Analysis of Section 86(2) of the Juvenile Justice (Care & Protection of Children) Amendment Act, 2021

BY SHIVAM SHARMA

INTERN, H.K. LAW OFFICES

INTRODUCTION

Children are always attributed with innocence, beauty, and without a possibility of malignity in them. They are the torch bearers of our nation and hence they shall be treated equally as adults. Their life and liberty shall be considered as important as adult citizens of the nation. Our legislations pertaining to child rights are formed in the view of India’s obligation as one of the signatories of the Convention on the Rights of the Child, adopted in the UN General Assembly in 1989. That is how the Juvenile Justice (Care and Protection of Children) Act, 2015 came into existence. However, child related laws have undergone several changes but a real question remains whether these changes reflect the idea of the best interest of the child? Whether the law makers have consulted enough with the child rights experts, professionals and academics before amending the provisions of the law?  Why have the amendments passed during the period of world pandemic? In relation to that, recent amendment have been carried out where some provisions are changed such as section 86(2) of JJ Act 2015, in the year 2021, which makes a serious offence such as sale and procurement, trafficking of a child a non-cognizable but non-bailable offence, therefore, has sprouted a heated discourse around the nation.  Indeed, no clarification, a rational nexus, and a justification are provided for having such changes in the JJ Act. The author in this paper has tried to dig out the loopholes in the act which passed in considering the fate of children through amendment and why it violates our constitutional mandates as well as our international obligations. However, despite the fact that the act contains a number of changes, our scope of analysis is limited to section 86(2) of the act.

What does Section 86(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 say?

“Where an offence under this Act is punishable with imprisonment for a term of three years and above, but not more than seven years, then, such offence shall be cognizable, non-bailable and triable by a Magistrate of First Class.”

What does Section 86(2) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 say?

Where an offence under this Act is punishable with imprisonment for a term of three years and above, but not more than seven years, then, such offence shall be non-cognizable and non-bailable.”

What are the offences under section 86 constituted ‘serious offences’ are made non-cognizable?

Offences that have been made non-cognizable as a result of 2021 amendment are as follows;

i. Sale and procurement of children.

ii. Use of children for the purpose of begging.

iii. Exploitation of child employees.

iv. Using children for vending purposes.

v. Child smuggling or trafficking.

vi. Act of cruelty upon children staff of the Child Care Institutions (CCIs).

Analyzing the amendment of Juvenile Justice (Care and Protection of Children) Amendment Act, 2021

One of the goals of our legislatures is the deterrence of crime and transforming criminals into law-abiding citizens of this country. Therefore, we have classified criminals into different categories based on their age. Adult criminals have different laws whereas Juveniles have been covered under different laws. Punishments and compensations also varies with differences in the category.  

There has been a special attention given on the protection of child’s rights and that is how we had the Juvenile Justice (Care and Protection of Children) Act, 2015, which was created in accordance with the United Nations Convention for Child rights. 

The Juvenile Justice (Care and Protection of Children) Act, was passed in the parliament in 2015. The act contains two most important provisions: first, it allows the trial of juveniles who fall under the age group of 16-18 as adults, who are in conflict with the law. Secondly, it makes the scope of adoption laws wider where more universally accepted laws of adoption were incorporated within the JJ Act. However, that is not our central focus of this paper. So, what was the urgency of amending the act with regards to section 86(2)?  

Our legislatures have always believed that to achieve deterrence in society we need to have a stricter punishment when any offences are committed against children and hence the amendment was carried out, but, unfortunately, the amendment has lead to a controversy around the nation. 

Classification of offences are arbitrary and violates constitutional rights

Our laws are based on a rational nexus that tries to provide a conducive environment for everyone irrespective of age, gender, caste and status etc. However, there are some groups among us that are more vulnerable in society and hence, need special attention. Therefore, we have child-specific laws that are integrated in our daily life so as to protect our children from social evils. Needless to say, the classification of offences under the act is disregarding a general provisions of criminal jurisprudence such as CrPC and IPC, and seems to be a violation of the principle of equality, life and liberty enshrined under Article 14 and 21 of our Constitution respectively. Inter alia, it also contradicts the International Convention on the Rights of Child, which India is a signatory. 

What does general laws say, and why the amendment is in contrary?

Under the general provisions of Indian Penal Code, it has characterized certain offences as cognizable offences, if punishable with imprisonment for more than 3 years whereas offences less than 3 years are identified as non-cognizable offences. Similarly, in the first schedule of CrPC, under classification of offences which talks about the fact that some offences such as trafficking, exploiting children through begging etc., are cognizable offence. However, the classification made under the amendment is such that it is contrary to the above mentioned general provisions. It has negative repercussions as a result of the amendment, for instance, when a person commits an offence of sale and procurement of a child then that person can only be arrested by the police only if they get the permission from the Magistrate. On the other hand, if the same person has committed the same offence against an adult then the police can arrest without the orders from the Magistrate. Also, the fact that making these offences non-cognizable with non-bailable, is contrary to the logic and without a rational explanation and, thereby violating the constitutional right to life and liberty and, equality before the law.

Further, India is a signatory of Convention on the Rights of the Child. However, the amendment is in contravention to the very preamble of the convention that specifically says that all the members of the human family have to be given the equal and inalienable rights. But, in the present amendment a specific section of the society is treated differently than the rest of the sections.

This convention has also emphasized that every child has to be given a right to life and liberty and some rights can only differ when it is required for the best interest of the child, but unfortunately, the current changes would prove to be detrimental to the interest of children. Likewise, Article 37 of the convention says that when a child is deprived of liberty, there must be a prompt help from authority but the same has been denied under the current amendment as the authority (Police) has been given a limited power which in contrast the same an adult can enjoy. According to a data, over 33 lakh children are forced into begging and around 44,000 children are entrapped into gangs and hence their right to life and liberty is threatened as no police officers can initiate an investigation and arrest the offenders which results in undue and unjustifiable burden on victim to come forward and file a complaint in the state commission on protection of child rights for serious offenses.


CONCLUSION

Children are always attributed with innocence, beauty, and without a possibility of malignity in them. They are the torch bearers of our nation and hence they shall be treated equally as adults. Their life and liberty shall be considered as important as adult citizens of the nation. However, the amendment seems to dilute the juvenile justice system through reclassification of some offences making it non-cognizable, which are meant to be a cognizable under the general provisions of law. The need of hour is to reconsider the changes in the act with a proper deliberations and suggestions from professionals and child rights experts, that can only be a better recourse. 

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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