Law and You> Criminal Laws > Juvenile Justice Act, 2015 > General Principles of Care and Protection of Children
The laws relating to the child, having its seeds right from the enactment of the Constitution of India in the form of fundamental rights under Article 15(3) read with Directive Principles of State Policy under Article 39(e) & (f) along with fundamental duties under Article 51A, was the need of the society. The laws relating to the child was also expedient to be enacted due to accession by the Government of India to the Convention on the rights of the child, 1992, the standards set in UN rules for the administration of justice, 1985, UN rules for the protection of juveniles deprived of their liberty, 1990 and Hague Convention on Adoption,1993. And therefore, the law was enacted in the year 1986 in form of Juvenile Justice Act and the same was, as per the above said natural phenomenon of changes, changed time to time accordingly Le. Juvenile Justice (Care and Protection) Act, 2000 and Juvenile Justice Act, 2015.
The Juvenile Justice Act, 1986 was enacted by the Parliament for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles. This legislation tried focusing on varied dispositional alternatives and recommended involvement of the voluntary organizations in the justice delivery process.
Objects of the Act:
Former Chief Justice of India, Justice V.K. Krishna Iyer once stated that we need a penal code because the child is the father of a man and if we’re neglecting the underdevelopment in children, then we would be guilty of many faults and errors related to abandoning our children. The objective of JJA, 2015 is contained in the Title, Preamble and General Principles – and should be relied upon by JJBs to buttress ‘speaking orders,’ while adhering to these principles. The following are the objectives of the Juvenile Justice (Care and Protection of Children) Act, 2015.
- To lay down the basic principles for administering justice to a juvenile or the child in the Act;
- To make the juvenile justice system meant for a juvenile or the child more appreciative of the developmental needs in comparison to the criminal justice system as applicable to adults;
- To bring the juvenile law in conformity with the United Convention on the Rights of the Child;
- To prescribe a uniform age of eighteen years for both boys and girls;
- To ensure speedy disposal of cases as enshrined under Article 21 of the Constitution of India by the authorities envisaged under this Act regarding juvenile or the child within a time limit of four months;
- To spell out the role of the State as a facilitator rather than doer by involving voluntary organizations and local bodies in the implementation of the proposed legislation;
- To create special juvenile police units with a humane approach through sensitization and training of police personnel;
- To enable increased accessibility to juvenile or the child by establishing Juvenile Justice Boards and Child Welfare Committees and Homes in each district or group of districts;
- To minimize the stigma and in keeping with the developmental needs of the juvenile or the child, to separate the Act into two parts—one for juveniles in conflict with the law and the other for the juvenile or the child in need of care and protection;
- To provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship, and aftercare of abandoned, destitute, neglected, and delinquent juvenile and child.
- To allow juveniles between the age group of 16-18 years to be tried as adults for heinous offenses.
In Bhola Bhagat v. State of Bihar, [1997] 8 SCC 236 case, the Supreme Court observed that in enacting JJ Act 1986, the effort of legislature was “to reform the delinquent child and reclaim him as a useful member of the society”.
In Salil Balil v. UoI, (2013) 7 SCC 705 case, the Supreme Court observed that the essence of JJ Act, 2000 and Rules is restorative and not retributive, providing for rehabilitation and reintegration of CICL into mainstream society.
In Krishna Bhagwan v. State of Bihar, AIR 1989 Pat 217 case, the Patna HC, referring to Bihar Children Act, 1982 and JJA, 1986 observed that the basic approach seems to be curative instead of punitive.
In Imityaz Hussain Mumtiyaz Sheikh, 2008 [116] Bom LR 1645 case: the Bombay HC, when dealing with JJA 2000, stated that in the statement of objects & reasons it was set out that the Act proposes amongst others to make the juvenile system meant for a juvenile/child more appreciative of the developmental needs in comparison to criminal justice system as applicable to adults; to minimize stigma and in keeping with the developmental needs of the juvenile/child.
General Principles of Juvenile Justice:
Juvenile justice is based on principles that are
- Internationally acknowledged, more particularly the minimum standard enshrined under the UNCRC, the Beijing Rules and the Havana Rules.
- Some of the principles are based on Constitutional, Criminal and Administrative jurisprudence.
Most of these principles are applicable to both CCL & CNCP
Section 3. General principles to be followed in the administration of JJ Act:
The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:-
(i) Principle of presumption of innocence:
Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years.
This principle is very important in the context of Preliminary Assessment to be conducted by JJB under S. 15, JJA. The ‘presumption of innocence’ has achieved human rights status through following conventions and rules:
- Universal Declaration of Human Rights -Art. 11(1);
- International Covenant on Civil and Political Rights -Art. 14(2); and
- UNCRC -“Every child alleged as/accused of having infringed penal law has at least the following guarantees: (i) To be presumed innocent until proved guilty according to law” Art. 40(1)(b)(i).
- Beijing Rules, 1985 includes ‘presumption of innocence’ as one of the “basic procedural safeguards” along with the right to be notified of charges, to remain silent, to counsel, to the presence of a parent/guardian, to confront & cross-examine witnesses, and to appeal. – Rule 7(1).
In Vinod Solanki v. UOI [2008] 16 SCC 537 case, the Apex Court observed that it is now a well settled principle that presumption of innocence as contained in Article 14(2) of the International Covenant on Civil and Political Rights is a human right…”
Regarding CCL, the presumption extends not only to the child’s innocence, but also to the fact that the child had no “mala fide” or “criminal Intent” even if found to have committed the offence. It is this absence of “mala fide” / “criminal intent” that differentiates children from adults. It is presumed that a child has no ‘mens rea’.
The fact that a child is presumed not to have “any mala fide” or “criminal intent” is the basis for his / her treatment under juvenile legislation. The offending is due to the circumstances of the child; and hence punishing the child is not the solution. It is the situation of the child that requires to be remedied.
(ii) Principle of dignity and worth:
All human beings shall be treated with equal dignity and rights.
International Covenants and Rules:
UN Rules for the Protection of Juveniles Deprived of their Liberty, 1990 (Havana Rules):
- “Juveniles deprived of their liberty have the right to facilities and services that meet all the requirements of health and human dignity.” Rule 31
- “In the performance of their duties, personnel of detention facilities should respect and protect the human dignity and fundamental human rights of all juveniles.” Rule 87
UNCRC:
- “Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons of his or her age…” Art. 37(c).
- “States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth”. Art. 40(1).
UN General Comment No. 10 on rights of children in juvenile justice :
- “Treatment that is consistent with the child’s sense of dignity and worth. This principle reflects the fundamental human right enshrined in Art. 1, UDHR, which stipulates that all human beings are born free and equal in dignity and rights. This inherent right to dignity and worth, to which the preamble of the UNCRC makes explicit reference, has to be respected and protected throughout the entire process of dealing with the child, from the first contact with law enforcement agencies & all the way to the implementation of all measures for dealing with the child.”
This principle is in accordance with the fundamental right provided under article 21 of the Constitution of India. Art. 39(f) of Constitution, a directive principle states “That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity…”, which emphasizes that a child’s dignity and worth should be upheld during all stages of his/her journey within the JJ system.
In Francis Coralie Mullin vs. Administrator, UT of Delhi, (1981) 1 SCC 608 case, the Court observed: “Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live…”
In Vikaram Deo Singh Tomar vs. State of Bihar (1988) Supp SCC 734 case, the Apex Court held that to abide by the constitutional standards recognised by well accepted principle, it is incumbent upon the State when assigning women and children to these establishments, euphemistically described as ‘Care Homes’, to provide at least the minimum conditions ensuring human dignity”.
Juvenile Justice Board must always ensure following points in regard of this principle:
- Treat child with dignity and ensure other duty bearers do too
- Identify and address cases of ill-treatment.
- Ensure CCIs are maintained well.
- Listen to children, ensure effective functioning of Grievance Addressal system
(iii) Principle of participation:
Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child’s views shall be taken into consideration with due regard to the age and maturity of the child.
Art 12, UNCRC establishes the right of every child to freely express her or his views, in all matters affecting her/him, and the subsequent right for those views to be given due weight, according to the child’s age & maturity. Child can be heard “either directly/through a representative/appropriate body.
Expresses freely means the child can express her or his views without pressure and can choose whether or not she/he wants to exercise her or his right to be heard. The child must not be manipulated or subjected to undue influence/pressure, and his expression is intrinsically related to the child’s “own” perspective. The child has the right to express her/his own views & not the views of others.
Maturity means the ability to understand & assess implications of a particular matter, and must therefore be considered when determining the individual capacity of a child.
According to committee on the Rights of the Child, General Comment No. 12 (2009) The right of the child to be heard, para 134, basic requirements for implementation of the right to be heard are as follows:
- Transparent & Informative
- Voluntary Exercise of Right
- Respectful
- Relevant
- Child-Friendly
- Inclusive
- Supported by training
- Sensitive to risk
- Accountable
An enabling environment must be created to enable children to exercise their right to be heard within the JJ system. Under Article 20(3) of the Constitution of India, self-incriminatory information shared by a child during inquiry/while providing information to any functionary should not be considered by JJB. The ‘guilt’/‘innocence’ of a CCL should be determined only on basis of evidence recorded. Hence, JJB to ensure that a child has legal representation.
(iv) Principle of best interest:
All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.
According to Section 2(9) of JJA, 2015, “best interest of child” means the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights & needs, identity, social well-being & physical, emotional & intellectual development.
According to Art. 3, UNCRC:
- In all actions concerning children, whether undertaken by public/private social welfare institutions, courts of law, admin authorities/legislative bodies, best interests of the child shall be a primary consideration.
- States Parties undertake to ensure the child such protection & care as is necessary for his/her well-being, taking into account the rights and duties of his/her parents, legal guardians, or other individuals legally responsible for him/her, & to this end, shall take all appropriate legislative & admin measures.
- States Parties shall ensure that the institutions, services & facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in areas of safety, health, number & suitability of staff, as well as competent supervision.
UN General Comment No.12 (2009) emphasizes that ‘best interest’ is
- a substantive right;
- a fundamental principle to be applied while interpreting a legal provision given competing interpretations;
- a rule of procedure;
- the justification for a decision (how, what criteria, how best interest of child was weighed against other considerations, etc.);
- not the same for every child in a similar context;
- requires assessment;
- a child needs “appropriate legal representation when his/her best interests are to be formally assessed & determined by courts & equivalent bodies. para 96.
(v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.
(vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.
(vii) Positive measures: All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act.
(viii) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the processes pertaining to a child.
(ix) Principle of non-waiver of rights: No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver.
(x) Principle of equality and non-discrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child.
(xi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process.
(xii) Principle of institutionalisation as a measure of last resort: A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry.
(xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest.
(xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances.
(xv) Principle of diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole.
(xvi) Principles of natural justice: Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias, and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.