|
|
- JJA 2000 does not take into account lessons from law reform efforts
in other parts of the world including developing nations such as
Uganda and South Africa, or make serious efforts to incorporate the
provisions of the Child Rights Convention (CRC) that India has
ratified. For instance, the Board has the power to send the child to a
special home for a minimum period of not less than two years for a
child who is over seventeen and less than eighteen and in case of any
other juvenile till he or she ceases to be a juvenile.
This provision is in clear contravention of Art. 37(b) of the
Convention of the Rights of the Child, which notes that arrest,
detention or imprisonment of a child shall be used only as a measure
of the last resort and for the shortest appropriate period of time.
- The soul of the CRC is the notion that the child has the right to
participate in decisions that affect her (Art 12). This fundamental
principle has completely been ignored in the JJ Act 2000. If an
enactment were to implement Article 12, it would mean a radical
overhaul of existing ways of interacting with children. At every stage
in the interface between the child and the juvenile justice system,
space should be created for expression of the child's opinion.
So right from the point of arrest, to adjudication before the
competent authority to assessment by the authority to placement to
everyday living within the institutions set up under the juvenile
justice system, the child's opinion should not only be heard, but
given due weight in accordance with the age and maturity of the child.
In particular the protectionist understanding (which lets adults
decide what is in the "best interest" of the child)
underlying the juvenile justice administration would be subject to a
radical shift.
- The change in composition of the adjudicating authority seems a cursory
attempt at really changing the deeply custodial nature of the entire
juvenile justice system. If the state is serious about decriminalizing
the treatment of, if not the child in conflict with the law, then, at
least, the child in need of care and protection, it needs to bring about
changes at every level starting from the police.
- While the aim of minimizing the stay of the child in the juvenile
home and special home as conceptualized is laudable, there are serious
concerns as to whether restoration is the best solution. For instance,
in cases involving child sexual abuse, this solution can be ill conceived.
In the cases of children in difficult circumstances too (such as children
on the street, children engaged in sex work, etc.), restoration might
not be a solution.
- Yet, another concern relates to the fact that no safeguards have
been built into the procedures regulating adoption and foster care in
the Act itself, leaving it entirely to the discretion of states, which
have the power to make rules under the Act.
There can be no argument that our best minds and our most critical and
compassionate thinking must be at work while designing laws that are
meant for the care and rehabilitation of our children. In this
context, it is of deep concern that in an age when our knowledge
about wrongdoing has increased exponentially, and traditional
criminological approaches have been contested by explanatory
frameworks which locate the reason for wrongdoing in societal
structures, the Act bears no trace of any new thinking.
|
