Juvenile Justice (Care and Protection of Children) Bill 2014

Submission by Centre for Child and the Law, National Law School of India University on the

Juvenile Justice (Care and Protection of Children) Bill 2014

Comments on Basic Structure of the Bill

Drawing from the basic structure doctrine that does not allow the basic features of the Constitution to be altered by amendment, we believe that the basic structure and premise of the law on JJ cannot be destroyed and should only be strengthened. The MWCD only needs to amend the existing Act, as changes being proposed in the Bill do not warrant repeal and re-enactment. Accordingly, in order to preserve and bolster the basic structure, we recommend that:

Fundamental Principles be enhanced: We commend the inclusion of the fundamental principles into the Bill. However, much of the principles enshrined in the JJ Model Rules 2007 have been diluted. We recommend that the same language is used, and that the Bill includes principles such as the principles on legal aid and the procedural protection of innocence, which has been left out. As regards the principle on Best Interest, we propose that Art. 3, UNCRC be replicated, given that the UN Committee, in its General Comment No. 14 (2013) on the right of the child to have his or her best interest taken as a primary consideration, refers to it as a ‘substantive right, a fundamental interpretative legal principle, and a rule of procedure’. If the Bill adopts the language of Art. 3, the General Comment will serve as guidance for its effective application. Moreover, the definition inS.2(e), does not even reflect the principle in its essence, and should be deleted. We also suggest inclusion of principles ongood governance and accountability as well as effective administration[1].
Rights of children be included: The Bill should clearly stipulate the rights of all children under this Act. We also propose that the right to health, particularly the right to mental health, be specifically included to take into account the health needs of children and their families - a majority of whom hail from deprived and vulnerable backgrounds, and particularly given the stated object to ‘cater to their developmental needs and promote their ultimate rehabilitation’ in the Preamble of this Bill. The right to informed consent for medical examination of children above the age of 12 years should also be included.
Restorative Justice be adopted in place of the proposed regressive transfer system: S14 and S 17(3)that allow the transfer of juveniles who allegedly have committed stipulated offences to the adult criminal justice system are regressive and incompatible with the rehabilitative foundation of the JJ system, and violate the right to equality and the right to life under the Constitution. The transfer system proposed in the Bill has been in existence in the US for over two decades and multiple studies have shown that it has been ineffective in addressing juvenile crime , public safety, and recidivism. The independent Task Force on Community Preventive Services set up by the US Centre for Disease Control reviewed published scientific evidence on the effectiveness of waiver laws to ascertain whether this prevented or reduced violence among those transferred, and among juveniles on the whole and concluded that: “….transfer policies have generally resulted in increased arrest for subsequent crimes, including violent crime, among juveniles who were transferred compared with those retained in the juvenile justice system.To the extent that transfer policies are implemented to reduce violent or other criminal behavior, available evidence indicates that they do more harm than good.”[2] Findings in neuroscience and adolescent psychology confirm that juveniles are more susceptible to negative influences and peer pressure, are less likely to focus on future outcomes, are less risk-averse than adults, have poor impulse control, and evaluate risks and benefits differently all of which pre-dispose them to make poor decisions.[3]The part of the brain that helps in organizing, planning and strategizing is not developed in teen years and therefore it is “unfair to expect them to have adult levels of organizational skills or decision making before their brain is finished being built…”[4] These studies also confirm that adolescence is a transient phase and that “most young people grow out of delinquency on their own as their brains mature – if they are spared the trauma and lasting stigma of juvenile incarceration.”[5] The objective of the JJ Bill, 2014 is to cater to the “developmental needs” of children in conflict with law through “proper care, protection and treatment” and by “adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their ultimate rehabilitation”. S 17(3) is definitely not in the best interest of a juvenile, neither is it child-friendly. Transfers of juveniles will also deprive them of the right to privacy as well as the right to bail and will offend the principles of presumption of innocence, fresh start, dignity and worth, safety, positive measures, non-waiver of rights, non-stigmatizing semantics, equality and non-discrimination, and institutionalization as a measure of last resort, all of which are “fundamental” to the understanding, interpretation, implementation, and application of the proposed Bill. Through General Comment No. 10 on Children’s rights in juvenile justice, the Committee on the Rights of the Child strongly recommended that States Parties “which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years.” The JJ system has the potential to provide an enabling framework to promote healing for the victim and the juvenile through restorative justice programs. Restorative justice processes have been in vogue in New Zealand, Australia, South Africa, Canada, USA, and several European countries. Experts who have studied various models of restorative justice have recommended that it be adopted to address “the more serious offences. It is here that the impact of the offending on victims is greatest and that victims are most in need of closure...” and consider it “most appropriate for repeat offenders.”[6] The MWCD should urgently examine all existing restorative justice models that have been effective and to begin applying it in the Indian context. S.17(1)(b) should be revised to incorporate Family Group Conferences and family counseling and include restorative justice processes within the juvenile justice framework. We strongly recommend that S.14(1), S.14(2), and S.17(3) be deleted. All children in conflict with law have to necessarily be dealt with by the JJB without any exception. The phrase ‘but save as otherwise expressly provided in this Act’ appearing in S 7(1) should be deleted.
Imprisonment for any term should be prohibited: S.18 should be amended to ensure that no child in conflict with law can be imprisoned for any term. The language of Section 16 (1) of JJA 2000 should be retained. S.19 should be deleted as it paves the way for imprisoning certain juveniles and is in gross violation of Constitutional standards, as well as rights of juveniles under the JJ system and the UNCRC.

Chapter-wise Comments

Chapter I- Preliminary

S.2(i):The terms ‘child alleged to be in conflict with law’ and child found to be in conflict with law’ should be defined and used separately, even though long phrases like these may be inconvenient. These are two distinct groups, whose needs and rights are similar but not the same. In fact clubbing them together can in fact violate the rights of the former.
S.2(j)(ii):-. S This provision seems to reflect a ‘clean the streets’ mentality and will result in a collapse of the already faltering JJ system, with hundreds of children being forcibly produced before CWCs, (who are honorary members, working for a couple of hours a week), and housed in homes that are far from child friendly, caring, or protective spaces. The State needs to own its responsibility to ensure that children are not compelled to beg or work, and also that they are provided care and protection to enable them to claim their right to education and live in dignity. However, producing all of them before the CWC,and separating them from their families pending inquiry , without also ensuring that the entire family is rehabilitated, with access to other welfare schemes, will be a half-baked measure, one that could actually hinder their care and protection, rather than ensure it.
S.2(a) and S.2(zx):The term ‘abandoned’ labels children and is not child friendly. Positive adoption language (PAL) should be used while referring to children and families who may ultimately be involved in the adoption process, including in S 37(1). Use of words like ‘orphan’, ‘abandoned’ etc., connotes a negative meaning for the child. The intent should be to present and project adoption as a positive event in the life of the child, and not on the fact of his/her being ‘abandoned’ or ‘orphaned’. We suggest that two different terms be used - children who are relinquished by their biological mother or father should be viewed differently from children who have been found with no ostensible parent/guardian. Inquiries will have to be conducted for these ‘found’ children to trace their parent/guardian. As regards the definition of ‘surrendered child’ we propose that the term ‘relinquishment’ be included instead of ‘surrendered’.
S.2(k):The words “humane, considerate” should be replaced with “developmentally appropriate, respectful of the rights of”.
S.2(s)): We strongly oppose the inclusion of the DC as the Chairperson of the CWC and therefore this definition should be deleted. Giving the DCs additional charge of the CWCs will not only undermine the autonomy and independence of this body, it will exacerbate pendency...
S.2(t): What about State, Village and Taluk level CPUs? Moreover, though the terminology of ‘protection’ has already been used in the Act and the ICPS, the role of such CPUs at every level goes far beyond ‘protection’.
S.2(x):Alternate definition for foster care -‘The placement of a child by a competent authority for the purpose of alternative 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.’ (Adapted from the definition proposed by Core Committee on Foster Care Scheme, Govt of Karnataka, 2014).
S.2(zg): Children of parents who are unwilling or unable to look after them has been provided for in S.2(j)(v). We recommend that the definition of the term ‘orphan’ in the Karnataka JJ Rules 2010, be considered - ‘means a child whose biological parents or legal guardians are found to be deceased after due inquiry by the competent authority.’ Children whose parent/guardian is unwilling or unable to take care of the child, need to be considered as children for whom parents are at that particular point in time not ‘fit’ - they are not ‘orphans’. It should be the responsibility of the CWCs to try and support such parent/guardian to move towards being ‘fit’. Termination of parental rights cannot happen merely through such a loosely defined definition that arbitrarily terminates this parent/child relationship.
S.2(zp):The definition of Ragging should also include the substantive portions of the Supreme Court’s decision in University of Kerala v. Council, Principals’ Colleges, Kerala, Civil Appeal No. 887 of 2009,
S.2(zv):Support for medical, psycho-social, and psychiatric needs, should be included as well

Chapter II: Fundamental Principles for Care, Protection, Rehabilitation and Justice for Children

In addition to the recommendations made on this Chapter above, we recommend that theMinimum Age of Criminal Responsibility (MACR) be stipulated: The UN Committee on the Rights of the Child has been critical of the low age of criminal responsibility under the IPC and the absence of reference to a minimum age under the JJ Act 2000. In accordance with international standards, the MACR should be 12 years, and should be specified in the Bill

Chapter III: Juvenile Justice Board

S 5(2): The eligibility criteria for the Principal Magistrate should necessarily include training in Child and Adolescent Psychology.
Eligibility Criteria for Members: In addition to S 5(4), the Bill should replicate Rule 7(1) of the JJ Model Rules, and include the following clauses:No person having any past record of violation of human rights or child rights shall be eligible for appointment as member; (2) No person having been convicted and sentenced for imprisonment of an offence which in the opinion of the Central Government involves moral turpitude shall be eligible for appointment as Chairperson or Member of the Commission; (3) No person having been removed or dismissed from service of the Central Government or a State Government or a body or corporation owned or controlled by the Central Government or a State Government shall be eligible for appointment as Chairperson or Member of the Commission. In addition the Bill should enable a graduate, with relevant experience to also be considered eligible.
Selection Process:Provisions for the Selection of the Social Work members of the JJB need to be included in this Chapter. Rule 91, 92 of the JJ Model Rules 2007, should be replicated here, with the exception of Rule 91(c) which should read as ‘two representatives from ‘two’ reputed non-governmental organization, working in the area of child welfare’.In addition, the following provisions should be included: (1) The State Government shall invite applications from qualified candidates from the public through an advertisement in at least four leading dailies (two English and two vernacular) and shall prepare a list of eligible candidates from the applications so received on the basis of the eligibility criteria stated in Sections 5(2), and (4) relating to the JJBs and Section 25(1) and 25(3) relating to the Chairperson of the Committee (for which criterion needs to be still conceptualized, but not the DC), and for the members. (2) The list of eligible candidates shall be submitted to the Selection Committee for its consideration. (3) The names of the persons recommended by the Committee shall be placed in the public domain for thirty days to invite objections in writing. (4) All objections should be considered by the Committee and the State Government before the recommendations and appointments are finalized. (5) The selection and appointment process shall be fair, rigorous and transparent. (6) No appointment of a Member shall be invalid merely by reason of any vacancy in the Committee.
Tenure: We recommend that the Social Work members of the JJB should be full time members, so as to ensure that inquiries, decisions and subsequent review processes are truly sensitive, individualized and timely.. The psycho-social rehabilitative goals of the proposed Bill cannot be met by part time members.
Terms and Conditions:JJBs need to function autonomously. In some cases, there has been found to be a conflict of interest, as members also hold positions in the management of Child Care Institutions in the very District, for which they have been appointed. It is therefore imperative that a person appointed as Member shall (a) if he holds any office of trust or profit, resign from such office; or (b) if he is connected with any political party, sever his connection with it; or(c) if he is carrying on any business, sever his connection (short of divesting himself of ownership) with the conduct and management of such business; or(d) if he is practicing any profession, suspend practice of such profession.
S.7(3)(d):- The POs under the PO Act are overburdened and stride both juvenile and adult criminal justice systems, which defeats the purpose of a separate JJ system for children. The Model Rules provide for Voluntary Probation Officers to be appointed, and this should be included in the Act as well, along with a provision to ensure that they are either screened and authorized, and/or trained to perform this very critical role, of providing psycho-social evidence to the JJB about the circumstances of the child, mentor the child etc.
S.7(3)(f) - An express reference to the mandatory consideration of an SIR should be included here.
Additional functions under S.7(3): The JJB also needs to be empowered to order the State Government to compensate survivorsin POCSO cases. Under the POCSO Act the power to do so is available only to Special Courts. In the absence of an express authorization, JJBs cannot order compensation and this will result in denial of this benefit to child survivors before the JJB. It should also be obligated to ensure that the consent of the child and the victim is obtained before their participation in restorative justice processes. Further, the JJB should also be empowered to order compensation to juveniles who have been wrongly incarcerated in jail.
Include the obligation to follow-up and pass subsequent orders: CWC/JJB should be empowered to review the progress of the child post the final orders, and to pass subsequent orders concerning the care, protection, treatment, education, rehabilitation and restoration of the child. The principles of natural justice will have to be adhered to while passing such orders. This will also help to ensure that the state is accountable for the psycho-social services that are to be provided to the children by law - a huge gap in the legislation. And without reviewing and taking cognizance of whether or not such services are indeed being provided, children are getting caught in the revolving door of the system. Children in conflict with law are particularly at risk in this regard, as they are considered repeat offenders, even when they have not been provided the counseling or other services under Section 15 (1) of the existing Act, and now face the risk of being transferred to the adult criminal justice system.

Chapter IV: Procedure in Relation to Children in Conflict with Law