Caring For Children In Conflict With Law Under The Juvenile Justice-Care And Protection Of Children-
In India, laws dealing with child delinquency have a long history. It begins
with the Apprentices Act, 1850 which preferred training over imprisonment for a
child below the age of 15 committing small petty offences. This limited
exclusion of children from criminal justice system soon extended to
establishment of separate reformatory schools for children below the age of 15
and Borstals for young person between the age of 15 and 21, found to have
committed an offence, to keep them away from the prisons and from company of
adult prisoners.
In 1920, this distinction was completed even in the judicial processes by establishment of the first Childrens Court in Madras ensuring that children were kept away from all contact with adult offenders to protect them from their adverse influence. However, subsequent Childrens Courts established in other States, seemed to have been influenced by the parens patriae principle as they prohibited presence of a lawyer before the Childrens Court.
This prohibition was found in the Children Act, 1960 passed by Parliament. The Act continued to prohibit presence of advocate before adjudicatory bodies as a matter of right. It was later amended in the year 1978 to remove this prohibition of lawyer before the childrens court pursuant to the judgment of Gujarat High Court in Kario alias Mansingh Malu v. State of Saurashtra[1] which declared such provisions to be unconstitutional.
The Supreme Court of India in a PIL filed by Sheela Barse recommended passing of a uniform legislation for the entire country. Pursuant to this direction, the Juvenile Justice Act, 1986 was passed by the Parliament which brought some uniformity with regard to the constitution, functions, powers, procedures and orders to be passed by Childrens courts in the entire country except the State of Jammu and Kashmir.
In 1989, the UN General Assembly adopted the Convention on the Rights of the Child (hereinafter, ‘the CRC) and India became a signatory in 1992. The Juvenile Justice (Care and Protection of Children) Act, 2000 was passed with the specific purpose of bringing the legislation in accordance with the Convention. This law was replaced recently by the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter, ‘the Act of 2015 or ‘the JJ Act, 2015 or ‘the JJA, 2015 or ‘the 2015 Act).
The analysis of various provisions of the JJ Act, 2015 and scheme for the care and protection of the child in conflict with law show that while most of the provisions are made specifically in pursuance of Indias obligation under these provisions of the CRC, the scheme of transfer of children exposing them to the possibility of trial as adults is in contravention of these provisions. The JJ Act, 2000 was challenged before the Honorable Supreme Court of India (hereinafter, the Apex Court) twice but the court upheld its constitutional validity both the times.
The Juvenile Justice Bill 2014 as originally introduced was declared to be unconstitutional by the Parliamentary Standing Committee. Still, the JJA, 2015 contains provisions which do not pass the test of constitutionality.
It is apparent that object of the JJ Act, 2015 is only to provide for their care, protection, development, treatment and social re-integration. However, punishment to children for commission of any heinous offence or treating them as adults in certain circumstances is not among the objectives of the Act.
In Subramanian Swami v. Union of India[2] it was argued before the Supreme Court of India that clubbing of all children till the age of 18 irrespective of their mental capacity and nature of offence committed by them was an over-classification and was not permissible under the Indian Constitution. Rejecting the plea of reading down the provision of the JJ Act, 2000, the Apex Court in view of no ambiguity in the provisions, reiterated that:
Classification or categorization need not be the outcome of mathematical or arithmetical precision in the similarities of the persons included in a class and there may be differences amongst the members included within a particular class. So long as the broad features of the categorization are identifiable and distinguishable and the categorization is reasonably connected with the object targets, Article 14 will not forbid such a course of action.
Open shelter
Open shelters are another kind of community based residential care that may be provided to children on temporary basis. As per Section 43[3], the open shelter may be established and maintained by the State government or it may maintain it through voluntary or non-governmental organisations. In all cases, the open shelter is also required to be registered like any other institution.
Rehabilitation and re-integration
Chapter VII of the 2015 Act contains provisions focused on rehabilitation and social reintegration of a child back into the society. Section 39[4] titled ‘restoration of child in need of care and protection contains provisions for restoration of both category of children mentioned under the Act.
A quick reading of the provision makes it clear that various measures need to be taken any every stage of proceedings with regard to rehabilitation of a child under the Act. All efforts must be made through individual care plan for restoring the child to its own parents or giving them in care of a guardian or for placement in a family like setting through adoption or foster care.
Section 40[5] of the 2015 Act clearly states that restoration of a child shall be the prime objective of any Childrens Home, Specialised Adoption Agency or open shelter.
Restoration in ordinary parlance means action of returning something to the former owner, place or condition. However, here under the word is used in sense of placement as well as restoration. When a child is placed in care of someone or given in adoption it doesnt amount to restoration in ordinary terms. Even when the child is placed with a guardian other than parents, it will not amount to restoration in the usual sense unless the child was already with the guardian before proceedings under the 2015 Act were commenced.
After care
Children who grow up in institutional care for a long period of time need various kinds of support on leaving the institutions and it is integral for their rehabilitation and social re-integration. It should be provided to all children who werent restored to their parents or given in adoption. A child placed in the care of a fit person, foster care, or with a foster family may need after care as much as a child growing up in a child care institution.
The scope of aftercare under the Act needs to be delineated by reference to definition of aftercare and Section 46. The two provisions differ from each other in some crucial respects. Under Section 2(5), Aftercare means ‘making provision of support, financial or otherwise, to persons, who have completed the age of eighteen years but have not completed the age of twenty-one years, and have left any institutional care to join the mainstream of the society. On the other hand, Section 46 provides that Any child leaving a child care institution on completion of eighteen years of age may be provided with financial support in order to facilitate childs re-integration into the mainstream of the society in the manner as may be prescribed.
The definition makes it clear that aftercare is not limited to provision of only financial support. It is important to note that the definition refers to provision of aftercare for a child ‘leaving institutional care but the provision under Section 46 uses the phrase ‘leaving a child care institution. While institutional care has not been defined, a child care institution means ‘children home, open shelter, observation home, special home, place of safety, Specialized Adoption Agency and a fit facility recognized under the Act for providing care and protection to children, who are in need of such services.[6]
Section 46 read with definition of child care institutions may be interpreted to mean that aftercare may not be provided to children who may be leaving the care of a fit person or a foster family. However, such interpretation will be against the principle of best interest of the child as all children who have not been placed in family care, need support in joining the mainstream society. Institutional care as used in the definition may be understood in contradistinction to family care entitling all children to aftercare who have not already been rehabilitated and reintegrated in their own or adoptive families.
The definition clause states that after care must be given only in case the child leaves the institutional care after attaining the age of 18 but before completing the age of 21. No upper age limit has been assigned.
Reading the two clauses together, it is clear that the law makes no provision for aftercare in case of children who were tried as adults and sent to the place of safety for having committed a heinous offence and are released after attaining the age of 21. This should not pose a problem in their rehabilitation as they are to be released under the care of a monitoring agency which should provide the necessary support to such persons.
Conclusion
Bad conditions of homes established under the earlier laws have always been in the limelight and not much has changed even after many elaborate provisions under the 2015 Act. In 2016, 33 children kept in an observation home in Chennai escaped. Out of them 29 were caught soon.
The remaining four who couldnt escape threatened to kill themselves while shouting to be allowed to leave the place. None was grievously injured but incidents like these indicate that the reality of the residential places actually functioning under the Act is different than what the laudable provisions of the Act would have us believe.
The problem is not lack of laws but the faulty implementation. This problem of implementation has been further aggravated by creation of an additional category of institutions, such as, place of safety but without any clear provisions regarding its obligations, structure, facilities, and services. No provision is made for any additional funding for either establishing more institutions or for upgrading the conditions of existing institutions.
There seems to be no clear understating even at the normative level that when the Board or Committee directs a child to be kept in a Special Home or Childrens Home for a certain period, it is not sentencing the child for that duration. As per the Beijing Rules, use of institutions is only a measure of last resort and for a minimum duration until alternative community care is arranged.
The provision for early release in indicative of this principle but provision for extending the period of stay in case the child over stays the leave of absence or if the child fails to fulfill the conditions of conditional release in case of children in conflict with law negates that approach. The drafting of various provisions has left gaping holes is understanding the scope of those provisions, responsibilities of the residential institutions and these will result in confusion, dereliction of duty due to ambiguity, and non-fulfillment of the rights of survival, development, and all round growth of abilities of children kept in various residential institutions under the law.
End-Notes:
In 1920, this distinction was completed even in the judicial processes by establishment of the first Childrens Court in Madras ensuring that children were kept away from all contact with adult offenders to protect them from their adverse influence. However, subsequent Childrens Courts established in other States, seemed to have been influenced by the parens patriae principle as they prohibited presence of a lawyer before the Childrens Court.
This prohibition was found in the Children Act, 1960 passed by Parliament. The Act continued to prohibit presence of advocate before adjudicatory bodies as a matter of right. It was later amended in the year 1978 to remove this prohibition of lawyer before the childrens court pursuant to the judgment of Gujarat High Court in Kario alias Mansingh Malu v. State of Saurashtra[1] which declared such provisions to be unconstitutional.
The Supreme Court of India in a PIL filed by Sheela Barse recommended passing of a uniform legislation for the entire country. Pursuant to this direction, the Juvenile Justice Act, 1986 was passed by the Parliament which brought some uniformity with regard to the constitution, functions, powers, procedures and orders to be passed by Childrens courts in the entire country except the State of Jammu and Kashmir.
In 1989, the UN General Assembly adopted the Convention on the Rights of the Child (hereinafter, ‘the CRC) and India became a signatory in 1992. The Juvenile Justice (Care and Protection of Children) Act, 2000 was passed with the specific purpose of bringing the legislation in accordance with the Convention. This law was replaced recently by the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter, ‘the Act of 2015 or ‘the JJ Act, 2015 or ‘the JJA, 2015 or ‘the 2015 Act).
The analysis of various provisions of the JJ Act, 2015 and scheme for the care and protection of the child in conflict with law show that while most of the provisions are made specifically in pursuance of Indias obligation under these provisions of the CRC, the scheme of transfer of children exposing them to the possibility of trial as adults is in contravention of these provisions. The JJ Act, 2000 was challenged before the Honorable Supreme Court of India (hereinafter, the Apex Court) twice but the court upheld its constitutional validity both the times.
The Juvenile Justice Bill 2014 as originally introduced was declared to be unconstitutional by the Parliamentary Standing Committee. Still, the JJA, 2015 contains provisions which do not pass the test of constitutionality.
It is apparent that object of the JJ Act, 2015 is only to provide for their care, protection, development, treatment and social re-integration. However, punishment to children for commission of any heinous offence or treating them as adults in certain circumstances is not among the objectives of the Act.
In Subramanian Swami v. Union of India[2] it was argued before the Supreme Court of India that clubbing of all children till the age of 18 irrespective of their mental capacity and nature of offence committed by them was an over-classification and was not permissible under the Indian Constitution. Rejecting the plea of reading down the provision of the JJ Act, 2000, the Apex Court in view of no ambiguity in the provisions, reiterated that:
Classification or categorization need not be the outcome of mathematical or arithmetical precision in the similarities of the persons included in a class and there may be differences amongst the members included within a particular class. So long as the broad features of the categorization are identifiable and distinguishable and the categorization is reasonably connected with the object targets, Article 14 will not forbid such a course of action.
Open shelter
Open shelters are another kind of community based residential care that may be provided to children on temporary basis. As per Section 43[3], the open shelter may be established and maintained by the State government or it may maintain it through voluntary or non-governmental organisations. In all cases, the open shelter is also required to be registered like any other institution.
Rehabilitation and re-integration
Chapter VII of the 2015 Act contains provisions focused on rehabilitation and social reintegration of a child back into the society. Section 39[4] titled ‘restoration of child in need of care and protection contains provisions for restoration of both category of children mentioned under the Act.
A quick reading of the provision makes it clear that various measures need to be taken any every stage of proceedings with regard to rehabilitation of a child under the Act. All efforts must be made through individual care plan for restoring the child to its own parents or giving them in care of a guardian or for placement in a family like setting through adoption or foster care.
Section 40[5] of the 2015 Act clearly states that restoration of a child shall be the prime objective of any Childrens Home, Specialised Adoption Agency or open shelter.
Restoration in ordinary parlance means action of returning something to the former owner, place or condition. However, here under the word is used in sense of placement as well as restoration. When a child is placed in care of someone or given in adoption it doesnt amount to restoration in ordinary terms. Even when the child is placed with a guardian other than parents, it will not amount to restoration in the usual sense unless the child was already with the guardian before proceedings under the 2015 Act were commenced.
After care
Children who grow up in institutional care for a long period of time need various kinds of support on leaving the institutions and it is integral for their rehabilitation and social re-integration. It should be provided to all children who werent restored to their parents or given in adoption. A child placed in the care of a fit person, foster care, or with a foster family may need after care as much as a child growing up in a child care institution.
The scope of aftercare under the Act needs to be delineated by reference to definition of aftercare and Section 46. The two provisions differ from each other in some crucial respects. Under Section 2(5), Aftercare means ‘making provision of support, financial or otherwise, to persons, who have completed the age of eighteen years but have not completed the age of twenty-one years, and have left any institutional care to join the mainstream of the society. On the other hand, Section 46 provides that Any child leaving a child care institution on completion of eighteen years of age may be provided with financial support in order to facilitate childs re-integration into the mainstream of the society in the manner as may be prescribed.
The definition makes it clear that aftercare is not limited to provision of only financial support. It is important to note that the definition refers to provision of aftercare for a child ‘leaving institutional care but the provision under Section 46 uses the phrase ‘leaving a child care institution. While institutional care has not been defined, a child care institution means ‘children home, open shelter, observation home, special home, place of safety, Specialized Adoption Agency and a fit facility recognized under the Act for providing care and protection to children, who are in need of such services.[6]
Section 46 read with definition of child care institutions may be interpreted to mean that aftercare may not be provided to children who may be leaving the care of a fit person or a foster family. However, such interpretation will be against the principle of best interest of the child as all children who have not been placed in family care, need support in joining the mainstream society. Institutional care as used in the definition may be understood in contradistinction to family care entitling all children to aftercare who have not already been rehabilitated and reintegrated in their own or adoptive families.
The definition clause states that after care must be given only in case the child leaves the institutional care after attaining the age of 18 but before completing the age of 21. No upper age limit has been assigned.
Reading the two clauses together, it is clear that the law makes no provision for aftercare in case of children who were tried as adults and sent to the place of safety for having committed a heinous offence and are released after attaining the age of 21. This should not pose a problem in their rehabilitation as they are to be released under the care of a monitoring agency which should provide the necessary support to such persons.
Conclusion
Bad conditions of homes established under the earlier laws have always been in the limelight and not much has changed even after many elaborate provisions under the 2015 Act. In 2016, 33 children kept in an observation home in Chennai escaped. Out of them 29 were caught soon.
The remaining four who couldnt escape threatened to kill themselves while shouting to be allowed to leave the place. None was grievously injured but incidents like these indicate that the reality of the residential places actually functioning under the Act is different than what the laudable provisions of the Act would have us believe.
The problem is not lack of laws but the faulty implementation. This problem of implementation has been further aggravated by creation of an additional category of institutions, such as, place of safety but without any clear provisions regarding its obligations, structure, facilities, and services. No provision is made for any additional funding for either establishing more institutions or for upgrading the conditions of existing institutions.
There seems to be no clear understating even at the normative level that when the Board or Committee directs a child to be kept in a Special Home or Childrens Home for a certain period, it is not sentencing the child for that duration. As per the Beijing Rules, use of institutions is only a measure of last resort and for a minimum duration until alternative community care is arranged.
The provision for early release in indicative of this principle but provision for extending the period of stay in case the child over stays the leave of absence or if the child fails to fulfill the conditions of conditional release in case of children in conflict with law negates that approach. The drafting of various provisions has left gaping holes is understanding the scope of those provisions, responsibilities of the residential institutions and these will result in confusion, dereliction of duty due to ambiguity, and non-fulfillment of the rights of survival, development, and all round growth of abilities of children kept in various residential institutions under the law.
End-Notes:
- (1969) 10 Guj LR 60.
- Cr. Appeal No. 695 of 2014.
- 43. Open shelter- (1) The State Government may establish and maintain, by itself or through voluntary or non-governmental organisations, as many open shelters as may be required, and such open shelters shall be registered as such, in the manner as may be prescribed.
- The open shelters referred to in sub-section (1) shall function as a community based facility for children in need of residential support, on short term basis, with the objective of protecting them from abuse or weaning them, or keeping them, away from a life on the streets.
- The open shelters shall send every month information, in the manner as may be prescribed, regarding children availing the services of the shelter, to the District Child Protection Unit and the Committee.
- 39. Process of rehabilitation and social re-integration-
(1) The process of rehabilitation and social integration of children under this Act shall be undertaken, based on the individual care plan of the child, preferably through family based care such as by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster care:
Provided that all efforts shall be made to keep siblings placed in institutional or non-institutional care, together, unless it is in their best interest not to be kept together.
(2) For children in conflict with law the process of rehabilitation and social integration shall be undertaken in the observation homes, if the child is not released on bail or in special homes or place of safety or fit facility or with a fit person, if placed there by the order of the Board.
(3) The children in need of care and protection who are not placed in families for any reason may be placed in an institution registered for such children under this Act or with a fit person or a fit facility, on a temporary or long-term basis, and the process of rehabilitation and social integration shall be undertaken wherever the child is so placed.
(4) The Children in need of care and protection who are leaving institutional care or children in conflict with law leaving special homes or place of safety on attaining eighteen years of age, may be provided financial support as specified in section 46, to help them to re-integrate into the mainstream of the society. - 40. Restoration of child in need of care and protection- (1) The
restoration and protection of a child shall be the prime objective of any
Childrens Home, Specialised Adoption Agency or open shelter.
(2) The Childrens Home, Specialised Adoption Agency or an open shelter, as the case may be, shall take such steps as are considered necessary for the restoration and protection of a child deprived of his family environment temporarily or permanently where such child is under their care and protection.
(3) The Committee shall have the powers to restore any child in need of care and protection to his parents, guardian or fit person, as the case may be, after determining the suitability of the parents or guardian or fit person to take care of the child, and give them suitable directions.
Explanation.—For the purposes of this section, restoration and protection of a child means restoration to—
(a) parents;
(b) adoptive parents;
(c) foster parents;
(d) guardian; or
(e) fit person. - Section 2(22).
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