Juvenile Justice (Care and Protection of Children) Act, 2015

The Act seeks to achieve the objectives of the United Nations Convention on the Rights of Children as ratified by India on December 11, 1992. It specifies procedural safeguards in cases of children in conflict with law. It seeks to address challenges in the existing Act such as delays in adoption processes, high pendency of cases, accountability of institutions, etc. The Act further seeks to address children in the 16-18 age group, in conflict with law, as an increased incidence of crimes committed by them have been reported over the past few years.

The Juvenile Justice (Care and Protection of Children) Act, 2015 has come into force from January 15, 2016 and repeals the Juvenile Justice (Care and Protection of Children) Act, 2000.

Key provisions

• Change in nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, across the Act to remove the negative connotation associated with the word “juvenile”
• Inclusion of several new definitions such as orphaned, abandoned and surrendered children; and petty, serious and heinous offences committed by children;
• Clarity in powers, function and responsibilities of Juvenile Justice Board (JJB) and Child Welfare Committee (CWC); clear timelines for inquiry by Juvenile Justice Board (JJB); The Act mandates setting up Juvenile Justice Boards and Child Welfare Committees in every district. Both must have at least one woman member each.
• Special provisions for heinous offences committed by children above the age of sixteen years - Under Section 15, special provisions have been made to tackle child offenders committing heinous offences in the age group of 16-18 years. The Juvenile Justice Board is given the option to transfer cases of heinous offences by such children to a Children’s Court (Court of Session) after conducting preliminary assessment. The provisions provide for placing children in a ‘place of safety’ both during and after the trial till they attain the age of 21 years after which an evaluation of the child shall be conducted by the Children’s Court. After the evaluation, the child is either released on probation and if the child is not reformed then the child will be sent to a jail for remaining term. The law will act as a deterrent for child offenders committing heinous offences such as rape and murder and will protect the rights of victim.
• Separate new chapter on Adoption to streamline adoption of orphan, abandoned and surrendered children - To streamline adoption procedures for orphan, abandoned and surrendered children, the existing Central Adoption Resource Authority (CARA) is given the status of a statutory body to enable it to perform its function more effectively.  Separate chapter (VIII) on Adoption provides for detailed provisions relating to adoption and punishments for not complying with the laid down procedure. Processes have been streamlined with timelines for both in-country and inter-country adoption including declaring a child legally free for adoption. As per the provisions, a single or divorced person can also adopt, but a single male cannot adopt a girl child.
• Inclusion of new offences committed against children - Several new offences committed against children, which are so far not adequately covered under any other law, are included in the Act. These include: sale and procurement of children for any purpose including illegal adoption, corporal punishment in child care institutions, use of child by militant groups, offences against disabled children and, kidnapping and abduction of children.
• Penalties for cruelty against a child, offering a narcotic substance to a child, and abduction or selling a child have been prescribed. Any official, who does not report an abandoned or orphaned child within 24 hours, is liable to imprisonment up to six months or fine of Rs 10,000 or both. The penalty for non-registration of child care institutions is imprisonment up to one year or fine of one lakh rupees, or both. The penalty for giving a child intoxicating liquor, narcotic or psychotropic substances is imprisonment up to seven years or fine of one lakh rupees, or both.
• Mandatory registration of Child Care Institutions -  All child care institutions, whether run by State Government or by voluntary or non-governmental organisations, which are meant, either wholly or partially for housing children, regardless of whether they receive grants from the Government, are to be mandatorily registered under the Act within 6 months from the date of commencement of the Act. Stringent penalty is provided in the law in case of non-compliance.
• Several rehabilitation and social reintegration measures have been provided for children in conflict with law and those in need of care and protection. Under the institutional care, children are provided with various services including education, health, nutrition, de-addiction, treatment of diseases, vocational training, skill development, life skill education, counselling, etc to help them assume a constructive role in the society. The variety of non-institutional options include: sponsorship and foster care including group foster care for placing children in a family environment which is other than child’s biological family, which is to be selected, qualified, approved and supervised for providing care to children.

Role of State Governments

The Act provides for induction training of Members of Juvenile Justice Board and Child Welfare Committee within two months of their appointment (Section s 4 and 27). The Chief Judicial Magistrate or Chief Metropolitan Magistrate is to review pendency of cases in the Juvenile Justice Board once in three months and direct the Board to increase the frequency of sittings or recommend constitution of additional Board (Section 16). There is a provision for the constitution of a High Level Committee to review the pendency of cases in the Juvenile Justice Board.

Under Section 36 of the JJ Act , 2015 Child Welfare Committees are expected to submit quarterly reports to the District Magistrate regarding pendency and nature of disposal of cases. The District Magistrate is expected to conduct quarterly review of the Child Welfare Committees and direct remedial measures to address the pendency. The District Magistrate shall send a report of his review to the State Government which may cause the constitution of additional committees, if required. If the pendency of cases continues even after three months, the State Government shall terminate the existing Committee and constitute a new Committee.

The State Governments have also to register all institutions within six months of the commencement of the JJ Act , 2015 whether such institutions are run by the Government or by an NGO and are meant either wholly or partially for housing children. The requirement of registration of institutions is irrespective of whether they are receiving grants from Government or not. The State Government is expected to issue a provisional registration certificate to the institution within one month from the date of application. There is also penalty provided of one year imprisonment or fine of not less than Rs. 1 lakh for non registration of a Child Care Institution (Section 42).

The State Governments are also, as per section 49 of the Act supposed to set up atleast one Place of Safety for placing persons above 18 years of age or children between the age of 16 - 18 years who have committed a heinous offence. Inspection Committees are to be appointed both for the state and the district level and these Inspection Committees are to mandatorily inspect all institutions atleast once in three months (Section 54). Under Section 55, the Central and State Government may conduct independent evaluation of the functioning of the Juvenile Justice Board, Child Welfare Committee, Special Juvenile Police Unit, registered institutions, fit facilities and fit persons through such persons or institutions as may be prescribed by the government.

In so far as adoption is concerned, the State Government shall, under Section 65 of the Act, recognize one or more institutions in each district as a Specialized Adoption Agency. The State Agency has to furnish the name, address and contact details of the Specialized Adoption Agencies along with copies of certificate and letter of recognition or renewal to the Central Adoption Resource Authority (CARA). The state government has to get every Specialized Adoption Agency inspected atleast once in a year and take remedial measures. The Act provides for upto a fine of Rs. 50,000/ - in case of default by the Specialized Adoption Agency besides withdrawal of recognition in respect of repeated default.

All institutions registered under the JJ Act, 2015 which may not have been recognized as Specialized Adoption Agency shall develop formal linkages with nearby Specialized Adoption Agency and get all orphans or surrendered or abandoned children declared legally free for adoption. Any contravention of this provision is also liable to fine of Rs. 50,000/ - and de-recognition in case of persistent flouting of provisions (Section 66).

The Act requires the Central and State Governments to spread awareness regarding the provisions of the Act to the general public, children, parents and guardians. Officers of the Government are to be imparted periodic training besides other concerned persons (Section 108).

Institutional Care

The Child Care Institutions in respect of children in conflict with law are the Observation Home, Special Home, Place of Safety and fit facility. For children in need of care and protection, Open Shelters, Children Home and Special Adoption Agencies have specific roles to play. All Child Care Institutions have to be mandatorily registered within six months from the date of commencement of the Act and failure to do so is a punishable offence. Registration applications of Child Care Institutions are to be disposed of within six months otherwise it would be considered as dereliction of duty and will invite departmental proceedings (Section 41).

Children in Conflict with Law

The new Act strengthens the protective approach provided by the juvenile justice system towards children in conflict with law as well as children in need of care and protection. The 'Juvenile' in conflict with law has been redefined in the Juvenile Justice Act 2015 as a 'child‘ in conflict with law. Offences have been categorized as petty/ serious/ heinous offences. Children in the age group of 16 - 18 years may be tried as adults in cases of heinous offences after preliminary assessment by the Juvenile Justice Board.

A child in conflict with law will be sent to an Observation Home temporarily during pendency of inquiry. The child will be segregated according to age, gender, physical and mental status and nature of offence. A child who is found to have committed an offence by the Juvenile Justice Board will be placed in a Special Home. A Place of Safety will be setup 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. The Place of Safety will have separate arrangement and facilities for under trial children 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 [Section 8 (3) (m)].

The preliminary assessment by the Juvenile Justice Board is to be conducted within three months before transferring the case to the Children‘s Court. The Act mandates that in case the child is tried as an adult by the Children‘s Court, it shall ensure that the final order includes 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. The Children‘s Court shall ensure that the child is kept in place of safety till he attains the age of twenty - one years. When he attains the age and the term is still pending, the Children‘s court shall evaluate whether he need to be transferred to jail or if he has undergone reformative changes and could be spared incarceration. 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. The decision whether the child is to be released or sent to jail after attaining the age of 21 years will be taken by the Children‘s Court.

Children in Need of Care and Protection

A child in need of care and protection is to be produced before the Child Welfare Committee within 24 hours. The Act provides for mandatory reporting of a child found separated from his/her guardian. Non reporting has been treated as a punishable offence. The Child Welfare Committee is to send the child in need of care and protection to the appropriate Child Care Institution and direct a Social Worker, Case Worker or the Child Welfare Officer to conduct the social investigation within 15 days. The Child Welfare Committees shall meet atleast 20 days in a month and the District Magistrate shall conduct a quarterly review of the functioning of the Child Welfare Committee.

A child in need of care and protection will be placed in a Children‘s Home for care, treatment, education, training, development and rehabilitation. The Act provides for Open Shelters for Children in need of community support on short term basis for protecting them from abuse or keeping them away from a life on the streets. The Child Welfare Committee could recognize a facility to be a Fit Facility to temporarily take the responsibility of a child. The Specialized Adoption Agency is to take care of the rehabilitation of orphans, abandoned or surrendered children.

Punishment for Offences Against Children

The JJ Act, 2015 includes a separate chapter on offences against child and several of the offences listed in this chapter were so far not adequately covered under any other law. These include sale and procurement of children for any purpose including illegal adoption, corporal punishment in child care institutions, giving children intoxicating liquor or narcotic drug or psychotropic substance or tobacco products, use of child by militant or adult groups, offences against disabled children and, kidnapping and abduction of children. Further, the JJ Act , 2015 prescribes punishment for the various offences against children such as enhanced punishment for cruelty to children from six months to three years. The selling or buying of children will be a punishable offence with imprisonment of five years. Corporal punishment within a Child Care Institution will be a punishable offence. Adoption without prescribed procedures shall be punishable with imprisonment upto three years or fine of Rs.1 lakh or with both. For the effective implementation of these provisions, JJ Model Rules, 2016 provides for child friendly procedures for reporting, recording and trial.

Rehabilitation and Social Reintegration

The restoration and protection of a child shall be the prime objective of a Children‘s Home/ Specialized Adoption Agency/ Open Shelter. The Child Care Institution shall prepare Individual Care Plans for children in need of care and protection or children in conflict with law, preferably through family based care. Any child leaving a child care institution on attaining 18 years of age may be provided with financial support.

Monitoring

The National Commission for Protection of Child Rights as well as State Commission for Protection of Child Rights are mandated to monitor the implementation of the provisions of the JJ Act, 2015 in such manner, as may be prescribed (Section 109).

Source : Living conditions in institutions for children in conflict with law - A manual by Ministry of Women and Child Development