Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 introduced in the Lok Sabha on March 15, 2021 by Ms. Smriti Irani The Minister of Women and Child Development amends the provisions of Juvenile Justice (Care Protection of Children) Act, 2015. The Act was passed in order protect children who were in strife with law so that they can be provided with proper care and protection. The Bill aimed at providing strong interface for strengthening the child protection system. Following are among the key amendments advocated by the Bill:
Generally, there are three types of offences: - Petty offences, Serious offences and Heinous offences. Petty offences are those offence where the punishment is up-to 3 years, serious offences are those where the maximum punishment is of 7 years, and as far as heinous offences are concerned, if the definition is read literally then these are only offences which provide a minimum sentence of 7 years and above. Now this issue was raised by the counsel in case of Shilpa Mittal v. NCT of Delhi in which stated that it leaves out a bunch of offences falling under the 4th category. The counsel contended that the offence committed by the juvenile in this case did not fall under Sec. 2(33) of The Juvenile Justice (Care and Protection of Children) Act, 2015. The 4th category of offences being one in which minimum sentence is less than 7 years, or there is no minimum sentence prescribed but the maximum sentence is more than 7 years. Some of the offences falling into 4th category are offences related to abetment mentioned under Section 121A, 122 of IPC, offences relating to counterfeiting of currency, Homicide not amounting to murder, abetment to suicide of child or innocent person and many others. The counsel also contended that if from the definition of ‘heinous offences’ the word minimum is removed then all the offences other than petty and serious would fall under the heading of heinous offences. He suggested that Hon’ble Court should use its prudence and apply the doctrine of surplusage and remove the word minimum. To which the Hon’ble court said that the word minimum cannot be considered as surplusage though being the apex court it is there duty to protect the interest of the children. Apex court said that if they are not able to deal with this issue today then it would pose a problem for the JJ Board to deal with offences which might e falling into the category of serious or way more than serious. The Court opined that this issue should be raised in the Parliament and an ordinance should be passed to address this issue.
To give effect to the aforementioned advice, the Bill seeks to redefine the term "severe offenses" to encompass offenses that are punishable by:
Minimum punishment for a term of 3-7 years;
Maximum imprisonment for a term more than 7 years but not minimum imprisonment of less than 7 years.
Classification of offences and designated Courts
The Bill aimed at amending Sec. 86 of the act whereby offences which earlier used to cognizable and non-bailable are now non-cognizable and non-bailable. Earlier the offences with imprisonment of more than 7 years were tried by the children’s court and offences with imprisonment less than 7 years were tried by the Judicial Magistrate but now with the coming of this new bill offences under the JJ Act shall be tried by the Children’s Court.
With the coming of this Bill the burden on the Civil Court is somewhat reduced in a way that now the District Magistrate (including Additional District Magistrate) is also having the power to issue adoption orders both for inter and intra territory adoptions which earlier used to involve the Civil Court in which a seal of approval was required and then the court used to pass the final adoption order. The main reason behind this move was that there used to be delay in the finalization of the adoption cases so in order to make the process swift and to reduce the burden of Civil Court this move to give power to DM to issue adoption orders was necessary.
Section 101(3)(b) of the JJ Act states that there will be no interest for any request made by a Child Welfare Committee tracking down that an individual isn't a kid needing care and security. The Bill aims to overlook this arrangement. The Bill further proposes to embed sub-segments 6 and 7 under Section 101 of the Act. The proposed arrangements give that any individual oppressed by a selection request passed by the District Magistrate may record an allure before the Divisional Commissioner inside a time of 30 days. Attempt will be made to discard such claims within a month.
Additional functions of District Magistrate
The Bill seeks to give the District Magistrate, including the Additional District Magistrate, the authority to effectively coordinate and supervise the duties of the numerous authorities in charge of enforcing the primary Act's requirements. They have been given the authority to (i) monitor the District Child Protection Units and Special Juvenile Protection Units, as well as (ii) conduct a quarterly evaluation of the Child Welfare Committee and JJ Boards' operations.
Child Welfare Committees
The bill aims to enhance Child Welfare Committees (CWCs) by including rules pertaining to educational credentials for committee members as well as defining eligibility criteria for committee selection. At present states are required to have more than one CWC’s for each district to help out children who are in need of care and protection. Sec. 27(4) clearly lays down the requirement for being the members of CWC’s. So, the bill by inserting sub-section 4(A) under sec. 27 aims at inserting requirements for being member of CWC. Additional conditions for the selection of CWC members are set forth in the bill. It states that a person is ineligible to join the CWC if he: (i) has a history of violating human or child rights; (ii) has been convicted of a crime involving moral turpitude and that conviction has not been overturned; (iii) or has been removed from the service of an undertaking owned by the Government, or (iv) is currently part of a child care institution in a district.
Major Issues with the Bill
Although Members of the House of Representatives, regardless of political affiliation, voted in favor of the bill. The following are some of the problems that came up during the discussion:
The bill places the whole responsibility for children's welfare on District Magistrates, despite the fact that DMs are overworked officials who are responsible for the entire district as well as a variety of other responsibilities. The Ministry should consider giving them with appropriate help to ensure that this critical problem does not get lost in the shuffle of their daily tasks.
By vesting all powers related to children's rehabilitation in one authority DM’s (including Additional DM) may cause delays and have broader consequences for child welfare.
The executive has been given the authority of grievance redress under the Act, which was previously held by the courts. It aims to eliminate the function of judges, who are experts in dealing with the complexities of the law. This has major ramifications for the separation of powers concept.
By Prashant Khari, Law Student