JUVENILE OFFENDER VS OFFENCE

1. Context

2. Juvenile Justice (Care and Protection of Children) Act, 2015

• The Act was introduced and passed in Parliament in 2015 to replace the Juvenile Delinquency Law and the Juvenile Justice (Care and Protection of Children Act) 2000. One of the main provisions of the new Act is allowing the trial of Juveniles in the conflict to be determined. The nature of the crime, and whether the juvenile should be tried as a minor or a child, was to be determined by a Juvenile Justice Board. This provision received impetus after the 2012 Delhi gangrape in which one of the accused was just short of 18 years, and was therefore tried as a juvenile.
• The second major provision is with regards to adoption, bringing a more universally acceptable adoption law instead of the Hindu Adoptions and Maintenance Act (1956) and Guardians of the Ward Act (1890) which was for Muslims, although the Act did not replace these laws. The Act streamlined adoption procedures for orphans abandoned and surrendered children and the existing Central Adoption Resouce Authority (CARA) has been given the status of a statutory body to enable it to perform its function more effectively.

3. Why has the Juvenile Justice (Care and Protection Amendment) Bill, 2021 been brought by the government?

• Women and Child Development Minister Smriti Irani, who tabled the Bill in Rajya Sabha, said the changes, which give increased powers and responsibilities to District Magistrates, were being made to not only ensure speedy trials and increased protection of children at the district level, with checks and balances in place but to also speed up the adoption processes in the country.
• According to the amendment, District Magistrates, including Additional District Magistrates, can now issue adoption orders under section 61 of the JJ Act, to ensure the speedy disposal of cases and enhance accountability. Adoption processes were currently under the purview of courts, and with an overwhelming backlog, each adoption case could take years to be passed. This change will ensure that more orphans in need of homes, will be adopted faster.

4. How will the Child Welfare Committees be monitored?

5. What are the provisions empowering the DMs?

• With more powers, the District Magistrates (DMs), including Additional DMs (ADMs), can now issue adoption orders under section 61 of the JJ Act.
• DMs and ADMs will also monitor the functioning of various agencies under the JJ Act in every district.
• These include the Child Welfare Committees (CWCs), Juvenile Justice Boards, District Child Protection Units, and Special Juvenile Protection Units.
• The changes will ensure speedy trials and increased protection of children at the district level, and will also enhance accountability.
• Adoption processes are currently under the purview of courts. With an overwhelming backlog, each adoption case could take years to be passed.
• The DMs will also carry out background checks of CWC members to check for possible criminal backgrounds.
• This is to ensure that no cases of child abuse or child sexual abuse are found against any member before they are appointed.
• CWC members are usually social welfare activists with educational qualifications.
• The CWCs should report regularly to the DMs on their activities in the districts. 
• Concern- The DM is in charge of all processes in a district including all task forces and review meetings.
• So, it is felt that the too many responsibilities given to DMs under the amendment may not be given priority.

• Under the 2015 Act, offences committed by juveniles are categorised as heinous offences, serious offences, and petty offences.
• Most heinous crimes have a minimum or maximum sentence of 7 years, and juveniles between 16-18 years of age would be tried as adults for these.
• Serious offences generally include offences with 3 to 7 years of imprisonment.
• The 2021 Bill adds that serious offences will also include offences for which maximum punishment is imprisonment of more than 7 years, and minimum punishment is not prescribed or less than 7 years. 
• Presently, there is no mention of a minimum sentence in the JJ Act.
• So, Juveniles between the ages of 16-18 years could also be tried as adults for a crime like the possession and sale of an illegal substance.
• Such offences will now fall under the ambit of a "serious crime".
• The provisions thus ensure that children, as much as possible, are protected and kept out of the adult justice system.
• The Act also provides that offences against children that are punishable with imprisonment of more than 7 years, will be tried in the Children's Court.
• And offences with punishments of less than 7 years imprisonment will be tried by a Judicial Magistrate.

7. What is the need for Amendment now?

• NCPCR (National Commission for Protection of Child Rights) filed a report in 2018-19, surveying 7,000 childcare Institutions (CCIs or children's homes).
• Most of the institutions were found breaching the JJ Act regulations and children were found to be in unsanitary conditions in portacabins.
• CCIs fall under the CWC and the state child protection units, but they had very little oversight and monitoring.
• The new amendment is to address these concerns and see to it that no new children's home can be opened without the sanction of the DM.

8. Way Ahead