Maharashtra National Law University, Aurangabad

Optional I: Offences against Children & JJ Act, 2015 Project

On

Procedure in Relation to Children in Need of Care and Protection

under JJ Act

Submitted By:

SOUMIKI GHOSH

Roll No. 2018/BALLB/10

[B.A. LL.B (H). 4th Year, VIIIth Semester]

In

April, 2022

Under The Guidance Of

Dr. Abdul Hakeem & Adv. Priya Gondhalekar

Faculty of Optional I- Offences against Children & JJ Act, 2015

DECLARATION

1
I hereby declare that the project work in the B.A.LL.B (Hons.) Semester VIII Optional I:
Offences against Children & JJ Act, 2015 Project entitled ― “Procedure in Relation to
Children in Need of Care and Protection under JJ Act” submitted at Maharashtra National
Law University, Aurangabad is an authentic record of my work completed under the
supervision of Dr. Abdul Hakeem sir & Adv. Priya Gondhalekar ma’am. This work has not
been submitted for any other degree or diploma. I am solely responsible for the information
contained in my Project work. This work has not previously been submitted to any other
university, and it is not copied from any book or website.

SOUMIKI GHOSH

2018/BALLB/10

Maharashtra National Law University, Aurangabad

INDEX

2
TOPICS PAGE NO.
Introduction 4
Significance of the study 5
Objectives of the study 5
Methodology 5
Constitutional articles for children 6
International Mandates 6
CNCP 7-8
Procedures 9-13
Conclusion 14

INTRODUCTION

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Such children have been categorised into two categories under The Juvenile Justice Act,
2015. a. Children in need of care and protection, b. Children in conflict with law,1

And the government has made specific provisions for the welfare and well-being of such
children, such as the creation of Juvenile Justice Boards for children who have violate laws
and Child Welfare Committees for youngsters who require care and protection. These
authorities have full authority to make decisions in the best interests of the children.

In India, a child is defined as someone under the age of 18 years, with the exception of severe
crimes, in which case the age bracket of 16-18 years is also regarded an adult. On December
10, 1992, India accepted the United Nations Convention on the Rights of the Child. The
Ministry of Women and Child Development is India's most important ministry for children's
issues.2

The Juvenile Justice (JJ) Act of 2000 outlines the principles, institutions, processes, and
statutory bodies necessary to meet the basic requirements of children via effective care,
protection, development, treatment, and reintegration into society. The Juvenile Justice Board
(JJB), which deals with children who have violate laws, and the Child Welfare Committee
(CWC), which deals with children who need care and protection, are the two principal
statutory entities outlined by the JJ Act. The Integrated Child Protection Scheme (ICPS) and
Protection of Children from Sexual Offences (POCSO), 2012 establish further safety nets and
protection systems.3

SIGNIFICANCE OF THE STUDY

1
http://cara.nic.in/PDF/JJ%20act%202015.pdf
2
https://makeadiff.in/cncp
3
Ibid.

4
The study is helpful to understand the ins and outs of the scope and importance of JJ Act. It
also analyses the relevant sections of the Act and other relevant acts regarding children in need
of care and protection in India.

OBJECTIVE OF THE STUDY

This research project attempts to explain the current laws and the relevant judicial decisions
regarding the children in need of care and protection. The objective is to find out, understand
and elaborate the applicability of the laws in current judicial scenario.

METHODOLOGY

The research is descriptive and qualitative. The techniques comprised of utilizing different
textbooks, journals, research papers, database and websites. Various books on JJ Act helped
to understand the topic. Secondary and Electronic resources have been used to gather
information and data. SCC online and Manupatra have been used to look up on relevant
cases.

CONSTITUTIONAL ARTICLES FOR CHILDREN

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Equality before law and Equal Protection of law- [14]

Prohibition of discrimination [15]

Abolition of Untouchability [17]

Protection of life and personal liberty [21]

Right to education [21(A)]

Prohibition of traffic in human beings and forced labour [23(1)]

Prohibition of employment of children under 14 in factories, mines or any hazardous

environments [24]

Other important acts

The Guardian and Wards Act, 1890

The Child labour Act Act, 1986

The Prohibition of Child Marriage Act, 2006

INTERNATIONAL MANDATES

The rights of a child are those as enumerated under the United Nations Convention on the
Rights of the Child (UNCRC) including:

i) Protection against all forms of discrimination or punishment

ii) Right to life
iii) Right to a name, identity, and the right to acquire a nationality from birth
iv) The right not to be separated from their parents against their will
v) The Right to freedom of expression
vi) Right of the child to freedom of thought, conscience and religion
vii) Right of the child to freedom of association and to freedom of peaceful assembly
viii) The Right to be protected from all forms of physical or mental violence, injury or
abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual
abuse, while in the care of parent(s), legal guardian(s) or any other person who has
the care of the child.

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ix) The Right to appropriate protection and humanitarian assistance if the child is a
refugee
x) The right for mentally or physically disabled children to live a full and decent life in
conditions that ensure dignity, promote self-reliance, and facilitate the child's active
participation in the community
xi) The Right to the enjoyment of the highest attainable standard of health and to
facilities for the treatment of illness and rehabilitation of health
xii) The Right of every child to a standard of living adequate for the child's physical,
mental, spiritual, moral and social development
xiii) The Right to Education
xiv) Right to be protected from economic exploitation and hazardous work
xv) Right to protection from all forms of sexual exploitation and sexual abuse. 4

CNCP

According to Section 1 (14) of Juvenile Justice (Care & Protection of Children) Act 2015, a
child in need of care and protection means:

“ Child who is found without any home or settled place or abode and without any ostensible
means of subsistence;  who is found working in contravention of labour laws for the time
being in force or is found begging, or living on the street; or  Child who resides with a
person, whether a guardian of the child or not, and such person-  has injured, exploited,
abused or neglected the child or has violated any other law for the time being in force meant
for the protection of child;  has threatened to kill, injure, exploit or abuse the child and there
is a reasonable likelihood of the threat being carried out;  has killed, abused, neglected or
exploited some other child or children and there is a reasonable likelihood of the child in
question being killed, abused, exploited or neglected by that person;  who is mentally ill or
mentally or physically challenged or suffering from terminal or incurable disease, having no
one to support or look after or having parents or guardians unfit to take care, if found so by
the Board or the Committee;  who has a parent or guardian and such parent or guardian is
found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the
safety and well-being of the child; o  who does not have parents and no one is willing to

4
https://www.nipccd.nic.in/file/reports/kit17.pdf

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take care of, or whose parents have abandoned or surrendered him;  who is missing or run
away child, or whose parents cannot be found after making reasonable inquiry in such
manner as may be prescribed;  who has been or is being or is likely to be abused, tortured or
exploited for the purpose of sexual abuse or illegal acts;  who is found vulnerable and is
likely to be inducted into drug abuse or trafficking; or  who is being or is likely to be
abused for unconscionable gain;  who is victim of or affected by any armed conflict, civil
unrest or natural calamity;  who is at imminent risk of marriage before attaining the age of
marriage and whose parents, family members, guardian and any other persons are likely to be
responsible for solemnisation of such marriage.”5

PROCEDURES
5
Supra note 1.

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Production before the committee

Section 31 of the Juvenile Justice (Care and Protection of Children) Act, 2015, lays down
rules regarding who can produce the child before a committee :

 “it can be any public servant,

 it can be a child welfare officer or a probation officer,

 any police officer or special juvenile police unit or a designated Child Welfare Police
Officer or any officer of District Child Protection Unit or an inspector appointed under
any labor law for the time being in force,

 any social worker or any public-spirited citizen,

 Even the child himself has the capacity under the law to produce himself in front of a
committee.”
The most significant consideration in this scenario is that, regardless of who presents the
child in front of the committee, the action must be carried out strictly in line with the set
period, which is to present the child within twenty-four hours, excluding travel time.

Mandatory reporting

As mentioned in Section 32 (1) of the Juvenile Justice (Care and Protection of Children) Act,
2015, “anyone be it an officer, an individual, someone with an active association of an
organization, someone from a nursing home or a hospital, if they find or take charge of a
child who claims to be an orphan and says that she or he is without family support, shall give
the information to an authority who can take charge of it. The authorities to report can be
Childline services, nearest police station, Child Welfare Committee, district child protection
unit.”

It is reasonable to suppose that a child without a guardian would struggle to survive on their
own, which is why it is the responsibility of the state to ensure that the child is cared for in
any way feasible. Information regarding the situation will also be posted on a government-
specified website.

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Section 33 of the said Act states that, “if the information regarding the child is not given to
the responsible authorities within the specified time period by the person who has found or
has taken charge of the child as per the mention in Section 32 of the said Act, that would
constitute an offense according to this act.”

The penalty or the punishment for the above-mentioned offense is mentioned offense is given
in Section 34 of the Act, Section 34 says “that in case a person or individual has been found
guilty of committing the offense mentioned in Section 33, that person would be liable for
imprisonment for up to six months or a fine of ten thousand rupees could be imposed on that
individual, also in some cases, there might be an imposition of both.”

The punishment clause is included in the law to make individuals fear the repercussions and
to make them more cautious in following the regulations.6

Surrender of children

Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015, talks about the
surrender of children, Section 35 (1) of the Act says that “if a parent or a guardian of the child
wishes to surrender the child being it beyond their emotional, physical and social factors can
produce the child in front of a committee. As suggested by the framing of this section, it can
be extracted that it completely depends upon the parent or the guardian’s willingness if they
want to take their child to a committee or not.”

Section 35 (2) of the Act talks about “executing a surrender deed but only after the required
counseling of the parent or guardian.”

Section 35 (3) of the Act gives “the parent or guardian a period of two months to reconsider
their decision and see if they want to detract from it. While this period is given to the parents
to reconsider, the committee decides whether to allow the surrendering of the child or not. If
surrendering the child is allowed, he or she is either sent to a Specialised Adoption Agency in

6
http://www.legalservicesindia.com/article/2482/The-Juvenile-Justice-Care-and-Protection-of-Children-Act,-
2000-and-The-Juvenile-Justice-Care-and-Protection-of-Children-Act,-2015.html

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cases when the child is below six years, in cases above six years the child is sent to a
Children’s Home.”

Inquiry

When a child is brought before a committee under Section 31 of the act, the committee may
order an investigation and send the child to a children's home or any other location the
committee deems appropriate for the child; the subject of the investigation is specified under
Section 36 of the Act.7

It requires that “all the children who have surrendered or have appeared before the committee
and that they are under six years of age, should all be placed in a specialized adoption
agency. The time granted for social investigation is fifteen days and when the investigation
gets completed within that time, it gives the committee ample amount of time to pass the final
order within the four months of the child being brought before the committee.”

If the committee is convinced, based on the inquiry's findings, that the child is an orphan with
no family or support and is in need of care and protection, the committee may place the child
with a Specialised Adoption Agency or a foster family until other suitable options for the
child are discovered. The child is subsequently taken to the sentencing location for the
duration of the sentence or until she or he reaches the age of eighteen. The newly created
committee is required to give a quarterly report to the District Magistrate on the disposition
and status of cases, and if the committee is found to be failing to fulfil its responsibilities, the
state government will dismiss the committee and organise a new one. In the event that the
formation of a new Committee under subsection (5) is delayed, the Child Welfare Committee
of a nearby district will take over responsibilities in the interim.8

7
https://lexlife.in/2020/01/16/analysis-the-juvenile-justice-care-and-protection-of-children-act-2015/

8
https://vikaspedia.in/education/child-rights/living-conditions-in-institutions-for-children-in-conflict-with-
law/copy_of_general-principles-of-care-and-protection-of-children

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Passing of orders

Section 101 of the Act talks about the appeal that can be made, the requirement of this
Section is that “any person who is aggrieved or unsatisfied by the order that was passed by
the committee or the board can have the option of appealing to the children’s court within a
time frame of thirty days from the day when the order was passed. The appeal to the
children’s court, however, is limited and in cases when the aggrieved party wants to make an
appeal against a decision by the committee on Foster Care and Sponsorship After Care, then
the appeal needs to be filed at the District Magistrate.”

A child alleged to have committed an offence other than the heinous offence by a youngster
who has finished or is over the age of sixteen years cannot appeal from any decision of
acquittal given by the Board. Any other order made by the committee after determining that
the child does not require any type of care or protection under the act's provisions.

If an aggrieved person is still dissatisfied with the order after submitting an appeal in the
children's court, she or he can file an appeal with the High Court using the procedure outlined
in the Code of Criminal Procedure, 1973.

Procedure for declaring the child legally free for adoption

Only in circumstances where the child is an orphan or abandoned, the committee must make
every effort to locate the child's parent or guardian before making the child legally available
for adoption. After exhausting all reasonable attempts, if the committee is still unable to
locate the child's parent or guardian, the committee may declare the child legally free for
adoption under Section 38 of the Juvenile Justice (Care and Protection of Children) Act,
2015. At least three members of the committee must decide whether a kid is an orphan or has
been abandoned.

This investigation must be completed within two months of the child's presentation before the
committee. In the course of an investigation into an abandoned or surrendered child, no first
information report shall be filed against any biological parent.

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The committee will declare a child free for adoption if it is born to mentally impaired parents
or if it is unwanted by the victim of sexual assault. Because if the parents are mentally sick,
they will not be able to rear a child, and in the latter case, the child will most likely be a
burden and a reminder of the horrific deed perpetrated against the victim, making the
atmosphere unfit and unfriendly for the child.9

9
http://legislative.gov.in/sites/default/files/A2016-2_0.pdf

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CONCLUSION

In the case of K.V. Muthu v. Angamuthu Ammalxvii, a decision prior to the JJ Act, the
Indian Supreme Court dealing with eviction proceedings between a landlord and tenant had
to address the question of whether a foster son would be a member of a family. The Supreme
Court held that “a ‘foster child’ is essentially the child of another person but is nursed, reared
and brought up by another person as his own.” It held that “Care therefore in rearing up the
child need not always be parental” and that a child was brought up by foster parents with the
love and care that one usually receives from one’s family, the child would certainly be a
member of that family”.10

Many children are abandoned by their parents, many are run away from their homes, many
are trafficked, many are labourers, many are neglected, street children, children in conflict
with the law, and many are orphans, and so on. What about such children, who will take care
of such children, as every child has the right to thrive in a healthy and safe environment, the
right to a family, the right to education, the right to childhood, and so on.11 This is why the
legislation on children in need of protection and care is crucial from both judicial and social
perspective. The need of foster care should the next addressed issue by the judiciary.

10
K.V. Muthu v. Angamuthu Ammal Appeal (civil) 10538 of 1983
11
https://amity.edu/UserFiles/aibs/27acArticle-II%20(Page%2016-21).pdf

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