It’s been a few months since I began to observe the juvenile justice system in Delhi. I have many resulting questions from the perspective of a legal professional and a fellow human being.
A thought that has been constant is – ‘good law is of no use without its effective implementation’. Laws are made to maintain order in society. They are also supposed to be tools to protect the rights of the most vulnerable communities, and create equal access to justice for all. Laws are made to address problems on the ground, but it is the implementation of the law that tests its effectiveness.
In this post, I’ll discuss juvenile justice law in India and its implementation in particular.
The Juvenile Justice ❲Care and Protection of Children❳ Act, 2015 (hereinafter the “JJ Act”) is comprehensive legislation that deals not just with children in conflict with law but also with children in need of care and protection. It aims for the rehabilitation, restoration and reintegration of children in conflict with law into society through a child-friendly approach and paying attention to the best interests of children. But is there faithful implementation of the law? Is this law actually taking care of the best interests of these children? Is rehabilitation and reintegration of children taking place?
This blog aims to highlight a few crucial areas of the juvenile justice system where ineffective implementation is a cause for anxiety.
Pendency of Cases: Recently, while dealing with a criminal reference, the Delhi High Court addressed core issues that are critical to the administration of the juvenile justice system. One is the pendency of cases before Juvenile Justice Board ❲JJBs❳. It was brought to the court’s notice that thousands of cases pertaining to petty offences[1] were pending before the juvenile justice boards in Delhi for more than a year, which is against the law.
According to section 14 of the JJ Act, “ the enquiry in such cases (petty offences) shall be completed within a period of 4 months from the date of first production of the child before the Board, unless the period is extended, for a maximum period of 2 more months by the Board after recording the reasons in writing for such extension. Further, section 14(4) provides that if inquiry by the Board for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated.”
What is pertinent is that despite having a clear law on this issue, there are thousands of cases involving children that are pending before the JJBs. As a result, children are kept in institutions for long periods which compromises their mental health, personal freedom, and access to their families.
One of the reasons for the pendency of cases is overburdened JJBs. Under the JJ Act, state governments have been vested with the responsibility of constituting one or more juvenile justice boards in every district. Delhi has only six JJBs for all 11 districts despite having high pendency. Three new JJBs were formed in 2017 following the direction of the Juvenile Justice Committee in a bid to minimize the pendency of cases. Even after three years, the issue of pendency of cases before JJBs in Delhi persists and we don’t have JJBs in every district.
Rehabilitation: Rehabilitation is a crucial aspect of juvenile justice law. The law intends for juveniles to be rehabilitated and reintegrated back into society as more responsible citizens. The question arises whether we have a strong enough system in place for rehabilitation of these children? Section 105 of the JJ Act states that “the state government may create a fund in such a name as it thinks fit for the welfare and rehabilitation of the children dealt under this Act”. In a recent Delhi High Court hearing, the issue of allocation of juvenile justice funds was also raised. The fund can be crucial in the process of rehabilitation and reintegration of these children in conflict with the law who are often victims of circumstances. When the court enquired about this fund, even the stakeholders responsible didn’t know its status.
Another important aspect of rehabilitation plans in the juvenile justice system is having an Individual Care plan ❲ICP❳ for each child found to have been in conflict with law. Under Section 8❲3❳❲h❳ the act provides that while disposing of the matter and passing a final order that includes an individual care plan for the child’s rehabilitation, including follow up by the Probation Officer or the District Child Protection Unit or a member of a non-governmental organisation. In a recent Delhi High Court hearing, the issue of monitoring the progress of the child towards rehabilitation based on the ICP came into question. The Court directed the Superintendent of the home to review progress as reflected in the Rehabilitation Card on a quarterly basis, and issue necessary directions if it is found that the ICP is not being implemented effectively.
By way of an example, under an ICP, a child is enrolled in school and provided vocational training for artisanal work, but whether the child is going to school and vocational classes and getting something out of it is the real question. The child’s interests are not taken into account while deciding the area for training, and most JJBs have a very limited number of vocational training options to choose from.
Access to Legal Aid: The right to access quality legal aid at every stage of the criminal justice system is widely recognised as an essential human right. Under the JJ Act, there is a provision for free legal aid for juveniles but reports show that in most cases juveniles and their parents are unaware of free legal aid services. This week, Delhi Commission for Protection of Child Rights (DCPCR) ordered an inquiry into the effectiveness of legal aid to children who are either alleged to be or have been found to be in conflict with the law in Delhi. The panel, headed by retired Supreme Court Justice Madan B. Lokur will look into the effectiveness of legal services available to these children and their experiences with police and various other issues. The fact remains that children who are drawn into the juvenile justice system without appropriate legal support, face the risk of being unfairly detained, and often also attract disproportionate charges. For ensuring substantive equality, quality legal aid is essential as children come into the system from diverse socio-economic backgrounds.
Administration and Proper Monitoring: The Juvenile Justice Act presents a few broad principles that should be followed in its administration. For example, [i] principle of dignity and worth, [ii] principle of the best interest of child [iii] principle of institutionalisation as a measure of last resort, and [iv]principle of safety. The question arises whether these principles are really working as guiding lights when we have reports that show juveniles ending up in adult jails, pending juvenile cases before JJBs across India, cases of abuse from child care institutions, a lack of sensitivity among stakeholders, and no proper rehabilitation measures for these children.
Cases of abuse at child care institutions puts their entire objective into question. Back in 2018 after the horrific Muzaffarpur shelter home case, the Ministry of Women and Child Development wrote to all state governments and union territories directing all homes [government or privates] to mandatorily have landline telephones installed so that all children have access to 1098, a child helpline so they can inform concerned government authorities in case of any distress.
A sense of collective responsibility is urgently needed amongst stakeholders towards these children who have come in conflict with the law, who are in most cases victims of their circumstances. In a report by DCPCR – ‘Why Children commit offences’, they explain that factors like broken families, peer pressure, substance abuse, community influence, etc. play a key role in the deviant behaviour of children. Until all stakeholders, be it government bodies or non-governmental bodies including civil society organisations, and passionate individuals working in this field, get down to the task of effective implementation of these aspects of the law in the spirit in which they have been written, children will continue to suffer and be deprived of all benefits which are meant for them.
[1] “Petty offence” is defined under Sec 2❲45❳ of the Act. It includes the offences for which maximum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment up to three years.