Juveniles in Care Homes: A Comparative and Critical Analysis

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It was the year 1989 when the entire world was undergoing certain changes and in the backdrop of such changes, the world leaders came together and made a historic commitment to the children of the entire world. They made a promise to every child that they safeguard them and fulfil their rights by adopting an international framework which was known as the “United Nations Convention on the Rights of the Child.” [1]

The rationale behind formulating such a treaty was to provide the children with a set of rights that is separate from the adults and as per the convention a “childhood is different from adulthood and lasts until the age of 18 years.” All these ideas and notions made this treaty the most ratified treaty in the history of human rights and have helped transform children’s lives.

India was a signatory of this treaty and for the fulfilment of the objectives of this treaty; the Juvenile Justice Act was brought into force. The law addresses the growing number of crimes committed by children aged 16 to 18 in recent years and by children in conflict with the law. Since January 15, 2016, the Juvenile Justice (Care and Protection of Children) Act of 2015 has come into force. It repealed the Juvenile Justice (Care and Protection of Children) Act of 2000.

The Act also talks about the child in need of care and protection and thus to define it has laid down twelve situations or circumstances which would make a child as one who needs care and protection.

Recently, the Supreme Court has asked the NCPCR (National Commission for Protection of Child Rights) to look into the issue of child repatriation into 8 states and produce them before the local welfare committees.

What’s the Case About?

The Supreme Court bench of Justices J L Nageswara Rao, Hemant Gupta, and Ajay Rastogi has taken a suo moto action to monitor the welfare of children placed in the care of homes during this Covid-19 pandemic. The hon’ble court has asked NCPCR to ask 8 states namely Tamil Nadu, Andhra Pradesh, Telangana, Mizoram, Karnataka, Kerala, Maharashtra, and Meghalaya. According to the reports by the NCPCR, there are around 1.84 lakh children who are living in care homes in these 8 states which accounts for over 70% of the children in such homes and the NCPCR has reportedly asked them to do so and have highlighted to them that the children living in such care homes require a more familial environment during this pandemic. Thus, they need to be brought before the welfare committees for immediate repatriation.

Questions Asked by the Hon’ble Supreme Court

The Hon’ble Supreme Court Bench directed NCPCR the following questions:

(A)  Whether such repatriation of the children to their families should not be done on an individual basis?

(B) Whether NCPCR could issue such general directions to the States without considering the education, health, the safety of the children, the consent of their parents, and their economical situation? [2]

National Commission for Protection of Child Rights (NCPCR)

The National Commission for Protection of Child Rights (NCPCR) is a statutory body that was established in March 2007 under the Commissions for Protection of Child Rights (CPCR) Act, 2005. The commission comes under the administrative control of the Ministry of Women and Child Development.

Powers and Functions of the NCPCR

The powers and functions of the National Commission for Protection of Child Rights (NCPCR) are as follows:

  1. To examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation.
  2. To present to be central government, annually and at such other intervals, as the commission may deem fit, reports upon working of those safeguards.
  3. To inquire into violation of child rights and recommend initiation of proceedings in such cases.
  4. To look into matters relating to children in need of special care and protection, including children in distress, marginalized and disadvantaged children, children in conflict with the law, juveniles, children without family, and children of prisoners and recommend appropriate remedial measures.
  5. To spread child rights literacy among various sections of society and promote awareness of the safeguards available for protection of these rights through publications, media, seminars, and other available means. [3]

How to file a complaint before NCPCR?

The Commission takes Suo Moto cognizance into complaints relating to the violation of child rights and examines factors that inhibit the enjoyment of the rights of children.

The following things need to be kept in mind while filing a complaint before the National Commission for the Protection of Child Rights:

(a) The complaints must be made to the commission in any language as per the 8th Schedule of the Constitution of India.

(b) There shall be no fee payable for such complaints.

(c) The complaint filed should disclose the full scenario of the matter leading to the complaint.

(d) The commission must seek further information/affidavit as may be deemed necessary.

Definition of Child- Indian Perspective

Under the Indian perspective, the definition of a child is defined under various labour laws that prevent children from engaging in child labour practices, and his/her rights are not violated.

As per the Child Labour (Prohibition and Regulation) Act of 1986 – a child is defined as a person who has not completed 14 years of age. The act also prohibits employing children in 65 processes and 18 occupations that it views as hazardous, including beedi-making, tanning, and brick kilns.

As per the Plantation Labour Act 1951, a ‘child’ means a person who has not completed his 14 years of age. The Motor Transport Workers Act of 1961, and the Beedi and Cigar Workers (Conditions of Employment) Act of 1966, both define a child as a person who has not completed 14 years of age. [4]

As per the Juvenile Justice Act of 2015, a child is defined “as a person who has not completed eighteen years of age”. The Act classifies the term child into two categories, namely child in conflict with the law, and child in need of care and protection.

Definition of Child- Global Perspective

The system of law for juveniles is different in different countries. This is based on the stage of development, understanding, and even the law dealing with a juvenile in that country.

Juvenile Justice in the UK

Criminal activities by juveniles in the UK were one of the major concerns and thus to curb it down and reform the juveniles, stricter laws were implemented. The Children and Young Persons Act of 1993 was implemented. Section 16 of this Act provides that a person who is under the age of 10 should not be arrested.

For children who are in the age group of 10-14 years, it is presumed that they do not know the difference between right and wrong and therefore are incapable of committing a crime due to lack of mens rea.

The act also provides for a provision that a child may be only kept in police custody for 72 hours and as soon as possible the constable concerned should arrange for the investigation to take place. According to Schedule 6, para 19(b) of the Police and Criminal Evidence Act, a juvenile who has been arrested with a prior warrant should not be released.

Juvenile Justice in the USA

During the 19th Century, USA witnessed several reforms in the Juvenile Justice System. Major cities like New York and Chicago established Juvenile reforms schools with the aim that juveniles should be separated from adult hardened criminals.

The first juvenile court in the US was set up in the year 1899 in Illinois. After this within 25 years, most states established a juvenile court system. The age of majority varies from state to state but to maintain unanimity, 14 years of age is said to be the age of majority with exceptions in states like Vermont, Indiana, and South Dakota where a child of even ten years can be tried as an adult. In cases of commission of heinous crimes,    life imprisonment can be granted to a child aged twelve years. [5]

Comparative Study

Analyzing the laws relating to juveniles in India, the UK, and the USA, I am of the opinion that stricter policies with relation to juveniles exist in UK and USA in comparison to India. Both the countries, time and again, have strived towards reforming the juveniles and thus the crime rates committed in the UK and the USA are comparatively low as compared to India.

The Juvenile Justice Act of 2015 promulgated has failed to achieve the objectives of the United Nations Convention on the Rights of the Child. This act was neither able to reform the juveniles nor deter them from committing a crime. Thus, in my opinion, a separate legal system is required for countries like India to handles such criminal activities committed by juveniles and other problems related to juvenile delinquency.

The Juvenile Justice Act of 2015 has been criticized on the following grounds:

  1. In some cases, the juveniles are tried as adults for the wrongful acts committed by them but as the United Nations Convention on the Rights of the Child, every person below the age of 18 years is considered as a child and thus this provision serves as a contravention to the convention. It is also said that the 2015 act destroys the rehabilitative foundation of the existing juvenile justice system in India.
  2. The new act of 2015 discriminates against children based on their age and nature of the offence. It is also not based on the understanding that children cannot be held to the same standards of culpability as adults because of their developmental immaturity and their amenability to rehabilitative interventions.

Conclusion

The rising rates of juvenile delinquency and crimes committed by the juveniles are a pertinent issue today not only for India but for other countries as well and thus if India wants to curb such criminal activities at the hands of juveniles then a separate legal system for juveniles seems to be a feasible solution. The Juvenile Justice Act, despite undergoing several amendments, was neither able to reduce the crimes by juveniles nor was able to reform such juveniles effectively. Thus, to compete with countries like the USA and UK, stricter reforms need to be taken or lest the future generation is in grave danger which might lead to an outburst of future hardened criminals.


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