The Ministry of Women and Child Development, on Thursday, sent out a call for suggestions for the repeal and re-enactment of the Juvenile Justice Act, 2000 that could send children, in the age bracket of 16 to 18 years committing crimes of murder and rape, to be tried in normal courts.
The new provision entails that children between 16-18 years, who commit murder or rape, will be subjected to an inquiry of the juvenile board, who will pass an order within a month for “the continued abjudication of the case in accordance with the provisions of the JJ Act or to transfer such case to the court having jurisdiction over such offence”. This includes cases under 302 (murder), 326A (hurt by acid attack), 376 (rape and sexual assault) , 376A (rape resulting in death or vegetative state) and 376D (intercourse by management or staff of an institution). Apart from that, the act also takes into account repeat offenders in case of robbery, dacoity, kidnapping and slavery.
The new provision also marks changes in the procedures regarding the adoption of surrendered children, children with untraceable parents and orphans. According to the provision, instead of the judicial authorities in family courts, the principal magistrate of the juvenile board will now preside over adoptions. The new law also proposes that a government official (bureaucrat) be appointed the chairperson of child welfare committees (CWCs) instead of persons of an independent charge.
“Over the last few years, concerns regarding protection of children and implementation issues related to the legislation have arisen, which need to be addressed as a priority through strengthening of existing provisions and introduction of new clauses in the Act,” read a release from the Ministry. The release further said that some of the issues that cropped up in discussions with authorities included increased incidents of child abuse in welfare homes, deplorable conditions of welfare facilities, delay in cases leading to a high pendency of cases, delay in adoption, and provisions related to juveniles in conflict with law, in the age group of 16 to 18 years, etc.
“There were three main concerns that prompted the provision. The first was the need of a separate provision for children between 16 to 18 years that will allow a juvenile board to decide whether they be tried in a normal court or the juvenile court in case of heinous crimes. There has been many concerns regarding this after the December 16 gang rape case. Secondly, the need to review the sections that preside adoptions under Central Adoption Resource Authority (CARA). Thirdly, the need to address some grey and ambiguous areas in the law,” said Shankar Agarwal, secretary, Ministry of Child and Women Development. “The most glaring need was to address the deplorable conditions of many childcare facilities. All children homes should be as good as our own homes.”
“The government should seek to correct the inaction of CWCs. It must be borne in mind that children between 16 to 18 years are the most vulnerable, and need protection. So the law that deals with conviction of these children must be handled carefully,” said Ajay Setia, the chairperson of the Uttarakhand’s Commission for Protection of Child Rights.
This amendment will mark the third amendment to the JJ Act. The first two amendments were made in 2006 and 2011. After the December 16 gang rape, in which a juvenile was one of the co-accused, there were many petitions to lower the age of a juvenile from 18 years to 16 years. This included petitions from Subramanian Swamy and the parents of the survivour. But the Supreme Court shot down the petitions, saying that it will be “unconstitutional”.
Anant Asthana, who was a member of the committee that drafted the 2011 amendment to the JJ Act, said that this system, known as the waiver system in countries around the world, comes with its own problems. “The new amendment will push in a lot of children to the adult category merely on the basis of an allegation. What is the basis of identification of the ages of these children? The waiver system has been widely contested in countries that have adopted it, like the US,” he said.
Bharati Ali of Haq: Centre for Child Rights had concerns on the sections that dealt with adoption. “There seems to be a motive to do away with adoption as soon as possible. But, an adoption is a finality, and scores of parents who lose children will not be able to reunite with their children. Also, how can a criminal court like the JJ court preside over a civil matter like adoption? Again, appointing a bureaucrat, who already has a lot on his plate, in charge of CWCs is bizzare,” she asks.
Senior advocate Ramesh Gupta felt that the law lacked on many accounts. “The JJ board will be given power to make a finding on the motive of the accused to commit the crime. This will a prejudical to the child in conflict with law. If you want to change the law, then change the age that defines a juvenile. This step sounds hypocritical and will create more confusion than any solution. The government is doing this under pressure from international,” he said.