Posted on: July 14, 2020 Posted by: Radhamani Saxena Comments: 0

AUTHOR: Priyansha Sinha, Law Student of Amity Law School, Noida; B.A-LL.B (H) 2017-2022

ABSTRACT

It aims to cover the significant articles, rights and case laws related to the topic The UNCRC notes that, regardless of race, color, gender, language, faith, beliefs, heritage, richness, birth status and ability making child rights a basic right and such rights are to be given to anyone under 18 and thus extend to people everywhere.

 About 54 articles, each of them having a different kind of right, include rights of life, developmental rights, protection rights, participation rights. The legislation on the rights of child is link between both the law and  lives of the children. But perhaps the Child’s Convention further contains a variety of children-specific rights , including the right of children to have contact with their parents, the right to take care of children deprived of their family.

The Juvenile justice system of India and the impact of United Nation convention on rights of child have been discussed and some of its important provisions like a child having right to privacy and Juvenile justice system act, 2000 and 2015.

Comparison between the criminal law system and the Juvenile justice system is also mention in the paper. Also, certain criticisms made over the new Juvenile justice act 2015 have also been discussed. The juvenile Justice board is like a mother obsessed with a child to take care and protection till the extent that it does not understand other boundaries.

 It has a unique and active jurisdiction and not passive It may become discouraging for a child going unreformed and  not making a child reform is the one last thing the juvenile justice system agrees upon It is a collective responsibility to have the child protection to be improved.

Children have been sexually abused in a lot of institutions. The 2015 juvenile Justice act is not an amendment but a new act was passed and the old act was repealed. Therefore, there is no retrospective application for it. The 2012 gang rape case where the accused was a child of the age 17 and 18 was held to be tried as an adult as crime committed was with an adult mind under the juvenile Justice act, 2015.

INTRODUCTION

Human rights are moral principles and standards which define certain qualities of conduct but are also regularly protected as legal rights under municipal and international law. As a result of the massacres during the Second World War, the United Nations General Assembly adopted in 1948 the Universal Declaration of Human Rights (UDHR) which was considered a significant declaration of international rights, as well as a synthesis of religious and secular thought. The Declaration was the first international legal effort to regulate the behavior and duties of States to their citizens and enforce them. They were deemed to be empowered by international customs law. Through Article 25(2), the Universal Declaration of Human Rights (1948) recognizes that children are entitled to “special care and assistance” and to “social safety” in respect of motherhood and infancy. The Declaration on the Rights of the Child of the United Nations (1959) had been established by the United Nation’s General Assembly. Hillary Clinton (a lawyer), published in 1973, said rights for children seem to be “a slogan that needs a definition.” It can be inferred that there are no well-defined definitions of children’s rights as there is no specific acknowledged definition or theory of child rights.

 The act 2015 on the Juvenile justice[1] is a comprehensive statute that has replaced the act 2000 on Juvenile justice. The legislation contains some new offences against children which until now have not been adequately protected by any other legislation. The act clarifies the powers and responsibilities of the Juvenile justice board and the committee for children’s welfare. After making a preliminary determination, the Juvenile justice board has the option of moving cases of unusual criminal case child o to the court of a child to decide if they are adults. The

Juvenile justice act of 2009 clothes in addition to the Juvenile justice act of 2015 a major article 21 provision that forbids the release of the names etc. The children’s welfare committee has been formed in the Juvenile justice act as the competent authority for the care and safety of children and the juvenile in need of care and protection as the last authority for the decision to deal with cases of children who are in conflict with the legislation.

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT, 2012

The POCSO Act, 2012 floors to shield children from sexual abuse and harassment. A special legislation to resolve the problem of sexual abuse of children had been passed. Sexual crimes are currently protected by the various provisions of the IPC. The IPC does not cover all kinds of child sexual crimes and does not distinguish, above all, between the adult victim and child victim. The act describes a child as a person below the age of 18 and provides all children under the age of 18 with protection from sexual abuse, persecution, and phonography. There are five sexual offences against children as child abuse aggravated penetration, sexual misconduct aggravation of sexual assault sexual exploitation and child pornography as defined under the act. The act also forbids abetment or attempts to commit these crimes. The crimes remain neutral to the victim and the perpetrator both in gender terms. The act needs the state legislatures to designate each district court as a special court in order to prosecute crimes under the act. However if a child court under the protection of Child Rights Commission act of 2005 or a special Court for a particular reason has been notified then that will try offences under the act. In August 2016 a part breaking initiatives taken to include a simple and 3 online medium to educate a child about sexual assaults it was prominently integrated in the homepage of the NCPCR website and anybody could report sexual assault of a child.

       POCSO Act ,2012, Central authorities

  1. Police or special Juvenile police unit
  2. Child welfare committee
  3. District Child Protection unit
  4. Magistrate, special Court/Judge, Special Public Prosecutor, Support Person
  5. Central Government and state government
  6. National Commission for protection of child rights and state Commission for protection of child rights
HISTORICAL BACKGROUND  

CONVENTION ON THE RIGHTS OF CHILD AND CHILD RIGHTS IN INDIA 

Earlier there was not much protection for children. For example, during the Victorian[2] era and the Industrial Revolution children had to work in  unsanitary and unsafe conditions. The growth of injustices brought upon the need for developing and understanding the needs of children. As such in 1948, United Nations General assembly passed the universal declaration of human rights, article 25 of which emphasized upon special care and assistance and social protection for mothers and children. In 1974, member states of United Nations General assembly were called upon to observe the declaration on protection of women and children in emergency and armed conflict. 1977 was declared as international year of the child. The convention on rights of the child came into the picture with the adoption by United Nations General assembly. Its main role is of achieving human rights, recognition of roles of children in social, economic, political, civil and cultural ways. In 1990, the guidelines for prevention of juvenile Delinquency were outlined. Later, UNICEF published a manual for measurement of juvenile Justice Indicators with United Nations office on drugs and crime in 2006. It was 30 years ago that the historic commitment was made with the adopting of United Nations convention on rights of child. The convention is an international treaty that recognizes the human rights of children up to the age of 18 years, being minors. 196 countries are part of it except the United States. The convention observes two main optional protocols as former dealing with restriction of children’s involvement in military or armed conflicts and latter prohibiting sale of children, basically child prostitution, objectification of children sexually or as such child pornography. Although on 14 April, 2004, a third optional protocol was also included which mentioned the communication of complaints for violation of rights of children. The ratified states to convention need to act in interest of the children. They must implement compliance with child custody and guardianship laws as they are key rights of children.  

ADVENTURE AND INTRICACIES OF JUVENILE JUSTICE JUSTICE LAW

Origin:  

The origin is from Europe, United Kingdom especially since we were under their rule. Before independence Bengal, Mysore, Madras had children act implemented. After Independence, it was considered that for independent India a new law had to be made.

Central government brought up the modern children act as a template and that all states were free to implement it. Delhi was the first to implement the law. The age of children was different in various laws. Primary impetus for juvenile Justice act, 1986 came from United Nations standard minimum rules for administration of juvenile Justice. India was the first to implement it. Certain Supreme Court cases , like,  Sheela Barse and Gopinath Ghosh , which were basically in concern with many children in jails and lack of uniformity of age of child as observed. The Indian ratification of United Nations convention[3] on rights of child 1989 and in 1992 led to enactment of juvenile Justice Act of 2000 and juvenile Justice (care and protection of children) act further. The 2000 juvenile Justice act had many flaws in it. It may be partially said that the 16 December, 2012, gang rape case had a part to play in the implementation of a new law and intention to cure deficiencies in act of 2000 to make it more workable and effective. It was felt since two years back also to make changes in the 2000 juvenile Justice act. The Mumbai Shakti Mill case and media’s involvement with children crime moreover altered tone of process which resulted in enactment of juvenile Justice (care and protection) act ,2015. In the present era it has made historic departure from its rehabilitative and reformative track. As such a child can be tried even if age is below 18 years. The juvenile Justice care and protection of children act, 2015 is after the 2019 Jammu and Kashmir and Ladakh reformation to be implemented in whole of India. Earlier they had their separate laws to deal with child rights. In the juvenile Justice care and protection model rules, 2016, until the government of states do not make new rules till then it can be referred to. For example, Jharkhand, Bihar, Gujarat, Tamil Nadu and Orissa have own State rules not model rules.

COMPARISON BETWEEN THE CRIMINAL LAW AND JUVENILE JUSTICE LAW

Can bail be denied in bailable offence under the juvenile Justice act? The answer is yes as an adult offender maybe granted bail but if it is a minor then it may be denied. The concept is different from criminal law as purpose is reformation and rehabilitation. The word arrest is not prevalent in juvenile Justice act. A child needs protection then police. A juvenile Justice Board never becomes “functus officio”. It may take relief after final disposal of the case. The juvenile Justice board has power to hold in respect of child’s disposal of cases to be extended that may modify the order of final disposal or may even release and permit the child to go home. Under criminal law this is not possible but in juvenile Justice a child is kept for reformation and rehabilitation in reformatory homes. Thus, A High Court may order for special homes to have juveniles in it as the juvenile Justice board allowed to be released on basis of this even when civil court does not allow the permission may be granted. Also age has not been reduced and remains till 18 years in the juvenile Justice act. A child who has not attained age of 18 on the day of commission of crime is still a juvenile. The judicial waiver or judicial transfer has been mentioned in the juvenile Justice act 2015. If a child is of 16 years or more on the date of commission of a crime and is alleged to commit a heinous crime then the child may be transferred to be considered by the juvenile Justice board for the age determination and whether to be tried as an adult. There is another major difference between juvenile justice law and criminal law that is if a case appears to be unfounded can court dispose it off. In criminal law only bail can be given and nothing else but juvenile Justice board has power as- if a case against a child is unfounded the case may be disposed off. A reference has to be made to rule 10(1) Of the juvenile Justice (care and protection) model rules, 2016. However, documents submitted by agencies on the first day have to be reviewed and if appears to be unfounded then the case may be disposed off. Saurabh Street Children act was challenged in Karlo Alias Man Singh Malu and others versus State of Gujarat (AIR 1969) as being in violation of fundamental rights.

CHILD PRIVACY

Sometimes it’s a matter of concern for juvenile’s reputation as juvenile’s family and identity is discussed in media often. By law if anything as such occurs, which leads to identification of child, by reporting such person in reading newspaper, through which any body is able to identify the child under the section 24, is penal. In a case it was observed that the appellant had the right to go to juvenile Justice Board and give an application as by law police cannot disclose the record under section 24 of the act and neither the disqualification can be made. Juvenile Justice Board is considered to give relief easily in urgency. Lawyers mostly approach High Court through a rate which is time taking process. Juvenile Justice Board[4] has eliminated the possibility of disqualification for a child in conflict with law later in life. Direction can be given by police to destroy record of child when a written permission is given by juvenile Justice Board and a status report has to be filed. After 20 years record cannot be disclosed later on, eliminating the possibility of disqualification.

Violation of privacy of a child under the juvenile Justice act 20005 

As per section 21(1) No report shall be published in newspaper, magazine, etc., with the name, address which may reveal the identity and shall not be published in any visual form of any child in conflict with law. A media was held responsible for such a publish in Delhi and was asked to appear in juvenile Justice board. However it contended that the enquiry had not started and since it was a pre-enquiry stage so this was not required. It was held that it had just the liability to pay penalty of Rs.25,000. Section 21,  chapter 2,  of the Juvenile Justice Act, 2015 as by juvenile in conflict with law lays that no representation of any enquiry or investigation on judicial procedure shall be disclosed. The name, address, anything that leads to identification of a child in conflict with law or in need of care and protection or child victim or witness of a crime under any other law for the time being in force shall not in picture be published or shown in visual form. The section 24, made some major changes in privacy of a child in conflict with law. Any person contravening  the law is punishable for imprisonment of six months and  two lakhs rupees. Violation of the law and any offence under this section against such children leads to the offence having a trial and is penal.

Child in need of care and protection

It is not completely each parent’s duty to give care. Juvenile Justice act has duty to give care and protection to children in need of care and protection or in conflict with law, state also has a duty to provide care and protection. Section 10(3) (b) mention that child welfare committee may give order as to finding that a person is whether or not a child in need of care and protection. It is an non-appealable order. Child welfare committee has to cautiously apply mind and give finding as to the reason for a child being in need of care and protection. As per section 30 of juvenile Justice act the committee has the function is responsibility of taking action for rehabilitation of sexually abuse children and have them reported as children in need of care and protection and to have them reported to special juvenile Justice police unit or local police as – children in need of care and protection as the case maybe under protection of children. If it is declared so the parent of the child in need of care and protection cannot have full control over the child anymore. It is important to know the reason behind the child’s involvement in the crime and if there is no enquiry it becomes difficult. Legal position of compounding may be permitted by some high courts and some may not. There remains constant struggle between criminal law and juvenile justice laws. However, the juvenile Justice board cannot declare a pair an unfit to take care of child or give protection but may forward the case to child welfare committee saying child is a child in need of care and protection and to have a final call if child is child in conflict with law by child welfare committee’s decision only.

 

IMPORTANT FORUMS IN JUVENILE JUSTICE SYSTEM
Child Welfare Committee [5]

The child welfare committee is one of the most powerful institution under the juvenile Justice act, 2000.The section 31 mention is the powers of the committee as being the committee shall have final authority to dispose off cases for care, protection, treatment and rehabilitation of children as to provide basic need for care and protection of human rights. If a child’s property has been illegally taken or faces such consequences then it’s a human right of such a child, also child welfare committee has to protect the human rights of such children. Although, the juvenile Justice act 2015 by section 29 had the word human rights be removed as to just provide for basic needs and protection of children being the authority of the committee.

Executive jurisdiction of child welfare committee

Section 8(2) Provides that power of juvenile Justice board can be exercised by

High Court or The children’s court, when such proceedings come before them , under section 19 or in appeal or revision or otherwise order. The juvenile Justice Board can pass such order just like High Court and children’s school. But if child welfare committee passes an order then it can only be set aside but its position for such an order cannot be replaced by any other authority. Such a matter has to be sent for fresh consideration.

Nature of power of the Child Welfare Committee

Child welfare committee is an agency for taking welfare measures for children. It is grossly underestimated in terms of its powers. Some scholars argue that child welfare committee has the second biggest power after that of state’s death penalty power as it has power to take away a child from parents or power to declare parents unfit for a child and still take away the child. As per the new act of HIV, if parents have HIV and Have been thrown out of homes or properties captured still their children’s possess the right to property and so child welfare committee protects this right of the children.

Nature of juvenile Justice Board 

Juvenile Justice Board aggressively seeks access to child in conflict with law and Protects it for ever after jurisdiction is acquired. Section 8(3) gives power to go in jail and find if any child is kept there, to the juvenile Justice board. If such a child in conflict with law has been found by the juvenile Justice board, it has power to immediately transfer such a child to observation home from a jail. As per section 8(3)(m)It has been added on feedback of national commission to check upon number of children in prison and their correct age.

AGE DETERMINATION

In a criminal trial age is not the prime consideration unlike cross examination. However, the Juvenile Justice act has prime importance to each determination and is the most litigated part of it. The ossification test is a test based on x-ray of bones, joints or fusions and has three different tests along with a combined test which is a duly constituted report of medical board. Error is not mentioned by the board until the advocate asks for it. If the medical board agrees the age for 16 1/2 or 17 1/2 then it can be said that a child may be tried as an adult.  However it’s been difficult to determine the age and has not been useful enough. The medical opinion of a medical board cannot be each binding on courts and parties as it is the merely opinion as said by Supreme Court and only can be accepted when there is evidence provided along with it.

OVERVIEW OF THE CHILD RIGHTS AND CONVENTION ON THE RIGHTS OF CHILD[6]

United Nations General Assembly talks about protection of children and prevention of child abuse at homes or in school. Every child has basic rights. Positive parenting is also essential for children both for health and overall development of a child’s personality. The convention has forbidden child capital punishment. As in general comment eight, the Committee stated that all states must quickly prohibit and eliminate any and all types of corporal punishment or cruel forms of punishment for children, as they are obliged to do so. Also the convention has stated in article 19 to protect the children from all types of physical or mental violence. However, the article does not discuss about cruel or corporal punishments. The proposal by committee of prohibiting corporal punishments has been rejected by several parties like Canada, United Kingdom, etc. India became party to United Nations convention on rights of child on 11th December, 1992, agreeing upon all articles with exception to reservations on issues of child labour. There still is no ban on child labour inspite of international convention stating that under age of 18 ,children shall not work. There still remains huge demand of child helpers especially for children working in domestic front. About 4 million children under age of 14 are still child labourers. The 2006, Child and Adolescent Labour Amendment act, led prohibition on economic employment under age 14 and of adolescence in hazardous field of occupations.

Delinquency is a child’s unwanted behavior which is not socially acceptable.

A juvenile offender maybe described to be as an “adult like child “. Few causes as such biological causes and environmental and social consequences results in a child’s harmful behavior. Biological causes can be due to a killer ailment, hearing problem and excessive strength. Ocular ailment may lead to a loss of vision making them more irritable and unhappy to live a decent existence. A child of excessive strength may have an uncultured mental threat which may cause an imbalance in body and further encourage a child to commit a criminal offence. Hearing problems may lead to incapacity to do any work properly contributing to antisocial actions. Environmental and social consequences can be as such due to cultural conflict, family background, socio-economic condition, neighborhood, trend of alcoholism and drug abuse, peer pressure, media or impact of school.

A BRIEF ANALYSIS OF THE JUVENILE JUSTICE SYSTEM

The act, 2015 was passed by Parliament after a lot of voices came up against many of the provisions. It has replaced the older juvenile delinquency law, juvenile Justice act, 2000 and has rather included the juveniles in conflict with law in age 16 to 18 years for those involved in serious offences. It came into being on 7 May 2015 by Lok Sabha and 22nd December, 2015 by Rajya Sabha. It got the assent of President by 31st December, 2015. Earlier there  was not a precise definition of “child court in the act. The Supreme Court held the case of Sheela Barse VS The Union of India being that it shall be suggested that it was more appropriate for the central government to enact a parliamentary legislation in lieu of each state to have its own children’s act in distinct proceedings and contends as to provisions impacting children in whole nation. The child law passed by Parliament shall not only provide on investigation and prosecution of crimes against children under 16 years but also allow compulsory rehabilitation of children convicted or abused, destitute or lost in social, economic and psychological matters. Also the legislation on the topic significantly is not enough, but rather the enforcement that holds more importance. The Central Adoption Resource Authority is a statutory body performing adoptions procedure for abandoned and surrendered children in a more better and efficient way. In the act, the process with timeline for both in-country and inter-country adoptions has been described which also mentions declaring a child free to be adopted legally.

The 2012, Delhi gang rape, played a major role in impact on public over the act. As by the earlier act, one of the accused was a few months younger than age of 18 and so was tried under juvenile court due to it. About eight raids were petition before the Supreme Court as claiming the act and several of its provisions as being unconstitutional thereafter. As such other petitions and demands were also turned down. The case returned to juvenile court and it was decided to have a sentence for three years in remand home for the accused.

The victim‘s mother severely criticized the decision of court as she said that this would rather encourage other teenagers to commit such heinous offences which would create a bad example for the whole society of India. In July, 2014, Minister of women and Child development,  Maneka Gandhi revealed that they were having preparation of a new law which would permit 16 year olds to be also tried as adults in trials. About 50% of the juvenile crimes have been done with the view that it is easier to get away with them but the new law would change this perception as it would scare to commit such offences. The new bill permits minors in the age of 16 to 18 to be tried as adults when they commit heinous crimes and shall be examined by Juvenile Justice Board to distinguish whether the crime was committed by a child or an adult. The juvenile Justice Board and child welfare committee can  support in funding of District Child protection unit, also every state government has a juvenile justice fund created for children. However the government cannot voluntarily without consent of board distribute cash. .Appeal for acquittal in juvenile Justice Board is restricted in petty case, some permission may be granted in heinous crimes.

CONCLUSION

The convention seeks it important and obligatory for party states to allow parental responsibility is to be performed. The children also possess right to have an expression of the opinions, thoughts and to have them  to hold and  act  upon if it’s appropriate enough. They must be at all costs be protected from abuse or exploitation. They also have a right to privacy and that their life shall not be scrutinized a lot. Also the convention talks about signatory states to be bound to provide a separate legal representation for a child in any judicial dispute and to have the child’s opinion be heard in regard to such cases in their due concern or care. The Juvenile Justice system is confusing for lawyers . The beyond reasonable doubt principle is replaced by “preponderance of proprietary and the intention of juvenile Justice Court is  not to have the atmosphere of criminal court.

REFERENCES

[1] RESOURCE BOOK FOR COMMISSIONS FOR PROTECTION OF CHILD RIGHTS.

[2] A REPORT OF ACTIVITIES BY YASHWANT JAIN, MEMBER.

[3] UNDERSTANDING CHILD RIGHTS.

[4] WEBINAR ATTENDED, CONDUCTED BY UN HOME MINISTRY PORTALS.

[5] REPORT BY GOVERNMENT OF INDIA.

[6] CHILD RIGHTS COMMISSION OF INDIA REPORTS.

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