Recently the juvenile justice and (care and protection of children) bill 2014 has been passed by the Rajya Sabha, the bill replaces the juvenile justice and (care and protection of children) bill 2014 .The passage of the bill has been hastened due to the general outrage created by the release of juvenile In Nirbhaya Gang rape case, it is believed that juvenile was most violent against the Nirbhaya during the horrific incident on 16th December which shook the conscience of the nation.
· Under the 2000 Act, any child in conflict with law, regardless of the type of offence committed, may spend a maximum of three years in institutional care (special home, etc.) The child cannot be given any penalty higher than three years, nor be tried as an adult and be sent to an adult jail
· The new Bill permits juveniles between the ages of 16-18 years to be tried as adults for heinous offences. Also, any 16-18 year old, who commits a lesser, i.e., serious offence, may be tried as an adult only if he is apprehended after the age of 21 years
· It addresses children in conflict with law and children in need of care and protection. Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) will be constituted in each district. The JJB will conduct a preliminary inquiry to determine whether a juvenile offender is to be sent for rehabilitation or be tried as an adult. The CWC will determine institutional care for children in need of care and protection
· Eligibility of adoptive parents and the procedure for adoption have been included in the Bill. Thus according to this bill married persons and single and divorced person could adopt a child however, a single male cannot adopt a girl child
· Various penalties for committing offences against children are laid out in the Bill. These include penalties for giving a child an intoxicating substance, selling or buying the child, cruelty against a child, etc.
· Issues to consider: The penalty for giving a child an intoxicating or narcotic substance is an imprisonment of seven years and a fine of up to one lakh rupees. Comparatively, buying or selling a child will attract a penalty including imprisonment of five years and a fine of one lakh rupees.
Who is a juvenile as recognized by law
In the Indian context, a juvenile or child is any person who is below the age of 18 years. However, the Indian Penal Code specifies that a child cannot be charged for any crime until he has attained seven years of age.
Why we require amendment in the Juvenile justice Act 2000?
· Firstly serious crime committed by juvenile increased significantly between 2003-13 for example according to national crime record bureau number of rapes committed by juvenile increased from 293 to 1388 and murder increased from 328 to 845. During the same period, 16-18 year olds accused of crimes as a percentage of all juveniles accused of crimes increased from 54% to 66 %
· Secondly It said that the existing Juvenile Justice Act, 2000 was facing implementation issues and procedural delays with regard to adoption, etc. Also 2000 act had vague framework regarding children who are in conflict with law and children in need of care and protection law. The new Bill seeks to replace the existing 2000 Act and lays down the procedures to deal with both categories of children. It highlights the two main bodies that will deal with these children, to be set up in each district: Juvenile Justice Boards (JJBs) and Child Welfare Committees (CWCs). It provides details regarding adoption processes and penalties applicable under the law.
· Thirdly internationally in most of the countries including US and UK have fixed upper age for minors at 18 but criminal law in both the countries provides room for minors to be tried as adults in grave offences, also the maximum punishment for juvenile is life imprisonment in UK& USA and in some states in USA like Dakota children as young as 10 can be tried as adults and in UK person under 18 tried under youth court and youth court can only give rehabilitation punishment can only give rehabilitation punishment or issue community punishment however for serious crimes the case starts at youth court but can be transferred to crown court, In France 13-16 year old offender gets half punishment & 16-18 year old get full punishment.
· Fourthly if crime committed are adult in nature than juvenile should be treated as adults, if you are old enough to rape, you are old enough to face consequences, also the mental maturity of 16-18 are very different today.
· Fifthly The amended bill still doesn’t provide for life imprisonment and death penalty for juvenile who committed heinous crimes thus it balances need for strong law with child rights.
WHAT ARE SOME CONCERNS RAISED BY CHILD ACTIVISTS
· Firstly though rape figure shows that rape committed by children increased from 293 to 1388, however number of survey shows that 40% juvenile booked under rape are not a rapist in true sense because it is consensual sex between 2 underage individual, which is reported as rape by girl’s parents, also the percentage of heinous crime has remained between 1-1.2% in last 3 years according to NCRB report.
· Secondly numerous studies carried out in development psychology reveal that contrary to perceptions of early maturation, adolescence is a period of tremendous Physiological, hormonal, emotional as well as structural changes in human & therefore it is a period of great vulnerability, studies proved the point that likelihood of adolescent community crime is higher than that of adult because they are more likely to be influenced by peer pressure, are less risk averse than adults.
· Thirdly Most of the juvenile offender suffer Mental trauma for being brought up in crime prone localities, constant exposure to criminal activities turns them into criminals, providing psychological counseling and not punishing them will help in there transformation
· Fourthly there is no evidence that punishing juveniles have deterred heinous crimes in US and UK.
· Fifthly some penalties provided in the Bill are not in proportion to the gravity of the offence. For example, the penalty for selling a child is lower than that for offering intoxicating or psychotropic substances to a child
· Sixthly, the UN Convention on the Rights of the Child requires all signatory countries to treat every child under the age of 18 years as equal. The provision of trying a juvenile as an adult contravenes the Convention.
IMPLICATION OF THIS DECISION AT NATIONAL LEVEL
· It will strengthen the institutional mechanism to deal with children in need of care and protection, since Child Welfare Committees (CWCs) will be constituted in each district to deal with children in need of care and protection. They will be composed of a chairperson and four other members who shall be experts on matters relating to children. At least one of the four members will be a woman.
· It would promote Adoptions of orphaned child since A child who is found to be in need of care and protection shall be brought before a CWC within 24 hours. Subsequently, a Social Investigation Report is required to be prepared within 15 days. After assessing the report, the CWC may recommend that the child be sent to a children’s home or another facility for long term or temporary care, or declare the child as free for adoption or foster care.
· It is expected that trying juveniles as adults would have chilling effects and could become a deterrent and thus could reduce heinous crimes committed by juveniles as thus could make the society safe for women.
· It would provide a mental and emotional Satisfaction to victims and kins of victim since juvenile who committed heinous crimes could be sentenced to normal imprisonment.
· There are concerns that boys who indulge in sexual activities or those who elope with lovers will be implicated for rape through the new JJ Act.
· It is also possible that juveniles will be abused in prison & they will come out more dangerous & damaged because of their interaction with hardened criminals.
· There are chances that this amended version will be stuck down by apex court since The provision of trying a juvenile committing a serious or heinous® offense as an adult based on date of apprehension could violate the Article 14 (right to equality) and Article 21 (requiring that laws and procedures are fair and reasonable). The provision also counters the spirit of Article 20(1) by according a higher penalty for the same offence, if the person is apprehended after 21 years of age.
· The passage of this bill could set up a negative trend, since it could lead to mob law making, where laws would be made not on rational basis, but on the basis of how strong the protest is at Jantar mantar, it could lead to passage of populist laws which are neither sound in its legality or its rationality.
· Thus though juvenile justice amendment bill 2014 has number of positives like strengthening the institutional mechanism to deal with children in need of care and protection, making policy related to adoptions much simpler and clear, however the clause of reducing age of trial for juveniles is neither meets the test of psychological research in this field, nor it fulfills condition of constitutionality, Instead of reducing the age of juveniles for trial in heinous crimes, the government should reform and improve the conditions of bal sudhar grah, which according to India today have 1.7 million juvenile in it even though its capacity is to hold just 35000 juvenile.
· Along with increasing the number & quality of bal-sudhar, it is required that proper psychological counseling is provided to juveniles so that they could be transformed instead of punished.
· Lastly proper environment should be provided to children in slum areas and special attention should be given to those children who live close to anti social elements since most of juvenile involved in heinous crimes have been brought up in crime prone societies.
Area in exam where the topic would be useful
This topic is useful for paper 2 Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable section and also for ethics paper 4.