The Concerned for Working Children

Preliminary Comments on the Juvenile Justice Bill

Posted on July 06, 2014

Dated: 3rd July 2014

By: The Concerned for Working Children, Karnataka

(Endorsed by India Alliance for Child Rights (IACR) to the Ministry on 3rd July 2014)

Considering the major overhaul indicated in the Bill, we submit our preliminary comments below which highlight some of the important issues regarding the Bill. As submitted to you in our letter dated 1st July 2014, we would like to reiterate the need for a deeper systematic consultation with various stakeholders, including children. Meanwhile, an extension of dates would also provision the possibility of working further and giving more detailed comments.

Our comments below are written in terms of overarching issues of concerns:

• Consultation related to the Bill: We welcome the opportunity of engaging in a dialogue on the Juvenile Justice system opened up by the Ministry of Women and Child Development. It has been a demand by several child rights organisations that the law be overhauled for various reasons. This said, it is also reiterated that a fresh look at the law would require different ways of approaching the old issues. While the circular attached to the bill mentions previous consultations, considering the major changes that have been brought in, the bill needs to be approached as a fresh piece of legislation, the tabling of whose draft needs to be followed by a rigorous new consultative process. Also, considering this bill comes at the heels of the National Children’s Policy 2013, it is of paramount importance that it fall in line with its spirit and give consequence to its guiding principles which recognise that ‘children’s views, especially those of girls, children from disadvantaged groups and marginalised communities, are to be heard in all matters affecting them, in particular judicial and administrative proceedings and interactions, and their views given due consideration in accordance with their age, maturity and evolving capacities’.

The UN Committee on the Rights of the Child in its recently published ‘Concluding observations on the consolidated third and fourth periodic reports of India (2014), reiterates this by mentioning that ‘In light of its general comment No. 12 (2009) on the right of the child to be heard, the Committee recommends that the State party take measures to strengthen this right in accordance with article 12 of the Convention’. They particularly suggest that the government ‘Develop toolkits for public consultation on national policy development to standardize such consultation at a high level of inclusiveness and participation, including consulting with children on issues that affect them’ and ‘Promote and facilitate the active involvement of children and youth, parents, NGOs and other interested and relevant bodies’. Hence, we strongly suggest that the government consider a more deeper consultative process which maps all stakeholders and consults them in a systematic manner before tabling this Bill. A 15 day period of on-line consultation limited to five A4 size pages for a 69 page Bill seems deeply inadequate to respond qualitatively and thoughtfully to the law which is to provision the well being, safety and security of the most vulnerable members of our society.

• Unclear antecedents of the Bill: The Circular attached to the Bill does not explain with clarity the antecedents of the bill in terms of the nature of research which explains the new structures and ideas embedded within it. This is to be seen in light of the CRC Committee’s concern on lack of data availability where it ‘(…) urges the State party to expeditiously improve its data collection system. The data should cover all areas of the Convention and should be disaggregated by age, sex, geographic location, ethnic, national and socioeconomic background in order to facilitate analysis of the situation of all children, particularly those in situations of vulnerability. Furthermore, the Committee recommends that the data and indicators be shared among the ministries concerned and used for the formulation, monitoring and evaluation of policies, programmes and projects for the effective implementation of the Convention’. For example, this bill adds several new categories of vaguely defined institutions like the ‘place of safety’, ‘reception centre’, ‘short stay homes’ etc. The need to create these new institutions remains unclear. Merely increasing the types of institutions will not lead to better management. These institutions need clarified roles that are the result of researched outcomes and should be supported by extensive child rights training and mainstreaming, in order to foster a child friendly environment. Additionally, the current bill speaks only in passing to the needs of disabled children and is silent on many other categories such a children of incarcerated adults, children who might be refugees/asylum seeking etc. It is also unclear on how it may accommodate the special requirements of children such as those who are HIV/AIDS positive or how sensitive issues of the adolescent age group that need to integrate awareness relating to sexual and reproductive health care will be handled. No pro-active measures to integrate holistic education within the institutions, beyond the classroom education, has been indicated. Training in life skills, and the prevention of substance abuse etc have only been noted in passing without details on how pro-active institutional measures that support healthy choices are taken.

• Consolidation and co-ordination across landscape of child rights institutions and mechanisms: This need for a differently structured deeper process is further expanded when one considers the concern highlighted by the Committee ‘(…) that the different levels of authority and competencies within the State party’s federal structure have resulted in a differentiated application of the legislation on children’s rights and there is fragmentation and inconsistencies in the implementation of child rights across the State party’. This confusion is reflected in the body of this bill in some of the following ways:

1. Unclear shift of responsibility to the ICPS: Section 107 states the ‘constitution of child protection unit responsible for implementing this act’. The Integrated Child Protection Society (ICPS) itself has been a contentious body which has still not been established with clarity in states across the country. A lot of ambiguity surrounds their role and functions. Hence, the integration with the JJ system seems deeply problematic. Additionally, The ICPS is an autonomous body which has a mandate of facilitating and operating in an additional managerial and technical capacity to the Department of Women and Child Development. The Department cannot outsource the primary responsibilities of its most vulnerable constituency to a Society which is peripheral to the governance structure especially when external complaints mechanisms are either inadequate or non-existent. The onus of responsibility and accountability must still be held by the department itself.
2. Principle of diversion: The important ‘principle of diversion’ which finds mention under the fundamental principles in the bill, has not been integrated into the actual functioning of the law. It is unclear how this principle will be operationalised in a sensitive manner to keep children out of judicial proceedings.
3. Non-clarity on non-institutional methods and systems: While the bill states that it supports the ‘principle of institutionalisation as a last resort’ it remains unclear how it will operationalise it considering the bill itself lays out largely a system of institutions. While ‘foster care’ finds brief mention in Section 43, the bill seems to outsource the responsibility of defining this system with clarity. Considering, the important role such a space would play, there is need to define the procedure, criteria and manner within the bill instead of state determined rules. As the CRC Committee notes: (…) the efforts of the State party to improve the alternative care system, but is concerned that institutionalization is still dominant in the State party instead of family-based care. The Committee is also concerned at: (a) The lack of disaggregated data on children in need, on those provided with services and in different forms of alternative care, on support services for parents and kinship caregivers, on abandonment, neglect and abuse of children, and on measures adopted, other than legislation; and (b) The lack of information on the assessment, selection, training, remuneration and supervision of foster parents and kinship caregivers, review procedures for children in care, as well as accreditation, minimum requirements for and supervision of children’s homes, and a complaint mechanism for children in public care, including State and private, NGO or church run facilities.
4. Unclear roles for the NCPCR and SCPCR (complaints mechanisms): Considering the mandate of the Commissions to examine and review the safeguards provided for children by law, the Commissions on Child Rights, both at the central and the state level have an almost negligible role to play in the current bill which causes serious concern as these are supposedly the autonomous bodies overseeing these institutions. Their own lack of resources and ability also imply that a larger overview of child rights complaints mechanisms needs to be undertaken in order to ensure that these systems are functional and are not bound in any conflict of interest.
5. Unclear jurisdiction of the bill: The section on ‘Other offenses against children’ seems to be ambiguous in terms of expanding and bringing under its jurisdiction a whole range of child related crimes and their adjudication. Considering the child is the victim in these situations and remains outside the ambit of the institutions, which body then presides over these cases is unclear. It also throws the interaction of the multiple laws regarding these issues and how they interact, into confusion.
6. Lack of decentralised systems for an integrated approach: The current system outlines a set of institutions which function at the district level and are distanced from communities. For prevention, rehabilitation and reintegration, the need to integrate with bodies which are embedded in communities is paramount to an approach which moves away from institutionalisation. While the District Child Protection Unit finds mention, their role remains unclear in terms of this larger goal. The CRC Committee too ‘calls on the State party to systematically involve communities and civil society actors, including all non-governmental and children’s organizations, in planning, implementing, monitoring and evaluating all State supported policies, plans and programmes related to children’s rights’. The provisions of the 73rd Amendment give panchayats the mandate of having Committees on Social Justice which could support integration and prevention processes. These need to be considered for a decentralised holistic approach.

• Need for a holistic approach: One of the stated reasons for an overhaul of the Juvenile Justice system has been that it responds to the needs of children from the point of the vulnerability being established and experienced in the life of the child. A holistic approach which studies the root causes and provisions preventive measures to ensure the well-being of children within their communities and families, is not integrated into this law. The Juvenile Justice system in its present form remains largely a piece of legislation that clarifies the institutionalization of children who are in need of care and protection; and in conflict with law. It does not take a holistic approach to understanding and responding to vulnerabilities in accordance to the best interests of the child. The current bill follows this path and continues to stress on institutionalization through various means.
• Holistic integration of participation: Along the same lines, while the ‘Principle of participation’ is highlighted in the initial section, the right to be heard is not incorporated within each element of the bill itself. The general principles of the CRC, the UN Committee on the Rights of the Child has declared that the right of a child to be heard enshrined in article 12 of the CRC is not only a right in itself, but should be considered in the interpretation and implementation of all other rights 1. It must hence, be the underlying principle in the governance system that wishes to respond qualitatively to children’s needs. The processes which would ensure that the child has a qualitative space to share in decisions regarding their own wellbeing, to recourse if he/she feels violated on any aspect of their rights etc are currently missing and not integrated in a holistic manner. While there is mention of children’s committees within institutions (Page 42, Point 53 (3)), it remains unclear how they interact with the other committees that are formed and the expanse of the nature of participation.
• Right to representation: In the case of children in need of care and protection, there is an unequivocal violation of their right to be heard in the current juvenile system in India. Indeed, there are presently no child-friendly mechanism to ensure that the views of the children are taken into account during the proceedings before the Child Welfare Committee (CWC) and to give due weight to those views. The participation of the children in their own cases is quasi absent, there is no one to represent these children before the CWC or to convey their views to the CWC members. Furthermore, there are no uniform standard for the decisions the CWC makes and minimal records are kept, leaving nothing for review. While the CRC largely emphasizes the concept of participation as a key element in juvenile justice where “including children should not only be a momentary act, but the starting point for an intense exchange between children and adults,” 2 the children before the CWC are left on their own often without resources or possibility to participate to the decision-making process. This clearly defies the right to participation and dynamic self-determination 3 expressed in article 12 of the CRC. There is an urgent need for a greater sensitivity towards these children and a more approachable method to give opportunity to children to be directly or indirectly heard in the procedures. Children in need of care and protection cannot be left on their own without assistance when people make decisions that can be life changing events for children. If legal representation is a constitutional and fundamental right, be it a child or adult, these children need to be heard “through a representative or appropriate body [who must have] sufficient knowledge and understanding of the various aspects of the decision-making process and experience in working with children.” 4 For the spirit and letter of the law to truly reflect India’s international obligations in relation to children’s rights, this is the best way to guarantee fundamental fairness, justice, and liberty of these children.
• Transfer of 16-18 age group who have committed heinous crimes to adult courts: Article 40(1) of the UNCRC mentions that a child ‘accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society’. In the case of Dr Subramanian Swamy & Ors v. Raju Thr. Member Juvenile Justice Board & Anr in the Supreme Court of India, where the matter of maximum age at which a child can be tried as a juvenile rather than as an adult was discussed, the courts dismissed the challenges to the Juvenile Justice Act and upheld the requirement under the Act that all persons under 18 years of age are to be treated as juveniles subject to the Act. It was thus argued: The meaning of the Juvenile Justice Act is plain and unambiguous and the legislative intent is clear that all persons below the age of 18 are put in one class/group by the Act to provide a separate scheme of investigation, trial and punishment for offences they commit.  This is being done to further and effectuate the views of the international community which India has shared by being a signatory to the referenced conventions and treaties.  The Constitution does not forbid such categorisation where the broad features of the class are identifiable and distinguishable and the categorisation made is reasonably connected with the object targeted.  Contrary international opinion or practice does not dictate the legislation of a sovereign nation and, indeed, the Court finds a considerable body of world opinion that all persons under 18 should be treated as juveniles subject to separate treatment for committed offences. The object is to ensure their rehabilitation and to enable young offenders to become useful members of society in later years. 5
• No mention of prevention or awareness generation: The CRC Committee mentions that ‘there is concern at the low level of awareness of the Convention among the public in general and children in particular’. Children are often not even understood as subjects of rights. This has serious implications on how vulnerabilities and understood and responded to irrespective of whether it is within communities or by governance systems which are to provision recourse to justice. The current bill does not speak of how an understanding of child rights will be integrated into its approach as a preventive measure and within the institutionalised spaces. Additionally, the Committee mentions the need to ‘Adopt and implement a comprehensive strategy addressing all forms of discrimination, including multiple forms of discrimination against all categories of children in marginalized and disadvantaged situations, ensure that it has adequate human, financial and technical resources and implement it in collaboration with a wide range of stakeholders and involving all sectors of society so as to facilitate social and cultural change’. A comprehensive approach is missing in the current bill. Even its responses within specific issues remain selective. For example, while orphaned or abandoned children lie within its ambit of ‘children in need of care and protection’, the bill does not give clarity on the approach beyond the institutionalisation of such children or their adoption. The CRC Committee for example, ‘urges the State party to increase its efforts to address the root causes that lead to the abandonment of infants, including by providing family planning services and adequate counselling and social support for unplanned pregnancies and the prevention of abandonment due to gender or disability, or lack of acceptance of children born out of wedlock’. Hence, systemically there is no holistic understanding of abandonment as an issue and no responses are created in order to prevent it.
• Building capacities to understand ‘best interests of child’: The CRC Committee recommends the need to ‘Develop procedures and criteria to provide guidance to all relevant persons in authority for determining the best interests of the child in every area and for giving it due weight as a primary consideration. Such procedures and criteria should be disseminated to courts of law, administrative authorities and legislative bodies, public and private social welfare institutions, as well as traditional and religious leaders and the public at large’. The need for such training is especially important considering the serious issue of ‘incidents of abuse of children in institutions, families and communities’ highlighted by the circular attached to the bill. This has been mentioned as a concern by the CRC Committee in its recent report: The very limited knowledge, sensitivity and capacity of the staff working at the JJBs to handle cases involving children in conflict with the law as well as at the lack of adequate oversight of the JJBs.
• Research and data management integrated into system to enhance response: For systems to be effective they need an iterative process of thinking and action. Research plays an important role in such a scenario. There is currently no mention of collation of data that might feed into better responses to grave issues such as sale, trafficking and abduction of children. In such a case, the system just responds to individual child’s needs instead of holistically understanding an issue and responding to it with a sensitized, nuanced and specific approach. This is specifically also mentioned as a concern by the CRC Committee with regard to the current JJ system: The inadequacy of Information Management System to collect data on children in conflict with the law, time taken by pending cases, the general functioning of JJBs including the nature and quality of orders issued by JJBs, as well as the role and functioning of Special Juvenile Police Units. Being a recurring concern and an important method to evaluate and monitor systems, there is need to clarify how a systemic understanding and maintenance of data will be integrated. This is completely missing from the bill. Additionally, while we support the idea of a fresh start for the child, the wording of the principle needs to take into account that while the child’s formal record should not be ‘criminalised’ this does not imply that the state itself delete the records altogether as these are also significant decisions taken about the child’s life and should be available for review. These need to be preserved with regulated access rules for longterm use.

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1. General Comment No.12, supra note 4.
2. General Comment No.12, supra note 4.
3. General Comment No. 12: The right to self-determination of peoples (Art. 1):  13/03/84. CCPR General Comment No. 12. (General Comments)The right to self-determination of peoples: 1. In accordance with the purposes and principles of the Charter of the United Nations, article 1 of the International Covenant on Civil and Political Rights recognizes that all peoples have the right of self-determination. The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants.
4. General Comment No.12, supra note 4.
5. Source: CRIN Legal Database (available at: http://www.crin.org/en/library/legal-database/dr-subramanian-swamy-ors-v-raju-thr-member-juvenile-justice-board-anr)