Background

The first proper intervention by the government of India in justice for children was via the National
Children’s Act, 1960. This act was replaced later with Juvenile Justice Act, 1986. In 1992, India ratified
the United Nations Convention on the Rights of the Child (UNCRC). To adapt to the standards of the
convention, the 1986 act was repealed and the JJ Act, 2000 was passed. The JJ Act 2000 dealt with two
categories of children viz. ‘child in conflict with law’ and ‘child in need of care and protection’. As per JJ
Act, 2000, a juvenile is a person who is below 18 years of age. This act has a provision that a child in
conflict with law cannot be treated as an adult. If a child is convicted for any offence, he may spend a
maximum of three years in institutional care. This act empowered the Child Welfare Committees (CWCs)
to deal with child in need of care and protection. Juvenile Justice Boards (JJB) were empowered to deal
with child in conflict with law.

Need for the amendment of the JJ Act 2000

The National Crime Records Bureau (NCRB) data shows that there has been an increase of offences
committed by juveniles, especially in the age group of 16-18. One of the perpetrators in the Delhi gang
rape of 2012 was few months short of 18 years age and he was tried as juvenile. He was sent to
reformation home for three years and was released in December 2015. This had raised the public
demand for lowering the age of juveniles under the act. The 2000 act was also facing implementation
issues particularly in cases of adoption.

Salient Features of the Juvenile Justice Act 2015

The JJ Act 2015 also deals with both categories of children. Children in conflict with law It treats all the
children below 18 years equally, except that those in the age group of 16-18 can be tried as adults if they
commit a heinous crime. A child of 16-18 years age, who commits a lesser offence (a serious offence),
may be tried as an adult if he is apprehended after the age of 21 years. A heinous offence attracts a
minimum seven years of imprisonment. A serious offence attracts three to seven years of imprisonment
and a petty offence is treated with a three year imprisonment. No child can be awarded the death penalty
or life imprisonment. It mandates setting up of Juvenile Justice Boards (JJBs) in each district with a
metropolitan magistrate and two social workers, including a woman. The JJBs will conduct a preliminary
inquiry of a crime committed by a child within a specified time period and decides whether he should be
sent to rehabilitation centre or sent to a children’s court to be tried as an adult. The board can take the
help of psychologists and psycho-social workers and other experts to take the decision. A Children’s court
is a special court set up under the Commissions for Protection of Child Rights Act, 2005, or a special
court under the Protection of Children from Sexual Offences Act, 2012. In absence of such courts, a
juvenile can be tried in a sessions court that has jurisdiction to try offences under the Act. Children in
need for care and protection Child Welfare Committees (CWCs) should be set up in each district with a
chairperson and four other members who have experience in dealing with children. One of the four
members must be a woman. The committee decides whether an abandoned child should be sent to care
home or put up for adoption or foster care. Other Salient Provisions The Central Adoption Resource
Agency will frame rules and regulations for adoption of orphaned children. Inter-country adoption is
allowed when no Indian adoptive parents are available within 30 days of child being declared free for
adoption. Adoptive parents should be financially and physically sound. A single or divorced person may
adopt a child. A single male may not adopt a girl child. Disabled children will be given priority for adoption.
Children in need of care and protection can allowed to be placed in foster care based on the orders of the
CWC. The selection of the foster family is based on the family’s ability, intent, capacity and prior
experience of taking care of children. Buying and selling of a child attracts imprisonment up to five years.
Giving an intoxicating or narcotic substance to a child attracts imprisonment up to seven years.
Institutions for child-care must be registered. Corporal punishment of children in child-care institutions is
also punishable. Non-disclosure of identity of juvenile offenders by media. Summary of Provisions The JJ
Act 2000 empowers the Juvenile Justice Board, which has psychologists and sociologists on board, to
decide if a juvenile criminal in the age group of 16–18 should tried as an adult or not. It has also tried to
make the adoption process of orphaned, abandoned and surrendered children more streamlined while
adopting some of the concepts from the Hague Convention on Protection of Children and Cooperation in
Respect of Inter-Country Adoption. Further, the act has introduced foster care in India under section 44.
As per this, the families would sign up and the abandoned, orphaned children or those in conflict with the
law would be sent to them. Such families will be monitored and shall receive financial aid from the state.
The law has also made provision that while adopting child, priority is given to disabled children and
physically and financially incapable children. The parents who are giving up their child for adoption get 3
months to reconsider their decision {It was earlier 1 month}. The law mandates that any person giving
alcohol or drugs to child would be punished with 7 years imprison or Rs. 1 Lakh fine or both. A person
selling a child would be imprisoned for five years or Rs. 1 lakh fine or both.
http://www.gktoday.in/blog/juvenile-justice-care-and-protection-of-children-act-2015/

The petition filed by activist Tahseen Poonawalla contends that the Juvenile Justice (Care and
Protection of Children) Act, 2015 is arbitrary and in violation of the fundamental right of right to
equality enshrined in Article 14 of the Constitution.

The petition sought the court to judicially review Section 15 of the 2015 Act which provides an option
for a juvenile offender aged above 16 to be tried as an adult if the Juvenile Justice Board gives its
consent on a preliminary inquiry.

It said the Act focussed on punishment of juveniles rather than the stated constitutional objective of
all juvenile laws, which is care and protection.

 The statute further violates the letter and spirit of the U.N. Convention on the Rights of the
Child.

Key Issues and Analysis

 The provision of trying a juvenile committing a serious or heinous offence
as an adult based on date of apprehension could violate the Article 14 (right
to equality) and Article 21 (requiring that laws and procedures are fair and
reasonable).
 The UN Convention on the Rights of the Child requires all signatory
countries to treat every child under the age of 18 years as equal. We would
be contravening the convention in case the bill goes through.
