JUVINILE JUSTICE ACT_ UNIT 1 TO 9

Unit 1 : Constitutional Prerogative of child being Vulnerable, general

understanding of juvenile justice and child in conflict with law and child in need
of protection and care

- Young males are often prone to crime due to their young impulsiveness and adolescent
conflict.
- A child having noxious surrounding, neglect of basic needs, bad company and other
abuses will lead to a child being delinquent.
- Neglected children and juveniles fall easy prey to criminality.
- Early penology did not distinguish between adult and child so far as punishment is
considered.
- The special treatment of juvenile justice started in the 18 th century, when special
concessions such as gifts, will etc were granted to juveniles. The principle of parans
patriae was evolved by the British which states that it is necessary to have special
provisions for handling of minors, as they are too young to manage their property
themselves and later similar treatment was extended to child in law of crimes.
- The principle of Doli Incapax was also used, which states that a child is incapable of
committing a crime and hence cannot be convicted, and a child between the age of 7 to
12 can only be convicted if sufficient maturity is proved.
- Delinquency has been derived from the Latin word Delinquer which means “to omit”,
this word was used by Romans to refer to a person to has failed to perform a task or
duty. It can be said that delinquency is a form of misbehaviors or deviation from the
generally accepted behavior and conduct in the society.
- Disapproved behavior of children which the society does not approve of, and for which
punishment or a corrective measure is justified for public interest.
- Anti-social behavior which if not checked leads to the child being a potential offender.
- The exact definition of Juvenile Justice has always remained a debatable issue
amongst criminologists, which is when 2nd UN Congress on prevention of crime and
torture and the treatment of offenders, 1960 said that the term should not be stretched
so widely and should be limited to all violations of criminal law and anti-social behavior
disapproved by society.
- Therefore, in General Assembly adopted UNCRC in 1989 with a main objective to
uphold best interest of child by all state parties and the same was ratified by India in
1992 and therefore it was necessary for India to revive and update JJ Act, 1986 and
there JJ Act, 2000 was adopted repealing JJ Act, 1986.

Case Law: Legal Aid Committee v. UOI, 1989 : the court observed that it has been
accepted all over the world that children are national assets and they constitute
the most vulnerable group. They can be exploited, ill-treated and can be directed
towards anti-social element in community. The SC highlighted the issue and need
to care and protection of children. The SC held that children require protective
umbrella of society for better growth and development and state is the foster
father for all children, who are deprived of parental care. The SC further states
that every home should be a child care home.

- There are exclusive provisions in constitution to treat children as vulnerable and It also
says that it is the duty of the state to protect the children.
- Vulnerable groups are those groups of people who may find it difficult to lead a
comfortable life, and lack developmental opportunities due to their disadvantageous
position. However, in common understanding, people who are easily susceptible to
physical or emotional injury, or subject to unnecessary criticism, or in a less valuable
position in any society may be defined as vulnerable people. Further, due to adverse
socio-economical, cultural, and other practices present in each society, they find it
difficult many a times to exercise their human rights fully.
- The vulnerable groups that face discrimination include- Women, Scheduled Castes
(SC), Scheduled Tribes (ST), Children, Aged, Disabled, Poor migrants, People living
with HIV/AIDS and Sexual Minorities. Sometimes each group faces multiple barriers
due to their multiple identities. For example, in a patriarchal society, disabled women
face double discrimination of being a woman and being disabled.
- Article 14, 15 and 16 have to be read together
- The constitution ensures the rights and protection of children through its various
provisions. Children on the account of their sensitive age and immature age need
special care and protection. They have specific rights and legal entitlements that are
being recognized nationally and internationally.
- Article 14 and 15: According to this article, the State shall not deny to any person the
equality before the law or the equal protection of laws within the territory of India.
- Citizen of India including children must be treated equally before the law and must be
given equal protection by law without any discrimination or arbitrariness. This right
which is provided in the Indian Constitution protects the rights of children so that their
dignity and integrity as a child is not exploited. Children being vulnerable have more
chance to be treated unequally in the Indian society. Article 15 of the Indian Constitution
prohibits discrimination. In Article 15(3), nothing in this Article shall prevent the State
from making any special provision for women and children. It is very clear from Article
15(3) that “special provision” does not mean unequal treatment but it is established for
the well-being and development of the children in India.
- Article 21-A: The State shall provide free and compulsory education to all the children of
the age of six to fourteen years in such manner as the State may by law, determine.
The Constitution (Eighty-sixth Amendment) Act,2002 inserted Article 21A. The right to
education is reflected in international law in Article 26 of the Universal Declaration of
Human Rights and Article 13 and 14 International Covenant on Economic, Social and
Cultural Rights.
- Article 23: Traffic in human beings and beggar and other similar forms of forced labour
are prohibited and any contravention of this provision shall be an offence punishable in
accordance with law.
- Article 24: No child below the age of fourteen shall be employed to work in any factory
or mine or engaged in any other hazardous employment. Hazardous conditions may
include construction work or railway. This article does not prohibit and harmless work.
This Article provides the regulation and prohibition of child labour in India. Child Labour
is defined as the work which deprives children of their childhood, potential and their
dignity; it is something which causes a threat to their physical and mental development.
UNICEF estimates India with such a high population has a high rate of child labourers.
India, after its independence from the colonial rule, has passed many constitutional
protections and laws on child labour.
- There are many provisions even in the DPSP’s and Fundamental Duties to protect
children.
- Article 39: Article 39(e) states that the health and strength of workers, men and women,
and the tender age of children are not forced by economic necessity to enter avocation
unsuited to their age or strength. Child Labour is one of the social evil that is forced by
economic necessity; it is the responsibility of the state to ensure that no child is
subjected to any physical or mental abuse.
- Article39 [1](f) states that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that childhood and youth
are protected against exploitation and against moral and material abandonment.
- Article 45: the State shall Endeavour to provide early childhood care and education for
all the children until they complete the age of six years. According to this Act of the
Indian Constitution, the state shall protect the child and is responsible for the
development within them. The state shall ensure the safe growing environment, where
their childhood can be experienced by themselves without any external threat. After
that, it is the responsibility of the state to provide them with free and compulsory
education.
- Article 51A-k: It shall be the duty of every citizen of India who is a parent or guardian to
provide opportunities to provide education for his child or, as the case may be, ward
between the age of six and fourteen years. Through this provision, the Constitution
strictly mentions the providing of education as the duty of the parent as it is for the
future and development of the country.

CASE LAWS:

a) Bachpan Bachao Andolan v. Union of India & Others, 2011: This petition was filed in
public interest (PIL) under Article 32 of the Constitution in the wake of serious
violations and abuse of children who are forcefully slacken in circuses, in many
 occurrences, without any approach to their families under uttermost inhuman conditions.
There were occurrence of sexual abuse on a daily basis, physical abuse as well as
emotional abuse. The children are underprivileged of basic human needs of food and
water. Paragraph 22 and 34 specifically spoke about human trafficking and child
trafficking where it was held that children are vulnerable to even give consent especially
girls between the age to 10 -14 years. It also held that children are vulnerable, which
leads to excess exploitation and it is the need of hour to protect. One of the most
important arguments taken were the children are also not financially sound to be self-
sufficient.

b) Beeru v. State of Delhi, 2013: The court said that In the present case since the victim
is a minor child, rule of prudence requires that the evidence of the child shall be
scrutinized with utmost care and caution. It was also held that while dealing with the
testimony of child witness, the Hon'ble Apex Court held that the child at a tender age is
incapable of having any malice or ill will against any person and there must be
something on record to satisfy the court that something had gone wrong between the
date of the incident and recording the evidence of the child witness due to which the
witness wanted to implicate the accused falsely in a case of serious nature. The case
also differentiates between vulnerability status of women and child. As child is innocent
and easy to manipulate.

c) Independent Though v. Union of India, 2017: Independent Thought filed a writ

petition W.P.(C) 382/2013 with the Hon’ble Supreme Court in accordance with Article
32 of the Indian Constitution to highlight the rights violated of married girls between the
ages of 15 and 18. The petitioner is requesting a writ declaring that Articles 14, 15,
and 21 of the Constitution are violated by Exception 2 to Section 375 of the Indian
Penal Code, 1860(hereinafter referred to as the ‘IPC’). As stated in Exception 2 of
Section 375 of the IPC, it is not rape if a man engages in sexual activity with his wife
who is older than 15 but younger than 18 years old with or without her knowledge or
consent. The SC held that The Court agreed with the Petitioner’s argument that
Exception 2 did not create a reasonable classification, and was violative of Article 14. It
was also observed that Exception 2 was a clear infringement on the right to live a
dignified right with basic autonomy and safety, as enshrined in Article 21. The Court
further noted that while most statutes (including POSCO, the Prohibition of Child
Marriage Act, 2006 (PCMA) and the Juvenile Justice (Care and Protection of Children)
Act, 2000 (JJ Act)) recognize a person below 18 years as a child and prescribe the age
of consent for sexual intercourse as 18 years, Exception 2 legalised non-consensual
sexual intercourse by husbands with their wives above the age of 15 years. Moreover,
the Criminal Law Amendment Act, 2013, amended Section 375 of the IPC and raised
the age of consent for sexual intercourse to 18 years. As a result, Exception 2 became
an anomaly, which permitted non-consensual sexual intercourse by a husband with his
wife between the ages of 15-18 years. The Court therefore held Exception 2 to Section
375 to be against the provisions and objectives of POCSO and the social welfare aims
of Article 15(3). To harmonize it with POCSO and fundamental rights, it was deemed
necessary to read Exception 2 as saying that only sexual intercourse with a wife above
18 years of age was not rape. The Court also opined that the right to life included the
right to develop physically, mentally and economically as an independent self-sufficient
female adult and considered a range of material discussing the deleterious effect of
child marriage and young childbirth. The effect of Exception 2 was to debilitate the girl
child and negatively impact her physical and mental health, which violated her rights
under Articles 14, 15 and 21. The Court thus read down Exception 2 to Section 375
insofar as it permitted a husband to have sexual intercourse with his wife below the age
of 18 years of age.

Constitutional Challenges: Juvenile justice Act

- Article 37 and 40 of CRC are the main article in order to protect the rights of the child.
- Article 37 makes is mandatory for the state to ensure, that the children are not
subjected to torture, cruel and inhumane treatment or punishment. It prohibits death
penalty or life imprisonment to children. It also protects the child from arbitrary arrest,
detention and imprisonment and directs the method of institution as the last resort
towards the child, It focuses on rehabilitation the child in order for its development. It
 mandates the separation of adults and juveniles. It gives the right to the child to
maintain contact with family and legal recourse.
- Article 40 states:
1) No child shall be labelled as an accuses if the act is not a crime according to the
statute.
2) Child is presumed to be innocent until proven guilty.
3) Child has to be informed directly or through friends and family about the charges
imposed.
4) The matter should be adjudicated and determined without any delay, taking into
account the best interest of child and the age.
5) Should not be compelled to give testimony or confess to a crime.
6) Should be adjudicated by an impartial, trained, independent and higher authority.
7) It should be presumed that children below the age of minimum age are not
capable or mature to commit heinous crimes.
8) Institutionalisation is the last resort.
- The provisions of JJ Act have been made keeping in mind the above-mentioned
provisions, though the transfer of child to be charged as an adult if commits a heinous
crime is against the objectives of JJ Act and CRC. Therefore, there are provisions in JJ
Act which are unconstitutional unless declared to be unconstitutional.
- Therefore, the JJ Act, 2015 faces many constitutional challenges.
- Art 14 and 15(3) are the main when it comes to supporting and safeguarding children.
- Art 14 lays down equality before law and equal protection of law. Article 15(3) gives the
state the power to make special laws for children and women. The Art 15 in general
specifies there shall be no discrimination in terms of religion, race, sex etc. Age is not a
criteria provided for discrimination. Children are distinguished from adults only on the
basis of age and age is therefore not the criteria for segregation.
- The children cannot ask for special laws, but if the state makes them the children can
enjoy the same. The laws have to be for their protection and not against them. The
validity of the act is based on Art 14 and 15.
- The Art 14 does not permit class segregation, but permits the same if there is a
reasonable nexus test for applying classification. Classification is reasonable only if it
has nexus with the objective if the act.
- Therefore, the objective of the JJ Act is to provide care and protection to the child
therefore the classification is reasonable in nature. But punishment of children if
committed heinous offence is not the objective of the act, also the transfer of children to
be prosecuted as adults are also not in consonance with the act, therefore can be
labelled as unconstitutional unless un-constitutionalised.
- The JJ Act, 2015 also provided for a sub classification under the classification of “age
below 18 year” that is 16 -18 years for treating them as adult if committed serious
offence. This sub-classification is not a reasonable classification is it is not in
consonance with the objectives of the act. Therefore, is fails the reasonability test under
article 14. This also goes against the guidelines prescribed by UNCRC.
- Sub-classification can only be made for the best interest of the child

Unit 2: history, objectives features and important definitions

- Juvenile justice means laws governing children committing offenses even though the
real meaning of juvenile justice has always been the children in need of care and
protection.
- The concept of juvenile justice started in 1920 and since then neglected children have
always been taken in consideration.
- Neglected children are now called as Children in need of care and protection according
to JJ Act, 1986 and JJ Act, 2000.
- Juvenile justice induces provision for pre and post delinquency stages as it is said that
neglected children are prone to criminal activities is not taken care off either by parents
or state.
- 2 main concepts:
i) Parens Patriae: usually natural parents and family are expected to take care
of the children, though when they fail to take proper and just care, the state
steps in the shoes of the parents and takes care and protects the child.
ii) Mens Rea: it is provided for a special procedure for children on the
understanding that the they are not having the same maturity level as like an
adult offender and they cannot be dealt with in the same manner as the
 adults. Therefore, the English courts have established children’s court but did
not do away with legal safeguard.

- 2 main approaches:
i) Welfare Approach: this approach is paternalistic in nature and is focused on
ensuring care to children by parents or state. It does not obligate the state to
take any positive measures for safety, survival or development. It does not
think of children as a right-holders but only as recipient of what the state may
provide for them out of goodwill and being a welfare state.
ii) Right Approach: Though, later it was in the Geneva Declaration held that
children have their separate rights, and that every child must be given
facilities for normal development in both spiritually and materialistically. The
child must also be fed, nursed, helped, reclaimed and sheltered. The
declaration was of the view that child must be provided with relief first in case
of distress. There should be no exploitation. Geneva declaration led to the
making of UNCRC, 1989, which was ratified by India in 1992.

JUVENILE JUSTICE TRAJECTORY

1. The Apprentices Act, 1850: The Apprentices Act, 1850, was the first piece of
legislation dealing with children in conflict with the law. The Act allowed courts to treat
children below the age of 15 years who had committed petty offences as apprentices
instead of sending them to prison.

2. The Reformatory Schools Act, 1897 was another radical piece of legislation in the
colonial times. The law provided that children under 15 who were sentenced to
imprisonment may be sent to reformatory schools instead of prisons. Since then, the
tendency has been to expand the scope of the juvenile justice law and move away from
the carceral system. The three presidencies—Madras, Bengal and Bombay—
promulgated their own codified laws on children. The Madras Children Act, 1920,
established a separate juvenile court and the residential institutions under it, thereby
ensuring that children did not face the criminal justice system. The Bengal and Bombay
Children Acts of 1922 and 1924 respectively had different qualifying age for defining
children but all the Children Acts of that time had certain common features. These laws
were intended to dissociate children from the criminal justice system an adult offender
would face by providing for the establishment of separate children’s courts to deal with
all cases covered under the Act.

3. Post-Independence, in 1953, Parliament discussed a Children’s Bill, which was

dropped in view of the reorganisation of States.

4. On November 20, 1959, the United Nations General Assembly met in a plenary session
with the representatives of 78 countries and unanimously adopted the Declaration of the
Rights of the Child. India was a party to the declaration. In the same year, the Children
Bill was moved in Parliament. It was passed in 1960 as the first model Central
legislation on the subject. However, the law was to be applicable only to Union
Territories with the assumption that subject matters constituting juvenile justice fell in
the State List of the Constitution. The Children Act, 1960, set up two separate
adjudicatory bodies to deal with children in conflict with the law and children in need of
care and protection, prohibited the imposition of the death penalty or sentence of
imprisonment on children and the detaining of children in jails or police stations.

5. Juvenile Justice Act, 1986: A year later, in 1986, the Supreme Court, in Sheela Barse
vs Union of India ordered that the justice delivery system suitable for juvenile offenders
should be enforced on all States and such enforcements had to be reported back to the
court. In the same year, Parliament passed the Juvenile Justice Act for the whole
country except the State of Jammu and Kashmir. The Act retained the primary features
and the scheme of the 1960 Act, and extended the protection to boys below 16 years
and girls below 18 years, like the 1960 Act and provided for the establishment of
Advisory Boards, the creation of a Children’s Fund and the appointment of visitors for
each institution. In 1989, on the 30th anniversary of the Declaration of the Rights of the
 Child, the U.N. General Assembly adopted the U.N. Convention on the Rights of the
Child (UNCRC). India ratified the convention in 1992.

Case Law: Sheela Barse vs Union of India: A petition was filed by a social worker
seeking release of children below 16 years who were detained in jails – The directions
were passed by the Supreme Court stating that the petitioner should have an access to
the information and also, he should to permitted to visit the jails and other institutions that
were connected with the housing of the delinquent or destitute children – It was further
directed that the State Government should provide the necessary assistance to the
petitioner regarding the same – The Court had also clarified that the information so
collected by the petitioner should be placed before the Court, otherwise, it should not be
published.

- A petition was filed for the release of children below 16 years who were detained in jail –
The direction was issued by the Supreme Court to all the High Court and the district
judges to submit to it all the information of children in jails, existence of juvenile Courts,
etc., before a certain date – There was non-compliance of the said direction by some
Courts – Hence, further directions were issued to the High Court to ensure the
compliance
- The detention of children below the age of 16 years in jail would be deprecated under
Article 39(f) of the Constitution of India
- It was adjudged that trial of children should be taken place in the juvenile Courts and not
in the criminal Courts – Also, the special cadre of magistrates for the juvenile Courts must
be recommended as per Section 5 of the Children Act, 1960
- The case discussed the need for speedy trial of the children below the age of 16 years
under Section 5 of the Children Act, 1960 – It was adjudged that where a complaint is
filed or first information report (FIR) is lodged against a child for an offence that is
punishable with the imprisonment of not more than seven years, the investigation should
be completed within a period of three months from the date of filing of complaint or
lodging of the FIR - If the investigation is not completed within the stipulated time, the
case against the child must be considered as closed
- It case of a trial of children below the age of 16 years, the Uniform Children Act is
recommended throughout India instead of Children Acts at the State level and its earnest
implementation
It was adjudged that every State Government must take necessary measures for setting
up the adequate number of Courts, appointing requisite number of judges and providing
them the necessary facilities – It is also necessary to set up an institute or academy for
the training of the judicial officers

6. JJ Act, 2000: Keeping this global momentum on securing child rights in mind,
Parliament enacted the Juvenile Justice (Care and Protection) Act, 2000. This Act,
unlike the 1986 Act, moved away from sex-discriminatory definition of juvenile and
defined a child (whether a boy or a girl) as a person who has not attained 18 years of
age. This was done keeping in mind the UNCRC as well as the global understanding of
fixing 18 as the cut-off age for criminal culpability. It also moved away from archaic and
problematic terminologies such as delinquent juvenile and neglected juvenile and
substituted them with juvenile in conflict with the law (JCL) and CNCP respectively. The
setting up of Juvenile Justice Boards as children’s courts was meant to take the agenda
of restorative justice and reformation a little further.

7. JJ Amendment Act, 2006: The major changes in the JJ Act, 2000 were in sections 2(l),
20, 64 and 68 and insertion of new sections 1(4) and 7A.
- Section 1(4) led to overriding effect to JJ Act, 2000 over any other act in time being in
force. The child could be prosecuted in no other special legislations such TADA, NDPS
etc.
- Section 7A – was inserted in order to clear the confusion in determining age of the child
and the determination of the same. It was said that the child should be under the
definition of child while committing the said crime. It was noticed that during different
times of litigation different dates were taken into consideration causing great confusion.
The case of PRTAP SINGH V. STATE OF JHARKHAND, 2005 finally determined the
question of age and held that age at the time of commission of crime should be taken
into consideration for applicability of the act.
 Case Law: PRTAP SINGH V. STATE OF JHARKHAND , 2005: There was a person
named Pratap Singh who was accused of being involved in a conspiracy with others for
abducting and murdering the deceased by poisoning as per Sections 364A, 302/201,
and 120B of the Indian Penal Code. The date of occurrence, i.e., the date of committing
the offence, was 31st December 1998. But, it was pleaded that he was juvenile, that is
below the age of 16 years on the date of occurrence. The parties were asked to
produce ‘School leaving certificate’ and the ‘mark sheet of the Central Board of
Secondary Education as evidence’, to prove minority of the accused, which proved that
the accused was a minor. Therefore, the accused was released on bail. The Additional
Session Judge (ASJ) quashed the decision of the Juvenile Court. It was held that the
Juvenile Court was wrong in its decision. The date of production of the accused before
the Court is the date for the determination of the age of juvenility and not the date of
occurrence of crime. Such a decision was made by referring to the case of Arnitt Das v.
the State of Bihar, (2000). The Court also directed a fresh injury for the determination of
the age of the accused. The accused filed a criminal revision petition in the Jharkhand
High Court. The Jharkhand High Court held that the decision of the Additional Session
Judge was right. The points observed by the High Court were as follows:

 That the date of production before the court is the correct date for the
determination of the age of the juvenile.
 That for determining the age of the accused, the Juvenile Justice (JJ) Act of 1986
shall be applied and not the JJ Act of 2000.
 That to produce evidence for the determination of the age of juvenility, ‘school
certificate’ is the best evidence. Other pieces of evidence are of inferior quality.

 The accused filed an appeal in the Supreme Court of India. The case was referred to a
five-judge bench for the determination. The Supreme Court gave its decision in the case
in 2005.
 The first issue was the determination of the age of juvenility. Whether the date of
occurrence (i.e., date of committing the crime by the accused) is the correct date for the
determination of the age of juvenility of the date of production (i.e., date of production of
the accused before the Court? If a person A is below 16 years on the date of committing
a crime and afterwards on the date on production before the Court, he attains the age
above 16 years, in this case, whether he would still be considered as a juvenile or
not? In the case of Pratap Singh v. the State of Jharkhand, the accused Pratap Singh
was of the age of below 16 years at the date when he committed the crime but he
reached the age of 18 years on the date of production before the court. The SC was to
determine whether the accused would be still a juvenile for the proceedings or the adult
justice system would be applied to him.
 Judicial Precedent : The conflict arose between two judgments of the High Courts. The
decision of the Jharkhand High Court was based on the judgment of Amit Das v. The
State of Bihar, (2000) 5 SCC 488. But there was another judgment of Umesh Chandra
v. The State of Rajasthan, (1982) 2 SCC 202 which is contrary to the decision of Amit
Das Case. Thus, the Supreme Court was to upheld one of these judgments as valid and
quash the other.
 Amit Das v State of Bihar: The case of Arnit Das v State of Bihar, (2000) 5 SCC
488 provides that the date on which the accused is produced before the Court is the
correct date for the determination of the age of the juvenile and not the date of
occurrence. Thus, according to the decision, the decision of the Jharkhand HC is
supported.
 Umesh Chandra v State of Rajasthan : Another case of Umesh Chandra v State of
Rajasthan, (1982) 2 SCC 202 provides that the date of occurrence of crime is the
correct date for the determination of the age of the juvenile and not the date of
production before the Court.

Supreme Court:

 Section 2 (e) of the 1986 Act defines “delinquent juvenile” as “a juvenile who has been
found to have committed an offence”. Section 2 (1) of the 2000 Act defines the term
“juvenile in conflict with law” as “a juvenile who is alleged to have committed an
offence”. Both the Acts define a juvenile in conflict with the law as a child who has
 committed a crime. It makes clear that the date of occurrence is the date of committing
a crime which makes a juvenile in conflict with the law and not the subsequent date of
his production before the courts.
 Section 32 of the 1986 Act provides for the “presumption and determination of age”. The
Section provides that the competent authorities are to make an injury to determine the
age of a juvenile. It was argued that the injury could be started on the date of production
of the juvenile in the court and thus the date of production is the correct date for the
determination of the age of the juvenile.
But Section 2 (e) of the Act clearly defines the meaning of delinquent juvenile as a
juvenile who has committed an offence and not a juvenile who has been produced
before the Court for proceedings.

 In the case of Umesh Chandra v. the State of Rajasthan, (1982) 2 SCC 202, the court
observed that the Acts related to juvenile justice are a social piece of legislation. Thus,
the liberal interpretation must be followed to enhance the main objective of “providing
benefit to the juveniles” of the Act.
 The fact that the Act is applicable from the date of occurrence (referring to Section 3
and 18 of the Act), makes it clear that the date of occurrence is the correct date for
determining the age of the juvenile. The result of the argument was that the Supreme
Court held the judgment of Umesh Chandra v State of Rajasthan, (1982) as the correct
rule for the determination of the age of the juvenile. Thus, the date of occurrence was
held as the correct date for the determination of the age of the juvenile and not the date
of production, by the Supreme Court of India.

The second issue before the Supreme Court was the determination of the applicability
of the Juvenile Justice (JJ) Act of 2000 on the pending suits from the date of its
enforcement (i.e., 1st April 2001). Before the JJ Act of 2000, the proceedings were filed
under the JJ Act of 1985. The question was that the provisions of the JJ Act of 2000
would apply to the pending suits which were filed under the JJ Act of 1985 or the
provisions of the 1985 Act would remain applicable.

The accused Prakash Singh’s case was filed under the Act of 1985. But when it
reached the Supreme Court, another Act of 2000 was passed and enforced on 1st April
2001. And the case of the accused was still not finalized. Thus, the SC was to
determine whether the provisions of the JJ Act 1985 would remain applicable to the
case or the new provisions of the JJ Act 2000 would apply to it?

The result of the argument was that the Supreme Court held the applicability of the
provisions of the Act of 2000 as the right rule on the pending suits of the Act of 1986. It
was observed that it would enhance the objective of the Act of 1986. It would enhance
the protection and care to be provided by the way of application of the Act of 2000.

The case of Pratap Singh v State of Jharkhand was one of the landmark cases on the
subject of juvenile justice. The enhancement of the care and protection provided to the
juveniles was focused on in the case. The deep analysis of the case draws out the
conclusion that the significance of the development of children is one of the
development aspects of the nation. The constitutional provisions supporting this aspect
are enriched under Article 21 and 39 (f) of the Indian Constitution.

JJ Amendment Act, 2011: The main reason for the 2011 amendment was section 48 (2)
and 58. Section 48 (2) of the Act, 2000 provided committal to any approved place of
juveniles or child suffering from dangerous disease and future disposal, it dealt with a
situation where any juvenile suffering from leprosy, sexually transmitted disease,
hepatitis B and cases of tuberculosis and other diseases or if of unsound mind should
be dealt with separately via is very special is a different service all relevant laws. Under
section 58 it said that transfer of juvenile a child of unsound mind or child suffering from
leprosy or addicted to drugs from special homes or shelter homes or children home or
an institution to a mental hospital or asylum, treatment Centre for drug addicts as
required. These two sections were discriminatory in nature and caused segregation
from other children and there amendment 2011 came into picture.
The Amendment act, 2011 omitted section 48(2) and replaced 58 with a new section
which stated that if the competent authority after due diligence find out that the child is
kept in a special home is mentally ill or is addicted to alcohol or drugs which causing
behavioral changed he may be so transferred to a psychiatric hospital according to the
mental act provisions by the order of the authority. Section 58 also provided that if child
in psychiatric hospital and authority may on the basis of advice of the psychiatric
hospital order to remove the child and transfer to rehab center state government. The
ministry of social justice and empowerment also supported in the changes.

CASE LAW: Arnit Das v. the State of Bihar, (2000) – Overruled by Pratap Singh’s
case : Arnit Das, a youth on the borderline of childhood and adulthood, was involved in
a murder. On the basis of his statement under Section 164 of the Code of Criminal
Procedure, in which it was claimed that on the day of the incident he was 13 days short
of 16 years, Arnit was remanded to a juvenile home. The prosecution disputed the age
claim and got the matter referred to an inquiry in terms of Section 32(1) of the Juvenile
Justice Act, 1986. The finding of the inquiry was that Arnit was above 16 years on the
day of the alleged incident and, thus, not entitled to a trial as a juvenile. In appeal and
revision, the age and the jurisdictional finding of the ACJM were upheld by the Sessions
Court as well as the High Court. The petitioner came to the Supreme Court by way of a
leave to appeal. Following are the courts view:

We are, therefore, clearly of the opinion that the procedure prescribed by the provisions
of the Act has to be adopted only when the competent authority finds the person
brought before it or appearing before it to be under 16 years of age if a boy and under
18 years of age if a girl on the date of being so brought or such appearance first before
a competent authority. The date of the commission of offence is irrelevant for finding out
whether the person is a juvenile within the meaning of clause (h) of Section 2 of the Act.
If that would have been the intendment of Parliament, nothing had prevented it from
saying so specifically."

"The legislative aims and objectives set out in the earlier part of this judgment go to
show that this legislation has been made for taking care of the care and custody of a
juvenile during investigation, inquiry and trial, i.e., from the point of time when the
juvenile is available to the law administration and justice delivery system; it does not
make any provision for a person involved in an offence by reference to the date of its
commission by him. So far as the present context is concerned, we are clear in our
mind that the crucial date for determining the question whether a person is a juvenile is
the date when he is brought before the competent authority

CASE LAW: Umesh Chandra v State of Rajasthan, (1982)

The Rajasthan Children Act, 1970, provides that any person below the age of 16
years should be presumed to be a child and that a delinquent child should be tried by
a Children’s court in accordance with the procedure laid down therein. The appellant
was charged under ss. 364 and 302, I.P.C., in connection with an occurrence that
took place in Tonk district on March 12, 1973. A preliminary objection that the
Sessions Judge was not competent to try the case of The appellant as he was a child
under the provisions of the Children Act was overruled by the trial court. The revision
filed by the appellant against the decision of the trial court was dismissed by the
High Court which held that the Children Act was not applicable to the appellant as that
Act had not been enforced in Tonk district on the date of the occurrence. The High
Court further held that the appellant had failed to prove that he was below the age of 16
years. On being directed by this Court to ascertain the actual date of birth, the High
Court held that the date of birth of the appellant was September 22, 1956; and,
therefore, he was over 16 years on the date of the occurrence
HELD: 1. (a) The relevant date for applicability of the Rajasthan Children Act, 1970 so
far as the age of the accused, who claims to be a child, is concerned, is the date of
the occurrence and not the date of the trial as is clear from the provisions of ss. 3 and
26 of the Act. (b) At the time of the occurrence, the appellant was undoubtedly a child
within the provisions of the Act. (c) The question whether the appellant could be tried
as a child if he had become more than 16 years by the time the case went up to the
court, does not survive as the Act has now been enforced in the entire State. A
 combined reading of ss. 3 and 26 clearly shows that the statute takes care of
contingencies where proceedings in respect of a child were pending in any court on
the date on which the Act came into force. Section 26 in terms lays down that the
court should proceed with the case but after having found that the child has committed
the offence it is debarred from passing any sentence but is obliged to forward the child
to the Child. The Rajasthan Children Act being a piece of social legislation is meant
for the protection of infants who commit criminal offences and, therefore, its
provisions should be liberally and meaningfully construed so as to advance the
object of the Act. The Children Act was enacted to protect young children from the
consequences of their criminal acts on the footing that their mind at that age could
not be said to be mature for imputing mens rea as in the case of an adult.

The major change in this amendment act was to provide for inclusive annoying
discriminatory practices relating to children suffering from leprosy, tuberculosis, mental
and other disabilities. The Supreme Court was approached again to 2 writ petition
Bachpan Bacho Andolan and Sumpurna Behrua, 2005 seeking direction for
implementation of juvenile justice act 2000. Both the cases were filed due to excessive
abuse towards children and non-implementation of Act, 2000. The Supreme Court
directed the National commission for protection of child rights, national legal service
equality and state legal service authorities for coordinating and cooperating the
implementation of the act. It also made national commission for protection of child rights
responsible for coordination. The national and state legal services authorities were
directed to coordinate with the child welfare department of states. Do to lacking
implementation of the act the standing committee report on juvenile justice Amendment
act 2010 was formulated which suggested that there is a need for adequate and rain
stuff and quality of infrastructure for special care special needs children. It also
suggested the need for education and vocational training.

8. Juvenile Justice Bill 2014 – JJ Act, 2015: The reason for the introduction of the bill
was the increased crime rater between 2013-2014 from 54% to 66%. The major
reasons for the replacement of Act, 200 was lack of procedural and implementation
issues, adoption issues, increasing crime rate, issue in child in conflict with law and
child in need of care and protection. The bill was made out of the public outrage after
the Nirbhaya case. It lays down balance between child rights and justice. The Bill
replaces the Juvenile Justice (Care and Protection of Children) Act, 2000. It addresses
children in conflict with law and children in need of care and protection. The Bill permits
juveniles between the ages of 16-18 years to be tried as adults for heinous offences.
Also, any 16-18 year old, who commits a lesser, i.e., serious offence, may be tried as an
adult only if he is apprehended after the age of 21 years. Juvenile Justice Boards (JJB)
and Child Welfare Committees (CWC) will be constituted in each district. The JJB will
conduct a preliminary inquiry to determine whether a juvenile offender is to be sent for
rehabilitation or be tried as an adult. The CWC will determine institutional care for
children in need of care and protection. Eligibility of adoptive parents and the procedure
for adoption have been included in the Bill. Penalties for cruelty against a child, offering
a narcotic substance to a child, and abduction or selling a child have been prescribed.
There are differing views on whether juveniles should be tried as adults. Some argue
that the current law does not act as a deterrent for juveniles committing heinous crimes.
Another view is that a reformative approach will reduce likelihood of repeating offences.
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 provision also
counters the spirit of Article 20(1) by according a higher penalty for the same offence, if
the person is apprehended after 21 years of age. 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. The provision of trying a juvenile as an adult contravenes the Convention.
Some penalties provided in the Bill are not in proportion to the gravity of the offence.
For example, the penalty for selling a child is lower than that for offering intoxicating or
psychotropic substances to a child. The Standing Committee examining the Bill
observed that the Bill was based on misleading data regarding juvenile crimes and
violated certain provisions of the Constitution.
 Case Law: Nirbhaya, 2012: The Delhi gang rape case have triggered many major
changes in the criminal system of India. Rajya Sabha has passed the Juvenile Justice
Bill 2014 after the post of many people in the case of Nirbhaya where the juvenile
convict was released. The government of India replaced the Juvenile Justice Act 2000
in 15th January 2016. This act helps the children who are in conflict with laws and
protect them from the harsher punishments of the district and high court. The Nirbhaya
Case(Mukesh v. State NCT of Delhi), involved the gang rape and the murder of a
paramedical student in New Delhi in December 2012. One of the accused in the case
was 17 years old at the time of the commission of the crime. Thus, owing to juvenile
laws at that time, the teenager was not awarded severe punishment in comparison to
other rapists. Other rapists were awarded death sentences.

He was the 5th person to commit the heinous crime of gang rape and murder of a 23-
year-old girl. The report by the Juvenile Justice Board had no evidence on record to
showcase him as the most brutal person to commit the crime. Therefore, he was
released after spending 3 years in the reformation home.

The juvenile’s case was the most controversial case because of the heinous crime
committed by him and the punishment which the Indian legal system provides to
juveniles. Therefore, people raised the demand to consider the juvenile rapist as an
adult in the case since it was a heinous crime. The massive outcry led to changes in
laws levied on children in conflict with the law in 2015. Later, Lok Sabha passed
the Juvenile Justice (Care and Protection of Children) Act, stating that children
between the ages of 16-18 years could be treated as adults if accused of committing
heinous crimes.

JUVENILE JUSTICE 2015 ACT:

- Made in 2015, but came into force in 2016.

- The preamble of JJ Act, 2015 consists of objectives and reasons of the act and it
mentions that care, protection, treatment and rehabilitation continue to be the purpose
of Act, 2015
- Best interest of child – main purpose: Act, 2015 defines the same as “any
behaviour, conduct, practice, process, attitude, environment or treatment that is
human, considered it in the best interest of the child.” – defined under section 2
(15)
- Act, 2015 has expanded the scope of care and protection compared to act, 2000 by
making two distinction - child in need of care and protection and child in conflict with
law, in addition to the above-mentioned objectives, it has gone a step further to include
development and social re-integration as components of child friendly approach. Social
Re-integration has not been defined under the Act, but it dealt with under section 39 A.
- Care: providing adequate provisions for health, welfare, maintenance and protection.
- Health: providing nutrition to ensure normal growth and medical treatment.
- Welfare: education, food, shelter and clothing
- Maintenance: keeping someone in good condition
- Protection: care towards physical and mental health from exploitation etc.
- Development: growth, or advancement, physical, mental and psychological,
educational etc.
- Treatment: social and psychological conditions
- JJ Act, 2015 – the state is duty-bound to ensure that all needs of the children are
met and that their basic human rights are fully protected as prescribed in the
constitution.
- Article 15 authorises the state to make special laws for women and children. Article 15
also stated that there should be no discrimination against any citizen on the basis of
religion, race, sex, etc. Though, distinction of the basis of intelligible diffrentia is
permitted as held by many judicial pronouncements. As everybody is not equal , the
article permits differential treatment by using the principle of reasonable classification.
- Differential treatment two different groups is not contradictory to right to equality if the
criteria for differential treatment is reasonable to achieve the objective of the statute in
question.
- India has also like the side and signed the UNCRC 1992 and therefore is obligated to
follow the prescribed set of standards to secure in the best interest of the child. The Act,
2015 further acknowledges the Beijing rules, rules for protection of juveniles deprived of
their liberty and other relevant international conventions

SECTIONS AND INTERPRETATIONS

Section 1 (4)

An overriding effect clause was added in Act, 200 by the way of Amendment Act, 2006,
though the same was disregarded by many courts and children came to be registered
under NDPS and TADA, did not get bail due to the special laws strict bail provisions.
The scope of section 1(4) of Act, 2015 is much wider and the Act, 2000. The Act, 2015
adds development and social re-integration too. Therefore, a child apprehended to be
an accuses under TADA, POTA, NDPS, PCA etc, will have to be released under
provisions of JJ Act, 2015, as special courts of different statutes don’t have authority to
try child.

Section 2: Definitions

(1) “abandoned child” means a child deserted by his biological or adoptive parents or
guardians, who has been declared as abandoned by the Committee after due inquiry;

(2) “adoption” means the process through which the adopted child is permanently
separated from his biological parents and becomes the lawful child of his adoptive
parents with all the rights, privileges and responsibilities that are attached to a biological
child;

(5) “aftercare” means making provision of support, financial or otherwise, to persons,

who have completed the age of eighteen years but have not completed the age of
twenty-one years, and have left any institutional care to join the mainstream of the
society

(7) “Authority” means the Central Adoption Resource Authority constituted under section
68;

(9) “best interest of child” means the basis for any decision taken regarding the child, to
ensure fulfilment of his basic rights and needs, identity, social well-being and physical,
emotional and intellectual development;

(10) “Board” means a Juvenile Justice Board constituted under section 4;

(12) “child” means a person who has not completed eighteen years of age;

(13) “child in conflict with law” means a child who is alleged or found to have committed
an offence and who has not completed eighteen years of age on the date of
commission of such offence;

(14) “child in need of care and protection” means a child—(i) who is found without any
home or settled place of abode and without any ostensible means of subsistence; or (ii)
who is found working in contravention of labour laws for the time being in force or is
found begging, or living on the street; or (iii) who resides with a person (whether a
guardian of the child or not) and such person—
 (a) has injured, exploited, abused or neglected the child or has violated any other
law for the time being in force meant for the protection of child; or
(b) has threatened to kill, injure, exploit or abuse the child and there is a
reasonable likelihood of the threat being carried out; or
(c) has killed, abused, neglected or exploited some other child or children and
there is a reasonable likelihood of the child in question being killed, abused,
exploited or neglected by that person; or

(iv) who is mentally ill or mentally or physically challenged or suffering from terminal or
incurable disease, having no one to support or look after or having parents or guardians
unfit to take care, if found so by the Board or the Committee; or (v) who has a parent or
guardian and such parent or guardian is found to be unfit or incapacitated, by the
Committee or the Board, to care for and protect the safety and well-being of the child; or
(vi) who does not have parents and no one is willing to take care of, or whose parents
have abandoned or surrendered him; or (vii) who is missing or run away child, or whose
parents cannot be found after making reasonable inquiry in such manner as may be
prescribed; or (viii) who has been or is being or is likely to be abused, tortured or
exploited for the purpose of sexual abuse or illegal acts; or (ix) who is found vulnerable
and is likely to be inducted into drug abuse or trafficking; or (x) who is being or is likely
to be abused for unconscionable gains; or (xi) who is victim of or affected by any armed
conflict, civil unrest or natural calamity; or (xii) who is at imminent risk of marriage
before attaining the age of marriage and whose parents, family members, guardian and
any other persons are likely to be responsible for solemnisation of such marriage.

(15) “child friendly” means any behaviour, conduct, practice, process, attitude,
environment or treatment that is humane, considerate and in the best interest of the
child;

(17) “Child Welfare Officer” means an officer attached to a Children’s Home, for carrying
out the directions given by the Committee or, as the case may be, the Board with such
responsibility as may be prescribed;

(19) “Children’s Home” means a Children’s Home, established or maintained, in every

district or group of districts, by the State Government, either by itself, or through a
voluntary or non-governmental organisation, and is registered as such for the purposes
specified in section 50;

(21) “child care institution” means Children Home, open shelter, observation home,
special home, place of safety, Specialised Adoption Agency and a fit facility recognised
under this Act for providing care and protection to children, who are in need of such
services;

(23) “court” means a civil court, which has jurisdiction in matters of adoption and
guardianship and may include the District Court, Family Court and City Civil Courts;

(32) “group foster care” means a family like care facility for children in need of care and
protection who are without parental care, aiming on providing personalised care and
fostering a sense of belonging and identity, through family like and community based
solutions;

(33) “heinous offences” includes the offences for which the minimum punishment under
the Indian Penal Code or any other law for the time being in force is imprisonment for
seven years or more;

(35) “juvenile” means a child below the age of eighteen years;

(41) “open shelter” means a facility for children, established and maintained by the State
Government, either by itself, or through a voluntary or non-governmental organisation
under sub-section (1) of section 43, and registered as such, for the purposes specified
in that section;
 (45) “petty offences” includes the offences for which the maximum punishment under
the Indian Penal Code or any other law for the time being in force is imprisonment up to
three years;

(48) “probation officer” means an officer appointed by the State Government as a

probation officer under the Probation of Offenders Act, 1958 or the Legal-cum-
Probation Officer appointed by the State Government under District Child Protection
Unit;

(56) “special home” means an institution established by a State Government or by a

voluntary or non-governmental organisation, registered under section 48, for housing
and providing rehabilitative services to children in conflict with law, who are found,
through inquiry, to have committed an offence and are sent to such institution by an
order of the Board;

FEATURES OF ACT, 2015

 Definition of ‘child in need of care and protection’ expanded– Under the new law,
the definition now also includes a child caught working in violation of labour law, with
imminent risk of marriage before reaching the legal age for the same resides with a
person who has threatened or threatened to hurt, exploit, abuse or neglect the child or
to violate any other law, or whose parents or guardians are unable to care from him.
 Child Welfare Committee is no longer the final authority in cases of children in
need of care and protection– Anyone related to the child may apply to the district
judge, who will review and make appropriate orders as a district judge. the authority of
the Child Protection Committee.
 Procedure for inquiry– Unlike children for whom production reports have been
received, the Child Protection Committee must now investigate any child produced
before it. Orphaned and delivered children are also included in the procedure.
 An extensive definition of ‘adoption’ provided– The rights of the child have been
recognized and a detailed definition of adoption has now been provided.
 Depending upon the severity of crime like a crime committed atrociously and brutally,
the juveniles between the ages of 16 to 18 years have the trial and the legal
proceedings in adult courts.
 Any child that is convicted of any crime will currently be sent for a preliminary evaluation
for a time of a quarter of a year (3 months), earlier it is one month now extended to
three months.
 Another clause on fair trial is included, under which the evaluation or assessment period
will investigate the special needs of the child, under the child-friendly atmosphere.
 The child will not go through any form of disqualification or elimination in education or
jobs due to being guilty of any crime under the Act.
 The guilty records shall be ruined after the completion period of appeal, except in the
case of atrocious crimes.
 The time period to rethink the decision of adoption is changed from one to three
months.
 The aftercare of a child shall be unrestricted to one month in institutional care.
 Receive financial aid more than one time after evacuating institutional care.
 Priority for disabled children in interstate adoption.
 Increase in the time period for left alone children kept under observation in child care
facilities from 30 days to 60 days.
 In the case of an inevitable situation, it will not be considered purposely or wilfully giving
up the child by biological parents.
 Consultation and advice from experienced psychologists and medical specialists if an
order passed against the child.
 Training of special juvenile units in the police force.
 NCPCR and SCPCR will be the nodal specialists to be liable for observing
implementation, the exposure of the amended act, and to investigate cases that emerge
out of the act.

Unit 3: Principles of Juvenile Justice: Diversion, child friendly approach and

Institutionalization as last resort, UNCRC
- Section 3 of the Juvenile Justice Act 2015 states the principles of care and protection of
children:

Principles of Diversion: Section 3 (xv) defines and explains Principle of diversion as

Measures for dealing with children in conflict with law without resorting to judicial
proceedings shall be promoted unless it is in the best interest of the child or the society
as a whole. Diversion presents a few preferences when contrasted with the
conventional criminal justice framework which can be excessively unbending, awkward,
slow and inert to the necessities of children who are often first-time or non-genuine
offenders. Police are the first point of contact between the juvenile and the juvenile
justice Board or the court and as such the police think that it is not essential to proceed
for the juvenile to the judicial bodies on the consideration that the rights of the child,
protection of the society and the rights of the victims, they may divert the juvenile from
the formal court processes based on the acts and rules. Diversion involves 2 aspect:
diversion from and diversion to. It is diversion from natural and classic judicial
proceeding. Under this act, the judicial powers are with the Child welfare committee and
the Juvenile justice board, therefore diversion is done by the police before presenting
the child before them. The section does not provide as to where the children should be
diverted and therefore, that aspect should be borrowed from the Beijing rule 11, which
states that that children must be directed to community based programmes. The rational
behind this is to avoid the negative effect of litigation under the JJ Administration and
stigma of conviction and sentence. This is an optimal response in cases of offence
which are no serious in nature where family, school or other social control institutions
have already reacted to it in a constructive manner. This also depends on the severity of
the crime. Article 40 of CRC also talks about the concept of diversion. The authority
diverting should consider the below before applying this concept:

- Viable alternative to detention

- Availability of diversionary options
- Severity of offence and if diverting is appropriate
- Training of justice personnel
- Opinion and consent of young offenders.

Principle of child friendly approach: Section 3 (iv) defines and explains Principle of
best interest as All decisions regarding the child shall be based on the primary
consideration that they are in the best interest of the child and to help the child to
develop full potential. This principles is not only for offence and child in conflict with law
but also for adoption and child in need for care and protection. This principles has to be
universally applied everywhere and in every situation. This principles focuses on parens
patriae. This approach has be borrowed from European nations “European council on
child friendly justice” What forms a part of this principle ?

- Justice being accessible

- Age appropriate
- Diligent
- Speedy trials
- Adapted to and focused on needs of child
- Respecting right to due process of law
- Rights to participate and understand the proceeding
- Right to privacy and family life
- Right to integrity and family life

This principle should be read with section 2(9) of the act and Article 3 of CRC. Section 2
(9) “best interest of child” means the basis for any decision taken regarding the child, to
ensure fulfilment of his basic rights and needs, identity, social well-being and physical,
emotional and intellectual development and Article 3 talks about Best interest of child
should be the primary consideration in all actions relating to children take by public or
private welfare institutions, courts of law , administrative authorities or legislative bodies
and include all measures are necessary for the care and protection and well-being.
There is one criticism of this principle, that transfer of a child to be tried as a adult does
not serve as principle of best interest, transfer of a child to be tried as adult in certain
 heinous cases is based on the principle of retributive justice and not best interest of the
child.

Principle of Institutionalization (Judiciary) as last resort: Section 3 (xii) defines the

concept of Principle of institutionalisation as a measure of last resort as A child shall be
placed in institutional care as a step of last resort after making a reasonable inquiry. It is
a measure of last resort, in certain circumstances the family is not capable of taking
care of the well-being of the child and when the child has no family to be cared for and
there is no one to look after the child, the government must make alternative provisions.
Act 2015, does not necessarily stress upon institutionalization being the last resort,
therefore Rule 19 of Beijing rules provides justification for the same. It says that use of
non-institutional and institutional treatment is progressive criminology. There is no
difference in success between institutionalisation and non-institutionalisation. The major
reason to avoid this is because juveniles are vulnerable to negative influence and the
loss of liberty and separation from the usual social environment may cause a change in
the behaviour of the child hampering early stage of the development. Beijing rules
aimed at restricting institutionalisation into manuals first in quantity and second in time.
And it says that a juvenile offender should not be institutionalised unless there is no
appropriate response it says that if the juvenile has to be institutionalised the loss of
liberty should be restricted to the least possible degree and for a minimum period. Role
of judiciary should be avoided and it is the primary role of the NGO’s to take care of
such situations. Court intervention should be limited. The primary role of this principle is
to rehabilitate the child back to society by the help pf foster care, children home etc.

Unit 4: Child in conflict with law : Age determination issues and Offences under
juvenile justice

A. Age Determination: Section 94 lays down presumption and determination of age.

- If it’s obvious to the Committee or the Board, based on the appearance of the person
brought before it under any of the provisions of this Act (other than for the purpose of
giving evidence) that the said person is a child, the Committee or the Board shall record
such observation stating the age of the child as nearly as may be and proceed with the
inquiry under section 14 or section 36, as the case may be, without waiting for further
confirmation of the age.
- In case, the Committee or the Board has reasonable grounds for doubt regarding
whether the person brought before it is a child or not, the Committee or the Board, as
the case may be, shall undertake the process of age determination, by seeking
evidence by obtaining : date of the birth certificate or any certificate from the
examination board or birth certificate and if absence of both then age shall be
determined by an ossification test or any other latest medical age determination test
conducted on the orders of the Committee or the Board: this should be done only at the
order of the committee or the board in 15 days of the order. The age decided and found
by the board or committee shall be deemed to be the true age of the child.
- There is always a confusion in determining the age of a child when the age is in
borderline between being a juvenile and the adult. Sometimes, the authorities take
immense amount of time to recover the age proof document, which leads to the juvenile
crossing the age of juvenile and being an adult. This leads to wrong presumption of age.
- For example : 17 year 9 months is considered to be a juvenile and 18 years is
considered to be an adult – this leads to confusion in respect to understanding the
sanity of the child and merits of the case and becomes very unfair.
- According to Act, 2015 the court/board/committee has 1 month to determine the age of
the child, whereas in Act, 2000 only 15 days were prescribed.
- In certain cases for example: the child is 17 years 11 months 15 days and will turn 18
years in 15 days and court has only 15 days to decide and determine the age of the
child in order to assess the applicability of JJ Act, 2015. In such cases, as mentioned
before the age at the commission of the crime will be taken into consideration and not
when the juvenile is brought or produced before the court. It is retrospective.

CASE LAW: Rajinder Chandra v. State if Chhattisgarh, 2002

 In this case, the accused claimed himself to be a juvenile as having not attained the age
of 16 years and, therefore, entitled to the benefit of the Juvenile Justice Act, 1986. An
enquiry was held. The learned Judicial Magistrate First Class and the Sessions Court
held the accused not to be a juvenile. The accused preferred a revision in the High
Court which has been allowed. The orders impugned before the High Court have been
quashed and the accused has been held to be a juvenile. The complainant, father of the
victim in the incident, has preferred this appeal by special leave. At the enquiry, on
behalf of the accused, mark sheets of Class VIII and High School, birth certificate,
horoscope and entry in Kotwar Book were tendered in documentary evidence. The High
Court, in exercise of its revisional jurisdiction, found the findings arrived at by the
learned Sessions Judge and the Magistrate to be legally infirm and hence not
sustainable. the High Court has concluded that the doubts assumed to be in existence
by the learned Sessions Judge were not reasonable doubts and in the light of the
explanation furnished by the accused, there was hardly any room for doubt and a high
degree of probability was raised that the date of birth of the accused. It is true that the
age of the accused is just on the border of sixteen years and on the date of the offence
and his arrest he was less than 16 years by a few months only. In Arnit Das Vs. State of
Bihar, (2000) 5 SCC 488, this court has, on a review of judicial opinion, held that while
dealing with question of determination of the age of the accused for the purpose of
finding out whether he is a juvenile or not, a hyper-technical approach should not be
adopted while appreciating the evidence adduced on behalf of the accused in support of
the plea that he was a juvenile and if two views may be possible on the said evidence,
the court should lean in favour of holding the accused to be a juvenile in borderline
cases. The law, so laid down by this court, squarely applies to the facts of the present
case. The court held that the doubt should always be to age the juvenile as a child. The
lower side to be considered if age is not determined and there is not sufficient
reasonable doubt.

B. Offences under Juvenile Justice: There are 2 ways of understanding offences under
JJ Act, 2015:
i) Offences committed by the child (Child is the offender and in conflict with law )
ii) Offences committed on the child (Child is the victim)

- JJ Act, 2015 classifies the offences and categorizes them in 3 ways:

Petty Offences: Section 2 (45) - petty offences” includes the offences for which the
maximum punishment under the Indian Penal Code or any other law for the time being
in force is imprisonment up to three years; Section 14 of the Act, 2015 provides for
procedure done by the board for inquiry. Section 14 gives 4 months to the board to
complete the proceeding with an additional two months for extension. Section 14(4)
says that of the proceeding for petty offences are not completed within 6 months, the
proceeding shall be terminated and the offender has to be freed.

Serious Offences: Section 2 (54) “serious offences” includes the offences for which the
punishment under the Indian Penal Code or any other law for the time being in force, is
imprisonment between three to seven years;

Heinous Offences: Section (33) “heinous offences” includes the offences for which the
minimum punishment under the Indian Penal Code or any other law for the time being in
force is imprisonment for seven years or more;

- The court has to see the rational and symptoms of child offender which means the
nature of the offenders and the psychological effect.
- Reasons or Characteristics which makes juvenile offenders:

a) Healthy body structure, energy, physical traits.

b) Introvert, disruptive, restlessness
c) Unethical, increased emotional and self-centred nature. Which means the juvenile
offender cannot determine social laws or norms.
d) Irritating, disappointed, melancholic nature. This means this will be in common
norms and being untrustworthy.
e) Breaking cultural norms to attain power.
- Categorisation of child offenders: 1) individual juvenile crimes 2) circumstantial juvenile
crimes and 3) Organised juvenile crimes.
- There can be two reasons as to why a juvenile commits a crime socio-economic or
psychological. Example of socio-economic can be broken homes, poverty, friends and
companions, beggary whereas psychological reasons are mental illness, personality
traits and emotional issues.

CASE LAW: GAURAV KUMAR v. STATE OF HARYANA – 2021 AMENDMENT ACT

In this case, a special leave petition was filed under article 136, on the ground that on
the date when the offence took place he was 17 years 9 months of age and was a
juvenile. It was held by the lower courts that he was no a juvenile at the occurrence of
the crime. The 2 major issues in this case were whether there is any kind of
consideration as regards the reduction of age and whether the juvenility will depend
upon the nature of the offence committed. On the basis of having juvenile as a defence
many heinous crime are being committed. The accused here has been alleged of
attacking a gathering in a village with lethal weapons along with other respondents. The
court held that the nature of the offence does have nexus with the age in question, it
was held that in cases of rape, murder, and other heinous crime it is difficult to assume
that the juvenile was not aware of the consequence.

Unit 5: Procedure with regards to Child in conflict with law:

i) If child committed petty or serious offence
ii) Role of Special Juvenile Police Unit and Juvenile Justice Board
iii) Procedure for granting Bail

JUVENILE JUSTICE BOARD: SECTION 4 TO 9

- Every state should constitute one or more juvenile justice boards for exercising powers
and discharging its functions under this act relating to children in conflict with law. They
shall have all the power to deal with all the proceeding exclusively, in their jurisdiction.
- The board consists of the Metropolitan Magistrate of Judicial magistrate first class
referred to as Principal Magistrate with at least 3 years’ experience.
- Also consists of 2 social workers out of which one shall be a woman.
- The board has the same powers as of a Metropolitan Magistrate of JMFC under CrPC.
- The social worker should be selected only if he/she has been actively involved in health,
education, or welfare activities pertaining to children for at least seven years or a
practicing professional with a degree in child psychology, psychiatry, sociology or law.
- Cannot be a member of the board if:
a) Past record of violation of HR or child rights
b) Convicted of an offence involving moral turpitude and such conviction has not
been reversed or granted full pardon.
c) has been removed or dismissed from service of the Central Government or a State
Government or an undertaking or corporation owned or controlled by the Central
Government or a State Government
d) has ever indulged in child abuse or employment of child labour or any other
violation of human rights or immoral act.

- It is the duty of the state government to ensure training of the members of the board in
regards to care, protection, welfare, rehabilitation, justice and other legal provisions.
- The term of the members of the board shall be decided by the state.
- The social workers can be terminated from being a member of the board upon holding
an inquiry by the state government if they have been found:
a) Misusing power
b) Failed to attend proceedings of the board for a period consecutively of 3 months
c) Failed to attend ¼ th of the sittings in a year
d) Not eligible as convicted, record of past abuse, removed by central government
etc.
- Inquiry by the board: if an inquiry is going on and during the term of the inquiry
the child turns 18, then also the inquiry will be conducted by the board, assuming
that he/she is still a child.
- If any person of 18 years of age, has been accused of committing an offence when he
was a child, the inquiry shall be conducted in such manner as he is a child. If such a
child has not be granted any bail by the board, he still should be kept in a place of
safety and shall be treated with dignity and in best interest.
- Board has to keep in mind a child friendly approach at all time, the procedure should be
conducted at a child friendly venue, so that the child is not intimidated and not in regular
courts.
- The child can be brought before one individual member of the board too, even if the
whole board is not sitting. The board may pass an order even in the absence of any
board member and the order passed will be valid and binding.
- Though, during the final disposal of the matter the board shall consist of 2
members including the principal magistrate.
- The powers of the board will also be applicable if the matter is transferred to children
court or high court for adjudication in appeal or under section 19.
- FUNCTIONS & RESPONSIBILITIES OF BOARD: SECTION 8
A) Participation of child/parent guardian in every step of process
B) Child rights to be protected throughout the process. (Inquiry, after care, rehab)
C) Legal aid to child
D) Board to provide interpreter/translator if child fails to understand language of
proceeding
E) Directing probation officer of child welfare officer or social worker to
investigate into the matter and submit a social investigation report within
15 days from date of first production. (Power of board)
F) Adjudicate and dispose cases as per section 14.
G) Transferring case to committee in matters where board feels that the board and
committee is both needs to adjudicate the matter.
H) Disposing the matter and ensuring individual child care plan and follow up by
probation officer or district child protection unit or NGO.
I) Conducting inquiry to make sure the guardian is fit to take care of child
J) Conduct inspection every month to residential facilities of children in conflict with
law and recommend action for improvement.
K) order the police for registration of first information report for offences
committed against any child in conflict with law (Power of board)
L) order the police for registration of first information report for offences
committed against any child in need of care and protection, (Power of
board)
M) conducting regular inspection of jails meant for adults to check if any child is
lodged in such jails and take immediate measures for transfer of such a child to
the observation home

- Under section 9: if the case arrives at a magistrate who is not allowed or

empower under this act to try the matter or act as the board then in such cases
record his opinion and proceeding on the matter and forward the child and
opinion to the board having jurisdiction without any delay.
- If the person alleged to have committed a crime claims he is a child, or the court
themselves feels that he is a child at the date of commission of the crime, the
court shall make inquiry and take evidences as required to determine the age of
the accuses and shall record finding of the matter and state age of the person.
- Even though it is a court that is not registered – the inquiry shall be conducted
and recognized at any stage and they should be adjudicated according to the
provisions of this act.
- If the court finds that a person has committed an offence and was a child on the
date of commission of such offence, it shall forward the child to the Board for
passing appropriate orders and the sentence, if any, passed by the court shall be
deemed to have no effect.
- In case a person under this section is required to be kept in protective custody,
while the person’s claim of being a child is being inquired into, such person may
be placed, in the intervening period in a place of safety.

PROCEDURE FOR CHILD IN CONFLCIT WITH LAW: 10 -26

- if it is apprehended that a child has committed any offence, the child shall be brough
before the board within 24 hours by the Special Juvenile Police unit or the Child welfare
officer. The time excludes time for journey.
- The child should not be placed in police lockup or jail.
- The state government has the rights to make rules for child in conflict with law.
- When the child in conflict with law is placed in an observation home or foster care, the
guardians over there have the responsibility of the child, as they are the parents and
responsible for child’s maintenance, only for the period as stated by the board.

BAIL PROVISIONS – CHILD IN CONFLICT WITH LAW: SECTION 12

- If it is apprehended that a child has committed a bailable or non-bailable offence

notwithstanding anything in CrPC, the child shall be released on bail with or
without surety or placed under supervision of probation officer or under care of
any fit person.
- The bail can be denied if there appear reasonable grounds for believing that the
release is likely to bring that person into association with any known criminal or
expose the said person to moral, physical or psychological danger or the
person’s release would defeat the ends of justice, and the Board shall record the
reasons for denying the bail and circumstances that led to such a decision.
- If bail is denied on apprehension, the child must be kept at observation homes or
place of safety by the officer in charge of the police station for such period
prescribed by the board.
- If bail is granted and the child is unable to unable to fulfil the conditions in the
bail order within 7 days the child shall be produced before the board for
modifications of conditions of bail.

- Where a child alleged to be in conflict with law is apprehended, the officer designated
as Child Welfare Police Officer of the police station, or the special juvenile police unit to
which such child is brought inform the parent/guardian of the child and direct them to be
present before the board where child is produced.
- The information can also be given to the probation officer or child welfare officer for
preparation and submission in 2 weeks to the board, a social investigation report –
antecedents, family, background etc.
- If released on bail the probation officer and child welfare officer shall be informed by the
board.

CASE LAWS ON BAIL PROVISIONS:

1) Mumtaz Khan v. State of Maharastra, 2018: A boy, on the verge of attaining

adulthood—to be precise, seventeen and half years old—faces an allegation he has
inhumanly killed a three-and-half-year-old child. Motive uncertain, the offence remains
heinous. Another boy, only a little younger—sixteen and half years— faces the
allegation of, first, conspiring with the older boy in the offence and, second, helping him,
later, to “make the evidence disappear,” besides screening that older boy from police
detection, too. The Juvenile Justice Board (“the Board”) assesses the older juvenile’s
physical health, mental maturity, and other collateral factors, and decides to try him,
under Section 15 of the Juvenile Justice Act, 2015, as if he were an adult. After applying
the same standards, it, however, decides to try the younger one as a juvenile.

“Merely on the premise that the offence is heinous and that it lends to the societal
volatility of indignation, we are bracing for juvenile recidivism. Retributive approach vis-
à-vis juveniles needs to be shunned unless there are exceptional circumstances,
involving gross moral turpitude and irredeemable proclivity for the crime. Condemned,
any juvenile is going to be a mere numeral in prison for a lifetime; reformed, he may
redeem himself and may become a value addition to the Society. Let no child be
condemned unless his fate is foreordained by his own destructive conduct. For this, a
single incident not revealing wickedness, human depravity, mental perversity, or moral
degeneration may not be enough. Just deserts are more than mere retribution ”

Prima facie Section 302 IPC does not apply to the younger juvenile. And how Section
34 IPC applies is too premature a question that needs no answer right now. In Virendra
 Singh v. State of M.P the Supreme Court has held that vicarious or constructive liability
under Section 34 IPC can arise only when two conditions stand fulfilled: the mental
element or the intention to commit the criminal act conjointly with another or others; and
the actual participation in one form or the other in the commission of the crime. Thus,
Section 34 concerns the question of constructive criminality, and it is a matter of trial.
Then, Section 385 attracts a maximum sentence of two years. Finally remains Section
201. Even the Board and the Appellate Court have held that the younger juvenile must
be tried only a juvenile. And that finding needs no interference.

2) Krishna Kumar v. State of Haryana, 2020: The present revision petition has been filed
to challenge the impugned order dated 13.06.2018 passed by the Juvenile Justice
Board, whereby, the bail to the present petitioner-Kishan Kumar aged 16 years, who
has already been declared juvenile, has been declined and the same has been affirmed
by Additional Sessions Judge. The case of the petitioner is that he was arrested in FIR
No.116 dated 09.03.2018 registered under Sections 364, 506 IPC and Section 6 of the
POCSO Act, 2012. The bail was denied in both the court on the sole reasons that
dismissed by both the Courts below only on the ground of presumption that in case, the
juvenile is released on bail, he may be exposed to moral and psychological danger and
his release would defeat the ends of justice, whereas, no such finding was recorded as
to how he will come in contact with criminals and how he will be exposed to moral,
physical or psychological danger, which would defeat the ends of justice. The court
stated that From the bare reading of the provisions of Section 12 of the Act, it appears
that the intention of the legislature is to grant bail to the juvenile irrespective of the
nature or gravity of the offence, alleged to have been committed by him and the same
can be declined only in case where reasonable grounds are there. The court held that In
the present case, while declining the bail application, the relevant provision has not
been considered by both the Courts below as in accordance with Section 12 of the Act,
the juvenile is entitled to bail as a matter of right unless the case falls in the exceptions
carved out in the provision itself but nothing was available on record to show that any of
the three exceptions specified under Section 12(1) of the Act was existing.

3) seriousness/gravity of offence is not a ground to deny bail to a juvenile u/s 12 of the JJ

Act, 2000 unless conduct of the juvenile is such to indicate that in all likelihood, after
being released on bail, juvenile bail indulge into more crimes. It no imminent chances of
his repeating crime, bail to juvenile should not be ordinarily refused. See : Amit Yadav
Vs. State of UP, 2016 (93) ACC 571 (All).

4) In the cases of juveniles in conflict with law, police is not required to file an FIR or a
charge-sheet. Only information of the offence is required to be recorded in the general
diary. FIR would be necessary only if juvenile has committed serious offence like rape
or murder or has committed the offence with an adult. The Hon'ble Supreme Court has
held that during investigation of an offence allegedly committed by a juvenile, the
apprehended juvenile is required to be produced before the JJ Board immediately and
police must submit the report of the juvenile's social background, circumstances of
apprehension and the alleged offence. the Hon'ble Supreme Court has held that during
investigation of an offence allegedly committed by a juvenile, the apprehended juvenile
is required to be produced before the JJ Board immediately and police must submit the
report of the juvenile's social background, circumstances of apprehension and the
alleged offence. In cases of non-serious nature of offences, police is only required to
intimate the parents/guardian of the juvenile that such report has been submitted to the
JJ Board. A juvenile accused of bailable or non-bailable offence shall be released on
bail except where his release would bring him in association with known criminal or
expose him to moral, physical or psychological danger or his release would defeat the
ends of justice. See : Dr. Subramanian Swamy Vs. Raju, 2014 (86) ACC 637 (Three-
Judge Bench).

5) Where bail application by the accused was moved u/s 439 CrPC by claiming to be
juvenile aged 17 years and the same was rejected by the Sessions Judge nearly on the
 technical ground that the bail application was moved u/s 439 CrPC (and not u/s 12 of
the JJ Act, 2000), the Hon'ble Allahabad High Court set aside the order passed by the
Sessions Judge by observing that the application for bail could not have been rejected
on the ground of mentioning of incorrect section. Such an application and matter should
have either been enquired by the court itself under the provisions of the JJ Act, 2000 or
should have been sent to the Juvenile Justice Board. Since the matter relates to a
person who claims himself to be juvenile, therefore, his plea of juvenility has to be
enquired into before disposing of his bail application. See : Mohan Nishad Vs. State of
UP, 2016 (93) ACC 25 (All).
6) Where the bail to a juvenile allegedly involved in committing an offence u/s 376 of the
IPC was rejected by the Sessions Judge, Rae Bareli on the ground that the said offence
was a heinous offence, relying upon it's two earlier decisions reported in the cases of
Amit Kumar Vs. State of UP, 2010 (71) ACC 209 (Alld) and Naurang (minor) Vs. State
of UP, 2010 (71) ACC 255 (Alld), it has been held by the Hon'ble Allahabad High Court
that bail to a juvenile alleged to be involved in an offence (under Section 376 IPC)
cannot be rejected u/s 12 of the JJ Act, 2000 on the ground of seriousness of the
offence. Seriousness of offence is no ground to refuse bail to a juvenile. See : Arvind
Kumar Misra Vs. State of UP, 2012 (77) ACC 64 (Allahabad)(LB).

7) Where juvenile accused charged with committing rape and attempt to murder was
denied bail on the ground that grant of bail would expose juvenile to moral, physical or
psychological danger but the social investigation report indicated that juvenile had been
obedient to his parents and had positive and good terms with local residents and it
could not be concluded that his release on bail would bring him into association with any
known criminal or expose him to any moral, physical or psychological danger, the High
Court granted bail to the juvenile u/s 12 of the JJ Act, 2000. See : Rajesh Lakra Vs. the
State of Chhattisgarh, 2015 CrLJ (NOC) 76 (Chhattisgarh).

8) JJ Board, Meerut had rejected the bail application of a juvenile involved in offences u/s
302, 376 of the IPC. Sri S.V. Singh Rathore, Sessions Judge, Meerut had also
dismissed the criminal appeal of the juvenile filed against the said order of the JJ Board
u/s 52 of the JJ Act, 2000. Giving approval to the order of the Sessions Judge, Meerut,
a Single Hon'ble Judge of the Allahabad High Court, quoting paras 3, 22 & 23 of the
decision of the Hon'ble Supreme Court rendered in the case of Om Prakash Vs. State of
Rajasthan, (2012) 5 SCC 201, dismissed the criminal revision filed u/s 53 of the JJ Act,
2000 against the order of the Sessions Judge, Meerut and ruled thus : "While
considering the prayer for bail under Section 12 of the Act, the Judge has to ensure that
the order proposed to be passed does not violate any of the conditions contemplated by
Section 12 of the Act. It cannot be interpreted to work only for the benefit of juvenile
ignoring the cries of victim child whenever, a child becomes victim of offences, let alone
heinous offences like murder or rape, society craves and cries for justice. By showing
misplaced sympathy to juvenile, who has perpetrated offence like rape/murder, victim
(child) and the society is denied justice which is not and cannot be the intention of law.
In view of above, juvenile is not entitled to bail under Section 302 and 376 I.P.C.
Consequently, no error has been committed by Sessions Judge in rejecting the bail."
Kindly see : Judgment dated 30.04.2014 of the Hon'ble Allahabad High Court delivered
by Hon'ble Justice Sudhir Kumar Saxena in Criminal Revision No. 345/2011 titled
Virendra Vs. State of UP.

9) In the cases noted below, it has been held by the Hon'ble Allahabad High Court that if
the JJ Board is not constituted the accused/juvenile may move his bail application u/s
437 of the CrPC. before the Magistrate having jurisdiction and in case the bail
application is rejected by the Magistrate, the juvenile may move his application u/s 439
of the CrPC before the Sessions Judge but he cannot directly move his bail application
before the High Court u/s. 439 CrPC Likewise, where the JJ Board is not constituted
and unless the bail application is rejected by the Magistrate concerned u/s. 437 CrPC,
the same cannot be directly heard by the Sessions Judge u/s. 439 CrPC. See : (i)
Mohd. Amir vs. State of U.P., 2002 (45) ACC 94 (All) (ii). Sant Das alias Shiv Mohan
Singh vs. State of U.P., 2002 (45) ACC 1157 (All), where the bail application of the
Juvenile was referred by the sessions judge to JJ Board for disposal, it has been held
that the bail application is to be disposed of by the JJ Board in accordance with section
12 of the JJ Act 2000 and if the bail application is rejected by the board then the power
 to grant bail can be exercised by the sessions judge u/s 52 of the JJ Act. See :
Akhilesh vs. State of U.P. 2010 (71) ACC 537 (All)

INQUIRY PROCEDURE: SECTION 14

- Child brought before board and board passes order under section 17 and 18
- Enquiry to be completed within 4 months, with 2 months extension by board. Therefore,
total period of 6 months to complete inquiry. The extension of 2 months – reasons to be
recorded by the board.
- If heinous offence – preliminary assessment to be conducted u/s 15 and
completed in 3 months from date of production of child.
- If the inquiry with regards to petty offences is not completed in 6 months, the child has
to be given bail and proceedings are terminated.
- If more time is need to inquiry of serious and heinous offence, the extension can
be sought by chief judicial magistrate or chief metropolitan magistrate with
reasons recorded in writing.
- Board to take following 5 steps in order to ensure speedy inquiry:
a) No ill- treatment by police, advocate or any other officer and if done suggest
corrective steps.
b) Proceedings to be simple in nature with child friendly atmosphere
c) Child to have opportunity to participate and be heard.
d) If petty offences then summary proceeding to be followed
e) Serious offence – procedure as per CrPC
f) Heinous offence – if below 16 years then procedure followed as per CrPC and if
16-18 years then as per section 15
- The Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall review the
pendency of cases of the Board once in every three months, and shall direct the Board
to increase the frequency of its sittings or may recommend the constitution of additional
Boards. The information of such pendency shall also be furnished by the Board to the
Chief Judicial Magistrate or the Chief Metropolitan Magistrate and the District Magistrate
on quarterly basis in such form as may be prescribed by the State Government.
- If, it is found that the child has not committed any offence and is not in conflict with the
law, then the Board shall pass order to that effect, it may refer the child to the
Committee with appropriate directions for care and protection.

ORDERS BY THE BOARD – CHILD IN CONFLICT WITH LAW : SECTION 18

(RESTORATIVE JUSTICE)

- When the board is satisfied on an inquiry that a child irrespective of age has
committed a petty offence, or a serious offence, or a child below the age of sixteen
years has committed a heinous offence, then, the board will pass an order keeping in
mind the nature of offence, specific need for supervision or intervention, circumstances
as brought out in the social investigation report and past conduct of the child, the Board
may, if it so thinks fit,—

(a) allow the child to go home after advice or admonition by following appropriate inquiry
and counselling to such child and to his parents or the guardian;

(b) direct the child to participate in group counselling and similar activities;

(c) order the child to perform community service under the supervision of an
organisation or institution, or a specified person, persons or group of persons identified
by the Board;

(d) order the child or parents or the guardian of the child to pay fine:
Provided that, in case the child is working, it may be ensured that the provisions of any
labour law for the time being in force are not violated;

(e) direct the child to be released on probation of good conduct and placed under the
care of any parent, guardian or fit person, on such parent, guardian or fit person
executing a bond, with or without surety, as the Board may require, for the good
behaviour and child’s well-being for any period not exceeding three years;
 (f) direct the child to be released on probation of good conduct and placed under the
care and supervision of any fit facility for ensuring the good behaviour and child’s well-
being for any period not exceeding three years;

(g) direct the child to be sent to a special home, for such period, not exceeding three
years, as it thinks fit, for providing reformative services including education, skill
development, counselling, behaviour modification therapy, and psychiatric support
during the period of stay in the special home:

- if the conduct and behaviour of the child has been such that, it would not be in the
child’s interest, or in the interest of other children housed in a special home, the Board
may send such child to the place of safety.
- In addition to the above order, the court might also order: i) attend school ii)attend
vocational training iii)attend therapeutic centre iv) undergo a de-addiction programme
and v) prohibiting child from visiting certain places.

- Where the Board after preliminary assessment under section 15 pass an order
that there is a need for trial of the said child as an adult, then the Board may order
transfer of the trial of the case to the Children’s Court having jurisdiction to try
such offences.

ROLE AND RESPONSIBILITIES OF SPECIAL JUVENILE POILICE UNIT

Every police station is required to have a police

officer specially designed and trained to function as
a child welfare police officer to deal with all matters
relating to Child – section 107

Such police officer should not be below the rank of

assistant sub - inspector and should be chosen due
to their child friendly approach and magnetism to
deal with children as victims.

Appropriate training and orientation should be given

so that they are able to coordinate with the police
voluntarily and non-governmental organisations.

The state is further obligated to establish special

juvenile police unit in every district and city headed
by an officer of the rank of deputy superintendent of
police consisting of child-welfare police officers. 2
social workers from which one is a woman.
- Unit 6: Child in Conflict with law: Transfer System
i) If child committed heinous offence

PRILIMINARY ASSESMENT INTO HEINOUS OFFENCES – SECTION 15

(ASSESMENT PROCEDURE/MATURE UNDERSTANDING ETC. )
- If it is found out that a child between the age of 16 – 18 years has committed a heinous
offence, the board has to conduct a preliminary assessment enquiry.
- The Board shall conduct a preliminary assessment with regard to his mental and
physical capacity to commit such offence, ability to understand the
consequences of the offence and the circumstances in which he allegedly
committed the offence, and may pass an order in accordance with the provisions of
sub- section (3) of section 18:
- The board may also take guidance and expertise of experienced psychologists or
psycho-social workers or other experts.
- Preliminary assessment is not trial, it is pre-trial. It is to understand the
understanding capacity of the child with regard to consequences of the offences.
- The assessment shall be completed within 3 months
- Where the Board is satisfied on preliminary assessment that the matter should be
disposed of by the Board, then the Board shall follow the procedure of CrPC.
- the order of the Board to dispose of the matter shall be appealable under sub-section
(2) of section 101.
- Where the Board after preliminary assessment under section 15 pass an order that
there is a need for trial of the said child as an adult, then the Board may order transfer
of the trial of the case to the Children’s Court having jurisdiction to try such offences.

POWER OF CHILDREN’S COURT: SECTION 19 and 20

- As mentioned above, if after the preliminary assessment u/s 15, it is found out that trial
is needed for the heinous offences and the child should be tried as adult then the
children court comes into picture, as they have jurisdiction to try such offences.
- after the preliminary assessment u/s 15, the court may decide the following:

a. there is a need for trial of the child as an adult as per the provisions of the Code of
Criminal Procedure, 1973 and pass appropriate orders after trial subject to the
 provisions of this section and section 21, considering the special needs of the child,
the tenets of fair trial and maintaining a child friendly atmosphere;
b. there is no need for trial of the child as an adult and may conduct an inquiry as a
Board and pass appropriate orders in accordance with the provisions of section 18.

- Children court to ensure that the final order includes individual care plan for the
rehabilitation of child, including follow up by the probation officer or the District
Child Protection Unit or a social worker.
- The Children’s Court shall ensure that the child who is found to be in conflict with
law is sent to a place of safety till he attains the age of twenty-one years and
thereafter, the person shall be transferred to a jail: Provided that the reformative
services including educational services, skill development, alternative therapy
such as counselling, behaviour modification therapy, and psychiatric support
shall be provided to the child during the period of his stay in the place of safety.
- periodic follow up report every year by the probation officer or the District Child
Protection Unit or a social worker, as required, to evaluate the progress of the
child in the place of safety and to ensure that there is no ill-treatment to the child
in any form.
- The report should be given to the children’s court for record and follow up.
- If the child attains the age of 21 years and still has period of sentence left to
complete in the place of safety, in such cases the children’s court may provide
for a follow up by the probation officer or the District Child Protection Unit or a
social worker or by itself, as required, to evaluate if such child has undergone
reformative changes and if the child can be a contributing member of the society
and for this purpose the progress records of the child. After this the court may
decide the following:

a) release the child on such conditions as it deems fit which includes

appointment of a monitoring authority for the remainder of the prescribed
term of stay
b) decide that the child shall complete the remainder of his term in a jail:

- Section 21: no child shall be sentenced to death or life imprisonment.

- There should be no joint proceeding of a child alleged to be in conflict with law, with
a person who is not a child.
- If the child has run away from observation home or special home such child must
be produced before the Board which passed the original order in respect of that child,
if possible, or to the nearest Board where the child is found in 24 hrs. The Board shall
ascertain the reasons for the child having run away and pass appropriate orders for the
child to be sent back either to the institution or person from whose custody the child had
run away or any other similar place or person, as the Board may deem fit.

Unit 8: Child in need of Care and Protection

i) Role of Child Welfare Committee
ii) Procedure - Child in need of Care and Protection
iii) Procedure for declaring child legally free for Adoption

CHILD WELFARE COMMITTEE: SECTION 27

- The state government shall constitute one or more CWC for every district for exercising
powers and duties in relation to child in need of care and protection and the state also
has to ensure induction training and sensitisation of all members of the committee is
provided within two months from the date of notification.
- CWC consists of a chairperson, 4 members of state government from which 1
shall be a woman, all should be expert in matters relating to children.
- The district child protection unit shall provide the CWC a secretary and other staff
as and when required for effective functioning.
- Members should be selected only if he/she has been actively involved in health,
education, or welfare activities pertaining to children for at least seven years or a
practicing professional with a degree in child psychology, psychiatry, sociology or law.
- The term of every member is 3 years.
- Cannot be a member of the board if:
a) Past record of violation of HR or child rights
b) Convicted of an offence involving moral turpitude and such conviction has not
been reversed or granted full pardon.
c) has failed to attended even ¾ of the proceeding of the committee without any
valid reasons
- The district magistrate shall conduct quarterly review of the functioning of the
committee.
- The committee shall have powers of a metropolitan magistrate as under CrPC.
- The committee shall meet 20 days per month.
- The committee shall also visit to an existing child care institution to check its
functioning and well-being of children.
- A child in need of care and protection can be bought before any individual
member of the CWC for being placed in a children home or with a person fit to
take care.
- In the event of any difference of opinion among the members of the Committee at the
time of taking any decision, the opinion of the majority shall prevail but where there is no
such majority, the opinion of the Chairperson shall prevail.
- The committee may function even if one member is absent and any order passed
by the committee will not be invalid on the on the ground of a member being
absent.
- At the final disposal of a case, at least 3 members should be present.

POWERS OF THE CWC: SECTION 29: The Committee shall have the authority to
dispose of cases for the care, protection, treatment, development and rehabilitation of
children in need of care and protection, as well as to provide for their basic needs and
protection and have the power to deal with cases in its jurisdiction exclusively. The
CWC also has the power to declare a person fit for foster care and pass order for
after care under section 46.

FUNCTIONS OF CWC: SECTION 30

(i) taking cognizance of and receiving the children produced before it;
(ii) conducting inquiry on all issues relating to and affecting the safety and well- being of
the children under this Act;
(iii) directing the Child Welfare Officers or probation officers or District Child Protection
Unit or non-governmental organisations to conduct social investigation and submit a
report before the Committee;
(iv) conducting inquiry for declaring fit persons for care of children in need of care and
protection;
(v) directing placement of a child in foster care;
(vi) ensuring care, protection, appropriate rehabilitation or restoration of children in need
of care and protection, based on the child’s individual care plan and passing necessary
directions to parents or guardians or fit persons or children’s homes or fit facility in this
regard;
(vii) selecting registered institution for placement of each child requiring institutional
support, based on the child’s age, gender, disability and needs and keeping in mind the
available capacity of the institution;
(viii) conducting at least two inspection visits per month of residential facilities for
children in need of care and protection and recommending action for improvement in
quality of services to the District Child Protection Unit and the State Government;
(ix) certifying the execution of the surrender deed by the parents and ensuring that they
are given time to reconsider their decision as well as making all efforts to keep the
family together;
(x) ensuring that all efforts are made for restoration of abandoned or lost children to
their families following due process, as may be prescribed;
(xi) declaration of orphan, abandoned and surrendered child as legally free for adoption
after due inquiry;
(xii) taking suo motu cognizance of cases and reaching out to children in need of care
and protection, who are not produced before the Committee, provided that such
decision is taken by at least three members;
 (xiii) taking action for rehabilitation of sexually abused children who are reported as
children in need of care and protection to the Committee by Special Juvenile Police Unit
or local police, as the case may be, under the Protection of Children from Sexual
OffencesAct,2012;
(xiv) dealing with cases referred by the Board under sub-section (2) of section 17;
(xv) co-ordinate with the police, labour department and other agencies involved in the
care and protection of children with support of the District Child Protection Unit or the
State Government;
(xvi) in case of a complaint of abuse of a child in any child care institution, the
Committee shall conduct an inquiry and give directions to the police or the District Child
Protection Unit or labour department or ChildLine services, as the case may be;
(xvii) accessing appropriate legal services for children;
(xviii) such other functions and responsibilities, as may be prescribed.

SECTION 31: PRODUCTION BEFORE THE COMMITTEE: a number of specified

persons can produce a child in need of care and protection before the committee
as per the section. This includes any police officer, inspector appointed under
any labour law, anu public servant, child line services, any NGO, agency, child
welfare officers, probation officer, nurse, doctor or management of a nursing
home/hospital or maternity home and children can themselves also appear in
front of the committee. Any citizen out of care can also bring a child to the CWC.

- Section 32 and 33 and 34 also makes is mandatory to report a child who has been
separated from its parent or guardian, which if not done is an offence in itself
liable for 6 months jail or 10,000 fine.

- If any parent wishes to surrender their child due to any emotional, psychological
or financial reasons, they might do the same and bring the child to CWC. If, after
prescribed process of inquiry and counselling, the Committee is satisfied, a surrender
deed shall be executed by the parent or guardian, as the case may be, before the
Committee. The parents or guardian who surrendered the child, shall be given two
months’ time to reconsider their decision and in the intervening period the Committee
shall either allow, after due inquiry, the child to be with the parents or guardian under
supervision, or place the child in a Specialised Adoption Agency, if he or she is below
six years of age, or a children’s home if he is above six years.

INQUIRY: SECTION 36, 37 AND 38

- The committee is required to conduct two enquiries one for a determination of age and
second for determining if the child before them is in need of care and protection. For
age the CWC has to follow section 94.
- Once the child has been brought in front of the CWC, the CWC can pass order to sent
the child to a children’s home or a fit person. It may also order speedy social
investigation by the social worker, child welfare officer.
- All children below six years of age, who are orphan, surrendered or appear to be
abandoned shall be placed in a Specialised Adoption Agency, where available. They
shall be enquired as per section 38.
- The social investigation shall be completed within fifteen days so as to enable the
Committee to pass final order within four months of first production of the child:
- After the completion of the inquiry, if Committee is of the opinion that the said child has
no family or ostensible support or is in continued need of care and protection, it may
send the child to a Specialised Adoption Agency if the child is below six years of age,
children’s home or to a fit facility or person or foster family, till suitable means of
rehabilitation are found for the child, as may be prescribed, or till the child attains the
age of eighteen years:
- The Committee shall submit a quarterly report on the nature of disposal of cases and
pendency of cases to the District Magistrate. the District Magistrate shall direct the
Committee to take necessary remedial measures to address the pendency, if necessary
and send a report of such reviews to the State Government, who may cause the
constitution of additional Committees, if the pendency of cases continues to be
unaddressed by the Committee even after three months of receiving such directions,
 the State Government shall terminate the said Committee and shall constitute a new
Committee.
- In anticipation of termination of the Committee and in order that no time is lost in
constituting a new Committee, the State Government shall maintain a standing panel of
eligible persons to be appointed as members of the Committee.
- In case of any delay in the constitution of a new Committee under sub-section (5), the
Child Welfare Committee of a nearby district shall assume responsibility in the
intervening period.

Section 37: ORDERS PASSED BY THE CWC: After being satisfied by the inquiry and
the social investigation report prepared by child welfare officer, and taking into account
the child’s wishes in case the child is sufficiently mature to take a view, the following
orders might be passed:

A) Declare that child in in need of Care and protection

b) restoration of the child to parents or guardian or family with or without supervision of
Child Welfare Officer or designated social worker;
c) placement of the child in Children’s Home or fit facility or Specialised Adoption
Agency for the purpose of adoption for long term or temporary care
d) placement of the child with fit person for long term or temporary care
e) foster care u/s 44
f) sponsorship orders u/s 45
g) Directions to persons or institutions or facilities in whose care the child is placed,
regarding care, protection and rehabilitation of the child, including directions relating
to immediate shelter and services such as medical attention, psychiatric and
psychological support including need-based counselling, occupational therapy or
behaviour modification therapy, skill training, legal aid, educational services, and
other developmental activities, as required, as well as follow-up and coordination
with the District Child Protection Unit or State Government and other agencies;
h) Declare that the child is legally free for adoption

SECTION 38: PROCEDURE FOR DECLARING CHILD LEGALLY FREE FOR

ADOPTION

- CWC has to make efforts in tracing parents or guardians and on completion of such
inquiry, if it is established that the child is either an orphan having no one to take care,
or abandoned, the Committee shall declare the child legally free for adoption: such
declaration shall be made within a period of two months from the date of production of
the child, for children who are up to two years of age and within four months for children
above two years of age:
- In case of surrendered child, the institution where the child has been placed by the
Committee on an application for surrender, shall bring the case before the Committee
immediately on completion of the period specified in section 35, for declaring the child
legally free for adoption. (2 months)
- a child of a mentally retarded parents or a unwanted child of victim of sexual assault,
such child may be declared free for adoption by the Committee, by following the
procedure under this Act.
- The decision to declare an orphan, abandoned or surrendered child as legally free for
adoption shall be taken by at least three members of the Committee.

CARA Guidelines : Central Adoption Research Authority

Central Adoption Resource Authority (CARA) is a statutory body of Ministry of Women & Child
Development, Government of India. It functions as the nodal body for adoption of Indian children
and is mandated to monitor and regulate in-country and inter-country adoptions. CARA is
designated as the Central Authority to deal with inter-country adoptions in accordance with the
provisions of the Hague Convention on Inter-country Adoption, 1993, ratified by Government of
India in 2003.

CARA primarily deals with adoption of orphan, abandoned and surrendered children through its
associated /recognised adoption agencies.
 Fundamental principles governing adoption. - The following fundamental principles shall
govern adoptions of children from India, namely: -
(a) the child's best interests shall be of paramount consideration, while processing any adoption
placement;
(b) preference shall be given to place the child in adoption with Indian citizens and with due
regard to the principle of placement of the child in his own socio-cultural environment, as far as
possible;
(c) all adoptions shall be registered on Child Adoption Resource Information and Guidance
System and the confidentiality of the same shall be maintained by the Authority.

Child eligible for adoption. - The following shall be eligible for adoption, namely: -
(a) any orphan or abandoned or surrendered child, declared legally free for adoption by the
Child Welfare Committee;
(b) a child of a relative defined under sub-section (52) of section 2 of the Act;
(c) child or children of spouse from earlier marriage, surrendered by the biological parent(s) for
adoption by the step-parent.

1. The prospective adoptive parents shall be physically, mentally and emotionally stable,
financially capable and shall not have any life threatening medical condition.
2. Any prospective adoptive parents, irrespective of his marital status and whether or not he has
biological son or daughter, can adopt a child subject to following, namely:-
1. the consent of both the spouses for the adoption shall be required, in case of a married
couple;
2. a single female can adopt a child of any gender;
3. a single male shall not be eligible to adopt a girl child;
3. No child shall be given in adoption to a couple unless they have at least two years of stable
marital relationship.
4. The age of prospective adoptive parents, as on the date of registration, shall be counted for
deciding the eligibility and the eligibility of prospective adoptive parents to apply for children of
different age groups shall be as under:-
Age of the child Maximum composite age Maximum age of
of prospective adoptive single prospective
parents (couple) adoptive parent

Upto 4 years 90 years 45 years

Above 4 and upto 8 100 years 50 years

years

Above 8 and upto 18 110 years 55 years

years

5. In case of couple, the composite age of the prospective adoptive parents shall be counted.
6. The minimum age difference between the child and either of the prospective adoptive parents
shall not be less than twenty-five years.
7. The age criteria for prospective adoptive parents shall not be applicable in case of relative
adoptions and adoption by step-parent.
8. Couples with three or more children shall not be considered for adoption except in case of
special need children as defined in sub-regulation (21) of regulation 2, hard to place children
as mentioned in regulation 50 and in case of relative adoption and adoption by step-parent.

Unit 9: Offences Against Children Section 74 to 89 (child as a victim)

1. Section 74: Prohibition on disclosure of identity of children : the section prohibits

any disclosure of any information which may lead to identification of any child through
any report in the newspaper, magazine, news Sheet or video audio media. Children
protected by this provision includes children in conflict of law, children in need of care
and protection, child victims or child witnesses of a crime. The prohibited information
includes name, address, address of parents, school, picture of the child or any other
information related to identification of the chain. Even the records of the police are
prohibited to be disclosed. The punishment for disclosure is imprisonment up to 6
months of fine of 2 lakhs. It is a non-cognizable offense and no action may be taken
unless a complaint filed before a magistrate and order of training police to initiate an
enquiry. There is an increase in the quantum of punishment from act 2000 to act 2015.
 The only exception in which the identity of a child can be the revealed is in that juvenile
justice board or a CWC give PERMISSION in writing and permission should contain
reasons for such order and how it is in the best interest of child.
2. Section 75: Punishment for cruelty to child: cruelty within the meaning of the section
includes an assault, abandonment of child, abuse, exposure or neglect of a child in a
manner that is likely to cause unnecessary mental or physical suffering the child. Any
person who has actual control over the child is punishable for these offences. Biological
parents who have surrendered the child or abandoned their child are not liable under
this section.
- For example: complaint was registered under the section and for a abetting commission
of suicide under the Indian penal code was filed against assistant of inspector of police
in Gujarat in a case of 14 years old boy committed suicide as a consequence of alleged
beating in police custody. It may be the first complaint filed under section 75 of this act.
- The offence of cruelty is committed by an adult against the child is non bailable and
cognizable, which means that no warrant is need to arrest.
- The section provides 3 circumstances and different punishments for the same.
a. By adult – 3 years or fine of 1 lakh or both
b. offence is committed by any person employed by or managing an organisation,
which is entrusted with the care and protection of the child – punishment
extending up to 5 years and fine extending up to 5 lakhs
c. if the child is physically incapacitated or develops a mental illness or is rendered
mentally unfit to perform regular tasks or has risk to life or limb – rigorous
imprisonment not less than 3 years and fine of 5 lakhs.
- It is important to compare and contrast the language prescribed punishment in the
above mentioned three circumstances. In the first circumstance, the section lays down
the maximum punishment and max fine either or both maybe give. In the second
instance, the section provides higher upper limit of imprisonment & giving discretion to
the court to choose any period of imprisonment and amount of fine within the limit
prescribe but both needs to be given as the word “or” is not present. In the third
instance, the discretion of the court is very limited by mandatory minimum sentence with
a higher gap and prescription of a definitive amount of fine.
- This section will also punish persons who may have kidnapped or abducted a child and
have unlawful control and charge for the joke. The purpose of the sections to protect
every child irrespective of the fact how the abuser got the actual charger control.
3. Section 76: Employment of child in begging: employment or use of any child for
begging or causing a child to beg by any person is made punishable – imprisonment up
to 5 years and fine of 1 lakh and if for the purpose of begging, the person amputates or
maims the child, he shall be punishable with rigorous imprisonment for a term not less
than seven years which may extend up to ten years, and shall also be liable to fine of
five lakh rupees. The said child, shall not be considered a child in conflict with law under
any circumstances, and shall be removed from the charge or control of such guardian or
custodian and produced before the Committee for appropriate rehabilitation. This
offence is cognisable and non-bailable.
4. Section 77: Penalty for giving intoxicating liquor or narcotic drug or psychotropic
substance to a child: shall be punishable with rigorous imprisonment for a term which
may extend to seven years and shall also be liable to a fine which may extend up to one
lakh rupees. Exception: order of any prescription of any qualified medical practitioner.

5. Section 79: Exploitation of a child employee: keeping child in bondage for the
purpose of employment , or withholds his earning or uses his earning for its own
expenses is punishable with term extend up to 3 years of with fine of 1lakh or both. The
concept of child labour and forced labour has also been recognized by the constitution.
Art 23 prohibit begging and Article 24 prohibits child labour below age of 14 years mine,
factory and hazardous work. Section 79 makes no distinction in terms of age or nature
of work.
6. Section 83: Use of child by militant group or other adults: children are employed
and used to commit offence as they are children and not even suspected. If
anyone employs a child shall be liable for rigorous imprisonment for a term which may
extend to seven years and shall also be liable to fine of five lakh rupees. Any adult or an
adult group uses children for illegal activities either individually or as a gang shall be
liable for rigorous imprisonment for a term which may extend to seven years and shall
also be liable to fine of five lakh rupees.
7. Section 84: Kidnapping and Abduction: the act does not create any new offence
but incorporates the offence of kidnapping and abduction as contained in section
359 to 369 of the Indian penal code with the power view of juvenile justice act with
just one change. The age of child victims of kidnapping and abduction under IPC
what is limited to boys below the age of 16 years and girls below the age of 18
years, whereas this act lasers that age to 18 use for all children irrespective of
their gender.

Procedure:

The first few hours are the most critical in missing-child cases. So, it's important to contact your
local police and give them information about your child right away. They'll ask you for a recent
picture of your child, what your child was wearing, and details about when and where you last
saw your child. You can ask that your child's case be entered into the National Crime and
Information Center (NCIC). Other clearinghouses such as the National Center for Missing and
Exploited Children ([800] 843-5678) can offer information and support during your search.

A hue and cry notice can be issued by the office of the superintendent of police of the district
and state. Which provided for the gist of the case which includes the date and time and the
name of the complainant and address along with the time the child was nowhere to be found.
The progress of the case is also mentioned. It includes the recent photograph of the missing
child and the description of the child too example: name, age, gender and characteristics. The
reference contact of police officers are also mentioned, in case someone finds the child.

Classification of offence under section 86:

a) If more than 7 years – cognizable, non-bailable and triable by JMFC

b) IF 3-7 years - cognizable, non-bailable and triable by JMFC
c) Less than 3 years – non-cognizable, bailable and triable by any magistrate

Section 101 : Appeals

- Appeal within 30 days of the order of board of committee to children court

- No appeal for order against the committee related to foster care/sponsorship after care
appeal to district magistrate
- Condonation of delay allowed with sufficient cause
- Appeal against order of the preliminary assessment of the board on heinous offences,
assistance of experienced psychologists and medical specialists other than those
whose assistance has been obtained by the Board in passing the order under the said
section.
- No appeal from:

a) Order by board acquitting child aged 16 years of serious or petty offences

b) Order of committee in respect of a child who is not in need of care and protection

- No second appeal
- If aggrieved by the order of children court, appeal to high court.

- Revisionary powers under section 102: The high court may at any time either on its
own motion or on an application received in his behalf call for the record of any
proceeding in which any Committee or Board or Children’s Court, or Court has passed
an order, for the purpose of satisfying itself as to the legality or propriety of any such
order and may pass such order in relation thereto as it thinks fit: Provided that the High
Court shall not pass an order under this section prejudicial to any person without giving
him a reasonable opportunity of being heard.

JUVENILE JUSTICE AMENDMENT ACT, 2021: SHORT NOTES

- The Lok Sabha has enacted the Juvenile Justice (Care and Protection of Children)
Amendment Bill, 2021 in an effort to tighten and improve legislation pertaining to the
care and adoption of children.
- It was created in conformity with the Constitution and to satisfy India's commitment as a
signatory to the United Nations Conventions on the Rights of the Child. This legislation
focuses on child adoption and severe crimes committed by minors. This Act was
created in an effort to eliminate the ambiguities in the preceding Juvenile Justice Act.
- The 2019 NCRB data showed that the number of juvenile offences increased from
28677 in 2018 to 29287 in 2019
- The judgement in the notorious Nirbhaya Rape Case, in which a juvenile offender was
discharged on the grounds that he was a minor. This decision was heavily criticised,
and it was questioned why the age of 18 is the threshold for adulthood. This was the
rationale behind the Juvenile Justice (Care and Protection of Children) Act of 2015,
which allowed 16 to 18-year-old adolescents in confrontation with the law to be tried as
adults for severe offences. The then-minister of women and child development, Ms.
Maneka Gandhi, placed a strong emphasis on premeditated and organised horrific
crimes. According to the legislation, the minimum punishment for heinous crimes is
seven years. This was an acceptable change, but it lacked clarity on the severity of
offences and failed to enforce child welfare rules

- Need of the Amendment:

- The National Commission for Protection of Child Rights (NCPCR) audit of Child Care
Institutions (CCIs) in 2020, 90% of which are run by NGOs, found that 39% CCIs were
not registered, even after the 2015 amendment was brought in.

- It also found that less than 20% CCIs, especially for girls, had not been set up in some
states, 26% child welfare officers were not there.

- Moreover, three-fifths have no toilets, one-tenth have no drinking water and 15% homes
don’t have provisions of separate beds, no diet plans.

- Rehabilitation of children is not a priority for childcare homes and children are reportedly
kept in such institutions to get funds.

- Key Features

- Adoption: Under the Act, once prospective adoptive parents accept a child, an adoption
agency files an application in a civil court to obtain the adoption order. The adoption
order issued by the court establishes that the child belongs to the adoptive parents.
The Bill provides that instead of the court, the district magistrate (including additional
district magistrate) will perform these duties and issue all such orders.
- Appeals: The Bill provides that any person aggrieved by an adoption order passed by
the district magistrate may file an appeal before the Divisional Commissioner, within 30
days of such order. Such appeals should be disposed within four weeks from the date
of filing of the appeal.
- The Act provides that there will be no appeal for any order made by a Child Welfare
Committee concluding that a person is not a child in need of care and protection. The
Bill removes this provision.
- Serious offences: The Act provides that the Juvenile Justice Board will inquire about a
child who is accused of a serious offence. Serious offences are those for which the
punishment is imprisonment between three to seven years. The Bill adds that serious
offences will also include offences for which maximum punishment is imprisonment of
more than seven years, and minimum punishment is not prescribed or is less than
seven years.
- Designated Court: The Act provides that offences against children that are punishable
with imprisonment of more than seven years, will be tried in the Children’s Court
(equivalent to a Sessions Court). Other offences (punishable with imprisonment of less
than seven years) will be tried by a Judicial Magistrate. The Bill amends this to provide
that all offences under the Act will be tried in the Children’s Court.
- Offences against children: The Act provides that an offence under the Act, which is
punishable with imprisonment between three to seven years will be cognizable (where
 arrest is allowed without warrant) and non-bailable. The Bill provides that such offences
will be non-cognizable and non-bailable.
- Child Welfare Committees (CWCs): The Act provides that states must constitute one or
more CWCs for each district for dealing with children in need of care and protection. It
provides certain criteria for the appointment of members to CWC. For instance, a
member should be: (i) involved in health, education, or welfare of children for at least
seven years, or (ii) a practising professional with a degree in child psychology,
psychiatry, law, or social work. The Bill adds certain criteria for a person to be ineligible
to be a member of the CWC. These include: (i) having any record of violation of human
rights or child rights, or (ii) being a part of the management of a child care institution in a
district.