|VOLUME 1|ISSUE 2|APRIL 2018|ISSN: 2581-3595|​

VALIDITY OF THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015

AUTHORED BY: CHANDRASHEKHAR, B.B.A.LL.B, GALGOTIAS UNIVERSITY .

ABSTRACT:

The childhood is the most important stage of whole life where child learns from their surroundings, society. At this stage the children are required care, protection, development and so many essential things. The purpose behind the enactment of Juvenile Justice (Care and protection of Children) Act, 2015 is  clear that to provide care, development, social reintegration, child friendly approach while adjudicating their matters, rehabilitation to child those are in conflict with law and in need. The juvenile Justice Act, 2015 has changed the manner of treatment for the child of 16-18 years of age, having committed and understand the nature and consequences of such heinous offence. The constitution of India, 1950 that is the superior law in India and basic law of the land provides some provision which also talks about the care and protection of children and for this imposes power and duty upon the state. The Article in its first part deals with constitutionality of the Juvenile Justice Act, 2015 with respect to the various basic fundamental rights that are enshrined under Part III of the Constitution of India, 1950. These fundamental rights are Article 14, Article 15 (3), Article 20 (1) and Article 21. In its second part the article deals with Directive Principle of State Policy that is enshrined under Part IV of the Constitution and also under the preamble of the Act. These Directive Principles are Article 39 (e), Article 39 (f) etc. In its third part the article deals with the International Convention i.e. United Nation Convention on the Rights of the Child, 1992 and Declaration i.e. UDHR, 1948.

KEYWORDS: Fundamental Rights, Directive Principle of State Policy, United Nation Convention on Child Rights, Universal Declaration on Human Rights, Constitutionality.

INTRODUCTION:

The Juvenile Justice (Care and Protection of Children) Act, 2015 is created for the purpose to provide to child in conflict with law and child in need of care and protection by catering their basic needs through proper care, development, treatment, social reintegration by adopting a child friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through process provided. The Act is constitutionally valid and does not infringe the fundamental rights provided under the Constitution of India, 1950, Directive Principle of State Policy and also in consonance with the international obligations i.e. treaty, convention, declaration.

THE JUVENILE JUSTICE ACT, 2015 AND FUNDAMENTAL RIGHTS:

Article 15(3)[1] states that state can make special provision for women and children[2] and that will not be treated as violation of Art. 15but it should be constitutional and non-discriminatory in nature. As the object of Act that is enshrined in the Preamble is to provide care and protection, development, social re-integration to the children is in consonance with the Art 15(3) because Act provides special treatment of children those are in conflict with law and need in care like Section 14[3], 15[4], 18, 19[5], 22[6], 21[7], 110[8] of the J.J. Act, 2015. As the section 15 of the Act provides preliminary assessment of the child regarding his mental and physical capacity to commit the heinous offence, ability to understand the consequence of the offence and circumstance in which such offence committed. Only after such assessment the board will decide that whether the child should be treated as adult or not. Section 18[9] provides that on the satisfaction of board child will be provided reformation techniques irrespective of his age, offence. Section 19 talks about the decision of the children court on the preliminary assessment that is made by Board and some other assessment techniques of the child i.e.in conflict with law. Section 21 provides that no children will be provided death punishment and life imprisonment except in case of possibility of release. Section 20 provides that possibility of release will be provided when the child attains the age of 21 years and again preliminary assessment will be made. Thus after observing the objective of each above mentioned provision, it can be said that Juvenile Justice Act is in compliance and not in violation with the Art.15 (3)[10].

Article 14[11] provides that every person is equal before law and having equal protection of law within the territory of Indiana. It provides equal protection of law in equal circumstances.[12] There can be no differential treatment between the same group/ class but if the classification satisfies the two test then the differential treatment will be considered valid[13]. The two test are as follows: a) the legislation must have intelligible differentia[14] and b) the differential must have a rational relation to the object which ought to be achieved by the statute[15]. The both tests are present in the act and also satisfy them. In this Act, the child can be treated as adult only if they had committed the heinous offence under the 16 to 18 years and having physical and mental capacity to commit such offence, capability to understand the consequences of offence. In such case the child between the age of 16 to 18 years can be treated as adult therefore it can be said that first test i.e. intelligible differentia is present. The object of the Act is to rehabilitate the child. The provisions of section 15 apply a stricter approach on offender aged 16 – 18 years, having mental and physical capacity to commit heinous offence are liable to be rehabilitated by stricter provisions. Hence it can be said that both test are present as classification need not to be scientifically perfect or logically complete[16] and the classification can be made on the basis of nature of person.[17]

Article 20 (1)[18] of the constitution of Indiana, 1950 provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence[19]. The child can be punished with life imprisonment and death sentence as provided under section 21 of the J J Act, so if a child is punished with either of them punishment, it will not be violation of Art. 20(1).

Article 21[20] provides that no person shall be deprived of his life and personal liberty except procedure established by law[21]. The term “procedure established by law” means the procedure prescribed by the law of the state[22]. The procedure established by law must satisfy the three test, if any of them is not present then any procedure established by law will violate the Art. 21. The three tests are as follows: a) existence of an enacted law authorizing interference with the life or personal liberty[23]. The first test is satisfied because there is Juvenile Justice (Care and Protection of children) Act, 2015 is in existence and it authorizes by its provision to interfere with the life or personal liberty. The second test is that the law should be valid. Here the J J Act, 2015 is not having any arbitrary provision as juvenile justice system protects the juveniles from the regressive criminal law as they lack sufficient capability to understand the nature and consequences of the Act[24] and treats only to those child of 16 to 18 years as adult if they have committed heinous offence[25]. The third test is that the procedure must be followed in the case. The procedure as regarding the preliminary assessment (Sec.15) , check & balance by the children court (Sec.19), assessment after attaining the age of 21 years (Sec.20) and in last the appeal can be preferred (Sec. 101). Thus it can be said that all the three tests are satisfied so the procedure established by law is valid and the J. J. Act, 2015 is not infringing the Art.21.

THE JUVENILE JUSTICE ACT, 2015 AND DIRECTIVE PRINCIPLE OF STATE POLICY:

The preamble of the JJ Act, 2015 expressly mentions the Article 39 (e)[26], 39 (f)[27], 45[28], 47[29]. These are the Directive Principle of State Policy that imposes duty upon the state to keep in mind the welfare of the children while making any policy, law for the children because these Articles are specially made for the care and development of children. As Article 39 (e) mandates for state that health and strength of the children are not abused. Article 39 (f) provides that children must be given opportunities and facilities to develop in healthy manner and in condition of dignity and freedom and youth are protected against exploitation. Article 45 provides that the children must be provided early childhood care and education. Article 47 states that it’s the duty of the state to improve the level of nutrition, standard of living and to improve public health. These things fall under the ambit of human dignity[30] as mention under Article 21 of the constitution. The Supreme Court held that right to live includes the right to live with human dignity.[31]

THE JUVENILE JUSTICE ACT, 2015 AND INTERNATIONAL OBLIGATION:

The international treaty, convention are only binding upon India when the Parliament makes any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention ( Article 253[32]) and Article 51 (c)[33] mandates for state to respect the international law and treaty obligations.

The United Nation Convention on Rights of Child played an important role in enacting the Juvenile justice (Care and Protection of Children) Act, 2015. India became the member of this convention by way of accession on 11th December, 1992. The Juvenile Justice Act, 2015 is in compliance of this Convention. The Article 1[34] of UNCRC defines the term “child” that “ a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier. The first part of the definition is in full compliance in J.J. Act, 2015 because Section 2[35] clause 12 defines the child in same sense as in UNCRC. The second part of the Article 1 is present under sec. 15 of the Act, where the child of 16 to 18 years of age, committed heinous offence and having mental and physical capacity to understand the nature and consequence of the offence can be treated as adult after preliminary assessment is made by board for same. Article 37(a)[36] of the UNCRC states that no child shall be punished with life imprisonment or death sentence without possibility of release. This has been fully complied under section 21 of the Juvenile Justice Act, 2015. The Preamble of the UNCRC states that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth” this has been taken notice while enacting the J.J. Act, 2015 as it clearly mentions the Art. 39 (e),39 (f), 45 and 47 of the Constitution.

India is the member of the United Nation so due to being a member of the UN the Universal Declaration on Human Rights is also binding upon the India. Article 25[37] of UDHR provides that children must be provided special care and assistance. All children whether born in or out wedlock, shall enjoy the same social protection. Article 26 provides mandatory education for children. UDHR was passed by the General Assembly on 10th December, 1948.

 

[1]  The Constitution of India, 1950 Art.15(3)

[2]  Dattatreya Motiaram v. State of Bombay, A.L.R.. 1953 Bombay 311.

[3]  Juvenile Justice (Care and protection of Children) Act, 2015 Section 14

[4]  Juvenile Justice (Care and protection of Children) Act, 2015 Section 15

[5]  Juvenile Justice (Care and protection of Children) Act, 2015 Section 19

[6]  Juvenile Justice (Care and protection of Children) Act, 2015 Section 22

[7]  Juvenile Justice (Care and protection of Children) Act, 2015 Section 21

[8]  Juvenile Justice (Care and protection of Children) Act, 2015 Section 110

[9]  Juvenile Justice (Care and protection of Children) Act, 2015 Section 18

[10]  Anjali Roy v. State of West Bengal, A.L.R.. 1952 Calcutta 825-830

[11]  The Constitution of India, 1950 Art.14

[12]  State of Orissa v. Balram Sahu, A.L.R.. 2013 S.C. 33: 2002 SCW 4421; D.C. Bhatia v. Union of India, A.L.R.. 1925 S.C.C. 104

[13]  DD Basu’s, Shorter Constitution of India 81 (14th Edition 2009)

[14]  Chiranjit Lal chowdhuri v.  India and others, A.L.R.. 1951 S.C. 41

[15]   Gopi Chand v. Delhi Adminstration, A.L.R.. 1959 S.C. 609

[16]   Kedar Nath Bajoria v. State of W.B. AIR 1975 SC 404

[17]   Paduranga Rao v. A.P.P.S.C., AIR 1969 SC 268

[18]   The Constitution of India, 1950 Art.20(1)

[19]  M/S P.V. Mohammad Barmay Sons v. Director of Enforcement, AIR 1933 SC 1188

[20]  The Constitution of India, 1950 Art.21

[21]  Triveniben v. state of Gujrat, A.L.R.. 1969 SC 1335

[22]  Rosy and Another v. State of Kerala and ors., AIR 2000 SC 637

[23]  A.K. Gopalan v. Statev of  Madras, AIR 1950 SC 27

[24]  Maru Ram and ors v. Union of India and ors. AIR 1980 SC 2147

[25]   Subramaniam Swamy v. Raju, ALR (2014) 8 SCC 390

[26]  The Constitution of India, 1950 Art.39(e)

[27]   The Constitution of India, 1950 Art.39(f)

[28]  The Constitution of India, 1950 Art.45

[29]  The Constitution of India, 1950 Art.47

[30]  Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746

[31]  Maneka Gandhi v. Union of India, AIR 1978 SC 597

[32]  The Constitution of India, 1950 Art.253

[33]   The Constitution of India, 1950 Art.51(c)

[34]  The United Nation Convention on The Rights of The Child, 1992 Art. 1

[35]  The Juvenile Justice (Care and Protection of Children), 2015 Section 2

[36]  The United Nation Convention on The Rights of The Child, 1992 Art. 37(a)

[37]   The Universal Declaration  On Human Rights, 1958 Art. 25