Civil Procedure Code (CPC)

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Introduction:

Rehabilitation means, a restoration of reputation and character, the term has many context-sensitive meanings. In penology, it is the process of improving the inmate’s character so he will become a productive member of society. At a trial, it is the restoration of a witness’s credibility after it has been impeached under cross examination.[1]

While starting with the marginalized children, a category of children that is almost always overlooked is the ‘Children in Conflict with Law’. Many believe that ‘these children get what they deserve’ and want to do little about the treatment meted out to them.

Later changing perspectives have led to the emergence of an alternative justice system for juveniles while on one hand an alternative system for juveniles must champion minimum intervention by law and minimum institutionalization, on the other it must make sure that the rehabilitation process is strong enough to prevent them from coming into conflict with law again.

Group Housing

Group housing or Residential fallibilities offer a strong advantage for juvenile delinquents while going through the rehabilitation process.

Family Therapy

Family therapy also allows the whole family to be rehabilitated because the family gets the opportunity to process the situation of their former delinquent child. Family therapy process allows for strong social bonds to be created through therapy

Discussion of Vocational Education:

It talked about vocational programs can be something that changes these offenders lives once they come out the facilities.

History & International Instruments:

The first concerted effort at a legislation to safeguard the interests of Juvenile in Conflict With Law (herein referred as JICL) was made in the 20th century through the Madras Children Act, 1920. This was followed by the Bengal and the Bombay Children Act. Soon enough, there was a need felt for having such a legislation at the national level and consequently the Children Act, 1960 was implemented.[2] In 1968 the first Juvenile Justice Act was passed and a distinction was made between the different machineries to handle ‘delinquents’ and children in need of Care and Protection.[3]

In this midst, a significant number of international legislations to safeguard the interests of JICL, were also enacted. Notable among these, were the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines). In 1992, India ratified the UN Convention on the Rights of the Child. It is in this backdrop that the Juvenile Justice Act,2000 was drafted, which is at present the main governing legislation for JICL in India.

National Instruments:

a. Constitutional provisions:

The Constitution of India in Article 15(3) has clearly recognised that the condition of the children in India is such that they requires Special Protective provisions. Article 15(1) prohibits discrimination on the forbidden ground and, therefore, any “Special Provision” for children would not have been hit by Article 15(1) at all. This has been clearly pointed out by Chief justice Chakravarthi speaking the Division Bench of the Calcutta High Court in Anjali Roy v. State of West Bengal[4]. But still, the framers of the Constitution, having regarded the unsatisfactory position of the “Child” in  India , thought it fit to make it fully alive to the grave necessity for special protective provision for the children in India by including children in Article 15(3). The Constitutional protection for “special provisions” for women, in Article 15(3),was obviously necessary as “Sex” having been main forbidden ground of discrimination under Article 15(1), “Special Provisions” for Women, favouring Women only, would have other been hit by Article 15(1).[5]

b. Statutes:

The Reformatory Schools Act,1897

a. Power to Courts to direct youthful offenders to be sent to Reformatory Schools.

b. Power of Magistrates to direct boys under fifteen sentenced to imprisonment to be sent to Reformatory Schools.

c. Preliminary inquiry and finding as to age of youthful offender.

d. Government to determine Reformatory School to which such offenders shall be sent.

The probation of Offenders Act, 1958

a. Power of court to release certain offenders after admonition.

b. Power of court to release certain offenders on probation of good conduct.

c. Power of court to require released offenders to pay compensation and costs.

d. Restrictions on imprisonment of offenders under twenty-one years of age.

The West Bengal Children Act, 1959

a. to consolidate and amend the law relating to the custody, protection, treatment and rehabilitation of juvenile delinquents and of other children in need of care.

b. establish or recognise after-care organisations for the welfare, training and social and economic rehabilitation of juvenile delinquents and other children discharge from reformatory, industrial or borstal schools.


The Juvenile Justice (Care and Protection of Children) Act, 2000:

 According to the JJ ACT, 2000 the board as per its discretion can-

(a) Allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;

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

(c) order the juvenile to perform community service;

(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;

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

(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years

(g) Make an order directing the juvenile to be sent to a special home.[6]

The individual care plan must, among other needs, cater to the educational, vocational and counselling needs of the juvenile in question. To address these needs the Model Rule directs the State to delineate the role of each department and develop linkages with NGOs  to implement the programmes of restoration and rehabilitation.

c. Government orders, Policy, Charter:

(i)  Steps adopted by Department of  women and child development, Delhi:[7]

The department has already taken the following initiatives for Implementing the Juvenile Justice (Care and Protection Of Children) Amendment Act 2006:

1.  Four Child Welfare Committees have been notified u/s 29 of the Act. The offices of the Committees are located at Kasturaba Niketan Lajpat Nagar, Nirmal Chhaya Jail Road, Sewa Kutir Kingsway Camp & NPS Mayur Vihar.

2. Three Observation Homes have been notified u/s 8 of the Act for the Juveniles in conflict with law.

 

3. Eleven Children Homes have been established by the Govt. for the care and protection of the children during pendency of inquiry and subsequently for their care, protection, education, development and rehabilitation  and ten District level Visiting Committees have been constituted.

4. Six Homes run by NGOs have been notified as Shelter Homes to provide immediate care and protection to the children in need of care and protection.

5. Eleven NGOs are recognized as Adoption Agencies. Foster care services are carried out by the Department itself.

JJ Fund u/s 61 has been created recently with a corpus of Rs. 10 Lacs. This fund shall be administered by the State Level Advisory Board.

(ii) The National Policy on Education:[8]

Recognising with regard to elementary education the policy makes three very important commitments: 1. Universal access and enrolment. 2. Universal retention of children up to age 14. 3. A much needed improvement in the quality of education that allows for children to achieve a certain level of learning.

Education will adopt a child-centred approach, hence catering on an individual level to the needs of the child. Corporal punishment is to be firmly excluded from the teaching system. As per Operation Blackboard there should be one teacher per class, and all necessary equipment and teaching materials should be provided for by the programme.

(iii) The National Charter for Children:[9]

Children in conflict with law have rights not to be prosecuted as adults and hence it is the duty of the government to ensure those rights and provide for the child while he/she is under their care. The protection of children against sexual exploitation and child pornography requires the making of a law that persecute abusers, let up centres equipped to deal with victims, create awareness, set up information systems to investigate possible abuse, etc.

Rehabilitation-an analysis:

While the Department of Women and Child Development has successfully set up two JJBs, three Observation Homes and one special home the point of the whole exercise gets defeated if the delivery mechanism itself is flawed. Accordingly this section assesses the effectiveness of the delivery mechanism of JICL.

(i) Steps taken by judicial proceedings:

The Juvenile Justice board is the main body under the JJ ACT, 2000 responsible for adjudication and disposal of cases concerned with juveniles in conflict with law. Every district as per the JJ ACT act, 2000 is required to set up two or more JJBs. The Board consists of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as thecase may be, and two social workers of whom at least one is a woman, forming a bench.[10]

Every case brought before the JJB progresses in three basic stages-the first summary inquiry, then investigation and at last disposition. The first summary inquiry is when the juvenile is placed before the board for the first time  and the Board on the basis of the report presented to it by the police, decides whether the juvenile is to be released on bail or sent to an observation home.[11]

Generally, the child welfare officers stationed at every police station are required to send records of the juveniles apprehended to the STATE JUVENILE POLICE UNIT unit of that district. But these records aren’t computerized. So a proper centralized system of keeping records is missing .In such a situation it is possible to identify the juvenile as a repeater only) if he is apprehended by the same police station and b) If records are being maintained at the police station. Also often as a principal magistrate of a JJB revealed that ‘the juveniles tend to change their names’.

After this, the investigation part of the process ensues wherein the board determines whether the juvenile has committed the offence or not and if s/he has, under what circumstances. As per the Model Rules every inquiry by the Board must be completed within 4 months and only under special circumstances can be extended up to 6 months for non-serious crimes.[12]For serious crimes, the time period may extend beyond 6 month with reports sent to the Chief Judicial Magistrate and all efforts made to expedite the process.[13]

(ii) Juvenile Justice Act, 2000:

Various remedies are available under the Act. After coming out from these special homes they sometimes also get exploited where child trafficking is one of the forms for their exploitation. Child trafficking shall include at minimum exploitation of prostitution of others or other form of sexual exploitation, forced labour, slavery and practices similar to slavery servitude or removal of organs. And thus to minimize these chances remedies are given in Juvenile Justice Act.


Adoption

Adoption means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of adoptive parent with all right, privileges and responsibility. Government has also constituted various agencies for adoption -- ‘The Indian council of social welfare’ with head quarters in Mumbai and branches in all States as scrutiny agencies.

Central Adoption Resource Authority CARA is another authority which has been setup to keep check on the adoption policies. U/S. 41(5) of Juvenile Justice (Care and Protection) Act 2000 another authority has been instituted for adoption of Juvenile child. Under this section- “No child shall be offered for adoption –


· Until two members of committee declares the child legally free for placement in case of abandoned child.

· Until two months period for reconsideration by the parents is over in case of surrendered children.

· Without his consent in case of child who can understand and express his consent.

Who Can Adopt A Child?

As per Hindu Adoption and Maintenance Act (HAM Act) any Hindu male of sound mind may adopt the child and if he is married his wife’s consent is necessary, likewise a Hindu female of sound mind may also adopt a child if she is unmarried, divorced, widowed, or her husband suffers from certain disabilities, Ceased to be a Hindu, has renounced the world, has been declared to be of unsound mind by a court.

Under Juvenile Justice (Care and Protection) Act 2000 a Board was constituted under section 41(6) of the Act for adoption of Juvenile child. According to which the board may allow a child to be given in adoption –


· To a Single parent.


· To parents to adopt a child of same sex irrespective of the number of living biological sons or daughters.

While the guardian and wards Act is for the Muslims, Christians, Parsis and Jews. As non Hindus do not have an enabling law to adopt a child legally, the people belonging to these religions who are desirous of adopting a child can only take the child in guardianship under provision of Guardian and Wards Act 1890. Under this law, when a child turns 21 years of age they no longer remain wards and assume individuals identity.

Foster Care

Foster care can also be the remedy for securing the future of Juvenile:-[14]


1. The Foster Care may be used for temporary placement of those infants who are ultimately to be given for adoption.

2. The child may be placed in another family for a short or extended period of time, depending upon the circumstances where the Child’s own parent usually visit regularly and eventually after the rehabilitation, where the children may return to their own homes.

(iii) Individual Child Care Plan:

To chart out a plan for the holistic development of the juvenile every dispositional orderis required to contain an Individual Care Plan prepared by the Probation Officer.

The Model Rules defines Individual Care Plan as:[15]

“a comprehensive development plan for a juvenile or child based on age specific and gender specific needs and the case history of the juvenile or child, prepared in consultation with the juvenile or child, in order to restore the juvenile’s or child’s selfesteem, dignity and self-worth and nurture him into a responsible citizen and accordingly the plan shall address the following needs of a juvenile or a child:

(i) Health needs;

(ii) Emotional and psychological needs;

(iii) Educational and training needs;

(iv)Leisure, creativity and play;

(v) Attachments and relationships;

(vi)Protection from all kinds of abuse, neglect and maltreatment;

(vii) Social mainstreaming; and

(viii)Follow-up post release and restoration.”

The standard procedure for making Individual Child Care Plan as was evident from interviewing probation officers is that it is made through 4-5 counseling sessions with the juvenile every 15 days. During these sessions the Probation Officer finds out aboutthe child’s interests, family background, personal relationships, schooling, any vocational training that the child may have had and any sort of employment held by the child.

The Individual child Care Plan as per the format given in the Model Rules, 2007 is divided into four parts-

• Rehabilitative needs of the juvenile, i.e. the personal details of the juvenile along with details of his case history.

• His/her progress in the rehabilitation process, i.e. it deals with the fortnightly progress reports of the child; how much progress has s/he made in any educational/training needs, monthly earning if s/he is employed etc.

• pre-release report, i.e. the pre-release preparations to be made

• Post-release report, i.e. his status-quo at the time of release and follow-ups after two months and six months.

For evaluating the progress of the child again, only the juvenile is consulted. There is no mechanism in place wherein the probation officer interacts with the peers, teachers, vocational trainers and employers to corroborate the progress of the child. The thirdand fourth parts of the Care Plan are even more farcical because there seems to be no tie-ups between the JJB and main stream schools /vocational training centres or employment programs. So the social reintegration of these children does not really happen, at least not through the JJB.  So ‘social reintegration’ has been successful only for a lucky few.

(iv) Provisions for Juveniles Released on Probation:

The Beijing Rules state:

“Progressive criminology advocates the use of non-institutional over institutional treatment. Little or no difference has been found in terms of the success of institutionalization as compared to non-institutionalization. The many adverse influences on an individual that seem unavoidable within any institutional setting evidently cannot be outbalanced by treatment efforts. This is especially the case for juveniles, who are vulnerable to negative influences. Moreover, the negative effects, not only of loss of liberty but also of separation from the usual social environment, are certainly more acute for juveniles than for adults because of their early stage of development.” [16]

Power of court to release certain offenders after admonition [17]—deals with the power of the Court instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition.

Power of court to release certain offenders on probation of good conduct[18] – under this heading it deals with that instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour.

(v) Provisions for JICL in Institutions:

Every piece of legislation on juvenile justice has reiterated the need for minimum Institutionalisation. The Model Rules clearly state:

‘Institutionalization of a child or juvenile in conflict with law shall be a step of the last resort after reasonable inquiry and that too for the minimum possible duration.’[19]

Being separated from their family and natural surroundings most juveniles are Contemptuous towards the process. This is evident from the fact that many juveniles try to run away at the first opportunity they get. In the words of a juvenile himself “ye kabhi ghar jaise nahi ho sakta hai;kyunki yahan pe mummy papa toh nahi hai’"(This can never be like home because we are separated from our family.)[20]

The point of institutionalisation has been as the Beijing Rules says:

‘To provide care; protection; education and vocational skills; with a view to assisting them to assume socially constructive and productive roles in society.’

 In an NCPCR report it was stated:[21]

“In most cases, only children who can enter into age appropriate classes on placement within the Homes are typically enrolled in formal schooling. The remainder are provided with adhoc educational inputs and/or engaged in activities which are termed as vocational training but often involve surreptitious forms of engagement of children in ‘work’ within the institution (for example; kitchen duties; washing; cooking; mending; cleaning; etc). Alternatively; they receive instructions in activities which have neither linkages to vocational skills and aptitudes nor potential access to employment opportunities nor support the development of sectoral skills.”          

Implementation:

The onus of implementation of the JJ ACT is on the Ministry of Women and Child development for the entire country. In Delhi, it is the Department of Women and Child Development which is responsible for its implementation or to be more specific the Child Protection Unit. The governing scheme is the ‘Scheme for the Prevention and Control of Juvenile Maladjustment’ or ‘A Programme for Juvenile Justice.’ (Ministry of Women and Child Development). In 2009 the government launched the Integrated Child Protection Scheme (ICPS).One of the main objectives of this scheme is to improve the delivery mechanism of the Juvenile Justice System.

(i) Infrastructure and planning :[22]

As mentioned the central scheme for JICL is the ‘Programme for Juvenile Justice’. Its functions are:-

To extend help to State Governments to bear the cost of infrastructure and services development under the Juvenile Justice Act in order to ensure that in no circumstances the child in conflict with law is lodged in a regular prison.

 To ensure minimum quality standards in the juvenile justice services

To provide adequate services for prevention of social maladjustment and rehabilitation of socially maladjusted juveniles.

Ensure participation of community and other organizations into the care and protection of children in conflict with law who are perhaps more vulnerable than other groups of children. In Delhi it is the Department of Women and Child Development is responsible not only for setting up the entire infrastructure right from the notification of JJ ACT to the notification of the JJBs to the setting up the homes. But it is also responsible for improving the delivery mechanism of the entire system set up.

In 2009 a centrally sponsored scheme called Integrated Child Protection Scheme (ICPS) was introduced. The central government has provided an outlay of Rs 1,073 crore during the XI Plan period towards implementation of this scheme. This scheme aims to bring the different schemes of child protection under one window and improve the delivery of the system.[23] It aims to/at[24]

i) improve access to and quality of services;

ii) higher public awareness about the reality of child rights, situation and protection in India;

iii) articulate responsibilities and enforce accountability for child protection;

iv) establish functional structures at all levels for delivery of statutory; and support services to children in difficult circumstances;

v) Evidence based monitoring and evaluation.

One of the major requirements under the scheme is the provision for setting up dedicated service delivery structures; i.e. State Child Protection Society [SCPS]; District Child Protection Society [DCPS] and State Project Support Unit [SPSU] to manage and Monitor the implementation of the scheme and ensure convergence with other line departments; wherever required. However these are yet to be set up.

(ii) Funds :

A breakdown of the Union Child budget reveals the low priority given to ‘Child Protection’ in an already low allocation for children. The total share on child protection was .03% of the total union budget in 2006-07 i.e. for every Rs 100 spent by the Central Government only 3 paise was spent for Child Protection.[25]

Funds for JICL are released from the Central Government under the Programme for Juvenile Justice. Under this scheme, the Ministry of Women and Child Development provides 50% assistance to State Governments and administrations for establishment and maintenance of various levels of institutions for juveniles in conflict with law and children in need of care and protection.[26]Most of the budgetary heads of the government grants has little focus on strengthening family involvement, offering children personalised care and protection and promoting family and community based services.[27]

However on analyzing the funding system for these Observation Homes it can be seen that the funds are rarely released under the heads of formal education, vocational training, counseling and drug de-toxification which form the backbone of rehabilitation process.[28]

The model rules also provides for the creation of a State Juvenile Justice Fund “to implement programmes for the welfare, rehabilitation and restoration of juveniles.” [29]

The Delhi juvenile Justice Fund was created last year. Rs 5 lakhs have been deposited in it. But in spite of pressing infrastructural requirements, it remains unused.

(iii) Monitoring:

Improving the accountability of the system has always been one of the major objectives of the Juvenile Justice Programme and now the ICPS. To improve the monitoring mechanism of the entire system a State Advisory board was also set up by the Department of Women and Child Development. As per the Model Rules:

“Advisory Boards shall inspect the various institutional or non-institutional services in their respective jurisdictions, and the recommendations made by them\, shall be acted upon by the Central Government and the State Government.” [30]

Though a letter to JJB indicates that the Advisory Board was set up by 2003, till 2006 it had not started functioning properly and five non-official members of the board completed a term without exercising their responsibilities even once.[31]

In March 2007 the National Commission for Protection of Child Rights (NCPCR) was set up as a statutory body under the Commissions for Protection of Child Rights Act; 2005 (4 of 2006); an Act of Parliament.  Along with several other responsibilities. It is also required to review the

· working of Juvenile Justice Homes

· Functioning of the Juvenile Justice Board

· Implementation of the Juvenile Justice Act

· Make recommendations. To achieve the above objectives a Working Group was constituted on 29th October 2007.[32] The following two Sub-committees of the working group were

·  formed for in-depth study:

·  Sub Committee on Review of Operations of Observation and Children’s

· Homes

· Sub Committee on the functioning of Juvenile Justice Board.

Judicial Pronouncements:

a. Keshav Sitaram Sali v. State of Maharashtra[33]

The Supreme Court has held that in a case of petty theft the High Court should have extended the benefit of either section 360 of the Code of Criminal Procedure or sections 3 and 4 of the Probation of Offenders Act to the appellant instead of imposing a sentence of fine on him.

b.  Basikesan v. State of Orissa[34]

A youth of 20 years was found guilty of an offence punishable under section 380 of Indian Penal Code, 1860 and no previous conviction was proved against him. It was held by the court that the offence committed by the accused was not out of deliberate preparation or design but it was a fit case for application of section 3 and he be released after due admonition.

c. Dalbir Singh v. State of Haryana[35]

If the court forms the opinion that it is expedient to release the offender on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is “the nature of the offence”. Thus section 4 can be resorted to when the court considers the circumstances of the case, particularly the “nature of the offence” and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probition of good Conduct.

d. Dasappa v. State of Mysore[36]

The release of probationer on bond with or without sureties on probation of good conduct is, in nature, a preventive measure which seeks to save the offender from the evil effects of institutional incarceration and affords him an opportunity of reformation within the community itself. It is a discretionary remedy rather than a mandatory one.

e. Sunna V. State[37]

The accused aged 20 years was found guilty of an offence under Section 380 IPC for committing theft of a bicycle and some clothes. The court ordered has release after admonition u/s 3 of the probation of offenders Act 1958 because there was no previous conviction of the accused and theft was committed due to sudden temptation.

f.  Kehar Singh V. Regional Employment Offices Chandigarh[38]

The Petitioner was removed from his service for he was convicted for an offence u/s 380 of IPC despite of the fact that he was dealt with u/s 4 of the Probation of Offenders Act 1958. He was reinstated to the service on the ground that provision of S. 12 of the Act removes disqualification attached to conviction in the Probation cases.

g. Uttam Singh V. Delhi Administration[39]

The Appellant was convicted under S. 292 of IPC for in possession of three pockets of play cards and some obscene photographs. Having age of the offender (that time he was 36 years) in regard the Supreme Court refused to allow him the benefit of release on probation as he was potential danger to the society.

h. Union of India V. Bakshi Ram[40]

The Supreme Court observed that the release on probation does not obliterate the stigma. The Supreme Court in this case held that S. 12 of the probation of offenders Act 1958 clearly directs that the offender shall not suffer disqualification attached to the conviction but this section does not preclude department for taking action for misconduct leading to the offence or conviction thereon as per law. Therefore S 12 does not exonerate the person from Departmental punishment. In this case the Supreme Court turned dismissal into removal from service so that it helps the offender to secure employment elsewhere.

Problems In Implementations:

A staggering 30 million children in India belonged to families living in conditions of extreme distress and deprivation. Violence against girls, child labour, children living on the streets, trafficking, violence in schools and violence in conflict situations have all been reportedly on the rise. The need for specific instrumentality for children stems from these pressing situations.[41] Juvenile justice policy in India is largely governed by the constitutional mandate given under Article 15 that guarantees special attention to children through necessary and special laws and policies that safeguard their rights. The Right to equality, protection of life and personal liberty and the right against exploitation is enshrined in Articles 14, 15, 16, 17, 21, 23 and 24. The Constitution of India recognizes the vulnerable position of children and their right to protection.

The course of events concerning juvenile justice in this country was equally influenced by several international developments. It primarily includes the UN Convention of the Rights of the Child(UNCRC) 1989[42], the UN Standard Minimum

Rules for the Administration of Juvenile Justice (The Beijing Rules) 1985.Driven by constitutional guarantees for protecting children as well as recognizing international concern for child, the Indian state has made numerous arrangements in this direction. To give effect child protection, a number of laws were brought in.[43]

The Ministry of Women and Child Development has been instrumental in this direction and it has particularly catered to children in crisis situation such as street children, children who have been abused, abandoned children, orphaned children, children in conflict with the law, and children affected by conflict or Disasters, etc.[44]

The existing mechanism of child protection at official level mainly include the following programmes:

• Juvenile Justice Act

• Integrated Programme for Street Children

• CHILDLINE Service

• Shishu Greh Scheme

• Scheme for Working Children in Need of Care and Protection

• Rajiv Gandhi National Creche Scheme for the Children of Working Mothers

• Central Adoption resource Agency (CARA)

• National Child Labour Project (NCLP) for the rehabilitation of child labour

In addition to the above, the Ministry has just released its draft scheme ‘ The Integrated Child Protection’. This scheme envisages a holistic approach to combat the issues affecting children.

In order to reach out to all children, in particular to those in difficult circumstances, the Ministry of Women and Child Development proposes to combine its existing child protection schemes under one centrally sponsored scheme titled Integrated Child Protection Scheme (ICPS). The proposed ICPS brings together multiple vertical schemes under one comprehensive child  protection programme and integrates interventions for protecting children and preventing harm.[45]

Juvenile Justice Act

The Juvenile Justice (Care and Protection of Children) Act, 2000 is more in line with the recent thinking and the emerging need of the treatment and handling of juveniles. The objective of this legislation is to ensure the care, protection and development needs of the children who are either neglected or have come into conflict with law constituting delinquency.

The information columns of different states show their progress mainly about establishment of various institutions as per provisions of this Act. While this information merely gives a very primary idea about basic preparation made in these states, it definitely does not provide any clue about the quality and effectiveness of the enforcement of this Act.

Even at the Ministerial level[46]  the  tate of implementation of juvenile justice was not found satisfactory. It is stated “…these policies and legislations for children have on the whole suffered from weak implementation, owing to scant attention to issues of child protection, resulting in scarce resources, minimal infrastructure, and inadequate services to address protection problems.”[47]

Bottlenecks:

1.  The act fails to express the minimum age, below which the Act would not be applicable. The definition of juvenile delinquency provides very little scope for pettyacts to be dealt within the community.

2.  There is no concept of parental responsibility in generating situations ripe for delinquency under this Act. In many cases, the parents place the children in situations where their exploitation and abuse become imminent.

3. The education, training and recreation of children, who are in observation homes, have not been provided for. Besides, basic or school education, even higher education and training of these children should be considered in this Act.

4. The Act fails to provide the guarantees like right to counsel and right to speedy trial

5.  The Act does not take into account the orders and directions of the Supreme Court.

6.  It empowers the Juvenile Justice Board to give a child in adoption; even though, it is the Child Welfare Committee that deals with children in need of care and protection. The Act is silent on inter-country adoption. There is no linkage between the Juvenile Justice Act 2000 and the other legal provisions relating to children, for instance child labor, primary education, sexual abuse, adoption, disabilities and health.

7. Juvenile Justice thrives under the shadow of the adult criminal justice agencies and institutions (like the police). Moreover, the juvenile Justice adjudicatory cadres are drawn from the pool of the magistrates from the state.

The Act does not cast any obligation on the part of the state. A rights based perspective, is a missing dimension in this law. In its present shape, child protection becomes more of charity than a commitment. Protection of such children is not seen as a right but as charity or welfare.

The Juvenile Justice Act does not have specific provisions ensuring services for children relating to education, health, legal and social. In the absence of any mechanism of identification of juvenile in need of care and protection, the reach of this law becomes restricted.

 The lack of institutional infrastructure and trained manpower in the states has blunted the whole objective of this legislation. The requirement of constitution of Child Welfare Committees and Juvenile Justice board is largely remain unfulfilled resulting in the delay of disposal of cases.

The problem of enforcement of this law is also characterized by the lack of support services to vulnerable families, which becomes a major factor in turning their children into delinquency. The J.J. Act has got relatively greater emphasis on institutional setup as compared to non-institutional services. The facilities and services in the institutions in different states are found to be varying and lacking and there is no yardstick to standardize them. There is a dearth of services and programmes to the children of special needs.

The basic idea of juvenile justice was to reintegrate the child into family and society. This needs a proper network of rehabilitation and after care services. Unfortunately, this arrangement is almost nonexistent. The current juvenile justice policy does not have a preventive approach. The delinquency prone situations are increasing but there is no substantial mechanism to check it.

Current Trends in Rehabilitation:[48]

Risk Principles:        

Published research identifies variables associated with the likelihood of an individual reoffending. These risk principles include those not amenable to intervention (static risk factors), and those that might change over time (dynamic risk factors).

Static risk factors include age of onset of crime, offence history and family structure. Research suggests that higher risk offenders will benefit the most from rehabilitation interventions and that the intensiveness of services delivered should be proportional to the level of risk.

The Need Principles:
 

The term ‘criminogenic needs’ refers to risk factors that are dynamic or amenable to change through intervention. The needs principle suggests interventions should target needs of his sort, as they are most directly related to recidivism.

Examples of criminogenic needs that form important targets for  intervention with young offenders are drug and alcohol use anger and violence problems, and beliefs or attitudes that support offending.

The Responsivity principles:

The responsivity principle focuses on client and program characteristics that influence the offender’s ability to learn in a therapeutic situation. Treatment is a learning experience and individual factors that interfere with, or facilitate, learning are termed responsivity factors. These factors can also be understood as contextual variables, which may influence treatment outcome. These variables make a difference to the skills, strategies or identities that individuals develop and to the support available when transitions are made. Factors such as age, ethnicity, gender, disability and socioeconomic status can be considered key responsivity factors.

The Integrity Principles:

In contrast to the demands made by the responsivity principle to individualise interventions, an important component of quality assurance is to emphasise the need for program integrity. Program integrity refers to the extent to which an intervention program is delivered in practice as intended in theory and design.

The Professional Discretion Principles:

The principle of professional discretion allows for discretion principle professionals to make decisions on characteristics and situations not covered by the preceding principles. It makes sense to build scope for professional judgment into any rehabilitation system, rather than rely upon rigid administration of static principle.

Suggestions:

Prevention is better than cure:  It is high time we tap the children who are vulnerable who can become the future criminals. This can surely be achieved by keeping in mind the best interest of the children and the Principle of restoration, rehabilitation and social reintegration. This can only be ensured with effective partnership with the civil society.

There is a need for greater sensitivity and care while dealing with children in conflict with law. This can be achieved by giving utmost importance to child welfare and protection, along with creating social responsibility and greater awareness among stake holders.

We cannot uproot this menace but there are solutions to keep a control on the problem of Juvenile Delinquency. In the best interest of the delinquent he or she should be rehabilitated as early as possible and integrated back in the society. Also the State must protect the rights of these children and come up with reformative methods and instil in them values that can socially uplifts them and give them a new found confidence so that they can play a constructive role in the society.

An amendment in the existing act is definitely necessary in order to thwart any attack on the nation. Apart from terrorists taking advantage of the lacuna in the system, serious crimes like rapes and murders also go unpunished with the offender wearing the garb of juvenility. The legislators of the country have their task cut up as they need to work out a middle path that takes the country’s and society’s interest into account but does not go to extremes.

Conclusions:

“The heinous nature of the crime. The cover-up afterwards. The denial. They were all, to me, earmarks of someone who was acting as an adult.”- Gary Gambardella[49]

            
Juvenile justice is the only existing legislation on children, which purely and primarily deal with children in conflict with the law and their rehabilitation. This law has been designed to apply the principle of reformation rather than the punitive approach. It has been noted that the enforcement of this law in terms of protection of the children is weak.

The ultimate purpose of the Juvenile Justice amended Act, 2006 is repatriation, rehabilitation and social reintegration of children who are in conflict with law and children in need of care and protection. One of the crux of this Act is that the inquiries pertaining to all children in conflict with law should conclude within the period of 4 to 6 months as envisaged under the law and records to be destroyed after 7 years. Inspite of having such a comprehensive and beneficial legislation in operation, there still stands a risk of violations of Children’s Rights within the system.

Within the society there are other issues of serious nature which affects the children e. g drug use and addiction to tobacco has been one of the common factors among the children in conflict with law. This issue evolves around peer influence. This makes it important for the children to be counselled and treated before they become victims to other drugs and should be referred for detoxification.

The place where the children are housed is known as observation home. If one interprets the term “HOME”, it would mean love, protection, security and a family setup which would cater to the emotional and mental aspect, of a child.

There is no dearth of laws concerning the welfare and protection of children; but what we lack in is the logistical support required for its implementation. Juvenile Justice Act 2000 is a comprehensive legislation which provides elaborative procedure to be followed keeping the Principle of Best Interest in the forefront. Goa has witnessed an alarming increase in reporting of crimes committed by children and those committed against them. Concern over violation of child rights in such situations, is growing. While going through these provisions of the legislations, clearly lacks in the area of accountability of various stake holder and bodies constituted under the law. There is a need to come up with guidelines and proper understanding as to procedures to be followed.

[1] Available at http://law.yourdictionary.com/rehabilitation on 01-06-2013

[2] ”Child Protection and Juvenile Justice System”,

Available at  http://www.childline.org.in/pdf/CP-JJ-JCL.pdf, last visited on 02-06-2013

[3] Ibid

[4] AIR 1952 Cal 825(831))

[5] Mrs. Achina Kundu, ‘’Child in The Family Laws of india’’ in by Dr. N.K chakraborty, DR. M.K. Nag et all (eds “Law and The Child” (R.Cambray & Co. PVT Ltd, Part 1, Kolkata, 2004) at p. 365

[6] S.15 of the Juvenile Justice(Care and Protection of Children) Act, 2000

[7] http://wcddel.in/jja.html visited on 04-06-2013

[8] http://www.childlineindia.org.in/National-Policy-on-Education-1986.html , visited on 04-06-2013

[9] http://www.childlineindia.org.in/National-Charter-for-Children-2003.html visited on 04-06-2013

[10] S.4 of of the Juvenile Justice(Care and Protection of Children) Act, 2000

[11] Rule 13 of the Juvenile Justice(Care and Protection of Children) Rules, 2007

[12] Ibid, Rule 13(6)

[13] Ibid, Rule 13(8)

[14] Supra Note 12, S. 42

[15] Supra Note 17, Rule 2(h)

[16] United Nation Standard Minimum Rules for Juvenile Justice(Beijing Rules).1985.

http://www2.ohchr.org/english/law/pdf/beijingrules.pdf

[17] S.3 of the Probation of Offenders Act,1958

[18] S.4

[19] Ibid

[20] Available at http://ccs.in/ccsindia/interns2010/meghna-dasgupta_rehabilitation-through-education-for-juveniles.pdf , visited on 06-05-2013

[21] ”Sub Committee Report on Operations of Observation and

Children’s Home”. Available from http://www.ncpcr.gov.in/Reports , accessed on 02-06-2013

[22] India nods launch of child protection

scheme”.  Available at http://www.igovernment.in/site/India-nods-launch-of-child-protection-scheme/

[23] Ibid

[24] Available at ”Budget Analysis for Child

Protection” Available from www.wcd.nic.in/Budgetingchildprotection.pdf, visited on 04-06-2013

[25] Ibid

[26] Ibid

[27] Ibid

[28] Ibid

[29] Supra Note 17, Rule 95

[30] Ibid, Rule 93

[31] ”The insulated and the Damned”, Available from www.tehelka.com/archi ,last accessed on 02-06-2013

[32] Supra Note 24

[33] AIR 1983 SC 291

[34] AIR 1967 Ori 4

[35] AIR 2000 SC 1677

[36] AIR 1965 Mys 224

[37] AIR 1967 arisa 4

[38] AIR 1966 SC 336

[39] AIR 1972 SC 21

[40] 1990 Cr. LJ 1013

[41] G.S. Bajpai, “Making it Work: Juvenile Justice in India”, Paper presented at the National Seminar on Care & Protection of Disadvantaged Children in Urban India at RCUS,( 17-18 Nov.2006) Lucknow

[42] Convention on Rights of Child,1989.Available from

http://www2.ohchr.org/english/law/pdf/crc.pdf, accessed on 06-06-2013

[43] Supra Note 42

[44]Ibid

[45] Ibid

[46] http://wcd.nic.in/welcome.html, accessed on 02-06-2013

[47] Ibid

[48] Available at 

http://www.aic.gov.au/documents/2/E/E/%7B2EE121F5-11DE-4267-9E3C-11511261549D%7Dtandi284.pdf, on 02-06-2013

[49] Gary Gambardella is a career prosecutor in Bucks County, Pennsylvania. He is the only prosecutor ever elected to serve as President of the prestigious Bucks County Bar Association.


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