Anant Kumar Asthana Advocate Delhi High Court Discussion on Newly Enacted The Juvenile Justice (Care & Protection of Children) Act, 2015 & Rule Making Process Date: 18 March, 2016 Venue: Hotel Hindustan International, Kolkata Anant Kumar Asthana Advocate Delhi High Court

Juvenile Justice ( Care & Protection of Children) Act 2015 Applicable to whole of India except Jammu & Kashmir In Force from 15.01.2016 10 Chapters Covering 112 Sections Rules Not yet in Place State “Shall” make rules, Central Government “May” frame model rules [Sec 110]

Statement of Objective of Juvenile Justice Act of 2000 and 2015 JJ Act of 2000 An Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation and for matters connected therewith or incidental thereto. JJ Act of 2015 An Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, hereunder and for matters connected therewith or incidental thereto.

What is new in New JJ Act 2015! New Offences and Enhanced Punishments Judicial Waiver for a category of Children in Conflict with Law Term “Juvenile” almost abolished Fundamental Principles of Juvenile Justice Administration Separate Chapter on “Adoption” Change in definitions, functions, processes and Institutional setup Status of Child Welfare Committee altered No Absolute Protection from Disqualification Appeal against acquittal made appealable Reference to the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption , 1993 Classification of Offences and their consequences

Protection from Disqualification JJ Act of 2000 Section 19 (1) : a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. Section 19 (2) : Board shall make an order directing that the relevant record of such conviction shall be removed after expiry of the period of appeal or a reasonable period prescribed in the rules. JJ Act of 2015 Section 24: a child who is 16 or above and has been tried as adult by the children court under section 19 (1) (i) will not be protected from such disqualification and relevant record of conviction shall also be retained by the Children Court. Board will direct the Police and Children Court will direct its own registry to destroy the relevant record of conviction after expiry of period of appeal or a reasonable period prescribed in the rules.

Prohibition from Disclosure of Identity JJ Act of 2000 Section 21(1) : No report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a juvenile or child under this Act shall disclose the name , address or school or any other particulars calculated to lead to the identification nor shall any picture of any such juvenile or child be published, without permission of JJB or CWC. Section 21 (2) : Any person who contravenes above provisions shall be liable to a penalty upto 25 thousand rupees. JJ Act of 2015 Section 74: Prohibition is now applicable on (1) Children in conflict with law, (2) Child in need of care and protection, (3) child victim and (4) Child witness of crime in Inquiry, Investigation or judicial procedure. Contravention punishable with imprisonment upto 6 month or fine upto 2 lakh or both. Police shall not disclose any record of child for purpose of character-certificate or otherwise.

Procedure for Age Determination JJ Act of 2000 Section 49 and Rule 12 A sequence of documents to be considered. If no document, then age estimation through a duly constituted medical Board. Lower margin to be considered and one year relaxation possible. JJ Act of 2015 Section 94 In obvious cases, age to be declared on the basis of physical appearance. Only in case of reasonable ground for doubt, process of age determination to be followed. In case of no documents, medical age determination by an ossification test or any other latest medical age determination test.

Categories of Children in Conflict with Law (1) Children who will be processed by the Juvenile Justice Board [Section 18 (1)] (2) Children who will be processed jointly by the Juvenile Justice Board and Child Welfare Committee [Section 8 (3) (g) & 17 (2)] (3) Children who will be processed as children by the Children Court [Section 19 (1) (ii)] (4) Children who will be processed as adult by the Children Court [Section 19 (1) (i)]

Scope of Rehabilitation A child (person below the age of 18 years on the date of commission of offence) can be fully waived to Adult Criminal Justice System only if such child does not respond to reformative and rehabilitative approach till reaching the age of 21 years. [Section 20]

Adult Treatment of Children prescribed only as an Exception Transfer to children court prescribed only in case of “Heinous Offences”, meaning thereby only those offences where mandatory minimum sentence is 7 years or more [ Section 2 (33)] Decision of JJB to treat a child as an adult is not binding on Children Court and it can differ with JJB, based on its own assessment.

Offences where “Transfer” may be considered by JJB 121, 195, 195A, 302, 304B, 311, 326A, 364A, 370 (2) (3) (4) (5) (6) (7), 376 (1) (2), 376 A, D, E, 397, 398 of Indian Penal Code 15 (c), 17 (c), 18 (b), 19, 20 C, 21 (c), 22(c), 23 (c), 24, 25, 27 A, 29, 31 A of NDPS Act 4 (1) and (2) of Commission of Sati (Prevention) Act, 1987 27 (2), 27 (3) Arms Act 10 (b) (i), 16 (1) (a) of UAPA 1967 59 (iv) of the Food Safety & Standards Act, 2006 3 (2) (i), (iv), (v) of SC-ST Act 3 (1) (i) MACOCA 4, 6 of POCSO Act, 2012

Preliminary Assessment [Sec. 15(1)] Heinous Offences + 16 or above age on the date of commission of Offence To be done by the JJB within 3 months from the date of first production [Sec. 14(3)] For such an assessment, Board may take assistance of experienced psychologists or psycho-social workers or other experts Mental & Physical capacity to commit such offence Ability to understand the consequences of the Offence Circumstances in which child allegedly committed the offence

Changes in Relation to CWC Minimum 20 Sittings in a month [Sec 28 (1)] DCPU shall provide a Secretary for CWC [Sec 27(3)] Visit to any CCI to be counted as a sitting [Sec 28 (2)] No power to order for registration of F.I.R. District Magistrate as “Grievances redressal authority” for CWC [ Sec 27 (10] Termination of CWC in case of failure to address pendency [Sec 36 (5)]

Mandatory Reporting [Sec. 32] Any individual, police officer, functionary of any organization, nursing home, hospital or maternity home Who finds or takes charge or is handed over a child who appears or claims to be abandoned or lost or to be an orphan without family support Shall within 24 hours give information to (1) CWC, (2) DCPU, (3) Childline, (4) nearest police station or handover such child to a CCI registered under JJ Act Failure is offence punishable with imprisonment up to 6 months or fine of 10000 Rs or both [ Sec 33 & 34]

Mandatory Registration under JJ Act All institutions ( State or NGO run) Meant wholly or partially for housing children in need of care and protection or in conflict with law Regardless whether they get grant from Government or not Shall be registered within 6 months from 15.01.2016 Inspection Committee can inspect any non-registered institution to determine whether such institution is housing CNCPs Failure is offence punishable with imprisonment upto 1 year or fine not less than one Lakh rupees or both [Sec. 42] Every 30 days delay is a separate offence [Sec. 42]

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