In our virtual library we have posted articles on the Juvenile Justice Act 2000 and other child-related issues. The work is guided by an emphasis on bringing information to the public about issues impacting children in conflict with law and children in need of care and protection and to make positive change happen in their lives. In our Documentation and Research facility in ECHO's Center for Juvenile Justice you can find more information on this issue. We welcome visitors! Please contact us.

Introduction to Juvenile Justice Act 2000 by Arvind Narayan

How and when?

The Union Parliament, providing a uniform law on juvenile justice for the entire country, passed the first central legislation in 1986. Prior to this law each state had its own laws on this matter. The 1986 law did not however result in any dramatic improvement in the treatment of children. Human rights circles continued to be concerned about the way children were treated in special and juvenile homes.

Concern in international and domestic circles combined with pressure on the government to submit a Country Report (outlining concrete achievements) to the Committee on the Rights of the Child, seems to have inspired the Ministry for Social Justice and Empowerment. The Juvenile Justice (Care and protection of children) Act was passed in 2000.

Who is a juvenile?

Any juvenile or child who has not completed the age of eighteen would be covered by the Act

Separation of child in conflict with the law ren. The 2000 lawfrom child in need of care and protection. In the past children who had committed serious offences used to be kept in the same institution as children neglected child The 2000 lawcalls for observation homes for juveniles in conflict with the law and children's homes for children in need of care and protection.

Points specific to the child in conflict with the law

• Whatever the nature of the offence, the child shall be released on bail regardless of surety. If extraordinary circumstances calls for detention it must be in an observation home, not prison or police station.

• The Juvenile Justice Board which consists of two social workers and one magistrate has the discretionary power to send the child home after admonition or advice or order him or her to perform community service or release the child on probation. (Sec. 15)

• A child cannot be sentenced to death or life imprisonment or committed to prison in nonpayment payment of fine or furnishing of security. (Sec. 16)

• No child shall suffer any disqualification attaching to a conviction. After a reasonable period of time the records of the conviction must be removed.(Sec.19)

• No child shall be tried with an adult. (Sec.18)

• The act also protects the privacy of the child. No media report may carry identifying particulars or particulars of a child in conflict with the law or a child in need of care and protection.(Sec.21)

Points specific to the child in need of care and protection

• Expansion of category
  In JJA 2000, the category of children in need of care and protection has been expanded to include victims of armed conflict, natural calamity, and civil commotion, child found vulnerable and likely to be inducted into drug abuse.

• Custodial framework for dealing with child in need of care and protection
  Children in need of care and protection stay within the purview of the criminal justice system. The police have the powers to contact a child, hold an inquiry and produce him before the Child Welfare Committee.

• Restoration as option for child in need of care and protection
  The law emphasizes restoring the child to parents, adopted parents or fosters parents with adoption, foster care, sponsorship and aftercare through the juvenile and special homes being a secondary option. (Sec.39)

Critique of Juvenile Justice Act 2000

The fundamental premise underlying the JJ Act is that children who commit offences and children who need care and protection would fall within the ambit of the juvenile justice system. The Act builds in certain avenues for release of the child either to parents, guardians, fit persons or adoptive parents or to people who would provide foster care. However, it is important to remember that the logic of the juvenile justice system is to provide what the preamble of the Act calls 'proper' care, protection and treatment by catering to their development needs' within an institutional setting.

These institutions, designated as observation homes, children's homes or special homes, share one feature in common - they are all closed institutions, which completely deprive the child of his or her liberty. In its conceptualization, the Act purports to focus not on punishment, but on how best one can reform the erring individual. Thus, the deprivation of liberty is not conceptualized as punishment, but as a mode through which the juvenile is reintegrated into society.

What is to be noted is that this program of 'reintegration' is to be carried out with respect to the child in conflict with the law for a period of not less than 2 years in the cases of children who are over 17 and below 18 and for other juveniles till she/he ceases to be a juvenile. For children in need of care and protection, the child would continue in the children's home if the other measures conceptualized under the Act, like foster care, adoption, sponsorship and after care are not suitable.

Thus the philosophy seems to be that by detaining children till they reach the age of 18 and by subjecting them to a monotonous daily routine and an enforced separation from all forms of living outside daily routine, one would produce individuals who can then be reintegrated back into society. However the daily reality of life in most "homes" really reflects an adherence to the classical model of punishment.

Strengths

The adjudicating authority has been changed from a Magistrate (to be assisted by two social workers) to a Bench of two social workers and a Magistrate, redesignated as the Juvenile Justice Board. This change in composition of the adjudicating authority is one of the more significant changes in the new law. Now, space has been created for bringing about a change in the very nature of the inquiry. The primary inquiry of whether the child did commit the offence as mandated by a magistrate's training can now be displaced by a social worker's inquiry, which could focus on why the child committed the offence, and how one may redress the situation.

What could change has been referred to as the criminal law mindset itself. This is in effect an important step towards decriminalizing the administration of juvenile justice, provided the rules (which are framed by the individual states) operationalize the same.

Loopholes

Juvenile Justice Act 2000 fails completely to engage with crucial conceptual questions (for instance, about the responsibility of the origin of the crime) in the area of juvenile justice.

ECHO shares the following critiques on the Act:

• JJA 2000 does not take into account lessons from law reform efforts in other parts of the world including developing nations such as Uganda and South Africa, or make serious efforts to incorporate the provisions of the Child Rights Convention (CRC) that India has ratified. For instance, the Board has the power to send the child to a special home for a minimum period of not less than two years for a child who is over seventeen and less than eighteen and in case of any other juvenile till he or she ceases to be a juvenile.
  
  This provision is in clear contravention of Art. 37(b) of the Convention of the Rights of the Child, which notes that arrest, detention or imprisonment of a child shall be used only as a measure of the last resort and for the shortest appropriate period of time.

• The soul of the CRC is the notion that the child has the right to participate in decisions that affect her (Art 12). This fundamental principle has completely been ignored in the JJ Act 2000. If an enactment were to implement Article 12, it would mean a radical overhaul of existing ways of interacting with children. At every stage in the interface between the child and the juvenile justice system, space should be created for expression of the child's opinion.
  
  So right from the point of arrest, to adjudication before the competent authority to assessment by the authority to placement to everyday living within the institutions set up under the juvenile justice system, the child's opinion should not only be heard, but given due weight in accordance with the age and maturity of the child. In particular the protectionist understanding (which lets adults decide what is in the "best interest" of the child) underlying the juvenile justice administration would be subject to a radical shift.

• The change in composition of the adjudicating authority seems a cursory attempt at really changing the deeply custodial nature of the entire juvenile justice system. If the state is serious about decriminalizing the treatment of, if not the child in conflict with the law, then, at least, the child in need of care and protection, it needs to bring about changes at every level starting from the police.

• While the aim of minimizing the stay of the child in the juvenile home and special home as conceptualized is laudable, there are serious concerns as to whether restoration is the best solution. For instance, in cases involving child sexual abuse, this solution can be ill conceived. In the cases of children in difficult circumstances too (such as children on the street, children engaged in sex work, etc.), restoration might not be a solution.

• Yet, another concern relates to the fact that no safeguards have been built into the procedures regulating adoption and foster care in the Act itself, leaving it entirely to the discretion of states, which have the power to make rules under the Act.
  
  There can be no argument that our best minds and our most critical and compassionate thinking must be at work while designing laws that are meant for the care and rehabilitation of our children. In this context, it is of deep concern that in an age when our knowledge about wrongdoing has increased exponentially, and traditional criminological approaches have been contested by explanatory frameworks which locate the reason for wrongdoing in societal structures, the Act bears no trace of any new thinking.