Proposed Repeal and Re-enactment of the Juvenile Justice (Care and Protection of Children) Bill, 2014

1
Proposed Repeal and Re-enactment of the Juvenile Justice (Care
and Protection of Children) Bill, 2014
Comments from HAQ: Centre for Child Rights
03.07.2014
There should be a clear STATEMENT OF OBJECTS AND REASONS since it forms part of the
interpretation of the statute and its provisions.
Add following to the Preamble or Introduction to the Law:
General Comment No. 10, UN Standard Minimum Rules for Non-Custodial Measures (Tokyo
Rules), 1990, Guidelines for Action on Children in the Criminal Justice System (Vienna
Guidelines), 1997, United Nations Guidelines for the Prevention of Juvenile Delinquency
(The Riyadh Guidelines), 1990, and the United Nations Principles and Guidelines on Access
to Legal Aid in Criminal Justice Systems (2012).
The order and sequence of the various provisions in the Bill needs to be revised to ensure
coherence and easier understanding and implementation of the law.
Principles of Juvenile Justice must either follow the Statement of Objects and Reasons or,
the first section on Scope of the Act. Moreover, if the Principles are laid down after the
definition section, the terms and concepts used in the principles will also have to be defined
and explained in the definition section.
Language of Sec. 1 (4) is confusing. Also, words like production before court should be
avoided. The term prosecution takes care of production as well as disposal. Further, there
is no need to add adoption alone and leave out foster care and sponsorship. Since adoption
is just one of the possible measures for rehabilitation and reintegration of a child, it would
be useful to use a broader term instead of picking up any one measure and leaving out the
others that are laid down in the Act itself.
Therefore, Suggested revision is as follows:
Sec 1 (4) - Notwithstanding anything contained in any other law for the time being in force,
the provisions of this Act shall apply to all matters concerning children in need of care and
protection and children in conflict with the law, including –

2
(i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and
social reintegration of children in conflict with the law
(ii) rehabilitation, reintegration and restoration of care for children in need of care
Anomalies in the definition section:
The definition section is not alphabetically arranged. For example, definition of ‘open
shelter’ should needs to be rearranged as it falls within the terms starting with the alphabet
‘c’.
Definition of terms already in use in other existing laws requires careful re-examination.
For example, the terms ‘guardianship’ and ‘orphans’ are defined differently under the
GAWA and OCH Acts respectively. Since the context in which these terms are used under
the JJ Act is in some ways similar to the manner in which they are used under GAWA and
OCH Acts respectively, caution is required in laying down a new definition for the same
term.
Section 2 should therefore be reworded to begin with the following statement: “For the
purposes of this Act – …..”
Section 2 (i): Revise to – “child in conflict with law means a child who is alleged or found to
have committed an offence and who has not completed eighteenth year of age as on the
date of commission of the offence.”
Proposed definition of child in conflict with the law is causing confusion in the reading of
some of the other provisions of the proposed Bill. For example, in Section 2 (zj), place of
safety is defined as a place attached to an observation home or a special home and is meant
for children in conflict with the law. But if a child in conflict with the law is defined as only
one who has been “found” to be in conflict with law by the Board, what will happen to
children whose inquiry is pending and who need to be kept in a place of safety?
Moreover, most international laws include the aspect of allegation or suspicion in the
definition of a child in conflict with the law.
Section 2 (j) (ii): Delete reference to Child Labour (Prohibition and Regulation) Act, 1986
The issue of child labour is addressed by more than one law. Therefore, restricting the
definition of a working child to the CLPRA will limit the protection of the JJ Act to children
recognized as child labour under the Factories Act or the Mines Act, or for that matter the JJ
Act itself.
Section 2 (j) (iv): Delete the words – “if found so by the Competent Authority”.
The proposed definition of CNCP in Sec. 2 (j) (iv) suggests that a mentally ill, or mentally or
physically challenged person found without parents cannot be treated as CNCP unless the

3
CWC gives a finding to that effect. Is the police or a public spirited citizen supposed to wait
for a finding from the CWC to that effect before they can produce such a child before the
competent authority?
Section 2 (j) (v): Revise to – “who has a parent or guardian and such parent or guardian is
unfit or incapacitated to care of and protect the safety and well-being of their child”
Concern is same as in the case of Sec. 2 (j) (iv) above.
Section 2 (l): Change the word “Committee” to “Competent Authority” as defined in Sec. 2
(r). This will help maintain consistency and improve the readability and understanding of the
Act.
Section 2 (m): This should come later. The definition section should proceed alphabetically.
Also, delete the words – “and registered as such, for the purposes specified in that
section”. Registration under the JJ Act is a mandatory requirement in the proposed bill.
Therefore the registration aspect need not be brought into the definition. Many institutions
keeping children in need of care and protection will argue that the definition of an “open
shelter” or a “children’s home” or any other home requires it to be registered under the Act
and since they are not registered, they do not fall within the purview of the JJ Act. This is
precisely what Arya Anathalaya and its sister institutions were doing in WP (C) 9590/2009,
and have continued to keep children without any registration under the JJ Act or any other
law for that matter.
The government can certainly avoid spending time, resources and energy in explaining poor
or incorrect drafting of law in the courts by eliminating such unnecessary words at while
drafting legislation.
Section 2 (n): Concern and suggestion is same as in the case of Sec. 2 (m) above
Section 2 (o): Revise the definition of Child Welfare Officer to include Child Welfare Officers
attached to the CWCs. Suggested revision is as follows:
“Child Welfare Officer” means an officer attached to a children’s home or a Child Welfare
Committee, who is responsible, …
The Child Welfare Officers of institutions should come into action only when a child is placed
in an institution and not all children are required to be placed in institutions, though they do
require a home study to be conducted by a Welfare Officer and may need other support and
follow-up too.
Section 2 (t): Delete the words “which is the focal point to take up all matters relating to
children and”.
Ideally the definition of DCPU should end at section 107 because the role of the DCPU
should be spelt out in the concerned section and not the definition.

4
Secondly, the role of DCPU should not be to take up all matters relating to children, but to
provide for implementation of all child protection laws and schemes and ensure that no
child in distress goes unattended. If DCPU is to take up all matters then why have CWCs and
JJBs and POCSO Courts?
But if the Ministry still feels the need to include some aspect of the role of DCPUs in the
definition, then the definition of DCPU may be revised as follows:
“District Child Protection Unit” means a Child Protection Unit at the District level as laid
down in Section 107 of this Act, to coordinate and implement all child protection activities
in the district, with the composition, role, and functions as prescribed;
Section 2 (u): If a fit facility is meant to be run by an agency willing to receive a child only
temporarily, the word ‘long term’ becomes redundant. Also short-term must be defined to
ensure that there is periodic review. The placement of a child in a fit facility may be
renewed for another short-term if the circumstances so require, but there must be a clear
understanding on what constitutes a short term. There can be no question of long term
when it comes to a fit facility.
Section 2 (v): Even in the case of a fit person, long term placement of a child should not be
allowed. A child should be given in care of a fit person only for a short term and subject to
periodic review.
Section z (g): Delete part (ii) in the definition of orphan.
A child cannot be called an orphan simply because his/her parents refuse to keep him. Such
a child can be surrendered or abandoned, but is certainly not an orphan.
Section 2 (zj): Suggest revision in the definition of place of safety as follows:
“place of safety” means any place or institution, not being a police lockup or jail, the
person in-charge of which is willing to receive and temporarily take care of children
alleged or found to be in conflict with law.
Since this is a law specifically to deal with children in conflict with the law, no person other
than a child in conflict with the law should be covered by the proposed Bill and its
provisions.
The definition of place of safety allows a person to receive a child in conflict with law or any
other person in conflict with the law. This implies that both children and adults can be kept
together, resulting in a serious violation of child rights commitments made by India in its
Constitution, its policy documents and under its international obligations. It will also lead to
a situation of chaos as experience in Delhi has shown that even one day spent in Tihar Jail in
the company of an adult offender turns children into violent individuals, and this violence in
turn is taken out on others in the, when these children are transferred from Tihar Jail to an
observation home or a special home as the case may be.

5
In fact, within a place of safety, we need to ensure separate places of safety for CICLs below
18 years and CICLs above 18 years of age. But such age segregation will be only for children
in conflict with the law and not any other person.
Further, a place of safety could be any place other than one attached to an observation
home or a special home. It need not even be an institution. It could also be a de-addiction
centre or a mental health care unit that must get designated as a place of safety when
certain children in conflict with the law are placed in these facilities under certain conditions
laid down by the Board.
As mentioned earlier, if CICLs are defined as only those FOUND to be so by the Board, then
what will happen to those whose inquiry is still pending and who cannot be kept with other
children in the observation homes?
The definition of CICL will have to be revised in order to include those who are alleged to
have come in conflict with the law keeping in view that both children alleged and found to
be in conflict with the law can be sent to a place of safety.
Section 2 (zk): Suggested revision in the definition of pre-adoptive foster care is as follows:
“pre-adoption foster care” means a stage when the custody of a child is given to prospective
adoptive parents identified for such child, till such time that the adoption is finalised.
Definition of pre-adoption foster care should ensure that it is temporary custody of the child
given only to the adoptive parents found suitable for the child and only till the time that the
adoption gets finalized. In case the adoption is not finalised, pre-adoption foster care order
will have to be revoked by the CWC.
It is necessary to mention that the PAP is the one identified for the adoption of a particular
child in order to ensure, as far as possible, that the child does not have to keep changing
families in her/his life.
Section 2 (zq): Firstly, the term child care institution is not defined anywhere, causing
confusion as to whether this includes observation homes or not.
Secondly, the proposed definition of 'registered' makes no reference to observation homes,
open shelters, children's homes, special homes and specialized adoption agencies as defined
in Sections 2 (m), (n), (ze), (zt) and (zu), and is limited to CCIs and facilities registered under
Section 40 only.
The term ‘registered’ should therefore also include the various institutions specified in the
proposed Bill under sections 42, 46, 47, 50, and 61 of the Act also.

6
Section 2 (zs): Change ‘handling of children’ to ‘dealing with children’.
We do not want "Movers and Packers' to handle children with care, we want a sensitive
police unit specifically for dealing with children.
Section 2 (zv): Suggest revision as follows:
“sponsorship” means provision of supplementary support, financial or otherwise, to
identified vulnerable families to meet the developmental needs of their child.
It cannot be just any family and the child has to be the child of the identified family.
Section 3: The placement of the section needs to be corrected. It should not be right after
the section on definitions, especially if the principles are yet to be laid out.
Section 3 (3): Need to add some age limit and also clearly state – if in the course of inquiry
the child attains the age of 18 years, otherwise this will apply to all children whose inquries
are pending...and that is not the objective of this provision
CHAPTER-II
FUNDAMENTAL PRINCIPLES FOR CARE, PROTECTION, REHABILITATION AND JUSTICE FOR
CHILDREN:
Section 4: The principles set forth should be fundamental to the understanding and
functioning of the police, judiciary, the administration and all its institutions as well as non-
governmental agencies and individuals involved in the implementation of the JJ Act.
For example, DCPUs are not a Competent Authority, neither is it any agency. It is a unit of
the State Government and therefore it is important to talk about both state and non-state
actors playing a role under this law.
Section 4 (x): Caste and ethnicity must be added specifically than be left to the etceteras.
Section 4 (xi): The principle of privacy and confidentiality is very important in the case of
both children in conflict with the law and children in need of care and protection and its
implementation should not be compromised. But it has to be balanced. It should not be
read to the extent that it takes away the right of a victim to get even a copy of the order of
the Board in the name of maintaining confidentiality and privacy of the CICL.
What about rights of victims whose cases are booked under POCSO Act and the accused is a
CICL? POCSO Act, gives every victim a right to get a copy of the charge sheet and other
documents pertaining to her/his case. But when the accused is a child, will this right of the

7
victim sustain or will it be over ruled? As of now the Boards are not giving any documents to
victims of POCSO in the name of privacy and confidentiality of the CICL involved.
Need to add that this principle shall not affect the right of a direct party i.e. a victim to have
access to documents pertaining to the case and at the same time the Boards shall be
encouraged to devise ways in which the documents and files can be maintained without
disclosing the identity of the CICL.
Section 4 (xii): Revise to the principle as contained in the existing 2007 Rules as follows:
Institutionalization of a child shall be a step of the last resort after reasonable inquiry and
that too for the minimum possible duration.
CHAPTER-III
JUVENILE JUSTICE BOARD:
Section 5(2): Need to add requirement of some years of experience in the case of Principal
Magistrate. Earlier draft of the Bill that was being discussed in the consultations organized
by the Ministry suggested at least three years experience in the case of Principal
Magistrates.
Section 5 (3): Need to clarify that Members includes the Principal Magistrate. Training for
Principal Magistrates is equally important.
Section 5 (4): Should not restrict a practicing professional to one having a degree only in
child psychology? Why not psychiatry or law or forensics?
Section 5(7) (iii): Change to ‘less than three fourths sittings in a period of three months
preceding review by the CJM or the state government as the case may be’, because the
periodicity of review of pendency of cases before the Boards is three months. Also, a
member may not be present at a stretch for one or two months and yet be able to meet the
requirement of three-fourth sittings in a year. This affects the functioning of the Board and
such behaviour is not unknown. Only health of self or a dependant can be a valid ground for
long stretches of absence.
Section 6(4): All dissenting opinions must become part of the written orders of the Board
with explanation for dissent/disagreement.
Section 7(1): Delete the words “save as otherwise expressly provided in this Act”
In no circumstances should a court other than the Board have the power to deal with
proceedings relating to children in conflict with the law.
When a person who appears to be a child is brought before a regular court, its first duty is
to ascertain age and accordingly transfer the case. In fact, by virtue of Supreme Court’s

8
judgement in Gopinath Ghosh’s case, if on physical appearance a person brought before a
court appears to be less than the age of 21 years, the court should immediately ascertain
the age and as per JJ Act, if on physical appearance such person appears to be below the
age of 18 years the court should transfer the case to the Board immediately. Treatment of
a child as an adult even for a day or a few hours can be harmful and has serious impact
on a child’s psyche, behavior and growth.
Section 7(3) (d): Need to bring in the role of voluntary organizations or do away with CWO
also.
Presently if the Boards do not have POs, they ask voluntary organisations to assist with the
SIR etc. The proposed Act is taking that option away by restricting it to Child Welfare
Officers as an option. Most state governments do not have adequate number of Child
Welfare Officers. Moreover, definition of Child Welfare Officer under the proposed Act is
limited to a person working in a children's home. Further, often the state governments do
not have adequate number of sanctioned positions to recruit Welfare Officers and hence
there is a shortage. Many Welfare Officers give up their jobs mid-way when they are
appointed on contractual basis at low salaries or receive no salaries for months on end.
Another problem that is likely to crop up is that a Probation Officer is a specialised person
for a specific role and hence recruited as well as trained under the Probation of Offenders
Act. A Child Welfare Officer or an Ngo does not have that background and training. In this
light it should be mandatory under the law that whoever is assigned to Act as the
Probation officer has undergone or is provided training on the Probation of Offenders Act
and the role of a Probation Officer before they are assigned any tasks by the Board.
Section 7(3)(f): Suggest addition of a recognised voluntary orgainsation with requisite
expertise as yet another option for follow-up on individual care plans.
Section 7(3)(i): Need to clearly add to the list of powers and functions –
The power to take cognizance of offences committed against children placed in observation
homes or place of safety or special homes or take cognizance of crimes committed under
Chapter IX of the proposed Bill.
CHAPTER-IV
PROCEDURE IN RELATION TO CHILDREN IN
CONFLICT WITH LAW
Section 11(1): Need to add that “the reason for denying bail and the circumstances that
led to such a decision must be put down in writing by the Board”.
Section 12 (ii): Need to add that in the absence of a Probation Officer, only a Child Welfare
Officer trained to perform the functions of a probation officer is asked to prepare the SIR.
Section 14: Delete Section 14. (NON-NEGOTIABLE)

9
Section 14 is against the principles of juvenile justice and the objective and purpose of a
law on juvenile justice.
It permits a differential procedure and treatment for certain children and violates the
principle of presumption of innocence, the principle of non-discrimination and the
principle of fresh start as mentioned in Chapter II of this Bill. In fact, Principle (x) of this Bill
in fact clearly states that “there shall be no discrimination against a child on the basis of
offence committed and equality of access, opportunity and treatment is to be provided to
every child under this Act.”
Why have sexual offences been mentioned separately? Sec. 14 (1) and 14 (2) could have
been clubbed. Are only juveniles in the 16-18 age category committing more rapes?
The latest 2013 statistics in fact also shows an over 15% increase over 2012 in rapes
committed by juveniles below the age of 16 years. Also there is 166.6% increase in
involvement of minor girls aged 16-18 years as accused in rape cases. Should they also be
treated in the adult courts?
Further, since the Board can pass appropriate orders under Sec. 17 (1) and the proviso to
Sec. 17 (1) provides for placement of a child above 16 years of age booked for a serious
offence in a place of safety on the basis of nature of offence, there is no need for Sec. 14
at all.
The most dangerous part is that there are many children who are asked to plead guilty by
their lawyers or by the Board. This is done to avoid prolonged proceedings and allows
children to get away simply by admitting their offence. Once they admit their guilt, they
are let off at the earliest with a minimum sentence, which is often enough the time they
have already spent in an observation home or place of safety or jail, as the case may be. A
number of such children who plead guilty do so not because they have committed the
offence but because they can be let off and allowed to carry on with their life. It would be
unfair to take such cases into account while deciding on the question of repeat offenders.
The police is known to repeatedly catch hold of children who have some cases against
them, proven or otherwise. The plead guilty record can be further devastating.
Even the title of Section is incorrect. Sec. 14 is not about inquiry at all as given in the title.
The Constitutional vailidity of the proposed section 14 and Section 17 (3) is challengeable in
a court of law. It violates Article 14 and 15 of the Constitution of India in as much as the
Constitution recognizes the need for protective measures for children but does not allow
discrimination. Most children who will face differential treatment under the proposed

10
Section 14, even if it is on account of nature of offence, will be children belonging to the
most poor and marginalized sections of the society, and thus the very spirit of equality and
non-discrimination enshrined in the Constitution of India as a fundamental guarantee will
stand and violated.
Section 15(1): Review of pendency should either be at the end of the Chapter on CICLs or
before Sec. 14. Need to change order of appearance in the Act.
It must be clearly spelt out as to whose responsibility is it to constitute this Committee –
the state government as mentioned in Sec. 34 (5) of the proposed Bill or the State Legal
Services Authority? This necessary in order to ensure that such a Committee gets
constituted and buck is not passed on from one body to another.
Section 16(2): Add – ‘with appropriate directions, and the Board and the Committee shall
jointly prepare an individual care plan for the child, including a clear follow-up plan’.
As of now, the Committees are refusing to take CICLs or are restoring them to their families
soon after they receive the child through the Board, thus defeating the purpose of this
provision. In cases where the Board has come to a finding in its inquiry that the child is part
of an organised gang and his family is responsible for it, the purpose of declaring such child
a CNCP has been to ensure that he does not go back into the same "unfit" family and is thus
transferred to the CWC. The CWCs on the other hand completely ignore the Board’s inquiry
and send the child back to the same family that has pushed him into the world of crime.
Section 17(1): Nature of offence should not be the basis at all. It defeats the Principle of
presumption of innocence.
In fact, the whole thinking on seriousness of offence is so subjective and entrenched in
patriarchy and feudalism. Only when the body is torn or bruised and there is blood and
visible body pain does something get to be seen as serious. It only perpetuates the
stereotypical thinking on sexual offences, which does not consider sexual harassment as
serious as rape/sexual assault, whereas for a victim stalking can also be the worst of all.
Also, the POs will be expected to prepare a report highlighting mitigating circumstances. But
do they even understand what this is all about? Are they qualified and trained to do this
exercise?
Further, what about the individual care plan being the basis of decision? Should that not be
the only basis and guiding factor for deciding on the final order?
Should mental and psychological assessment not be looked at?
Section 17(1)(g): Delete the word “alternative”.
There is nothing alternative about counseling. In fact counseling should be mandatory.

11
Section 17(1)(g)(i): If age and offence both are the basis, is the system catering to both
these aspects or are we once again going to fail children and then bring in even harsher
punishments because we are unable to deal with children as children.
Will a 14 year old committing rape be treated differently from a 16 year old committing
rape and why? There are many such questions that must be answered before such drastic
measures are brought into the law.
Section 17(1)(g)(ii): This is a violation of the Principle of Fresh Start. Also if a child is
presumed to be innocent, without any malafide and criminal intent, how can he be termed
a habitual offender.
The most dangerous part is that there are many children who are asked to plead guilty by
their lawyers or by the Board. This is done to avoid prolonged proceedings and allows
children to get away simply by admitting their offence. Once they admit their guilt, they are
let off at the earliest with a minimum sentence, which is often enough the time they have
already spent in an observation home or place of safety or jail, as the case may be. A
number of such children who plead guilty do so not because they have committed the
offence but because they can be let off and allowed to carry on with their life. It would be
unfair to take such cases into account while deciding on the question of habitual offenders.
The police is known to repeatedly catch hold of children who have some cases against them,
proven or otherwise. The plead guilty record can be devastating.
Section 17(2): Delete 'related'.
Change to: Order requiring a child to:
i) attend school
ii) attend vocational training centre
iii) attend a therapeutic centre
iv) undergo a de-addiction programme
v) keep away from visiting, frequenting or appearing at a specified place, prohibited
specifically for the child
vi) attend any such programme or service that may be required as per the child's individual
care plan
Add - (v) any other aspect
Section 17(3): Delete the entire section. (NON-NEGOTIABLE)
This is simply not acceptable. If all children are to be dealt with under this law and there is a
non-obstante clause, how can some be shifted to an adult court? Such a waiver can only be

12
brought into the Act if all the principles enunciated above are changed or taken out of the
principal act as well as the rules that get framed under it. Otherwise, this amounts to
discrimination as per Principle (x) in Chapter II of this Bill.
Also, one of the important basis for continued adjudication should be the individual care
plan.
Further, if Sec. 17 (1) proviso is taking care of 16 year olds committing heinous offences,
why should there be a need for Section 14 and 17 (3) at all?
There is also no clarity on how an adult court is to proceed if a case is transferred to it by
the JJB. Where will the child be kept pending trial in an adult court? Can the adult court give
a higher sentence? What should that be? Will it be required to seek and consider the SIR to
be prepared by POs? Will it be necessary for individual care plans to be part of the court's
final order? These questions are left unaddressed.
In the Subramaniam Swamy Case [CRIMINAL APPEAL NO. 695 OF 2014] it was argued that
the level of mental/intellectual maturity in any given case cannot be determined with any
degree of accuracy and precision and the results vary from case to case and from individual
to individual. A system which provides for an option to refer a juvenile to a regular court,
therefore, ought not to be accepted as no objective basis for such reference exists.
The court noted that “Elaborate written submissions have been filed to substantiate the
argument that having regard to expert/psychological/medical opinion available the MACR
cannot be determined, with any acceptable degree of precision, on the basis of a case to
case study for which reason the legislative wisdom inherent in the Act must be accepted and
respected”.
Reference was also made to the Concluding Observations of the CRC Committee on India,
January 2000 – “81. The Committee recommends that the State party abolish by law the
imposition of the death penalty on persons under 18. The Committee also recommends that
the State party consider raising the age of criminal responsibility and ensure that persons
under 18 years are not tried as adults”.
The court also took note of General Comment No. 10 with greater emphasis - “38. The
Committee, therefore, recommends that those 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 Committee notes with appreciation that
some States parties allow for the application of the rules and regulations of juvenile justice
to persons aged 18 and older, usually till the age of 21, either as a general rule or by way of
exception.” (emphasis added)
The Subramaniam Swamy Judgement - If the legislature has adopted the age of 18 as the
dividing line between juveniles and adults and such a decision is constitutionally permissible

13
the enquiry by the Courts must come to an end. Even otherwise there is a considerable
body of world opinion that all under 18 persons ought to be treated as juveniles and
separate treatment ought to be meted out to them so far as offences committed by such
persons are concerned. The avowed object is to ensure their rehabilitation in society and to
enable the young offenders to become useful members of the society in later years. India
has accepted the above position and legislative wisdom has led to the enactment of the JJ
Act in its present form. If the Act has treated all under 18 as a separate category for the
purposes of differential treatment so far as the commission of offences are concerned, we
do not see how the contentions advanced by the petitioners to the contrary on the strength
of the thinking and practices in other jurisdictions can have any relevance.
Section 19: Death penalty and life imprisonment for children in conflict with the law is not
acceptable at all.
It was the NDA government that ensured that children were not subjected to capital
punishment and thus amended the law in 2000. The rate of juvenile crimes has not changed
so substantially. It has remained around 1% only ever since.
The Act, as clear from the Statement of Objects and Reasons, has been enacted to give full
and complete effect to the country’s international obligations arising from India being a
signatory to the UN Convention. How does the need to give effect to these very
obligations disappear or get diluted now?
The proposed Section is based on Article 37 (a) of the CRC ignoring Article 37 (b) which talks
about arrest, detention or imprisonment of a child to be used only as a measure of last
resort and for the shortest appropriate period.
Section 22: Would this apply to cases of CICLs transferred to adult courts also? Need
clarity. This is also a non-obstante clause. So should apply in all cases of CICLs.
Section 23: Replace with Sec. 20 in the current Act as it is.
Also, why only Sec. 13? What about Sec. 8 which talks about the procedure to be followed
by a Magistrate's Court not empowered under this Act to deal with cases of CICLs?
OTHERS SUGGESTIONS
(1) A uniform procedure for age determination must be laid down in the Bill itself instead of
leaving it to the rules that are to be formed subsequently.
Age determination is a critical aspect of the juvenile justice legislation, which is presently missing
from the proposed Bill. Since the law is being amended, this is an opportunity to establish a
clear set of age determination procedures, that would apply to all children equally in all States.
Varying age determination rules and procedures in different States result in discrimination
against children and amount to a violation of children’s right to a fair hearing.

14
(2) Composition of the Child Welfare Committee should be the same as it is in the present
law. The District Collector or District Magistrate and the CMO or such other district officers
should have no role to play in the Child Welfare Committees.
Firstly, Child Welfare Committees are meant to be independent bodies with quasi-judicial
powers. Inclusion of the District Collectors/District Magistrates and CMOs or other District
Officers into such a body will compromise on its autonomy and independence and may also
affect the principle of best interest of the child in both the procedures and the decisions of
the Committee.
Further, being officers of the government, the DC/DM and the CMO are already
overburdened with a range of other administrative responsibilities. Bringing them into the
Child Welfare Committee will affect the functioning of the Committee and speedy disposal
of inquiries.
(3) The proposed Bill must mention the need for setting up a Selection Committee for the
purposes of Selection of Members to the CWCs and the JJBs.
Different states follow different selection procedures. As a Federal Republic, states are free
to frame their own Rules with respect to the juvenile justice legislation and most matters
concerning children. As a result, while some states set up a Selection Committee, some
others don’t and thus compromising on a fair and transparent selection process. It is
therefore requested that proposed Bill should establish the importance of ensuring a proper,
fair and transparent selection process and clearly lay down the requirement for constitution
of a Selection Committee and a fair process of selection as prescribed under the Rules.
CHAPTER-V
CHILD WELFARE COMMITTEE
Section 25. sub (1):
Add - 'and subsequently on a periodic basis'. One time training does not help.
This is designed to fail. The Haryana example should be good enough to learn from. The
DMs/DCs never have the time to hold the sittings of the CWC. There never will be a quorum
to have valid proceedings. Also, this compromises on the independence and autonomy of
the CWC. Further, DM is to head the DCPU, which is an administrative body responsible for
ensuring smooth functioning of the CWCs. He is also Co-Chair of the DCPC, responsible for
monitoring the functioning of ICPS at the district level. And now if he is made the head of
CWC, there will be a serious conflict of interest.

15
Why should the CMO be on the CWC? What purpose does it serve? Do they have the time
for all this?
Do we really want an effective body?
CWCs are meant to be independent bodies. The autonomy of the CWCs should not get
compromised in any manner whatsoever.
Why only child psychology? What about applied psychology, psychiatry, sociology, law,
philosophy, specialisation in any disability rights issue?
Section 25. sub (3) (iii):
This should be three months as a three-monthly review of CWCs is also necessary.
Section 26. sub (4) :
Need to add the point on all orders to be ratified by all members on a subsequent date
and objections if any to be put down in writing. Failure to do so would amount to an
assumption of agreement of the absenting member on the said order.
Section 28. sub (iii) :
Probation Officers should have no role to play in the case of CNCPs. They are to be
recruited under the Probation of Offenders Act, and thus have a very different role. If they
are to deal only with offenders, how do they come into the picture w.r.t. CNCPs?
Section 28. sub (vi) :
This should be special needs. The other option is to clearly state disability as one of the
criteria.
Section 28. sub (x) :
Add - after due inquiry and due process of law.
Section 28. sub (xi) :
Which cases? Requires clarity
Section 28. sub (xii) :

16
The first part should be about reporting cases of CSA coming to their knowledge.
The second difficulty here is that it is allowing SJPU or local police to take the first decision
on whether the child is CNCP or not. This is contrary to the definition of CNCP given in Sec. 2
(iv) and (v)of the proposed Bill, which talks about CWCs deciding on who is a CNCP. Even if
the definition of CNCP as contained in Sec 2 (j) (iv) and (v) was to change by deleting the
need for determination of the status by the competent authority, it would be unfair to limit
the services of CWC to only those victims of CSA who fall within the purview of Rule 4(3) of
POCSO Rules.
In fact POCSO needs to make a change here because all victims of CSA require a support
person and rehabilitation. By limiting the services of support person to only those produced
before the CWC, injustice is being done to many other child victims of sexual abuse.
Also, even if a child does not fall within the three specifications laid down under POCSO for
the police to treat a CSA victim as CNCP, the same child may otherwise qualify as CNCP
under the definition laid down in JJA. Is the CWC then supposed to deny its services to such
a child simply because the child is CNCP but not the CNCP specified in the POCSO Rules?
Thirdly, there are many actors other than SJPU and local police who report a CNCP to the
Committee. These CNCPs may later turn out to have been sexually abused. Or for that
matter, ChildLine or any NGO or civil society member may feel that a child who has been
sexually abused is a CNCP and produce the child before the CWC.
Section 29 (Proviso) - When does this time start? A Labour Inspector may know about a
child labourer working in a factory but chose to conduct a raid and rescue the child the next
day, so that appropriate arrangements can be made for the rescue. Will he then be charged
for not producing the child before the Committee within 24 hours.
It is therefore important to say from the time the child is found or rescued by a
person/agency.
CHAPTER-VI
PROCEDURE IN RELATION TO CHILDREN IN NEED OF CARE AND PROTECTION
Section 29 (2) :
‘…entrusting the child,…’ Add - to a and Delete the comma.
Section 33 (1):
Sponsorship should be used to support such families instead of promoting surrenders.
How on earth can people be allowed to produce children and then surrender them under

17
some or the other category. Most parents in such situations do not want to surrender
their children. They only want to place their children in a boarding school or residential
facility where the needs of children can be taken care of. This too can be avoided if they
are given benefits of a sponsorship scheme.
A surrender of this nature can also amount to an offence under Sec. 317 of IPC as the
parent is not only leaving his biological child but also agreeing to give up and severe all
rights over his biological child for ever by way of surrender.
The JJ Act is about restoring children to their families and that is what all CWCs do even in
pressing circumstances that reveal how unfit a family is in raising their children and
fulfilling the child's need for love, care and protection. How come in some situation
'reunification' with family becomes so important and in others a legal provision is made to
allow disintegration of families and keeping the child away from the family?
Section 33 (1):
Proviso - By allowing surrenders in such fashion, the provision is going against the very
principles of JJ Act.
Section 33 (3):
Why is the time period for reconsideration being reduced to one month? In fact even two
months is not sufficient. It should be at least six months to ensure that relinquishment of
children like a piece of property can be avoided by all means.
How is surrender of an older child being allowed without seeking the child's views in this
regard?
Clear provision must be made requiring CWC to note down the views of the child on the
surrender in writing and such view of the child must be recorded in the presence of a at
least two witnesses other than the CWC members or members of a children's home or
adoption agency.
Section 34 (1) :
This is not required because the section begins by talking about children produced before
the CNCP or children reported to the CWC. Anyway CWCs are to reach out to children on
their own too as per Sec. 28 (xi) of the proposed Bill.
Why should a police officer conduct a social inquiry in case of CNCPs? This is not their job.
And can their reports be relied upon? They do not even visit families for purposes of
investigation in legal cases. Victims are called over to the police stations for investigation
purposes. Involvement of police will keep people away from the JJ system as police is

18
inevitably associated with crime and criminals and CNCPs and their families are not
criminals in any sense of the word
Section 34 (2) :
A clear time frame should be specified for social inquiry, otherwise nobody will be
accountable for delay as there are plenty of excuses available with overburdened staff
and specialists.
Section 34 (4) :
If review is to take place every three months, the reports will be three-months report
and not quarterly reports.
Section 34 (4) (Proviso) :
Not fair. Pendency may not be due to malfunctioning of CWCs only. What if the CWCs do
not get social investigation reports in time? What if a CWC is overburdened with cases and
the state government instead of opening more CWCs ends up changing the existing ones
simply because of this proviso to the proposed Sec. 34 (4)?
If at all, the section should be reworded to say that if the reasons for pendency attributed
to the ineffective functioning of any Member of the CWC are not addressed within three
months of such reasons being conveyed to the concerned member, then the state
government may consider reconstitution of the Committee.
Section 35 :
Child welfare officer - Add –or any other agency assigned to do so
Section 35 (g) :
Add - support persons under the POCSO Act
Section 37 (1) :
Need to add the requirement of taking into consideration the child's views, where the
child is able to express herself or himself or is aged 6 years and above, whichever is
earlier.
Section 37 (1) :
shall declare child legally free for adoption - Add- after due process as may be prescribed.
Section 37 (1) :
Proviso – ‘four month’ Change to – four months

19
CHAPTER-VII
REHABILITATION AND SOCIAL RE-INTEGRATION
Section 39 (3) :
Add - biological or adoptive parents as the case may,
Section 40 (1) :
whether they are receiving grants from the Government or not, - Delete comma.
Section 41 (3) :
‘in order to bring such institution under the purview of this Act’ –
Delete the highlighted text because the moment a provisional certificate is provided, the
institution is deemed to be within the purview of this Act. If the objective is to ensure
fulfilment of prescribed criteria and full compliance with the standards laid down in the
Act and the Rules so that the provisional registration can be reviewed and finalised, then
it must be stated so. It should actually suffice to replace the highlighted words by "in
order to ensure that the prescribed criteria for registration is fully met by the institution
and registration can be finalised".
Section 40 (3) :
Proviso - Add another proviso stating that if the state government is unable to finalise the
registration within the maximum period of six months from the date of application
despite the institution fulfilling the criteria for registration, it shall be the liability of the
state government to inform the institution of the same and extend the provisional
registration for maximum period of another three months, where after the institution
shall be deemed to be registered even if the state government is unable to provide a
registration certificate.
The same needs to be added to Sec. 5 of the proposed Bill.
Section 43 (2) :
This will keep many childless Muslim couples away from being foster parents because
Islam does not allow adoptions, but it does allow foster care and childless Muslim
couples may wish to opt for foster care.
Section 44 (1) :
programmes of sponsorship of children, - Change to 'for'
Section 45 (1) :

20
How is this any different from institutional care? In institutional care too children go out
to study and come back by a certain hour. In after care too they will be expected to be
back by a certain hour even if they are working, unless the nature of their job requires
outstation travel or night duties.
After care should be about facilitating a group of young adults to come together and live
together as a group, form their own rules and regulations for the, decide on who is to
contribute what to the group in terms of finances etc., with the state government
providing financial and other supp0ortt that may be needed to facilitate such living,
including paying rent, water and electricity bill, subsidised ration etc.
Section 46 (1) :
Every district should have an observation home. Special home may not be needed in
every district, but observation homes are because children are sent their if they are not
released on bail by the police or if the produce is unable to produce them before the
Board immediately or till such time that the inquiry is pending. Often children have to be
kept in police lock ups due to unavailability of observation homes in the district.
Section 46 (2) :
What about willingness. The institution should also be willing besides being fit to receive
CICLs.
Section 46 (4) :
Children have to be segregated, not classified. Institutions and institutional spaces have to
be classified according to age and gender.
This will lead to labelling and stigma within the same institution and will defeat the very
purpose of this Act, violating its basic principles.
Section 46 (4) :
Proviso - It should be for age appropriate care and development. Segregation cannot be only
for the purpose of preliminary inquiry. It has to be throughout the period of inquiry and age
appropriate.
Section 47 (2) :
is fit - Should be willing and fit.
Section 47 (4):
It should be segregation and not classification of children.
Section 48 (1):

21
Cannot be any person. Has to be a child in conflict with law as this Act does not cover
any other person. We can say a child in conflict with law, including one who is above the
age of 18 years and whose inquiry is pending or who is found guilty of having committed
an offence.
Place of safety should also follow rules of segregation by age. No adult in place of safety
should be kept with a child.
Section 52 (1) :
any person fit - it should be willing and fit
Section 53 (3) :
The objective has to be to ensure children's participation in matters affecting their life and
improve their ownership to the facilities provided to them.
CHAPTER-VIII
ADOPTION
Section 56 (2):
This takes away the option to adopt under HAMA. A person may wish to adopt an
orphaned chi8ld of his relative under HAMA. But simply because the child is orphaned,
he/she will come under the purview of JJ Act and then the proposed provisions on
adoption will apply. As a result, (a) the person will not have any assurance that he/she will
get the same child in adoption, because the child will be treated as any other orphaned
child kept in the queue and will shown to other PAPs also; (b) the adoption will only have
to be as per JJA and personal law cannot be brought to use. So there will be no adoption
decree as such because JJA does not lay down any provision regarding an adoption
decree.
Section 58 (1) :
The Principal Magistrate has a criminal court jurisdiction and adoption is matter of civil
jurisdiction. Therefore it has to be District Court. A Magistrate having criminal jurisdiction
cannot deal with civil matters.
Section 58 (2) :
Principal Magistrate has no jurisdiction in a civil matter.
Section 58 (3):

22
Adoption orders should not be hastened. There are many cases where the system has failed
children who were reported missing and were later discovered by their biological parents to
have been given away in adoption. Since adoption implies severing all relations with
biological family, the final adoption must be done with great care. Adoption cannot be
revoked and the state, including judiciary therefore has to take utmost care in finalising
adoption, especially in a country where the system is constantly failing children and their
families.
Principal Magistrates are over burdened in cities like Delhi
Section 58 (4) :
This amounts giving a direction to the judiciary. Only a judiciary can decide what rules it
needs to follow. This is about independence of the judiciary, which comes under attack
with a provision like this.
Section 60 (4):
The Principal Magistrate shall allow a child to be given in adoption to: - Delete 'to'
Section 61 (2) :
Children who do not wish to get adopted cannot be compelled. This amounts to forcing
children to agree to be given in adoption. It will lead to adoption of coercive and
threatening measures against children by specialized adoption agencies.
Section 62 (1) :
This provision contradicts what is laid down in 61 (2) above.
Section 63 (1):
Principal Magistrate - Replace with "concerned District Court".
Section 64 (1):
Delete Principal Magistrates as they do not have the jurisdiction and cannot have one
either.
Section 70 (1) :
The Report should directly be placed in both the Houses of the Parliament in addition to
being submitted to the Central Government. This will make CARA more accountable.
Section 72 (5):
CARA's Audit Report should also be directly place in the Parliament.
Section 73:

23
.... State Government of any report or paper. – Not clear.
CHAPTER-IX
OTHER OFFENCES AGAINST CHILDREN
Section 80 (2):
What is a minor procedural lapse? Who decides? Is a minor procedural lapse to be
reported to the police? In that case the police need to know what it is all about.
Section 84 :
Use of children for illegal activities/unlawful activities by adults/ organised gangs should
also be provided for.
Section 90:
Children committing such offences should be liable to treatment as per JJA only. Many
older children for instance use younger children for drug peddling and have control over
such children. They ought to be tried as per provisions of JJA.
CHAPTER-X
MISCELLANEOUS
Section 92 :
Where a child's attendance is required before the competent authority, such child shall
be entitled to travel reimbursement fort self and family members accompanying the child
as per actual expenditure incurred. The CWC should be given a fund to enable them to
make such payments. The child should not be expected to run around to the DCPU for the
same.
Section 95 :
Where the competent authority determines the age of the child, it shall forward such
declaration to the Registrar of Births, Deaths and Marriages for delayed birth registration
and issuance of birth certificate for the child whose age was determined on the basis of
documentary evidence other than birth certificate.
Section 95 (2) :
It should be 30 days. Children may belong to other states and therefore verification of
their age documents may take some more time.

24
Add another proviso stating that in case of CNCPs, who are victims of crime and have a
case pending in a court of law, the transfer shall be only after the evidence and cross
examination of the child is completed.
Why DCPU? The DCPU should be providing finances for transfer instead of physically
carrying out transfer themselves.
Section 96 (3) State Govt. :
This is where DCPU has a role instead of state government as per ICPS.
Section 100. :
But victims should not be denied access to their case records, orders and relevant papers
on grounds of this confidentiality clause.
Section 104 (1) Proviso :
at least two members of the Board and at least three members of the Committee -
Add - as the case may be.
Section 106(3) :
This fund should be used only for rehabilitation and restoration of children and to make
travel reimbursements to children and their families for days that they are required to
appear before the competent authority or when parents are asked to take their children
home, or for escorts accompanying children home.
Section 108(1) :
Should be at least two officers to ensure availability of at least one person at any given
point of time.
Section 110(2) :
Is there a need for this provision. Would it not serve the purpose to state that Sec. 110
(1) shall apply with effect from the date of notification of the said Act in the Official
Gazette? Otherwise, institutions not registered under JJ earlier, where serious offences
are alleged to have been committed against children residing therein, will get the benefit
of the proposed Sec. 110 (2).

25
Non-Negotiables:
Since this is a law specifically to deal with children in conflict with the law, no person
other than a child in conflict with the law should be covered by the proposed Bill.
Since erasure of records is a crucial principle, the Boards should not be expected to look at
the past history in the case of 16-18 year olds alleged to have committed serious offences.
The individual care plan should be part of the decision of the Board or the CWC, It should
that not be the only basis and guiding factor for deciding on the final order.
Mental and psychological assessment and treatment where needed need to become a
mandatory part of the law.
Studies of adolescent brain anatomy clearly indicate that regions of the brain that
regulate such things as foresight, impulse control and résistance to peer pressure are in a
developing stage up to the age of 18. These are normative phenomenon that a teenager
cannot control and not a pathological illness or defect. An article by Laurence Steinberg &
Laura H. Carnell titled “Should the Science of Adolescent Brain Development inform Public
Policy” may be read in this regard. The age of 18 provides a good mid-point of focus
between the lower and the upper age of brain development, which may result in some
amount of over-classification but that would be inevitable in any situation and a mid-
point reduces the chances.
Death penalty and life imprisonment for children in conflict with the law is not acceptable
at all.
Children should not be treated differently on the basis of the nature of offence and age.

Proposed Repeal and Re-enactment of the Juvenile Justice (Care and Protection of Children) Bill, 2014

Recommandé

Recommandé

Contenu connexe

Tendances

Tendances (15)

Similaire à Proposed Repeal and Re-enactment of the Juvenile Justice (Care and Protection of Children) Bill, 2014

Similaire à Proposed Repeal and Re-enactment of the Juvenile Justice (Care and Protection of Children) Bill, 2014 (20)

Plus de HAQ: Centre for Child Rights

Plus de HAQ: Centre for Child Rights (20)

Dernier

Dernier (20)

Proposed Repeal and Re-enactment of the Juvenile Justice (Care and Protection of Children) Bill, 2014