Minister is repealing her own law

Juvenile justice is currently the hottest subject of debate. Everyone has an opinion on it--even those who had never known that such a law exists.

The Juvenile Justice (Care and Protection of Children) Act (JJ Act) was enacted in 2000 for exactly what the name suggests--a law for protecting children who are vulnerable and who may have come in conflict with the law.

It was a shift from the punitive approach of the 1986 JJ Act, which also had a 16-year cut-off for boys. The 2000 Act corrected some of these shortcomings. This progressive law was spearheaded by Maneka Gandhi, who was then the Ministry of Social Justice and Empowerment, but now, as the Minister of Women and Child Development, she wants it repealed and amended!

Of course, the JJAct 2000 had some shortcomings too. One of the reasons for this was the haste with which the law was enacted – it was neither discussed publicly nor referred to a Parliamentary Standing Committee, thus needing two amendments (2006 and 2011) to make it more child appropriate-- shift to non-institutional forms of care and treatment, ensure children in conflict with the law are adjudicated only under the JJ Act; remove provisions that stigmatised and discriminated against some children.

It appears that the current bill will follow the same process, once again needing amendments to correct or undo the wrong and also result in endless litigation, to once again correct mistakes made in haste. The government’s claim that the amendment was discussed in 2011 is incorrect as the Bill is very different from what had been in discussion.

Social laws always draw flak for poor drafting. This is no different. The public draft bill inviting comments from the ministry lacked even the most basic “Statement of Objects and Reasons” (SOR)--the crux of a law which substantiates and interprets its provisions and legislative intent.

It lacked coherence between the chapters and provisions, logical flow in the sequence of chapters, definitions and sections and there were contradictions galore. For example, the section on guiding principles (Chapter II) that forms the bedrock of any law, follows the Chapter on Definitions, instead of preceding it.

The focus of “fundamental principles” is also self limiting--dealing primarily with children in conflict with the law, although the scope of the law is more than that, lacks mention of juvenile crime prevention.

Despite government’s recognition of the need to focus on preventive approach to child protection in 2006 and the 11th and 12th Five Year Plans and the Integrated Child Protection Scheme (ICPS), quality care as well as minimum standards of care and protection too remains missing.

Mistakes made in drafting the JJ Rules of 2007 are repeated--for example, “orphan” was defined as “a child who is without parents or willing and capable legal or natural guardian” thus allowing parents to abdicate their responsibility and get rid of their children.

Not only is this retained, the current bill goes a step further by allowing mere ‘unwillingness of parents’ to be a sufficient condition in itself for declaring a child an “orphan”. Can a responsible society allow this? There are several other similar flaws.
Every child needs parents and a home and promotion of adoption is a good thing.

However, since adoptions are forever and cannot be revoked, it is imperative that there are adequate checks and balances. Hence, the proposal to reduce the time for surrender of children by parents and transferring finalisation of adoptions to the Principal Magistrate of the Juvenile Justice Board in order to expedite adoptions needs reconsideration.

By now, there is enough evidence to show the results of hasty and unethical adoptions. In February 2013, coinciding with the Conference on Inter-country adoptions, a delegation of parents was in Delhi crying for re-unification with their children who had gone missing or were kidnapped and traced to have been placed in inter-country adoption.

India has little experience of foster care. Given the feudal, caste and class driven nature of our society, high levels of abuse of children, track record of poor implementation, and evidence of high rate of disruption in foster care placements even in countries with long experience, this issue requires greater discussion before enactment. Implications of foster care vis-à-vis the child’s guardianship and custody too need examination.

There is no doubt that the implementation of the JJ Act has been tardy so far. But the answer does not lie in handing over the all-important Child Welfare Committee (CWC) to the already overburdened District Magistrate (DM), as is being proposed. What is needed is a proper selection process and complaint mechanism for dealing with complaints against CWC Members, on which the Bill is silent.

The SOR for the 2000 Act clearly carries the intention to “prescribe a uniform age of 18 years for both boys and girls” and states that “the justice system as available for adults is not considered suitable for being applied to a juvenile or a child or any one on their behalf”.

How has the adult justice system suddenly become conducive for children?
Under Article 39 (f) of the Constitution, government must ensure “that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and “childhood and youth” are protected against exploitation and against moral and material abandonment”.

The National Policy for Children, 2013 defines a child as a person below the age of 18 years and requires all laws, policies, plans and programmes affecting children to be informed by its provisions.

Can the proposed JJ Act break free of India’s existing Constitutional obligations and policy commitments to its children? In its current form, it does just that. We will be repeating mistakes we had corrected and making some new ones.

Centre for Child Rights, Delhi.