United Nations crc/C/ind/3-4

Figure 8.1
Age wise percentage of Juveniles apprehended under IPC and SLL Crimes

Source: Crime in India, 2003 to 2007, National Crime Records Bureau, GoI.

35. 
    It has been observed that children in conflict with law are often deprived of the variety of rehabilitative provisions available due to low awareness/interest of the presiding magistrate or due to stated resource crunch.¹ For instance, the provision of bail to the apprehended juveniles has been denied on grounds that the release might expose the child to moral, physical or psychological danger, or expose him/her to any known criminal without clearly establishing the name of the person/criminal. Limited appreciation of children’s rights and progressive practices in juvenile justice due to inadequate training and sensitisation of JJB members also results in denial of bail. JJB members in most cases continue to function, as they would in any other adult court. This has led to an increase in number of pending cases. Initiatives for training of JJB members, as mandated, is being taken up across the country.
    
36. 
    The JJ (Amendment) Act, 2006, explicitly prohibits the placement of a child in conflict with law in a police lock-up/jail.
    
37. 
    The recently-launched ICPS has provisions to address these lacunae by providing funds for more staffing, capacity building, awareness generation, etc.
    

8B.2.2 Policy and Legislation

38. 
    Through the NPAC, 2005, JJ (Amendment) Act, 2006, JJ Rules, 2007, and the 11th Five Year Plan, attempts have been made to re-look at various aspects related to disposition, detention and placement in custodial settings of juvenile in conflict with law, as per international standards of care.
    

8B.2.2.1 Apprehension and Pre-Trial Detention of a Juvenile in Conflict with Law

39. 
    According to the JJ (Amendment) Act, 2006, a juvenile in conflict with law apprehended by police shall be placed under the charge of SJPU or the designated police officer. The officer in-charge shall produce the juvenile before the JJB within a period of 24 hours of his apprehension, excluding the time necessary for the journey.² Soon after the juvenile is apprehended, the officer in-charge shall inform the parent or guardian of the juvenile about the apprehension, and direct him to be present at the Board, where the juvenile will appear.³ According to the new provision, the apprehended juvenile may be released on bail with or without surety or placed under the care and supervision of a Probation Officer/fit institution/fit person or kept in an observation home until he/she is brought before the JJB and till the inquiry is completed.⁴
    
40. 
    The JJ (Amendment) Act, 2006, provides seven types of orders that may be passed with regard to a juvenile apprehended and referred to the JJB. These include: allowing a juvenile to go home after advice or admonition; participating in group counselling; performing community service; paying a fine; release on probation for good conduct and placement under care of parent, guardian or fit person; release on probation for good conduct and placement under care of any fit institution (for a period not exceeding three years); and passing an order directing the juvenile to a special home or ‘place of safety’ for a maximum period of three years.⁵ The period of stay may be reduced by the Board, having regard to the nature of offence. The Act also provides that all inquiries by the JJB regarding the child should be completed within a period of four months from the date of its commencement.⁶
    
41. 
    The JJ Rules, 2007, prescribe institutionalisation as the last resort and the principle of fresh start, i.e. giving the child a chance for a new beginning. The 11th Five Year Plan further re-enforces this by emphasising that non-institutional care would be promoted and institutionalisation will be used as a measure of last resort. Constant review of cases to encourage release of children from institutions will be carried out.⁷
    
42. 
    The JJ (Amendment) Act, 2006, and JJ Rules, 2007, seek to promote child-friendly measures, i.e. any process, interpretation, environment and treatment that is humane, considerate and is in the best interest of the child.⁸ JJ Rules, 2007, recommend that juvenile justice proceedings should be conducted in a closed, informal and friendly manner. For instance, the Board shall not sit on a raised platform, and there shall be no witness box. The Board shall address the juvenile in a child-friendly manner in order to put the juvenile at ease and encourage him to state facts and circumstances without fear. Acknowledging the principle of right to be heard, it promotes active involvement of children in all matters and decisions affecting their interest. To protect privacy rights and prevent stigmatisation, the JJ (Amendment) Act, 2006, prohibits media from disclosing the name, address or school or any other particulars, or publishing the picture that may lead to the identification of the juvenile in conflict with law.⁹ (See Annexure 8B.2.4 for details on child-friendly practices under the juvenile justice system.)
    
43. 
    Capacity-building programmes and training manuals for juvenile justice functionaries, focusing on counselling and family support, social re-integration and non-institutional alternatives, have been developed.
    

8B.2.2.2 Age of Commission of Offence

44. 
    In conformity to the recommendations of the UN Committee, the Government repealed the Prevention of Terrorism Act (POTA), 2002, by Prevention of Terrorism (Repeal) Ordinance, 2004 on September 21, 2004.¹⁰
    
45. 
    The JJ Act, 2000, and the JJ Rules, 2007, clearly lay down the procedure for determination of age of a child/ juvenile in conflict with law, whenever the claim of juvenility is raised before the court.¹¹ To deal with the ambiguity in the age of commission of offence by a juvenile, the Supreme Court, in its judgement in Pratap Singh vs. State of Jharkhand & Anr¹² stated that the age, when the offence was committed, should be the date for basing charges in case of a juvenile, and not the date of production before the magistrate.
    

8B.2.2.3 Detention

46. 
    The JJ Act, 2000, clearly mandates the segregation of children in conflict with law from those in need of care and protection by providing for observation homes and special homes for children in conflict with law and children’s homes for children in need of care and protection. Most States have established one or more observation home and special home to cater to the specific needs of children.
    
47. 
    The NCPCR has reviewed the functioning of the juvenile homes and made recommendations and guidelines for key reforms in the juvenile justice system in the country. The sub-committee constituted by the NCPCR, examining conditions of observation homes and children’s homes in the country, has been holding consultations with Government officials, NGOs and staff of children’s homes to understand comprehensively the challenges faced by them and key strategies for strengthening the operation of the homes, children’s well-being and protection of their rights.¹³
    
48. 
    In a study conducted by a sub-committee set up by NCPCR on observation homes in nine States in 2007,¹⁴ found that overcrowding, sub-standard food, poor sanitation, absence of water, lack of productive activity and lack of segregation between children in conflict with law and those in need of care and protection were common problems. The sub-committee, in its report, has made comprehensive recommendations on improving the standards of care in institutions across the country.¹⁵
    
49. 
    Lack of specialised agencies/institutions with minimum standards of care laid down for licensing have also created problem in the registration of institutions/homes.¹⁶ State Governments are in the process of developing systems to address the issue. (See Annexure 8B.2.5 for details on registration of institutions under the juvenile justice system.) The NCPCR has initiated use of monitoring tool for homes in Maharashtra to self-monitor, with linkages to external monitoring. The programme has components of staff appreciation awards to motivate and recognise the contribution of the institutional staff at various levels, such as cooks, caretakers and superintendents of homes. States of Jharkhand and Uttar Pradesh have taken measures and initiatives to improve the standards of care in children’s homes in the best interest of the child. Some civil society initiatives have been taken to ensuring quality standards of care and protection in residential institutions and alternative care settings.¹⁷ (See Annexure 8B.2.6 for details on standards of care in children’s homes.)
    
50. 
    The issues of limited rehabilitation infrastructure and inadequate resources/funds, which have affected the setting up of institutions/homes as mandated under the law, are now being dealt with under the ICPS. The JJ Act, 2000, has provisions that encourage partnership in establishing and running observation homes with voluntary organisations.¹⁸ (See Section 8B.4.4 for details and Annexure 8B.2.7 for details on partnership and collaboration.)
    
51. 
    The MWCD conducted the Study on Child Abuse: India 2007 in 13 States of the country to proactively collate data on conditions of children in institutions. According to the Study, 56.73% of children in institutions in all the 13 States were subjected to physical abuse by staff members of the institutions.¹⁹ The NCPCR has made recommendations for introducing and implementing a comprehensive domestic child abuse policy and legislative framework for preventing abuse, neglect and exploitation of all children.²⁰
    

8B.3 The Sentencing of Juveniles, in particular, the Prohibition
of Capital Punishment and Life Imprisonment
Article 37 (a)

52. 
    As per provisions of the JJ Act, 2000, no juvenile in conflict with law shall be sentenced to death or imprisonment for any term, which may extend to imprisonment for life, or committed to prison in default of payment of fine or in default of furnishing security.²¹
    

8B.4 Physical and Psychological Recovery and Social Re-integration
Article 39

8B.4.1 Status and Trends

53. 
    According to Crime in India, 32,000 children are apprehended and produced before the courts every year. The courts issue order for rehabilitation and social-reintegration of these children by exercising the options available under the JJ Act, 2000. (See Section 8B.2.1 for details.)
    

8B.4.2 Policy and Legislation

54. 
    The NPAC, 2005, emphasises rehabilitation of juvenile offenders in a child-friendly environment by utilising the network of institutional and non-institutional facilities, and ensures holistic social re-integration through partnership with allied services.
    
55. 
    The JJ (Amendment) Act, 2006, and JJ Rules, 2007, provide for effective provisions and various alternatives for care, protection, rehabilitation and social re-integration of delinquent juveniles. They provide for institutional as well as non-institutional rehabilitative options, and mechanisms for review and monitoring of implementation of standards and protection norms in institutional care.
    
56. 
    The JJ Rules, 2007, provide for medical care, counselling and preparation of ‘individual care plan’ for comprehensive development of children/juveniles in conflict with law by addressing the health needs, and emotional and psychological needs, besides educational, recreational and protection needs. They also provide for free legal services to all juveniles in conflict with law by the legal officer in the District Child Protection Unit.²²
    
57. 
    The JJ (Amendment) Act, 2006, prescribes punishment to any person in charge or control of the child for inflicting cruelty that may cause such child mental or physical suffering.²³
    
58. 
    The CPCR Act, 2005, lays down provisions for monitoring of rehabilitative premises.
    

8B.4.3 Programmes

59. 
    The Programme for Juvenile Justice, a Centrally Sponsored Scheme, provides for establishment and maintenance of various levels of institutions for the rehabilitation of juveniles in conflict with law and children in need of care and protection, and services for preventing children from coming into conflict with law.
    
60. 
    Under the ICPS, all the existing programmes for children in need of care and protection and children in conflict with law, including the Programme for Juvenile Justice, have been merged. The ICPS has provisions that focus on rehabilitation of children in conflict with law based on institutionalisation as the last resort. Enhanced budget provision has been made for building of institutions and services, including construction cost, to strengthen the rehabilitative services. (See Section 1.5.1 for details.)
    

8B.4.3.1 Institutional Rehabilitation

61. 
    At present, 794 homes established under the JJ Act, 2000, for juveniles in conflict with law, as well as children in need of care and protection, which cater to 46,957 children (as of December 3, 2008), are being assisted under the Programme for Juvenile Justice.²⁴ Table 8.1 provides an overview of institutional care services since 2002-03.