Amendments to the juvenile justice legislation have once again been passed in Parliament, without comprehensive debate, leaving child rights practitioners confused regarding the rationale for such amendment.
Concerns regarding non-implementation of child-rights legislation and provisions that are not child-friendly have been constantly raised by child rights practitioners. Certain problems that hound the general legal system, such as, delays in administration of justice, also impact children, and require to be addressed. In recent times, amendments to the laws have resulted in dilution of the juvenile justice system and child protection legislations, whereby well-entrenched philosophies are being overturned and child protection services are substituted or placed under the control of the general administration, who has no expertise or inclination towards child-related issues.
Similar is the situation regarding the amendments to the Juvenile Justice (Care and Protection of Children) Act, 2015, that were passed by the Lok Sabha and Rajya Sabha on March 24 and July 28 respectively, despite opposition by academics, professionals and civil society organisations, as these were injurious to children’s interests.
By the current amendments, the District Magistrate has been given additional powers, functions and roles to deal with child protection and the adoption process – but do they have the requisite skill and time to handle child-related matters? The present amendments have reduced important questions relating to child protection and development into mere routine executive matters. The difference in approach between those engaged in child protection and administration is apparent – the former studies it from a child rights perspective, whereas the latter, from a technical outlook.
The Statement of Objects and Reasons to the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021, reflects that the ‘significant delay in finalization of adoption cases in Courts’ is why this task has been handed to the District Magistrate. High pendency and backlog of cases prevail in all courts in India and in respect of varied types of cases. It has been a topic of deliberation on several platforms, including, by the Chief Justice of India in his keynote address at the India-Singapore Mediation Summit. Such deliberations have explored and recommended strategies to curtail judicial delays – the answer is not to shift the judiciary’s caseload to the administration, as has been done by the JJ Bill, 2021.
Instead of applying its mind to the manner in which judicial delays regarding the adoption process can be curtailed, the government of India has thrown out the baby with the bath water. Final adoption orders end a biological relationship and create a legal relationship between the adopted child and adoptive parents, which requires judicious caution – it cannot be reduced to the hurried signing of documents between meetings by an overburdened chief in-charge of the administration of that district or his deputy.
As per the amendment, the District Magistrate has also been given the powers to “call for any information from all the stakeholders including the Board and the Committee”, thereby making an adjudicating authority answerable to the administration, who may have no understanding as to why the Juvenile Justice Board or the Child Welfare Committee has acted in a particular manner. It is important to note that the JJ Act, 2015, has permitted review of the orders of the Board and the Committee by the courts. Then why is the District Magistrate’s interference necessary in this context?
District Magistrates have also been given other unfamiliar tasks to perform in relation to Child Care Institutions (CCIs). Inspection Committees have been constituted under the JJ Act to “mandatorily conduct visits to all facilities housing children in the area allocated, at least once in three months”, and they are obligated to “submit reports of the findings of such visits” to the District Child Protection Units and the state government. By the new amendments, such a report has to be submitted only to the District Magistrate. Isn’t it necessary for the Ministry of Women and Child Development or other relevant ministry to know the findings of the Inspection Committee relating to a CCI, especially when the said ministry is the registering authority, and has a duty to take suitable action against an erring CCI, including withdrawal of registration?
The District Magistrate can also recommend to the state government the category under which a particular CCI should be registered. Why has the District Magistrate been given these powers, when it is the District Child Protection Unit (DCPU) that has been given the specific task, under the JJ Act, “to ensure the implementation of this Act, including the establishment and maintenance of institutions under this Act”? Is the purpose of such an amendment to dismantle the DCPUs and structures constituted under child-related legislations and schemes? Is it a cost-saving device, where additional tasks are given to existing structures, bypassing specialized mechanisms constituted for such purpose?
Privatisation, a tenet of the neo-liberal era, has also impacted the juvenile justice system. Gradual privatisation of the juvenile justice system can be traced through the changes in juvenile justice legislation and ground-practices. CCIs under juvenile justice legislation were set-up and run by the state or its agencies. The 1990s saw the mushrooming of children’s homes (housing children in need of care and protection) set-up and run by non-governmental organisations, and thereafter, observation homes and special homes (housing children in conflict with the law [CCLs]) have also been set-up and managed by non-state actors, albeit at a lesser degree. Such a shift from state management to private management has also resulted in a shift in accountability of the functionaries of privately-run CCIs.
The current amendment has perpetuated this trend. Probation Officers, who are public servants, play an important role under the juvenile justice system, mostly in relation to CCLs, and are attached to Juvenile Justice Boards and observation homes, special homes or places of safety, i.e., CCIs that house CCLs. Preparation of Social Investigation Report on the apprehension of CCL, supervision of children released on bail, attending proceedings before the Juvenile Justice Board and the Children’s Court, preparing Individual Care Plans and post-release plans, are some of the duties of Probation Officers.
As earlier mentioned, today, most of the children’s homes are privately established and managed – in privately-managed children’s homes, the duties of Probation Officers are performed by Child Welfare Officers. By the said amendment, the definition of ‘Child Welfare Officer’ is modified - ‘children’s home’ has been substituted by ‘child care institution’ - CCIs include institutions that house both children in need of care and protection (CNCPs) and CCLs. With this substitution, the task performed by the Probation Officer in CCIs housing CCLs, may now be performed by the Child Welfare Officer.
Is this an innocent insignificant change or does it hint of things to come, namely, that the state governments are not desirous of filling Probation Officers’ vacancies, that the state governments are desirous of handing over the setting-up and management of observation homes, special homes and places of safety to non-state actors?
On the one hand, the legislature believes that contested argument that increasing punishment for offences against children will act as a deterrent. However, even by that logic, the amendment to section 86 of the JJ Act, 2015, is inexplicable.
Section 86 falls under the chapter, Other Offences Against Children, which creates and punishes specific offences committed against children, such as, sale and procurement of children for any purpose, corporal punishment. Sections 86 classifies the offences under this chapter into cognizable/non-cognisable and non-bailable/bailable, as also, the court that should entertain such trials.
By this amendment, a general principle of criminal jurisprudence has been disregarded, namely, that the more serious offences (per its punishment) are cognizable, whereas, the less serious offences, are non-cognizable in nature. Prior to the said amendment, “where an offence under this Act is punishable with imprisonment for a term of three years and above, but not more than seven years, then such offence shall be cognizable.” However, the said amendment has made offences punishable between three years and seven years as ‘non-cognizable’. The implications of this amendment are that sale and procurement of children for any purpose “by a person having actual charge of the child, including employees of a hospital or nursing home or maternity home”, will be treated as a ‘non-cognizable’ offence, which means that the police cannot investigate that offence or arrest the accused without orders from the District Magistrate!
Child-related legislations during the last decade have undergone several amendments. Is this high rate of amendments an attempt by the legislature to portray that they genuinely want to better the children's situation? Should not such amendments have been proposed after wide consultation with child rights practitioners and after having considered their suggestions? Why were objections raised by professionals and academics not considered? What was the urgency for these amendments to be passed during the pandemic? Were these amendments whetted by the Ministry of Law and Judiciary? Hope these questions are answered by the government of India before the next amendment to child rights legislation is introduced in Parliament.
Maharukh Adenwalla is a lawyer practicing in Mumbai. She deals with case relating to children, both child victims of sexual abuse and children in conflict with the law.