Care and Protection of Children
Care and Protection of Children Whether the culpability of the offence committed by a juvenile is determined on the basis of maturity attained by him at a given age or his cognitive development? This never-ending the debate over “juvenile age” or in other terms, the debate over “16 or 18” came up again as an inevitable controversy after the introduction of Juvenile Justice (Care & Protection of Children) Act, 2015, repealing the previous Act of 2000.
The ferocious “Nirbhaya rape case” has remained nothing less than poignancy of a barbarous act. It had made everyone to ruminate on the issue of juvenile’s age and finally, the Indian Government reverted back to the whining pleaders after a period of three years. Now the question which gives the whole issue a political tinge is that whether the hasty passage of this Act was done after getting swayed by emotions or was it really imperative to amend such key legislation?
Over the years, courts have looked into various cases wherein juveniles were accused of committing heinous crimes and the court reached a verdict while taking the Juvenile Justice (Care & Protection of Children) Act, 2000 into account. The sole concern before the judiciary was proper implementation of the Act and protection of rights and liberty of juveniles. There are innumerable efforts which have been made since the inception of the Children Act, 1960 till the enactment of the Juvenile Justice (Care & Protection of Children) Act, 2015, in order to emphasize upon the same concern. As time went by, we have seen amendments of the definition of the term ‘juvenile’, varying parameters of punishments and so the provisions of child-related laws. This article attempts to critically analyze the inherent contradiction in the neoteric Act, i.e. Juvenile Justice (Care & Protection of Children) Act of 2015. The critics referred the Act as a mockery of the Indian Constitution and United Nations Convention on the Rights of the Child (UNCRC). VIRTUAL CFO
Following are the key issues of the Juvenile Justice (Care and Protection) Act, 2015 –
• Under Section 16(1), the Act permits juvenile who has completed or is above the age of 16, to be tried as adults for heinous offences. This particular amendment shook the audience who expected a reformatory approach from the legislature. According to them, it not only violates Article-14 of the Constitution but beats the purpose of the Indian justice system with regard to juveniles i.e. to bring reformation and rehabilitation. Though around 90% of the brain gets developed by the age of six, the fine-tuning and cognitive maturity of the brain continues breaking the barriers of such age bars.
• This act provides for mandatory constitution of Juvenile Justice Boards and Child Welfare Committees in each district consisting of a Metropolitan or Judicial Magistrate and two social workers, including a woman. This provision needs proper implementation and timely regulation for attaining the real aim.
• Under this new legislation, a preliminary inquiry will be conducted by the Boards to determine whether a juvenile offender is to be sent for rehabilitation or be tried as an adult. Section- 19(3) says that the enquiry will be assisted by experienced psychologists, psycho-social workers and other experts. This provision may affect the presumption of innocence and lead to disproportionate procedure and arbitrariness under the constitution.
• The Act also provides for the adoption of the juveniles which earlier was not provided under the Juvenile Justice (Care & Protection of Children) Act, 2000.
• It also lays down the penalties for cruelty against a child, offering a narcotic substance to a child and abduction or selling a child.
With so much mixed contradictions, the leaders are still imploring the judiciary as well as the legislature to bring in a justifiable juvenile law as the present Act could not take retrospective effect and punish the juvenile who was found guilty in the “Nirbhaya rape case”. Further, it must be noted that if the constitutionality of several provisions of the Act is challenged before the superior courts, it may provoke a public outcry. Owing to such provisions that violate the provisions given under the Constitution and UNCRC, there are possibilities of further amendments in the Act. What the system of this country lacks is the effective implementation of the existing laws and not the enactment of a number of legislation.