters criminal justice system for offences committed by him or on suspicion of commission. It repealed the earlier law (Juvenile Justice Act 2000) which dealt children of two categories, these are:
- Children in need and protection of care.
- Child in conflict with law.
The new law seeks to achieve the standards laid down by United Nations Convention on Rights of Children ratified by India in 1992. It provides procedural safeguards, nomenclature and connotations for “child”, “child in conflict with law”, “juvenile” etc. It also addresses various significant issues of child adoption, pendency of delinquent cases and authority of various bodies. One of the major changes made by the new law is with respect to the Central Adoption Resource Authority, which has been provided the status of statutory body under the act.
The new law was passed by the Parliament against the backdrop of the Nirbhaya Gang Rape Case 2012 where one of the convicts (seventeen years and six months according to birth certificate, school documents and bone ossification) was a juvenile and awarded a punishment of three years in a reform home. This led to the public outrage in the country and eight writ petitions were filed the apex court relating to the unconstitutionality of the provisions of the statute but were accordingly dismissed by the court. The bill was laid down by the Union Minister for Women and Child Development, Maneka Gandhi in the parliament which led down specific guidelines for a juvenile to be tried as an adult in case of ”heinous offences”, after much deliberations and debates it was passed by both the houses on 22nd December 2015 and came into force from 15th January 2016.
QUESTION 1- WHAT IS THE OBJECT OF THE STATUTE?
Ans. The statute has the following objectives:-
- Provision for children under the age of sixteen years for heinous crimes-
Section 15 of the said statute lays down specific guidelines for child offenders who have committed or suspected to commit any heinous crimes for the age group of 16-18 years. The board is authorized to direct cases to children’s court (Court of Session) for heinous offences after a preliminary assessment. The legislation also provides “place of safety” for children during the trial and after the trial till the age of 21 after which there behaviour would be evaluated. Post evaluation the offenders would be sent to jail for the remaining term or released on probation.
The provision tries to create deterrence among the child offenders for committing heinous crimes like rape or murder and seeks to deliver justice to the victims and their family by not providing a complete immunity/exemption to children below the age of 18 years.
- New chapter on Adoption (which tries to streamline adoption process for abandoned, surrendered, and orphans)–
For the effective and efficacious functioning, the Central Adoption Resource Authority (CARA) which is given the status of a statutory body which would streamline the adoption procedure for abandoned, surrendered and orphan children. A new separate chapter (VIII) has been added which provides a comprehensive provisions relating to adoption and punishments for non-compliance Procedures for in-country and inter-country adoption are added, a divorced and single person is free to adopt a child but a single male cannot adopt a girl child.
QUESTION 2- WHAT ARE NEW OFFENCES LAY DOWN IN THE NEW LAW?
Ans. Several new offences have been added which were earlier not included under any law, the new law addresses these issues, and these are:-
- Sale and procurement of children for illegal adoption or any other purpose.
- Offences against disabled children majorly kidnapping, abduction and selling.
- Use of children by militant groups.
- Offering narcotic substances to children.
- Using children for begging and other related activities.
- Using children for abetting or committing any crime.
- Abusing, assaulting or abandoning, neglecting a child so as to cause him assault and abuse.
The punishment for these offences has been specified like any officer who does not report the kidnapping of child within 24 hours is liable for a term of six months or a penalty of Rs.10,000 or non-registration of child care institution leads to penalty of Rs. 1 lakh or a term of one year. Providing narcotic substance to child is also a punishable offence with a term of seven years of penalty of Rs.1 lakh.
QUESTION 3- WHAT ARE THE NEW GUIDELINES FOR CHILD CARE INSITTUTIONS WITH RESPECT TO THEIR REGISTRATIONS?
Ans. The law lays down specific guidelines for the mandatory registration of child-care institutions whether run by government (state) or by any non-governmental organisation or even which receives grants and loans from government, under the statute within six months from the commencement of the act. Non-compliance to this clause invites stringent actions as this provision tries to eliminate the adverse effects which earlier under the garb of child care institutions used to indulge in criminal activities like begging, trafficking etc.
QUESTION 4- WHAT ARE THE CHANGES IN THE PROVISIONS OF NEW ACT WITH RESPECT TO CHILDREN IN CONFLICT WITH LAW?
Ans. The new legislation provides a protective towards the juvenile or children who are in conflict with law and need care and protection. The “Juvenile” in conflict with law has been redefined as Child in conflict with law. The offences are categorised as petty/heinous/serious and accordingly all the juveniles who have committed such offences, according to the new law, would tried as adults after a preliminary assessment by the Juvenile Justice Board within the three months of first production of child before the board a given in the Section 14 and 15. Therefore any child within the age group of 16-18 years can be tried as an adult in the Court of Sessions. During the trial, the child/juvenile would be sent to an observation home and all the offenders would be differentiated according to the age, gender, mental status and most importantly their nature of offence.
A Place of Safety will be established for children above the age of 18 years or children of the age group of 16 – 18 years who are accused or convicted for committing a heinous offence. Place of Safety will have different arrangement and facilities for under trial and convicted children. The Juvenile Justice Board will conduct regular inspection of jails meant for adults to check if any child is lodged in such jails and take immediate measures for transfer of such a child to the Observation Home
If the child is tried as an adult by children’s court, the final order shall ensure that there an individual care plan for rehabilitation and social-reintegration of child given in Chapter VII of the statute, also there would be regular follow up by the probation officers or District Child Protection Unit or a social worker. The court will ensure that the child is kept in the Place of safety at the age of 21 years after which he will serve the pending term as normal adult or if the court is satisfied that he has undergone reformative changes he would be released. The Act puts a complete embargo on capital punishment or life imprisonment without the possibility of release for the child offenders who come to be treated as adults by the juvenile justice administration.
QUESTION 5- WHAT ARE THE PROVISIONS RELATING TO FOSTER HOMES, IS THIS CONCEPT NEW IN INDIA?
Ans. The concept of foster homes is new in India which was earlier propounded in United States for the purpose of providing shelter to children who are in need, later it was regulated by various laws by the federal government, similarly to provide succour to needy children and also act as rehabilitation centres for those indulged in crimes and under the age of 18 years. Section 44 of the Juvenile Justice Act 2015, stipulates the order in which the foster homes would be regulated. Sub-section 1 gives the lays down provision for foster home which may not be a child’s biological parents or adoptive parents or unrelated family for the children in need. The family may be recognised suitable for the care and protection and are given authority by the welfare committee and state government.
For selecting a foster home, the following things are to b taken into consideration (Sub-Section 2 and 3):
- Family’s ability, capacity.
- Prior experience of taking care of children.
- Number of children in the house.
- Monthly funding in the terms of income and expenditure.
The state government in consultation with the District Child Protection Unit would take care of all these things and ensure through inspection about the well-being of the children. Also in the cases where the parents are found unfit and incapacitated by the committee, they may have a regularly visit to their children and may permanently return to their real parents when the committee feels they are fit as given in sub-section 5.
QUESTION 6- WHAT ARE THE PROVISIONS RELATING TO SPONSORSHIP OF CHILDREN?
Ans. The Section 46 of the said statute provides guidelines for the cases where individual, community or group sponsorship of children, in the following circumstances-
The criteria for sponsorship shall include,—
- In case of mother being a widow, divorcee or abandoned by the family.
- In case of child being an orphan or living with the extended family.
- In case of parents being victims of life threatening disease.
- In case of parents being incapacitated due accident etc.
The sponsorship programme would provide supplementary support to families (foster homes in different forms), to Children’s Homes and to special homes to meet educational, medical and nutritional as well as other needs of these children, to improve their quality of life.
QUESTION 7- WHAT ARE THE SERVICES THAT ARE PROVIDED BY THE REHABILITATION CENTERS TO THE CHILDREN
Ans. Under the Section 53, institutions which provide as foster homes or rehabilitation centres may according to the act have to provide certain services, these are:-
- Basic necessities like food, shelter, clothing and medical facilities.
- For specially-abled children wheel-chairs, prosthetics, crutches etc.
- Education including both supplementary and special education for differently-abled.
- Skill development.
- Recreational activities like sports, gym etc.
- Legal aid whenever needed.
- Occupational therapy, de-addiction, mental health services like counselling, treatment for diseases etc.
QUESTION 8- WHAT ARE THE FUNCTIONS OF CENTRAL ADOPTION RESOURCE AUTHORITY UNDER THE ACT?
Ans. The Central Adoption Resource Authority (CARA) has been given the status of statutory body and will perform following functions:
- Promotion of in-country adoption and with the coordination of state agencies it would try to increase inter-state adoption.
- Regulation of inter-country adoption and various procedures relating to it.
- Modification of adoption laws as and when required.
- Carrying out functions under the Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption.
The Author, Shashwat Tiwari is a 3rd Year student of Institute of Law, Nirma University, Ahmedabad. He is currently interning with LatestLaws.com.