A CRITICAL REVIEW OF THE JUVENILE JUSTICE AMENDMENT ACT, 2021

Abstract

Adoption as an institution has always been viewed by the Indian government through a rehabilitative and restorative lens. In keeping with this plan of action, on 28 July 2021, the Rajya Sabha enacted The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 [1]on 7 August 2021, the President ratified it. The newly amended bill sought to address the pertinent issues arising from The Juvenile Justice (Care and Protection of Children) Act, 2015[2]. This paper highlights the key provisions of the amended bill and analyses the need for those changes. In addition, it aims to provide a clear understanding of the ramifications of the amendments on the children, statutory bodies involved, prospective parents, and childcare institutions. It has done so by dissecting it into two parts: the former examines the effects of the act on the adoption process in India, while the latter assesses its consequences on juvenile delinquency as well as crimes against children in the country.

Keywords

Adoption, Juvenile Justice, Juvenile Delinquency, District Magistrate, Child Welfare Committee (CWC), Childcare institutions

Introduction

Smt. Smriti Zubin Irani, Union Minister for Women and Child Development, proposed the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 for the first time Parliament’s Budget session in 2021. Her main aim was to underscore the need for handing over the ultimate accountability for the welfare and safeguarding of unsafe and disadvantaged children to the District Magistrates[3]. Therefore, this Bill entrusts a wide scope of powers to District Magistrates and Additional District Magistrates in matters concerning childcare and adoption. The word “court” has been disposed of, and they now have the discretion to issue adoption-related issues under Section 61 of the Juvenile Justice Act, 2015. This has been done to establish a fair and speedy disposal of adoption cases because as of July 2018, there were 629 adoption cases awaiting resolution in several different courts[4].

In an attempt to further streamline the interpretation of this Act, a further vital change is the reorganisation of offences as “serious offences” whether they carry a minimum mandatory sentence of less than seven years in prison or a maximum penalty of more than seven years in jail. Juvenile charges have been broken down into three categories under the Juvenile Justice Act of 2015: minor offences, serious offences, and heinous offences. Serious offences encompass those for which a punishment of three to seven years in jail is specified by the Indian Penal Code or another applicable statute.

The Juvenile Justice Amendment Bill, 2021 additionally empowers a CWC appointed by the State government an authority to make recommendations on matters concerning children who have to have care and safety. The committee also has the right to call for an investigation in order to guarantee their safety and well-being and to issue a directive for their rehabilitation, which may entail family-based care such as reconciliation with the family or the guardian, adoption, foster care, or placement in a facility for children. A person connected to an organization receiving foreign contributions is ineligible to serve as chairperson or a committee member, according to Rule 15 (4B) of the Juvenile Justice (Care and Protection Amendment) Model Amendment Rules 2022. Rule 15 (4C) states that any individual involved in the implementation of the aforementioned act in any NGO or organization in a way that leads to a conflict of interest will likewise be forthwith disqualified from membership in the CWC[5]. No social worker may be appointed to the Board, pursuant to Section 4(3) of the Act, “unless such person has been continuously involved in health, education, or welfare activities having a bearing on children for at least seven years or such person serves as a practising professional with a degree in child psychology, psychiatry, sociology, or law.” These rules have been laid down to ensure that the Juvenile Justice Board members are sensitive, empathetic, and more importantly capable of conducting inquiries concerning children’s welfare and well-being.

Research Methodology

This paper is descriptive and analytical in nature and research has been based on several secondary sources such as newspapers, online journals, books, articles, and online publications. Efforts were made to select sources that offer a variety of perspectives and a fresh outlook on the Juvenile Justice Amendment Bill, 2021, and it was thoroughly ensured that they were reliable and up-to-date.

Review of Literature

Several studies have been conducted that closely focus on the Juvenile Justice Act, of 2015, its limitations, and the call for amendments to that act. They have also elaborated on the background of the system for Juvenile Justice and its proceedings in India going all the way back to the 1960 Children Act.[6] The dedication of India as a signatory to the UN Convention on the Rights of the Child, the 1993 Hague Convention on the Protection of Children and Cooperation in Respect of Inter-Country Adoption, and other relevant international agreements has also been an ongoing point of deliberation. The researchers have shown great interest in scrutinizing multi-faceted causes driving juveniles into conflict with the law which is a promising sign. Some of them have even taken their research a step further by drawing a comparative analysis between the juvenile justice laws of India and those in other countries like The United Kingdom, South Africa, and Germany. A unifying theme underlying most of the research is the suggestion that greater incorporation of mental health services within the Juvenile Justice system of India is the need of the hour. Regrettably, there is a dearth of quantitative research on the effects of the provisions of the 2021 act, but that may likely be because this act is relatively new, and accumulating substantial data requires notable time.

Shortcomings of the JJ (Juvenile Justice) Act, 2015

 Anyone less than 18 years of age has been recognised as a juvenile or child under the Indian legal system that regulates minors. Until 2015, a child who violated the law was sentenced to a maximum of three years in institutional care and was prohibited from receiving a sentence of in excess of three years or being imprisoned under the Juvenile Justice (Care and Protection of Children) Act, 2000, without regard to the nature of the offence committed. The government had been compelled to adopt the Juvenile Justice (Care and Protection of Children) Act, 2015 amidst a huge uproar in the nation when one of the six offenders of the horrific 2012 Nirbhaya case being just a few months under 18 was tried as a juvenile and just sentenced to 3 years in a reform facility. The act that took effect on January 15, 2016, enabled juveniles in the age group of 16 to 18 years to be tried as adults in matters involving heinous offences after a preliminary hearing that was to be conducted by Juvenile Justice Boards (JJB).

Initially, the Juvenile Justice (Care and Protection of Children) Bill, 2015, had been hailed as a revolutionary step heralding a modern era in adoption laws. However, it soon drew a lot of flak from various stakeholders who raised valid legal, social, and ethical concerns. The National Crime Records Bureau’s data was handed over to a Review Committee, which consisted of trained professionals and academicians as well as members of civil society, and the Committee alerted against construing the data in a single manner considering that it was in fact misleading. On top of that, some Committee members pointed out that there was already a provision in the 2000 Act that dealt with minors between the ages of 16 and 18 who had committed serious offences, negating the need to send juvenile offenders into the adult criminal justice system. The process outlined for an initial probe to be performed by the Juvenile Justice Boards had also come under fire since it not only contravened the principle of “presumption of innocence of any mala fide or criminal intent of a child up to the age of 18 years” but was also exceedingly capricious in nature.[7]

Juvenile Justice (Care and Protection) Amendment Act of 2021

The core clauses of Juvenile Justice Amendment Act of 2021have been described in detail as follows:

• Appeals: Within 30 days of the District Magistrate’s adoption order, any party that feels aggrieved by it may appeal against it to the Divisional Commissioner. Such appeals have to be adjudicated within four weeks of the appeal’s filing date.[8]
• Adoption: In keeping with the Act, an adoption agency is required to file the paperwork in a civil court of law to secure an adoption order as soon as prospective adoptive parents accept a child. The Bill specifies that the District Magistrate as well as the Additional District Magistrate are now in charge of carrying out the above duties instead of the court granting the adoption order.
• Designated Court: Prior to the implementation of this law, cases regarding crimes against children bearing sentences of upwards of seven years in jail needed to be heard by the Children’s Court. A Judicial Magistrate would preside over trials for other offences which carried sentences of up to seven years in jail. This has been altered by the Act to provide that the Children’s Court will have jurisdiction over all cases regarding infractions of the Act. 
• Offences against children: By virtue of the Juvenile Justice Act of 2015, offences against children that are enumerated in the chapter “Other Offences Against Children” and entail sentences of three to seven years in jail are cognizable and non-bailable. The amendment reclassifies those crimes of abuse and cruelty perpetrated by employees or those in charge of childcare institutions as non-cognizable and non-bailable offences. The young victims are finding it a greater challenge to report these atrocious offences as an outcome of this.
• Serious offences: The Juvenile Justice Board is mandated by the Act to conduct an investigation into any child who is suspected of committing a serious offence. Serious offences entail those offences that end up resulting in a sentence of three to seven years. It proceeds by noting that serious offences will also include situations wherein the minimum penalty is either not specified or is less than seven years in prison and the maximum sentence is greater than that.

Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 and its Impact on the adoption process

The revised Juvenile Justice (Care and Protection Amendment) Model Amendment Rules 2022 that came into effect on 1^st September 2022 immediately drew concern from lawyers, activists, parents, as well as numerous adoption agencies since cases already pending before the courts from the past few months will now have to be transferred and the entire process will have to be started anew. Once a parent registers for adoption, a petition for adoption orders is filed. The prospective parent is then meticulously assessed through a home study report, referred a child, and in due course, allowed to take a child in pre-adoption foster care.[9] The fundamental issue here is that such a delay in such an order means that the child cannot get admission into a school because the parents do not have the necessary documents yet.

Certain stakeholders also expressed their worry over the fact that neither judges nor the District Magistrates have been made aware of these prominent changes leading to a situation of utter chaos and disarray. It would be inconsiderate to expect district magistrates, who are already tasked with overseeing the functioning of an entire district, to take on these duties without first having undergone specialized training in juvenile matters. This has only been exacerbated by the recently introduced bill, which prevents the judicial review of adoptions even at the appellate stage.[10] Furthermore, the vesting of judicial powers with these officers also results in blurring the lines between the executive and the judiciary with regard to the separation of powers. 

The Central Adoption Resource Authority (CARA) has claimed that at present, there are nearly 1,000 adoption cases pending before the courts in the nation. A major problem with the adoption system at CARA is that it has quite a mere 2,188 children in its official registry whereas, a recent figure has shown that there are approximately 31,000 parents eagerly waiting to adopt a child. These loopholes have given rise to illegal adoption and trafficking.

Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 and its Impact on juvenile delinquency and crimes against children

A minor’s behaviour that appears to be characterised by criminal activity, chronic antisocial behaviour, or disobedience that the child’s parents are unable to control is generally referred to as juvenile delinquency. It is further defined as a violation of the criminal statute by a minor that is not punishable by death or life imprisonment.[11] Delinquency in youth is brought about by an intricate web of social, environmental, economic, and psychological variables.

According to National Crimes Records Bureau’s (NCRB) Crime in India 2021 report, an aggregate of 31,710 instances involving minors were filed in 2021, representing a jump of 4.7% from the previous year. A substantial percentage of them—76.2%—were between the ages of 16 and 18; the juvenile crime rate witnessed an upsurge from 6.7% to 7.0%. In its entirety, 37,444 minors were detained in 31,170 cases, of which 32,654 were detained under the IPC (Indian Penal Code) and 4,790 were detained under the SLL (Special and Local Laws) in 2021. [12] The number of such unlawful acts in these cities has been carefully dwindling from 6885 in 2019 to 5974 in 2020 to 5828 in 2021, based on its assessment of the 19 major urban cities of India with inhabitants of at least two million each. Having said that, Delhi still remains an area of grave concern where there are more cases than anywhere else. On the basis of reports, the number of criminal cases associated with minors filed in Delhi’s juvenile courts shot up by 44% in 2021. The Delhi High Court acquitted 1108 kids in petty crime cases that had been put hold on for more than a year in October 2021. The court had ordered that all cases alleging trivial offences against minors, where an inquiry has been pending and has remained unresolved for a period of time exceeding one year, would stand terminated with immediate effect, regardless of whether these minors have been produced before the Juvenile Justice Boards in Delhi.[13]

With the new amendment making such crimes against children as non – cognisable (the police cannot arrest the accused without a warrant as well as not start an investigation), it is inevitable that these appalling crimes are only going to proliferate in the coming years. These kinds of offences should be reported right away to the police by either parents or child rights organisations and Child Welfare Committees (CWC), because the victims themselves are unable to take action so due to the disparity in power.[14] However, considering that they work for daily wages, the parents of the children in question either lack understanding of how to report the crimes to the police or don’t have the willingness to do so. They are reluctant to get caught up in the arduous legal process because undertaking so would necessitate them to be absent from work and cost them money. The Juvenile Justice Act of 2015 promulgated Child Welfare Committees with the overarching objective of providing security and care to such children, but these groups usually exhibit an apathetic stance in such circumstances and prefer that the concerned parties talk it out rather than bringing the matter up with the police.

The state of affairs is rendered more detrimental by the dearth of regular, basic mental health services, including targeted, need-based counselling sessions. The numerous institutions that make up this system operate without regularly scheduled visits from licenced mental health experts or only occasionally do so from volunteers with NGOs that offer supplemental services like health and recreation. The National Commission for Protection of Child Rights (NCPCR) recently completed a study that shed light on the drawbacks that kids in daycare facilities deal with, including bullying, sexual abuse, overcrowding, etc. It is of essence that childcare facilities be inspected on a regular basis so as to see if the Act’s provisions are being thoroughly followed and if the children are being treated with utmost care.[15]

Conclusion

While the new act has performed a herculean task of straightening out the main issues of the antecedent act that came into being in 2015, it does not in any way mean that this act too does not have its own share of fallacies. There is a pressing need to close the procedural loopholes that now exist while simultaneously ensuring that justice is delivered swiftly and fairly. As a way to assist the victim with crucial support and guarantee that the child has a chance to lead a normal life, it should also be made simpler for victims to report their experiences through their parents or independent civil society institutions. In view of the fact that district magistrates are frequently inexperienced or unprepared to deal with these special laws, it is imperative that appropriate training in child protection regulations be made available as soon as possible. In order to mitigate the stigma and prejudice against child offenders that are pervasive in today’s society, comprehensive understanding with respect to psychological and socio-cultural causes as well as the causal relationship between delinquent behaviour and mental health disorders should be disseminated.  The government could provide youngsters with career- and livelihood-oriented vocational training that will also be suited to their interests and skill sets. It would be of substantial benefit if digital learning and technology-driven courses were given a preference in order to make the reincorporation of juveniles into society easier. It is pivotal that all concerned parties come together to take control of the situation and help shape the fragile lives of the future of our nation before we run out of time.

NAME: Tanya Jain

COLLEGE: National Law University, Odisha (provisionally admitted)

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[1] The Juvenile Justice (Care and Protection of Children) Amendment Act, 2021

[2] The Juvenile Justice (Care and Protection of Children) Act, 2015

[3] PIB Delhi, Parliament Passes Juvenile Justice (Care and Protection of Children) Amendment Bill 2021, pib.gov.in (28 July 2021, 6:54 PM), Press Information Bureau (pib.gov.in)

[4] The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021, prsindia.org, The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 (prsindia.org)

[5] Jagriti Chandra, New rules for child welfare panel members, The Hindu (September 18, 2022 05:13 am, New Delhi), New rules for child welfare panel members – The Hindu

[6] The Children Act, 1960, The Children Act, 1960 60 of 1960 | Ministry of Women & Child Development|IN|nzbrs (wcd.nic.in)

[7] Teena Thomas, The Juvenile Justice System in India: A brief overview, 2 (2021), Bill Summary JJ Bill, 2021.pdf (prsindia.org)

[8] Bill Summary: The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021, prsindia.org, Bill Summary JJ Bill, 2021.pdf (prsindia.org)

[9] Jagriti Chandra, The tedious process of adoption, The Hindu edition of 12 September 2022, Explained | The tedious process of adoption – The Hindu

[10] Harsh Mahaseth and Nishtha Gupta, A critique of amendments to the Juvenile Justice Act in India, pure.jgu.edu.in (27 September 2021), A Critique of Amendments to the Juvenile Justice Act in India _ OHRH.pdf (jgu.edu.in)

[11] Juvenile Delinquency, legaldictionary.net, Juvenile Delinquency – Definition, Meaning, Examples, and Cases (legaldictionary.net)

[12]   Crime in India-2021 Snapshots (States/UTs), CII 2021 SNAPSHOTS STATES.pdf (ncrb.gov.in)

[13] Vijaya Pushkarna, Juvenile crime in national capital: A major cause of concern, citizenmatters.in, Juvenile crime in national capital a major cause of concern – Citizen Matters

[14] Issue with the Juvenile Justice Amendment Act, 2021, Drishtiias (28 June 2022), Issue with the Juvenile Justice Amendment Act, 2021 (drishtiias.com)

[15] Shipra Tiwari, Juvenile Justice System in India and the Mental Health of Juveniles (5 June 2021), https://www.scconline.com/blog/post/2021/06/05/juvenile-justice-system/