The Juvenile Justice(Care and Protection of Children) Act, 2015[1] is a comprehensive law to provide measures for protecting and sheltering abandoned, surrendered and orphaned children, protecting children who are victims of crime and investigating and prosecuting children who are involved in offences.
The protections granted by the JJ Act, 2015 is derived from the United Nations Convention on the Rights of the Child to which India is a signatory. Articles 16[2] and 40[3] of the Convention enshrined the principles of privacy and confidentiality in all proceedings relating to children while the convention strongly focusses on rehabilitation of the children in the mainstream without any stigma.
The Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted by India to conform with the obligations of India as a signatory to the United Nations Convention on the Rights of the Child which is also apparent from the preamble[4] of the legislation.
In the JJ Act, 2000, Section 21[5] provided for prohibition in publishing or revealing the name, address, school or other particulars & picture of juveniles in conflict with law (JCIL) or child in need of care and protection under act.
Section 19[6] of the JJ Act, 2000, provided for removal for disqualification attached to conviction, the intent being clear, any juvenile in conflict with law- whether convicted or not, should be permitted to be settled in the society; when the law does not treat the juvenile offender as a grown up adult; the other disqualifications which come in the way of rehabilitating the offender should be taken away by legislative action.
The scope and limitation of Section 19 of the JJ Act, 2000 can be understood from the pronouncements by various courts and tribunals specifically in matters relating to public employment.
The Bombay High Court in Kailas Sambhaji Lohakre Vs State of Maharashtra [7] had the opportunity to interpret and apply Section 19 of the Act. The Petitioner applied for joining the Indian Army and was successful. Upon verification of the character and antecedents, it was informed that the Petitioner was found guilty of the offences punishable under sections 324, 323, 504, 506 read with section 34 of the Indian Penal Code, 1860. The Army proceed to cancel his appointment on the ground of prior conviction.
The High Court in Kailas Sambhaji Lohakre(supra) while setting aside the order of removal held:
9. The Juvenile Justice (Care and Protection of Children) Act, 2015, (‘the Act of 2015’ for short) came into force on 1st January, 2016. Since the offences alleged against the petitioner were committed on 22-7-2010 and he has been dealt with by the Juvenile Justice Board on 15th January, 2011, he would be governed by the Act of 2002, which was in force at the relevant time. Even under the Act of 2015, there is an analogous provision in section 24 pertaining removal of disqualification attached to conviction of an offence of “a juvenile in conflict with law”, who is referred to as “a child in conflict with law” as per the Act of 2015.
10. As mentioned in the statement of objects and reasons of the Act of 2000, one of the objects is to rehabilitate the juvenile/child in conflict with law. The provisions of sub-section (1) of section 19 would provide the juvenile in conflict with law found guilty of an offence an opportunity to amend and regulate his delinquency. Removal of disqualification attached to a conviction of a juvenile in conflict with law would have the effect of opening the doors for him of a descent and disciplined civilized life. The order holding him guilty of an offence would not disqualify him from getting any job to which otherwise he would be legitimately entitled.
11. Sub-section (i) of section 19 of the Act of 2000 starts with a non-obstante clause i.e. “notwithstanding anything in any other law”. In the directive No. 33(d) it is mentioned that the candidate must submit an affidavit giving his personal details including the fact that he has not been ever convicted for any offence under law. The said clause cannot be used for disqualifying the petitioner for his enrolment in the Army on the ground that he was held guilty by the Juvenile Justice Board. Such disqualification has been specifically removed by the provisions of sub-section (1) of section 19 of the Act of 2000 and the non-obstante clause used therein would override directive No. 33(d) issued by respondent Nos. 3 and 4.,-Respondent No. 4, therefore, was not justified in cancelling the candidature of the petitioner for his enrolment in the Army on the ground that he was held guilty by the Juvenile Justice Board, Nanded. The letter dated 31st March, 2016, issued by respondent No. 4 cancelling candidature of the petitioner, in the above circumstances, is liable to be quashed and set aside. Respondent No. 4 will have to be directed to reconsider the candidature of the petitioner for enrolment into the Army on his own merits without being influenced by his conviction by the Juvenile Justice Board.
As seen from the above provision, it is for the Juvenile Justice Board to make an order directing that the relevant records of the conviction of the juvenile in conflict with law should be removed after expiry of the period of appeal. In the present case, besides the petitioner there are other accused persons involved in the offences alleged to have been committed on 22nd July, 2010. It is not known whether the trial against the co-accused of the petitioner has been conducted or not. The original record produced before the Juvenile Justice Board would be required to be produced before the Regular Criminal Court for conducting the trial against his co-accused. Therefore, it is necessary for the learned Principal Magistrate, Juvenile Justice Board, Nanded, to consider the question of removal of the concerned record of conviction of the petitioner and pass necessary orders keeping in mind the provisions of sub-section (2) of section 19 of the Act of 2000.
Similar reasoning has been followed by the CAT(Central Administrative Tribunal) in matters relating to recruitment to public employment in Satya Narayan Meena v. Union of India[8], Recruit Constable (Driver) Mukesh Kumar v. GNCT of Delhi[9] etc.
The Juvenile Justice Act, 2000 came to repealed and replaced by the Juvenile Justice Act, 2015 which retained the principles of Section 19 in Section 24 under the 2015 law while the Section 20 of the old act was replaced with Section 74 of the 2015 act.
What would be important to highlight here that a very vital additional was made to Section 74 which was acutely necessary; this was proviso to Section 74(1)[10] which mandated that the character certificate issued by the police would not include the past records of child in conflict with law. This would certainly assist in matters relating to further employment especially related to public employment with the Central & State Governments as well in armed forces and central police forces and police and other armed forces and would also obviate unnecessary litigation relating to non-disclosure of past juvenile criminal records by the candidates which would otherwise show up in the certificate issued by the local police.[11]
The provisions relating to non-disclosure of identity and removal/destruction of records provides with the necessary protection and confers privacy to the child in conflict with law and encourages rehabilitation of the child in conflict with law by permitting joining of the mainstream of the society. Such ameliorating provisions are indeed a welcome step in reformative, rehabilitative and protective statute such as the Juvenile Justice(Care and Protection of Children) Act, 2015.
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Repeals and replaces The Juvenile Justice (Care and Protection of Children) Act, 2000 w.e.f 15-01-2016 ↑
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Article 16
1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks.
https://www.ohchr.org/en/professionalinterest/pages/crc.aspx ↑
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Article 40
1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;
(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;
(vii) To have his or her privacy fully respected at all stages of the proceedings.
3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.
Article 41
Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:
(a) The law of a State party; or
(b) International law in force for that State.
https://www.ohchr.org/en/professionalinterest/pages/crc.aspx ↑
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An Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation 1[and for matters connected therewith or incidental thereto.]
Whereas the Constitution has, in several provisions, including clause (3) of article 15, clauses (e) and (f) of article 39, articles 45 and 47, impose on the State a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected;
And Whereas, the General Assembly of the United Nations has adopted the Convention on the Rights of the Child on the 20th November, 1989;
And Whereas, the Convention on the Rights of the Child has prescribed a set of standards to be adhered to by all State parties in securing the best interests of the child;
And Whereas, the Convention on the Rights of the Child emphasises social reintegration of child victims, to the extent possible, without resorting to judicial proceedings;
And Whereas, the Government of India has ratified the Convention on the 11th December, 1992.
And Whereas, it is expedient to re-enact the existing law relating to juveniles bearing in mind the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and all other relevant international instruments.
Be it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:– ↑
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21. Prohibition of publication of name, etc., of juvenile in conflict with law or child in need of care and protection involved in any proceeding under the Act
(1) No report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with law or a child in need of care and protection under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published:
Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile or the child.
(2) Any person who contravenes the provisions of sub-section (1), shall be liable to a penalty which may extend to twenty-five thousand rupees. ↑
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19 . Removal of disqualification attaching to conviction.-
(1)Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.
(2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be. ↑
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2016 SCC OnLine Bom 7355 : (2016) 6 Mah LJ 956 : (2017) 1 Bom CR 159 : (2017) 170 AIC 283 ↑
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2007 SCC OnLine CAT 1502 ↑
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2011 SCC OnLine CAT 1729 ↑
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Provided that for reasons to be recorded in writing, the Board or Committee, as the case may be, holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child. ↑
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Provisions do not apply to matters where matters are referred to Children’s Court for trial of the child as an adult. ↑
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