A case for juvenile justice

A case for juvenile justice

After being approved by the Union Cabinet and being introduced in themonsoon session of Parliament, the debate surrounding the Juvenile Justice(Care and Protection of Children) Bill 2000 has entered a critical stage.Very soon, we may be handed down a new juvenile justice law which may not beappropriate for us.

Laws regarding juvenile justice have always been passed in a hurry in India.The existing Juvenile Justice Act, 1986, allegedly drafted to satisfy thewhims of the then Prime Minister in just a few days, passed by theParliament without much debate and made into a law in record time. The samestory seems to have been repeated with the proposed law. The idea ofreforming the law itself was born less than two years ago. While a fewinformal consultations and conferences on juvenile justice had advocatedreforms here and there, the emphasis was still on proper implementation ofthe existing law by creating an adequate number of institutions andextending the coverage of the law.

It was only after the setting up of the Centre for Child and the Law, atthe National Law School, Bangalore in February, 1999 that the task of lawreform was seriously taken up.

It appears that the Ministry for Social Justice and Empowerment has beenover-ambitious in believing that the newly constituted Centre could domiracles by producing a draft of the new law in a few months. Here, it maybe appropriate to recall that the British Children Act, 1989 was a productof a long and thorough consultation process that had begun in 1984 by theappointment of a Review of Child Care Law Committee.

In contrast, the proposed law which can neither lay a claim to the wisdom ofa formal committee such as the Gurupadaswamy Committee on Child Labour, norhas the backing of the scientific insights of the Law Commission of India(to the best of knowledge, the Law Commission was never asked to apply itsmind to juvenile justice issues).

The government has also not thought it worthwhile to formulate any policyon children after 1974, though it ratified the U.N. Convention on the Rightsof the Child (1989) in November 1992.

The need for a national policy for any meaningful reform in the law wasstrongly debated at the Bangalore National Consultation in November 1999,but the policy consultation was not even half-way through when the two draftbills titled the Children (in Conflict with the Law) Bill, 1999 and theChildren (in Need of Care and Protection) Bill, 1999 were placed before theMinistry. The Bills were then routinely referred from one department andexpert to another.

Like the existing JJ Act 1986, the proposed Bill envisages measures forchildren in conflict with law, as well as children in need of care andprotection. The earlier Act was strongly criticised for providing a raw dealto the neglected juvenile category because they were treated more likedelinquents in matters of their apprehension, pre-trial detention, custodialcare and rehabilitation. That's why the National Consultation recommendedtwo distinct Bills, with a view to demarcate welfare jurisdiction fromjustice jurisdiction.

Having two distinct laws would have brought our law closer to the law inthe United Kingdom and other European countries, where children in need ofcare and protection are dealt with exclusively by the Children Act, 1989whereas the Criminal Justice Act, 1991 is meant to deal with children (youngpersons) in conflict with the law.

The law doesn't see any real distinction between the delinquent and theneglected child; otherwise why would it group victimised children along withchildren in conflict with the law in chapter III (Sections 23-27)? Are thevictims also perceived as ``trouble-makers''?The guiding spirit of the proposed law appears to be to widen thedefinitional net.

It has proposed raising the age uniformly to 18 years both for boys andgirls; adding new categories of ``children in difficult circumstances'' inthe newly constituted `children in need of care and protection' category;and bringing mentally and physically challenged children who are covered byother legislations like the Disabilities Act under the purview of theproposed law.

The juvenile justice law in advanced countries has progressively raised thelower age ceiling from 7 years to 12 and 14 years. Since the proposed lawhas ignored the recommendations for raising the lower age from 7 years, (interms of Section 82 of the Penal Code) it would be desirable to raise theage.

Particularly, the definition of children in need of care and protection islikely to open up possibilities for gross abuse or injustice. The proposedSection 2(c)(iii) relates to mentally or physically challenged or terminallyill or sick children having no one to support. Such children also have to beproduced before the Child Welfare Committee. Shouldn't a doctor or socialworker be deployed in this situation instead of a policeman?Professor B.B. Pande, Faculty of Law, University of Delhi, is a member ofthe Expert Group and the Juvenile Justice Draft Committee