General Principles of Care and Protection of Children
This topic provides information on Protection of Children
Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015) prescribes that the Central Government, the State Governments, the Board and other agencies, as the case may be, while implementing the provisions of JJ Act, 2015, shall be guided by the following fundamental principles, namely:
Principle of presumption of innocence
Any child shall be presumed to be an innocent of any malafide or criminal intent up to the age of eighteen years. This principle presumes that anything done by the child or the child in conflict with law has been done without mensrea or malafide intention. This principle operates right from the initiation of the proceedings and ends at the aftercare programme. It simply states that whatever be the act committed and whatever be the circumstances and whether it is done by himself or under the control of the adults or with the influence of peer group should always be considered that the said Act has been committed without mensrea i.e. the Principle of presumption of innocence should be applied for all those activities which has been covered or explicitly stated in the Rule.
Principle of dignity and worth
All human beings shall be treated with equal dignity and rights. This principle mandates the agencies involved in the JJ Act are to treat the child with dignity and worth and not to label, stigmatize or discriminate the child. It also mandates the authorities to respect the personal identity and such other things relating to the child right from initial apprehension till the aftercare is over.
Principle of participation
Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child‘s views shall be taken into consideration with due regard to the age and maturity of the child. Children‘s right to be heard shall include creation of developmentally appropriate tools and processes of interacting with the child, promoting children‘s active involvement in decisions regarding their own lives and providing opportunities for discussion and debate.
Principle of best interest
All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential. Children differ from adults in their physical and psychological development and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and require a different treatment for children. The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders.
Principle of family responsibility
In a family, a child is introduced to emotions like love and security. The social values and cultural aspects of the community are inculcated in the child within the family background i.e. the primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be. Though many functions of family like education, health, recreation etc. are being taken up by other social institutions, the family retains its importance as a constituent entity and building block of all societies and communities. Thus, the principle of family responsibility plays a vital role in the administration of juvenile justice as an informal care and all authorities functioning under the JJA should take all the necessary decisions of the child with the active involvement of the family of the children, who are in conflict with law.
Principle of safety
All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter. It also mandates that the state shall not use restrictive measures in the name of safety of the child.
All resources are to be mobilized including those of family and community, for promoting the well - being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act. The term positive measures include the - avenues for health, education, relationships, livelihoods, leisure, creativity and play. The Principle wants to achieve the objective of facilitation in establishing the personal identity of the child and to enable the child to equip himself to achieve the developments in all the processes relating to the individual growth.
Principle of non-stigmatizing semantics
Adversarial or accusatory words are not to be used in the processes pertaining to a child. For example, it mandates to avoid the following wordings in the process of administration of Justice relating to children, who are in conflict with law. It includes the following - arrest, remand, accused, charge sheet, trial, prosecution, warrant, summons, conviction, inmate, delinquent, neglected, custody or jail.
Principle of non-waiver of rights
No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver.
Principle of equality and non-discrimination
There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability, health, status, race, religion, cultural practices, work, activity or behaviour of the child in conflict with law or that of his parents or guardians, or the civil and political status of the child. This principle also includes that equality of access, opportunity and treatment shall be provided to every child.
Principle of right to privacy and confidentiality
Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process. In other words, no report in any newspaper, magazine, news - sheet or audio - visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime. No staff/stakeholder should divulge/ disclose any details to any one regarding any case of CNCP ( Child in Need of Care and Protection) or CCL (Children in Conflict with Law ) or identification of the same .
Principle of institutionalization as a measure of last resort
Deprivation of liberty has negative consequences for the child‘s harmonious development and seriously hampers his/her reintegration in society. Deprivation of liberty, including arrest, detention and imprisonment, should be used only as a measure of last resort and for the shortest appropriate period of time, so that the child‘s right to development is fully respected and ensured. A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry. The principle objective of institutionalization and detention in the juvenile justice system should be to ensure that the offender is free of criminal behaviour as soon as possible.
Principle of repatriation and restoration
Every child in the juvenile justice system s hall have the right to be re - united with his family at the earliest and to be restored to the same socio - economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest. (This principle should be read alongside of principle of family responsibility) .
Principle of fresh start
While children who have offended must be held accountable for their action, every child has the capacity to change for the better and must h ave a second chance - a right to a fresh start. The principle of fresh start signifies a new beginning in the life of the child in conflict with law. All past records of any child under the Juvenile Justice system should be erased except in special circumstances.
Principle of diversion
Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole.
Principles of natural justice
Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.