Vedkumari JJ Act, 2015

Date and Time: 22 July 2020 16:25:00 IST
Job Number: 121665051
Documents (49)
1. 1.1 JUVENILE JUSTICE: CONCEPT AND PHILOSOPHY

Client/Matter: -None-
2. 1.2 NORMATIVE DEVELOPMENTS IN INDIA
3. 1.3 CONCLUSION
4. 2 Introduction to the Juvenile Justice Act 2015
5. 2.1 OBJECTIVES OF THE ACT
6. 2.2 BROAD SCHEME OF THE JJ ACT, 2015
7. 2.3 TITLE, ENFORCEMENT, AND EXTENT OF THE ACT
8. 2.4 DEFINITIONS
9. 2.5 GENERAL PRINCIPLES
10. 2.6 PROVISIONS FOR EFFECTIVE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT
11. 2.7 CONCLUSION
12. 3.1 HISTORICAL BACKGROUND
13. 3.2 CONSTITUTIONAL CHALLENGES
14. 3.3 CONSTITUTION OF THE JUVENILE JUSTICE BOARD
15. 3.4 RESPONSIBILITIES AND FUNCTIONS OF POLICE
16. 3.5 PLACEMENTS DURING PROCEEDINGS
17. 3.6 BAIL TO CHILDREN IN CONFLICT WITH LAW
18. 3.7 PROCEDURE TO BE FOLLOWED BY THE BOARD
19. 3.8 SPECIAL PROCEDURES
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20. 3.9 INQUIRIES BY THE BOARD IN RELATION TO CHILDREN IN CONFLICT WITH LAW
21. 3.10 CHILDREN’S COURT
22. 3.11 CONCLUDING OBSERVATIONS
23. 4.1 INTRODUCTION
24. 4.2 CONSTITUTION OF THE CHILD WELFARE COMMITTEE
25. 4.3 POWERS, FUNCTIONS, AND RESPONSIBILITIES OF THE COMMITTEE
26. 4.4 PROCEDURE OF THE COMMITTEE RELATING TO CHILDREN IN NEED OF CARE AND
PROTECTION
27. 4.5 INQUIRY
28. 4.6 ORDERS
29. 4.7 ADOPTION
30. 4.8 CONCLUSION
31. 5 Residential Care
32. 5.1 COMPULSORY REGISTRATION OF CHILD CARE INSTITUTIONS
33. 5.2 SERVICES IN INSTITUTIONS
34. 5.3 INSPECTION
35. 5.4 INSTITUTIONAL CARE
36. 5.5 COMMUNITY BASED RESIDENTIAL CARE
37. 5.6 OBJECTIVES OF INSTITUTIONS FOR CHILDREN
38. 5.7 SPONSORSHIP
39. 5.8 AFTERCARE
40. 5.9 MISCELLANEOUS
41. 5.10 CONCLUDING OBSERVATIONS
42. 6 Offences Against Children
43. 6.1 OFFENCES UNDER THE JJ ACT, 2015
44. 6.2 CONCLUSION
45. 7 Miscellaneous Provisions
46. 7.1 CRITICAL ISSUES
47. 7.2 COMMON PROVISIONS
48. 7.3 MISCELLANEOUS
49. 7.4 CONCLUDING REMARKS
1.1 JUVENILE JUSTICE: CONCEPT AND PHILOSOPHY
Ved Kumari: The Juvenile Justice (Care and Protection) Act 2015: Critical Analysis, 1st ed
Ved Kumari
Ved Kumari: The Juvenile Justice (Care and Protection) Act 2015: Critical Analysis, 1st ed > Ved
Kumari: The Juvenile Justice (Care and Protection) Act 2015: Critical Analysis, 1st ed > 1
General Introduction
1 General Introduction

The phrase “juvenile justice” is generally understood as referring to laws governing children committing offences
even though, technically speaking, juvenile justice has always taken note of children in need of care and protection
in India with the first legislation enacted in 1850. The Apprentices Act 1850 applied to children below the age of 15
years found to have committed petty offences and vagabonds. Since the enactment of the Children Acts which
began in 1920, neglected children have always been included in all the legislations. Their nomenclature changed to
neglected juveniles in the Juvenile Justice Act 1986 and they have been referred to as children in need of care and
protection since the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as JJ Act,
2000). The phrase “juvenile justice” in the narrow sense refers to post-delinquency procedures but in its wider
sense covers children at the per-delinquency stage also. The rationale for inclusion of both categories has been
that neglected children are more likely to commit offences unless taken care of. Most children who commit offences
were not taken care of by either their families or the State before they ended up committing offences.
There have been two streams of thoughts for dealing with children committing offences as opposed to adults
committing offences. The first emanates from the doctrine of parens patriae and the second from the concept of
mens rea. No human child may survive and develop into an adult unless properly taken care of. Usually the natural
parents and family are expected to take care of their children. However, when they fail, the State steps in the shoes
of the parents and family to provide the same care and protection as their own parents and family should have
provided for them. From this perspective, the legal safeguards required to be secured for adults committing
offences are not needed to be included in the system as the magistrate and the courts are expected to secure the
best interest of children who are presented before them. The children’s courts as initially established in America,
were constituted with this philosophy and approach and did not provide for any legal safeguards like right to a
lawyer, written notice, cross-examination, appeals, etc. Mens rea approach, on the other hand provided for a
special procedure for children on the understanding that their mind is not as mature as that of an adult offender and
they cannot be dealt with in the same manner as the adults. Following this understanding, the English courts
established separate children’s courts but did not do away with the legal safeguards.
There are two other approaches that have further influenced the legal norms. One is the welfare approach to
children and the other is the rights approach. The welfare approach is paternalistic and is focused on ensuring care
to children which is commensurate with the ability of the State to provide it. It does not obligate the State to take any
positive measures for the safety, survival and development of each child. It does not think of children as right-
holders but only as recipients of what the State may provide for them out of good will and being a welfare State.
The Geneva Declaration on the Rights of the Child adopted by the League of Nations in 1924 is the first
international instrument recognizing the fact that children too have rights. The Geneva Declaration1 was adopted on
behalf of men and women of all nations recognizing “that mankind owes to the Child the best that it has to give”
declaring and accepting that it is their duty that, beyond and above all considerations of race, nationality or creed:
(1) The child must be given the means requisite for its normal development, both materially and spiritually;
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(2) The child that is hungry must be fed; the child that is sick must be nursed; the child that is backward must
be helped; the delinquent child must be reclaimed; and the orphan and the waif must be sheltered and
succored;
(3) The child must be the first to receive relief in times of distress;
(4) The child must be put in a position to earn a livelihood, and must be protected against every form of
exploitation;
(5) The child must be brought up in the consciousness that its talents must be devoted to the service of fellow
men.
The Geneva Declaration was followed by the Declaration of the Rights of the Child proclaimed by the General
Assembly of the United Nations in 1959.2 This declaration became the basis for adoption of the UN Convention on
the Rights of the Child3 30 years later by the UN General Assembly in 1989. In the area of juvenile justice, it began
to be recognized with the decision of the American Supreme Court in re Gault4 that children committing offences
were getting neither the safeguards contained in the criminal justice system nor the promise of care and welfare
offered by the juvenile justice system. Thus, began the era of recognition that children also have rights in the United
States. In India, the laws regulating juvenile justice did not allow the child to have a lawyer before the children court
as a matter of right. Similar provision in the Suarashtra Children Act was struck down by the High Court in Kario
alias Mansing Malu v State of Gujarat in 1969,5 as being unconstitutional. India formally recognised that children
have rights by signing the Convention on the Rights of the Child (hereinafter referred as CRC) in 1992. As the
Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted with the specific purpose of bringing the
law relating to the child in consonance with the CRC and various other international instruments, the interpretation
and implementation of this Act needed to be assessed from the perspective of rights of the child and not just as a
welfare measure by the State.
1 Available at http://www.un-documents.net/gdrc1924.htm, last visited on 11 September 2016.

2 Available at http://www.unicef.org/malaysia/1959-Declaration-of-the-Rights-of-the-Child.pdf, last visited on 11
September 2016.
3 Available at http://www.ohchr.org/en/professionalinterest/pages/crc.aspx, last visited on 11 September 2016.
4 (1967) 387 US 1.
5 (1969) 10 Guj LR 60.
End of Document
1.2 NORMATIVE DEVELOPMENTS IN INDIA
Ved Kumari

1.2.1 1850–1919
The Apprentices Act 1850 initiated differential treatment of children by providing for binding over of vagrant children
and children committing petty offences below the age of 15 years as apprentices instead of sending them to jail.
1898 saw enactment of Reformatory Schools Act, which provided sending children below 15 years of age to
Reformatory Schools instead of prison, if found suitable. Pursuant to the recommendations of the All India Jail
Committee 1919–1920, the era of Children Acts began in 1920 which extended the segregation of children accused
of committing offences at the adjudication stage by establishing separate children courts. All these Children Acts
provided for sending the children to remand homes but also permitted sending children to jail in exceptional
circumstances. Eight states enacted the Children Acts on similar lines but the States passing the Children Act
chose different cut-off age for defining the child under these Acts.
1.2.2 Children Act 1960
Since independence of India in 1947, Parliament passed the first legislation on the subject, namely, the Children
Act 1960. This was passed as a Model legislation to be followed by other States and was actually replicated in all
the states that enacted their Children Acts after 1960. There were eight Children Acts in operation in different
States6 prior to the passing of the Children Act 1960. There were some major differences in the two sets of
legislations, namely, pre-1960 and post-1960 Children Acts. In the pre-1960 Children Acts,
(1) The age at which a person was declared as a child varied but it was the same for boys and girls in contrast
to post-1960 Children Acts in which a child was defined as a boy below the age of 16 years and a girl
below the age of 18 years;
(2) The children’s courts were to deal with children committing offences as well as neglected children. In the
post-1960 Children Acts, two adjudicatory bodies were established, namely, children’s courts (consisting of
a bench of two magistrates) to deal with children committing offences and child welfare committees to deal
with neglected children;
(3) Children committing serious offences could be sent to prison if the magistrate found that it was not in the
interest of child or other inmates that they be kept in the special home. The post-1960 Children Acts
prohibited keeping of any child in any circumstance in police station or in jail.
(4) Children kept in residential homes were separated by reference to age (below 12 years and above) and
stage of proceedings (remand homes during pendency of proceedings and children homes pursuant to the
direction of the children’s court). In the post-1960 Children Acts, three kinds of institutions were
established, namely, Observation Homes to keep children during the pendency of proceedings before the
Children’s Courts or Child Welfare Committees; Children Homes for keeping neglected children pursuant to
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the direction of the Child Welfare Committee; and Special Homes for keeping delinquent children pursuant
to the direction of the Children’s Courts.
The Children Act 1960 was extended only to the Union Territories as its subject matter at that point was perceived
to fall within the State List of the Seventh Schedule of the Constitution of India. The most remarkable departure
made by the Children Act 1960 from all the earlier Children Acts passed earlier by the States was the complete
prohibition of use of police station or jail under any circumstances for children covered within its purview and it was
followed by all the Children Acts passed after 1960.
1.2.3 Juvenile Justice Act 1986
In 1983, Sheela Barse, a journalist filed the writ of habeas corpus in the Supreme Court seeking release of 1400
children lodged in various jails in India despite the prohibition against use of police station or jails under various
Children Acts.7 During the pendency of this petition, the Supreme Court recognised that there was a differential cut-
off age defining the child in different Children Acts in force in different parts of India which were violating the
fundamental right to equality before law and equal protection of law to all children ensured by India’s Constitution.
Hence, it was pointed out in one of its orders that it would be better to have a uniform legislation for the whole
country. Pursuant to this direction, Parliament passed the first uniform legislation for the children applicable to the
whole of India, namely, the Juvenile Justice Act 1986 (hereinafter referred to as the JJA 1986). It substantially
followed the scheme of the Children Act 1960 but substituted the word “child” by “juvenile” perhaps influenced by
the recently adopted United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985
(known as the Beijing Rules) by the General Assembly. Use of Police station or jail at any stage and under any
circumstance for keeping girls below the age of 18 years and boys below the age of 16 years became illegal with
the enforcement of the JJA 1986 in the whole of India except the State of Jammu and Kashmir. The JJA 1986 was
later adopted by the State of Jammu and Kashmir also.
1.2.4 Juvenile Justice (Care and Protection of Children) Act, 2000
When India signed and ratified the United Nations Convention on the Rights of the Child in December 1992, it was
considered essential to adopt the uniform cut off age of 18 years for both girls and boys in conformity with the
definition of child in the CRC. The JJA 1986 was repealed and replaced by the Juvenile Justice (Care and
Protection of Children) Act, 2000 (hereinafter referred to as the JJ Act, 2000) which came into force on 1 April 2001.
The Statement of Objects and Reasons for the JJ Act, 2000 specified that it was enacted to bring the operations of
juvenile justice in conformity with the Convention on the Rights of Children and other United Nations Instruments
signed by India. The JJ Act, 2000 defined juvenile as a person who has not completed the age of 18 years. An
important change was introduced in the constitution of the Juvenile Justice Board (called Juvenile Court under the
JJA 1986), which was to deal with children in conflict with law. It was constituted by a bench of one magistrate and
two social workers. This clearly was a big shift from legal to social orientation of the judicial body. In case of
difference of opinion, the two social workers could override the single judicial magistrate. There was not much
change in the basic structure of the bodies and institutions created under the JJ Act, 2000 in comparison with the
JJA 1986.8
For expeditious and efficient implementation of the JJ Act, 2000, the Central Government framed Model Rules in
2001. These Model Rules were held to be not binding on States by the Supreme Court in Pratap Singh’s case.9
1.2.5 The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006
The civil society played a key role in keeping the focus on the JJ Act, 2000 through social action litigation as well as
through other measures. Continuous monitoring of the problems faced in proper implementation of the JJ Act, 2000
by civil society led to wide scale and crucial amendments in the JJA in 2006 setting at rest many a legal issues that
had been agitated in various cases before the Supreme Court and the High Courts.10 The most significant changes
introduced in 2006 were the amendments made in sections 2(l), 20, 64 and 68 and insertion of new sections 1(4)
and 7A.
Insertion of sub-section (4) to section 1 gave overriding effect to the provisions of the JJ Act, 2000 over the contrary
provisions in any other law for the time being in force.11 This change set at rest the cases in which applicability of
the JJA 1986 to the child who had committed an offence under special legislations like the Terrorist and Disruptive
Activities Act (hereinafter referred as TADA), Prevention of Terrorism Act (hereinafter referred as POTA), Narcotics
Drugs and Psychotropic Substances Act (hereinafter referred as NDPSA) providing for special courts and
procedure for such offences, was challenged.12
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The relevant date on which the child alleged to have committed an offence should be a child, had been subject of
continuous litigation and had resulted in different dates being prescribed by different courts. The matter was
examined by the Supreme Court on at least three prior occasions13 before the five judge bench in Pratap Singh14
finally determined the question and held that the age at the time of commission of the offence decided the
applicability of the Act. The amended definition of “juvenile in conflict with law” clearly provided that it “means a
juvenile who is alleged to have committed an offence and has not completed 18 year of age as on the date of
commission of such offence.”15
Section 7A was inserted to lay down the procedure for age determination and it in most clear terms provided “that a
claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of
the case”. This provision set at rest the differential approach followed in different cases by courts sometime
permitting and at other times refusing the plea of juvenility when raised at a subsequent stage.
The Supreme Court in Pratap Singh’s Case had given a narrow interpretation to section 20 of the JJ Act, 2000
which had provided for application of the JJA to pending cases by holding that the JJ Act, 2000 was to apply to the
pending case of a boy who was above the age of 16 years but below the age of 18 years if such boy remained
below the age of 18 years on the date on which the JJ Act, 2000 came into force, i.e., 1 April 2001. The
explanation16 added to sections 20 squarely overrode that decision.
In view of Pratap Singh decision, section 64 that laid down provision for release of persons under going
imprisonment if they were above 16 but below 18 years of age on the date of commission of offence in accordance
with the JJ Act, 2000 would have been subject to similar narrow applicability. The explanation added to section 6417
expanded the scope of that Section to also apply to all cases of children who were above the age of 16 but below
18 years on the date of commission of offence, irrespective of their age on the date of coming into force of the JJ
Act, 2000.
Rules framed under the parent Act are the key to its implementation. The JJ Act, 2000 had authorized the States to
make Rules but many States did not framed their Rules under the JJ Act, 2000. The Central Government had
framed the Model Rules to be followed by the States as early as 2001 but they were declared to be not binding on
the States by the Supreme Court in Pratap Singh’s case. In order to overcome this difficulty, section 68 of the JJ
Act, 2000 was amended and it not only authorised the Central Government to make Rules but declared them to be
binding on the States till the States framed their own Rules.18 The Rules framed by the States were also directed to
be in accordance with the Central Rules as far as possible. Pursuant to the amendment, the Central Government
framed fresh Model Rules in 2007.
1.2.6 The Juvenile Justice (Care and Protection of Children) Amendment Act 2011
Another amendment was introduced in the JJA in 2011 to provide for inclusive and non-discriminatory practices
relating to children suffering from leprosy, TB, mental and other disabilities.
Despite enactment of two Central Acts governing the field of juvenile justice in 1986 and 2000 applicable to the
whole of India expanding the scope of protection for children post Sheela Barse, the state of their implementation
remained lackadaisical. The Supreme Court was approached again through two writ petitions filed in public interest,
namely, Bachpan Bachao Andolan19 and Sampurna Behrua20 seeking direction for implementation of the JJ Act,
2000. Bachpan Bachao Andolan was filed “in the wake of serious violations and abuse of children who are forcefully
detained in circuses, in many instances, without any access to their families under extreme inhuman conditions.”
Sampurna Behrua was filed in view of the non-implementation and mal-implementation of the JJA. These social
action litigations resulted in various orders by the Supreme Court for better implementation of the JJA. The
Supreme Court roped in other bodies like the National Commission for Protection of Child Rights, National Legal
Services Authority and State Legal Services Authorities for coordinating and cooperating in implementing various
provisions of the Act. It impleaded the National Commission for Protection of Child Rights21 and National Legal
Services Authority22 as parties to report on implementation of the Act and to seek appropriate directions in the
matter. The State Legal Services Authorities were directed “to coordinate with the respective Child Welfare
Departments of the States to ensure that the Juvenile Justice Boards and Child Welfare Committees were
established and were functional with the required facilities.”23
Not much changed in the way the JJ Act, 2000 was getting implemented as various directions of the Supreme Court
in these cases gave one the feeling of déjà vu. The pattern of reports and the manner of implementation was not
much different than it was in Sheela Barse’s case24 when the Supreme Court had passed many orders to ensure
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implementation of the JJA 1986.25 The only difference that could be noticed was that this time the State seemed to
be also pitching in with its Integrated Child Protection Scheme 2009–10. In the Standing Committee Report on the
Juvenile Justice Amendment Act 2010, it was reported that:
In order to facilitate the setting up of these institutions, the Ministry started a new composite scheme ‘Integrated Child
Protection Scheme’ in 2009-10. Since then Juvenile Justice Boards and Child Welfare Committees have been set up in 511
and 493 districts respectively. The Secretary assured that the Integrated Child protection Scheme when implemented as
envisaged would facilitate the implementation of the Act.26
However, it may be noted that the numerical figures of implementation given by the government in these cases
were not focused on the functioning of the bodies constituted or established under the Act and the quality of
services provided by them. It was the acknowledged position of the Government itself that the quality of care in
Homes needed significant improvements in relation to “provision of adequate and trained staff; improvement in
quality of infrastructure; provision of special care for special needs children; provision of age appropriate education
and suitable vocational training and a focus on non-institutional care.”27 The order of the Supreme Court in
Bhachpan Bachao Andolan contained in details the various maladies in the functioning of the JJA.28
The Report of Justice Vineet Saran29 regarding his visit to the Observation Home in Faizabad also revealed the
sorry state of affairs in the Home:
65 children from districts Faizabad, Sultanpur and Barabanki were lodged in this Observation Home. ... The space was so
inadequate that the children appeared packed tightly together in front of the T.V. like fish in a tin of sardines. Apart from that
there was only one small court yard for the children to move about, which was too small to play in. When we asked the
children to retire to their places during the inspection, the children hardly moved from the spot as there was no place for
them to go. The three toilets were also giving out a very foul smell, as they had no ventilation or exhaust fan; though it may
have been cleaned somewhat as information about the visit had been sent in advance.
He further found that children were kept in observation homes for long times even for petty offences. He noted:
Not only were children who have been involved in major cases under sections 302, 304, 376, 307, 304 B or 377 IPC etc
lodged in the Observation Home, but there were also a large number of children who were incarcerated in the homes for
petty offences under sections 379/411 for stealing mobiles or a water taps (toti) etc., ordinary marpit, molestation or
trespass or criminal intimidation, or SC/ST Act cases, and petty cases under the Railways Act. Thus one child Anil was in
the Gorakhpur home since 4.7.09 for an offence u/s 145 of the Railways Act (nuisance and drunkenness, punishable with a
maximum sentence of 6 months, even for adults). The ostensible reason, his address at Jhansi had not been traced.
The issue of implementation of the Juvenile Justice Act found place on the agenda of the Chief Justices’
Conference too. In 2009, it reiterated the Resolution made at the Chief Justices’ Conference of 2006, namely,
(a) That High Courts will impress upon the State Governments to set up Juvenile Justice Boards, wherever not set-up. The
Chief Justices may nominate a High Court Judge to oversee the condition and functioning of the remand/observation
homes established under the Juvenile Justice (Care and Protection of Children) Act, 2000.
(b) The Chief Justices of the High Courts will expedite the matter with the respective State Governments for setting up of
Juvenile Justice Boards, wherever they have not yet been set up.
(c) The Chief Justices of the High Courts will nominate a Judge to make periodical visits to Juvenile Homes, wherever set
up, and the learned Judge may suggest remedial measures for the betterment of the conditions of the juvenile homes and
inmates.
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(d) Hon’ble the Chief Justice of India is requested to take up the matter at the Joint Conference of Chief Ministers and Chief
Justices to be held on 16 August 2009.
Pursuant to this Resolution, each High Court constituted a Juvenile Justice Committee to oversee the
implementation of the JJA providing further impetus to its implementation and check on the quality of services
provided under it. In Delhi, the meetings of this Committee were held once every two months. One of the visible
consequences of its deliberations had been the establishment of three JJBs in view of the pendency of large
number of cases relating to children before the single JJB in Delhi. The High Court of Delhi had taken suo motu
cognisance of many matters concerning violation of children’s rights from the news reports or letters sent to it by
social workers, in addition to many writ petitions filed by various NGOs. These matters included police practice of
compelling and forcing children to give statements and then using them before the JJB;30 trafficking of children by
placement agencies;31 attacks on NGO during rescue of child labour;32 missing and run away children;33 and home
for pregnant and lactating women.34
The Juvenile Justice Committees still exist in each High Court and it is expected that they will continue to provide
the leadership and supervisory role on the implementation of the current Juvenile Justice (Care and Protection of
Children) Act 2015.
1.2.7 The Juvenile Justice (Care and Protection of Children) Bill 2014
The most note-worthy feature of all the enactments since1850 has been that they were all moving in one direction
of bringing an increasing number of children within the protective umbrella of juvenile justice. However, the gang
rape of a Delhi girl, Jyoti Pande (named Nirbhaya by media) on 16 December 2012 resulted in social media
organised spontaneous protests against the gruesome rape. It resonated in different parts of India. Soon media
coverage shifted the focus from women’s safety to the involvement of a 17 year old child in this gang rape. The
newspapers and multi-media screamed with flashing headlines that the “juvenile” was “the most brutal” among all
the accused in this rape. The media created and promoted the frenzy around this lie despite having published itself
that the order of the JJB had categorically noted that neither the victim woman nor her male friend in various
statements made to different persons had singled the juvenile out as being the most brutal.35
Despite the passing of the Criminal Law Amendment Act 2013, aimed at making the rape law more stringent, the
media continued to highlight every single case in which a child was involved and propagating the myth that
“juveniles” were going scot free under the JJA despite committing serious offences. Newspapers and multi-media
flashed more lies of 50% increase in juvenile crime, 60% increase in sexual offences by children, etc., undermining
the National Crimes Record Bureau statistics showing that there had been no increase in juvenile crime and that
majority of sexual offences were the result of consensual sex36 counted as statutory rape with the raising of the age
of consent by the Protection of Children against Sexual Offences Act 2012 and widening of the definition of rape in
the POCSO Act37 as well as in the Indian Penal Code by the Criminal Law (Amendment) Act, 2013.38 Even petitions
were filed in the Supreme Court challenging the constitutionality of definition of child39 and for lowering of cut-off
age for defining child40 but were dismissed by the Supreme Court with cogent reasoning.
Despite all these developments, the Juvenile Justice Bill 2014 was introduced in Lok Sabha on 8 August 2014
taking a big step backward41 introducing the possibility of sending 16–18 year old children to jail in exceptional
circumstances. This position was the same as was contained in 1920s in the Children Acts passed by various State
Governments which permitted selective transfer of children to jails while usually they should be kept in the remand
homes for children. In 2014–16, the Government in proposing and ensuring its passing by the Parliament, chose to
ignore all the knowledge produced in the last 100 years in fields like criminology, penology, psychology, psychiatry,
social behvioural sciences, and more significantly the findings of the neuro-scientists regarding the adolescent brain
which changed the direction of juvenile justice in America since 2005. In the year 2005, the team of neuro-scientists
led by Laurence Steinberg42 presented uncontroversial evidence through brain scans, etc., that the adolescent brain
was substantively different from that of children and adults in its structure and functioning. They successfully argued
that treating adolescents as adults was unconstitutional being against the guarantee of equality. The evidence was
accepted by the United States Supreme Court leading it to declare imposition of death penalty for any offence
committed by a person during their juvenility as unconstitutional in Roper v Simmons.43 The American Supreme
Court gave the following three reasons for holding so:
(1) “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in
adults and are more understandable among the young.”
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(2) “juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer
pressure.”
(3) “the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are
more transitory, less fixed.”
Imposition of life imprisonment without the possibility of release for all non- homicide offences was declared by the
American Supreme Court to be unconstitutional in 2010 in Graham v Florida.44 This punishment was declared to be
arbitrary and unconstitutional as it prevented children to produce any evidence of their growth and maturity. In Miller
v Alabama,45 the American Supreme Court abolished life imprisonment with parole for all offences by children
below the age of 18 years. Many groups and individuals including the American Psychological Association, the
American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the Council of
Juvenile Correctional Administrators, the American Bar Association, mental health professionals, former juvenile
court judges, criminologists, victims, and national advocacy organizations filed amicus briefs in these cases to urge
the Court to give children an opportunity to have their sentences reviewed later in life.46 Various reports on the
impact of trial of children as adults in the United States in the last 25 years have shown that children tried as adults
and sent to adult prisons committed more offences in their later life compared to children treated within the juvenile
justice system.47 “Studies have found that young people transferred to the adult criminal justice system have
approximately 34% more re-arrests for felony crimes than youth retained in the youth justice system.”48 “Around
80% of youth released from adult prisons reoffend often going on to commit more serious crimes.”49
The JJ Bill 2014 was uploaded on the Ministry of Women and Child Development on 18 June 2014 inviting
comments within a short period of 15 days.50 Various concerned groups and individuals sent their comment
supporting or opposing the Bill. These comments have not been uploaded on the Ministry’s website and no
changes were made in the JJ Bill and it was introduced in Lok Sabha as originally uploaded on the website.
This Bill was examined by the Department-Related Parliamentary Standing Committee on Human Development
Resources consisting of 11 Member of Parliament from Rajya Sabha and 32 Member of Parliament from Lok Sabha
belonging to different parties and headed by Dr. Satyanarayan Jatia, a BJP leader. It invited many experts to
depose before it and after considering all the submissions made to it in person and in writing, in its 264 Report on
Juvenile Justice (Care and Protection of Children) Bill 2014, the PSC rejected the Bill as being unconstitutional and
unwarranted in the following words:
existing juvenile system is not only reformative and rehabilitative in nature but also recognises the fact that 16-18 years is
an extremely sensitive and critical age requiring greater protection. Hence, there is no need to subject them to different or
adult judicial system as it will go against Articles 14 and 15(3) of the Constitution.51
However, the JJ Bill 2014 was passed in Lok Sabha despite very cogent arguments presented by the Members of
Parliament who were in the miniscule minority there. In Rajya Sabha, it was not taken up for a long time due to
disruption of proceedings on various matters not connected with juvenile justice. However, on 7 December 2015,
Shantaram Laxman Naik, Rajya Sabha Member of Parliament from the Indian National Congress submitted the
motion for referring the Bill to a Select Committee52 to the Secretary General of Rajya Sabha.53
However, the timing of this motion and the dates for discussion on the Bill coincided with the vitriolic media
coverage on the impending release of the juvenile involved in Nirbhaya’s rape case - mostly based on
unsubstantiated leaks - reinforcing a distorted image in the minds of most people about the juvenile being most
brutal and still getting away with just three years of “imprisonment”. He was set to be released on 20 December
2015 and last minute efforts were mounted by Nirbhaya’s parents and others by petitioning the National Human
Rights Commission against his release, approaching the High Court of Delhi seeking a restraining order against his
release. They also held a public protest and their grieving faces were on the front pages of the newspapers and in
the multi-media.54 Even the Chairperson of Delhi Commission for Women approached the Supreme Court against
the refusal of the Delhi High Court to stop his release.55 Smt. Maneka Gandhi, Minister for Women and Child
Development, who had moved the Bill, publically stated that with the release of the juvenile, the law had been
upheld but she was not sure if justice had been done.56 She further put the Congress and other parties who were
seeking reference of the Bill to Select Committee on the defensive by publically apologizing to Nirbhaya’s parents
for the delay in passing of the Bill.57 Having failed to get any relief from the courts and the NHRC, Nirbhaya’s
parents lobbied with the Members of Parliament58 by meeting them individually at their homes pleading for early
passage of the Bill to prevent future Nirbhaya kind of incidents. The cumulative effect of all these developments was
that the Congress and other allies of children in the Rajya Sabha seemed responsible for non-passing of the
Page 7 of 9
proposed Act which aimed at securing justice to victims of rape by juveniles. They buckled and withdrew the motion
even before debates on the Bill began in the Rajya Sabha. It was reported, “The Congress and TMC, in particular,
were carried by the tidal wave of public opinion and sentiment rather than their own stand on the Bill.”59 Legal
scholars made a fervent appeal against passing of the Bill,60 but reasons did not win over emotions.
Smt. Maneka Gandhi acknowledged the presence of Nirbhaya’s parents in the gallery while responding to the
debate in which virtually no Member of Parliament even raised the issue of the Bill being unconstitutional as pointed
by the Parliamentary Standing Committee of Lok Sabha. The CPI(M) members led by Sitaram Yechury staged a
walkout demanding that the Bill be sent to a Select Committee, other parties supported the JJ Bill though raising
some concerns. It was passed by Rajya Sabha with a voice vote on 22 December 2015. Appeals were made by
legal scholars61 and others62 to the President of India not to give assent to the Bill but to no avail. The President of
India gave his assent to the Bill on 31 December 2015 and came into force on 15 January 2016 after its publication
in the Gazette of India. The Centre for Child and Law, Bangalore and DCAP-NIMHANS in their joint statement
stated that “the transfer provisions will result in a discriminatory, arbitrary, and punitive system for dealing with
young adolescents, most of whom have already been denied the education, protection and care they are entitled to
under the Constitution and this very law in their growing years.”63
Now that the JJ Act, 2015 has been enforced, it is essential to clearly understand the scheme of the new Act and
the challenges presented by its various provisions while implementing the law. This book examines all the important
provisions of the Act. These provisions have been examined and analysed with a view to offer interpretations that
promote the objectives of the Act while observing the fundamental principles contained in the JJ Act, 2015 that
need to be kept in mind by all agencies involved in the implementation of the Act at all stages.
6 Madras, Maharashtra, West Bengal, Uttar Pradesh, Andhra Pradesh, Karnataka, Gujarat, and Karnataka.
7 For detailed analyses of this case, see, Chapter 7 in Ved Kumari, The juvenile justice system in India from welfare to
rights (2nd Edn 2010) Oxford University Press.
8 For detailed comparison of the two Acts, see Chapter 4, Ved Kumari, The juvenile justice system in India from welfare
to rights, (2nd Edn 2010).
9 Pratap Singh v State of Jharkhand, (2005) 3 SCC 551 [LNIND 2005 SC 100], Date of Judgement 2 February 2005.
10 For details of the amendments and their impact, see, “Epilogue – New Developments” in Ved Kumari, The juvenile
justice system in India from welfare to rights (2nd Edn 2010).
11 Section 1(4) reads: Notwithstanding anything contained in any other law for the time being in force, the provisions of
this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in
conflict with law under such other law.
12 For example, Jagdish Bhuyan v State, 1992 Cr LJ 3194 (Assam); Antaryami Patra v State, 1993 Cr LJ 1908 (Ori); Re
Session Judge, Kalpetta, 1995 Cr LJ 330 (Ker).
13 In Umesh Chandra, 1982 Cr LJ 994 (SC), the Supreme Court held the date of commission of offence as relevant; in
Arnit Das, AIR 2000 SC 2261, it held the date of first production before the court as decisive; in Arnit Das 2001 (6)
Supreme 461, the five judge bench refused to give its opinion as the matter was of academic interest in the case.
14 (2005) 3 SCC 551 [LNIND 2005 SC 100].
15 Section 2(l), JJ Act, 2000 as amended in 2006.
16 Explanations added to Ss.20 read, “In all pending cases including trial, revision, appeal or any other criminal
proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile
shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement
of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all
material times when the alleged offence was committed.?
17 Explanation added to section 64 read, “In all cases where a juvenile in conflict with law is undergoing a sentence of
imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be
deemed to be decided in terms of clause (l) of section 2 and other provisions contained in this Act and the rules made
thereunder, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be
sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such
sentence shall not in any case exceed the maximum period provided in section 15 of this Act.”
18 Proviso was inserted in section 68 and it reads: Provided that the Central Government may, frame model rules in
respect of all or any of the matters with respect to which the State Government may make rules under this section, and
Page 8 of 9
where any such model rules have been framed in respect of any such matter, they shall apply to the State until the
rules in respect of that matter is made by the State Government and while making any such rules, so far as is
practicable, they conform to such model rules.
19 Writ Petition (C) No.51 of 2006.
20 Writ Petition (Civil) No.(s) 473 of 2005.
21 Order dated 14 February 2011 available at http://judis.nic.in/temp/473200531422011p.txt, last visited on 7 April 2012.
22 Order dated 11 July2011 available at http://judis.nic.in/temp/473200531172011p.txt last visited on 7 April 2012
23 Order dated 19 August 2011, available at http://judis.nic.in/temp/473200531982011p.txt, last visited on 7 April 2012.
24 Writ Petition (Cri) No. 1451 of 1985.
25 For detailed analyses of Sheela Barse, see Chapter 7, Ved Kumari, The juvenile justice system in India from welfare to
rights, (2004).
26 Department-Related Parliamentary Standing Committee on Human Resource Development 235th Report on the
Juvenile Justice (Care and Protection of Children) Amendment Bill, 2010, available at
http://www.prsindia.org/uploads/media/Juvenile%20Justice%20SCR.pdf, last visited on 25 March 2012.
27 Department-Related Parliamentary Standing Committee on Human Resource Development 235th Report on the
Juvenile Justice (Care and Protection of Children) Amendment Bill, 2010, available at
http://www.prsindia.org/uploads/media/Juvenile%20Justice%20SCR.pdf, last visited on 25 March 2012.
28 Order dated 18 April 2011.
29 Chairperson, Committee Dealing with Juvenile Homes, Allahabad High Court who visited the juvenile homes at
Faizabad and Gorakhpur on 30 June.2011, the Juvenile Justice Board at Sultanpur and the District Jail, Sultanpur
where a barrack had been created for lodging juveniles in conflict with the law on 2 July2011.
30 WP (C) No 8801/2008.
31 Bachpan Bachao and others, WP (Cri) No.82 of 2009 with WP (Crl.) No.619 of 2002 and WP (Crl.) No.879 of 2007.
32 Save the Childhood Foundation, WP (Cri) No. 2069/2005.
33 Court on its Own Motion, WP (CRL) 249/2009.
34 Court on its Own Motion, WP (C) 5913/2010.
35 Smriti Singh & Manoj Mitta, Nirbhaya case juvenile wasn’t most brutal?, Times of India, 3 October 2013, available at
http://timesofindia.indiatimes.com/city/delhi/Nirbhaya-case-juvenile-wasnt-most-brutal/articleshow/23426346.cms, last
visited on 15 March 2014.
36 A report The Many Shades of Rape Cases in Delhi based on the study of all the pending cases of rape in Delhi by the
newspaper The Hindu showed that out of the cases fully tried, over 40% dealt with consensual sex, usually involving
the elopement of a young couple and the girl’s parents subsequently charging the boy with rape.
http://www.thehindu.com/data/the-many-shades-of-rape-cases indelhi/article6261042.ece, last visited 15 Oct 2015.
37 It increased the age of consent for voluntary sexual intercourse from 16 years to 18 years.
38 Section 357 was expanded to include peno-vaginal, oral, anal sexual intercourse as well as penetration of various
orifices of the woman’s body by body parts and objects within the meaning of sexual intercourse.
39 Salil Bali v UOI, Writ Petition (C) 10 of 2013 decided on 17 July 2014, available at:
http://judis.nic.in/supremecourt/imgs1.aspx?filename=40577, last visited on 20 July 2014.
40 Subramanian Swami v Raju through the Juvenile Justice Board, Criminal Appeal no.695 of 2014, available at:
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41356, last visited on 6 Apr 2014.
41 See, Ved Kumari, Juvenile Justice Bill 2014 – A Regressive Step in 56(3) Journal of Indian Law Institute p 303(July –
Sept 2014)
42 See, Laurence Steinberg, Should the Science of Adolescent Brain Development Inform Public Policy? Issues in
Science and Technology, Spring 2012, available at http://www.issues.org/28.3/steinberg.html.
43 543 U.S. 551 (2005), available at http://www.csustan.edu/cj/jjustice/CaseFiles/ROPERvSimmons.pdf, last visited on 24
March 2014.
44 560 U. S. (2010), available at http://www.njdc.info/njdc_members/images/pdfs/graham_decision.pdf, last visited on 24
March 2014.
Page 9 of 9
45 No. 10–9646 with No. 10–9647, Jackson v Hobbs, Director, Arkansas Department of Correction, on certiorari to the
Supreme Court of Arkansas, decided on 25 June 2012, available at http://www.supremecourt.gov/opinions/11pdf/10-
9646g2i8.pdf, last visited on 23 March 2014.
46 http://www.eji.org/childrenprison/deathinprison/jackson.miller, last visited on 23 March 2014.
47 Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice
System: A Report on Recommendations of the Task Force on Community Preventive Services, Centre for Disease
Control and Prevention, MMWR 2007, http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm, last visited on 1
April 2016.
48 Raise the Age NY, “Get the facts” (2013): http://raisetheageny.com/get-the-facts; Effects on Violence of Laws and
Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: Report on Recommendations
of the Task Force on Community Preventive Services, Centers for Disease Control and Prevention, 30 November 2007,
http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm, last visited on 1 April 2016.
49 Raise the Age NY, “Get the facts” (2013): http://raisetheageny.com/get-the-facts, National Campaign to Reform State
Juvenile Justice Systems. The Fourth Wave: Juvenile Justice Reforms for the 20st Century; p. 20.
http://www.publicinterestprojects.org/wp-content/uploads/2012/11/JJ-Whitepaper- Design-Full-Final.pdf, last visited on
1 April 2016.
50 It was contrary to the 30-day time-period prescribed by the Pre-Legislative Consultation Policy adopted in the meeting
of Committee of Secretaries held on 14 January 2014.
51 Para 32 of the 264 Report on the Juvenile Justice (Care and Protection of Children) Bill 2014 of the Department-
Related Parliamentary Standing Committee on Human Resource Development presented to Rajya Sabha on 25
February 2015 and laid on the Table in Lok Sabha on 25 February 2015.
52 As reported by Hindustan Time, available at http://m.hindustantimes.com/delhi/bill-on-juvenile-age-is-set-for-further-
delay/story-uXtjWeVm6MXz86jtkHUNWJ.html, accessed on 19 December 2015.
53 Names of 11 Members of Parliament were included in the motion who were to constitute the Select Committee, namely,
Shri Shantaram Naik, Shri Parvez Hashmi, Smt. Wansuk Syiem, Dr. Vijayalaxmi Sadho, Shri D. Raja, Shri Naresh
Agrawal, Smt. Jharna Das Baidya, Shri K.C. Tyagi, Dr. K.P. Ramalingam, Shri D.P. Tripathi, and Smt. Viplove Thakur.
54 http://esbuzz.net/trends/watch/vid88iscyeeJzrDc, last visited on 1 April 2016.
55 http://www.thehindu.com/news/national/sc-dismisses-plea-against-juvenile-in-nirbhaya-case/article8013697.ece, last
visited on 1 April 2016.
56 http://timesofindia.indiatimes.com/india/Nirbhaya-gangrape-Maneka-wants-close-watch-on-juvenile-after-his-
release/articleshow/49631897.cms, last visited on 1 April 2016.
57 http://indiatoday.intoday.in/video/maneka-gandhi-apologises-to-nirbhayas-parents-for-delayed-justice/1/549089.html,
last visited on 1 April 2016.
58 http://www.dnaindia.com/india/report-nirbhaya-s-parents-meet-ghulam-nabi-azad-seek-passage-of-juvenile-justice-bill-
in-rajya-sabha-2158311, last visited on 1 April 2016.
59 http://www.firstpost.com/india/juvenile-justice-bill-after-heated-debate-public-outcry-new-law-passed-in-rajya-sabha-
2555978.html, last visited on 1 April 2016.
60 Mohan Gopal, “Don’t Appease the Mob”, TOI, 22 December 2016, available at
http://indianexpress.com/article/opinion/columns/dont-appease-the-mob/, last visited on 2 April 2016.
61 Faizan Mustafa, “The President Should Reject the Juvenile Justice Bill” in New India Express, 22 December 2015,
available at http://www.newindianexpress.com/columns/President-Should-Reject-The-Juvenile-Justice-
Bill/2015/12/23/article3191067.ece, last visited on 2 April 2016.
62 Brinda Karat, India has Taken a Rash Decision on Juveniles on 23 December 2015, available at
http://www.newindianexpress.com/columns/President-Should-Reject-The-Juvenile-Justice-
Bill/2015/12/23/article3191067.ece, last visited on 2 April 2016.
63 http://www.thehindu.com/news/cities/bangalore/experts-disappointed-over-trying-juveniles-as-
adults/article8075467.ece, last visited on 2 April 2016.
End of Document
1.3 CONCLUSION
Ved Kumari
1.3 CONCLUSION
The JJ Act, 2015 is a major step backward in the progressive and forward looking philosophy of juvenile justice
initiated with the enactment of the Apprentices Act 1850. By providing the use of prisons in certain circumstances, it
has taken India back to 1920 when the initial Children Acts provided for the use of prisons for keeping children only
in exceptional circumstances. In 1920, sending children to jail in exceptional circumstances was a progressive step
as it reversed the policy of exceptional use of Reformatories and Borstal to exceptional use of prisons. The same
cannot be said about the JJ Act, 2015 which has adopted that approach 100 years later ignoring the developments
in knowledge bases of disciplines like criminology, penology, victimology, psychology, psychiatry, neuroscience,
rehabilitation, restorative justice which have equipped us better to deal with persons committing offences and
victims of offences.
While restorative justice is being successfully practiced in many countries even for such serious offences as murder
and rape by adults, leading to decrease in repeat offences by them, the Indian Parliament buckled under the
political and emotional pressure created by one bad case of barbaric gang rape in which one of the accused
happened to be a child on the verge of attaining majority. It is a well-accepted principle that one bad case never
makes for a good law. Ignoring that sound practice, India chose to take the most regressive step of introducing
retributive approach for young children as a knee jerk reaction despite the experiences of countries like USA and
UK which have reported that children tried as adults end up committing more offences in their later life compared to
children who were treated within the juvenile justice system. This book is an effort to identify the problems posed by
the new Act and the possible solutions that will promote the objects of the Act of ensuring care, protection,
development and rehabilitation of children falling within its purview.
End of Document
2 Introduction to the Juvenile Justice Act 2015
Ved Kumari
Introduction to the Juvenile Justice Act 2015

This chapter analyses the preliminary provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015
(hereafter referred as JJ Act, 2015)and consists of four parts. The first part scrutinises the objectives of the Act. The
second focuses on the provisions relating to the title, enforcement and extent of applicability of the Act. Part three
analyses the definitions contained in the Act that have significance in understanding the meanings of various terms
used in the Act. Part four examines the general principles contained in section 3 which have to be followed in the
administration of the Act.
End of Document
2.1 OBJECTIVES OF THE ACT
Ved Kumari

The JJ Act, 2015 was signed and made into a law by the President of India on 31 December 2015. It came into
force on 15 January 2016 with its publication in the Gazette of India.1
The opening statements in the Preamble of the JJ Act, 2015 in comparison to the Preamble of the JJ Act, 2000,2
contains the reasons and purposes of the Act which indicate that care, protection, development and rehabilitation
continue to be the purposes of this Act. Best interest of the child continues to be the basis for all processes and
provisions in the JJ Act, 2015, as it is included in the Preamble of the Juvenile Justice Act itself.3
However, the JJ Act, 2015 has substantially expanded the scope of care and protection to children in conflict with
law and children in need of care and protection by making specific reference to development and including social
re-integration in addition to care, protection and treatment of children as components of a child friendly approach.
The terms “care”, “protection”, “development”, and “treatment” have not been explained in the JJA and need to be
clarified in order to understand the full import of each of these words and how these have been translated in the
subsequent provisions and scheme of the Act.
The term “care” as per Oxford Dictionary refers to “the provision of what is necessary for the health, welfare,
maintenance, and protection of someone or something.”4 While “health” is assured by providing for adequate
nutrition to ensure normal growth of children and medical treatment in case of illness or accident, the word “welfare”
refers to meeting of the basic needs of education, food, shelter and clothing. Maintenance refers to the process of
keeping something or someone in good condition. The word “protection”, even though included within the meaning
of care, refers to protection from something outside of the person’s physical body. In the context of children, it may
refer to protection of children from exploitation and abuse from others. “Development” in relation to children would
mean ensuring specified state of growth or advancement, physical, mental, psychological, educational, etc.,
commensurate with their age. “Treatment” in the context of the JJA has to relate to treating the conditions – social
and psychological that have made children get into conflict with the law or be in need of care and protection.
“Child-friendly” has been defined in the JJ Act, 2015 to mean “any behaviour, conduct, practice, process, attitude,
environment or treatment that is humane, considerate and in the best interest of the child.”5 “Social reintegration” is
not defined but has been dealt with in section 39 of the JJ Act, 2015.
It is important to notice that these objectives of the Act are sought to be achieved through all the enacted processes
and by all institutions and bodies established under the Act. The Preamble constitutes the touchstone on which all
the provisions relating to processes, institutions and bodies will have to be examined.
Page 2 of 3
The Preamble further recognizes6 that the State is duty bound to ensure that all the needs of children are met and
that their basic human rights are fully protected as per Articles 15(3), 39(e) and (f), 45 and 47.
Article 15(3) of the Constitution authorizes the State to make special provisions for women and children. Article 15
elaborates the right to equality as ensured under Article 14. It has been well established by various judicial
pronouncements that equality before the law and equal protection of the law means equality among equals. As
everybody is not equal, it permits differential treatment to them using the principle of reasonable classification. In
State of West Bengal v Anwar Ali Sarkar,7 the Supreme Court held that the differentia or classification must have a
rational nexus with the object sought to be achieved by the statute in question. In Maneka Gandhi,8 the Supreme
Court introduced the principle of reasonableness striking out arbitrary decision by the State in Article 14. Differential
treatment to different groups is not contradictory to right to equality if the criterion for differential treatment is
reasonable to achieve the objectives of the statute in question.
Article 15 (1) thereafter elaborates further that no discrimination may be made on the grounds listed therein.9 It is
pertinent to note that it clearly prohibits discrimination on the basis of “sex” among others, but “age” is not among
the excluded categories. Even so, Article 15(3) permits special provisions in favour of women and children – a
classification based on sex and age. The ostensible reason for this provision is the special need for protective
legislation for these groups in view of their differential status in society. There have been many judicial decisions
that have clarified that in relation to women Article 15(3) permits only favourable legislation and not a legislation
against the interest of women.10 So far there has not been an occasion for the Supreme Court to dwell on the scope
of this Article in relation to children but it will have to follow the same interpretation that it does not permit any
legislation against the best interest of children. Thus for example the provisions relating to selective transfer of 16–
18 years old children alleged and found to have committed a heinous offence will have to pass the tests of
reasonable classification or favourable legislation for being constitutional as contained in Articles 14 and 15(3).11
The Preamble of the JJ Act, 2015 further concedes that India has signed and ratified the UN Convention on the
Rights of the Child (hereafter referred as CRC) which binds the State Parties to adhere to the prescribed set of
standards in securing the best interest of the child.12 The CRC defines “child” as “every human being below the age
of 18 years unless under the law applicable to the child, majority is attained earlier.”13 To bring the law in conformity
with India’s obligation under CRC the applicability of the JJ Act, 2000 was set at 18 years for defining “child” and
“juvenile”. The JJ Act, 2015 has retained the same definition while dropping the differential use of “child” and
“juvenile” introduced by the JJ Act, 2000. The Preamble further acknowledges14 India’s obligations under the Beijing
Rules, Rules for the Protection of Juveniles Deprived of their Liberty, other relevant international instruments
pertaining to children. The Hague Convention on Protection of Children and Co-operation in Respect of Inter-
country Adoption is a new addition in the list of international instruments referred to in the Preamble in comparison
to the JJ Act, 2000. It would mean that the directions and standards contained in these instruments should be kept
in mind in implementation and interpretation of various provisions of the JJ Act, 2015.
1 Gazette of India, Extraordinary, Pt II, section (3) sub-section (ii) dated 13 January 2016.
2 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 and for matters connected therewith or incidental thereto.
3 The first paragraph of the Preamble of the JJ Act, 2015 reads: An Act to consolidate and amend the law relating to
children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic
needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly
approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through
processes provided, and institutions and bodies established, herein under and for matters connected therewith or
incidental thereto.
4 http://www.oxforddictionaries.com/definition/english/care, accessed on 4 March 2016.
5 Section 2(15).
6 It reads, “WHEREAS, the provisions of the Constitution confer powers and impose duties, under clause (3) of Article
15, clauses (e) and (f) of article 39, article 45 and article 47, on the State to ensure that all the needs of children are
met and that their basic human rights are fully protected”.
Page 3 of 3
7 AIR 1952 SC 75 [LNIND 1952 SC 1].

8 AIR 1978 SC 597 [LNIND 1978 SC 25].
9 Article 15(1) reads, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.”
10 AIR 1978 SC 597 [LNIND 1978 SC 25].
11 For detailed analyses, see, infra, Chapter 5 relating to transfer of children in conflict with law.
12 It reads, “AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on
the Rights of the Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to
be adhered to by all State parties in securing the best interest of the child”.
13 Article 1 of the CRC.
14 The relevant part of the Preamble to the JJ Act, 2015 reads, “AND WHEREAS, it is expedient to re-enact the Juvenile
Justice (Care and Protection of Children) Act, 2000 to make comprehensive provisions for children alleged and found to
be in conflict with law and children in need of care and protection, taking into consideration 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), the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption
(1993), and other related international instruments.”
End of Document
2.2 BROAD SCHEME OF THE JJ ACT, 2015
Ved Kumari

The JJ Act, 2015 contains ten chapters. The first chapter contains preliminary matters like title, extent,
commencement, application of the Act and general definitions. Chapter two spells out the general principles of care
and protection of children to be observed by all agencies at all times while implementing the Act. Chapter three and
four contain provisions relating to the establishment, power, and function of the Juvenile Justice Board responsible
for adjudication of matters relating to children in conflict with law and their rehabilitation. Chapters five and six
provide provisions of similar nature in relation to the child welfare committee responsible for dealing with children in
need of care and protection. Chapter seven is focused on rehabilitation and social re-integration of both categories
of children. Chapter eight makes elaborate provisions for adoption of children falling within the purview of this
legislation. Chapter nine defines offences against children and punishment for the same. Chapter ten contains
many miscellaneous provisions like age determination, special police unit, implementation bodies, transfer of
children, rule-making powers, and repeal and saving clauses, etc.
Broadly speaking, the JJ Act, 2015, like its predecessor JJ Act, 2000, has been enacted to provide for the care,
protection, welfare, development and rehabilitation of two categories of children, namely, children in conflict with law
and children in need of care and protection. It applies to children who have not completed the age of 18 years. It
provides for constitution of the Juvenile Justice Board and the Child Welfare Committee for dealing with all matters
relating to children in conflict with law and children in need of care and protection, respectively.
This Act classifies offences committed by children in three categories, namely, petty, serious, and heinous but all
children alleged to have committed any offence below the age of 18 years have to be produced before the Juvenile
Justice Board (hereafter referred as JJB) in the first instance. Section 6 clearly lays down that when a person who
has crossed the age of 18 years is apprehended for an offence committed prior to the age of 18 years, then such
person is to be treated as a child and if there are any cases against them then they are to be disposed of under the
JJA.
The JJB has exclusive jurisdiction to deal with all offences committed by children below the age of 16 years and all
offences committed by children between the age of 16–18 years which are classified as petty or serious under the
JJ Act, 2015. In case of 16–18 years old children alleged to have committed a heinous offence, the JJB is required
to conduct a preliminary assessment with the help of professional experts to assess the mental state of the child
and evaluate the circumstances in which the offence was committed. After such assessment, the JJB may decide to
deal with the child as a child or may transfer the child to the Children’s Court – a court established under the
Commissions for Protection of Child Rights Act, 2005, or the special court established under the Protection of
Children against Sexual Offences Act 2012 or a sessions court. On receipt of such a child, the Children’s court has
to conduct a fresh assessment whether the child should be tried as an adult or as a child. If the Children’s Court
decides to deal with the child before it as a child, it is required to pass orders as may be passed by the JJB. If it
decides to try the child as an adult, the Children’s Court should issue appropriate orders keeping in view the needs
of the child. It is noteworthy that the section authorising the Children’s Court to pass orders, does not mention that
the child must be required to undergo the period of imprisonment prescribed for the offence. The Children’s Court is
Page 2 of 3
free to choose the period of “stay” for which the child should be kept in custody, first in the Place of Safety asking
for annual reports of their progress. If they attain the age of 21 years and period of stay is still not complete, then
the Children’s Court is obliged to conduct an assessment whether the child has reformed and is ready to be
released. If the child is found to have been reformed, then he or she has to be released under the care of a
monitoring authority for the remaining period of the stay. If not reformed, they have to be sent to prison for the
remainder period of stay that was originally ordered.
An integral lacuna of such classifications allowing differential treatment of some children opens the door to the
demands for further lowering the cut off age and expansion of the list of offences thereby increasing the number of
children to be excluded from the protective umbrella of juvenile justice. In the recent case of death caused by a
speeding car which was driven by a child just a few days less than 18 years had led to agitations seeking the trial of
the child as an adult even though the alleged offence falls within the definition of petty offence as defined in the JJ
Act, 2015.15 It was reported that the police were planning to write to the Board to request that the child be tried as
an adult in this case.16 Later he was additionally charged with culpable homicide not amounting to murder under
section 304 of the IPC and transferred to the Children’s Court by the JJB to be tried as an adult.17
The JJ Act, 2015 gives the right of one appeal against any order of the JJB or the Children’s Court to a 16–18 years
old child alleged to have committed a heinous offence and to any other person aggrieved by the order. This is a
much liberal provision than contained in the JJ Act, 2000 which prohibited an appeal against a finding that the child
has not committed an offence in all cases of children who had not completed the age of 18 years on the date of
offence. The High Court has been given similar powers to deal with children when the matters come before it in
appeal, revision, or otherwise.
In case of Children in Need of Care and Protection, the Child Welfare Committee (hereafter referred as CWC) has
to take all measures for social rehabilitation and re-integration of the children it deals with. The JJ Act, 2015
contains very detailed provisions relating to adoption of children, specially focusing on expeditious adoptions for
young children. While the actual adoption processes have to be carried by the State Adoption Agencies, the Central
Adoption and Regulation Authority, the CWC has been given the responsibility of motivating parents to look after
their children if they have deserted them, and to conduct further proceedings to declare children fit for adoption after
declaring children as abandoned if the parents are not ready to look after the deserted child even after two months
of such motivation.
The Act provides for a range of residential options for the Children in Conflict with Law (hereafter referred as CCL)
and Children in Need of Care and Protection (hereafter referred as CNCP) which include observation homes,
special homes, children homes, place of safety, fit person, fit facility, shelter homes, etc. All child care institutions
housing children falling within the provisions of the JJ Act, 2015 must be registered. The Act provides for periodical
inspections of all such Child Care Institutions as well as regular visits by the members of the JJB and CWC to
ensure that no child is abused in the homes and that they function for the protection of children. The JJ Act, 2015
recognizes that a child may be a CCL and CNCP at the same time and in such cases directs the JJB and CWC to
work together..
As has been the case in earlier legislations, the JJ Act, 2015 also contains a chapter on offences against children
but comparatively the range of offences contained in this law is much larger in comparison. It also provided that if
the offence included in the JJA is punishable under any other law also, the greater punishment will apply.
The JJ Act, 2015 continues to prohibit joint trial of a child and an adult in all cases. It also provides for removal of
disqualifications attached to conviction for an offence in relation to all children whose cases are finally disposed of
by the JJB including the child who is dealt with as a child by the Children’s Court. However, 16–18 years old child
found to have committed a heinous offence and tried as adult has been excluded from this protection, even when
released from place of safety on attaining the age of 21 years if found by the Children’s Court to have reformed.
As a positive change the JJ Act, 2015 has dropped the usage of the term “juvenile” and retained it only in the title.
In relation to CCL and CNCP, the provisions of the JJ Act, 2015 prevail upon all other provisions that may be
contrary to it as per section 1(4).18 This section is wider in its scope compared to the similar provision inserted in the
JJ Act, 2000 in 2006 as that was limited only to children in conflict with law.
The Preamble of the JJ Act, 2015 containing the objects of the Act shows that it has made no departure from the
protective approach of juvenile justice towards children in conflict with law as well as children in need of care and
protection. The Preamble states that the Act is aimed at “catering to their basic needs through proper care,
protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication
Page 3 of 3
and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and
institutions and bodies established”.
The discrepancy between the statement of objects of the Act and general principles to be observed in the
implementation of the Act on the one hand and the provisions of exclusion of certain children to be tried as adults
on the other, present the scope for challenging the constitutionality of the JJ Act, 2015 for being discriminatory.
Tehseen Poonawalla filed the first writ petition challenging the constitutionality of the JJ Act, 2015 before the
Supreme Court of India. Even though the Supreme Court refused to admit the writ on 26 February 2016 saying it
cannot be a subject matter of a Public Interest Litigation, it stated that an aggrieved person may bring the matter
before it.19 In addition to the Constitutionality challenge, the JJ Act, 2015 contains plethora of loopholes in its
drafting and it will not be long before the aggrieved children start knocking at the Courts for violation of their
fundamental and other rights secured by the Constitution and the JJ Act, 2015.
15 https://www.youtube.com/watch?v=zuPhmRp3-Cg&nohtml5=False, last visited on 10 April 2016.

16 http://epaperbeta.timesofindia.com/Article.aspx?eid=31808&articlexml=Merc-hit-run-Special-unit-to-probe-case-
10042016005012, last visited on 10 April 2016.
17 Juvenile in Delhi Mercedes hit-and-run case to be tried as adult, available at
http://www.thehindu.com/news/cities/Delhi/delhi-mercedes-hitandrun-teen-to-be-tried-as-adult-rules-juvenile-justice-
board/article8690811.ece, last visited on 2 November 2016.
18 Section 1(4) reads, “Notwithstanding anything contained in any other law for the time being in force, the provisions of
this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law,
including —
(i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children
in conflict with law;
(ii) procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in
need of care and protection.”
19 Read more at http://www.livelaw.in/sc-refuses-to-entertain-plea-against-new-juvenile-justice-act-2/#.
End of Document
2.3 TITLE, ENFORCEMENT, AND EXTENT OF THE ACT
Ved Kumari

Section 1(1) declares the short title of this Act to be the Juvenile Justice (Care and Protection of Children) Act,
2015. A review committee set up by the previous government in 2011 to consider amendments to the JJ Act, 2000
had suggested for dropping the word “juvenile” from the title of the Act to remove all stigmatizing words from the
legislation and retitle the JJ Act, 2000 as the Child Care and Protection Act. Even though that committee had no
role to play in the enactment of the JJ Act, 2015, the word “juvenile” has been dropped in the body of the JJ Act,
2015 but it has been retained in the title of the Act.
The JJ Act, 2015 extends to the whole of India except the State of Jammu and Kashmir as per section 1(2).20 It
means that till the time, the JJ Act, 2015 is extended by the legislature of the State of Jammu and Kashmir, or the
State of Jammu and Kashmir makes its own law, it will continue to be governed by the Jammu and Kashmir
Juvenile Justice (Care and Protection of Children) Act 2013. The Jammu and Kasmir Juvenile Justice Act 2013
(hereafter referred as J&K JJA) raised the cut off age of juvenility to 18 years for all.21 Its provisions are pari materia
with the JJ Act, 2000 as amended in 2006. This legislation is very important in the context of Jammu and Kashmir
which has been suffering from conflict situation for the last 25 years causing severe disruption in the education and
wellbeing of children. Enactment of the J&K JJA 2013 was hailed as a progressive measure to ensure protective
treatment to all children who had not attained the age of 18 years found to have committed an offence at par with
children in the rest of the country.22 This legislation which continues to apply in the State of Jammu and Kashmir
does not permit exclusion of any child below the age of 18 years from the purview of the Act for any offence under
any circumstance, as was the case under the JJ Act, 2000.
Section 1(3) provides that this Act will come into force as specified in the Gazette notification.23 As mentioned
earlier, the JJ Act, 2015 was notified in the Gazette of India on 13 January 2016 declaring 15 January 2016 as the
date for its coming into force.
Section 1(4) of the JJ Act, 2015 gives overriding effect to its provisions in the following words:
(4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to
all matters concerning children in need of care and protection and children in conflict with law, including —
apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in
conflict with law;
procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in
need of care and protection.
Page 2 of 4
An overriding effect clause was inserted in the JJ Act, 2000 by amendment in 2006 to set at rest the relationship
between the JJ Act, 2000 and all other legislations containing contrary provisions or overriding effect clauses. The
question of applicability of the JJ Act, 2000 or earlier legislations like the JJA 1986 or the Children Acts when other
legislations contained contradictory provisions had been raised in the High Courts and the Supreme Court many
times prior to 2006. The earliest cases had arisen in relation to applicability of the Haryana Children Act 1974 to
children committing offences punishable with death or life imprisonment in view of section 27 of the Code of
Criminal Procedure 1973 which provides that children below the age of 16 years committing offences not
punishable with death or life imprisonment may be dealt with by the Children Court. Neither the CrPC nor the
Haryana Children Act 1974 contained a non obstante clause. The Supreme Court considered the issue twice in
Rohtas v State of Haryana24 and Raghbir v State of Haryana.25 In both the cases, the Supreme Court held that it is
the Children Act that will apply even though the CrPC was brought into force after the enforcement of the Haryana
Children Act 1974 and was a Central legislation. Despite these pronouncements by the Supreme Court, the issue
continued to be raised time and again before different High Courts showing ignorance of these decisions at the
lower court level.26 In Sangita Jain27 the question took a slightly different form before the Bombay High Court. The
accused girl in this case was 17 years old. Hence the question was whether the children court could deal with
children above the age of 16 years as prescribed by section 27 of the CrPC. The Bombay High Court held in favour
of the applicability of the JJA overriding section 27 of the CrPC. It further directed that even if no juvenile court was
constituted for the area, the designated magistrates as mentioned under the JJA alone had jurisdiction to deal with
her case.
Question of applicability of the Juvenile Justice Act 1986 for offences under special legislations containing an
overriding clause also arose in many cases and was decided differently by different High Courts. In Jagdish Bhuyan
v State,28 the child was arrested for an offence under the Terrorist and Disruptive Activities Act 1987 and the
question was whether the child needs to be released on bail as per the JJA 1986 or his bail application should be
decided as per the direction contained in the Terrorist and Disruptive Activities Act 1987(hereafter referred as
TADA). The Assam High Court held that the TADA Act 1987 had the overriding effect over the JJA 1986. Same
question was raised again in Antaryami Patra v State,29 in relation to grant of bail to a child alleged to have
committed an offence under the Narcotic Drugs and Psychotropic Substances Act 1986. In this case, the Orissa
High Court gave overriding effect to the bail provision of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereafter referred as NDPS Act) as it was inserted in the Act by amendment in 1989, which is after the enactment
of the JJA 1986. However, the Kerala High Court decided the same question in relation to an offence by a child
under the Schedule Cast and Schedule Tribe (Prevention of Atrocities) Act 1989 in re Session Judge, Kalpetta30
differently. It held in favour of applicability of the JJA to all offences by children on the reasoning that the question of
conflict and overriding of provisions of one legislation by another arose only if both the Acts dealt with the same
subject matter. In its opinion, the JJA dealt with offenders while the Schedule Cast and Schedule Tribe (Prevention
of Atrocities) Act dealt with victims. Hence, it held that there was no conflict and the child would be governed by the
JJA 1986. It is worth noting that all the three Acts dealt with by these three High Courts contained a non obstante
clause giving overriding effect to the provisions of that Act over all other provision contained in any other law to the
contrary but the decisions of the three High Courts varied on the scope of these similarly worded overriding effect
clauses.
The issue was finally considered by the Supreme Court also on two occasions. In Raj Singh,31 the Supreme Court
held that JJA applied to a child charged under the NDPS Act. In Madan Singh,32 also the Supreme Court held that
the two children charged for offences under the TADA Act, were to be dealt under the provisions of the JJA.
However, in neither of the two judgments, the Supreme Court analyzed the specific provisions of the Acts in
question and gave no substantive reasons for holding that the JJA applied to children found to have committed an
offence under the NDPS Act and the TADA Act. With the insertion of sub-section (4) in section 1 of the JJ Act, 2000
in 2006, all such controversies were set at rest.
In the context of the JJ Act, 2015, section 1(4) overshadows contrary provisions contained in legislations dealing
with offences like the NDPS Act or Schedule Cast and Schedule Tribe (Prohibition of Atrocities) Act despite a
similar overriding effect clause contained in those other legislations. Any provisions contained in any other
legislation will not apply in case of children in conflict with law if those provisions contradict the provisions of the JJ
Act, 2015 relating to apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-
integration of children.
It should be noted that the scope of section 1(4) contained in the JJ Act, 2015 is much wider that the corresponding
section contained in the JJ Act, 2000. The JJ Act, 2000 had provided for overriding of contrary provisions contained
Page 3 of 4
in other laws relating to detention, prosecution, penalty, and imprisonment. The current Section has included
apprehension, rehabilitation and social re-integration also within the ambit of this clause. For example, effect of
section 1(4) read with section 12 of the JJ Act, 2015 is that a child apprehended under an enactment like the NDPS
Act will have to be released on bail despite the provision for grant of bail only in exceptional circumstances under
that Act. Similarly, the special courts established under various special laws have no jurisdiction to try a child.
Likewise, the sentences provided for various offences under any other law have no applicability to children found to
have committed an offence because of this overriding clause in the JJ Act, 2015. It also means that rehabilitation
and social re-integration will govern the sphere of orders to be passed in relation to children in conflict with law
overriding other objectives of punishment like retribution and deterrence under other special laws. This clause
overrides the special enactments like the Protection of Children against Sexual Offences Act 2012 made especially
for child victims also in case the accused person is a child. When both the accused and victims are children, it is the
JJ Act, 2015 that will operate over the contrary provisions of the special enactment providing for trial by special
courts or laying down differential principles of liability. For example, the Protection of Children from Sexual Offences
Act 2012 (hereafter referred as POCSO) provides that the special court shall presume existence of culpable mental
state on part of the accused in all offences where culpable mental state is an essential ingredient of the offence.
Such provisions will be inapplicable if the accused is a child below the age of 18 years on the date of offence for
two reasons. First, the POCSO Act, 2012 itself directs this presumption to be assumed by the special court and not
by any other court which may have jurisdiction in such cases. Second, all offences by children are to be dealt with
only according to the provisions of the JJ Act, 2015 in view of the overriding effect clause contained in section 1(4)
and section 3 of the JJA. These sections lay down the principle that all children below the age of 18 years are
presumed to be innocent.
Section 1(4) has widened the scope of the overriding effect clause in one more respect. While section 1(4) of the JJ
Act, 2000 as inserted in 2006 was limited to “juveniles in conflict with law”, section 1(4) of the JJ Act, 2015 includes
“children in need of care and protection” also within its ambit. The JJ Act, 2015 overrides all other laws regarding
rehabilitation, adoption, re-integration, and restoration of children contained in any other law if they contradict its
provisions. For example, a child labour rescued under the Child Labour (Prohibition and Regulation) Act will have to
be dealt with as per the provisions of the JJ Act, 2015. Such child will have to be produced before the CWC which
will be the sole authority to make provisions for their rehabilitation and social reintegration. Cases of abandonment
of children by their parents will also have to be dealt with under the provisions of the JJ Act, 2015. The JJ Act, 2015
has also included elaborate provisions for adoption of children falling within its protective umbrella who will have to
be given in adoption as per the provisions contained in it. However, the adoption provisions contained in the JJ Act,
2015 will not apply to adoptions made under the Hindu Adoptions and Maintenance Act, 1956 which have been
specifically saved by section 56(3) of this Act.
20 It reads, “(2) It extends to the whole of India except the State of Jammu and Kashmir.”
21 The Jammu and Kasmir Juvenile Justice Act 1997 repealed by the Jammu and Kashmir Juvenile Justice Act 2013,
defined “child” as a person below the age of 16 years. Rules under that legislation were made only in 2007. Even so, its
implementation had remained lackadaisical. See, http://archive.indianexpress.com/news/in-j-k-juvenile-age-is-16-yrs-
but-minors-booked-under-psa-also/1068604/, last visited on 2 April 2016.
22 Welcome Relief for the Children of Jammu and Kashmir, available at https://www.savethechildren.in/news/welcome-
relief-for-children-of-jammu-kashmir, last visited on 2 April 2016.
23 Section 1(3) reads, “(3) It shall come into force on such date as the Central Government may, by notification in the
Official Gazette, appoint.”
24 AIR 1979 SC 1839 [LNIND 1979 SC 310].
25 1981 Cr LJ 1497 (SC).
26 Daljit Singh v State of Punjab, 1992 Cr LJ 1051 P&H; Sarita v State, 1990 Cr LJ 351 (Bombay).
27 1996 Cr LJ 24 (Bombay).
28 1992 Cr LJ 3194 (Assam).
29 1993 Cr LJ 1908 (Orissa).
30 1995 Cr LJ 330 (Kerala).
31 (2000) 6 SCC 759.
Page 4 of 4
32 Appeal (Criminal) 1285 of 2003, SC DoJ 2 April 2005.
End of Document
2.4 DEFINITIONS
Ved Kumari
2.4 DEFINITIONS
Definitions in the legislation bring clarity and uniformity in understanding various provisions of the Act. The
definitions in the JJ Act, 2015 have the same function. While some of the definitions are just explanatory of the
accepted meanings of the term, some others have brought in new angles within their meaning. Section 2 of the JJ
Act, 2015 contains 60 definitions. In comparison, the JJ Act, 2000 contained only 25 definitions. The section begins
with the clarification that the definitions will have the meaning assigned to them in the various clauses “unless the
context otherwise requires”. Use of the expression means that it is open for persons to argue that a certain
definition should not be applied or should be interpreted differently due to the context of its application.
This part analyses the definitions and offers interpretations to promote the aims of the JJ Act, 2015. They have
been analyzed and grouped subject-wise for the purposes of analyses and complete comprehension of the subject.
2.4.1 Child
The word “child” means, “a person who has not completed 18 years of age”33 under the JJ Act, 2015. It also
includes the definition of “juvenile” as “a child below the age of 18 years”.34 There is no reason for inclusion of this
definition or rationale for the differential formulation and must be ignored as it has no bearing on any matter relating
to the JJ Act, 2015. Even though the word “juvenile” does appear at many places in the Act, it is used there as part
of title and has nothing to do with real children, e.g., the title of the Act, United Nations Standard Minimum Rules for
the Administration of Juvenile Justice, United Nations Rules for the Protection of Juveniles Deprived of their Liberty,
juvenile justice board, specialized juvenile police unit, juvenile justice fund, etc.
The definition of child is the same as was contained in the JJ Act, 2000. Contrary to popular perception, the JJ Act,
2015 has not reduced the age of juvenility to 16 years and the cut off age for applying the JJ Act, 2015 to children in
conflict with law remains 18 years. Use of the words “not completed 18 years of age” is better than “attained the age
of …” used in the JJA 1986 and earlier Children Acts. In one case, the Gujarat High Court had to decide that
“attained” meant completing and not entering the specified cut off age.35
Prior to the JJ Act, 2000, the corresponding Acts in the field of juvenile justice applied to boys below the age of 16
years and girls below the age of 18 years. Since the signing of the Convention on the Rights of the Child by India in
1992, Indian government was under pressure to define child as a person below the age of 18 years. In the
concluding observations of the CRC Committee on the First Periodical Report submitted by India,36 it noted with
concern that juvenile justice was still incompatible with the provisions of the CRC in the following words:
111. The Committee is concerned over the administration of juvenile justice in India and its incompatibility with articles 37,
40 and 39 of the Convention and other relevant international standards. The Committee is also concerned at the very
young age of criminal responsibility - 7 years - and the possibility of trying boys between 16 and 18 years of age as adults.
Noting that the death penalty is de facto not applied to persons under 18, the Committee is very concerned that de jure, this
Page 2 of 15
2.4 DEFINITIONS
possibility exists.
Pursuant to these observations, Ms. Maneka Gandhi, Minister for Women and Child Development introduced the JJ
Act, 2000 and in doing so, specifically stated:
The present Juvenile Justice Act 1986 is not in conformity with the International Conventions (sic) on the Rights of the Child
ratified by India such as the UN Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1995 (sic). These Conventions have prescribed a set of standards to be adhered to by
all the States parties in securing the best interests of the child…. (The JJ Bill 2000) brings the juvenile law in conformity with
the CRC; it prescribes a uniform age of eighteen years for both boys and girls as per Article 1 of CRC.37
So far the Act defines “child” in terms of chronological age of the physical body of the person. However, a new
question is being raised today about determining the age of a person by the mental age of the child. The Supreme
Court is currently hearing the plea of a victim’s mother who has pleaded that “in view of her present functional age
of three to four years following the heinous crime and her previous functional age of 8–10 years, the matter be
transferred to the Special Court established under POCSO Act as she remains a child in the interest of justice.”38
Her lawyer has argued that the mental age of the victim should be taken as the criteria for classifying an offence
under POCSO Act instead of the chronological age. Answer to this question will have far reaching implication under
all laws, including the JJ Act, 2015, which have provided a chronological age for defining child for determining
liability, rights and obligations.
2.4.2 Child in Conflict with Law
The phrase “child in conflict with law” means a child who is alleged or found to have committed an offence and who
has not completed 18 years of age on the date of commission of such offence’.39 There are two differences in this
definition compared to the corresponding definition in the JJ Act, 2000. First it has substituted the word “juvenile”
with “child”. Second, it has included within its ambit not only children “alleged to have committed an offence” as was
the case in the JJ Act, 2000 but also children “found to have committed an offence”. Even though substitution of the
word juvenile with child is to minimize the stigma and social baggage that has got to be attached with the word
juvenile, inclusion of children alleged to have committed an offence within this phrase still stigmatizes them in usual
meaning of the term. If any child is introduced as a child in conflict with law, it will be understood as a child who has
been found to have committed an offence unless the person is aware of the legal definition as given in the Act. Prior
to adopting the use of the term “child/juvenile in conflict with law”, the term in use was juvenile delinquent. The
JJA1986 used this term only when the juvenile was found to have committed and offence. In all other provisions, it
simply used the word juvenile. Incidentally, the JJA 1986 used the term “juvenile” for delinquents as well as
neglected children in contradistinction to the JJ Act, 2015 which uses the word child for all categories of children
covered under its provision as was the case in relation to Children Acts passed since 1960.
In all other respects the definition is the verbatim copy of the definition as introduced in the JJ Act, 2000 by the JJA
(Care and Protection of Children) Amendment Act 2006 which added the words “and has not completed eighteenth
years of age as on the date of commission of such offence” after “a juvenile who is alleged to have committed an
offence.”
Absence of the latter part of the definition as it exists today had resulted in many cases seeking determination of the
relevant date at which the child in conflict with law should be below the cut off age for applying the JJA. In the
Supreme Court itself, the question was considered four times. For the first time in Umesh Chandra40 the Supreme
Court held that age of the child on the date of commission of offence was decisive of the applicability of the Act.
This full bench decision was not considered by a later division bench in Arnit Das41 which held that the age on the
date of first production was relevant for deciding applicability of the Act. In the review petition filed against this
decision,42 the five judge bench refused to decide the issue as it was only of academic interest in the case because
the court had already determined that the accused before it was above the cut off age on the date of commission of
the offence. The matter was finally decided by the five judge bench of the Supreme Court in Pratap Singh v State of
Jharkhand,43 that reconfirmed the decision of Umesh Chandra holding that it is the age of the child on the date of
commission of offence that determined the applicability of the Act. The current definition is in consonance with this
decision. Any other date for deciding applicability of the JJA would violate Article 20(1) of the Constitution which
specifically prohibits subjecting any person “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.”
Page 3 of 15
2.4 DEFINITIONS
2.4.3 Child in Need of Care and Protection
The definition of “child in need of care and protection”44 has retained many of the clauses from the JJ Act, 2000 but
with some deletions, additions and modifications in the clauses. It contains 12 clauses.
Clause (i) includes a child “who is found without any home or settled place of abode and without any ostensible
means of subsistence”. This definition is the same as in the JJ Act, 2000 and includes children found without any
home or settled place of abode and without any ostensible means of subsistence. In the JJA 1986, if a child was
found in any one of these situations, he or she was a neglected child as it used the word “or” between the three
situations. However, the existing definition uses “or” between any home and place of abode and uses “and” in
relation to absence of ostensible means of subsistence. It seems to suggest that a child will fall within its ambit only
when absence of home or place of abode is coupled with ostensible means of subsistence. However, such niceties
have never been litigated in the court of law so far and children get picked up and produced before the CWC for the
ostensible objective of securing their best interest.
Clause (ii) includes a child “who is found working in contravention of labour laws for the time being in force or is
found begging, or living on the street.” However, it includes only those children who are working in violation of the
labour laws and does not cover all working children. It means that all children subjected to exploitation and abuse
by their employers in terms of section 7945 will need to be produced before the CWC in addition to prosecution of
the employee. It may also be remembered that section 79 does not cover all situations of violations of labour laws.
For example, the Child Labour (Prohibition and Regulation) Act spells out the number of hours for which a child
below the age of 14 may be employed at a stretch in a day. A child labour who is made to work for hours longer
than those prescribed, falls within this category though it does not amount to the offence contained in section 79.
Another category of violation may be caused by employing children in factories, mines and other hazardous work
prohibited under various laws.46 Implementation of this clause requires full knowledge of labour laws applicable to
children and what amounts to their violation.
There was very heated debate in 1953–54 in Parliament at the inclusion of a child found begging within the ambit of
the proposed Children Bill 195347 but these children have continued to remain within the purview of juvenile justice.
Definition of begging given in section 2(8)48 is the same as given in the JJ Act, 2000. “Children living on the street”
may present an interpretation challenge as the earlier expression used was “street child”. While the term street child
may refer to children living on streets without parents; children living on streets with parents; children living on
streets with occasional contact with their parents; children spending most of their day on the streets. The
expression “living on streets” may not apply to the last category of children who return to their homes at night but
are loitering on streets through the day without supervision.
Clause (iii) includes a 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 the child; or
has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being
carried out; or
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.
Clause (iii) is aimed at precautionary supervision of children. The group of children included within this clause are
children who are at real risk of being harmed for the first time or harmed again. It includes children who are living
with a person who has either already harmed the child or presents a reasonable risk of causing harm to such a
child. This harm includes threats of harm to the child or actual harm caused to some other child in the past.
Clause (iv) covers a child “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”. Surely the State has the obligation to provide care and protection to all children
who have no one to support or look after them. This is more so when such a child is also mentally ill or mentally or
physically challenged or suffering from terminal or incurable disease. This clause recognises that parent or guardian
of such children may be incapable of looking after such children due to these special conditions of their children and
may need State intervention for securing their care and protection. The focus of the Committee or the Board in
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relation to children covered in this clause will be to find out if the parent or guarding of the child is unfit - in the
sense of being incapable or unable to provide due care to the child and to pass necessary order to ensure the
required care to the child. The Committee may direct that the child will remain under the care and charge of the
same parent or guardian by arranging sponsorship or other support services that may be required by the parent or
guarding to take care of the child, or if need be, by moving the child to a children care institute. Understood in this
sense, this clause is aimed at bringing children suffering from any disability, terminal illness or incurable disease
within the purview of the JJ Act, 2015 to ensure necessary care to them and not at taking away the guardianship
rights of the parent or guardian.
Inclusion of Board within this clause is in accordance with the recognition under the JJ Act, 2015 that a child in
conflict with law may be a child in need of care and protection also at the same time and in such cases, the Board
and the Committee are required to work together.49 The Board may also find that a child in conflict with law before it
is suffering from any disability, incurable disease or terminal illness. In such cases the Board too should find out if
the parents or guardian of the child may take care of the child or additional measures are required for taking care of
the child. In such cases, the Board should work in collaboration with the Committee.
Clause (iv) is distinguishable from clause (v) though both mention children whose parents are unfit to take care of
them. Use of the word “unfit” in clause (iv) is unfortunate as it is used more in the sense of incapacity or incapability
of the parent to look after the child due to special condition of the child. Clause (v) covers a child “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”. Read in the light of section 76(2), the word “unfit” in this
clause refers to a parent or guardian who knowingly abuses and exploits the child for illegal purposes.
Incapacitated, however, is not necessarily a blameworthy condition and this incapacity may arise due to physical or
mental illness or incapacity of the parent, or incarceration of the parent. Even so the purpose of inquiry by the
Committee or the Board in all cases is to pass necessary orders to ensure the safety and well-being of the child and
not to appoint a “fit” guardian for the child. Even when the Board finds that the child before it has not committed an
offence but is a child in need of care and protection falling in any of the clauses of section 2(14), the Board may
transfer the child to the Committee.50
Clause (vi) refers to a child “who does not have parents and no one is willing to take care of, or whose parents have
abandoned or surrendered him”. This definition needs to be read in conjunction with the analyses of the definitions
of abandoned child and orphan child.
Clause (vii) includes a child “who is missing or run away child, or whose parents cannot be found after making
reasonable inquiry in such manner as may be prescribed”. This clause includes a new category of children within
the definition of children in need of care and protection. The “missing” child in this clause presents the peculiar
problem of not being present or traceable. A child can be said to be “missing” only till he or she is found. Once they
are found, they are no more missing. For the purposes of this Act, no action can be taken by anybody under this Act
till the child is found. Perhaps the intention was to refer to children who are lost as distinguished from children who
run away from home. A missing child as understood in the sense of a lost child, will need to be treated as a child in
need of care and protection if their parents cannot be found after reasonable inquiry.
The incident from Gumla, Jharkhand is an interesting case to understand the scope of clause (viii) which declares
that a child “who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse
or illegal acts” is a child in need of care and protection. In Gumla, as per the newspaper report,51 the villagers
complained that Maoists were demanding that they gave up their children and they needed protection from the
Maoists. Police brought 24 children from that village and kept them in Bishunpur Police Station where they were
feeling safe. Even though the report claims that these children were rescued from Maoists, it seems to be a
preventive action as there is no mention that police faced any Maoist in this operation. The report further also points
out that the police were ready to bring more children from adjoining villages if this was demanded by their parents.
On the face of it clause (viii) applies if children are likely to be abused, tortured or exploited for the purpose of illegal
acts. There is no requirement in the language of the clause that may suggest that it will apply only if such fear is
from the persons who have the actual charge and control over the child and not when such fear is from persons
other than those who have the actual charge and control of the children. Understood in this light, all these children
were children in need of care and protection and should have been produced before the Child Welfare Committee.
The JJA 2016 prohibits keeping of a child in conflict with law in a police station, even when alleged to have
committed a heinous offence. There can be no justification for keeping children in need of care and protection in the
police station to keep them secure. While protecting these children, police certainly violated various provisions of
the JJ Act, 2015.
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This clause covers all children who have been, or are, or may be abused, tortured or exploited for not only illegal
acts but also sexual abuse. The term “sexual abuse” should be understood to include all the offences listed in the
Protection of Children against Sexual Offences Act 2012. The POCSO Act, 2012 includes offences of sexual
assault, aggravated sexual assault, penetrative sexual assault, aggravated penetrative sexual assault, sexual
harassment, and pornography and abetment and attempt to commit any of these offences within its purview.
Categories of children included in clauses (ix) and (x) are the same as existed in the JJ Act, 2000, and these
include a child “who is found vulnerable and is likely to be inducted into drug abuse or trafficking”52 and a child “who
is being or is likely to be abused for unconscionable gains”.53
Clause (xi) includes a child “who is victim of or affected by any armed conflict, civil unrest or natural calamity”. This
clause is also similar to the earlier clause in the JJ Act, 2000 except that it has substituted “civil unrest” in the place
of “civil commotion”.
The last clause (xii) of section 2(14) includes a child “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”. This is a completely new category included within the definition of children in need
of care and protection and reflects the recognition the malaise of child marriage. It is a well-known fact that many
children are married before attaining the minimum age prescribed for marriage. Many times, the marriages are
performed against the wishes of the children also. This clause is aimed to strengthen the hands of agencies and
persons that may be involved in prevention of child marriages. They may now produce children who are at imminent
risk of marriage before the Committee which may pass appropriate orders in the best interest of the child.
Recently, the newspaper reported that a 15 years old girl, who was being forced to marry against her wish to an
already married man double her age, was rescued by the police.54 As per the police, the girl’s father had borrowed
Rs 60,000 and an e-rickshaw from the man but failed to return the amount. Two persons mediated the deal and
after receiving another Rs 20,000, the father offered his daughter in marriage. The groom, his father, girl’s father,
and the two mediators were arrested and charged under the Child Marriage Act and IPC.55 However, it is not
mentioned in the report if the rescued girl was presented before the CWC as a CNCP.
2.4.4 Best Interest of the Child
While it has always been emphasised that all decisions relating to children have to be taken in the best interest of
the child, the phrase had not been defined in the JJ Act, 2000 though a definition was included in the Model Rules
2007.56 As per the definition contained in the JJ Act, 2015, “best interest of child” “means the basis for any decision
taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical,
emotional and intellectual development.”57 The important component of best interest as included in this definition
are fulfillment of basic rights and needs of children, preservation of identity, ensuring social well-being, and
physical, emotional and intellectual development. The definition uses both the expressions basic rights and needs.
It should be noted that a rights based approach puts the State under an obligation to secure the basic needs of the
child as their right while the need based approach leaves the children at the mercy and good will of the State. As
the JJ Act, 2015 has acknowledged India’s obligation under the CRC, this definition must be understood to
recognise that children have a positive right to the fulfillment of their basic needs by the State and all functionaries
of the State dealing with children must take all decisions to secure the basic needs of the child as their basic rights.
This definition is further supplemented by the general principle of the best interest of the child contained in section 3
of the JJ Act, 2015.
2.4.5 Child friendly
All agencies, institutions, persons functioning under the JJ Act, 2015 have to act in a child friendly manner. The
phrase “child friendly” contained in section 2(15) means “any behaviour, conduct, practice, process, attitude,
environment or treatment that is humane, considerate and in the best interest of the child”. This definition has
widened the scope of operations that should be child friendly. It contains “behaviour, conduct, practice,” in addition
to process, attitude, environment or treatment that is humane, considerate and in the best interest of the child
included in Rule 2 (d) of the Juvenile Justice Model Rules 2007.
2.4.6 Adjudicatory bodies under the Juvenile Justice Act
The Board, the Children’s Court, the Committee and the civil court dealing with adoption matters are the only four
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adjudicatory bodies having original jurisdiction over all matters relating to children in conflict with law and children in
need of care and protection.
The Juvenile justice Board is referred to as the “Board”58 throughout the Act and has the exclusive power to
adjudicate all offences by children up to the age of 18 years except when it decides to transfer a 16–18 years old
child alleged to have committed a heinous offence after initial assessment as provided under the Act. The cases of
children so transferred are to be adjudicated by the Children’s Court.59 All cases relating to children in need of care
and protection are to be decided by the Child Welfare Committee60 except giving the child in adoption which is to be
done by the civil court, which has jurisdiction in matters of adoption and guardianship and may include the District
Court, Family Court and City Civil Court referred to as the “Court” under the JJ Act, 2015.61 The High Court may
adjudicate the matters relating to children in conflict with law and children in need of care and protection when the
matter comes before it in appeal, revision or otherwise.
2.4.7 Classification of Offences
The JJ Act, 2015 has introduced legislative classification of offences into three categories, namely, petty, serious
and heinous. Such classification has hitherto been unknown not only to juvenile justice but also in criminal justice.
So far, offences had been classified as bailable/non-bailable, compoundable/non-compoundable, warrant and
summons cases, cognisable/non-cognisable cases by the Code of Criminal Procedure. In addition, section 27 of the
Code of Criminal Procedure Code 1973 made a distinction between offences punishable with death penalty and life
imprisonment and others and provided that if a child below the age of 16 years had committed offences other than
those punishable with death penalty or life imprisonment may sent to the children’s court. However, the Supreme
Court in Rohtas v State of Haryana,62 and again in Raghbir v State of Haryana,63 held that all children irrespective
of the offence committed by them may be sent to the children’s court. In Sangeeta Jain,64 the accused was a girl of
17 years and the question before the Court was whether this girl may be dealt with by the juvenile court despite
section 27 of the CrPC which restricted transfer of children below the age of 16 years to the children’s court? The
Bombay High Court held in favour of applicability of the Juvenile Justice Act which included girls below the age of
18 years within its purview.
The only case in which differential provision for disposing of cases by reference to nature of offence is the direction
of the Supreme Court in Sheela Barse v UOI,65 In this case the Supreme Court held that if the offence alleged to
have been committed by a child is punishable with less than seven years of imprisonment and the inquiry is not
completed within three months of filing of the complaint, the case must be treated as closed. No such time frame
was provided for offences by children that were punishable with punishment of seven years or more. This distinction
was aimed at providing some relief to some children and not to subject them to any harsher penal regime.
It is for the first time in the history of juvenile justice system in India that a distinction has been made on the basis of
punishment prescribed for the offence for transferring children to be tried as adults in the criminal courts.
Be that as it may, the sections defining petty, serious, and heinous offences pose serious difficulty of interpretation
and implementation. Section 2 of the JJ Act, 2015 contains the definitions of petty, serious, and heinous offences as
follows:
‘Petty offences’ includes the offences for which the maximum punishment under the Indian Penal Code or any other law for
the time being in force is imprisonment up to three years.66
‘Serious offences’ includes the offences for which the punishment under the Indian Penal Code or any other law for the time
being in force, is imprisonment between three to seven years.67
‘Heinous offences’ includes the offences for which the minimum punishment under the Indian Penal Code or any other law
for the time being in force is imprisonment for seven years or more.68
It may be noted that these classifications apply not only to offences contained in the Indian Penal Code but also to
any other law special and local law in force on the date of offence. Further, all the three definitions use the word
“includes” which means that the definitions are not exhaustive of the categories of offences mentioned in each of
the definitions. It is also important to notice that while the definition of petty and heinous offences use the qualifying
words “maximum” and “minimum” while referring to the quantum of imprisonment prescribed for the offence to fall
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2.4 DEFINITIONS
within the category, there is no such qualifying word in the definition of “serious” offences. These aspects are
important to keep in mind as on the first reading of the three definitions, it can be noticed that offences punishable
with three years have been mentioned in both the definitions of petty and serious offences and offences punishable
with more than seven years of imprisonment do not figure in any of the three definitions.
In order to fill the loopholes left by these definitions, it is necessary to properly determine which offences fall in
which category. It is well established that harmonious interpretation is to be given in case of conflicting provisions in
order to resolve the conflict. It is also well recognised that while interpreting provisions that impose criminal liability,
the provisions have to be given their meaning by using strict and narrow interpretation as not to expand the liability
of the accused persons. Hence, while interpreting these three definitions, no offence that is not covered by the
qualifying words contained in the definition of petty and heinous offences may be included in these categories.
The definition of petty offences is quite clear as it includes only those offences that are punishable with maximum
imprisonment of three years. The qualifying words in this definition are “maximum imprisonment of three years”.
Hence, despite inclusion of offences punishable with three years of imprisonment in the category of serious
offences, this definition will need to be read as referring to offences punishable with imprisonment of more than
three years. Applying the principles of harmonious interpretation and imposition of lower criminal liability, and
keeping in view use of the word “maximum” in the definition of petty offence, it would be prudent to classify all
offences punishable with a maximum of three years of imprisonment as petty offences.
The second problem posed by the definition of serious offences is that it includes offences punishable with
imprisonment up to seven years. Due to this limitation included in the definition of serious offence, all offences
punishable with more than seven years of imprisonment are not serious offences. However, they are also not
covered in the definition of “heinous offences” either, as for an offence to be classified as heinous offence, it must
be punishable with “minimum imprisonment of seven years or more”. Offences like attempt to murder and many
others under the IPC and other laws in force are punishable with imprisonment for more than seven years but they
do not provide any mandatory minimum sentence. For any offence to be classified as a heinous offence, it must be
punishable with minimum imprisonment of seven years or more. The consequence of classification of an offence as
heinous under the JJ Act, 2015 is that if it is alleged to have been committed by a child between the age of 16–18
years, it exposes the child to the possibility of being tried as an adult and thereby expanding their criminal liability.
Hence, it is impermissible to include offences punishable with more than seven years of imprisonment but not
providing for imposition of mandatory minimum imprisonment of seven years within the category of heinous
offences.
It was mentioned during the debate in Parliament that classification of heinous offences in the Bill was not clear. In
order to clarify the definition, the Minister for Women and Child Development, Smt. Maneka Gandhi made the
following statement, “It is every crime that is listed by the IPC as seven years or more…. I just want to tell you what
it is…. I will explain to you what they are. They are murder, rape, acid attack, kidnapping for ransom, Dacoity with
Murder. That’s it.”69
This statement, apparently, is faulty on two counts but correct in third aspect when examined in the light of the
words used in the definition of heinous offence. First, classification of offences apply to all offences contained in
either the Indian Penal Code or any other law for the time being in force and it is not limited to offences only under
the IPC as mentioned by the Minister. Second, she referred to offences punishable with seven years or more
ignoring the crucial word used in the definition, i.e., “minimum” imprisonment of seven years or more. However, she
correctly identified the offences covered within this category as all the offences of the IPC mentioned by her are
punishable with “minimum imprisonment of seven years or more”.
As offences punishable with imprisonment of more than seven years which are not punishable with mandatory
minimum imprisonment of seven years are outside the purview of the definition of heinous offense and also are not
included within the ambit of serious offences either, it leaves a major lacuna that will need to be filled by judicial
interpretation. It is submitted that offences punishable with more than seven years of imprisonment but containing
no direction for imposition of minimum seven years of imprisonment, need to be classified as serious offences as
these offences cannot be included with the definitions of petty and heinous offences using the definitive words
“maximum” and “minimum” respectively to set the limit of what cannot be included within those categories. Even
though the definition of serious offence refers to offences punishable with imprisonment between three and seven
years, it poses problem of classification at both the ends due to use of qualifying words in the other two definitions.
No such qualifying word setting the boundaries has been used in the definition of serious offences. It is permissible
to expand the boundary set by the definition of a serious offence to include offences punishable with imprisonment
of more than seven years as this expansion is favourable to children alleged to have committed such offences. As a
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child committing a serious offence irrespective of age is to be dealt with by the Board and only protective orders
under section 18 may be passed in relation to them, it will not be against the interest of children to classify offences
punishable with imprisonment of more than seven years as serious offences for the purposes of the JJ Act, 2015
and thereby filling this major lacuna in the Act classifying offences. The Centre for Child and Law of National Law
School of India University has prepared a list of heinous offences,70 and it includes only those offences that are
punishable with mandatory minimum imprisonment of seven years or more.
It further needs to be clarified that offences punishable with minimum imprisonment of three years or more but less
than seven years will also constitute serious offence as the maximum imprisonment prescribed in such cases will
be more than three years.71 Other offences punishable with minimum imprisonment of less than three years but
punishable with maximum of three years need to be classified as petty offences.72
2.4.8 Residential Care Options
The JJ Act, 2015 includes many definitions relating to various types of residential care and they include child care
institutions, fit person, and foster care. Child care institutions are seemingly permanent in nature and hence, require
to be registered and fit person and foster care arrangements are based on individual basis and are monitored
differently.
2.4.8.1 Child Care Institution
The tern “child care institution”73 refers to a range of places where children may be kept and it means “Children
Home, open shelter, observation home, special home, place of safety, Specialised Adoption Agency and a fit facility
recognised under this Act for providing care and protection to children, who are in need of such services”.
In relation to Observation Home, Special Home and Observation Home, the JJ Act, 2015 follows the same pattern
as prescribed in the JJ Act, 2000. Children in conflict with the law may be kept in an observation home74 during
adjudication of their case by the Board when not released on bail. An observation home means a home established
and maintained by the government or a home run by a NGO registered as an observation home under the JJA. The
special home75 is for the stay of children found to have committed an offence. Children home76 is for the stay of
children in need of care and protection during the pendency of proceedings and later if the CWC finds that the child
is in need of care and protection when so directed by the CWC. Each one of these homes are required to be
established in each district.
Open shelters77 are meant for community based facility for children who may need residential support on a
temporary basis and may be established and run by the Government or by the NGOs.
Place of safety is conceived differently under the JJ Act, 2015 and is not what was meant by this term under the JJ
Act, 2000. It means “any place or institution, not being a police lockup or jail, established separately or attached to
an observation home or a special home, as the case may be, the person in-charge of which is willing to receive and
take care of the children alleged or found to be in conflict with law, by an order of the Board or the Children’s Court,
both during inquiry and ongoing rehabilitation after having been found guilty for a period and purpose as specified in
the order”.78 It may be used for keeping persons from the age of seven years onwards till infinity.79 Specialized
Adoption Agency80 is for keeping children declared legally free for adoption for the purpose of adoption. Fit
institution known under the JJ Act, 2000 has been substituted by “fit facility”81 which is to be used to meet some
specific need of a child on a temporary basis.82
Any institution whether run by the government or by voluntary or non-government organization providing residential
care to children in need of care and protection or to children in conflict with law, either on permanent or temporary
basis need to be registered under the JJ Act, 2015.83
2.4.8.2 Fit Person
Definition of “fit person” was first inserted in the Children Act 1960 by the Children (Amendment) Act 1978. Similar
definitions continued to find place in the JJA 1986 and the JJ Act, 2000 also but the provision has remained largely
unimplemented due to no clear understanding about the concept. The Model Rules framed under the JJA 1986 had
provided for recognition of fit persons by the State Government while the Act provided that the person should be
found fit by the Board or the Committee.84 The Model Rule 2007 under the JJ Act, 2000 distinguished between
recognition of a fit person and fit institution by providing that the fit person may be so declared by the Board or the
Committee after due inquiry but the fit institution was to be recognised by the State Government. However, it
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conflated fit person and foster parents by providing that the foster parents shall be declared “fit persons” before
handing charge of the children.85
Hence, it is important to understand the true meaning and scope of the definition of “fit person” and the
circumstances when the child is to be placed in the care of a fit person. “Fit Person” under the JJ Act, 2015 “means
any person, prepared to own the responsibility of a child, for a specific purpose, and such person is identified after
inquiry made in this behalf and recognised as fit for the said purpose, by the Committee or, as the case may be, the
Board, to receive and take care of the child”.86 The important distinction between the care provided by the fit person
and foster care is that the fit person accepts the responsibility of the child “for a specific purpose” and not to take
care of a child like a parent as in foster care. For example, a child in need of care and protection who does not
speak and understand the local language may be placed with a fit person for a specified period for the purpose of
finding out the full details of the child’s story. Or if a child victim of rape requires to be kept in safe custody away
from other children in the Children’s Home temporarily, services of a fit person may be used. Foster care, on the
other hand, requires that the foster parent or family is offering to look after the child as their own without making the
child a member of their family like in adoption but without the rights of the adoptive child, like right to the name of
the family, inheritance rights, etc. The distinction between the care of a fit person and foster care becomes clear
when definition of fit person is compared with the definition of foster care as given in the Act.
2.4.8.3 Foster care
“Foster care” under the JJ Act, 2015 “means placement of a child, by the Committee for the purpose of alternate
care in the domestic environment of a family, other than the child’s biological family, that has been selected,
qualified, approved and supervised for providing such care”.87 Foster care is aimed at providing family like care to
the child allowing the child to grow up as a member of the family while retaining their separate identity. For placing a
child in foster care, the District Child Protection Unit has been given the responsibility of finding suitable foster
family.88 The JJ Act, 2015 makes provision for group foster care also which means “a family like care facility for
children in need of care and protection who are without parental care, aiming on providing personalised care and
fostering a sense of belonging and identity, through family like and community based solutions”.89 The care
provided to children placed in SOS Children’s Village is a good example of group foster care as they encourage
bonding as siblings among children brought up by the same mother in the same cottage. SOS Children’s Village
use community based schools and vocation centres for education and training of its children.90
2.4.9 Officers for Children
“Child Welfare Officer”91, “Child Welfare Police Officer”92, “Probation Officer”93 discharged various functions under
the JJ Act, 2000 but these terms were not defined under the earlier Act but the same have been defined in the JJ
Act, 2015. These definitions are, however, technical in nature and do no value addition about the nature of their
responsibilities or function. While there is no change in relation to child welfare officer and child welfare police
officer, a new group has been added in the cadre of probation officers, namely, “Legal-cum-Probation Officer
appointed by the State Government under DCPU”.
District Child Protection Unit has been given a central role in the implementation of the Act and it refers to “a Child
Protection Unit for a District, established by the State Government under section 106, which is the focal point to
ensure the implementation of this Act and other child protection measures in the district”.94
The JJ Act, 2015 has integrated Childline services for making juvenile justice more accessible to children who may
call the universal Childline telephone number 1098 in an emergency or for their long-term care and rehabilitative
services.95
Like the JJ Act, 2000, the JJ Act, 2015 also provides that children a (55) “special juvenile police unit” should handle
all case of children falling within the purview of this Act and it “means a unit of the police force of a district or city or,
as the case may be, any other police unit like railway police, dealing with children and designated as such for
handling children under section 107”.96
2.4.10 Adoption
The definition of “adoption”97 in the JJ Act, 2015 differs from that inserted in the JJ Act, 2000 in 200698 in certain
respects. While the JJ Act, 2000 referred to the adopted child as the legitimate child of his adoptive parents, the
current definition describes such child as the lawful child. The rationale for substitution of the word legitimate by
lawful is perhaps to distance the law from the binary of legitimate and illegitimate child in order to move away from
the stigma attached with the status of being an “illegitimate child”. However, that stigma can be removed only by
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2.4 DEFINITIONS
securing equal rights of children born within and outside wedlock and not by this feeble attempt at removal of the
stigma by mere semantic changes. The further reference to “biological child” in the era of surrogacy may need
some clarifications. As of now, the status and rights of the biological child of the father delivered through a
surrogate mother are uncertain vis-à-vis the wife of the father in the absence of any law governing the field. Such a
child is not genetically or biologically related with the wife of the father and his rights may be different from the rights
of other children who are biologically related to both the parents either born naturally or through surrogacy.
Other definitions related to adoption do not require interpretation as they are technical in nature. These definitions
are “adoption regulations”1, “authorised foreign adoption agency”2, “Authority”,3 “Central Authority”,4 “child legally
free for adoption”,5 “inter-country adoption”,6 “no objection certificate”,7 “non-resident Indian”,8 “overseas citizen of
India”,9 “person of Indian Origin”,10 “prospective adoptive parents”,11 “relative”,12 “State Agency”,13 and “Specialised
Adoption Agency”.14
2.4.10.1 Children who may be adopted
The JJ Act, 2015 lays down a detailed procedure for declaring a “child legally free for adoption”15 after which a child
may be given in adoption as per further details given in the Act.16 Abandoned, orphan and surrendered children
may be declared by the Committee as legally free for adoption.
(1)Abandoned Child: The first definition in the definition section is that of “abandoned child” and it means “a child
deserted by his biological or adoptive parents or guardians, who has been declared as abandoned by the
Committee after due inquiry”.17 This definition differs from the ordinary meaning of the term abandoned which will
refer to a new born baby who is left on the garbage dump as an abandoned child. However, as per this definition
such a child is not abandoned till the time, the CWC has made due inquiry as prescribed in the Act18 and declared
the child to be abandoned. This definition has obliterated the distinction between an abandoned child and a
surrendered child.
(2)Orphan Child: As per section 2(42) “orphan” means a child—
(1) who is without biological or adoptive parents or legal guardian; or

(2) whose legal guardian is not willing to take, or capable of taking care of the child;
Clause (i) is easy to understand as it refers to a child who has neither the natural or legal guardian nor the adoptive
parent and such child will be better off if given in adoption. The same will be true in case of a child who has parents
but they are incapable of taking care of the child in clause (ii). Such incapacity may force the parents to surrender
the child. The incapacity of the parent may be understood in conjunction with the definition of surrendered child who
is relinquished by the parent or guardian on account of physical, emotional and social factors beyond their control,
and declared as such by the Committee. However, counting a child whose parents are “unwilling” to take care of the
child is problematic as it seems to give free hand to any parent to refuse to take care of their children. While it is
good to promote adoption but it should not be done at the cost of the right of the child to be cared by its natural
family.
(3) Surrendered Child: For a child to be treated as surrendered it is not sufficient to leave the child in a cradle
which is akin to desertion. Surrendering of the child is to be done by the parent or guardian before the Committee
and the committee has to declare the child as surrendered child19 after following the process provided in the Act.
2.4.11 Aftercare
“Aftercare” means “making provision of support, financial or otherwise, to persons, who have completed the age of
18 years but have not completed the age of 21 years, and have left any institutional care to join the mainstream of
the society.”20 The meaning and scope of this definition has been discussed in greater details in Chapter 5.
2.4.12 Miscellaneous Definitions
2.4.12.1 Corporal punishment
The JJ Act, 2015 includes the definition of corporal punishment and it “means the subjecting of a child by any
person to physical punishment that involves the deliberate infliction of pain as retribution for an offence, or for the
purpose of disciplining or reforming the child”.21 There is no need for this definition to be part of section 2 as these
words appear only in section 82 and has a narrower scope than provided in this definition.22
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2.4 DEFINITIONS
2.4.12.2 Guardian
The word guardian is usually understood to mean the natural guardian of the child as per the personal laws
applicable to the child or a guardian appointed by the Court but the term as used in the Act includes a person who
has the actual charge of the child. However, such a person who is neither the natural guardian nor the legal
guardian appointed by the court, must be recognised by the Board or the Committee as the guardian during the
proceedings.23 For example, a family friend with whom the child may have been kept by the natural guardian of the
child for the purposes of education, is the guardian within the meaning of the JJ Act, 2015 and entitled to deal with
the child as a guardian. A guardian has to discharge the same responsibilities and functions which a parent has
toward their children.
2.4.12.3 Sponsorship
Many a times a child may be looked after well with little support from outside. Whether the child is with their own
family or in an institutional setting and the JJA makes provision for sponsorship support for them. It may provide
“supplementary support, financial or otherwise, to the families to meet the medical, educational and developmental
needs of the child”.24
The definitions of “administrator”,25 “narcotic drug” and “psychotropic substance”,26 “notification”,27 “prescribed”,28
“public place”,29 and “State Government”30 are technical in nature and do not need further elaboration.
The last clause of section 2 provides that “all words and expressions used but not defined in this Act and defined in
other Acts shall have the meanings respectively assigned to them in those Acts.”31 It is a residuary clause
prescribing for using definitions from other legislations if the term is not defined in this Act. Usually, such residuary
clauses specify the other legislations from which the definitions may be used. Earlier, the residuary definition clause
in the JJA 1986 and JJ Act, 2000 had provided for applying the definitions given in the Code of Criminal Procedure.
Clause (61) of section 2 of the JJ Act, 2015 has provided for use of definitions from “other Acts” irrespective of what
may be their subject matter or context.
2.4.12.4 Inquiry
An important term “inquiry” had been used many times in the JJA 1986 and the JJ Act, 2000 and is also used in the
JJ Act, 2015 remains undefined despite its use in a range of situations.32 The term as defined in the Code of
Criminal Procedure “means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court”.33
The Board and the Committee are required to conduct various kinds of inquiries under the Act including
determination of age of the person before them; whether the child has committed the offence; whether the child is in
need of care and protection; if a person can be declared a fit person; etc. Inquiries are required to be made by
persons other than the members of the Board and the Committee. For example, a magistrate not empowered to
deal with children also has to hold an inquiry to determine the age of the person present before it.34 The State
government is also required to conduct an inquiry before terminating the services of any member of the
Committee.35 The nature and consequences of all these inquiries are different but all of them are referred to as
inquiry under the Act without paying attention to the outcome and impact of the inquiry on the affected person. The
JJ Act, 2015 does prescribe different procedures to be followed by the Board while determining commission of an
offence by the child and by the Committee for determining if the child is in need of care and protection, procedure to
be followed in all other inquiries have remained unaddressed as due attention has not been paid to this important
word used very frequently in the JJ Act, 2015.
33 Section 2(12).
34 Section 2(35).
35 Malda Dada v state of Gujarat, ILR (1972) Gujarat 326.
36 Available at https://www1.umn.edu/humanrts/crc/india2000.html, last visited on 3 April 2016.
37 Available at http://indiankanoon.org/doc/626605/, last accessed on 13 March 2016.
38 Read more at: http://www.livelaw.in/sc-hear-friday-unique-case-invoke-pocso-sanjay-hegde-appointed-represent-
accused/, last visited on 5 May 2016.
39 Section 2(13).
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2.4 DEFINITIONS
40 AIR 1982 SC 1057 [LNIND 1982 SC 80].

41 AIR 2000 SC 2264 [LNIND 2000 SC 859].
42 Arnit Das-II, 2001(6) SCC 461.
43 Appeal (crl.) 210 of 2005 decided on 2 Feb 2005, available at http://indiankanoon.org/doc/254131/, last accessed 13
March 2016.
44 Section 2(14).
45 See also, Chapter 6 for more discussion on section 79.
46 For the list of employments banned for children under the Child Labour (Prohibition and Regulation) Act and Factories
Act, see, http://www.karmayog.org/childlabour/childlabour_17879.htm#, last visited on 3 April 2016.
47 For more details, see, Ved Kumari, Juvenile Justice Act From Welfare to Rights, p 106 (2nd Edn 2010).
48 Section 2(8) reads “begging” means—
(i) soliciting or receiving alms in a public place or entering into any private premises for the purpose of soliciting or
receiving alms, under any pretence;
(ii) exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease,
whether of himself or of any other person or of an animal.
49 Section 8(3)(g).
50 See, section 17.
51 Cops rescue children from Maoists, http://timesofindia.indiatimes.com/city/ranchi/cops-rescue-children-from-
maoists/articleshow/51517746.cms, last visited on 8 April 2016.
52 Clause (ix) of section 2(14).
53 Clause (x) of section 2(14).
54 Times of India, Delhi Edition, 29 March 2016, available at
http://epaperbeta.timesofindia.com/Article.aspx?eid=31808&articlexml=15-yr-old-saved-from-marriage-
29032016008008, last visited on 30 March 2016.
55 Section 366, forcing a woman to marry against her wishes.
56 Rule 2 (c) of the JJ Model Rules 2007 provided that “best interest of the child” means a decision taken to ensure the
physical, emotional, intellectual, social and moral development of juvenile or child.
57 Section 2(9).
58 Under section 2 (10) “Board” means a Juvenile Justice Board constituted under section 4.
59 Under section 2 (20) “Children’s Court’’ means a court established under the Commissions for Protection of Child
Rights Act, 2005 or a Special Court under the Protection of Children from Sexual Offences Act, 2012, wherever existing
and where such courts have not been designated, the Court of Sessions having jurisdiction to try offences under the
Act.
60 As per section 2 (22 ) “Committee” means Child Welfare Committee constituted under section 27.
61 Section 2(23).
62 AIR 1979 SC 1839 [LNIND 1979 SC 310].
63 1981 Cri 1497 (SC).
64 1996 Cr LJ 24 (Bombay).
65 AIR 1986 SC 1773 [LNIND 1986 SC 244].
66 Section 2(45).
67 Section 2(54).
68 Section 2(33).
69 Reply of Minister of Women and Child Development Smt. Maneka Sanjay Gandhi on the discussion on the Juvenile
Justice (Care and Protection of Children) Bill, 2015, 22 December 2015 available on
https://www.youtube.com/watch?v=bdlQ-Q8YhcI, accessed on 6 March 2016.
70 This list includes sections 121, 195, 195A, 302, 304B, 311, 326A, 364A, 370(2), 370(3), 370(4), 370(5), 370(6), 370(7),
376(1), 376(2), 376A, 376D, 392 r/w 397, 394 r/w 397, 396 r/w 397, 393 r/w 398, 395 r/w 398 of the IPC; section 4(1)
and (2) of the Commission of Sati (Prevention) Act, 1987; sections 15(c), 17(c), 18(b), 19, 20(c), 21(c), 22(c), 23(c), 24,
Page 13 of 15
2.4 DEFINITIONS
25, 27A, 29, 31A of the NDPS Act 1985; section 27(2) and (3) of the Arms Act; sections10(b)(i), 16(1)(a) of the Unlawful
Activities (Prevention) Act 1967; section 59(iv) of the Food Safety and Standards Act, 2006; section 3(2)(i)(iv)(v) of the
Schedule Cast and Schedule Tribe (Prevention of Atrocities) Act 1989, section 3(1)(i) of the Maharashtra Control of
Organized Crime Act 1999; sections 4 and 6 of the Protection of Children from Sexual Offences Act 2000.
71 For example, the offence of assault or use of criminal force to women with intent to disrobe punishable under section
354B of the IPC.
72 For example, the offence of voyeurism punishable under section 354C of the IPC.
73 Section 2(21).
74 Under section 2(40) “observation home” means an observation home established and maintained in every district or
group of districts by a State Government, either by itself, or through a voluntary or non-governmental organisation, and
is registered as such, for the purposes specified in sub-section (1) of section 47.
75 Under section 2(56) “special home” means an institution established by a State Government or by a voluntary or non-
governmental organisation, registered under section 48, for housing and providing rehabilitative services to children in
conflict with law, who are found, through inquiry, to have committed an offence and are sent to such institution by an
order of the Board.
76 Under section 2(19) “Children’s Home” means a Children’s Home, established or maintained, in every district or group
of districts, by the State Government, either by itself, or through a voluntary or non-governmental organisation, and is
registered as such for the purposes specified in section 50.
77 Under section 2(41) “open shelter” means a facility for children, established and maintained by the State Government,
either by itself, or through a voluntary or non-governmental organisation under sub-section (1) of section 43, and
registered as such, for the purposes specified in that section.
78 Section 2(46).
79 For more detailed analyses, see, chapters 3 and 5.
80 Under section 2(57) “Specialised Adoption Agency” means an institution established by the State Government or by a
voluntary or non-governmental organisation and recognised under section 65, for housing orphans, abandoned and
surrendered children, placed there by order of the Committee, for the purpose of adoption.
81 Section 2(27) defines “fit facility” as “a facility being run by a governmental organisation or a registered voluntary or
non-governmental organisation, prepared to temporarily own the responsibility of a particular child for a specific
purpose, and such facility is recognised as fit for the said purpose, by the Committee, as the case may be, or the
Board, under sub-section (1) of section 51”.
82 For more details, see, chapter 5.
83 Section 2(51) read with section 41. For more details, see chapter 5.
84 For more details, see, Ved Kumari, Treatise on the Juvenile Justice Act 1986, pp 14–17 (1993) Indian Law Institute.
85 Rule 35(3), Model Rules 2007 under the JJ Act, 2000.
86 Section 2(28).
87 Section 2(29).
88 Section 2(30) defines “foster family” as “a family found suitable by the District Child Protection Unit to keep children in
foster care under section 44”. For more details, see, chapter 5.
89 Section 2(32).
90 More details may be found at http://www.soschildrensvillages.in/, last visited on 10 April 2016.
91 As per section 2(17), “Child Welfare Officer” means an officer attached to a Children’s Home, for carrying out the
directions given by the Committee or, as the case may be, the Board with such responsibility as may be prescribed.
92 Section 2(18) provides that “Child Welfare Police Officer means an officer designated as such under sub-section (1) of
section 107”.
93 Section 2(48) defines “probation officer” as “an officer appointed by the State Government as a probation officer under
the Probation of Offenders Act, 1958 or the Legal-cum- Probation Officer appointed by the State Government under
District Child Protection Unit”.
94 Section 2(26).
95 Section 2(25) provides that “Childline services” means a twenty-four hours emergency outreach service for children in
crisis which links them to emergency or long-term care and rehabilitation service.
96 Section 2(55).
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2.4 DEFINITIONS
97 “Adoption” under section 2(2) “means the process through which the adopted child is permanently separated from his
biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities
that are attached to a biological child.”
98 Section 2(aa) inserted in the JJ Act, 2000 by the Juvenile Justice (Care and Protection) Amendment Act 2006 defined
adoption as “the process through which the adopted child is permanently separated from his biological parents and
become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to
the relationship”.
1 Section 2(3) reads, “adoption regulations” means the regulations framed by the Authority and notified by the Central
Government in respect of adoption.
2 Section 2(6) reads, “authorised foreign adoption agency” means a foreign social or child welfare agency that is
authorised by the Central Adoption Resource Authority on the recommendation of their Central Authority or
Government department of that country for sponsoring the application of non-resident Indian or overseas citizen of
India or persons of Indian origin or foreign prospective adoptive parents for adoption of a child from India;
3 Section 2 (7) reads, “Authority” means the Central Adoption Resource Authority constituted under section 68.
4 Section 2(11) reads, “Central Authority” means the Government department recognised as such under the Hague
Convention on Protection of Children and Cooperation in Inter-country Adoption (1993).
5 Section 2(16) reads, “child legally free for adoption” means a child declared as such by the Committee after making due
inquiry under section 38;
6 Section 2(34) reads, “inter-country adoption” means adoption of a child from India by non- resident Indian or by a
person of Indian origin or by a foreigner.
7 Section 2(37) reads, “no objection certificate” for inter-country adoption means a certificate issued by the Central
Adoption Resource Authority for the said purpose.
8 Section 2(38) reads, “non-resident Indian” means a person who holds an Indian passport and is presently residing
abroad for more than one year.
9 Section 2(43) reads, “overseas citizen of India” means a person registered as such under the Citizenship Act, 1955.
10 Section 2(44) reads, “person of Indian origin” means a person, any of whose lineal ancestors is or was an Indian
national, and who is presently holding a Person of Indian Origin Card issued by the Central Government.
11 Section 2(49) reads, “prospective adoptive parents” means a person or persons eligible to adopt a child as per the
provisions of section 57.
12 As per section 2 (52) “relative”, in relation to a child for the purpose of adoption under this Act, means a paternal uncle
or aunt, or a maternal uncle or aunt, or paternal grandparent or maternal grandparent;
13 Section 2(53) reads, “State Agency” means the State Adoption Resource Agency set up by the State Government for
dealing with adoption and related matters under section 67.
14 Section 2(57) reads, “Specialised Adoption Agency” means an institution established by the State Government or by a
voluntary or non-governmental organisation and recognized under section 65, for housing orphans, abandoned and
surrendered children, placed there by order of the Committee, for the purpose of adoption.
15 As per section 2(16) “child legally free for adoption” means a child declared as such by the Committee after making due
inquiry under section 38;
16 For detailed discussion of these processes, see, Chapter 5.
17 Section 2(1).
18 See, Chapter 5 for more details.
19 Under section 2(60) “surrendered child” means a child, who is relinquished by the parent or guardian to the Committee,
on account of physical, emotional and social factors beyond their control, and declared as such by the Committee.
20 Section 2(5).
21 Section 2(24).
22 For more details, see, Chapter 6.
23 Section 2(31) provides that “guardian” in relation to a child, “means his natural guardian or any other person having, in
the opinion of the Committee or, as the case may be, the Board, the actual charge of the child, and recognised by the
Committee or, as the case may be, the Board as a guardian in the course of proceedings”.
24 Section 2(58).
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2.4 DEFINITIONS
25 Section 2(4) provides that “administrator” means any district official not below the rank of Deputy Secretary to the State,
on whom magisterial powers have been conferred.
26 Section 2(36) provides that “narcotic drug” and “psychotropic substance” shall have the meanings, respectively,
assigned to them in the Narcotic Drugs and Psychotropic Substances Act, 1985.
27 Section 2(39) provides that “notification” means the notification published in the Official Gazette of India, or as the case
may be, in the Gazette of a State, and the expression “notify” shall be construed accordingly.
28 Section 2(47) provides that “prescribed” means prescribed by rules made under this Act;
29 S2(50) provides that “public place” shall have the same meaning assigned to it in the Immoral Traffic (Prevention) Act,
1956.
30 Section 2(59) provides that “State Government”, in relation to a Union territory, means the Administrator of that Union
territory appointed by the President under article 239 of the Constitution;
31 Section 2(61).
32 See, for more discussion, Ved Kumari, Treatise on the Juvenile Justice Act 1986, p 31 (1993) Indian Law Institute.
33 Section 2(g), CrPC.
34 Section 9.
35 Section 27(7).
End of Document
2.5 GENERAL PRINCIPLES
Ved Kumari

Chapter II of the JJ Act, 2015 contains only one provision, namely, section 3, but it is a very important provision as it
regulates the conduct and behavior of all persons functioning under this Act. This section spells out the fundamental
principles of care and protection of children that have to be observed by all agencies while implementing the Act.
While the Juvenile Justice Model Rules 2007 had introduced a provision of fundamental principles on similar lines
but it not being part of the parent statute, did not have the same force as section 3 has in the current Act.
The section begins with a very categorical statement that the “Central Government, the State Governments, the
Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided” by
the fundamental principles given in this section. While the Board has been listed by name in this section, the
Committee, DCPU, SJPU, probation officers, social workers, homes, etc., are all covered in the expression “other
agencies”. Use of the word “shall” is also indicative of the binding nature of these principles.
This Chapter is similar to the Directive Principles of State Policy in the Constitution of India which contains
principles to be followed by the Government even though they do not create any rights in persons. Many of the
Directive Principles have been used by the Courts in the interpretation of Fundamental Rights. Similarly, these
principles will be of use in understanding and determining the scope of all other provisions and rights of children as
provided for under the JJ Act, 2015. Further, the reference to these principles as “general principle” indicates that
these principles are to be read as being part of all the provisions of the Act in the same manner as general
exceptions are read as part of each offence contained in the Indian Penal Code. Compared to the JJ Model Rules
2007 which contained 12 principles, this section contains 16 principles and each principle is analysed below in
detail.
However, some of these general principles which are supposed to be fundamental in the implementation of the Act
are in apparent conflict with the provisions of the Act and requiring either striking down of such provisions for
violating the fundamental principles or provision of a harmonious interpretation in consonance with these
fundamental principles.
2.5.1 Principle of presumption of innocence
“Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of 18 years.”
This principle is in apparent conflict with the scheme of the Act which provides for selective transfer of children to be
tried as adults if alleged to have committed a heinous offence. This principle is couched in the manner of
irrebuttable presumption contained in the Evidence Act containing the words “shall presume.” If the JJB is required
to presume that every child till the age of 18 years is innocent of any mala fide or criminal intent, no child can fall
Page 2 of 7
outside this presumption and cannot be transferred to the Children’s Court to be tried as adults. The two provisions
can stand together only by stretching the principle of harmonious interpretation by referring to the provisions
contained in the Indian Penal Code relating to criminal liability. Even so, the scheme of transfer of children remains
in conflict with other fundamental principles contained in this section as explained below.The Indian Penal Code
provides that nothing is an offence if done by a child below the age of seven years.36 It is based on the presumption
that children below the age of seven years are incapable of having any mala fide or criminal intent. Children above
the age of seven but below the age of 12 are presumed to be so capable but they may prove the absence of such
capability on individual basis.37 The UN CRC Committee had asked the Government of India to raise this minimum
age of criminal responsibility as seven years was too low.38 Internationally acceptable age of criminal responsibility
is 12 years.39 The JJ Act, 2015 seems to have taken a great leap from the provisions in the IPC to declare that
children till the age of 18 years are presumed to be innocent of mala fide and criminal intent in this principle.
The JJ Model Rules 2007 had also contained a principle similar to this applicable to children in conflict with law as
well as children in need of care and protection. While laying down the age of innocence to be 18 years, it explained,
“Age of innocence is the age below which a juvenile or child or a juvenile in conflict with law cannot be subjected to
the criminal justice system. The Beijing Rule 4(1) clearly lays down that “the beginning of the age of criminal
responsibility shall not be fixed at too low an age level bearing in mind the facts of mental and intellectual maturity”.
In consonance with this principle, the mental and intellectual maturity of juvenile or child or a juvenile in conflict with
law below 18 years is considered insufficient throughout the world.”40
The same considerations seem to have prevailed for inclusion of the current principle of innocence. However,
another clause included in the Model Rules 2007 providing for respect of this principle “throughout the process of
justice and protection, from the initial contact to alternative care, including aftercare”41 is not found in the JJ Act,
2015. Instead, it contains the provisions that permit transfer of a 16–18 years old alleged to have committed a
heinous offence after preliminary assessment of their state of mind and circumstances of commission of offence in
complete contrast to the principle of innocence contained in this clause. However, on deeper analyses, it is possible
to theoretically reconcile this contradiction by understanding it as an exception to the general rule. While the general
presumption is that all children are innocent of any mala fide or criminal intent till the age of 18 years, it may be set
aside in case of 16–18 years old children alleged to have committed a heinous offence if a preliminary assessment
proves that this particular child had an adult mind. In this sense it lays down the presumption opposite to what is
contained in section 83 vis-à-vis children between the age of 7–12 years. While this section presumes all children
within this age group to be mentally mature, the burden is on the child to prove otherwise. In the JJ Act, 2015, the
presumption is that children till the age of 18 years are innocent of any mala fide or criminal intent but the Board
may determine otherwise on the basis of initial assessment about the child’s state of mind and the circumstances of
commission of offence. Even though these conflicting provisions may thus be reconciled theoretically, the problems
on the ground to determine whether a particular 16–18 years old child has committed the offence with an adult mind
are going to be insurmountable and resulting in many arbitrary decisions and is liable to be set aside for violating
Article 14.42
2.5.2 Principle of dignity and worth
“All human beings shall be treated with equal dignity and rights.”
This principle incorporates the first right contained in the Universal Declaration of Human Rights that declares all
humans are born free and equal in dignity and rights.43
It is important to notice that while all other principles contained in section 3 refer to children, this principle directs
that “all human beings” shall be dealt with equal dignity and rights. The range of human beings having a stake in the
implementation of this Act will include all children covered under the Act, their parents, guardians, and other family
members, witnesses, victims, and their families, Board and Committee members, members of DCPU and SJPU,
personnel working in various child care institutions, fit persons, experts, NGOs, etc. Most of the children coming
before the Board and the Committee belong to the lowest economic and educational strata of society. They and
their families are at the greatest risk of violation of their rights and dignity. Hence, this principle should be
understood specifically to direct the state officials not to discriminate any person with whom they interact and that
they must treat all of them equally and with dignity. This principle is in consonance with the fundamental rights of life
and equality secured by the Constitution of India to all.
2.5.3 Principle of participation

Page 3 of 7
“Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and
the child’s views shall be taken into consideration with due regard to the age and maturity of the child.”
The principle of participation as contained in the JJ Act, 2015 seems to be a reiteration of India’s obligation under
the CRC. The CRC obligates the State Parties to assure that children who are capable of forming their own views
must have the right to express those views freely in all matters affecting the child and that their views are given due
weight in accordance with the age and maturity of the child.44 It further provides that “the child shall in particular be
provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either
directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of
national law.”45 These directions of the CRC must be read as part of this principle while implementing this principle.
In any case, the concept of child participation in judicial proceedings is well known in India. For long the Courts
were under a duty to take into consideration the views of the child in deciding the issue of custody of children.46 The
current principle extends the right to participation of the child in all decisions relating to them and not only in custody
matters.
2.5.4 Principle of best interest
“All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the
child and to help the child to develop full potential.”
This principle should be read in conjunction with section 2(9) of the Act and Article 3 of the CRC dealing with the
best interest of the child. In terms of section 2(9) of the Act, all decisions regarding the child must ensure fulfillment
of their basic rights and needs, identity, social well-being and physical, emotional and intellectual development.
Article 3 of the CRC provides that the best interest of the child should be the primary consideration in all actions
relating to children taken by public or private welfare institutions, courts of law, administrative authorities or
legislative bodies and includes all measures necessary for their care and protection and well-being.47
However, the provisions permitting transfer of children to the Children’s Court and their trial as adults seem to be
against the principle of best interest. This principle requires that “all decisions regarding the child shall be based on
the primary consideration that they are in the best interest of the child and to help the child to develop full
potential”.48 Transfer of children to be tried as adults is based on the principle of retributive justice and not best
interest of the child.
2.5.5 Principle of family responsibility
“The primary responsibility of care, nurture and protection of the child shall be that of the biological family or
adoptive or foster parents, as the case may be.”
The CRC recognizes that children should grow up in a family environment for the full and harmonious development
of their personality.49 This principle imposes the duty of care, nurture and protection of children on their biological
family or adoptive or foster parents. Inclusion of adoptive and foster care is to ensure that all children grow up in a
family environment. However, the provisions permitting the biological parents to abandon their children without any
criminal sanction are in violation of the right of the child to know and be cared for by his parents as per Article 7 of
the CRC .
2.5.6 Principle of safety
“All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or
maltreatment while in contact with the care and protection system, and thereafter.”
All the principles are to be observed by all the agencies involved in the implementation of the Act. The Board and
the Committee must take special care that no child is abused or harmed by any other agency or individual in whose
care the child may be placed. This principle is to be observed even at the time of final disposal to ensure that the
child is not placed with any person who may abuse the child or cause any harm to them. If any child has the
tendency to self-inflict any harm, care needs to be taken to prevent that as well.
Page 4 of 7
However, the proviso to section 18(1) (g) permits sending of any child irrespective of their age or offence to a place
of safety. This is in clear violation of the Principle of safety which is aimed at provision of all measures to ensure
safety of the child so that he is not subjected to any harm, abuse or maltreatment while in contact with the care and
protection system, and thereafter.50 Place of safety is meant primarily to keep children from the age of 16 years
having committed a heinous offence till the age of 21 years and sending young children there will be adverse to
their well being.
2.5.7 Positive measures
“All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating
development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children
and the need for intervention under this Act.”
The principle of positive measure imposes a duty on the functionaries under the Act to mobilize all possible
resources for promoting the well-being of the child. They must take necessary measures to identify possible support
mechanisms like sponsorship, foster care, adoption options, counselling to parents, etc. The provision is aimed at
reducing the vulnerability of children and the need for intervention under this Act. As the role of the Board or
Committee arises only after a child has been brought before it as a child in conflict with law or as a child in need of
care and protection, these measures need to be necessarily understood at preventing recurring need for
intervention under the Act.
2.5.8 Principle of non-stigmatising semantics
“Adversarial or accusatory words are not to be used in the processes pertaining to a child.”
Non-stigmatisation of a child dealt with under the provisions of this Act is essential for a child’s reintegration and
rehabilitation in society. It has been a long tradition in all the laws to minimize use of words and phrases familiar in
criminal law. The first series of legislations dealing with children in conflict with law and in need of care and
protection were titled as Children Act. The word “Juvenile” which has acquired a negative connotation replaced the
word “child” in the Juvenile Justice Act 1986 perhaps taking a cue from the UN Standard Minimum Rules for
Administration of Juvenile Justice 1985 using the term juvenile. The JJ Act, 2000 chose two distinct words of
“juvenile” as referring to a child in conflict with law and “child” to refer to child in need of care and protection. JJ Act,
2015 has restored usage of the non-stigmatising term “child” for both categories of children. Other stigmatising
words like conviction and punishment have not been used in this Act even in cases where a child is to be tried as
an adult. A child found to be in conflict with law is not called a convict and the order passed in relation to them is not
called sentence or punishment.
Similar care needs to be taken while drafting various forms that will need to be filled at various stages by children or
their parents, guardians or sureties, etc., and while writing orders in relation to children or recording evidence, etc.
2.5.9 Principle of non-waiver of rights
“No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on
behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to
waiver.”
This principle is similar to the Constitutional principle against waiver of fundamental rights. It provides that no right
provided by this Act may be waived by anybody including the child, person acting on behalf of the child, Board or
the Committee. For example, if a child pleads guilty to commission of the offence charged, the Board shall be still
duty bound to observe the principles of natural justice and follow the principles of natural justice in disposing of the
inquiry as provided by section 2(xvi) of the Act.
2.5.10 Principle of equality and non-discrimination
“There shall be no discrimination against a child on any ground including sex, caste, ethnicity, place of birth,
disability, and equality of access, opportunity and treatment shall be provided to every child.”
Page 5 of 7
This principle is to be read along with Articles 14 and 15 of the Constitution of India which prohibit discrimination on
grounds of religion, race, caste, sex, place of birth or any of them. In tune with the Convention for the Rights of
Persons with Disability, it has also been included among the others already specified by the Constitution. It may be
noted that this principle not only prohibits discrimination on these grounds but also imposes a positive duty on the
State to provide equality of access, opportunity and treatment to every child irrespective of their sex, caste,
ethnicity, place of birth or disability.
However, this principle is violated by the provision for trial of children as adults as such trial takes away opportunity
for a better life and treatment from them.
2.5.11 Principle of right to privacy and confidentiality
“Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the
judicial process.”
The right to privacy has long been recognized as integral part of the fundamental right to equality and the same is
guaranteed to children also by this principle, specifically while being dealt with under the Act. The later provisions
contained in the Act prohibiting publication of any information capable of revealing the identity of the child being
dealt with under the provisions of the Act and declaring it an offence51 are in furtherance of this principle.
2.5.12 Principle of institutionalisation as a measure of last resort
“A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry.”[KA(34]
This principle of institutionalization as a measure of last resort should be read and implemented in accordance with
the same principle incorporated in the UN Standard Minimum Rules for the Administration of Juvenile Justice 1985
(popularly known as the Beijing Rules).52 Even though this Principle in the JJA does not make any specific
reference to limitation on the use of institutional care for the minimum necessary period, it may be read as part of
this principle as the next principle contained in section 3(xiii) provides that all children have the right to be reunited
with their family at the earliest. The Commentary to Rule 19 of the Beijing Rules provides the justification for use of
institutional care as a measure of last resort and for the minimum necessary period in the following words:
Progressive criminology advocates the use of non-institutional over institutional treatment. Little or no difference has been
found in terms of the success of institutionalization as compared to non-institutionalization. The many adverse influences on
an individual that seem unavoidable within any institutional setting evidently cannot be outbalanced by treatment efforts.
This is especially the case for juveniles, who are vulnerable to negative influences. Moreover, the negative effects, not only
of loss of liberty but also of separation from the usual social environment, are certainly more acute for juveniles than for
adults because of their early stage of development.
Rule 19 aims at restricting institutionalization in two regards: in quantity (“last resort) and in time (“minimum necessary
period”). Rule 19 reflects one of the basic guiding principles of resolution 4 of the Sixth United Nations Congress: a juvenile
offender should not be incarcerated unless there is no other appropriate response. The rule, therefore, makes the appeal
that if a juvenile must be institutionalized, the loss of liberty should be restricted to the least possible degree, with special
institutional arrangements for confinement and bearing in mind the differences in kinds of offenders, offences and
institutions. In fact, priority should be given to “open” over “closed” institutions. Furthermore, any facility should be of a
correctional or educational rather than of a prison type.”53
2.5.13 Principle of repatriation and restoration
“Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be
restored to the same socio-economic and cultural status that he was in, before coming under the purview of this
Act, unless such restoration and repatriation is not in his best interest.”
Page 6 of 7
This principle is in accordance with the CRC which recognises “that the child, for the full and harmonious
development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love
and understanding”.54 The direction of restoring the child to “the same socio-economic and cultural status” in the
section, have to be understood carefully. Most of the children coming under the purview of the Act come from
families falling within the lowest economic strata and it is well possible that they got into the juvenile justice net
because of that reason alone. The emphasis is not to ensure status quo on that front. Economic status has been
clubbed with social and cultural status and should be understood as the cumulative environment of the child in
which the child will be comfortable. The individual child care plan must take cognisance of the socio-economic and
cultural status of the child and make necessary measure to ensure that these cumulatively are such as to ensure
that the child lives in the family “in an atmosphere of happiness, love and understanding” as provided by the CRC.
2.5.14 Principle of fresh start
“All past records of any child under the Juvenile Justice system should be erased except in special circumstances.”
This principle recognises that children need to start on a clean slate after being dealt with under the provisions of this Act as
they have a long life ahead. The Act does provide for destruction of records of all children committing any offence except
when they have been tried as adults as per the provisions of this Act.55
2.5.15 Principle of diversion
“Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted
unless it is in the best interest of the child or the society as a whole.”
Diversion involves two aspects – diversion from what and diversion to what. When this principle provides for
diversion, it only speaks of diversion from judicial proceedings. As the judicial functions under the Act are exercised
only by the Juvenile Justice Board and the Child Welfare Committee, it would seem to suggest that it is directing
diversion of the child by police before children are produced before these bodies. However, it does not make any
provision about the second aspect of diversion, i.e., where should the children be diverted to. This aspect of the
principle may be better understood in the light of the provision for diversion contained in the Beijing Rules.56
This principle has also been recognised by the Beijing Rules which provides for diversion by the police. Rule 11.3 of
the Beijing Rules provides for diversion of children to community-based programmes. The rationale for diversion
has been explained thus:
This practice serves to hinder the negative effects of subsequent proceedings in juvenile justice administration (for
example the stigma of conviction and sentence). In many cases, non-intervention would be the best response.
Thus, diversion at the outset and without referral to alternative (social) services may be the optimal response. This
is especially the case where the offence is of a non-serious nature and where the family, the school or other
informal social control institutions have already reacted, or are likely to react, in an appropriate and constructive
manner.57
2.5.16 Principles of natural justice
“Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias
and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.”
The origins of juvenile justice are traced to the two concepts of parens patriae and mens rea. The USA adopted the
parens patriae approach initially and did away with all the safeguards of criminal trial available to adult accused. It
was done with the belief that the magistrate in the children’s court will be securing all the rights and interests of the
child like a father and there was no need to insist on observing the principles of natural justice in juvenile justice.
However, later the Supreme Court of America struck down such procedure for being unconstitutional when it found
that children were neither getting the protection of the juvenile justice nor enjoying the safeguards of the criminal
justice.58 In India too, provisions in the Children Act not permitting a lawyer in the children’s court was struck down
as unconstitutional in Kario alias Mansingh Malu v State of Gujarat.59 This principle specifically recognises that
Page 7 of 7
children have the same rights as adults have in a fair trial in all inquiries held by all persons or bodies exercising
judicial functions, even though children are not subjected to any trial under the Act. All the principles of natural
justice like right to a lawyer, right to be heard, to cross examine, to records, no one should be a judge in their own
case, appeal, etc., are to be adhered to by the Board, Committee and the appellate court, as the case may be.
36 Section 82 of the IPC.

37 Section 83 of the IPC.
38 Observations of the CRC Committee on 3rd and 4th Consolidated Periodic Report of India, available at
www.indianet.nl/CRC_CO_India_140613.pdf, last visited 24 April 2016.
39 General Comment No.10 of CRC Committee, Available at
http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf, last visited on 23 April 2016.
40 Rule 3(1)(i), JJ Model Rules 2007.
41 Rule 3(1)(b), JJ Model Rules 2007.
42 See, Chapter 4.
43 Article 1, UDHR.
44 Article 12(1), CRC.
45 Article 12(2), CRC.
46 Section 26, Hindu Marriage Act, 1955.
47 Article 3, CRC.
48 Section 3(iv).
49 Preamble, CRC.
50 Section 3(vi).
51 Section 74 of the JJ Act, 2015.
52 Rule 19 of the Beijing Rules reads, “19. Least possible use of institutionalization: 19.1 The placement of a juvenile in an
institution shall always be a disposition of last resort and for the minimum necessary period.
53 Commentary to Rule 19 contained in the Beijing Rules.
54 Preamble to CRC.
55 Section 24 of the JJ Act, 2015.
56 Rule 11 of the Beijing Rules reads, “11. Diversion
11.1 Consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal
trial by the competent authority, referred to in rule 14.1 below.
11.2 The police, the prosecution or other agencies dealing with juvenile cases shall be empowered to dispose of such
cases, at their discretion, without recourse to formal hearings, in accordance with the criteria laid down for that purpose
in the respective legal system and also in accordance with the principles contained in these Rules.
11.3 Any diversion involving referral to appropriate community or other services shall require the consent of the
juvenile, or her or his parents or guardian, provided that such decision to refer a case shall be subject to review by a
competent authority, upon application.
11.4 In order to facilitate the discretionary disposition of juvenile cases, efforts shall be made to provide for community
programmes, such as temporary supervision and guidance, restitution, and compensation of victims.
57 Commentary to Rule 11 of the Beijing Rules.
58 Gault (Re), (1967) 387 US 1.
59 (1969) 10 Guj LR 60.
End of Document
2.6 PROVISIONS FOR EFFECTIVE IMPLEMENTATION OF THE JUVENILE
JUSTICE ACT
Ved Kumari
2.6 PROVISIONS FOR EFFECTIVE IMPLEMENTATION OF THE JUVENILE

JUSTICE ACT
The JJA contains some special provisions solely aimed at its more effective implementation and monitoring of
implementation. The provision for establishment of Juvenile Justice Fund contained in the earlier Juvenile Justice
Act 1986 and Juvenile Justice (Care and Protection of Children) Act, 2000, has been included in the JJ Act, 2015
also. Section 10560 enables the State Governments to create such a fund for the welfare and rehabilitation of the
child dealt with under the Act. It may include voluntary donations, contributions or subscriptions made by individuals
and organisations. However, this has been among the least implemented provisions and has been a non-starter so
far. Non-implementation of this provision only reflects the lackadaisical approach of the successive governments
towards implementation of the Act with full vigour.
The JJ Act, 2015 has made provision for establishment of State Child Protection Society, District Child Protection
Unit, Special Juvenile Police Unit, and the Commissions for Protection of Child Rights. The Commissions for
Protection of Child Rights have been assigned additional responsibilities of monitoring the implementation of the
JJA. The Act also provides for evaluation of functioning of various structures under the Act.
2.6.1 State Child Protection Society and District Child Protection Unit
State Child Protection Society and District Child Protection Unit are the most important bodies and have the most
significant role in the implementation of the JJA. As per section 106,61 the SCPS and DCPU will consist of all such
officers and other employees as are appointed by the government to take up all matters relating to children in the
implementation of the Act. These matters include establishment and maintenance of institutions under the Act,
notification of competent authorities relating to children, rehabilitation of children and co-ordination among various
stakeholders. The SCPS and DCPU replace the State Advisory Boards required to be established under the earlier
legislations.
2.6.2 Special Juvenile Police Unit and Child Welfare Police Officer
The Special Juvenile Police Unit has a sterling role in the scheme of the JJ Act, 2015. They are the first State
agency through whom the child experiences the formal juvenile justice system, be it a child in conflict with law or a
child in need of care and protection. Section 10762 lays down that a Special Juvenile Police Unit be established in
each district which will consist of the Child Welfare Police Officers from each police station in the district and two
social workers, one of whom must be a woman. Its function is to co-ordinate all functions of the police relating to
children. Its effective functioning is essential for ensuring that children coming in contact with the formal juvenile
justice system have a positive attitude towards it and benefit from it.
As per section 107, the child welfare police officer to be designated in each police station must not be below the
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2.6 PROVISIONS FOR EFFECTIVE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT
rank of sub-inspector. Only such persons who have the aptitude, training and orientation should be appointed as
child welfare police officers. Ordinarily, postings are considered to be the prerogative of the senior officers and are
made by them without consulting the junior officer to be posted at a certain job. Some postings are considered as
rewards and some as punishment postings doled out to the junior officers as per their work or equation with the
officer in charge of postings. In case of children, however, it may be desirable to invite interest from officers to be
designated as Child Welfare Police Officer so that persons with the right aptitude may be designated as such and it
is not considered as a posting imposed on them against their wish. The CWPO must have a positive attitude
towards this posting and the right aptitude to deal with children. The training and orientation should follow thereafter
if the officer already does not have the required training and base in juvenile justice.
The juvenile police liaison officers in Scotland who have similar role as has been provided for the CWPO under the
JJ Act, 2015, are asked to volunteer for the post. As this is a choice posting, these officers work with a lot of
enthusiasm and leave a mark in children’s lives they touch as well as on the system. I had interviewed a juvenile
police liaison officer in Edinburgh as part of my research in juvenile justice system in the UK. He had volunteered
for the posting and evolved a programme for children on the streets by reaching out to them. First he ascertained
the reasons why they were on the streets and thereafter found out the ways to keep them usefully occupied so that
they were not seen as posing a threat to the passersby. Based on his experience he developed a training module in
Edinburgh for the training and orientation of senior officers that was extended to the whole of Scotland.
For the success of this provision giving important responsibilities to the CWPO, we need committed officers who will
carry out their duties with enthusiasm. They also need to have support from the community. It has been reported
that Model SJPUs are being established in ten districts of Uttar Pradesh with the collaboration of Rammanohar
Lohia National Law University and UNICEF.63 It is proposed that a child friendly room will be created in each police
station and the SJPU will function as a watchdog to ensure that no child is subjected to cruelty, abuse, and
exploitation and necessary legal action is initiated in case of violation. These units will work with various
stakeholders in the community including local governing bodies, NGOs, Civil Society Organisations, to identify
children who are in need of care and protection. The SJPU will also work toward sensitization of police personnel in
general for better handling of children. More such initiatives across the country in each State and district will be
needed to make the dream of child friendly police stations and police stations come true.
Such initiatives and collaborative efforts among various stakeholders will also be required in generating awareness
among the public about the provisions of the JJ Act, 2015 and must be promoted by the Central and State
Governments. Section 108 of the JJ Act, 2015 obligates the Central and State Government to take necessary
measures to ensure that
the provisions of this Act are given wide publicity through media including television, radio and print media at
regular intervals so as to make the general public, children and their parents or guardians aware of such provisions;
the officers of the Central Government, State Government and other concerned persons are imparted periodic
training on the matters relating to the implementation of the provisions of this Act.
2.6.3 Commissions for Protection of Child Rights
The National Commission for Protection of Child Rights and the State Commissions for Protection of Child Rights
too have been given responsibilities under the Act. These Commissions are specifically responsible for monitoring
the implementation of the Act under section 109 of the JJ Act, 2015.64 The NCPCR and SCPCR are vested with the
same powers as they have under the Commission for Protection of Child Rights Act while they discharge their
responsibilities under the JJ Act, 2015. These Commissions are further obligated to include their activities under the
JJ Act, 2015 in their annual report to be submitted under the CPCR Act 2005.
2.6.3.1 Evaluation of Functioning of Structures
The JJ Act, 2015 also empowers the Central and State Government to independently evaluate the functioning of
various functionaries and institutions functioning under the Act. These include the Board, the Committee, special
juvenile police units, registered institutions, recognized fit facilities and persons. The details about who will conduct
such evaluation exercise and when, has been left to be prescribed by rules to be framed under the Act. Section 5565
which makes provision for it also conceives of situations where such evaluation exercise may be done by both the
Central and State Government and it lays down that in such case the evaluation made by the Central Government
will prevail.
Page 3 of 3
2.6 PROVISIONS FOR EFFECTIVE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT
60 Section 105 reads, “Juvenile Justice Fund- (1) The State Government may create a fund in such name as it thinks fit for
the welfare and rehabilitation of the children dealt with under this Act.
(2) There shall be credited to the fund such voluntary donations, contributions or subscriptions as may be made by
any individual or organisation.
(3) The fund created under sub-section (1) shall be administered by the Department of the State Government
implementing this Act in such manner and for such purposes as may be prescribed.”
61 Section 106 reads, “State Child Protection Society and District Child Protection Unit- Every State Government shall
constitute a Child Protection Society for the State and Child Protection Unit for every District, consisting of such officers
and other employees as may be appointed by that Government, to take up matters relating to children with a view to
ensure the implementation of this Act, including the establishment and maintenance of institutions under this Act,
notification of competent authorities in relation to the children and their rehabilitation and co-ordination with various
official and non-official agencies concerned and to discharge such other functions as may be prescribed.”
62 Section 107 reads, “Child Welfare Police Officer and Special Juvenile Police Unit (1) In every police station, at least one
officer, not below the rank of assistant sub-inspector, with aptitude, appropriate training and orientation may be
designated as the child welfare police officer to exclusively deal with children either as victims or perpetrators, in co-
ordination with the police, voluntary and non-governmental organisations.
(2) To co-ordinate all functions of police related to children, the State Government shall constitute Special Juvenile
Police Units in each district and city, headed by a police officer not below the rank of a Deputy Superintendent of
Police or above and consisting of all police officers designated under sub-section (1) and two social workers having
experience of working in the field of child welfare, of whom one shall be a woman.
(3) All police officers of the Special Juvenile Police Units shall be provided special training, especially at induction as
child welfare police officer, to enable them to perform their functions more effectively.
(4) Special Juvenile Police Unit also includes Railway police dealing with children.”
63 See, http://timesofindia.indiatimes.com/city/lucknow/Soon-exclusive-police-stations-for-justice-to-
kids/articleshow/52964001.cms, last visited on 29 June 2016.
64 Section 109 reads, “Monitoring of implementation of Act- (1) The National Commission for Protection of Child Rights
constituted under section 3, or as the case may be, the State Commission for Protection of Child Rights constituted
under section 17 (herein referred to as the National Commission or the State Commission, as the case may be), of the
Commissions for Protection of Child rights Act, 2005, shall, in addition to the functions assigned to them under the said
Act, also monitor the implementation of the provisions of this Act, in such manner, as may be prescribed.
(2) The National Commission or, as the case may be, the State Commission, shall, while inquiring into any matter
relating to any offence under this Act, have the same powers as are vested in the National Commission or the
State Commission under the Commissions for Protection of Child Rights Act, 2005.
(3) The National Commission or, as the case may be, the State Commission, shall also include its activities under this
section, in the annual report referred to in section 16 of the Commissions for Protection of Child Rights Act, 2005.
65 Section 55 reads, “Evaluation of functioning of structures- (1) The Central Government or State Government may
independently evaluate the functioning of the Board, Committee, special juvenile police units, registered institutions, or
recognised fit facilities and persons, at such period and through such persons or institutions as may be prescribed by
that Government.
(2) In case such independent evaluation is conducted by both the Governments, the evaluation made by the Central
Government shall prevail.”
End of Document
2.7 CONCLUSION
Ved Kumari
2.7 CONCLUSION
From the above analyses of the objectives and scope of the Act, examination of some of the definitions, and
explanation of all the general principles that are fundamental in the implementation of the Act, it is apparent that the
Act has taken some forward and some backward steps. While the Act shows a positive attitude towards children
committing offences by referring to them as children, it has classified offences as petty, serious, and heinous by
reference to the period of imprisonment prescribed for the offence. Such classification has been unheard of within
even the criminal justice system. This classification has paved the way for trial of some children as adults contrary
to the stated objectives of the Act, namely, care, protection, development, treatment, and social reintegration of
children.
Similarly, chapter two of the Acts lays down a range of general principles which are fundamental in the
implementation of the Act but the scheme of the Act goes against them. For example, this chapter lays down the
principle of presumption of innocence of all children till the age of 18 years but subsequent sections dealing with
children in conflict with law provides for transfer of 16–18 years old children to be tried as adult in a criminal court
after preliminary assessment in the circumstances of commission of offence thereby presuming that the child had
indeed committed the offence. It is still too early to predict how such contradictions between different provisions and
drafting lacunae will play out but it is certain that this Act is going to adversely affect the lives of many children who
will end up in prisons for long terms with its deleterious effect on young minds. It is no secret that children tried as
adults in other jurisdictions have been reported to commit more violent offences in their later life compared to
children who were dealt within the juvenile justice system.
End of Document
3.1 HISTORICAL BACKGROUND
Ved Kumari
Kumari: The Juvenile Justice (Care and Protection) Act 2015: Critical Analysis, 1st ed > 3 Caring
for Children in Conflict with Law
3 Caring for Children in Conflict with Law

The initiation of care for the children in conflict with law may be traced to the establishment of the first children’s
court in Chicago, USA in the year 1898. It was based on the principle of parens patriae expecting the children’s
court magistrate to provide all the protection the child requires as the father of the child. Hence, the early children’s
courts did not secure the standard rights recognised in ordinary criminal courts like the right to a lawyer, right to
cross-examine, written records, right of appeal, etc. This model was followed in many countries. The second kind of
special courts established for dealing with children in conflict with law were established pursuant to the principle of
mens rea on the assumption that children did not have the same mental capacity to know the nature of their acts
and their consequences like an adult and should, therefore, be dealt with differently and should not be subjected to
similar punishments as adults.
In India, segregation of children committing offences from the adults committing offences began with the
Apprentices Act 1850 preferring training over imprisonment for child offenders below the age of 15 years committing
petty offences or found to be vagrants. This limited exclusion of children from criminal justice system soon extended
to the establishment of separate reformatory schools for children up to the age of 15 years and Borstals for young
person between the ages of more than 15 years but below the age of 21 years (in some States even up to the age
of 23 years), found to have committed an offence, to keep them away from the prisons and from the company of
adult prisoners.
In 1920, this segregation was completed even in the judicial processes by the establishment of the first Children’s
Court in Madras ensuring that children were kept away from all contact with adult offenders to protect them from
their adverse influence. Initially, the Children’s Court seems to have been based on the rationale of mens rea
recognising that children needed special attention but not interfering with their rights to a fair hearing and trial by
following the principles of natural justice. However, the subsequent Children’s Courts established in other States,
seems to have been influenced by the parens patriae principle as they prohibited presence of a lawyer before the
Children’s Court. This prohibition was found in the Children Act 1960 passed by Parliament as a Model Children Act
to be followed by other States. The Children Act 1960 introduced four major changes in the scheme of Children
Acts. First, it introduced sex-based definition of child applying to boys below the age of 16 years and girls below the
age of 18 years. Second, it introduced establishment of two different adjudicatory bodies to deal with the two
categories of children covered under it. The Children’s Court was to deal with delinquent children and the Child
Welfare Board was established for dealing with neglected children. Third, it also provided for segregation of children
in three different homes. While their matters were pending, all children if not kept under the care of their parent or
guardian were to be kept in an observation home. If the Children’s Court found the child to have committed the
offence, they were to be sent to a special home if not released under community care options. Children found to be
neglected by the Child Welfare Boards were to be kept in a children’s home if not restored to their parent or directed
to be kept with a fit person or fit institution. The Children Act 1960 continued to prohibit presence of lawyer before
the adjudicatory bodies as a matter of right. It was later amended in 1978 to remove this prohibition of lawyer before
the children’s court pursuant to the judgment of Gujarat High Court in Kario alias Mansingh Malu v State of
Saurashtra,1 which declared such provisions to be unconstitutional. Other States passed their legislations on similar
Page 2 of 3
lines. However, the Public Interest Litigation filed by Sheela Barse seeking release of children from prisons despite
the complete prohibition against imprisonment of children brought to light the wide discrimination occurring to
children due to diversity of legislations governing the field of juvenile justice in India.2 The Supreme Court of India
recommended passing of a uniform legislation for the whole country to prevent discrimination.
Pursuant to the direction of the Supreme Court, the Juvenile Justice Act 1986 was passed by Parliament which
brought uniformity relating to the constitution, functions, powers, procedures, and the orders to be passed by the
children’s courts in the whole country except the State of Jammu and Kashmir but it renamed the children’s court as
the juvenile court. It continued to apply to children below the age of 16 years in case of boys and below the age of
18 years in case of girls.
In 1989, the UN General Assembly adopted the Convention on the Rights of the Child and India signed it in 1992.
The CRC defines child as a person below the age of 18 years unless majority is attained before that in the country.
The Juvenile Justice (Care and Protection of Children) Act, 2000 was passed with the specific purpose of bringing
the legislation in accordance with India’s obligation under the CRC, the UN Standard Minimum Rules for the
Administration of Juvenile Justice (Beijing Rules) and other International Instruments relating to children. It
introduced the uniform age of 18 years for all children to be provided care and protection under it. The JJ Act, 2015
has repealed and replaced the JJ Act, 2000 introducing some important changes while keeping the objectives of the
Act intact, namely, care, protection, development, treatment and rehabilitation of children and also reaffirming
India’s obligations under the CRC, the Beijing Rules and other related International instruments.
The CRC contains specific provisions relating to juvenile justice and it is appropriate to have a quick look at them so
that the provisions and scheme of the Act may be analysed and implementation under the Act may be secured to
fulfill India’s obligations under it. Article 37 of the CRC obligates the States to ensure that children are not subjected
to torture or other cruel, inhuman or degrading treatment or punishment. It prohibits imposition of death penalty and
life imprisonment without possibility of release in case of children for the offences committed by them before
attaining the age of 18 years. It protects children against arbitrary arrest, detention or imprisonment and directs use
of institutions as a measure of last resort and for the shortest appropriate period of time. It further directs that all
children deprived of liberty are to be treated with dignity and respect and they shall be separated from adults unless
their best interest requires otherwise. They have the right to maintain contact with his or her family through
correspondence and visits, save in exceptional circumstances. These children also have the right “to prompt access
to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her
liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such
action.”
Article 40 is the most crucial provision in the CRC for protecting rights of children in conflict with law and reads as
follows:
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
Page 3 of 3
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[KA(2].
The analyses of various provisions of the JJ Act, 2015 and the scheme for the care and protection of children in
conflict with law later in this chapter shows that while many provisions have been made specifically in pursuance of
India’s obligation under these provisions of the CRC, the scheme of transfer of children exposing them to the
possibility of trial as adults is in contravention of these provisions.
The JJ Act, 2000 which was enacted to bring the law in India in conformity with India’s obligation under the CRC
was challenged twice before the Supreme Court but the Supreme Court upheld the constitutionality of the JJ Act,
2000 on both the occasions. The Juvenile Justice Bill 2014 as originally introduced was declared to be
unconstitutional by the Parliamentary Standing Committee. Even so, the JJ Act, 2015 contains provisions which do
not pass the test of constitutionality and will continue to govern the operations under it till declared to be
unconstitutional. The next part contains a brief description of the constitutional challenges made to the earlier JJ
Act, 2000 that were dismissed and the constitutional challenges presented by the JJ Act, 2015.
1 (1969) 10 Guj LR 60.

2 For detailed discussion of Sheela Barse case and the contribution of the Supreme Court of India in the implementation
of juvenile justice in India, see, Chapter 7 in Ved Kumari, The Juvenile Justice System in India From Welfare to Rights
(2nd Edn 2010) Oxford University Press.
End of Document
3.2 CONSTITUTIONAL CHALLENGES
Ved Kumari

All persons have been guaranteed the fundamental right of equality before law and equal protection of law by
Article 14 of India’s Constitution. Article 15(1) specifically prohibits the State to discriminate any citizen of India on
the ground “only of religion, race, caste, sex, place of birth or any of them.” Even so, Article 15(3) states that
“Nothing in this article shall prevent the State from making any special provision for women and children.” Article
15(3) is to be read as an exception in case of women to the general rule contained in Article 15(1) which prohibits
discrimination only on the basis of sex. However, what is the explanation of inclusion of children in Article in 15(3)?
Children are usually distinguished from adults by reference to age but age has not been included among the
grounds on which discrimination is prohibited in Article 15(1). “Children” appeared along with “women” when this
clause was first introduced in the draft Constitution. The Constituent Assembly Debates provide no insight why
children were included in Article 15(3) along with women. It seems to have been assumed that women and children
are inseparable and both require special provisions as a matter of right. Article 15(3) has been formulated as an
enabling provision authorising the State to make special laws in favour of children but it must be remembered that it
is part of Chapter III which guarantees fundamental rights to all citizens. It means that while children cannot ask for
special provisions for them but if the State chooses to make a law especially for them, it must be for their protection
and welfare and not against them. Validity of the JJ Act, 2015 has to be tested on the touchstone of Articles 14 and
15 of the Indian Constitution.
Article 14 of the Constitution guarantees “equality before the law or the equal protection of the laws within the
territory of India” to all persons including children. It has been well established that this provision does not permit
class legislation but it does permit reasonable classification applying the nexus test. Any classification is reasonable
if the criterion for classification has a nexus with the object of the Act. In order to pass this test, it needs to be
establish that the criteria for providing for differential treatment of children by reference to their age and the nature
of offence have a direct nexus with the objects of the JJ Act, 2015. The first para of the Preamble to the JJ Act,
2015 laying down the aims of the Act reads as follows:
An Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in
need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social
re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of
children and for their rehabilitation through processes provided, and institutions and bodies established, hereinunder and
for matters connected therewith or incidental thereto.
It is apparent that the object of the JJ Act, 2015 is only to provide for their care, protection, development, treatment
and social re-integration. Punishment to children for commission of heinous offence or treating them as adults in
certain circumstances is not among the objectives of the Act. The provision for transfer of some children by
Page 2 of 4
reference to their age, offence, and circumstances of its commission and their state of mind is not geared toward
achieving the stated objectives of the Act. As a consequence of their transfer to the Children’s Court, they may end
up spending time in jail for an offence they committed as children in case the Children’s Court decides to conduct
their trial as adults. Such children will be also subjected to life-long disqualifications attached to conviction for an
offence even if they are reformed and released from the place of safety on attaining the age of 21 years.3
In Subramanian Swami v UOI,4 it was argued before the Supreme Court that clubbing of all children till the age of
18 years irrespective of their mental capacities and nature of offence committed by them was an over-classification
and was not permissible under the Constitution. Rejecting the plea of reading down the provision of the JJ Act,
2000, the Supreme Court in view of no ambiguity in the provision of the Act, reiterated the well-established principle
that “Classification or categorization need not be the outcome of mathematical or arithmetical precision in the
similarities of the persons included in a class and there may be differences amongst the members included within a
particular class. So long as the broad features of the categorization are identifiable and distinguishable and the
categorization is reasonably connected with the object targets, Article 14 will not forbid such a course of action.”
Earlier in Salil Bali v UOI,5 the Supreme Court heard seven writ petitions and one transferred case requesting
striking down the definitions of “child or juvenile” and “juvenile in conflict with law” contained in section 2(k) and (l) of
the JJ Act, 2000 for being unconstitutional. It was argued that the age of criminal responsibility as fixed by the
Indian Penal Code is seven and no distinction can be made in the mental capacity of a person beyond the age of
12 in terms of the law in India. Laws of various other countries were mentioned to argue that distinction must be
made in case a child commits the serious offences like rape and murder and they must be subjected to serious
punishment. Rejecting all the arguments of the petitioners and considering various brain development findings from
neuro-scientists, Justice Altamas Kabir held as follows:
48. There is yet another consideration which appears to have weighed with the worldwide community, including India, to
retain eighteen as the upper limit to which persons could be treated as children. In the Bill brought in Parliament for
enactment of the Juvenile Justice (Care and Protection of Children) Act of 2000, it has been indicated that the same was
being introduced to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent
juveniles and for the adjudication of certain matters relating to and disposition of delinquent juveniles. The essence of the
Juvenile Justice (Care and Protection of Children) Act, 2000, and the Rules framed there under in 2007, is restorative and
not retributive, providing for rehabilitation and re-integration of children in conflict with law into mainstream society. The age
of eighteen has been fixed on account of the understanding of experts in child psychology and behavioural patterns that till
such an age the children in conflict with law could still be redeemed and restored to mainstream society, instead of
becoming hardened criminals in future.
There are, of course, exceptions where a child in the age group of sixteen to eighteen may have developed criminal
propensities, which would make it virtually impossible for him/her to be re-integrated into mainstream society, but such
examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate
children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals,
which does not augur well for the future.
The Government was aware of these constitutionality challenges to the definition of child as a person who has not
attained the age of 18 years, and treating of all children in the same manner irrespective of their age or the offence
committed by them and the Supreme Court rulings rejecting those challenges. It still chose to define “child” as a
person below the age of 18 years under the JJ Act, 2015. It means that the State has accepted that broad features
of children till that age of 18 years are identifiable and distinguishable and object of this classification is to provide
for their care and protection, etc., as mentioned above. Sub-classification within a classification is not permissible in
the first place. Even so, the sub-classification will also need to meet the test of reasonable classification, i.e., the
criteria of classification must have a reasonable nexus with the object of classification. The criteria for further sub-
classification of children below the age of 18 years under the JJ Act, 2015 are the age of 16–18 years of the child
and allegation of commission of a heinous offence. This classification has been made with the aim of imposing
stringent penal consequences to such children if found to have committed the heinous offence. As the object of this
sub-classification is not at all connected with the objects of the JJ Act 2015, provisions relating to transfer of 16–18
year old children alleged to have committed a heinous offence to an adult court fail the test of reasonable
classification inherent in Article 14 of the Constitution. The actual arbitrariness that will result in the cases of transfer
of children and the consequent orders that will be passed by the Children Courts without any guidance are
Page 3 of 4
somethings that will be witnessed in the times to come. The arbitrariness will be further exacerbated in the absence
of any scientific method by which the psychiatrists or psychologists may assess whether the offence was committed
with a child-like or adult-like mind.
India signed the Convention on the Rights of Child in December 1992. It obligates India to bring the definition of
child for all purposes in accordance with its provisions. Article 1 of the CRC defines child as any person below the
age of 18 years unless majority is attained at an earlier age in that country. The Government of India passed the JJ
Act, 2000 specifically to fulfill this obligation by raising the age of juvenility to 18 years uniformly for boys and girls.
Even so, the Government of India has the sovereign power to define “child” as it may deem fit even in contravention
of its obligation under the CRC. It could have chosen the age of 16 years or lower to define child if it thought it
necessary to do so. However, the JJ Act, 2015 chose the path of choosing the cut off age of 18 years for defining
children but providing for selective transfer of 16–18 years old children alleged to have committed a heinous offence
to the adult criminal court to be tried as adults. This provision is in direct contravention of the General Comment 10
of the UNCRC Committee which specifically prohibits children below the age of 18 years to be tried as adults and
exhorts the countries that have been doing so to abolish such provisions. India is perhaps the first country which did
not provide for any exclusion in the year 2000 when it raised the age of juvenility to 18 years but chose to do so 15
years later. While there is no doubt that the General Comments are not binding on India as a State Party to the
CRC, there is also no doubt that the India is certainly bound by its own Constitution.
Once the Government decided to define word “child” as a person below the age of 18 years under the JJ Act, 2015,
the Government may introduce further sub-classification only to make a law in favour of them and not against them.
Sending 16–18 years old children to be tried as adults by the Children’s Court, can, by no stretch of imagination be
considered as a measure in the best interest of the child.
Constitution’s vision of children in India is not limited to Article 15 (3) but is reflected in many other Articles. Article
24 prohibits employment of children below the age of 14 years in factory, mine or other hazardous work. Article 21A
securing the fundamental right to compulsory and free elementary education applies to children between the ages
of 6–14 years. Articles 39(e) and (f) is aimed at ensuring that children of tender age are not abused and they are
given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against moral and material abandonment. Article 45
imposes responsibility to provide early childhood care for children below the age of six years. While India has
achieved universal enrolment in the elementary school, it has failed miserably to retain them in school. The Crime in
India data clearly shows that most of the children who are arrested for commission of any offence are coming from
the lowest economic strata and majority of them are drop out from schools at the primary or middle class level. India
needs to ensure retention of children in school for ensuring robust citizens of tomorrow and not sending children to
jail after they drop out from schools and end up committing an offence.
The Juvenile Justice Bill 2014 as originally introduced in Lok Sabha had contained another provision for trial of
children as adults if they were apprehended after the age of 21 years for an offence committed before attaining the
age of 18 years. Clause 7 of the Juvenile Justice (Care and Protection of Children) Bill 2014 as originally introduced
in the Lok Sabha had provided as follows:
Any person, who is apprehended after completing the age of twenty-one years, for committing any serious or heinous
offence when such person was between the age of sixteen to eighteen years, then he shall, subject to the provisions of this
Act, be tried as an adult.
Thankfully this clause was dropped from the Bill after the Parliamentary Standing Committee declared it to be
unconstitutional6, being in contravention of the Article 20 of the Constitution of India. Article 20 not only prohibits
conviction of a person for any act which was not an offence on the date of commission of the act but it also prohibits
imposition of “any penalty greater than that which might have been inflicted under the law in force at the time of the
commission of the offence.” However, the provisions relating to transfer of 16–18 years old alleged to have
committed a heinous offence is liable to be challenged as unconstitutional being in contravention of the fundamental
rights and the Constitutional vision of children.
The first writ challenging the constitutionality of the JJ Act, 2015 was filed by Tahseen Poonawalla but was not
admitted by the Supreme Court which stated that “it cannot be a subject matter of public interest litigation and can
only be admitted if an aggrieved comes before the court.”7 Till the time an aggrieved person approaches the court,
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the provisions of this Act need to be implemented as they exist. Various provisions discussed in the following parts
of this chapter have been analysed and interpreted keeping in view the objectives and the general and fundamental
principles contained in the JJ Act, 2015, which have to be kept in mind by all agencies while implementing the Act.
3 Section 21 proviso.
4 Criminal Appeal no.695 of 2014, available at:http://judis.nic.in/supremecourt/imgs1.aspx?filename=41356, last visited
on 6 April 2014.
5 Writ Petition (C) No. 10 OF 2013, decided on 17 July 2013, available at
http://judis.nic.in/supremecourt/imgs1.aspx?filename=40577, last visited on 11 September 2016.
6 Para 3.22 of the 264 Report of the Department-related Parliamentary Standing Committee on Human Resource
Development on The Juvenile Justice (Care and Protection of Children) Bill 2014, tabled in Lok Sabha on 25 February
2015 and presented to the Rajya Sabha on 25 February 2015, available at
www.prsindia.org/.../Juvenile%20Justice/SC%20report-%20Juvenile%20justice.pdf, last visited on 14 May 2016.
7 SC refuses to entertain plea against new Juvenile Justice Act, available at http://www.livelaw.in/sc-refuses-to-entertain-
plea-against-new-juvenile-justice-act-2/ last visited on 11 September 2016.
End of Document
3.3 CONSTITUTION OF THE JUVENILE JUSTICE BOARD
Ved Kumari

The special feature of the Children’s Courts established since 1960 till 1986 was that they consisted of two
magistrates functioning as a bench of magistrates while dealing with any offence alleged to have been committed
by a child. In comparison, all offences alleged to have been committed by a person not falling within the purview of
the Children Acts were decided by single magistrate or a session judge, as the case may be. It only showed that
matters relating to children in conflict with law were deemed to be so important as not to be left to the wisdom of just
one magistrate. The Juvenile Court established under the Juvenile Justice Act 1986 constituted a bench of
magistrates and functioned as a bench. However, this bench was further obligated to consult two social workers to
be appointed by the State to assist this bench of magistrates.
The JJ Act, 2000 introduced a revolutionary change in the constitution of the Juvenile Court, renamed as the
Juvenile Justice Board consisting of three members – one magistrate, designated as the Principle Magistrate, and
two social workers as members of the Board vested with the powers of the magistrate. Similar provisions have been
made in the JJ Act, 2015 also.
Chapters III and IV of the JJ Act, 2015 lay down provisions relating to constitution, procedure, powers and
functioning of the Board while dealing with children in conflict with law. Section 48 providing for the constitution of
the Board directs that at least one Juvenile Justice Board shall be constituted for every district for exercising the
powers and discharging its functions relating to children in conflict with law. It is important to note that sub-section
(1) of section 4 starts with a non-obstante clause “notwithstanding anything contained in the Code of Criminal
Procedure 1973”. It means that all the provisions contained in the CrPC relating to powers and functions of courts
established under that Code have no application to the Board established as per section 4 of the JJ Act, 2015.
Sub-section (2) of section 4 lays down the following conditions to be fulfilled for appointment as the member of the
Board:
(1) One Metropolitan Magistrate or a Judicial Magistrate of First Class not being Chief Metropolitan Magistrate
or Chief Judicial Magistrate having experience of at least three years. He is to be referred as the Principal
Magistrate.
(2) Two social workers selected in the manner to be prescribed under the rules. At least one of the social
worker must be a woman.
These three members have been conferred with the powers of a Metropolitan Magistrate or a Judicial Magistrate of
First Class as provided in the CrPC and they have to function as a bench. Functioning as a bench implies that all of
them are equal and all the decisions have to be taken by them together. As is the rule in the functioning of a bench
of judges, the decisions are taken by consulting each other. In case of difference of opinion, the majority opinion
prevails. The same have been specifically provided in section 8 (4).
Page 2 of 5
Sub-section (3) of section 4 lays down the qualification for appointment of social workers as a member of the Board.
It provides for appointment of social workers from two categories of persons:
(1) Those who are actively involved in health, education, or welfare activities pertaining to children for at least
seven years; or
(2) Those who are practicing professionals with a degree in child psychology, psychiatry, sociology, or law.
The second category of professionals is an addition in comparison to the earlier provision. While inclusion of
practicing professionals with a degree in child psychology, psychiatry and sociology may be justified by reference to
their better understanding of children and their surroundings, a practicing professional with a degree in law has little
to do with understanding of children or their psychology, welfare or social contexts and is a misfit in the scheme of
the JJ Act, 2015. The basic rational for adding the social workers as members of the Board is to give weightage to
the social and psychological aspects of child offending. Inclusion of a lawyer as a member of the Board will tilt the
balance towards legalistic application of the law and will frustrate the very purpose for which two social workers are
to be included as members of the Board.
As per section 4(4) the following four categories of persons cannot be appointed as a member of the Board:
(1) who have any past record of violation of human rights or child rights;
(2) have been convicted of an offence involving moral turpitude, and such conviction has not been reversed or
has not been granted full pardon in respect of such offence;
(3) have been removed or dismissed from service of the Central Government or a State Government or an
undertaking or corporation owned or controlled by the Central Government or a State Government;
(4) have ever indulged in child abuse or employment of child labour or any other violation of human rights or
immoral act.
All members appointed as the member of the Board including the Principal Magistrate must be given induction
training and must be sensitised about care, protection, rehabilitation, legal provisions and justice for children within
60 days from the date of appointment. The terms of office and the manner in which the members may resign are to
be prescribed by the rules. The services of the social worker members may be terminated if they:
(1) are found to be guilty of misuse of power vested under this Act; or
(2) fail to attend the proceedings of the Board consecutively for three months without any valid reason; or
(3) fail to attend less than three-fourths of the sittings in a year; or
(4) become ineligible under sub-section (4) during their term as a member.
3.3.1 Functions, Powers and Responsibilities of the Board
Section 8 read with section 1(4) leaves no doubt that all cases of alleged offences by a child below the age of 18
years on the date of offence are to be dealt with in the first instance by the Board. Section 8 (1)9 starts with a non-
obstance clause overriding anything to the contrary contained in any other law for the time being in force and vest
the exclusive power to deal with all proceedings relating to children in conflict with law in the Board except as
provided in this Act. Similar powers may be exercised by the High Court and the Children’s Court when the
proceedings come before them as provided or in appeal, revision or otherwise.10
Section 8(3)11 specifies the functions and responsibilities of the Board but these are only illustrative and not
exhaustive and any additional function may be prescribed in the rules to be framed under the Act.
3.3.2 Duties of the Board
The Board must ensure informed participation of the child and their parent or guardian at all stages of the
proceedings. It must take all steps to ensure that the child is protected and not harmed at any stage during inquiry,
aftercare and rehabilitation. The Board must also ensure free legal aid to children through the legal services
authority as established under the Legal Services Act. It must also provide an interpreter or translator if the child
fails to understand the language used by the Board during proceedings. The Board must ensure that their fee, as
prescribed under the Rules, is paid. As the duty is imposed on the Board to provide the interpreter or translator, the
Page 3 of 5
rules must lay down the procedure by which the Board should get the fees paid to the experts. This burden cannot
be passed on the child. The Board is also obligated to procure a social investigation report.
The Board has the responsibility of adjudicating and disposing of cases of children in conflict with law as per the
procedure prescribed in the Act. In case it finds that the child brought before it alleged to have committed an
offence is also in need of care and protection, it may involve the Child Welfare Committee and both the Board and
the Committee may deal with the child simultaneously. While passing the final order in relation to children in conflict
with law, the Board must work out an individual care plan directing the Probation Officer or the District Child
Protection Officer or a member of a non-governmental organization for follow up of the same.
The Board also has the responsibility of conducting an inquiry for declaring a person as fit to be entrusted with the
care of a child in conflict with law.
The Board has also been given inspection duties. It must inspect all the residential facilities for children in conflict
with law at least once in a month and recommend action for improvement in quality of services to the District Child
Protection Unit and the State Government. It should also inspect the adult prisons on a regular basis to ensure that
no child is illegally lodged in such jails. In case it finds any child in the adult prison, it must take immediate
measures to transfer such children to an observation home.
3.3.3 Powers of the Board
It has the power to direct the probation officer, or a social worker to prepare and submit it within 15 days from the
first production of the child before it. Clause (e) provides that this report should contain the circumstances in which
the alleged offence was committed. It must be clearly understood that the phrase “circumstances in which the
alleged was committed” has a different meaning in relation to the social investigation report compared to police
investigation report. While the latter is aimed to find out if the offence was committed or not, the former is focused
on the social circumstances in which the child was living when he was alleged to have committed the offence. The
social investigation report is not geared towards reporting whether the offence is committed or not by the child. It is
not the job of the officers charged with preparing the social investigation report. The social investigation report must
not mention if the child has confessed to the commission of the offence as such statement will be in violation of his
fundamental right of silence against self-incrimination. No child can be permitted to waive their rights as per the
fundamental principles contained in section 3 of the Act.
The Board has been authorised to direct the police to register the first information report on receiving a complaint
from anybody regarding non-registration of FIR for any offence committed against a child under this Act or any
other law. However, it is not clear why such power has been given to the Board and not to the Committee vis-à-vis
a child in need of care and protection before the Committee in relation to an offence committed against such child.
8 It reads, “4. Juvenile Justice Board- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,
the State Government shall, constitute for every district, one or more Juvenile Justice Boards for exercising the powers
and discharging its functions relating to children in conflict with law under this Act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of First Class not being Chief
Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal Magistrate) with at least
three years’ experience and two social workers selected in such manner as may be prescribed, of whom at least
one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of
Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class.
(3) No social worker shall be appointed as a member of the Board unless such person has been actively involved in
health, education, or welfare activities pertaining to children for at least seven years or a practicing professional
with a degree in child psychology, psychiatry, sociology or law.
(4) No person shall be eligible for selection as a member of the Board, if he –– (i) has any past record of violation of
human rights or child rights;
(ii) has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or has
not been granted full pardon in respect of such offence;
(iii) has been removed or dismissed from service of the Central Government or a State Government or an
undertaking or corporation owned or controlled by the Central Government or a State Government;
Page 4 of 5
(iv) has ever indulged in child abuse or employment of child labour or any other violation of human rights or
immoral act.
(5) The State Government shall ensure that induction training and sensitisation of all members including Principal
Magistrate of the Board on care, protection, rehabilitation, legal provisions and justice for children, as may be
prescribed, is provided within a period of 60 days from the date of appointment.
(6) The term of office of the members of the Board and the manner in which such member may resign shall be such,
as may be prescribed.
(7) The appointment of any member of the Board, except the Principal Magistrate, may be terminated after holding an
inquiry by the State Government, if he ––
(i) has been found guilty of misuse of power vested under this Act; or
(ii) fails to attend the proceedings of the Board consecutively for three months without any valid reason; or
(iii) fails to attend less than three-fourths of the sittings in a year; or
(iv) becomes ineligible under sub-section (4) during his term as a member”.
9 It reads, “8. Powers, functions and responsibilities of the Board- (1) Notwithstanding anything contained in any other
law for the time being in force but save as otherwise expressly provided in this Act, the Board constituted for any district
shall have the power to deal exclusively with all the proceedings under this Act, relating to children in conflict with law,
in the area of jurisdiction of such Board.”
10 Section 8(2) reads, “The powers conferred on the Board by or under this Act may also be exercised by the High Court
and the Children’s Court, when the proceedings come before them under section 19 or in appeal, revision or
otherwise.”
11 (3) The functions and responsibilities of the Board shall include––
(a) ensuring the informed participation of the child and the parent or guardian, in every step of the process;
(b) ensuring that the child’s rights are protected throughout the process of apprehending the child, inquiry, aftercare
and rehabilitation;
(c) ensuring availability of legal aid for the child through the legal services institutions;
(d) wherever necessary the Board shall provide an interpreter or translator, having such qualifications, experience,
and on payment of such fees as may be prescribed, to the child if he fails to understand the language used in the
proceedings;
(e) directing the Probation Officer, or in case a Probation Officer is not available to the Child Welfare Officer or a
social worker, to undertake a social investigation into the case and submit a social investigation report within a
period of 15 days from the date of first production before the Board to ascertain the circumstances in which the
alleged offence was committed;
(f) adjudicate and dispose of cases of children in conflict with law in accordance with the process of inquiry specified
in section 14;
(g) transferring to the Committee, matters concerning the child alleged to be in conflict with law, stated to be in need
of care and protection at any stage, thereby recognising that a child in conflict with law can also be a child in need
of care simultaneously and there is a need for the Committee and the Board to be both involved;
(h) disposing of the matter and passing a final order that includes an individual care plan for the child’s rehabilitation,
including follow up by the Probation Officer or the District Child Protection Unit or a member of a non-
governmental organisation, as may be required;
(i) conducting inquiry for declaring fit persons regarding care of children in conflict with law;
(j) conducting at least one inspection visit every month of residential facilities for children in conflict with law and
recommend action for improvement in quality of services to the District Child Protection Unit and the State
Government;
(k) order the police for registration of first information report for offences committed against any child in conflict with
law, under this Act or any other law for the time being in force, on a complaint made in this regard;
(l) order the police for registration of first information report for offences committed against any child in need of care
and protection, under this Act or any other law for the time being in force, on a written complaint by a Committee in
this regard;
Page 5 of 5
(m) conducting regular inspection of jails meant for adults to check if any child is lodged in such jails and take
immediate measures for transfer of such a child to the observation home; and
(n) any other function as may be prescribed.
End of Document
3.4 RESPONSIBILITIES AND FUNCTIONS OF POLICE
Ved Kumari

Under the scheme of the Act, every police station is required to have a police officer specially designated and
trained to function as the child welfare police officer to deal with all matters relating to children.12 Such police officer
should not be below the rank of assistant sub-inspector and should be chosen due to their aptitude of child friendly
approach and mannerism to deal with children as victims or perpetrators. They should be given appropriate training
and orientation to be able to co-ordinate with police, voluntary and non-governmental organisations. The State is
further obligated to establish Special Juvenile Police Unit in every district and city, headed by an officer of the rank
of Deputy Superintendent of Police or above, and consisting of all the Child Welfare Police Officers (hereafter
referred as CWPO) and two social workers having experience in the field of child welfare. One of these social
workers must be a woman.
In this scheme, any police officer who comes in contact with a child in conflict with law will have to immediately
hand over the case to the Child Welfare Police Officers in their police station and it is the CWPO who has to take all
future actions relating to the child. Accordingly, section 10 of the JJA provides13 that as soon as a child is
apprehended for allegedly having committed an offence by the police, such child shall be handed over to the
special juvenile police unit or the designated CWPO. In accordance with the constitutional obligation, all children
apprehended must be produced before the Board within 24 hours excluding the time required for journey. This
section further provides that in no circumstance, such children are to be kept in the police lock up or lodged in jail.
Section 1314 of the JJ Act, 2015 obligates that when a child is apprehended for alleged commission of an offence,
the CWPO or the SJPU shall inform the parents or guardian at the earliest, if they can be found. They must be
given information about the Board so they may be present when the child is produced before it. The CWPO or the
SJPU must also inform the Probation Office or the Child Welfare Officer at the earliest so that they may prepare “a
social investigation report containing information regarding the antecedents and family background of the child and
other material circumstances likely to be of assistance to the Board for making the inquiry.” It must be reiterated that
such report must not contain any reference to admission of guilt by the child contrary to their fundamental right
against self-incrimination. The Board must inform the Probation Officer or Child Welfare Officer when the child is
released on bail.
12 Section 107 provides, “(1) In every police station, at least one officer, not below the rank of assistant sub-inspector, with
aptitude, appropriate training and orientation may be designated as the child welfare police officer to exclusively deal
with children either as victims or perpetrators, in co-ordination with the police, voluntary and non-governmental
organisations.
(2) To co-ordinate all functions of police related to children, the State Government shall constitute Special Juvenile
Police Units in each district and city, headed by a police officer not below the rank of a Deputy Superintendent of
Police or above and consisting of all police officers designated under sub-section (1) and two social workers having
experience of working in the field of child welfare, of whom one shall be a woman.
Page 2 of 2
(3) All police officers of the Special Juvenile Police Units shall be provided special training, especially at induction as
child welfare police officer, to enable them to perform their functions more effectively.
(4) Special Juvenile Police Unit also includes Railway police dealing with children.
13 Section 10 reads, “Apprehension of child alleged to be in conflict with law- (1) As soon as a child alleged to be in
conflict with law is apprehended by the police, such child shall be placed under the charge of the special juvenile police
unit or the designated child welfare police officer, who shall produce the child before the Board without any loss of time
but within a period of twenty-four hours of apprehending the child excluding the time necessary for the journey, from the
place where such child was apprehended:
Provided that in no case, a child alleged to be in conflict with law shall be placed in a police lockup or lodged in a jail.
(2) The State Government shall make rules consistent with this Act—
(3) to provide for persons through whom (including registered voluntary or non- governmental organisations) any child
alleged to be in conflict with law may be produced before the Board;
(ii) to provide for the manner in which the child alleged to be in conflict with law may be sent to an observation home
or place of safety, as the case may be.”
14 Section 13 reads, “Information to parents, guardian or probation officer- (1) Where a child alleged to be in conflict with
law is apprehended, the officer designated as Child Welfare Police Officer of the police station, or the special juvenile
police unit to which such child is brought, shall, as soon as possible after apprehending the child, inform —
(i) the parent or guardian of such child, if they can be found, and direct them to be present at the Board before which
the child is produced; and
(ii) the probation officer, or if no probation officer is available, a Child Welfare Officer, for preparation and submission
within two weeks to the Board, a social investigation report containing information regarding the antecedents and
family background of the child and other material circumstances likely to be of assistance to the Board for making
the inquiry.
(2) Where a child is released on bail, the probation officer or the Child Welfare Officer shall be informed by the Board.
End of Document
3.5 PLACEMENTS DURING PROCEEDINGS
Ved Kumari

The JJ Act, 2015 provides for two different schemes for placing of children during the pendency of inquiry
depending on the age of the person on the date of first production even though the procedure to be followed in
relation to them is the same. Section 515 provides that a child who at the time of initiation of proceedings was below
the age of 18 years but attained the age of 18 years during the pendency of proceedings, the proceedings will
continue and orders will be passed as if the child has continued to be a child. Section 616 deals with children who
are produced before the Board for the first time after attaining the age of 18 years for an offence committed before
attaining the age of 18 years. In such instances too, the person is to be treated as a child for the purposes of
inquiry. Both the child and the person so apprehended may be released on bail as provided in section 12 of the JJA
and kept in the care of parent, guardian or fit person. However, if the child is not so released, they shall be kept in
an observation home but the persons arrested for an offence committed before attaining the age of 18 years, if not
released on bail should be kept in a place of safety. There is no other difference in the scheme of the Act by
reference to the age of the child on the date of first production. When a child is placed in the care of a person,
section 11 provides17 that such person shall have the responsibilities of maintenance of the child like a parent. The
children may be kept with such persons even against the claim of their own parents for the duration specified by the
Board. These children may be released in the care of the parent when found fit by the Board.
15 Section 5 reads, “Placement of person, who cease to be a child during process of inquiry- Where an inquiry has been
initiated in respect of any child under this Act, and during the course of such inquiry, the child completes the age of
eighteen years, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the
inquiry may be continued by the Board and orders may be passed in respect of such person as if such person had
continued to be a child.”
16 Section 6. Placement of persons, who committed an offence, when person was below the age of eighteen years- (1)
Any person, who has completed eighteen years of age, and is apprehended for committing an offence when he was
below the age of eighteen years, then, such person shall, subject to the provisions of this section, be treated as a child
during the process of inquiry.
(2) The person referred to in sub-section (1), if not released on bail by the Board shall be placed in a place of safety
during the process of inquiry.
(3) The person referred to in sub-section (1) shall be treated as per the procedure specified under the provisions of this
Act.
17 Section 11 reads, “Role of person in whose charge child in conflict with law is placed- Any person in whose charge a
child in conflict with law is placed, shall while the order is in force, have responsibility of the said child, as if the said
person was the child’s parent and responsible for the child’s maintenance:
Page 2 of 2
Provided that the child shall continue in such person’s charge for the period stated by the Board, notwithstanding that
the said child is claimed by the parents or any other person except when the Board is of the opinion that the parent or
any other person are fit to exercise charge over such child.”
End of Document
3.6 BAIL TO CHILDREN IN CONFLICT WITH LAW
Ved Kumari

Bail and not institutionalisation continues to be the principle under the JJ Act, 2015 also as was the case in the Acts
in force prior to it. As per section 1218 of the Act, the question of bail is not decided by reference to the classification
of offences as bailable or non-bailable under the CrPC or any other law for the time being in force. All persons
alleged to be in conflict with law and apparently children when apprehended, must be released on bail except in the
following three circumstances:
(1) The release will bring the child in contact with known criminals; or
(2) The release will expose the child to moral, physical or psychological danger; or
(3) The release will defeat the ends of justice.
While the first two grounds for refusing to release the child on bail depends on the factual circumstances to be
brought on record by the report of the probation officer, the third requires legal interpretation. In Master Abhishek
(Minor) v State,19 the High Court of Delhi was dealing with a revision petition against refusal of bail to the child
accused to have committed murder. It noted that
Admittedly the petitioner/juvenile is not a member of any gang. Nor has he committed the offence as a member of any
group of anti-socials. The social investigation report shows that the offence was committed in circumstances which were
co-incidental. There is no previous history of the juvenile having become delinquent. In fact, the school record shows the
juvenile to be academically oriented. His neighbours are happy with him. The family has been supportive and has been
taking care of the child. Therefore if he is released and is sent back to the family there is no likelihood that he would be
exposed to moral or psychological danger.
The only question for consideration then was if his release would defeat the end of justice. The Court clarified that
word justice in this clause should be interpreted keeping in view the purpose of the Act. As the purpose of the Act is
to ensure care and protection of children and to cater to the their development needs, it can be done only by
adopting a child friendly approach in the adjudication and disposition of their matters keeping the best interest of the
child and their ultimate rehabilitation in view. It held that “if there is a factor which requires the Court to keep the
child in custody for meeting the developmental needs of the child or for his rehabilitation, or for his care and
protection then only it can be said that his release would defeat the ends of justice.”
In Manoj @ Kali v State,20 the session judge had refused bail to the child on the grounds that (a) the trial is yet to
commence; (b) the case against the co-accused, who are not juveniles, are also pending in other courts; (c) the
release of the petitioner may affect the trial in the main case also. Setting aside the order of the session judge, the
Delhi High Court reiterated that ends of justice “has to be considered in the context of the welfare of the juvenile”
and not the factors referred to by the session judge.
Page 2 of 2
In all cases, the Board is required to record its reasons if it refuses to release the child on bail and the
circumstances that led to that decision. Securing sureties is not essential for ordering release of the child as the
child may be released without surety also. The child may be placed under the supervision of a probation officer or
care of a fit person after release on bail. It is further provided that in case the court has directed release of the child
bail after fulfilling certain conditions but the child is not able to fulfill those conditions in the next seven days, the
Board shall modify those conditions.
Even though there is no specific provision authorizing the officer-in-charge of a police station to release a child on
bail irrespective of the nature of offence being bailable or non-bailable, this power has to be assumed to be vested
in that officer by virtue of sub-section (2) of section 12 which makes provisions for the place of residence till the
child is produced before the Board if they are not released on bail by the officer-in-charge of the police station. It
clearly means that a child may be released on bail in bailable and non-bailable offences by the SHO of the police
station under whose jurisdiction the child is apprehended even before their production before the Board. If the child
is not so released on bail by the SHO, they are to be kept in the Observation Home till their production before the
Board. If the child is not released on bail by the Board, they are to be kept in the Observation Home or place of
safety during the pendency of the proceedings before it. As principles of fair trial are to be followed by the Board
also, the period of stay should not be more than 15 days at one go and must be reviewed every 15th day till the child
is released on bail or the proceedings are disposed of.
18 Section 12 reads, “Bail to a person who is apparently a child alleged to be in conflict with law- (1) When any person,
who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or
detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in
the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without
surety or placed under the supervision of a probation officer or under the care of any fit person:
Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is
likely to bring that person into association with any known criminal or expose the said person to moral, physical or
psychological danger or the person’s release would defeat the ends of justice, and the Board shall record the reasons
for denying the bail and circumstances that led to such a decision.
(2) When such person having been apprehended is not released on bail under sub- section (1) by the officer-in-
charge of the police station, such officer shall cause the person to be kept only in an observation home in such
manner as may be prescribed until the person can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him
to an observation home or a place of safety, as the case may be, for such period during the pendency of the
inquiry regarding the person, as may be specified in the order.
(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order,
such child shall be produced before the Board for modification of the conditions of bail.”
19 119 (2005) DLT 556, available at https://indiankanoon.org/doc/1929357/, last visited on 14 May 2016.
20 2006 Cr LJ 4759, Decided on 2 June 2006, available on https://indiankanoon.org/doc/743968/, last visited on 14 May
2016.
End of Document
3.7 PROCEDURE TO BE FOLLOWED BY THE BOARD
Ved Kumari

Section 7 lays down the procedure to be followed by a Board and section 9 provides for the course of action to be
followed by a magistrate not empowered to deal with a child in conflict with law.
Section 721 categorically specifies that the Board has to meet as often as prescribed and follow the rules as laid
down for the transaction of business at its meeting. Section 1622 of the Act provides for submission of reports
regarding pendency of cases by the Board to the Chief Judicial Magistrate, or the Chief Metropolitan Magistrate, the
District Magistrate on quarterly basis. The Chief Judicial Magistrate, or the Chief Metropolitan Magistrate will review
these reports to determine if the Board should hold its sittings more frequently, or if there is need to constitute
additional Boards. The recommendations of the Chief Judicial Magistrate of the Chief Metropolitan Magistrate are
further required to be reviewed every six months by a high level committee consisting of the Executive Chairperson
of the State Legal Services Authority, as the Chairperson, the Home Secretary, the Secretary responsible for the
implementation of this Act in the State and a representative from a voluntary or non- governmental organisation to
be nominated by the Chairperson.
The pendency will need to be determined by reference to cases pending before the Board beyond the prescribed
time limit of four months within which the Board is required to dispose of the cases before it. Provision of time frame
can be seen as an effort at ensuring speedy disposal of cases. However, if the time lines are unreasonably short,
they lead to making a mockery of law or violation of rights of people affected by the time lines.
The Act further provides that proceedings must be conducted in a child friendly manner. The Board should hold its
sitting at a venue that is not intimidating and it must not resemble a regular court. Even though the Board has to
function as a bench, a child may be produced before an individual member of the Board when the Board is not
sitting. Any single member of the Board may conduct proceedings and pass orders even if other members are
absent on a given day. All orders, except the final disposal order may be passed by a single member in the
absence of other members of the Board and all such orders are valid. Such orders may include release of the child
on bail, determination of age, directing the child to be kept in an Observation Home or a place of safety, placing a
child under supervision of a probation officer or under the care of a fit person, etc.
However, the Act requires that Principal Magistrate along with minimum one more member must be present at the
time of final disposal of the case giving its finding about the alleged commission of offence by the child. Even so,
the final disposal order is to be made by majority opinion. It means that the two social workers together can override
the opinion of the Principal Magistrate. The Principal Magistrate has been given a casting vote only in case of
difference of opinion among the members without majority of the members disagreeing with the Principal
Magistrate.
Another aspect that needs to be noticed in this respect is the time prescribed for completion of an inquiry. Section
14 provides that an inquiry to determine whether the child has committed the alleged offence or not must be
completed within four months from the date of first production of the child before the Board.23 This period may be
Page 2 of 5
extended for the maximum of two months by the Board for reasons to be recorded about the circumstances
requiring such extension. The preliminary assessment when required is to be completed within three months and
the age inquiry within 15 days.
As per section 14(4), if the inquiry in case of petty offences is not concluded within six months at the most, “the
proceedings shall stand terminated.” The formulation suggests that no formal application needs to be made by the
child seeking termination of such proceedings. The proceedings stand terminated even if no such order is passed
by the Board. Any other order except closure of the matter is not permitted by the language used in this sub-
section. This provision does not cover inquiry into serious and heinous offences. In case of serious and heinous
offences the Board is required to seek extension from the Chief Judicial Magistrate or the Chief Metropolitan
Magistrate who may grant further extension for reasons to be recorded in writing. The Act provides no cap on the
number of extensions or the duration for which the CJM and the CMM may extend the period of inquiry in these
cases but it is hoped that no unreasonable delays will be permitted by the CJM and the CMM while granting
extensions.
The JJ Act, 2015 also provides different procedure to be followed by the Board while conducting inquiry in petty,
serious, and heinous offences as per section 14(5)(d)(e) and (f). Cases of petty offences are to be disposed by the
Board following summary proceedings as provided by the CrPC.24 In case of serious offence by any child or a
heinous offence by children below the age of 16 years, the Board is required to follow summons procedure as
prescribed by the CrPC.25 In case of a child above the age of 16 years who is alleged to have committed a heinous
offence, the Board has to first conduct preliminary assessment to decide whether to transfer or not, the child to the
Children’s Court.
In case it decides to dispose of the matter itself, it has to follow the summons procedure as prescribed in the CrPC
for these cases also. However, the JJ Act, 2015 is silent about the procedure to be followed by the Children’s Court
when it decides to try the child as an adult. It seems that the Children’s Court will have to follow the procedure
applicable as per the provisions of the CrPC by reference to the offence charged. Even so, it is required to follow
the tenets of fair trial and maintain child friendly atmosphere while conducting the trial in terms of section 19(1)(i) of
the JJ Act, 2015.
Section 14(5) lays down specific steps that must be taken by the Board to ensure fair and speedy inquiry. The
Board is specifically charged with the responsibility of satisfying itself that the child has not been subjected to any ill-
treatment by any person including police, lawyer, or probation officer. In case it finds so, the Board must take
corrective steps which should include sending the child for necessary medical treatment – physical, psychological
or psychiatric. In case the ill-treatment amounts to an offence under this or any other law, the Board should also
direct the police to initiate criminal action against the perpetrator.
The Board must conduct the proceedings in a simple manner so that the child may understand the proceedings and
participate in them. The atmosphere during the proceedings should be child friendly making the child feel
comfortable and secure. The Board has to ensure to every child the opportunity of being heard and participate in
the inquiry. Right to be heard is necessary and it includes the right to be heard through a lawyer but it will also
include in case of children, their parents or other persons whom the child trusts and wants to be present during the
proceedings. Presence of these person may be prohibited by the Board only if that will be in the best interest of the
child and no other reason.
In the normal course, the police are expected to produce a child before the Board and not before any other
magistrate. Section 9, however, provides double protection to children by imposing a duty on the magistrate not
empowered to function under the Act to examine the question of age before exercising jurisdiction over persons
produced before them. Section 926 conceives of two situations that may be faced by a magistrate not empowered to
function under the Act. First, when the person alleged to have committed an offence is produced before them is
apparently a child, and second, when the person produced before them claims to be a child, or claims to be a child
on the date of offence or if the court itself thinks that the person was a child on the date of commission of offence. In
case the person produced before the magistrate for alleged commission of an offence is apparently a child, the
magistrate is required to do nothing more than record such opinion and transfer the child along with the records to
the Board having jurisdiction in the case. In the latter circumstances where there is a claim of juvenility made by the
child or the magistrate is in doubt, the magistrate is required to determine the age of such a person by holding an
inquiry on the basis of evidence adduced in this respect. Such evidence cannot be an affidavit. Section 94 lays
down detailed procedure that needs to be followed by the Board or the Committee for determination of age. It also
spells out the sequence of evidence that may be admitted by the Board or the Committee for determining the age.27
Page 3 of 5
The magistrate not empowered to function as the Board should also follow the same procedure and rely on same
evidence as prescribed in section 94 in determining the age of the child when in doubt.
Proviso to section 9(2) clarifies that the claim of juvenility may be raised before any court, at any stage of the
proceedings, including the stage after the final disposal of the case. Use of the word “court” in a similar provision in
the JJ Act, 200028 was held by the Supreme Court to be inclusive of the Supreme Court.29Such a claim is to be
determined in accordance with the provisions contained in this Act. If the court determines that the person was a
child on the date of offence, such child is to be sent to the Board for passing appropriate orders. Any sentence
passed by the other court in that case is rendered infructuous by reference to sub-section 4 of section 9. This
section further provides that in case the person is required to be kept in protective custody during determination of
age, they shall be kept in the place of safety during the period of inquiry into their age.
The challenge of age determination becomes insurmountable if the plea of juvenility is raised after attaining the age
of 20 years if no documentary proof is available with the accused person. In Ramdeo Chauhan’s Case30, the
Gauhati High Court found that the order of the juvenile court seeking fresh medical opinion after 18 years from the
date of commission of offence as untenable specially when medical opinion of the medical board was available on
record and it had not been declared to be unreliable. The High Court noted the consistent opinion of medical
experts that “as a safe practice, no specific or dogmatic opinion as to approximate age can be given after 20 years.”
The following medical opinion by experts was quoted by the Court:
In the treatise “Forensic Medicine for Lawyers” by J.K. Mason it has been observed that upto the age of 20, the most useful
information on age is given by the joining of the epiphyses to their shafts, but in adults, after the age of 20,the aging of an
unknown body becomes progressively more difficult. Identically, in Medical Jurisprudence and Toxicology by H W V Cox, it
has been propounded that the “ossification test” refers to radiographic (X-ray) examination of the bones of children and
young people upto about the age of 20 and there is a general progression of such appearance and fusion, so that an
approximate timetable can be constructed upto about the age of 20.
It may be noticed that none of the provisions provide for the rights of the child to be produced before the Board
without loss of time but within 24 hours excluding the time required for journey. Nor do they provide the right to a
lawyer to the child. These rights nonetheless have to be secured to every child by the Board who has to conduct its
proceedings keeping in view fundamental and general principles contained in section 3 of the JJ Act, 2015 that are
to be followed by the Board and all other agencies in the implementation of the Act. The fundamental and general
principles also recognise the principles of fair trial, natural justice and non-waiver of rights. Hence, every Board is
obligated to ensure that every child who is not able to engage a lawyer of their own choice, are provided a legal aid
lawyer free of cost who may represent their case ably and effectively before the Board. Hence, all children must be
produced before the Board at the earliest but within 24 hours as per Article 22(2) of the Constitution. They are also
entitled to a lawyer in terms of Article 22(1). In terms of the Legal Services Authorities Act, 1986, all children are
entitled to free legal aid and provision of a legal aid lawyer has been included among the duties of the Board.
21 Section 7 reads, “Procedure in relation to Board- (1) The Board shall meet at such times and shall observe such rules
in regard to the transaction of business at its meetings, as may be prescribed and shall ensure that all procedures are
child friendly and that the venue is not intimidating to the child and does not resemble as regular courts.
(2) A child in conflict with law may be produced before an individual member of the Board, when the Board is not in
sitting.
(3) A Board may act notwithstanding the absence of any member of the Board, and no order passed by the Board
shall be invalid by the reason only of the absence of any member during any stage of proceedings:
Provided that there shall be at least two members including the Principal Magistrate present at the time of
final disposal of the case or in making an order under sub-section (3) of section 18.
(4) In the event of any difference of opinion among the members of the Board in the interim or final disposal, the
opinion of the majority shall prevail, but where there is no such majority, the opinion of the Principal Magistrate,
shall prevail.”
22 Section 16 reads, “Review of pendency of inquiry- (1) The Chief Judicial Magistrate or the Chief Metropolitan
Magistrate shall review the pendency of cases of the Board once in every three months, and shall direct the Board to
increase the frequency of its sittings or may recommend the constitution of additional Boards.
Page 4 of 5
(2) The number of cases pending before the Board, duration of such pendency, nature of pendency and reasons
thereof shall be reviewed in every six months by a high level committee consisting of the Executive Chairperson of
the State Legal Services Authority, who shall be the Chairperson, the Home Secretary, the Secretary responsible
for the implementation of this Act in the State and a representative from a voluntary or non- governmental
organisation to be nominated by the Chairperson.
(3) The information of such pendency shall also be furnished by the Board to the Chief Judicial Magistrate or the Chief
Metropolitan Magistrate and the District Magistrate on quarterly basis in such form as may be prescribed by the
State Government.
23 Section 14 reads, “14.(1) Where a child alleged to be in conflict with law is produced before Board, the Board shall hold
an inquiry in accordance with the provisions of this Act and may pass such orders in relation to such child as it deems
fit under sections 17 and 18 of this Act.
(2) The inquiry under this section shall be completed within a period of four months from the date of first production of
the child before the Board, unless the period is extended, for a maximum period of two more months by the Board,
having regard to the circumstances of the case and after recording the reasons in writing for such extension.
(3) A preliminary assessment in case of heinous offences under section 15 shall be disposed of by the Board within a
period of three months from the date of first production of the child before the Board.
(4) If inquiry by the Board under sub-section (2) for petty offences remains inconclusive even after the extended
period, the proceedings shall stand terminated:
Provided that for serious or heinous offences, in case the Board requires further extension of time for completion of
inquiry, the same shall be granted by the Chief Judicial Magistrate or, as the case may be, the Chief Metropolitan
Magistrate, for reasons to be recorded in writing.
(5) The Board shall take the following steps to ensure fair and speedy inquiry, namely:— (a) at the time of initiating
the inquiry, the Board shall satisfy itself that the child in conflict with law has not been subjected to any ill-treatment
by the police or by any other person, including a lawyer or probation officer and take corrective steps in case of
such ill-treatment;
(b) in all cases under the Act, the proceedings shall be conducted in simple manner as possible and care shall be
taken to ensure that the child, against whom the proceedings have been instituted, is given child-friendly
atmosphere during the proceedings;
(c) every child brought before the Board shall be given the opportunity of being heard and participate in the
inquiry;
(d) cases of petty offences, shall be disposed of by the Board through summary proceedings, as per the
procedure prescribed under the Code of Criminal Procedure,1973;
(e) inquiry of serious offences shall be disposed of by the Board, by following the procedure, for trial in summons
cases under the Code of Criminal Procedure, 1973;
(f) inquiry of heinous offences—
(i) for child below the age of sixteen years as on the date of commission of an offence shall be disposed of
by the Board under clause (e);
(ii) for child above the age of sixteen years as on the date of commission of an offence shall be dealt with in
the manner prescribed under section 15.
24 See, sections 262-264, Cr PC.

25 See, sections 251-255. CrPC.
26 Section 9 reads, “Procedure to be followed by a Magistrate who has not been empowered under this Act- (1) When a
Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged
to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and
forward the child immediately along with the record of such proceedings to the Board having jurisdiction.
(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is
a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person
was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as
may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the
matter, stating the age of the person as nearly as may be:
Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after
Page 5 of 5
final disposal of the case, and such a claim shall be determined in accordance with the provisions contained
in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of
commencement of this Act.
(3) If the court finds that a person has committed an offence and was a child on the date of commission of such
offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by
the court shall be deemed to have no effect.
(4) In case a person under this section is required to be kept in protective custody, while the person’s claim of being a
child is being inquired into, such person may be placed, in the intervening period in a place of safety.”
27 See Chapter 5.
28 Section 7A, JJ Act, 2000.
29 Abuzar Hossain @ Gulam Hossain v State of West Bengal, Criminal Appeal No. 1193 of 2006 decided on 10 October
2012 available at https://indiankanoon.org/doc/66479798/, last visited on 12 July 2016.
30 Ramdeo Chauhan v Bani Kant Das, decided by Gauhati High Court on 9 August 2011 available at
http://ghconline.gov.in/Judgment/PIL392011.pdf, last visited on 15 May 2016.
End of Document
3.8 SPECIAL PROCEDURES
Ved Kumari

The JJ Act, 2015, like the earlier legislations, includes the prohibition of any preventive detention proceedings
against children under the provisions of the CrPC or any other preventive detention laws for the time being in
force.31 It also prohibits joint trial of children in conflict with law with any other person who is not a child.32 It is
important to note that the prohibition against joint trial of a child and an adult is not limited to proceedings before the
Board but also extends to proceedings before the Children’s Court which has been specifically mentioned in sub-
section 2 of section 23. However, it is difficult to conceive of the circumstances in which this sub-section will come
into operation. The Board is required to determine the age of the persons brought before it at the very initial stage
and the age once determined is presumed to be the true age of the person for the purposes of the Act. In the
scheme of things, there is no occasion for the Children’s Court to determine the age of the child in conflict with law
after their transfer to it by the Board.
The Act provides for removal of disqualification attaching to conviction for an offence in relation to any child dealt
under the provisions of this Act, except for those 16–18 years old children who are transferred to the Children Court
and are dealt with by the Children’s Court as adults.33 The records of such proceedings kept by the police are also
to be destroyed but the records of proceedings in relation to 16–18 years old children tried as adults may be kept by
the Children’s Court. Exclusion of the 16–18 years old found to have committed a heinous offence is against the
objectives of the Act and must be struck down by the court for violating the fundamental right of equality guaranteed
by Article 14 of the Constitution. The differential treatment of 16–18 years old children found to have committed a
heinous offence exposing them to life-long stigma is against the stated purposes of care, protection, treatment,
development and social reintegration of the Act. It is even more questionable as the Act does conceive that children
who are reformed by the age of 21 years and can become contributing members of society should be released
under the supervision of a monitoring authority for the remainder of their period of stay. However, in the absence of
removal of disqualifications and maintenance of their records, it will be impossible for them to re-integrate in society
and start their life with a clean slate. The blanket exclusion of 16–18 years old children tried as adults by the
Children’s Court from the protection against stigmatization is against the best interest principle too and must be
struck down for being contrary to the fundamental principle of the Act as well as for being contrary to the protection
against discriminatory treatment.
No criminal law can have retrospective application and section 2534 specifically provides that all proceedings
pending in relation to any child in conflict with law before the Board or any other court shall continue in the same
manner as if this Act has not been passed.
The JJ Act, 2015 has made specific provision in relation to a child in conflict with law who runs away from any
observation home, special home, place of safety or from the care of any person or institution. Section 2635
authorizes the police take charge of such a child and produced them before the Board, preferably the same one
which had passed the original order in respect of that child. No additional proceedings are to be instituted in relation
to the child. The Board is to ascertain the reasons for the running away of the child and pass necessary directions
keeping in view the reasons for such running away and the best interest of the child.
Page 2 of 2
Provision of time frame can be seen as an effort at ensuring speedy disposal of cases. However, if the timelines are
unreasonably short, they lead to making the mockery of law or violation of rights of people affected by the time
lines. The JJ Act, 2015 obligates that the initial assessment to determine suitability of transfer of the 16–18 year old
child should be completed within three months by the JJBs. This timelines poses serious questions about not only
legality of the procedure but also practicality of the time frame. This time frame does not require that the
assessment should be done after the police files its final report in the case confirming that prima facie a case of
heinous offence has been made against the child. In the absence of final report, any assessment on the ability of
the child to have committed the offence with a childlike mind or not proceeds on the assumption that the child
indeed had committed the offence only on the basis of complaint received. This assessment also presumes that the
JJB has also determined that the child is between the ages of 16–18 years. Age determination of a child on the
basis of a school certificate or the birth certificate from another State takes long time in procuration and certification
of those documents and it may not be possible to do both age determination and initial assessment within the time
frame provided.
31 Section 22. Proceeding under Chapter VIII of the Code of Criminal Procedure not to apply against child-
Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973, or any preventive
detention law for the time being in force, no proceeding shall be instituted and no order shall be passed against any
child under Chapter VIII of the said Code.
32 Section 23. No joint proceedings of child in conflict with law and person not a child- (1) Notwithstanding anything
contained in section 223 of the Code of Criminal Procedure, 1973 or in any other law for the time being in force, there
shall be no joint proceedings of a child alleged to be in conflict with law, with a person who is not a child.
(2) If during the inquiry by the Board or by the Children’s Court, the person alleged to be in conflict with law is found
that he is not a child, such person shall not be tried along with a child.
33 Section 24. Removal of disqualification on the findings of an offence- (1) Notwithstanding anything contained in any
other law for the time being in force, a child who has committed an offence and has been dealt with under the
provisions of this Act shall not suffer disqualification, if any, attached to a conviction of an offence under such law:
Provided that in case of a child who has completed or is above the age of sixteen years and is found to be in conflict
with law by the Children’s Court under clause (i) of sub-section (1) of section 19, the provisions of sub-section (1) shall
not apply.
(2) The Board shall make an order directing the Police, or by the Children’s court to its own registry that the relevant
records of such conviction shall be destroyed after the expiry of the period of appeal or, as the case may be, a
reasonable period as may be prescribed:
Provided that in case of a heinous offence where the child is found to be in conflict with law under clause (i) of sub-
section (1) of section 19, the relevant records of conviction of such child shall be retained by the Children’s Court.
34 25. Special provision in respect of pending cases- Notwithstanding anything contained in this Act, all proceedings in
respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of
commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted.
35 26. Provision with respect of run-away child in conflict with law- (1) Notwithstanding anything to the contrary contained
in any other law for the time being in force, any police officer may take charge of a child in conflict with law who has run
away from a special home or an observation home or a place of safety or from the care of a person or institution under
whom the child was placed under this Act.
(2) The child referred to in sub-section (1) shall be produced, within 24 hours, preferably before the Board which
passed the original order in respect of that child, if possible, or to the nearest Board where the child is found.
(3) The Board shall ascertain the reasons for the child having run away and pass appropriate orders for the child to be
sent back either to the institution or person from whose custody the child had run away or any other similar place
or person, as the Board may deem fit:
Provided that the Board may also give additional directions regarding any special steps that may be deemed
necessary, for the best interest of the child.
(4) No additional proceeding shall be instituted in respect of such child.
End of Document
3.9 INQUIRIES BY THE BOARD IN RELATION TO CHILDREN IN CONFLICT
WITH LAW
Ved Kumari
3.9 INQUIRIES BY THE BOARD IN RELATION TO CHILDREN IN CONFLICT

WITH LAW
The Board is required to conduct primarily two inquiries in relation to children in conflict with law. First, the Board
has to conduct an inquiry to determine whether the child alleged to be in conflict with law before it is below the age
of 18 years on the date of offence. Only if the answer is in the positive, the Board is required to conduct the second
inquiry to find out if the child has committed the offence as alleged and to pass the appropriate order in relation to
that child. In case of children between the ages of 16–18 years it is required to examine certain other aspects also.
First, it should determine if the child was above the age of 16 years on the date of offence. Second, whether the
offence alleged to have been committed is a heinous offence. When answer to both these questions are in the
positive, the Board is required to further conduct a preliminary assessment with regard to their mental and physical
capacity to commit such offence, ability of determine to understand the consequences of the offence and the
circumstances in which the offence was allegedly committed.
3.9.1 Age determination
Section 94 of the Act contains detailed provisions relating to age determination in all cases by the Board and the
Committee. As the procedure for age determination is the same for both the Board and the Committee, it has been
dealt with in detail in Chapter 5 containing provisions which apply both to the Board and the Committee. Suffice it to
state here that if the offence alleged to have been committed by a child is heinous, and the child is on the borderline
of 16 years, determination of age in such cases will have as far reaching consequences as it has for the child on the
borderline of 18 years of age. A person on the borderline of 18 years is to be given benefit of doubt on the lower
side up to one year as held in Rajendra Chandra Case36 and keep the person within the protective regime of
juvenile justice. The same approach will need to be followed by the Board when the child is on the borderline of 16
years and is alleged to have committed a heinous offence. Any other course will expose the child to the possibility
of transfer to the Children’s Court to be tried as an adult and will be against the protective policy of the JJ Act, 2015.
With majority of children coming to the juvenile justice system not having a birth certificate and having dropped
much before their tenth standard, it will be a herculean task to determine with certainty that a particular child falls
within the crucial age range of 16–18 years. The report in THE HINDU37 is only one example of the stupendous task
faced by the Boards in this respect. THE HINDU reported that the age of the tribal child was determined on the basis
of his age recorded in the Adhaar Card and he was sent to jail in Kerala as he was alleged to have committed a
heinous offence. His age was later determined to be 16 years on the date of offence and he had to be rescued by
the DCPU and produced before the JJB. It was further mentioned in the report that “Age and details of several other
young Adivasis have reportedly been given in approximation as many of them did not have birth certificates or
school certificates.” This report also noted that this is not the first case from Kerala where a child was sent to jail on
wrong assumption of age. About a month ago, another child, incarcerated on wrong assumption of age, was saved
from a jail in Kozhikode by the Child Protection Unit.
Page 2 of 7
3.9 INQUIRIES BY THE BOARD IN RELATION TO CHILDREN IN CONFLICT WITH LAW
It may be noted that the time frame for determination of age of a child is 15 days from the date of first production
under the JJ Act, 2015 compared to one month given under the JJ Act, 2000. Age determination of a child on the
basis of a school certificate or the birth certificate from another State has been given preference over age
determination by medical evidence. Procurement and certification of those documents from another States takes a
long time and it is not going to be easy to keep to this time line by the Boards in most cases.
In all cases of children below the age of 16 years alleged to have committed an offence, or a child in the age group
of 16–18 years alleged to have committed a petty or serious offence, the Board has to move on to the second
inquiry of determining whether the child before them has committed the offence as alleged. After appreciation of
evidence, and keeping in view the social investigation report prepared by the probation officer, the Board is required
to pass appropriate orders.
3.9.2 Final disposal
On completion of inquiry in the alleged offence, section 17 provides38 that if the Board comes to a conclusion that
the child has not committed the offence, the Board has to record that finding while disposing the case finally. It is
strange that section 17 contains a non-obstante clause stating that the Board will record this finding
“notwithstanding anything contrary contained in any other law for the time being in force” as no law can provide
anything contrary to what has been provided in this Section. If after inquiry a court comes to a finding that the
offence alleged is not committed, the court is duty bound to record such a finding. The non-obstante clause would
have made more sense if it was part of sub-section (2) of section 17 which authorizes the Board to refer such a
child to the Committee if it appears to the Board that such a child is in need of care and protection.
The order of acquittal by the Board is not appealable except when the child acquitted was alleged to have
committed a heinous offence and was between the ages of 16–18 years of age on the date of commission of
offence. It does seem permissible though that the acquitted child who may have been referred to the Committee by
the Board under section 17(2) may appeal against this order under section 101, if aggrieved.
If the Board finds that the child has committed the alleged offence, then it may choose to pass any of the orders
listed under section 18. The orders provided in section 18(1) may be chosen by the Board notwithstanding anything
contrary contained in any other law for the time being in force. Inclusion of this non-obstante clause in this sub-
section means that mandatory minimum sentence of imprisonment provided in any other law for the offence
committed by the child cannot be imposed on the child. Even when a 16–18 years old commits a heinous offence
and is tried as an adult by the Children’s Court, the sentence of death or life imprisonment without the possibility of
release may not be passed for that offence committed before attaining the age of 18 years.
As the purpose of the Act is to give the child another chance in life by providing opportunities for development,
reformation and rehabilitation and not to punish, the choice of order is to be made by reference to the following
factors:
(1) nature of offence,

(2) specific need for supervision or intervention,
(3) circumstances as brought out in the social investigation report, and
(4) past conduct of the child.
These factors are to be read together and all of them have to be considered together while choosing the most
appropriate order in each case. Nature of offence committed by the child cannot be the sole criterion for directing
the child to a special home. The social investigation report about the past conduct of the child, circumstances of the
child in which the offence was committed and the prospects of the child in future, specific need of the child for
supervision or intervention are all essential to be considered before choosing the most suitable order aimed at the
rehabilitation and reintegration of the child in society.
The orders contained in section 18(1) sometimes are understood to have been arranged in terms of the most
lenient being on top and the most sever being the last resulting in the tendency among judges to choose the lenient
ones for petty offences and the severe one for serious or heinous offences. It must, therefore, be underscored that
no such hierarchical approach needs to be followed in choice of order to be imposed on the given child. The orders
have to be chosen on an individualised basis considering all the factors listed above and not by mere nature of
offence. The order of placement of the child in a special home in the last39but the fundamental principle read with
Page 3 of 7
the Beijing Rules make it clear that institutionalisation is to be resorted to as a measure of last resort and for the
shortest period till suitable community placement is arranged for the child.
The first order listed in section 18 is of allowing the child to go home after advice or admonition after counselling to
the child and their parent or guardian. Prior to the JJ Act, 2000, similar section contained in earlier Acts did not
contain any direction regarding counselling to parents or guardian prior to release. Inclusion of this aspect is in
recognition of the fact that family has an important role in the commission of the offence by child as well as in
prevention of its recurrence. It is important to take note of the factors that were responsible for the commission of
crime by the child as well as ensure sufficient support structure to take care that child does not relapse in it. This
provision assumes that the Board will have the services of trained counsellors for discharging this responsibility.
The second order enables the Board to order group counselling and similar activities. The group that needs to be
counselled in this clause has not been identified and the Boards usually have scant understanding of when and
how to implement this order. Sometimes the Boards direct a group of children found to have committed an offence
for group counselling even when they did not commit the offence together. It certainly may be chosen by the Board
if some children committed the offence as a group. In my understanding, however, there are many other
circumstances also when group counselling may be appropriate. Many a times the child does not have a proper
support structure around him or has a peer group which has an adverse influence on them. All such persons who
may have a positive influence on the child or the child’s parents or guardian may be directed to be part of group
counselling where they together map out the way forward for the child. Sometimes including the victim or victim’s
family may be useful to integrate the child in the society, especially when they live in the vicinity and are known to
each other. Including persons connected with the crime and those who may prevent its recurrence will secure
reintegration and rehabilitation of the child.
The third order that may be passed by the Board is community service under the supervision of an organisation or
institution, or a specified person, persons or group of persons identified by the Board. This is yet another order that
has been on the statute book for a long time but used only exceptionally and without much understanding about its
scope or purpose. Usually the Boards have been sending children to parks, hospitals, temples, or mosques to help
keep these places clean. Such placement had no connection with the offence committed by them. The terms and
conditions of such orders do not allow the child to pursue any other activity during the period of community service.
For example, one Board member during their training, mentioned that she had directed the child to go to an
institution for mentally retarded children for two months and help the personnel in the up keep of the place. The
child is providing service to the community by such an order but at the same time it denies the child the opportunity
to earn a livelihood or go to school or attend any vocational training course that may lead to their rehabilitation.
Devoid of those opportunities, the community service order becomes a punitive order and not an order aimed at
reintegration and rehabilitation of the child. At the end of two months they are not any better off with their
reintegration or rehabilitation. An individualised plan should choose the community work by reference to the
circumstance of the commission of offence or the victim of their offence and may be limited to the weekends or
limited hours per day. It should also have a plan for their reintegration and rehabilitation through education or
vocational training or work along with the community service work directed to be performed by the child. The Board
must identify the local supervisor to support and guide the child during their community service orders. The child’s
identity as a child in conflict with law must not be revealed. The work chosen as part of community service must not
be demeaning or ostracize the child.
The fourth order included in section 18 is fine payable either by the child or their parent or guardian. It needs to be
emphasised that even though fine is listed among the punishments under the Indian Penal Code, it cannot be
imposed by reference to the same principles. Imposition of fine or its quantum is linked with the nature of offence
and it may be imposed only on the offender under the scheme of the Indian Penal Code. Under the JJ Act 2015, not
only the child who has been found to have committed an offence may be directed to pay fine but their parents or
guardians may be directed to do so. This clause gives no further directions about the circumstances in which fine
may be chosen, or the quantum of fine, or the circumstances when the parents or guardians may be directed to pay
fine. The earlier legislations providing for fine had permitted fine only if the child was above a certain age and
earning. Those legislations also provided that in default of payment of fine, the child may not be sent to jail. These
two conditions clearly indicated that fine was not a penal measure under those legislations but a community
placement measure in tune with the principle of use of institutions only as a measure of last resort. The JJ Act, 2015
does not include these two conditions. Instead it provides that in case the child is working, the Board should ensure
that the provisions of any labour laws in force are not violated. It opens new questions to be decided. What
measures can the Board take if it does find that the child is working in violation of the labour laws in force? If the
child is not working, how are they supposed to pay the fine? What will be the circumstances in which the parents or
guardians may be directed to pay fine? What will be the consequence if the child or the parents failed to pay fine?
Page 4 of 7
Some countries have the system of day fine wherein the Court determines a certain percentage of the day’s earning
to be paid as fine for the specified number of days. In case of default, the person is asked to explain the reason for
the default. A daily wage earner may not get a job on a given day and will be exempt to pay the fine for that day.
The day-fine system is aimed at ensuring that the person remains in the community while feeling the pinch of
punishment by paying the fine from their day’s earning. The Board needs to develop a system of payment of fine
aimed at teaching a lesson to the child without punishing them or uprooting them from their surroundings. The
legality of directing the parents to pay fine is doubtful as the conduct of the parent or guardian is not the subject
matter of inquiry before the Board. Asking them to pay a fine for the offence committed by their child amounts to
condemnation without a fair trial and is unconstitutional.
A child may also be released on probation of good conduct and placed under the care of parent, guardian, or fit
person under clause (e) of section 18 of the JJ Act, 2015. The parent, guardian, or fit person is required to execute
a bond for the good behaviour and well-being of the child. The maximum period of probation under this clause
cannot be more than three years. This order is to be chosen when the Board thinks that the conduct of the parent,
guardian or the fit person also needs to be supervised along with that of the child. The first order of release after
due advise or admonition is suitable where the parents are trustworthy and capable of looking after the child.
However, when the Board is not certain of their conduct or the ability to control and take care of the child the board
may chose instead to pass the order of supervision. This clause presumes that the Board will have the necessary
number of probation officers to keep track of the child so placed under probation. This clause entails that the
probation officer not only supervises the child during the period of probation but also supervises the parent or
guardian or the fit person who has undertaken to look after the child. The order under section 18(1)(f) under which
the Board may direct the child to be placed in a fit facility differs from the order in clause (e) to the extent of
supervision by the probation officer. The fit facility has to provide both care and supervision of the child. The
duration of this order may also not be more than three years.
The last order contained in section 18 is of directing the child to be sent to a special home for a period not
exceeding three years. The special home is obligated to provide reformative services including education, skill
development, counselling, behaviour modification therapy, and psychiatric support during the stay in the special
home. As special homes are not prisons and have been established to provide home-like care and protection to the
child, the standard of education to be provided to children has to be at par with education provided in the
community schools. It also needs to be identified what skills are required to be developed for children sent to the
special home. Most children arrested for commission of an offence belong to the lowest economic strata and have
dropped out of school after primary or middle school. They may be lacking not only the educational skills of reading,
writing and basic arithmetic but may not have acquired the inter-personal and life skills like communication, team
work, ethical and moral values, hygiene, anger management, etc. The special schools must be sufficiently equipped
to provide opportunities to children sent there to develop their abilities and personality to the maximum extent
possible.
Proviso to section 18(1)(g) authorises the Board to send any child to a place of safety instead of the special home if
it considers that keeping the child in the special home will not be in their interest or that of other children in the
special home considering the conduct and behaviour of the child. This is a very troublesome provision as it open
the possibility of a very young child found to have committed any offence being sent to the place of safety which is
primarily meant for keeping 16–18 years old children alleged or found to have committed a heinous offence. Earlier
Acts also authorized that a child in the specified circumstances could be kept in a place different from the special
home but those provisos were limited in their scope and were included to deal with serious and violent child
offenders in the specified age group. For example, proviso to section 16 of the JJ Act, 2000 provided that if the
conduct and behaviour of a child above the age of 16 years found to have committed a serious offence was such
that it was not desirable to keep them with other children in the special home, the Board may keep the child in place
of safety and refer the matter to the State Government for appropriate order. The State Government on receipt of
such reference was required to identify the place of protective custody for keeping such child. The JJ Act, 2015 has
incorporated a much elaborate procedure for dealing with such cases. Hence, there was no need to include a
proviso to section 18(1)(g). Allowing placement of any child in place of safety without any age limit or the offence
committed by them, and that too without any assessment by any expert, is contrary to the scheme of the JJ Act,
2015.
It may be noted that clauses (a) to (g) of sections have not been separated by “or” at the end of each clause. It
suggests that the Board may choose more than one order in a given case. A child restored to parents or guardian,
or sent to a special home may also be asked to pay fine. As long as the two or more orders are not incompatible,
the Board may combine them to create the most appropriate order to meet the individual needs of the child.
Page 5 of 7
Sub-section (2) of section 18 contains an additional list of orders that may be passed in addition to those passed
under section 18(1)(a) to (g). These include the order to:
(1) attend school; or

(2) attend a vocational training centre; or
(3) attend a therapeutic centre; or
(4) prohibit the child from visiting, frequenting or appearing at a specified place; or
(5) undergo a de-addiction programme.
Even though sub-section (2) separates the various orders by use of the word “or” between two orders, there is no
reason why two or more orders may not be added to the order passed under section 18(1).
Section 18(3) of the JJ Act, 201540 authorizes the Board to pass an order of transfer of the 16–18 years old child
alleged to have committed a heinous offence to be tried as an adult by the Children’s Court if it considers such
transfer appropriate after preliminary assessment under section 15.
3.9.3 Procedure in relation to 16–18 years old children in conflict with law
Section 1541 of the JJ Act, 2015 prescribes the procedure to be followed in case of a 16–18 years old child alleged
to have committed a heinous offence. It directs the Board to conduct a preliminary assessment in case of a 16–18
years old child alleged to have committed a heinous offence to determine if the child should be transferred to the
Children’s Court to be tried as an adult. In order to take that decision, the Board has to follow some preliminary
steps. First of all, the Board must conclusively determine that the child in conflict with law before it was above the
age of 16 years but below the age of 18 years on the date of offence. This determination has serious implications
for the child in conflict with law alleged to have committed a heinous offence and is crucial as it may expose the
child to the possibility of transfer to the Children’s Court to be tried as an adult. If the child is found to be below the
age of 16 years on the date of commission of offence, the Board may deal with the case in the usual manner.
However, if the Board determines the child to be above the age of 16 years on the date of alleged commission of
offence, the Board has to further determine whether to deal with the child themselves or to transfer them to the
Children’s Court. Hence, it becomes crucial that the age of the child is determined in the most scientific manner. If
documentary proof of age as prescribed in section 94 is not available, it is going to be a herculean task to
accurately determine that the age of the child was above 16 years but below 18 years on the date of offence.42 The
age inquiry is to be completed within 15 days from the date of first production of the child before the Board.
Only if the Board comes to the conclusion that the child before it was 16 years or above but below the age of 18
years on the date of offence, that the Board needs to take the second step of determining whether the offence
alleged to have been committed by the child is a heinous offence or not.
In order to determine whether the offence is heinous or not, the Board should follow the following simple steps:
(1) Examine whether the relevant section under which the child has been alleged to have committed the
offence prescribes any mandatory minimum period of imprisonment for the offence?
(2) If yes, examine whether the offence is punishable with minimum imprisonment of seven years or more?
(3) If the offence is punishable with minimum imprisonment of seven years of more, proceed to conduct the
preliminary assessment. If not, follow the procedure prescribed for dealing with serious offences by
children.43
Only if the offence alleged to have been committed is found to be heinous following the above steps, that the Board
needs to proceed to conduct the preliminary assessment with regard to his mental and physical capacity to commit
such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly
committed the offence.
If both the preliminary assessment and age determination inquiry are initiated simultaneously, it may lead to
incongruous results that may show that the child is not above the age of 16 years but has committed the offence in
circumstances that justify their transfer to the Children’s Court to be tried as adults. In such cases, the Board is not
authorized to transfer the child to the Children’s Court but may be adversely disposed against the child while
holding the inquiry and passing the final order relating to them.
Page 6 of 7
The Board may take assistance of experienced psychologists or psycho-social workers or other experts for such
assessment. Use of the word “may” in the proviso seem to suggest that this important decision may be taken by the
court even without the assistance of experts but that will lead to travesty of justice and arbitrariness in decision
making. The word “may” should be understood as “shall” for the purposes of this section.
The explanation attached to this section clarifies that the preliminary assessment is not a trial but its purpose is to
assess the capacity of the child to commit and understand the consequences of the alleged offence. A question
was raised during the training programmes being conducted for the members of the Board and children’s court
whether the experts giving the assessment could be subjected to cross examination? After discussions it was
decided that it should not be so as the expert opinion may become the subject of scrutiny in case the order of the
Board to transfer or not transfer the child to the Children’s Court is challenged in appeal by the aggrieved person.
The JJ Act, 2015 obligates that the initial assessment to determine suitability of transfer of the 16–18 year old child
should be completed within three months by the JJBs. This timeline poses serious questions about not only the
legality of the procedure but also practicality of the time frame. This time frame does not require that the
assessment should be done after the police files its final report in the case confirming that prima facie a case of
heinous offence has been made against the child. In the absence of final report, any assessment on the ability of
the child to have committed the offence with a childlike mind or not proceeds on the assumption of that the child
indeed had committed the offence only on the basis of the complaint received. This time frame also includes the 15
days given for the age determination inquiry.
3.9.4 Final Orders after Preliminary Assessment
After the preliminary assessment the Board is required to take a decision of either transferring the matter to the
Children’s Court for trial of the child as an adult or it may decide to dispose of the matter by itself. In case it decides
to retain the matter, it is required to conduct the inquiry following the procedure as prescribed for trial in summons
case under the Code of Criminal Procedure, 1973.44
After holding the inquiry in the commission of the alleged offence by the child, the Board has to pass the final orders
in the case. Curiously, the JJ Act, 2015 is silent about the final orders that the Board may pass in case of 16–18
years old child found to have committed a heinous offence or found not to have committed such an offence. Section
18 which prescribes the orders to be passed by the Board in final disposal applies to all offences committed by
children below the age of 16 years and to petty and serious offences committed by 16–18 years old child but it
excludes from its purview heinous offences by 16–18 years old children. There is no specific section to direct the
Board what orders should it pass to finally dispose of cases of 16–18 years old children alleged to have committed
a heinous offence when it decides to itself conduct the inquiry in that offence.
Answer to this question is to be found in section 19(1)(ii) laying down that in case the Children’s Court decides not
to try the child transferred to it by the Board, as an adult, it may conduct the inquiry as the Board and “pass
appropriate orders in accordance with the provisions of section 18.” If the Children’s Court can pass the orders
under section 18 for this category of children who are not tried as adults, the Board should do the same. However,
this is yet another serious lacuna in the drafting of the JJ Act, 2015.
The Board and the Children’s Court should be guided by the same considerations in choosing the appropriate order
under section 18 as are kept in mind by the Board while disposing of a matter concerning a child below the age of
16 years or a 16–18 years old alleged to have committed a petty or serious offence.
36 (2002) 2 SCC 287 [LNIND 2002 SC 59].

37 http://www.thehindu.com/news/national/kerala/wrong-age-in-aadhaar-lands-tribal-child-in-jail/article8420740.ece#, last
38 Section 17 reads, “Orders regarding a child not found to be in conflict with law- (1) Where a Board is satisfied on inquiry
that the child brought before it has not committed any offence, then notwithstanding anything contrary contained in any
other law for the time being in force, the Board shall pass order to that effect.
(2) In case it appears to the Board that the child referred to in sub-section (1) is in need of care and protection, it may
refer the child to the Committee with appropriate directions.”
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39 18. Orders regarding child found to be in conflict with law- (1) Where a Board is satisfied on inquiry that a child
irrespective of age has committed a petty offence, or a serious offence, or a child below the age of 16 years has
committed a heinous offence, then, notwithstanding anything contrary contained in any other law for the time being in
force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in
the social investigation report and past conduct of the child, the Board may, if it so thinks fit,—
(a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child
and to his parents or the guardian;
(b) direct the child to participate in group counselling and similar activities;
(c) order the child to perform community service under the supervision of an organisation or institution, or a specified
person, persons or group of persons identified by the Board;
(d) order the child or parents or the guardian of the child to pay fine:
Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time
being in force are not violated;
(e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or
fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may
require, for the good behaviour and child’s well-being for any period not exceeding three years;
(f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit
facility for ensuring the good behaviour and child’s well-being for any period not exceeding three years;
(g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for
providing reformative services including education, skill development, counselling, behaviour modification therapy,
and psychiatric support during the period of stay in the special home:
Provided that if the conduct and behaviour of the child has been such that, it would not be in the child’s
interest, or in the interest of other children housed in a special home, the Board may send such child to the
place of safety.”
40 Section 18 (3) reads, “Where the Board after preliminary assessment under section 15 pass an order that there is a
need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s
Court having jurisdiction to try such offences.”
41 15. Preliminary assessment into heinous offences by Board- (1) In case of a heinous offence alleged to have been
committed by a child, who has completed or is above the age of 16 years, the Board shall conduct a preliminary
assessment with regard to his mental and physical capacity to commit such offence, ability to understand the
consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an
order in accordance with the provisions of sub- section (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-
social workers or other experts.
Explanation.—For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess
the capacity of such child to commit and understand the consequences of the alleged offence.
(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then
the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal
Procedure, 1973:
Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101:
Provided further that the assessment under this section shall be completed within the period specified in section 14.
42 See, age determination, supra.
43 For further clarification, see the discussion under definitions of heinous, petty and serious offence in chapter 2.
44 Section 15(2) of the JJ Act, 2015.
End of Document
3.10 CHILDREN’S COURT
Ved Kumari

Originally the term “Children’s Court” was used to refer to the special courts established to deal with children
committing offences. These courts were imbued with the philosophy of care, protection, development, and
rehabilitation of children before them. The term “Children’s Court” was hijacked by the Commissions for Protection
of Child Right Act, 2005 which provided for establishment of a court to deal with all offences against children and
violations of their rights and this court was referred to as the Children’s Court.45As this Court is an special criminal
court headed by a session judge dealing with adult offenders committing offences against children, reference to it
as Children’s Court is misleading and mischievous. By usage of this term one is made to believe that it is for the
protection of children. At one level, the Children Court has to have special training to deal with children and create a
child friendly atmosphere as all the cases before them will involve at least one child witness who will come to
depose before them as victims of crimes. At the same time, the Children’s Court is also trained to choose harsh
punishments against the offenders who are found to have committed offences against children. The scenario turns
turtle when the child appears before it not as a victim but as an offender. Many a times these child offenders may
have committed the offence against another child. In all these cases, it will be difficult for the children’s court to
determine the approach they need to follow in case of child offenders. Should they follow the child friendly approach
as they are trained to adopt in case of child victims or should they follow the penal approach that they are trained to
adopt while dealing with offenders committing offences against children? The answer to this dilemma is to be found
in section 19(1)(i) which directs the Children’s Court to pass appropriate orders “considering the special needs of
the child, the tenets of fair trial and maintaining a child friendly atmosphere.” It suggests that the Children’s Court
has to follow the same protective approach towards children before it alleged to have committed an offence as it is
trained to adopt while dealing with children against whom an offence has been committed.
Section 1946 of the JJ Act, 2015 lays down the procedure to be followed by the Children’s Court after receiving the
case from the Board after preliminary assessment. The first step to be taken by the Children’s Court is to reassess
the preliminary assessment to determine if the child transferred before it should be tried as an adult or as a child.
There is no direction in the provisions about the basis on which the Children’s Court should take this decision and
this question is liable to be decided in an arbitrary manner by the Children’s Court across the country.
In case the Children’s Court decides to deal with the child as a child, it has to conduct the inquiry as a Board and
dispose of the case in terms of section 18 of the Act. If it decides to try the child as an adult, it has to follow the
procedure as prescribed by the CrPC for trial of such offences. After following the principle of natural justice and fair
trial, the Children’s Court has to give its finding whether the child has committed an offence. In case the Children’s
Court finds that the child has committed the offence charged, it has to decide the order to be passed in relation to
such child.
3.10.1 Disposal by the Children’s Court
It is noteworthy that the words used in section 19(1)(i) are that in case the Children’s Court decides that there is
need to try the child as an adult, it has to pass “pass appropriate orders after trial subject to the provisions of this
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section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child
friendly atmosphere”. It is important to emphasise that section 19 does not direct the Children’s Court to impose the
punishment as prescribed for the offence in the IPC or any other law in force. The Children Court has been directed
to pass “appropriate orders subject to the provisions of this sections and section 21, considering the special needs
of the child, the tenets of fair trial and maintaining a child friendly atmosphere.” Section 21 prohibits imposition of
death penalty and imprisonment without the possibility of release.47 This prohibition is in accordance with the
provisions of the Convention on the Rights of the Child.48 Section 19 of the Act contain four directions for the
Children’s Court while passing the final order in case it finds that the child tried as an adult has committed the
offence charged:
(1) It shall send the child to the place of safety in the first instance. There is no other option. However, this
Section does not specify the period for which the child is to be sent to the place of safety. There is no
direction in the Section that the period of stay to be directed has to be equal to the period of mandatory
minimum imprisonment prescribed for the offence or more.
(2) The Children’s Court is further obligated to ensure that the reformative services including educational
services, skill development, alternative therapy such as counselling, behaviour modification therapy, and
psychiatric support are provided to the child during the period of his stay in the place of safety.
(3) The Children’s Court must direct the Probation Officer or the District Child Protection Unit or a social
worker, as necessary “to evaluate the progress of the child in the place of safety and to ensure that there is
no ill-treatment to the child in any form”.49
(4) Lastly, this Section provides that the Children’s Court shall direct that on attaining the age of 21 years, the
child will be sent to jail.
When read alone, section 19 seems to provide that the Children’s Court has to order long period of stay in each
case necessitating stay of the child in the place of safety beyond the age of 21 years so that the child may be
transferred to jail in all cases on attaining the age of 20 years. However, when section 19 is read with section 2050 a
different picture emerges. Section 20 allows the Children’s Court to release of a child from the place of safety
without being sent to jail on attaining the age of 21 years “if such child has undergone reformative changes and if
the child can be a contributing member of the society” when so reported by the Probation Officer, or DCPU or a
social worker or when the Children’s Court itself is of that opinion. This evaluation is contingent on the situation that
the child has attained the age of 21 years but has “yet to complete the term of stay”. It means that the Act conceives
of a situation where the child has already been released from the place of safety having already completed the
period of stay as directed by the Children’s Court before attaining the age of 21 years.
If it was not permissible for the Children’s Court to choose the period of stay less than the mandatory minimum
prescribed for the offence, section 19 would have stated so in clear terms. In that case section 20 also would have
read, “On attaining the age of 21 years, the Children’s Court shall determine whether the child should be sent to jail
or released in the community for the remaining period of their stay” and not used the words “and is yet to complete
the term of stay”. Reference to the minimum imprisonment of seven years or more in the definition of heinous
offence is only for the purpose of determining which matters may be sent to the Children’s Court and has no
relevance when the Children’s Court has to determine the duration for which the child is to be directed to stay in a
residential facility. What section 19 directs is that in all cases, a child tried by the Children’s Court as an adult will
have to be sent to a place of safety but it gives no directions to the Children’s Court about the duration of such stay.
The Children’s Court has been given wide and unguided discretion to determine the duration of stay of the child in a
residential facility. The Children’s Court may take some guidance from the preliminary assessment report and the
social investigation report and accordingly formulate the individual care plan for each child but it is bound to result
great variation in the choice of tenure chosen by different Children’s Courts across the country.
The only obligation the Children’s Court has, is to pass appropriate orders considering the special needs of the child
and such orders shall include an individual care plan. There is no definition or explanation about the meaning and
content of individual care plan in the JJ Act, 2015. However, the phrase was defined in Rule 2 (h) of the JJ Model
Rules 2007 in the following terms:
“individual care plan” is a comprehensive development plan for a juvenile or child based on age specific and gender
specific needs and the case history of the juvenile or child, prepared in consultation with the juvenile or child, in
order to restore the juvenile’s or child’s self-esteem, dignity and self-worth and nurture him into a responsible citizen
and accordingly the plan shall address the following needs of a juvenile or a child:
(1) Health needs;

Page 3 of 4
(2) Emotional and psychological needs;

(3) Educational and training needs;
(4) Leisure, creativity and play;
(5) Attachments and relationships;
(6) Protection from all kinds of abuse, neglect and maltreatment;
(7) Social mainstreaming; and
(8) Follow-up post release and restoration.
The same may be kept in mind while devising the individual care plan by the Children’s Court under the JJ Act,
2015 while passing appropriate orders keeping in view the needs of the child. Section 19(5) further requires that the
annual reports on the progress of the child have to be submitted to the Children’s Court for record and follow up. It
means that the individual care plan is not a static document and is to be reviewed every year. Modifications may be
made in the individual care plan as required.
The progress of the child must be monitored by the Children’s Court on a periodical basis. If the period of stay as
ordered by the Children’s Court is not over by the time the child attains the age of 21 years, a fresh assessment
needs to be done to find if the child has reformed and is fit to be released in the society. On receipt of a favourable
report, the Children’s Court may order their release under the supervision of the monitoring committee for the
remainder of the stay as originally ordered. Only if the report is in the negative that such a child is to be sent to a jail
to complete the remaining duration of his stay as ordered by the Children’s Court.51
It is important to note the long term consequences of choosing long period of stay in case of all children. The range
of punishments provided for heinous offences is from seven year imprisonment to life imprisonment. It would mean
that a 16–18 years old child in conflict with law when tried as an adult and is given an adult punishment, they may
spend the formative years of their life growing in the company of their peers convicted of similar heinous offences.
In case they undergo the full length of stay as ordered by the Children’s Court, first in the place of safety till they
attain the age of 21 years and thereafter in jail, they will be released from jail at the prime age of 23- 38 years. With
the background of seven to twenty years of imprisonment, they will have access to no government job; it will be
difficult for them to find a stable job even in private sector; they are more likely to face difficulties in getting married
and lead a stable life; they will be perceived as continued threat to safety by the victims as well as by the society at
large. Giving long terms of imprisonment may seem to be “just” in view of the public outcry for blood of the offender
or the serious injuries caused to the victims, but it is only a short term justice. In the long run, long period of
incarceration to young persons, provides neither safety to the individual victim or society at large, nor does it result
in reduction in crime rate.52
Victims are important to be cared for but harsh punishment to juvenile offenders or their transfer to adult system is
not the answer. Efficient rehabilitation programmes for the victims of such offences by providing them with
psychological and pecuniary support will result in better results and justice in the short as well as in the long run.
Despite these elaborate provisions regarding orders that may or may not be passed in relation to children found to
have committee an offence, the JJ Act, 2015 has left the choice of order to be passed in relation to a child who
attains the age of 21 years before the final disposal of their case for any reason. For example, section 6 conceives
of a situation where a person is apprehended after attaining the age of 18 years for commission of an offence
before attaining the age of 18 years. The child apprehended may even after the age of 21 years or the person may
attain the age of 21 years during the pendency of proceedings. In either scenario, such person may not be sent to
either special home under section 18 or place of safety under section 19 irrespective of the offence committed by
them. Suppose, a person was apprehended at the age of 21 years and four months for the offence of murder
committed by her/him at the age of 17 years and half months. If tried as an adult by the Children’s Court after
preliminary assessment, she / he will have to be sentenced to life imprisonment and sent directly to jail as place of
safety is meant to keep persons till the age of 21 years only. No order other than sending them to a place of safety
till they attain the age of 21 years has been provided for when children are tried as an adult. This person misses the
chance of reformation and release at the age of 21 years and may end up with a life imprisonment compared to a
co-accused apprehended before attaining the age of 18 years who will be kept in the place of safety and may be
released on attaining the age of 21 years in terms of section 20(2)(i) of the JJ Act, 2015. There is no obligation on
any accused person to surrender before the police and they must not be discriminated against when they do not
surrender. This may be specially harsh when they may not be responsible for delay in their production before the
Board.
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45 Section 25 of the Commissions for Protection of Child Right Act, 2005.

46 Section 19. Powers of Children’s Court- (1) After the receipt of preliminary assessment from the Board under section
15, the Children´s Court may decide that—
(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 and
pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special
needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;
(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate
orders in accordance with the provisions of section 18
(2) The Children’s Court shall ensure that the final order, with regard to a child in conflict with law, shall include an
individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child
Protection Unit or a social worker.
(3) The Children’s Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till
he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:
Provided that the reformative services including educational services, skill development, alternative therapy
such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child
during the period of his stay in the place of safety.
(4) The Children’s Court shall ensure that there is a periodic follow up report every year by the probation officer or the
District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of
safety and to ensure that there is no ill-treatment to the child in any form.
(5) The reports under sub-section (4) shall be forwarded to the Children´s Court for record and follow up, as may be
required.
47 Section 21 reads, “No child in conflict with law shall be sentenced to death or for life imprisonment without the
possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian
Penal Code or any other law for the time being in force.”
48 Article 37(a) of the CRC reads, “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel,
inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of
release shall be imposed for offences committed by persons below 18 years of age”.
49 Section 19 (4) of the JJ Act, 2015.
50 Section 20 reads, “(1) When the child in conflict with the law attains the age of twenty-one years and is yet to complete
the term of stay, the Children´s Court shall provide for a follow up by the probation officer or the District Child Protection
Unit or a social worker or by itself, as required, to evaluate if such child has undergone reformative changes and if the
child can be a contributing member of the society and for this purpose the progress records of the child under sub-
section (4) of section 19, along with evaluation of relevant experts are to be taken into consideration.
(2) After the completion of the procedure specified under sub-section (1), the Children’s Court may—
(i) decide to release the child on such conditions as it deems fit which includes appointment of a monitoring authority
for the remainder of the prescribed term of stay;
(ii) decide that the child shall complete the remainder of his term in a jail: Provided that each State Government shall
maintain a list of monitoring authorities and monitoring procedures as may be prescribed.
51 Section 20, JJ Act, 2015.
52 For detailed facts and arguments against transfer of children to ordinary criminal courts, see, Ved Kumari, “Juvenile
Justice System in India in Theory and Practice” to be published in Juvenile Justice in Global Perspective edited by
Frank Zimring, Maximo Langer and David Tanenhaus (New York University Press 2015).
End of Document
3.11 CONCLUDING OBSERVATIONS
Ved Kumari

It is sad that the government of India chose to follow the path of exclusion of children from juvenile justice practiced
in many countries with the proven record of increase in reoffending by children sent to adult system compared to
those who were dealt within the juvenile justice system instead of introducing restorative justice which has the track
record of reducing crime. The independent Task Force on Community Preventive Services set up by the US Centre
for Disease Control examined nine studies on the specific and general deterrence effect of transfer laws and
concluded that “transfer policies have generally resulted in increased arrest for subsequent crimes, including violent
crime, among juveniles who were transferred compared with those retained in the juvenile justice system. To the
extent that transfer policies are implemented to reduce violent or other criminal behavior, available evidence
indicates that they do more harm than good.”53 “Studies have found that young people transferred to the adult
criminal justice system have approximately 34% more re-arrests for felony crimes than youth retained in the youth
justice system.”54 “Around 80% of youth released from adult prisons reoffend often going on to commit more serious
crimes.”55 New York is running the “raise the age campaign” as it is “one of only two states in the country that have
failed to recognise what research and science have confirmed – adolescents are children, and prosecuting and
placing them in the adult criminal justice system doesn’t work for them and doesn’t work for public safety.56
Conversely, restorative justice reports vast difference between recidivism rates of those who were processed by the
criminal justice system and others by restorative justice. The study of integration of restorative justice in Chicago
juvenile justice system showed that first time offenders who were dealt with under the criminal justice system
showed the recidivism rate of 30 – 40% within six months. On the other hand, only one out of 50 who went through
restorative justice reoffended within the same period of six months.57 Another study from New Mexico also showed
that juveniles who participated in restorative justice were 20% less likely to reoffend.58
Restorative justice differs from criminal justice conceptually.59 Restorative justice focuses on the harm resulting
from the offence while criminal justice focuses only on the offence. In criminal justice the State has the responsibility
of punishing the offender while in restorative justice the focus is on the offender correcting the harm done to the
victim. Victim has a prime role in restorative justice while they take the back seat in criminal justice. There is no
involvement of the community which is affected by the crime but is not the direct victim in criminal justice but
restorative justice provides ample opportunity to be involved in finding the way forward. Criminal justice focuses on
the past, while restorative justice looks at the past, present, and future.
The provision for exclusion of children to be tried as adults have come due to the perception that harsher
punishment to the offender fulfills the demand of the victim for justice. The truth of the matter is that victims only get
some satisfaction when the offender is sent to the prison but the life of the convict or the victim does not come to an
end at that point. When such offender is released from the prison, the victims fear reprisal. They do not feel safe if
they are to come face to face with the offender after their release. They also have no mechanism to know if the
offender has any remorse or has reformed after their time in the prison.
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A very effective measure to look after the victim that is being increasingly adopted in many countries – specially for
juveniles, is “Restorative Justice”. Restorative justice needs to be distinguished from restitution and reformative
justice. “Restitution” refers to restitution of bodily harm or pecuniary loss / damage suffered by the victim by
restoring the physical health or property through pecuniary compensation by the offender or the State. “Reformative
justice” focuses only on the reformation of the offender. “Restorative justice” focuses on the rehabilitation of both
the victim and offender. When a crime is committed, it not only causes bodily harm or pecuniary loss but also
destroys the relationship of anonymity or trust between the offender and the victim. Restorative justice is aimed at
restoring the broken relationship between the two. A sincere apology from the offender which the victim accepts is a
more effective way to resolve the conflict between the two. Most offenders find facing the victim as a more daunting
task than going to an institution. NGOs may be roped in the work as mediators to prepare the offender and the
victim to meet each other face to face wherein the offender offers a sincere apology and works towards restoring
the harm to the victim as well as provides some community service for them to understand the consequences of
their offence.
Restorative justice approach may very easily be integrated in the orders of group counselling and community
service included in section 18 of the JJ Act, 2015. Presently, there is little or no understanding about what may be
done while passing these orders. My informal conversations with judicial officers working in the JJB in Delhi and
Guwahati revealed that they ask a group of juveniles together to be counselled as the “group counselling” order. In
the Community Service order, the JJB usually sent the child to a Hospital, Temple, or Mosque to sweep the
premises or help the staff in that place. However, using the restorative justice approach, the JJB may direct group
counselling of the child with all those who have either been responsible for the child to have committed the offence,
or with all those who have been affected by the offence. These may include the family members, friends, relatives
or neighbours of the child. With the support of the Counsellors and Mediators, these meetings may include even the
victim, victims’ families, their neighbourhood, friends, and relatives who have been directly affected by the offence
by the child. It must be noted, however, that the victim should never by ordered to attend such meetings. They may
be informed of the choice and if they are willing, only then they should be asked to attend. Meetings between the
child in conflict with law and victims should be encouraged only if the child in conflict with law is ready to accept the
wrong done, willing to make an apology to the victim and is ready to make amends to the satisfaction of the victim.
The victims cannot be forced to pardon the child in conflict with law and it is the prerogative of the victim to do so or
not to do so.
The order of community service included in the JJ Act, 2015 is not meant for punishing the child in conflict with law
but a measure to make the child realise the wrong done and wanting them to right the wrong, if possible. Using the
restorative justice approach, children committing offences and their victims may be rehabilitated in a much better
way using the community service order under the Act. For example, consider the case of two boys, 17 years old
who pushed an old lady, who fell down and broke her leg. Unmindful of her fall, they robbed her of some money
and ran away. When apprehended they confessed that they were motivated by the desire to see the football match
and they had taken the money to purchase the tickets. They were repentant and were ready to do whatever was
required to repair the harm caused by them. They were asked to meet the victim as they were ready to apologise to
her and make amends. When they met her, they learnt that as the consequence of their pushing, she had broken
her leg and was thinking of moving to an old persons’ home feeling afraid to live alone any more. The community
service programme worked out for the boys was that for the next two months they will look after all the shopping
needs of the old woman and they will spend their weekends at the old person’s home helping the staff there. After
two months at the hearing before the court, the old woman came and sat next to the boys. During this period, the
boys had realised that the harm caused by them was much bigger than the loss of money. The old woman had also
realised that the boys were really sorry and wanted to make amends. Evolving the community service programmes
keeping in view the special circumstances of the offence and the harm caused bring a greater sense of justice to
the victim as well as the child in conflict with law is essential as it gives an opportunity to both the parties to learn
about each other and feel safe. There is an urgent and dire need to introduce this approach in juvenile justice at the
earliest.
The recent case of the child driving the Mercedes and causing death of a pedestrian by his rash driving has led to
further questioning of the appropriateness of dealing with such children under the juvenile justice system.60 He was
just four days short of completing the age of 18 years. He had been fined for traffic offences on earlier occasions
also. In the normal course he would have been charged under section 304A of the Indian Penal Code and dealt
with by the Board under the provisions of the JJ Act, 2015. Section 304A provides for maximum imprisonment of
two years in case of causing death by rash and negligent act and is to be classified as a petty offence under the JJ
Act, 2015. A child between the age of 16–18 years committing a petty or serious offence can neither be subjected
Page 3 of 3
to preliminary assessment, nor considered for transfer to children’s court. However, this boy was later charged with
section 304 of the Indian Penal Code and transferred to the children’s court after a preliminary assessment. Section
304 prescribes the punishment of imprisonment up to 10 years or life imprisonment for the offence of culpable
homicide not amounting to murder. This offence does not fulfill the requirement contained in the definition of
heinous offence which requires that the offence must be punishable with minimum imprisonment of seven years. As
section 304 does not prescribe mandatory minimum punishment of seven years, the child alleged to be in conflict
with law in this case could not have been subjected to preliminary assessment or transferred to the children’s court.
However, the pressure generated by the victim’s family and media coverage of this case seems to have played a
part in influencing the judge’s opinion about the category of offence committed by the child. The demand for severe
punishments to children is still dominating the public and government discourse despite the sound and scientific
findings relating to offending by adolescents and the deleterious effects of treating children as adults.
53 Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice
System: A Report on Recommendations of the Task Force on Community Preventive Services, Centre for Disease
Control and Prevention, MMWR 2007, http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm
54 Raise the Age NY, “Get the facts” (2013): http://raisetheageny.com/get-the-facts; Effects on Violence of Laws and
Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: Report on Recommendations
of the Task Force on Community Preventive Services, Centers for Disease Control and Prevention, 30 November 2007,
available at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm, last visited on 11 September 2016.
55 National Campaign to Reform State Juvenile Justice Systems. The Fourth Wave: Juvenile Justice Reforms for the
Twenty-First Century; p 20 available at http://www.modelsforchange.net/publications/530, last visited on 11 September
2016.
56 See, http://raisetheageny.com/get-the-facts, last visited on 11 September 2016.
57 Judy C. Tsai, Breaking Free of the Prison Paradigm: Integrating Restorative Techniques into Chicago’s Juvenile Justice
System available at http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7486&context=jclc, last
visited on 11 September 2016.
58 N. Rodriguez, Restorative Justice at Work: Examining the Impact of Restorative Justice Resolutions on Juvenile
Recidivism in 53 Crime & Delinquency, 355 (2007).
59 For more details see, Victim Offender Reconciliation Programme, available at http://www.vorp.com/, last visited on 11
September 2016.
60 See, Ved Kumari, ‘Punishment’ beyond prison: It is time to explore restorative justice for crime published
inhttp://www.firstpost.com/india/punishment-beyond-prison-it-is-time-to-explore-restorative-justice-for-crime-
2752930.html, last visited on 11 September 2016.
End of Document
4.1 INTRODUCTION
Ved Kumari
for Children in Need of Care and Protection
4 Caring for Children in Need of Care and Protection
4.1 INTRODUCTION
The term “children in need of care and protection” was introduced in the Juvenile Justice Act 2000 (hereinafter
referred as JJ Act, 2000) in place of “neglected children” used in the legislations hitherto. However, some of
categories of children included within the definition of children in need of care and protection under the Juvenile
Justice (Care and Protection of Children) Act, 2015 (hereinafter referred as JJ Act, 2015) have been the subject of
the protective laws since 1850. The Apprentices Act 1850 provided that vagrant children and children below the age
of 15 years committing offences may be bound over as apprentices. Many more categories of neglected children
along with children committing offences were brought within the purview of the Children Acts passed since 1920. In
1953–54 when the Indian Parliament was discussing the first Children Bill, many questions were raised about the
need for keeping both the categories of children within the purview of the same Act and the nomenclature to be
used to refer to different categories of children in the Act.1 This Bill did not see the light of the day due to
reorganisation of States. The Children Act 1960, the first legislation by Parliament relating to neglected and
delinquent children contained a provision for a third category of children also, namely, uncontrollable children. While
delinquent and neglected children were brought to the State system by the police, the Children Act 1960 permitted
parents of uncontrollable children to bring their wards before the child welfare board. Most of the times, this
provision was used by poor parents to secure some education and training for their children which they themselves
could not provide.
While all the Children Acts passed since 1920 applied to neglected children, the actual definitions varied in detail in
these legislations. The JJA 1986 introduced a uniform definition but substituted the phrase neglected children with
neglected juveniles. The JJ Act, 2000 substituted the phrase neglected juveniles by “children in need of care and
protection” though the actual categories of children included were not much different. The JJ Act, 2015 continues to
use the same phrase while introducing some minor changes in the actual definition of CNCP compared to the
definition in the JJ Act, 2000.2
The term “neglected children” had a negative connotation to it referring to the state of neglect in which children were
living and growing. The purpose of the law is not to emphasise that state of being but to shift the focus on the
actions that need to be taken by the State to bring them out of that state. Use of the term “Children in Need of Care
and Protection” shifts the focus from their state of being to their needs and rights. This change in the nomenclature
is also in accordance with the principle of use of non-stigmatising semantics.
Deeper analysis of the definition of children in need of care and protection shows that it covers children who are
living in circumstances or facing situations which violate their basic rights as recognized in the Convention on the
Rights of the Child. In the field of juvenile justice, the Convention on the Rights of the Child epitomized the shift from
welfare to rights. The CRC embodies the three basic principles of non-discrimination,3 best interest of children,4 and
respect, protection and fulfillment of all the rights of the child.5 By signing and ratifying the CRC, all State Parties,
and that includes India, have bound themselves to take every step to ensure the entire gamut of rights of children
Page 2 of 4
4.1 INTRODUCTION
recognised under the CRC. These rights may be classified in four categories, namely, rights to name, nationality
and family care; rights to survival and development; rights of participation; and rights against violence and
exploitation.
(1) Rights to name, nationality, and family care
The CRC recognises that all children have the right to registration of their birth, right to a name since birth,
acquisition of nationality and right to know and to be cared by their parents.6 They also have the right to
preservation of such identity as well as reacquisition of the identity if it is lost for some reasons.7 Children belonging
to ethnic, religious or linguistic minorities or persons of indigenous origin have right to enjoy his or her own culture,
to profess and practice his or her own religion, or to use his or her own language.8 The States are obligated to
respect that the primary responsibility of taking care of children is that of their family including extended family. Both
the parents have the common responsibility of bringing up their children and the States will support the families to
provide appropriate guidance to children.9 Children must not be separated from their parents except when such
separation is in the best interest of children.10 The States also have the duty to facilitate contact and reunification
between parents and children if they are living in different countries or have been separated11 as also to prevent
illegal transfer or non-return of children by their parents.12 Children also have the right against arbitrary or unlawful
interference with their privacy, family, home or correspondence, honour and reputation.13 Children who cannot be
looked after by their own family have a right to special care and must be looked after properly, by people who
respect their ethnic group, religion, culture and language.14 Children have the right to care and protection in their
adoptive families or other families, which take them in foster care. The first concern must be what is best for them.
The same rules should apply whether they are adopted in the country where they were born, or if they are taken to
live in another country.15 Children have the right to special protection and help as well as all the rights in this
Convention if they are refugees or if they have been forced to leave their home and live in another country).16
(2) Rights to survival and development
Every child has the inherent right to life and the States are duty bound to ensure to the maximum extent possible
the survival and development of the child.17 This group of rights includes the right of children with disabilities to
special care.18 Children also have the right to health and health services.19 States are under an obligation to provide
social security to children if they are poor or in need either through their guardians or directly.20 Children have the
right to a standard of living that is good enough to meet their physical and mental needs. States should help families
and guardians who cannot afford to provide this, particularly with regard to food, clothing and housing.21 The CRC
also recognizes that children also have the right to education,22 leisure, play and culture.23
(3) Right to participation
The CRC obligates the States to respect the views of the child who is capable of forming their views and their views
will be given due weightage in all decisions affecting them. They have the right to be heard either directly or through
a representative in all judicial and administrative proceedings affecting them.24 Children also have the right to
freedom of expression and it includes “freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s
choice.”25 States are duty bound to respect the right of the child to freedom of thought, conscience and religion.26
Commensurate with it are the rights of children to freedom of association27 and access to information and mass
media.28
(4) Rights against Violence and Exploitation
The CRC recognises that children have the right to be protected from being taken advantage of or against harm to
their welfare and development.29 They have the right to protection against work that is dangerous or harmful to their
health or education or the right to relaxation and play.30 The States are obligated to take all measures possible to
protect children from harmful drugs and drug trade.31 Right of the child to be protected against sexual abuse has
been specifically recognised by the CRC32 and has now been supplemented with the Optional Protocol on the sale
of children, child prostitution and child pornography. The CRC has specifically bound the States to take all
measures against abduction, sale and trafficking of children,33 which has now been further strengthened by the
Optional Protocol on the sale of children, child prostitution and child pornography. All child victims have the right to
special help to physically and psychologically recover and reintegrate into society.34 The CRC further directs that all
States must do everything they can to protect and care for children affected by war. Children under 15 years of age
Page 3 of 4
4.1 INTRODUCTION
should not be forced or recruited to take part in a war or join the armed forces.35 The Convention’s Optional
Protocol on the Involvement of Children in Armed Conflict further develops this right, raising the age for direct
participation in armed conflict to 18 years and establishing a ban on compulsory recruitment of children below the
age of 18 years.
The scheme of the JJ Act, 2015 in relation to children in need of care and protection needs to be analysed and
implemented keeping in view the above mentioned rights of children as the JJ Act, 2015 has been enacted to
implement India’s obligation under the CRC and other international instruments relating to children.
Until the Children Act 1960 was passed, both categories of children – delinquent and neglected, were dealt with by
the children’s court established under various Children Acts passed by States. The Children Bill 1959 was
considered by the Select Committee of Parliament. As per the suggestion made before it by the School of Social
Work, it recommended establishment of two separate adjudicatory bodies to deal with delinquent and neglected
children separately, namely, the Children’s Court to deal with delinquent children and the Child Welfare Board to
deal with neglected children. Consequent to the passing of the Children Act 1960 as a model to be followed by
other States, two separate adjudicatory bodies to deal with delinquent and neglected children separately came to
be adopted as a norm followed by all the States, which passed their Children Acts after 1960. This system was
consolidated by the Juvenile Justice Act 1986 and carried into the JJ Act, 2000. Similar provision has been made in
the JJ Act, 2015 also providing for establishment of Child Welfare Committee for dealing with children in need of
care and protection.
1 For more details, see, Ved Kumari, juvenile justice system in India from welfare to rights, chapter 3 (2nd Edn 2010)
Oxford University Press.
2 See, Chapter 2 for detailed discussion on the definition of children in need of care and protection.
3 Article 2, CRC.
4 Article 3, CRC.
5 Article 4, CRC.
6 Article 7, CRC
7 Article 8, CRC
8 Article 30, CRC.
9 Articles. 5 and 18, CRC.
10 Article 9, CRC.
11 Article 10, CRC.
12 Article 11, CRC.
13 Article 16, CRC.
14 Article 20, CRC.
15 Article 21, CRC.
16 Article 22, CRC.
17 Article 6, CRC.
18 Article 23. CRC.
19 Article 24, CRC.
20 Article 26, CRC.
21 Article 27, CRC.
22 Article 28, CRC.
23 Article 31, CRC.
24 Article 12, CRC.
Page 4 of 4
4.1 INTRODUCTION
25 Article 13, CRC.

26 Article 14, CRC.
27 Article 15, CRC.
28 Article 17, CRC.
29 Article 36, CRC.
30 Article 32, CRC.
31 Article 33, CRC.
32 Article 34, CRC.
33 Article 35, CRC.
34 Article 39, CRC.
35 Article 38, CRC.
End of Document
4.2 CONSTITUTION OF THE CHILD WELFARE COMMITTEE
Ved Kumari

The JJ Act, 2015 obligates the State to establish at least one child welfare committee in each district to deal with
children in need of care and protection.36 The State is also under an obligation to ensure induction training and
sensitisation of all members of the Committee within two months from the date of notification of the Committee.
Each Committee is required to have one Chairperson and four other members, one of whom must be a woman and
one other should be an expert on matters concerning children. The District Child Protection Unit has an important
role to play in assisting the Committee in its functioning, as it is required to provide a Secretary and other essential
staff for its effective functioning. Persons who may be appointed as members of the Committee must have been
involved in health, education or welfare activities pertaining to children for at least seven years or may be a
practicing professional with a degree in child psychology or psychiatry or law or social work or sociology or human
development.
It is incomprehensible why lawyers have been found suitable to be members of the Committee unless they are
charged with the responsibility specifically to ensure that rights of the child are not violated during the proceedings
before the Committee. It is more surprising as none of the Committees functioning so far under the previous
legislations have ever secured even the right of the child to free legal counsel. In the absence of any specified role
the lawyer member, if appointed to the Committee, may overshadow the other members and introduce legalese in
the proceedings thereby undermining the need for child friendly atmosphere in the Committee geared to secure the
best interest of children. This has been widely reported to be the experience of the social worker members of the
Board that they are overshadowed by the Principal Magistrate.
The Committee has to function as a bench of magistrate and has the powers conferred on the Metropolitan
Magistrate or Judicial Magistrate of First Class, as the case may be. Members of the Committee are to be
appointed for a period of three years. The functioning of the Committee is to be supervised by the District
Magistrate and anyone who is connected with a child and has a grievance may petition the District Magistrate who
will pass appropriate orders and directions.
The appointment of a member may be terminated by the State Government after inquiry if they are found guilty of
misuse of power vested in them under the Act; or if they are convicted for an offence involving moral turpitude; or if
they fail to attend meetings for continuous three months or fail to attend less than three fourth of the sittings in a
year without any valid reason.
As per the provisions of section 23, all the districts by now should have had a child welfare committee and all the
members should have been given the prescribed training as the Act was notified and came into force on 15 January
2016. However, the order of the Rajasthan High Court seeking details from the State against the non-establishment
of the committees and infrastructure point to failure of State in fulfilling its obligation under the Act.37
Page 2 of 2
36 Section 27 reads, “Child Welfare Committee- (1) The State Government shall by notification in the Official Gazette
constitute for every district, one or more Child Welfare Committees for exercising the powers and to discharge the
duties conferred on such Committees in relation to children in need of care and protection under this Act and ensure
that induction training and sensitisation of all members of the committee is provided within two months from the date of
notification.
(2) The Committee shall consist of a Chairperson, and four other members as the State Government may think fit to
appoint, of whom at least one shall be a woman and another, an expert on the matters concerning children.
(3) The District Child Protection Unit shall provide a Secretary and other staff that may be required for secretarial
support to the Committee for its effective functioning.
(4) No person shall be appointed as a member of the Committee unless such person has been actively involved in
health, education or welfare activities pertaining to children for at least seven years or is a practicing professional
with a degree in child psychology or psychiatry or law or social work or sociology or human development.
(5) No person shall be appointed as a member unless he possesses such other qualifications as may be prescribed.
(6) No person shall be appointed for a period of more than three years as a member of the Committee.
(7) The appointment of any member of the Committee shall be terminated by the State
Government after making an inquiry, if—
(i) he has been found guilty of misuse of power vested on him under this Act;
(ii) he has been convicted of an offence involving moral turpitude and such conviction has not been reversed or
he has not been granted full pardon in respect of such offence;
(iii) he fails to attend the proceedings of the Committee consecutively for three months without any valid reason or
he fails to attend less than three-fourths of the sittings in a year.
(8) The District Magistrate shall conduct a quarterly review of the functioning of the Committee.
(9) The Committee shall function as a Bench and shall have the powers conferred by the Code of Criminal Procedure,
1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class.
(10) The District Magistrate shall be the grievances redressal authority for the Child Welfare Committee and anyone
connected with the child, may file a petition before the District Magistrate, who shall consider and pass appropriate
orders.
37 See the report in Times of India, HC seeks compliance report on Juvenile Act dated 20 May 2016, available at
http://timesofindia.indiatimes.com/city/jaipur/HC-seeks-compliance-report-on-Juvenile-Act/articleshow/52353513.cms,
last visited on 21 May 2016.
End of Document
4.3 POWERS, FUNCTIONS, AND RESPONSIBILITIES OF THE COMMITTEE
Ved Kumari

Powers of the Committee are spelt out in section 2938 of the JJ Act, 2015. This Section read with section 1(4) of the
Act leaves no doubt that notwithstanding anything contained in any other law for the time being in force; the
Committee has the exclusive power to dispose of all matters concerning children in need of care and protection.
Such orders have to ensure care, protection, treatment, development and rehabilitation of children as well as
provide for their basic needs and protection.
Section 30 spells out the functions and responsibilities of the Committee in the following terms:
Section 30: Functions and responsibilities of Committee- The functions and responsibilities of the Committee shall
include—
(i) taking cognisance of and receiving the children produced before it;
(ii) conducting inquiry on all issues relating to and affecting the safety and well- being of the children under this Act;
(iii) directing the Child Welfare Officers or probation officers or District Child Protection Unit or non-governmental
organisations to conduct social investigation and submit a report before the Committee;
(iv) conducting inquiry for declaring fit persons for care of children in need of care and protection;
(v) directing placement of a child in foster care;
(vi) ensuring care, protection, appropriate rehabilitation or restoration of children in need of care and protection, based on
the child’s individual care plan and passing necessary directions to parents or guardians or fit persons or children’s homes
or fit facility in this regard;
(vii) selecting registered institution for placement of each child requiring institutional support, based on the child’s age,
gender, disability and needs and keeping in mind the available capacity of the institution;
(viii) conducting at least two inspection visits per month of residential facilities for children in need of care and protection
and recommending action for improvement in quality of services to the District Child Protection Unit and the State
Government;
(ix) certifying the execution of the surrender deed by the parents and ensuring that they are given time to reconsider their
decision as well as making all efforts to keep the family together;
Page 2 of 2
(x) ensuring that all efforts are made for restoration of abandoned or lost children to their families following due process, as
may be prescribed;
(xi) declaration of orphan, abandoned and surrendered child as legally free for adoption after due inquiry;
(xii) taking suo motu cognizance of cases and reaching out to children in need of care and protection, who are not produced
before the Committee, provided that such decision is taken by at least three members;
(xiii) taking action for rehabilitation of sexually abused children who are reported as children in need of care and protection
to the Committee by Special Juvenile Police Unit or local police, as the case may be, under the Protection of Children from
Sexual Offences Act, 2012;
(xii) dealing with cases referred by the Board under sub-section (2) of section 17;
(xv) co-ordinate with the police, labour department and other agencies involved in the care and protection of children with
support of the District Child Protection Unit or the State Government;
(xvi) in case of a complaint of abuse of a child in any child care institution, the Committee shall conduct an inquiry and give
directions to the police or the District Child Protection Unit or labour department or childline services, as the case may be;
(xvii) accessing appropriate legal services for children;
(xviii) such other functions and responsibilities, as may be prescribed.[KA(4]
A perusal of this Section shows that the Committee has a wide range of responsibilities. In addition to these
responsibilities, it has the power to also declare a person fit for foster care and pass appropriate orders for after
care39 in terms of section 46 of the JJ Act, 2015. Its powers, functions and responsibilities are not limited to
disposing of the matters relating to children in need of care and protection but extend to ensuring that children are
not subjected to any harm or violence at any stage either during proceedings or during their stay in the child care
institutions. At least three members of the Committee may take suo motu cognizance of any child in need of care
and protection.
The Committee has the responsibility to choose an appropriate child care institution keeping in view the child’s age,
gender, disability, and needs keeping in mind the available capacity of the institution. It also is obligated to
undertake periodical inspections of the child care institutions and take necessary measure if it comes to know of
any violations or a complaint of violence and abuse of a child. It is also charged with a range of responsibilities
relating to abandoned, surrendered and orphaned children for declaring them fit for adoption.
38 Section 29 reads, “Powers of Committee- (1) The Committee shall have the authority to dispose of cases for the care,
protection, treatment, development and rehabilitation of children in need of care and protection, as well as to provide for
their basic needs and protection.
(2) Where a Committee has been constituted for any area, such Committee shall, notwithstanding anything contained
in any other law for the time being in force, but save as otherwise expressly provided in this Act, have the power to
deal exclusively with all proceedings under this Act relating to children in need of care and protection.”
39 Section 37(2), JJ Act, 2015.
End of Document
4.4 PROCEDURE OF THE COMMITTEE RELATING TO CHILDREN IN NEED
OF CARE AND PROTECTION
Ved Kumari
4.4 PROCEDURE OF THE COMMITTEE RELATING TO CHILDREN IN NEED

OF CARE AND PROTECTION
Section 2840 of the JJ Act, 2015 prescribes that a Committee must meet at least 20 days in a month, which include
the days on which the Committee members visit the Child Care Institutions to check their functioning and wellbeing
of children. A child can be produced before a single member of the Committee when the Committee is not sitting.
The Committee may also function in the absence of any member and orders of the Committee are valid despite the
absence of any member. For the final decision in a case, at least three members must be present. The decisions
are to be taken by majority but when there is no such majority, the opinion of the Chairperson shall be binding.
A number of specified persons can produce a child in need of care and protection before the Committee as per
section 3141 of the JJ Act, 2015. These include any police officer; inspector appointed under any labour law; any
public servant; Childline services; or any NGO; or any other recognised agency; child welfare officer; or probation
officer; or any nurse, doctor or management of a nursing home, hospital or maternity home. Children themselves
may also appear before the Committee. Moreover, virtually any person may take charge of a child in need of care
and protection and produce them before the Committee as this list includes “any social worker or a public spirited
citizen” within its ambit. In fact, section 3242 makes it mandatory to report a child who has been separated from its
parent or guardian and to upload this information on the web portal meant for this purpose. Section 3343 makes
non-reporting of such a child within the time specified as an offence and section 3444 prescribes the punishment of
imprisonment up to six months or fine of Rs 10,000 or both for this offence.
Even though a child in need of care and protection is not arrested or apprehended but is taken charge of, proviso to
section 31 imposes the obligation to produce the child before the “Committee without any loss of time but within a
period of twenty-four hours excluding the time necessary for the journey” on similar terms as has been provided by
the Constitution for person who are arrested.45
Sub-section (2) of section 3146 provides that children may be kept in a children’s home, or in fit facility or with a fit
person during the period of inquiry in the manner prescribed under the rules when the child is not kept with the
parent or guardian.
A wide range of powers, functions and responsibilities have been imposed on the Committee in relation to
abandoned, surrendered and orphaned children and they have been dealt with separately.47
40 Section 28 of the Act provides the procedure in relation to Committee and read, “(1) The Committee shall meet at least
twenty days in a month and shall observe such rules and procedures with regard to the transaction of business at its
meetings, as may be prescribed.
Page 2 of 2
4.4 PROCEDURE OF THE COMMITTEE RELATING TO CHILDREN IN NEED OF CARE AND PROTECTION
(2) A visit to an existing child care institution by the Committee, to check its functioning and wellbeing of children shall
be considered as a sitting of the Committee.
(3) A child in need of care and protection may be produced before an individual member of the Committee for being
placed in a Children’s Home or fit person when the Committee is not in session.
(4) In the event of any difference of opinion among the members of the Committee at the time of taking any decision,
the opinion of the majority shall prevail but where there is no such majority, the opinion of the Chairperson shall
prevail.
(5) Subject to the provisions of sub-section (1), the Committee may act, notwithstanding the absence of any member
of the Committee, and no order made by the Committee shall be invalid by reason only of the absence of any
member during any stage of the proceeding:
Provided that there shall be at least three members present at the time of final disposal of the case.”
41 Section 31 reads, “31. Production before Committee- (1) Any child in need of care and protection may be produced
before the Committee by any of the following persons, namely:—
(i) any police officer or special juvenile police unit or a designated Child Welfare Police Officer or any officer of
District Child Protection Unit or inspector appointed under any labour law for the time being in force;
(ii) any public servant;
(iii) Childline Services or any voluntary or non-governmental organisation or any agency as may be recognised by the
State Government;
(iv) Child Welfare Officer or probation officer;
(v) any social worker or a public spirited citizen;
(vi) by the child himself; or
(vii) any nurse, doctor or management of a nursing home, hospital or maternity home.
42 Section 32 reads, “Mandatory reporting regarding a child found separated from guardian- (1) Any individual or a police
officer or any functionary of any organisation or a nursing home or hospital or maternity home, who or which finds and
takes charge, or is handed over a child who appears or claims to be abandoned or lost, or a child who appears or
claims to be an orphan without family support, shall within twenty-four hours (excluding the time necessary for the
journey), give information to the Childline Services or the nearest police station or to a Child Welfare Committee or to
the District Child Protection Unit, or hand over the child to a child care institution registered under this Act, as the case
may be.
(2) The information regarding a child referred to in sub-section (1) shall be mandatorily uploaded on a portal as may
be specified by the Central Government or the Committee or the District Child Protection Unit or the child care
institution, as the case may be.
43 Section 33 reads, “Offence of non- reporting- If information regarding a child as required under section 32 is not given
within the period specified in the said section, then, such act shall be regarded as an offence.”
44 Section 34 reads, “Penalty for non- reporting- Any person who has committed an offence under section 33 shall be
liable to imprisonment up to six months or fine of ten thousand rupees or both.”
45 Article 22 (2) of the Constitution provides, “Every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey
from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said
period without the authority of a magistrate.”
46 Section 31(2) reads, “The State Government may make rules consistent with this Act, to provide for the manner of
submitting the report to the Committee and the manner of sending and entrusting the child to children’s home or fit
facility or fit person, as the case may be, during the period of the inquiry.”
47 See the second part of this chapter dealing with adoption.
End of Document
4.5 INQUIRY
Ved Kumari
4.5 INQUIRY
The Committee is required to conduct two inquiries, one for age determination and second for determining if the
child before it is indeed in need of care and protection. For age determination, it has to follow the same procedure
and rely on same evidence as provided in section 94 of the JJ Act, 2015.48
In terms of section 36,49 the Committee may initiate the inquiry in relation to the child either on their production
before them or on receipt of information about a child in need of care and protection. At that moment the Committee
is required to pass an order specifying the place where the child will stay during the period of inquiry and give
directions for preparation of social investigation report relating to the child. The JJ Act, 2015 makes it mandatory to
keep a child below the age of six years who is orphaned, or surrendered, or seems to be abandoned with the
Specialised Adoption Agency. Other children may be kept in the children’s home or with a fit person or fit facility.
While passing the placement order, the Committee should also pass an order directing the social worker, child
welfare officer or child welfare police officer to expeditiously submit the social investigation report. Inclusion of child
welfare police officer in this clause is unfortunate as the task of social investigation report is very different from
conducting an investigation in the commission of an offence. The Committee must avoid using the child welfare
police officer for this purpose and should insist on provision of social worker or a child welfare officer from the
District Child Protection Unit. The social investigation report is required to be completed within a period of 15 days.
The Committee is required to dispose of the inquiry within four months from the date of first production of the child.
Different time lines have been provided in case of orphan, abandoned and surrendered children in section 38.
The Committee is required to submit quarterly report about the nature of disposal and cases pending before it to the
District Magistrate who is obligated to give directions about the remedial measures to be taken by the Committee to
address the pendency. After review, the District Magistrate may recommend to the State Government to constitute
additional committees. However, if the Committee fails to follow the directions as issued by the District Magistrate
and the pendency remains unaddressed, the State Government may terminate the Committee and constitute a new
Committee. In order to meet such contingencies, the State Government is required to keep a panel of members
who may be quickly appointed to substitute the existing Committee. In case of any delays in constitution of a new
Committee, the JJ Act, 2015 provides that the Committee of the neighbouring district will be assuming the
responsibilities in the intervening period.
Section 38 assumes that the State Government will be able to attract a sizeable number of persons to be on the
panel and be available to take over the responsibility as and when the occasion arises. However, the report from
the ground is that it is immensely difficult to find suitable candidates for nominating as members of the Committee. It
is also reported that many appointments are made due to political pressures and affiliations rather than the work of
the incumbents with the children. It also assumes that the adjoining district will have a functional Committee
capable of assuming the responsibility of children of another district.
Page 2 of 2
4.5 INQUIRY
48 For more details, see, chapter 5.

49 Section 36 reads, “Inquiry- (1) On production of a child or receipt of a report under section 31, the Committee shall hold
an inquiry in such manner as may be prescribed and the Committee, on its own or on the report from any person or
agency as specified in sub-section (2) of section 31, may pass an order to send the child to the children’s home or a fit
facility or fit person, and for speedy social investigation by a social worker or Child Welfare Officer or Child Welfare
Police Officer:
Provided that all children below six years of age, who are orphan, surrendered or appear to be abandoned shall be
placed in a Specialised Adoption Agency, where available.
(2) The social investigation shall be completed within fifteen days so as to enable the Committee to pass final order
within four months of first production of the child:
Provided that for orphan, abandoned or surrendered children, the time for completion of inquiry shall be as
specified in section 38.
(3) After the completion of the inquiry, if Committee is of the opinion that the said child has no family or ostensible
support or is in continued need of care and protection, it may send the child to a Specialised Adoption Agency if
the child is below six years of age, children’s home or to a fit facility or person or foster family, till suitable means of
rehabilitation are found for the child, as may be prescribed, or till the child attains the age of eighteen years:
Provided that the situation of the child placed in a children’s home or with a fit facility or person or a foster
family, shall be reviewed by the Committee, as may be prescribed.
(4) The Committee shall submit a quarterly report on the nature of disposal of cases and pendency of cases to the
District Magistrate in the manner as may be prescribed, for review of pendency of cases.
(5) After review under sub-section (4), the District Magistrate shall direct the Committee to take necessary remedial
measures to address the pendency, if necessary and send a report of such reviews to the State Government, who
may cause the constitution of additional Committees, if required:
Provided that if the pendency of cases continues to be unaddressed by the Committee even after three
months of receiving such directions, the State Government shall terminate the said Committee and shall
constitute a new Committee.
(6) In anticipation of termination of the Committee and in order that no time is lost in constituting a new Committee,
the State Government shall maintain a standing panel of eligible persons to be appointed as members of the
Committee.
(7) In case of any delay in the constitution of a new Committee under sub-section (5), the Child Welfare Committee of
a nearby district shall assume responsibility in the intervening period.
End of Document
4.6 ORDERS
Ved Kumari
4.6 ORDERS
The Committee has the obligation to pass interim and final orders in relation to children produced before it. During
the pendency of inquiry, if the Committee finds that the child has no family or ostensible support and is in continued
need of care and protection, it may choose any of the following interim orders:
(1) If the child is below the age of six years, it may send the child to Specialized Adoption Agency;
(2) In other cases, it may direct the child to be kept in the children’s home, or a fit facility, or a fit person, or a
foster family till suitable means for permanent rehabilitation of the child are found or till the child attains the
age of 18 years.
It is apparent from these provisions, that the preferred mode of care of children below the age of six years is
adoption. However, in case of other children also, the Act clearly provides that their placement order should be
reviewed continuously to find if any other alternative community care has become available for keeping the child in
view of the fundamental principle of use of institutions as a measure of last resort and for the minimum period
necessary till community care is found.
Section 3750 provides the list of final orders that the Committee may pass while disposing of the case of a child in
need of care and protection. This section requires the Committee to choose the final order based on social
investigation report and the wishes of the child where the child is capable of having a view. Even though the section
uses the term “may” in relation to considering the social investigation report, it should be understood as an essential
requirement because the basic tenet of decision making under the juvenile justice is individualisation of orders. It
means that the choice of order is not linked with the past action of the child but with the future prospects and
circumstances of their living and growth. Such information forms essential component of the social investigation
report and only by taking note of these aspects the Committee may pass the most suitable order in relation to each
child. In case it records that the child indeed is a child in need of care and protection, it may pass any one or more
of the following orders:
(1) Restore the child to parents or guardian or family with or without supervision of the child welfare officer or
designated social worker;
(2) Place the child in children’s home or fit facility or Specialised Adoption Agency for the purpose of adoption;
(3) Place the child with a fit person for short term or long term care
(4) Order provision of sponsorship for the child;
(5) Give specific directions relating to immediate shelter and services like medical attention, psychiatric and
psychological support including need-based counselling, occupational therapy or behaviour modification
therapy, skill training, legal aid, educational services and other developmental activities in co-ordination
with District Child Protection Unit or State Government or other agencies;
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4.6 ORDERS
(6) Declare the child legally free for adoption
It is noteworthy that section 37 while specifying eight different orders, provides that the Committee may pass any
one or more of these orders. The Committee is free to create a mix from these orders to suit the best interest and
rights of the child promoting their right to survival and development. The Committee may decide to close the
proceedings if it finds that the child is not a child in need of care and protection.
50 Section 37 reads, “Orders passed regarding a child in need of care and protection- (1) The Committee on being
satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on
consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s
wishes in case the child is sufficiently mature to take a view, pass one or more of the following orders, namely:—
(a) declaration that a child is in need of care and protection;
(b) restoration of the child to parents or guardian or family with or without supervision of Child Welfare Officer or
designated social worker;
(c) placement of the child in Children’s Home or fit facility or Specialised Adoption Agency for the purpose of adoption
for long term or temporary care, keeping in mind the capacity of the institution for housing such children, either
after reaching the conclusion that the family of the child cannot be traced or even if traced, restoration of the child
to the family is not in the best interest of the child;
(d) placement of the child with fit person for long term or temporary care;
(e) foster care orders under section 44;
(f) sponsorship orders under section 45;
(g) directions to persons or institutions or facilities in whose care the child is placed, regarding care, protection and
rehabilitation of the child, including directions relating to immediate shelter and services such as medical attention,
psychiatric and psychological support including need-based counselling, occupational therapy or behaviour
modification therapy, skill training, legal aid, educational services, and other developmental activities, as required,
as well as follow-up and coordination with the District Child Protection Unit or State Government and other
agencies;
(h) declaration that the child is legally free for adoption under section 38.
(2) The Committee may also pass orders for —
(i) declaration of fit persons for foster care;
(ii) getting after care support under section 46 of the Act;
(iii) Or any other order related to any other function as may be prescribed.”
End of Document
4.7 ADOPTION
Ved Kumari
4.7 ADOPTION
Pursuant to the right of every child to be cared by a family as recognized by the CRC, the JJ Act, 2015 has made
elaborate provisions for adoption of children in Chapter VIII. Most of the Sections contained in Chapter VIII provide
for in-country and inter-country adoption of orphan, abandoned and surrendered child declared to be legally free for
adoption by the Committee. With the enforcement of the JJ Act, 2015, all in-country and inter-country adoption of
children of India are governed by Chapter VIII of the JJ Act, 2015 except those falling within the purview of the
Hindu Adoptions and Maintenance Act, 1956. As the word “child” has been defined to mean a person who has not
completed the age of 18 years under the JJA, it means that all those who have not completed the age of 18 years
may be given in adoption under the JJ Act 2015. Taking or sending a child to a foreign country for the purpose of
adoption without a valid court order is a punishable offence under section 80 of this Act.
“Adoption” under the Act means “the process through which the adopted child is permanently separated from his
biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and
responsibilities that are attached to a biological child.”51 Section 63 specifies the effect of adoption in the following
words:
Effect of adoption- A child in respect of whom an adoption order is issued by the court, shall become the child of the
adoptive parents, and the adoptive parents shall become the parents of the child as if the child had been born to the
adoptive parents, for all purposes, including intestacy, with effect from the date on which the adoption order takes effect,
and on and from such date all the ties of the child in the family of his or her birth shall stand severed and replaced by those
created by the adoption order in the adoptive family:
Provided that any property which has vested in the adopted child immediately before the date on which the adoption order
takes effect shall continue to vest in the adopted child subject to the obligations, if any, attached to the ownership of such
property including the obligations, if any, to maintain the relatives in the biological family.
Even though this section provides that all relationships of the adopted child with their biological family are severed,
section 60 dealing with inter-country adoption of the child of a relative living in India, provides that adoptive parents
will ensure that they facilitate time to time contact of the adopted child with their siblings and biological parents.
An orphan, abandoned, or surrendered child may be given in adoption only after the Committee declares a child
legally free for adoption after making due inquiry as prescribed in section 38.52
It has been categorically stated by section 5653 that adoption is a measure to ensure right to family to children and
all adoptions of children have to be made in accordance with the provisions of this Act and the Adoption
Regulations made under it.
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4.7 ADOPTION
Sub-section (2) of section 56 specifically provides that children of one relative may be adopted by another relative,
irrespective of their religion as per the provisions contained in this Act with the exception of adoptions under the
Hindu Adoptions and Maintenance Act as nothing contained in the JJ Act, 2015 applies to such adoption as per
sub-section (3) of section 56. It means that adoption of Hindu children below the age of 15 years by the parent of
the child to a Hindu relative will continue to be governed by the Hindu Adoptions and Maintenance Act, 1956
(hereafter referred as HAMA, 1956). These two sub-sections, however, have left many questions unanswered. Can
a Hindu child above the age of 15 years but below 18 years be given in adoption to a relative under the JJA? Can a
Hindu adopt a child of a relative if they already have a biological child of the same sex? Whether adoptions made
by Hindus in contravention of the specific provisions of the HAMA, 1956 are valid adoptions under the JJ Act, 2015?
Adoption of a child of a relative by a non-Hindu is also not without problems as there are no follow up sections or
mechanism providing for in-country adoption of a child of the relative. All sections dealing with in-country adoption
relate to adoption of an orphan, abandoned, or surrendered child declared to be legally free for adoption by the
Committee. It is also unclear whether inter-country adoption of a Hindu child by a relative will be governed by the
HAMA, 1956 or the JJ Act, 2015? The Delhi High Court has clarified that the JJ Act, 2000 did not apply to inter-
country adoption of the child of a relative and it was limited only to adoption of orphan, abandoned, and
surrendered children.54 Similar questions have been left unanswered by this chapter though it has included
elaborate provisions for adoption of orphan, abandoned, and surrendered children. As the JJ Act, 2015 has strived
to streamline and supervise adoptions while widening the scope of adoptions to secure family care for all children, it
will be desirable to hold that a non-Hindu prospective adoptive parent desirous of in-country adoption of a child of a
relative should make an application to the Authority or State Agency for the purpose who should then refer the
application to the Specialized Adoption Agency for further processing in the same manner as application relating to
in-country adoption of orphan, abandoned or surrendered children. The process of surrender of such children need
not be followed as the surrendering parent wants to give the child to an already specified relative. As all adoptions
have to be made keeping in view the best interest of the child, suitability of the adopting parent, even if it is a
relative must be conducted. An adoption order issued by court will prevent any future disputes about the validity of
such adoptions.
4.7.1 Inapplicability of the Hindu Adoptions and Maintenance Act
Section 56 clearly points out that nothing in this Act will apply to adoption of children under the provisions of the
Hindu Adoptions and Maintenance Act, 1956 but it does not say that Hindus are barred from adopting a child under
the provisions of the JJ Act, 2015. It means that Hindus may now choose to adopt a child under the Hindu
Adoptions and Guardianship Act or under the JJ Act, 2015. However, as there are irreconcilable differences
between the two Acts, it may give rise to challenges of the validity of adoption by a Hindu under the JJ Act, 2015.
For example, a child below the age of 18 years may be taken and given in adoption under the JJ Act, 2015 but this
age is limited to 15 years in case of HAMA, 1956. If a Hindu adopts a 16 years old Hindu child as per the provisions
of the JJ Act, 2015, it will be a valid adoption under the JJ Act, 2015 but not so under the HAMA, 1956. Similarly,
any person having natural born children may validly adopt more children of the same sex under the JJ Act, 2015 but
HAMA, 1956 prohibits adoption of a child of the same sex if the adoptive parent has a natural born child of that sex.
In all such cases of discrepancies leading to challenges about the validity of adoptions in such circumstances, the
Courts must uphold the validity of the adoption if they are in accordance with the provisions of the JJ Act, 2015, the
principle of best interest of the child, and non obstante nature of JJA as explained below.
4.7.1.1 Who may be adopted under the JJ Act, 2015?
The question who may be adopted under the JJ Act, 2015 must be answered simply by stating that all Indian
children living in India who have not completed the age of 18 years may be adopted under the JJ Act, 2015 if they
are orphan, abandoned, or surrendered and are declared fit for adoption by the Committee after following the
procedure prescribed by the Act. The HAMA, 1956 regulates the in-country adoption by Hindu parents of Hindu
children below the age of 15 years other than those who are orphans, abandoned, or surrendered. .
In case of a child in conflict with law if found to be an orphan, abandoned, or surrendered child, the Board should
co-ordinate with the Committee to get such a child declared as legally free for adoption. As no child below the age
of seven years be a child in conflict with law, these children will have to be placed in child care institutions and not
with the Specialised Adoption Agency. The child care institution will have to initiate the necessary application for
initiating the process for getting them declared as legally free for adoption by approaching the Authority and the
court and then sharing such information with the Specialised Adoption Agency for initiating the process of adoption.
4.7.1.2 Declaring orphan, surrendered and abandoned children free for adoption
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4.7 ADOPTION
There are three categories of children who may be declared legally free for adoption, namely, (i) orphan, (ii)
surrendered, and (iii) abandoned.
An orphan child for the purposes of the JJ Act, 2015 is not only that child who does not have natural or adoptive
parent or legal guardian but also a child “whose legal guardian is not willing to take, or capable of taking care of the
child”.55 One can understand the problem of parents who are unable to take care of the child. Child whose parents
are unwilling to take care of them, certainly are children in need of care and protection but to treat such a child as
an orphan is unfathomable. In addition, the JJ Act, 2015 contains no provision or procedure by which such a child
may be declared as an orphan. If the parents are traceable and want to give up their child, they need to follow the
procedure for surrender of the child. A child whose parents are unwilling to take care of the child suggests that the
parents are traceable. No child may be taken away from their parents without getting the parents declared as unfit
but no such procedure has been provided under the Act.
Section 35 lays down the procedure for surrender of the child by the parent or guardian who for “physical, emotional
and social factors beyond their control, wishes to surrender a child.” It provides56 that in such case, the parent or
guardian will be counselled and given two months to reconsider their decision. During this period of two months, the
Committee may direct the child to be with their parent or guardian under supervision or keep the child in the
children’s home. In case the child is below the age of six years and not kept with the parent or guardian, such child
needs to be placed in a Specialised Adoption Agency. Even after the counselling and expiry of two months, the
Committee is satisfied that the parents or guardians still wish to surrender the child, it will require them to execute a
surrender deed before the Committee.
Section 3857 of the JJ Act, 2015 requires that in all cases of orphan and abandoned children, the Committee must
make all efforts to trace the parents or guardian of the child. In case the parents or guardians are traced and they
are unwilling to take care of the child, the Committee must follow the procedure prescribed under section 35 for
surrender of the child after proper counselling and giving them two months to reconsider their decision. If the
parents are not traced despite all efforts, the Committee may declare the child to be orphan or abandoned and
legally free for adoption.
This Section also provides the period for two months for the declaration of child as legally free for adoption in case
the child is below the age of two years and four months for children above two years of age. It is well known that
younger children have better chances of their adoption and with each passing day, the chances of adoption of older
children recede. In these circumstances, it is good to prescribe a short time limit for declaring the child legally
available for adoption. However, the older children need the chance to be adopted as much as the younger children
and relegating them to a secondary place in prioritising the declaration in favour of younger children discriminates
against them. As they have already crossed the desired age for adoption, each passing day has much more crucial
impact on their chances of being adopted. It would have been better if the statute provide the same time limit for
both categories of children. As the process involved in declaring the child free for adoption is the same, there is no
reason why it should take longer for the Committee to complete the same procedure in case of children older than
two months.
The JJ Act, 2015 has made no distinction between parents who leave their child in the cradle of a child care
institution and others who act completely irresponsibly by abandoning their child at a public place to die or live as
per their fate. As per second proviso to section 38, no criminal action can be initiated under the Indian Penal Code58
against any biological parent whether they have abandoned or surrendered their child.59 This approach does not
seem to be in harmony with the right of the child “to know and be cared for by his or her parents”.60 By excluding the
biological parent from all liability, this Section seems to assume that parents of all abandoned children will be traced
and counselled to look after their children. In addition, all such parents will be signing the surrender deed at the end
of two months, if they still decide to surrender the child on account of physical, emotional and social factors beyond
their control in terms of the definition of “surrendered child.”61
While it may be assumed that the parents who abandon their child perhaps are doing so due to physical, emotion or
social reasons beyond their control but if they show complete absence of responsibility by leaving them on garbage
dump exposing them to the vagaries of nature so that they may die, such parents must be made to explain such
cavalier actions. The government on its part needs to widely publicise the information about the availability of
facilities for leaving unwanted children in safe environment to ensure that no child is denied their basic right of
survival and development.
Proviso to section 38(1) prohibits the Committee from filing the first information report during the inquiry against the
biological parent who have abandoned or surrendered their child and this proviso overrides all laws to the contrary.
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4.7 ADOPTION
It means that sections 317 of the Indian Penal Code which provides punishment to parent or guardian for
abandoning their child below the age of 12 years has become redundant vis-à-vis the biological parent of such
child. However, if the adoptive parent or any other person who has the actual charge and control over the child
abandons the child below the age of 12 years, they are liable to be punished as per the provisions of this section
and it remains a cognizsable offence in relation to them.
Section 38(3) of the JJ Act, 2015 contains another non-obstante clause overriding any other law to the contrary and
provides that a child of mentally retarded parent or unwanted child of victim of sexual assault may be declared free
for adoption by the Committee by following the procedure under this Act. The only procedure prescribed by the Act
is that parents of all children be counselled and be given a period of two months to reconsider their decision to
surrender the child. Hence, a mentally retarded parent or a parent who is the victim of sexual assault will have to be
given the same counselling and the period of two months to reconsider their decision. As the procedure has to be
the same for all categories of natural parents also, separate provision in case of mentally retarded parent or the
parent victim of sexual assault may result in the possibility of denial of the period of two months for reconsidering
their decision. Children of all categories of parents have the equal right to be cared for by their biological parents. In
case of a parent with mental retardation, it involves the rights of the persons with disabilities also. Exploring the
possibility of a support person to assist the parent with mental retardation will better secure the rights of both the
parent and the child.
Section 38 further provides that when the child to be surrendered has been kept in the children’s home or with the
Specialised Adoption Agency, such institution will bring the case before the Committee on the expiry of two months
for a declaration by the Committee that the child is legally free for adoption. This decision of declaring a child legally
fit for adoption has to be taken by at least three members of the Committee. The Committee has to maintain
records of children declared legally free for adoption and others pending such declaration and it must give this
information to the State Adoption Resource Agency set up by the State Government for dealing with adoption and
related matters under section 6762 and the Central Adoption Resource Authority constituted under section 68.63
Details for implementing many of the provisions contained in the JJ Act, 2015 have been left to be provided for
regulations to be made by the Central Adoption Resource Authority. New Guidelines Regulating Adoption of
Children 2015 was notified by the Ministry of Women and Child Development on 17th July 2015.64 These
Guidelines came into force from 1 August 2015 and governed the field of adoption under the JJ Act, 2000.
Guidelines Governing Adoption of Children were issued by the Authority in June 2015.65 One of its provisions
provided for online selection procedure where out of six children the prospective adoptive parent/s had to choose
one. Failure to select one or click on the wrong picture brought the prospective adoptive parent to the bottom of the
list. This provision was challenged before the Bombay High Court. As the JJ Act, 2015 had been enforced since 15
January 2016, the Bombay High Court asked the government to clarify if those Guidelines will continue to be in
force until the new Guidelines are notified by the government.66 In reply to this query, CARA submitted to the
Mumbai High Court that new guidelines will be framed within three months. The Ministry of Women and Child
Development did indeed draft new Guidelines for Adoption under the JJ Act, 2015 and sought feedback of civil
society.67 However, the new Guidelines under the JJ Act, 2015 have yet not been notified. Bombay High Court on
13 July 2016 has now directed CARA to notify the 2015 Guidelines as the Guidelines under the JJ Act, 2015 within
three weeks so that no void is left governing the field of adoption until the new Guidelines for Adoption are
notified.68
With the enforcement of the JJ Act, 2015 and repeal of the JJ Act, 2000, these guidelines lapsed. In March 2016,
Central Adoption Resource Authority submitted to the Bombay High Court that it will frame the new Guidelines
within three months.
The 2015 Guidelines are not limited to processes of actual adoption but extend to the period before a child is
declared legally free for adoption. For example, Regulation 6(5) of the Guidelines Regulating Adoption of Children
2015 provides that “For tracing out the biological parents or the legal guardian(s), the District Child Protection Unit
shall advertise the particulars and photograph of the abandoned child in a State level newspaper with wide
circulation within 72 hours from the time of receiving the child. If despite such advertisement the parent or guardian
is not traceable even after 30 days, the DCPU is to report the matter to the Committee.69 If such report is not given
by the DCPU despite reminders, it is provided in the Adoption Regulation 2015 that it will be presumed to have
been submitted after the expiry of two months in case of a child below the age of two years and after four months in
case of a child older than four months.70 It means that the Committee is authorised to declare a child legally free for
adoption if the parents or legal guardian is not traceable for two or four months as mentioned above. While these
directions have the positive aspect to expediting adoption, it may also result to the undesirable result of some
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4.7 ADOPTION
parents losing their children for ever if they are not able to trace their lost child within the period of two months or
four months depending on the age of their child.
Once a child has been declared by the Committee legally fit for adoption, the actual process of adoption is set in
motion. Section 56 of the JJ Act, 2015 categorically reiterates that “adoption shall be resorted to for ensuring right to
family for the orphan, abandoned and surrendered children”.71 It further declares that adoption of children of
relatives irrespective of their religion may also be made under the provisions of this Act. It means that any child
belonging to any religion may be given or taken in adoption under this Act. The provision of adoption applies to all
children and is not limited to children in need of care and protection alone. Hence, a child found to be in conflict with
law may be given in adoption as much as a child in need of care and protection. It is well recognised that in most
cases, child in conflict with law is also a child in need of care. Hence, protection and all opportunities for their re-
integration in society and rehabilitation should be ensured for all children while implementing the JJ Act, 2015.
4.7.2 Eligibility of prospective adoptive parents
Section 57 specifies who are eligible to become prospective adoptive parents and is in the following terms:
Eligibility of prospective adoptive parents- (1) The prospective adoptive parents shall be physically fit, financially
sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him.
(2) In case of a couple, the consent of both the spouses for the adoption shall be required.
(3) A single or divorced person can also adopt, subject to fulfillment of the criteria and in accordance with the
provisions of adoption regulations framed by the Authority.
(4) A single male is not eligible to adopt a girl child.
(5) Any other criteria that may be specified in the adoption regulations framed by the Authority.
Some additional conditions have been included by the CARA Regulations 2015, which include that in case of
married couple, consent of both the spouses is compulsory and they must be in stable married life for minimum of
two years.72 It may be noted that there is no mention in this section that the adoptive parent must be Indian, or a
person of Indian origin. Indeed the chapter dealing with adoption lays down detailed procedure for adoption by
Indians, non-resident Indians, persons of Indian origin, and foreigners. The conditions laid down in section 57 are
applicable equally to all prospective parents.
It has been made clear in the Rules73 that having any number of one’s own biological children of any sex is not a
bar to adoption unlike the HAMA, 1956, which prohibits adoption of a child of the same sex as the sex of already
existing biological child. There should be minimum difference of 25 years between the ages of the adoptive parent
and the child to be adopted.74 The CARA Guidelines specifies the maximum age difference between the two also. A
person above the age of 55 years is not eligible to apply for adoption.75
A single person may adopt also but adoption by a single male of a daughter is barred. Single woman may adopt a
child of either sex.76 A single person will include a person, who never married, divorcee, a widow, or a widower.
However, inclusion of divorced person along with single but omission of widow, widower from it may lead someone
to doubt whether such persons can adopt? While there may be questions about the eligibility of a separated spouse
to adopt, there can be no doubt that widow and widower do fall within the ambit of “single person”. Such inclusion
and exclusion are only reflective of bad drafting.
The Act is silent about a person in a live-in relationship. Whether such persons will be counted as single or a
couple? However, the CARA Guidelines certainly is cognisant of “significant others” whose attitude towards
adoption has to be included in the Home Study Report.77 Whether existence of such significant others will be
considered favourable or unfavourable is not mentioned. Whether such significant others may include homosexual
partner of the prospective adoptive parent or not is yet another question.
Looked at from the perspective of the child to be adopted, the Section seems to lay down generally the desirable
conditions for the good and comfortable upbringing of children but when examined from the perspective of desirous
adoptive parents, there are many questions that need to be answered. It requires that all prospective adoptive
parents must be “physically fit, financially sound, mentally alert and highly motivated to adopt.” Does it mean that a
couple or person who is highly motivated to adopt, is physically fit and mentally alert but lacks the financial
resources will be denied the opportunity to adopt even if that couple or person can really provide a loving and
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4.7 ADOPTION
nurturing environment for the child? Financial difficulties may be taken care of with some child support services if
the couple or the individual fulfills other conditions for upbringing of children. Giving equal weightage to all the
criteria included in this sub-section also indirectly indicts the natural parents who may not be so financially sound or
so physically alert or mentally sound. What are the standards to determine financial soundness, physical fitness and
mental alertness? There may also be a couple or an individual who is highly motivated to adopt but should we not
ask the reason behind the motivation? Adoption of children for many wrong reasons is not unknown. Children given
in adoption are reported to have ended as sex slaves or domestic servants. Hence, there is great need to carefully
examine and operationalise these criteria in the rules so that a highly motivated couple or individual is not denied
adoption of a child for technical reasons.
Newspapers had widely reported the story of Pune-based software engineer Aditya Tiwari, 28 years old, who had to
struggle hard to adopt a child.78 He fell in love with the infant baby at first sight when he would not let go of his
finger. Aditya would not have succeeded in his quest to adopt if his infant baby was a girl as sub-section (4)
prohibits a single male to adopt a girl child. This restriction perhaps is based on the stereotypical presumption that a
single male may abuse a girl child. This stereotype image of men assumes further that the single males wanting to
adopt a child are potential heterosexual pedophile but they cannot be homosexual pedophiles. This Section also
presumes that single women cannot be also either heterosexual or homosexual pedophile as the sub-section puts
no restrictions on adoption by a single woman. In today’s age when people with different sexual orientation are
seeking equal rights and government’s own study has shown that a high percentage of boys are sexually abused,79
this prohibition makes no sense. What is required is that all persons – couples as well as single persons – wanting
to adopt must be thoroughly screened to check that there is no possibility of potential abuse of children by them.
Potential parents need to be assessed for their perseverance, patience, good temper, humour, caring abilities,
being authoritative without being authoritarian, etc. rather than excluded or included in the list of potential parent
based on their sex and financial soundness.
4.7.3 Agencies involved in adoption
All adoptions under the JJ Act, 2015 are supervised and controlled by primarily four agencies, namely, the Central
Adoption Resource Authority established under section 68 referred to as the “Authority” in the JJA;80 State Adoption
Resource Agency established under section 67 and referred to as State Agency in the JJA;81 Specialised Adoption
Agency established and recognised under section 65 for housing orphans, abandoned, or surrendered children
below the age of six years place there by the order of Committee for the purpose of adoption;82 the Government
department recognised as the Central Authority under the Hague Convention on Protection of Children and Co-
operation in Inter-country Adoption 199383 and the foreign adoption agency authorised by the Authority, or Central
Authority, or the government department of that country for sponsoring the applications from non-resident Indians,
overseas citizens of India, persons of Indian origin and foreigners for adoption of an Indian child.84 In case of
children above the age of six years kept in a child care institution not recognised as the specialised adoption
agency, the person in-charge of such places also have a role in terms of section 66 of the JJ Act, 2015.
Central Adoption Resource Authority, which had been in existence prior to the enactment of the JJ Act, 2015, has
been recognised as the Central Adoption Resource Authority under the present Act also as per section 68.85 The
CARA is the nodal agency responsible for matter connected with in-country as well as inter-country adoption of
orphan, abandoned, or surrendered children in India. Its primary functions are to promote and facilitate inter-country
adoptions in co-ordination with the State Adoptions Resource Agency; to regulate inter-country adoptions; and to
frame rules and regulations relating to adoption. It also has to function as the Central Authority for inter-country
adoption.
As per section 69,86 the functioning of the Authority is to be monitored by its Steering Committee consisting of
Secretary, Ministry of Women and Child Development, Government of India as its ex-officio chairperson. Joint
Secretary dealing with Authority and Joint Secretary dealing with finance in the MWCD are its ex-officio members.
One State Adoption Resource Agency and two Specialised Adoption Agencies, one adoptive parent and one
adoptee, and one advocate or a professor having at least ten years of experience in family law are to be selected to
be members of the Steering Committee whose selection, tenure, and other terms of service have been left to be
prescribed under rules and regulations to be framed for the purpose. The Steering Committee of the Authority is
also to have a Member Secretary who will function as the Chief Executive Officer of the Authority but the section is
silent who may be appointed as the member secretary. The Steering Committee is responsible to oversee the
functioning of the Authority to ensure that it functions in the most effective manner, approve annual budget, plan
future action, and prepare annual accounts for audit.
Section 7387 gives details instructions relating to preparation and audit of accounts of the Authority. The accounts of
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the Authority have to be maintained and prepared as per the Central Government rules in consultation with
Comptroller and Auditor-General of India. The Comptroller and Auditor-General of India have to audit the accounts
periodically as may be prescribed under rules and the cost of the same is to be borne by the Authority. The CAAG
has the power to demand production of books, accounts, connected vouchers and other documents, and other
connected papers as well as inspect any of the offices of the Authority. The certificate of audit issued by the CAAG
is required to be forwarded to the Central Government by the Authority and the Central Government has the
responsibility of placing it before each House of Parliament.
The Steering Committee has been specially charged with the responsibility of preparing the annual reports of the
Authority. The Authority is required to submit annual reports to the Central Government, which in turn is required to
place it before each House of Parliament by section 71.88
It is also responsible for framing rules relating to recruitment, service and finances as well as regulations for the
smooth administrative functioning of the Authority and running its programmes. Prior sanction of Central
Government is essential before such rules and regulations are adopted by the Authority. The Central Government
may assign any other function to the Steering Committee from time to time. The Steering Committee is required by
the Act to meet once a month. The Authority will have a Headquarter and as many regional offices as required and
function from there.
Section 70 of the JJ Act, 2015 specifies the powers of Authority. Clause (a) of Sub-section (1) of section 7089
provides that the Authority may issue instructions to any Specialised Adoption Agency or any child care institution
housing orphaned, abandoned, or surrendered children as well as any State Agency and authorised foreign
agency. These instructions are binding on these bodies and they must be complied by all these agencies. In case of
persistent non-compliance of its direction, the Authority may recommend to the concerned government or authority
to take appropriate action against the erring official, functionary, or institution under its administrative control. It may
also forward the case of persistent non-compliance of its instructions to a magistrate who will hear the matter as if it
has been forwarded under section 346 of the Cr PC.90 The Authority has also been the final power to decide and
difference of opinion in an adoption case including eligibility of prospective adoptive parents or the child to be
adopted.
Section 7291 provides that the expenditure of the Authority for performing its various functions has to be met from
grants given by the Central Government after provision for it has been made by Parliament as per legal process
prescribed.
Section 6792 directs the State Government to set up a State Adoption Resource Agency for dealing with adoptions
and related matters in the State under the guidance of the Authority. The existing State Agencies have been
deemed to have been set up under the JJ Act, 2015.
The State Government is further obligated to recognize one or more institutions or organisations in each district as
the Specialised Adoption Agency by section 65.93 As mentioned earlier all orphan, surrendered, or abandoned
children below the age of six years who have been declared to be legally free for adoption by the Committee have
to be transferred under the care of the Specialised Adoption Agency which is responsible for their rehabilitation
through adoption or other non-institutional care. The Specialised Adoption Agency has to apply to the State
Adoption Resource Agency for a certificate of recognition or renewal of its recognition. The State Agency is required
to furnish the name, address and contact details of the Specialised Adoption Agencies along with the certificate of
recognition or renewal to the Authority at the earliest after grant of such certificate. The Specialised Adoption
Agencies must be inspected at least once in a year and directed to take remedial measures if required.
The Specialised Adoption Agency has been given a range of responsibility for speedy and smooth adoption of
children including getting an orphan or abandoned or surrendered child legally free for adoption from the
Committee, completing the home study report of prospective parents, obtaining adoption order from the court within
stipulated time. If the Specialised Adoption Agency is in default in taking any of these steps, it may be subjected to
fine up to Rs 50,000 and in case of repeated default, its recognition may be withdrawn by the State Government.
The Act is silent about the procedure to be followed by the State Government for taking such punitive measure or
the body that may impose fine but it is certain that no such measure may be taken without giving due opportunity to
the Specialised Adoption Agency to be heard following a fair and just procedure. However, as per the classification
of offences contained in section 86, the offence is non-cognisable and bailable and hence, no penal investigation
may be initiated in this offence without a formal complaint and an order of the court.
All the child care institutions housing children in conflict with law or children in need of care and protection are
required to be registered under the JJA but all of them are not recognised as Specialised Adoption Agency and not
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4.7 ADOPTION
all children who may be adopted live in the Specialised Adoption Agencies, provision has been made for facilitating
adoption of children living in institutions other than SAA. Section 6694 obligates all such institutions to ensure that
they initiate the necessary process of getting all orphans, abandoned, or surrendered children under their care as
legally free for adoption by the Committee as per the provisions of section 38 of the JJA. All such institutions who
may be keeping orphan, abandoned, or surrendered children are under an obligation to maintain formal links with
the nearby SAA and keep furnishing the details and records of the child declared legally free for adoption by the
Committee so that they may be placed for adoption by SAA. Sub-section (3) of section 66 makes the defaulting
child care institution liable to fine of Rs 50,000 for each instance of violation. Such institutions may also be
derecognised. However, no action can be initiated against the defaulting institution without a court order as the
offence is non-cognisable and bailable being punishable only with fine.
4.7.4 Procedure for adoption
The JJ Act, 2015 makes provision for three kinds of adoptions. First, it lays down provisions for in-country adoption
by Indian prospective adoptive parents living in India. Secondly, it prescribes procedure for inter-country adoption
by non-resident Indians, persons of Indian origin, Overseas Citizens of India, and foreigners. Thirdly, it also
provides for inter-country adoption of children by relatives. All children who may be given in adoption under the JJ
Act, 2015 must be declared legally free for adoption by the Committee after following the procedure as explained
earlier in this chapter. The Committee may declare a child legally free for adoption only if it is an orphan, or
abandoned, or surrendered child. Religion of the child or that of the adoptive parent is no bar to adoption under this
Act.
All adoptions under the JJ Act, 2015 have necessarily to be made by court order. Section 6195 provides that before
issuing an adoption order, the Court must satisfy itself that the adoption is for the welfare of the child; that the child’s
wishes have been considered keeping in view their age and understanding; that no money has changed hands or
promised to change hands among the adoptive parent, biological parent or guardian, relatives of the child, the
specialised adoption agency in consideration of the adoption, except as permitted under the adoption regulations
towards adoption fee, service charges, and child care corpus. Sub-section (2) sets the time limit of two months
within which the court should complete the adoption proceedings from the date of filing. All proceedings should be
held in camera, which means that any person who is not connected with the adoption is not to be permitted to be
present in the court during the proceedings. In camera, proceedings are held to maintain the privacy of parties.
While the title of section 61 refers to penalty for payment of consideration for adoption, in the substantive part of the
section, there is no mentioned of the penalty that may be imposed for doing so. Even though section 80 provides for
punitive measure for adoption without following the procedure prescribed in this Act, no reference is made to it or
any other penal remedies in section 61 of the JJA. This is yet another example of bad drafting showing mismatch
between the title and the substantive provision.
Section 6296 lays down the time limit of four months within which all formalities regarding adoption of children
should be completed. The authorised foreign adoption agency, Authority and State Agency are required to track the
progress of the adoption case. They may also intervene whenever necessary to ensure that the time line is adhered
to. It also authorises the Authority to include details of documentation and other procedural requirement with regard
to in-country and inter-country adoption of orphan, abandoned and surrendered children in the adoption guidelines
to be framed by it.
It is further provided by the JJ Act, 2015 that information regarding all adoption orders issued by the Court must
compulsorily be given to the Authority on monthly basis so that it may maintain the data on adoption.97 Such data is
essential to be maintained for implementing the various provisions contained in the Act, which provide for continued
supervision of adopted children for a period of two years from the date of adoption and remedial actions if the child
faces any adjustment problems. Section 64 starts with a non-obstante clause and is binding notwithstanding
anything contained in any other law for the time being in force.
4.7.4.1 Procedure for adoption by prospective Indian adoptive parents living in India
Section 581 provides that an Indian living in India who is desirous of adopting an orphan, abandoned or surrendered
child may make an application for the same to a Specialised Adoption Agency in the manner provided in the
Adoption Regulations framed by the Authority. Thereafter, the Specialised Adoption Agency will conduct a home
study2 and prepare a report on their eligibility and suitability to adopt a child. If found eligible, the SAA will refer a
child declared to be legally free for adoption along with the child study report and medical report as provided in the
Adoption Regulations. The prospective adoptive parents after examining the child study report and the medical
report need to sign it marking their acceptance of the child and return the documents to the SAA which thereafter
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will give the child in pre-adoption foster care and file an application in the court for obtaining the adoption order with
the necessary documents as provided in the Adoption Regulations. SAA is obligated to inform the prospective
adoptive parents as soon as it receives the certified copy of the court order. Sub-section (5) provides that progress
and wellbeing of the child in the adoptive family shall be followed up and ascertained. The CARA Guidelines 2015
provide for a follow up on six monthly basis for two years.3 In case of problems, it will arrange for counselling of the
adoptive parents and provide for temporary alternate care for the child if needed.
4.7.4.2 Procedure of inter-country adoption
As per section 59,4 the first preference is given to the Indian prospective adoptive parents. Non-resident Indians are
to be treated at par with resident Indian for in-country adoption.5 The fundamental principles governing adoption are
the best interest of the child and “placement of the child in his own socio-cultural environment, as far as possible.”6
Only when the State Agency and SAA do not succeed in placing a child in in-country adoption despite the
concerted efforts for 60 days from the date when the child was declared legally free for adoption, the orphan,
abandoned or surrendered child will be free for inter-country adoption. Proviso to sub-section (1) provides that
children with physical and mental disability, siblings, and children above five years of age are to be preferred to be
given in inter-country adoption. This provision reflect the sad reality of prospective Indian adoptive parents who
prefer an able-bodied infant and that too a male for adoption.
Section 59 has many sub-sections dealing with inter-county adoptions by non-resident Indians, overseas citizens of
India, persons of Indian origin and foreigners living abroad as well overseas citizens of India and persons of Indian
origin living in India. Sub-sections (2) to (11) deal with the prospective adoptive parents living abroad and sub-
section (12) provides for overseas citizens of India, persons of Indian origin and foreigners living in India.
Sub-section (2) provides that eligible non-resident Indian, overseas citizen of India or persons of Indian origin living
abroad will be given preference in inter-country adoption of Indian children. Apparently, the preference given to
these categories of persons is over foreigners but whether persons within the listed categories will also be given
preference in the order they are listed is not clear. Further, it is also not clear where will the overseas citizens of
India, persons of Indian origin and foreigners living in India fall in this hierarchy? The rationale for second
preference to foreigners perhaps lies in the desire to keep the child within Indian milieu but there is no specific
provision to this effect in the Act laying down what all needs to be matched while offering a child for adoption to a
given prospective adoptive parent.
Religion of the adoptive prospective parent is no bar for adoption in terms of Sub-section (3). All persons living
abroad who may be interested in adopting an orphan, abandoned or surrendered child from India, are required to
submit an application for adoption to an authorised foreign adoption agency or the concerned government
department in their country of habitual residence. It may be noted that the adoptive parents are required to apply for
application in the country of their usual residence and not country of which they may be citizens. In case a
foreigners living in a country other than of which they may be citizen will have to first establish that they are
habitually resident of that country for acceptance of their application. While a foreigner, overseas citizen of India
and person of Indian origin living in India are required to secure a no-objection certificate from the diplomatic
mission of their country by sub-section (12), no such requirement has been included in Sub-section (3) of section
59.
The concerned foreign adoption agency, or the government department of that country, or the Central Authority as
the case may be, thereafter will prepare the home study report and if they are found to be eligible, will sponsor their
application to the Authority for adoption of a child from India. If the prospective adoptive parents are found suitable,
the Authority will refer the application to SAA where children legally free for adoption are available. Thereafter the
same procedure as is applicable for adoption of children by Indian parents living in India will follow. SAA will match
a child with the prospective adoptive parent and send the child study report along with the medical report of the
child to such parents who will then return the papers with their signatures signifying their consent. SAA then will file
an application in the court for obtaining an adoption order and when it is received, inform the Authority, State
Agency, and the prospective adoptive parents immediately. SAA is also responsible to obtain a passport for the
child and visa. The Authority has to intimate about the adoption to the immigration authorities of India and the
receiving country. The child will be handed over by SAA to the prospective adoptive parents in person as soon as
the passport and visa are issued to the child.
Sub-section (11) provides for follow up of such adoption by the authorized foreign adoption agency, or Central
Authority or the concerned Government department as the case may be. The concerned agency has to ensure
submission of progress report about the child in the adoptive family and will also be responsible for making
alternative arrangement in case of any disruption in consultation with the Authority and the concerned Indian
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diplomatic mission. Further details of the duration of such follow up or how to determine who among the listed
agencies will do the follow up has been left to be determined by the adoption guidelines to be framed by the
Authority. The CARA Guidelines 2015 provide for a follow up on quarterly basis for the first year and six monthly
basis for the second year.7 In case of continued adjustment problems, the child is to be taken care of by the social
welfare and child care department of that country.
The last sub-section of section 59 lays down the procedure for adoption by a foreigner or a person of Indian origin
or an overseas citizen of India who habitually resides in India. The sequence of the categories of prospective
adoptive parents in this sub-section differs significantly from that followed in earlier section, which had given last
priority to foreigners. The place of overseas citizens of India and person of Indian origin has also been switched. As
there is a hierarchy in adoption in these categories of prospective adoptive parents, one is left wondering if the
same is to be followed when persons of these specified categories are habitually living in India. In any case, all of
them are required to make a direct application to the Authority after obtaining a no-objection certificate from the
diplomatic mission of their country. The Authority will then follow the same procedure as in other cases of in-country
adoption referring the application to SAA. The CARA Guidelines 2015 provide for a follow up on quarterly basis for
the first year and six monthly basis for the second year for these children also.8 However, in case of continued
adjustment problem despite counselling to the adoptive parents, the child may be withdrawn. SAA in such case
should arrange counselling for the child and alternate arrangement for foster care or adoption in consultation with
Authority and State Agency.9 Taking note of such scenario, the definition of abandoned child given in section 2(a)
does include a child deserted by their adoptive parents and declared as abandoned by the Committee after due
inquiry.
4.7.4.3 Procedure for inter-country adoption of a child of a relative
Section 60 of the JJ Act, 2015 contains a special provision for inter-country adoption by a relative living abroad who
wants to adopt a child from their relative living in India. It provides10 that such a person needs to obtain an order
from the court and a no-objection certificate from the Authority. The Authority will give the certificate on the basis of
the application received by it from either the biological parent or adoptive parent with the court order and will inform
the immigration authority of India and that of the receiving country.
Some ambiguity though may arise with regard to adoption of Hindu child living in India to a Hindu relative living
abroad. Whether such adoptions will be governed by the HAMA, 1956 or by section 60 of the JJA? As such children
will also need a passport and visa, it may have been better if it was clearly specified that such adoptions will also
will be governed under section 60 and section 56(3) will not apply to inter-country adoptions of Hindu children by
Hindu relatives. Sub-section (3) of section 60 provides that the adoptive parents will receive the child from biological
parents after receiving the no-objection certificate from the Authority. Strangely, the adoptive parents in this case,
have been put under the obligation to facilitate contact of the adopted child with their siblings and biological parents
from time to time. The duration of facilitating such contact has not been mentioned. There is no such obligation
mentioned in case of any other adoption whether in-country or inter-country of any categories of children even if
parents of the child are known, for example in case of surrendered children. After adoption, the adopted child
becomes the biological child of the adoptive parents and they should be free to decide with whom and how
frequently their child will be in contact.
51 Section 2(2) JJ Act, 2015. For more details, see chapter 2.

52 Section 2(16) reads, “child legally free for adoption” means a child declared as such by the Committee after making due
inquiry under section 38.
53 Section 56 reads, “Adoption- (1) Adoption shall be resorted to for ensuring right to family for the orphan, abandoned
and surrendered children, as per the provisions of this Act, the rules made thereunder and the adoption regulations
framed by the Authority.
(2) Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the
provisions of this Act and the adoption regulations framed by the Authority.
(3) Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and
Maintenance Act, 1956.
(4) All inter-country adoptions shall be done only as per the provisions of this Act and the adoption regulations framed
by the Authority.
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4.7 ADOPTION
(5) Any person, who takes or sends a child to a foreign country or takes part in any arrangement for transferring the
care and custody of a child to another person in a foreign country without a valid order from the Court, shall be
punishable as per the provisions of section 80.
54 Akanksha Jain, HC unites girl with adoptive family, available at http://www.thehindu.com/todays-paper/tp-national/tp-
newdelhi/hc-unites-girl-with-adoptive-family/article8867970.ece#, last visited on 21 July 2016.
55 Section 2 (42) (ii), JJ Act, 2015. For more discussion, see, chapter 2.
56 35. Surrender of children- (1) A parent or guardian, who for physical, emotional and social factors beyond their control,
wishes to surrender a child, shall produce the child before the Committee.
(2) If, after prescribed process of inquiry and counselling, the Committee is satisfied, a surrender deed shall be
executed by the parent or guardian, as the case may be, before the Committee.
(3) The parents or guardian who surrendered the child, shall be given two months’ time months’ time to reconsider
their decision and in the intervening period the Committee shall either allow, after due inquiry, the child to be with
the parents or guardian under supervision, or place the child in a Specialised Adoption Agency, if he or she is
below six years of age, or a children’s home if he is above six years.
57 Section 38 reads, “Procedure for declaring a child legally free for Adoption- (1) In case of orphan and abandoned child,
the Committee shall make all efforts for tracing the parents or guardians of the child and on completion of such inquiry,
if it is established that the child is either an orphan having no one to take care, or abandoned, the Committee shall
declare the child legally free for adoption:
Provided that such declaration shall be made within a period of two months from the date of production of the child, for
children who are up to two years of age and within four months for children above two years of age:
Provided further that notwithstanding anything contained in this regard in any other law for the time being in force, no
first information report shall be registered against any biological parent in the process of inquiry relating to an
abandoned or surrendered child under this Act.
(2) In case of surrendered child, the institution where the child has been placed by the Committee on an application
for surrender, shall bring the case before the Committee immediately on completion of the period specified in
section 35, for declaring the child legally free for adoption.
(3) Notwithstanding anything contained in any other law for the time being in force, a child of a mentally retarded
parents or a unwanted child of victim of sexual assault, such child may be declared free for adoption by the
Committee, by following the procedure under this Act.
(4) The decision to declare an orphan, abandoned or surrendered child as legally free for adoption shall be taken by
at least three members of the Committee.
(5) The Committee shall inform the State Agency and the Authority regarding the number of children declared as
legally free for adoption and number of cases pending for decision in the manner as may be prescribed, every
month.
58 Section 317 of the IPC provides for imprisonment of either description up to seven years or fine or both for a father or
mother or any other person having the care of a child if they expose or leave a child below the age of 12 years at any
place with the intention of wholly abandoning such child. It is classified as cognizable offence though bailable under
Schedule 1 of the Cr PC.
59 Second proviso to section 38 reads, Provided further that notwithstanding anything contained in this regard in any other
law for the time being in force, no first information report shall be registered against any biological parent in the process
of inquiry relating to an abandoned or surrendered child under this Act.
60 Article 7 of the CRC.
61 Under section 2(60) “surrendered child” means a child, who is relinquished by the parent or guardian to the Committee,
on account of physical, emotional and social factors beyond their control, and declared as such by the Committee.
62 Section 67 reads, “State Adoption Resource Agency- (1) The State Government shall set up a State Adoption
Resource Agency for dealing with adoptions and related matters in the State under the guidance of Authority.
(2) The State Agency, wherever already exists, shall be deemed to be set up under this Act.
63 Section 68 reads, “68. Central Adoption Resource Authority- The Central Adoption Resource Agency existing before
the commencement of this Act, shall be deemed to have been constituted as the Central Adoption Resource Authority
under this Act to perform the following functions, namely:—
(a) to promote in-country adoptions and to facilitate inter-State adoptions in co-ordination with State Agency;
(b) to regulate inter-country adoptions;
(c) to frame regulations on adoption and related matters from time to time as may be necessary;
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4.7 ADOPTION
(d) to carry out the functions of the Central Authority under the Hague Convention on Protection of Children and
Cooperation in respect of Inter-country Adoption;
(e) any other function as may be prescribed.
64 Available at
http://cara.nic.in/writereaddata/uploadedfile/NTESCL635755820383694549_Presentation%2018th%20August%202015
%20website.pdf, last visited on 22 May 2016.
65 Notified by Ministry of Women and Child Development on 17th July 2015 in Gazette of India Part II, sub-section (ii),
available at http://cara.nic.in/writereaddata/UploadedFile/NTESCL_635760082361561985_english%20guidelines.pdf,
last accessed on 6th April 2016.
66 Will 2015 adoption guidelines continue? HC asks Centre, http://timesofindia.indiatimes.com/city/mumbai/Will-2015-
adoption-guidelines-continue-HC-asks-Centre/articleshow/51704649.cms, last visited on 6 April 2016.
67 Available at
http://www.cara.nic.in/writereaddata/uploadedfile/NTESCL636010898758216000_merged_document_4%20(1).pdf, last
visited on 8 July 2016.
68 Rosy Sequeira, Notify Norms for Adoption in Three Weeks, HC tells Centre, available at
http://timesofindia.indiatimes.com/city/mumbai/Notify-norms-for-adoption-in-3-weeks-HC-tells-
Centre/articleshow/53199883.cms, last visited on 14 July 2016.
69 Regulation 6(9) of the Adoption Regulations 2015.
70 Id. R.6 (11).
71 Section 56 reads, “Adoption- (1) Adoption shall be resorted to for ensuring right to family for the orphan, abandoned
and surrendered children, as per the provisions of this Act, the rules made thereunder and the adoption regulations
(2) Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the
provisions of this Act and the adoption regulations framed by the Authority.
(3) Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and
Maintenance Act, 1956.
(4) All inter-country adoptions shall be done only as per the provisions of this Act and the adoption regulations framed
by the Authority.
(5) Any person, who takes or sends a child to a foreign country or takes part in any arrangement for transferring the
care and custody of a child to another person in a foreign country without a valid order from the Court, shall be
punishable as per the provisions of section 80.”
72 Rule 5 (e) and (f) of CARA Guidelines.
73 Rule 5 (b) of CARA Guidelines.
74 Rule 5 (h) of the CARA Guidelines.
75 Rule 5(g) of the CARA Guidelines.
76 Rule 5 (c) and (d) of CARA Guidelines.
77 Schedule 6, Part H of CARA Guidelines 2015.
78 Available at http://indianexpress.com/article/lifestyle/feelings/daddys-little-boy/, last visited on 22 June 2016.
79 Study on Child Abuse India 2007, Ministry of Women and Child Development, available at
http://www.childlineindia.org.in/pdf/MWCD-Child-Abuse-Report.pdf, last visited on 22 June 2016.
80 Section 2 (7), JJ Act, 2015.
81 Section 2 (53), JJ Act, 2015.
82 Section 2 (57), JJ Act, 2015.
83 Section 2 (11), JJ Act, 2015.
84 Section 2 (6), JJ Act, 2015.
85 Section 68 reads, “Central Adoption Resource Authority- The Central Adoption Resource Agency existing before the
commencement of this Act, shall be deemed to have been constituted as the Central Adoption Resource Authority
under this Act to perform the following functions, namely:—
(i) to promote in-country adoptions and to facilitate inter-State adoptions in co-ordination with State Agency;
(ii) to regulate inter-country adoptions;
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4.7 ADOPTION
(iii) to frame regulations on adoption and related matters from time to time as may be necessary;
(iv) to carry out the functions of the Central Authority under the Hague Convention on Protection of Children and
Cooperation in respect of Inter-country Adoption;
(v) any other function as may be prescribed.”
86 Section 69 reads, “Steering Committee of Authority- (1) The Authority shall have a Steering Committee with following
members:
(a) Secretary, Ministry of Women and Child Development, Government of India, who shall be the Chairperson—ex
officio;
(b) Joint Secretary, Ministry of Women and Child Development, Government of India, dealing with Authority—ex
officio;
(c) Joint Secretary, Ministry of Women and Child Development, Government of India, dealing with Finance—ex
officio;
(d) one State Adoption Resource Agency and two Specialised Adoption Agencies;
(e) one adoptive parent and one adoptee;
(f) one advocate or a professor having at least ten years of experience in family law;
(g) Member-Secretary, who shall also be Chief Executive Officer of the organisation.
(2) Criteria for the selection or nomination of the Members mentioned at (d) to (f), their tenure as well as the terms
and conditions of their appointment shall be such as may be prescribed.
(3) The Steering Committee shall have the following functions, namely:—
(a) to oversee the functioning of Authority and review its working from time to time so that it operates in most
effective manner;
(b) to approve the annual budget, annual accounts and audit reports as well as the action plan and annual report
of Authority;
(c) to adopt the recruitment rules, service rules, financial rules of Authority as well as the other regulations for the
exercise of the administrative and programmatic powers within the organisation, with the prior approval of the
Central Government;
(d) any other function that may be vested with it by the Central Government from time to time.
(4) The Steering Committee shall meet once in a month in the manner as may be prescribed.
(5) The Authority shall function from it’s headquarter and through its regional offices as may be set up as per its
functional necessity.”
87 Section 73 reads, “Accounts and audit of Authority- (1) The Authority shall maintain proper accounts and other relevant
records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government in
consultation with the Comptroller and Auditor-General of India.
(2) The accounts of Authority shall be audited by the Comptroller and Auditor- General at such intervals as may be
specified by him and any expenditure incurred in connection with such audit shall be payable by the Authority to
the Comptroller and Auditor-General.
(3) The Comptroller and Auditor-General and any person appointed by him in connection with the audit of the
accounts of the Authority under this Act shall, have the same rights and privileges and the Authority in connection
with the audit of Government accounts and, in particular, shall have the right to demand the production of books,
accounts, connected vouchers and other documents and papers and to inspect any of the offices of Authority.
(4) The accounts of the Authority as certified by the Comptroller and Auditor-General or any other person appointed
by him in this behalf, together with the audit report thereon shall be forwarded annually to the Central Government
by the Authority.
(5) The Central Government shall cause the audit report to be laid, as soon as may be after it is received, before each
House of Parliament.”
88 Section 71 reads, “Annual Report of Authority- (1) The Authority shall submit an annual report to the Central
Government in such manner as may be prescribed.
(2) The Central Government shall cause the annual report of Authority to be laid before each House of Parliament.”
89 Section 70 reads, “Powers of Authority- (1) For the efficient performance of its functions, Authority shall have the
following powers, namely:—
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4.7 ADOPTION
(a) to issue instructions to any Specialised Adoption Agency or a Children Home or any child care institution housing
any orphan, abandoned or surrendered child, any State Agency or any authorised foreign adoption agency and
such directions shall be complied by such agencies;
(b) recommending to the concerned Government or Authority to take appropriate action against any official or
functionary or institution under its administrative control, in case of persistent non-compliance of the instructions
issued by it;
(c) forwarding any case of persistent non-compliance of its instructions by any official or functionary or institution to a
Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall
proceed to hear the same as if the case has been forwarded to him under section 346 of the Code of Criminal
Procedure, 1973;
(d) any other power that may be vested with it by the Central Government.
(2) In case of any difference of opinion in an adoption case, including the eligibility of prospective adoptive parents or
of a child to be adopted, the decision of Authority shall prevail.”
90 Section 346 deals with certain cases of contempt committed in view or presence of a civil, criminal or revenue court
which decides to transfer them to a Magistrate when it considers that the punishment prescribed in section 345 of the
Cr PC is not sufficient.
91 Section 72 reads, “Grants by Central Government- (1) The Central Government shall, after due appropriation made by
Parliament by law in this behalf, pay to the Authority by way of grants such sums of money as the Central Government
may think fit for being utilised for performing the functions of Authority under this Act.
(2) The Authority may spend such sums of money as it thinks fit for performing the functions, as prescribed under this
Act, and such sums shall be treated as expenditure payable out of the grants referred to in sub-section (1).”
92 Section 67 reads, “State Adoption Resource Agency- (1) The State Government shall set up a State Adoption
Resource Agency for dealing with adoptions and related matters in the State under the guidance of Authority.
(2) The State Agency, wherever already exists, shall be deemed to be set up under this Act.”
93 Section 65 reads, “Specialised Adoption Agencies- (1) The State Government shall recognise one or more institutions
or organisations in each district as a Specialised Adoption Agency, in such manner as may be provided in the adoption
regulations framed by the Authority, for the rehabilitation of orphan, abandoned or surrendered children, through
adoption and non-institutional care.
(2) The State Agency shall furnish the name, address and contact details of the Specialised Adoption Agencies along
with copies of certificate or letter of recognition or renewal to Authority, as soon as the recognition or renewal is
granted to such agencies.
(3) The State Government shall get every Specialised Adoption Agency inspected at least once in a year and take
necessary remedial measures, if required.
(4) In case any Specialised Adoption Agency is in default in taking necessary steps on its part as provided in this Act
or in the adoption regulations framed by the Authority, for getting an orphan or abandoned or surrendered child
legally free for adoption from the Committee or in completing the home study report of the prospective adoptive
parents or in obtaining adoption order from the court within the stipulated time, such Specialised Adoption Agency
shall be punishable with a fine which may extend up to fifty thousand rupees and in case of repeated default, the
recognition of the Specialised Adoption Agency shall be withdrawn by the State Government.”
94 Section 66 reads, “Adoption of children residing in institutions not registered as adoption agencies- (1) All the
institutions registered under this Act, which may not have been recognised as Specialised Adoption Agencies, shall
also ensure that all orphan or abandoned or surrendered children under their care are reported, produced and declared
legally free for adoption, by the Committee as per the provisions of section 38.
(2) All institutions referred to in sub-section (1) shall develop formal linkages with nearby Specialised Adoption
Agency and shall furnish details of the children declared legally free for adoption to that Specialised Adoption
Agency along with all relevant records in the manner as may be prescribed, for the placement of such children in
adoption.
(3) If any such institution contravenes the provisions of sub-section (1) or sub-section (2), it shall be liable to fine of
fifty thousand rupees for each instance to be imposed by the registering authority and it may also attract de-
recognition in the event of persistent flouting of such provisions.”
95 Section 61 reads, “Court procedure and penalty against payment in consideration of adoption- (1) Before issuing an
adoption order, the court shall satisfy itself that ––
(a) the adoption is for the welfare of the child;
(b) due consideration is given to the wishes of the child having regard to the age and understanding of the child; and
Page 15 of 16
4.7 ADOPTION
(c) that neither the prospective adoptive parents have given or agreed to give nor the specialised adoption agency or
the parent or guardian of the child in case of relative adoption has received or agreed to receive any payment or
reward in consideration of the adoption, except as permitted under the adoption regulations framed by the
Authority towards the adoption fees or service charge or child care corpus.
(2) The adoption proceedings shall be held in camera and the case shall be disposed of by the court within a period of
two months from the date of filing.”
96 Section 62 reads, “Additional procedural requirements and documentation- (1) The documentation and other procedural
requirements, not expressly provided in this Act with regard to the adoption of an orphan, abandoned and surrendered
child by Indian prospective adoptive parents living in India, or by non-resident Indian or overseas citizen of India or
person of Indian origin or foreigner prospective adoptive parents, shall be as per the adoption regulations framed by the
Authority.
(2) The specialised adoption agency shall ensure that the adoption case of prospective adoptive parents is disposed
of within four months from the date of receipt of application and the authorised foreign adoption agency, Authority
and State Agency shall track the progress of the adoption case and intervene wherever necessary, so as to ensure
that the time line is adhered to.”
97 Section 64 reads, “Reporting of adoption- Notwithstanding anything contained in any other law for the time being in
force, information regarding all adoption orders issued by the concerned courts, shall be forwarded to Authority on
monthly basis in the manner as provided in the adoption regulations framed by the Authority, so as to enable Authority
to maintain the data on adoption.”
1 Section 58 reads, “Procedure for adoption by Indian prospective adoptive parents living in India- (1) Indian prospective
adoptive parents living in India, irrespective of their religion, if interested to adopt an orphan or abandoned or
surrendered child, may apply for the same to a Specialised Adoption Agency, in the manner as provided in the adoption
regulations framed by the Authority.
(2) The Specialised Adoption Agency shall prepare the home study report of the prospective adoptive parents and
upon finding them eligible, will refer a child declared legally free for adoption to them along with the child study
report and medical report of the child, in the manner as provided in the adoption regulations framed by the
Authority.
(3) On the receipt of the acceptance of the child from the prospective adoptive parents along with the child study
report and medical report of the child signed by such parents, the Specialised Adoption Agency shall give the child
in pre-adoption foster care and file an application in the court for obtaining the adoption order, in the manner as
provided in the adoption regulations framed by the Authority.
(4) On the receipt of a certified copy of the court order, the Specialised Adoption Agency shall send immediately the
same to the prospective adoptive parents.
(5) The progress and wellbeing of the child in the adoptive family shall be followed up and ascertained in the manner
as provided in the adoption regulations framed by the Authority.”
2 As per Rule 2(15) of the CARA Guidelines 2015, “Home Study Report” means a report containing details of the
adoptive parents, which include social and economic status; family background; description of home; standard of living;
compatibility between spouses, and other family members; health status.
3 Rule 13.
4 Section 59 reads, “Procedure for inter-country adoption of an orphan or abandoned or surrendered child- (1) If an
orphan or abandoned or surrendered child could not be placed with an Indian or non-resident Indian prospective
adoptive parent despite the joint effort of the Specialised Adoption Agency and State Agency within sixty days from the
date the child has been declared legally free for adoption, such child shall be free for inter-country adoption:
Provided that children with physical and mental disability, siblings and children above five years of age may be given
preference over other children for such inter-country adoption, in accordance with the adoption regulations, as may be
(2) An eligible non-resident Indian or overseas citizen of India or persons of Indian origin shall be given priority in
inter-country adoption of Indian children.
(3) A non-resident Indian or overseas citizen of India, or person of Indian origin or a foreigner, who are prospective
adoptive parents living abroad, irrespective of their religion, if interested to adopt an orphan or abandoned or
surrendered child from India, may apply for the same to an authorised foreign adoption agency, or Central
Authority or a concerned Government department in their country of habitual residence, as the case may be, in the
manner as provided in the adoption regulations framed by the Authority.
(4) The authorised foreign adoption agency, or Central Authority, or a concerned Government department, as the
case may be, shall prepare the home study report of such prospective adoptive parents and upon finding them
eligible, will sponsor their application to Authority for adoption of a child from India, in the manner as provided in
the adoption regulations framed by the Authority.
Page 16 of 16
4.7 ADOPTION
(5) On the receipt of the application of such prospective adoptive parents, the Authority shall examine and if it finds
the applicants suitable, then, it will refer the application to one of the Specialised Adoption Agencies, where
children legally free for adoption are available.
(6) The Specialised Adoption Agency will match a child with such prospective adoptive parents and send the child
study report and medical report of the child to such parents, who in turn may accept the child and return the child
study and medical report duly signed by them to the said agency.
(7) On receipt of the acceptance of the child from the prospective adoptive parents, the Specialised Adoption Agency
shall file an application in the court for obtaining the adoption order, in the manner as provided in the adoption
regulations framed by the Authority.
(8) On the receipt of a certified copy of the court order, the specialised adoption agency shall send immediately the
same to Authority, State Agency and to the prospective adoptive parents, and obtain a passport for the child.
(9) The Authority shall intimate about the adoption to the immigration authorities of India and the receiving country of
the child.
(10) The prospective adoptive parents shall receive the child in person from the specialised adoption agency as soon
as the passport and visa are issued to the child.
(11) The authorised foreign adoption agency, or Central Authority, or the concerned Government department, as the
case may be, shall ensure the submission of progress reports about the child in the adoptive family and will be
responsible for making alternative arrangement in the case of any disruption, in consultation with Authority and
concerned Indian diplomatic mission, in the manner as provided in the adoption regulations framed by the
Authority.
(12) A foreigner or a person of Indian origin or an overseas citizen of India, who has habitual residence in India, if
interested to adopt a child from India, may apply to Authority for the same along with a no objection certificate from
the diplomatic mission of his country in India, for further necessary actions as provided in the adoption regulations
framed by the Authority.”
5 Rule 15 CARA Guidelines 2015.
6 Rule 3(b) of the CARA Guidelines 2015.
7 Rule 20.
8 Rule 21(4).
9 Rule 21(6).
10 Section 60 reads, “Procedure for inter-country relative adoption- (1) A relative living abroad, who intends to adopt a
child from his relative in India shall obtain an order from the court and apply for no objection certificate from Authority, in
the manner as provided in the adoption regulations framed by the Authority.
(2) The Authority shall on receipt of the order under sub-section (1) and the application from either the biological
parents or from the adoptive parents, issue no objection certificate under intimation to the immigration authority of
India and of the receiving country of the child.
(3) The adoptive parents shall, after receiving no objection certificate under sub-section (2), receive the child from the
biological parents and shall facilitate the contact of the adopted child with his siblings and biological parents from
time to time.”
End of Document
4.8 CONCLUSION
Ved Kumari
4.8 CONCLUSION
The failure of the State to secure the promised rights to children in need of care and protection cannot be attributed
to the legal framework but to the lack of will to implement the provisions of various laws passed by it for the
purpose. The JJ Act, 2015 does little to overcome that problem. Many provisions have been introduced for giving
supervisory powers to various agencies but the actual implementation has been left to be regulated by the rules to
be framed. The Act was introduced and passed by Parliament without any financial memorandum attached to it
thereby implying that government does not expect to incur any further financial liability. Provisions alone cannot
ensure care and protection. They need to have supportive mechanisms for their implementation and need
appropriate and sufficient manpower and other resources. One has still to see a movement in that direction though
the government has been quick to introduce many detailed provisions. A close examination of Chapter VIII shows
that the JJ Act, 2015 considers adoption as an important measure for the rehabilitation of children in need of care
and protection by ensuring family care to them. The time lines to be observed by the Court and the Specialised
Adoption Agency are also geared towards expeditious adoption of children. Various provisions specifying the
punitive measures for violation of the provisions for adoption of children indicates that these provisions should be
taken seriously. However, initiating penal action for such violations is not going to be an easy task as none of the
penal measures is a cognisable offence. A lot of detail has been left to be filled in by the adoption guidelines to be
framed by the Authority. Prior to the enactment of JJ Act, 2000, adoption was available only to Hindus. Efforts made
to open adoption for other communities by a secular law had not succeeded in the past but the JJ Act, 2000
introduced adoption as a measure of welfare and rehabilitation for all children dealt under its provisions. Doubts
were raised about the implications of such a move. It was criticised as back door entry for a secular law on
adoption. The then Minister of Women and Child Welfare, Smt. Maneka Gandhi brushed all those criticisms aside
by stating that adoption under the JJA is not a religious matter but a measure for the welfare and rehabilitation of
children. The JJ Act, 2000 had left many questions relating to conflict between the JJA and the HAMA, 1956 or the
consequences of adoption for the child adopted under the JJA. The JJ Act, 2015 has certainly taken a leap from
that uncertain situation even though it still has some gaps. Adoption under the JJ Act, 2015 is certainly not for
persons who do not have sufficient money to pay the adoption fee, service fee, expenses of court processes, and
for securing the future of the child by creating the child care corpus.
The manner in which abandonment of children and surrender of children has been dealt with, children of poor
parents may end up in rich people’s homes for reasons other than their desire for providing a caring home to the
child. Establishment of the full paraphernalia as provided in the Act with proper checks and supervision is of utmost
importance if adoption is not to become a profitable commercial business enterprise for Specialised Adoption
Agencies and unscrupulous persons. Inter-country adoption and the problems involved in it were first recognised by
the Supreme Court in Laxmikant Pande.11 Many adoption scandals have been reported since then. It is only hoped
that the JJ Act, 2015 will not become the means for exploitation of children by the adoptive parents in the name of
adoption.
Page 2 of 2
4.8 CONCLUSION
11 Decided on 6 February 1984, available at https://indiankanoon.org/doc/551554/, last visited on 11 September 2016.
End of Document
5 Residential Care
Ved Kumari
Residential Care
5 Residential Care
The Beijing Rules and the Convention on the Rights of the Child have specifically mentioned that institutions should
be resorted to as a measure of last resort. Institutional care becomes essential for taking care of children who do
not have parents, or whose parents are not suitable to raise them, or the parents are unable or incapacitated to take
care of their children. The Juvenile Justice Act 2015 (hereinafter referred as JJ Act, 2015) has included a range of
options for residential care of the various categories of children brought within its purview for short term and long
term care. These residential options may broadly be divided in two broad categories. The first category includes all
the “Homes”, namely, observation homes, special homes, place of safety, and children’s homes established and
run to provide institutional care either during pendency of proceedings before the Board or the Committee or
pursuant to the order of the Board or the Committee for keeping them there. Specialised Adoption Agency also
provides residential care in institutional set up with the difference that their primary focus of keeping children is to
give them in adoption. The second category includes open shelters, fit facility, and fit person who are to provide
community based residential care to them. Residential care provided at all these facilities differs from adoption and
foster care which provide family care to children while these facilities provide only temporary care on short or long
term basis providing family like atmosphere but without the family relationships with the caretakers and their
families. Children’s home, open shelter, observation home, special home, place of safety, specialised adoption
agency, and fit facility are all included within the meaning of the term “child care institutions” for the purposes of the
JJ Act, 2015.1
1 Section 2(21).
End of Document
5.1 COMPULSORY REGISTRATION OF CHILD CARE INSTITUTIONS
Ved Kumari
Residential Care
5 Residential Care

All the child care institutions are required to be compulsorily registered under the JJ Act, 2015 within six months of
the JJ Act, 2015 having been enforced.2 All institutions which are housing children in need of care and protection or
children in conflict with law are required to be registered irrespective of the fact that they are run by the government
or by a voluntary organisation or by a non-government organisation. It is also of no consequence whether these
institutions house children fully or partially. Even if such institutions are receiving no grants from either the Central
or State government, they are obligated to register themselves under the JJ Act, 2015. The institutions that got
themselves registered under the JJ Act, 2000, will be deemed to have been registered under this Act and they need
not apply for registration again on the enforcement of the JJ Act, 2015. However, all registrations are valid only for a
period of five years and must be renewed thereafter.
An institution housing children may be registered as a Children’s Home, Open Shelter, Specialised Adoption
Agency, Observation Home, Special Home, or as a Place of Safety depending on the capacity and purposes of the
institution as stated in the application made by for the purpose. The State Government must decide the application
from existing or new applicants within one month. At that stage if it decides to register the institution, it can grant
only provisional registration for a maximum period of six months brining it within the purview of the Act. Within this
period of six months, the State Government should determine the capacity of the home. If the institution is found not
to fulfill the criteria for registration within these six months, the provisional registration will be automatically
cancelled.
The Act lists two kinds of consequences if these time limits of one month for issue of provisional certificate, and six
months for certificate of final registration are not met. Sub-section (4) specifies that if certificate of provisional
registration is not issued within one month from the date of application, the receipt of application of registration will
be treated as proof of registration for the maximum period of six months. However, what is the consequence on the
applicant or the status of registration after the expiry of six months if no certificate of final registration is issued has
not been specified though sub-section (5) provides that it will have consequences for the officer who did not decide
the application within this time. Such lapse will be treated as dereliction of duty on part of the officer concerned by
their higher authority and appropriate departmental action will have to be initiated.
Getting a registration certificate is an obligation and not a right. State Government may refuse or withhold
registration. Even after an institution has been registered, its registration may be cancelled if such institution fails to
fulfill its functions of rehabilitation and reintegration services. In such an eventuality, management of the institution
will pass on to the State Government till the registration of the institution is renewed or granted. This provision will
ensure that children housed in the institution are not displaced and are cared for properly till the remedial measures
are put in place by the institution. However, no time limits have been provided for improving the conditions or
services or what will be ensured by the State Government to ensure that children are properly looked after in the
meantime.
Page 2 of 3
Once the capacity of the institution has been determined by the State Government, the institution is duty bound to
admit children up to that capacity irrespective of whether they are receiving any grant from the government or not.
Sub-section (9) of section 41 clarifies that irrespective of anything else contained in any other law for the time being
in force, the inspection committee appointed under section 54 will have the authority to inspect any institution
housing children even if such institutions are not registered under the Act.
Section 41 with its nine sub-sections should leave no room for doubt that all institutions that house children in need
of care and protection and children in conflict with law need to be compulsorily registered under the Act. Earlier a
controversy had arisen in Delhi regarding the need to register an institution set up under the Sarvashiksha Abhiyan
aimed at securing education for children which was not registered under the JJ Act, 2000. The argument of the
institution was that it was not a home established under the JJA while the counter-argument was that as this
institution housed children who squarely fell within the definition of children in need of care and protection, the
institution needed to be registered under the JJA. It should be clear after reading the detailed provisions relating to
registration of children care institutions under section 41, that the criteria for registration is whether it is housing
either of the two categories of the children under the Act. If the answer is yes, it falls within the purview of the JJ
Act, 2015 and needs to be registered.
Section 423 lays down the punishment of imprisonment up to one year or fine of not less than Rs 1 lakh or both to
the person or persons who are in-charge of the institution housing children in need of care and protection or
children in conflict with law. As it is a continuing offence, delay of 30 days in moving the application for registration
from the date of its establishment or when renewal of registration became due will be considered as a separate
offence. It would mean that if an institution failed to move an application for registration for 90 days, it will be liable
for three offences of non-registration. However, it leaves some important questions unanswered. The punishment of
imprisonment up to one year makes it a non-cognisable and bailable offence in terms of Section 86 of the Act which
means that no prosecution may be initiated without a complaint being filed before a magistrate and an order for
initiation of action procured for the purpose. Who will be filing such complaint and procuring the required court
order? Even if such order was procured and the person in-charge responsible for the institution is convicted for the
offence, whether the period of imprisonment for the three offences will run simultaneously or consequently? Further
the penal clause has prescribed the mandatory minimum amount of fine without putting a cap on the maximum limit
which may result in arbitrary exercise of such wide discretion.
2 Section 41 reads, “Registration of child care institutions- (1) Notwithstanding anything contained in any other law for the
time being in force, all institutions, whether run by a State Government or by voluntary or non-governmental
organisations, which are meant, either wholly or partially, for housing children in need of care and protection or children
in conflict with law, shall be registered under this Act in such manner as may be prescribed, within a period of six
months from the date of commencement of this Act, regardless of whether they are receiving grants from the Central
Government or, as the case may be, the State Government or not:
Provided that the institutions having valid registration under the Juvenile Justice (Care and Protection of Children) Act,
2000 on the date of commencement of this Act shall be deemed to have been registered under this Act.
(2) At the time of registration under this section, the State Government shall determine and record the capacity and
purpose of the institution and shall register the institution as a Children’s Home or open shelter or Specialised
Adoption Agency or observation home or special home or place of safety, as the case may be.
(3) On receipt of application for registration under sub-section (1), from an existing or new institution housing children
in need of care and protection or children in conflict with law, the State Government may grant provisional
registration, within one month from the date of receipt of application, for a maximum period of six months, in order
to bring such institution under the purview of this Act, and shall determine the capacity of the Home which shall be
mentioned in the registration certificate:
Provided that if the said institution does not fulfill the prescribed criteria for registration, within the period specified in
sub-section (1), the provisional registration shall stand cancelled and the provisions of sub-section (5) shall apply.
(4) If the State Government does not issue a provisional registration certificate within one month from the date of
application, the proof of receipt of application for registration shall be treated as provisional registration to run an
institution for a maximum period of six months.
(5) If the application for registration is not disposed of within six months by any officer or officers of any State
Government, it shall be regarded as dereliction of duty on their part by their higher controlling authority and
appropriate departmental proceedings shall be initiated.
Page 3 of 3
(6) The period of registration of an institution shall be five years, and it shall be subject to renewal in every five years.
(7) The State Government may, after following the procedure as may be prescribed, cancel or withhold registration,
as the case may be, of such institutions which fail to provide rehabilitation and reintegration services as specified
in section 53 and till such time that the registration of an institution is renewed or granted, the State Government
shall manage the institution.
(8) Any child care institution registered under this section shall be duty bound to admit children, subject to the capacity
of the institution, as directed by the Committee, whether they are receiving grants from the Central Government or,
as the case may be, the State Government or not.
(9) Notwithstanding anything contained in any other law for the time being in force, the inspection committee
appointed under section 54, shall have the powers to inspect any institution housing children, even if not
registered under this Act to determine whether such institution is housing children in need of care and protection.”
3 Section 42 reads, “Penalty for non-registration of child care institutions- Any person, or persons, in-charge of an
institution housing children in need of care and protection and children in conflict with law, who fails to comply with the
provisions of sub-section (1) of section 41, shall be punished with imprisonment which may extend to one year or a fine
of not less than one lakh rupees or both:
Provided that every thirty days delay in applying for registration shall be considered as a separate offence.”
End of Document
5.2 SERVICES IN INSTITUTIONS
Ved Kumari
Residential Care
5 Residential Care

Placement of children in residential care is always a temporary measure of care to prepare them for their
resettlement and re-integration in the society so that they are permanently rehabilitated and continue to lead an
honest and industrious life. In case the child has an identified family of their own restoring the child to that family is
the best measure for resettlement and reintegration provided the circumstances which brought the child in contact
with the State legal system are taken care of. Such remedial measure may include counselling of the child, parents,
relative, friends, schoolmates, and neighbours of the child. In addition, it may include financial support through
sponsorship or other support measures like provision of tutors, mentors, counselors, psychiatrist, psychologist, or
enrolment in de-addition centre, etc. In order that post-release measure becomes successful, necessary measures
need to be taken to ensure that the places where children will be received are ready to give them proper care and
protection as well as provide them with opportunities for their all-round development and growth. Section 53 (1)
provides a long list of services that must be provided by all child care institutions registered under the Act. It reads
as follows:
53. Rehabilitation and re-integration services in institutions registered under this Act and management thereof- (1)
The services that shall be provided, by the institutions registered under this Act in the process of rehabilitation and re-
integration of children, shall be in such manner as may be prescribed, which may include—
(i) basic requirements such as food, shelter, clothing and medical attention as per the prescribed standards;
(ii) equipment such as wheel-chairs, prosthetic devices, hearing aids, braille kits, or any other suitable aids and
appliances as required, for children with special needs;
(iii) appropriate education, including supplementary education, special education, and appropriate education for
children with special needs:
Provided that for children between the age of six to fourteen years, the provisions of the Right of Children to
Free and Compulsory Education Act, 2009 shall apply;
(iv) skill development;
(v) occupational therapy and life skill education;
(vi) mental health interventions, including counselling specific to the need of the child;
(vii) recreational activities including sports and cultural activities;
(viii) legal aid where required;
(ix) referral services for education, vocational training, de-addiction, treatment of diseases where required;
Page 2 of 2
(x) case management including preparation and follow up of individual care plan;
(xi) birth registration;
(xii) assistance for obtaining the proof of identity, where required; and
(xiii) any other service that may reasonably be provided in order to ensure the well-being of the child, either directly by
the State Government, registered or fit individuals or institutions or through referral services.
Perusal of this long list shows that the child care institutions must provide all the services required for their age-
specific survival and development needs including food, shelter and clothing for their physical development,
education, recreation and leisure, mental and physical health intervention, skill development, inter-personal skills,
etc. This section also takes cognisance of special needs of children with mental or physical challenges and includes
provision of all appliances, equipment, and facilities for the special children among the range of responsibilities of
the child care institutions. In addition, it provides for supporting children for securing all their entitlements like name,
identity, legal aid, access to specialised schemes for them.
Four big challenges faced by children in need of care and protection are absence of a birth certificate determining
their age, proof of identity, admission in schools, and lack of programmes and facilities needed by the child for their
development, growth and rehabilitation. All these aspects have been specifically included in this section. The child
care institutions must assist the child in procuration of birth certificate, an identity card, and admission in school,
institutions of vocational learning, de-addiction centres, etc., as per the needs of the child. Recognizing the need for
a birth certificate, the High Court of Delhi has directed that once the age of the child is determined by the Board or
the Committee, that order should be used to get a birth certificate issued in the name of the child so that their age
will not need to be determined de novo and that certificate will become the proof of their age in future.4 It was noted
in the order that “the Registrar General Birth and Death,
Government of India inter alia agreed that since the Juvenile Justice Board JJB is also manned by the Magistrate of
first class, the determination of age by JJB shall be accepted by the Registrars of Birth of Delhi or of any other State
and the birth shall be registered in the register of the place of birth and birth certificate issued.”The child care
institutions are also responsible for preparing individual child care plan and the consequent action needed for its
implementation. All children are entitled to free legal aid and the child care institutions are under an obligation to
arrange it if required. The services listed in sub-section (1) are not exhaustive of the list of services and facilities to
be provided to the child housed in the child care institutions that are responsible for the total well-being of the child
and must take every measure required to ensure it.
Section 53(2) provides that every child care institution is required to have a management committee to manage the
institution and monitor the progress of the child.5 Sub-section (3) further provides that all institutions housing
children above the age of six years will have children’s committee that may participate in activities for the safety and
well-being of children in the institution.6 Provision contained in this sub-section is different from the right of
participation recognised under the CRC. The right of participation under the CRC is about hearing the child’s views
while making decisions affecting the child. However, this sub-section is focused on allowing children to work as a
group for the welfare of all children in the institutions and not only for themselves. This kind of participation helps
equip the children to learn to work as a team, to take responsibilities, to take leadership roles, to plan and execute
plan. These are a whole range of life skills that children may learn if the children committees are encouraged in the
homes to take responsibilities suitable to their age and capacities.
4 Court on its Own Motion v Department of Women and Child, W.P. (C) 8889 of 2011, order dated 14 January 2015,
available at http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=5698&yr=2015, last visited on 9 November 2016.
5 Section 53(2) reads, “Every institution shall have a Management Committee, to be set up in a manner as may be
prescribed, to manage the institution and monitor the progress of every child.”
6 Section 53(3) reads, “The officer in-charge of every institution, housing children above six years of age, shall facilitate
setting up of children’s committees for participating in such activities as may be prescribed, for the safety and well-
being of children in the institution.”
End of Document
5.3 INSPECTION
Ved Kumari
Residential Care
5 Residential Care
5.3 INSPECTION
The JJ Act, 2015 does recognise that periodical inspections of the child care institutions are necessary to ensure
that they function in the manner as prescribed by law. For this purpose, section 547 makes provision for
appointment of inspection committees at the State and district level to visit each child care institution registered or
recognised to be fit under the JJ Act, 2015. Further details of such inspection committees like number of members,
qualifications of members, duration of their appointment, etc. have been left to be decided by the rules to be framed
under the Act but the section mandates that a team of at least three members of the inspection committee must visit
the institution or facility at least once in three months. One of the members must be a woman and one must be a
medical doctor. The inspection committee is required to submit written report of the inspection to the District Child
Protection Unit (hereafter referred as DCPU) or the State Government for further action. Within a month of
submission of such report, the DCPU should file a compliance report to the State Government. Even the State
Government has been obligated to file such a compliance report to itself meaning thereby that proper records must
be maintained of the actions taken pursuant to the report of the inspection committee.
However, it must be noted that the Juvenile Justice Board is also under an obligation to conduct monthly inspection
of residential facilities for children in conflict with law and recommend measures for improvement in quality of
services to the DCPU and the State Government.8 The Child Welfare Committees are directed to conduct two
inspection visits of residential facilities for children in need of care and protection in a month and make the
necessary recommendation for quality of service to the DCPU and the State Government.9
Reading all these sections together, it seems that there is adequate supervision of the functioning of the child care
institutions but no mechanism has been put in place for redressal of grievances if the inspection committees are not
appointed; if inspections are not held as frequently as required; or if the inspection is not done by the required
number and categories of members; or if they do not file the inspection report; or do not file it within the time limit
prescribed; or if no remedial action is taken by the DCPU and the State government. Unlike many other sections
that lay down penalty for taking actions contrary to the provisions of the Act or for not acting in the manner
prescribed, there is not even a symbolic section declaring such failures as dereliction of duty demanding
departmental action.
7 Section 54 reads, “Inspection of institutions registered under this Act- (1) The State Government shall appoint
inspection committees for the State and district, as the case may be, for all institutions registered or recognised to be fit
under this Act for such period and for such purposes, as may be prescribed.
(2) Such inspection committees shall mandatorily conduct visits to all facilities housing children in the area allocated, at
least once in three months in a team of not less than three members, of whom at least one shall be a woman and one
Page 2 of 2
5.3 INSPECTION
shall be a medical officer, and submit reports of the findings of such visits within a week of their visit, to the District
Child Protection Units or State Government, as the case may be, for further action.
(3) On the submission of the report by the inspection committee within a week of the inspection, appropriate action shall
be taken within a month by the District Child Protection Unit or the State Government and a compliance report shall be
submitted to the State Government.”
8 Section 8 (3) (j), JJ Act, 2015.
9 Section 30 (viii), JJ Act, 2015.
End of Document
5.4 INSTITUTIONAL CARE
Ved Kumari
Residential Care
5 Residential Care

It was a long time ago that it was recognized that children were adversely effected by coming in contact with adult
offenders kept in jails; and the law introduced the measure of apprenticeship for children below the age of 15 years
committing petty offences and vagabonds by the Apprentices Act 1850. In 1897, the Reformatory Schools Act was
passed providing for sending select children there instead of jails. The All India Jail Committee 1919–1920
recognised the need for segregation of children from adult offenders at all stages and recommended establishment
of separate remand homes for children. It directed that such homes be established away from jails and they must
not have high iron gates and iron bar windows so they do not look like jails or function like jails. They should not
have dormitories housing large number of children but adopt the cottage home system. All the Children Acts passed
thereafter, provided for use of jails as an exceptional measure. Since the passing of the Children Act 1960, use of
jails for housing children got prohibited. Instead three categories of homes for segregating children got introduced
for keeping them during the pendency of their proceedings before the adjudicatory bodies and pursuant to the
direction of that body after disposal of their case. Till the passing of the JJ Act, 2000, the laws in force provided for
establishment of three kinds of institutions, namely, observation home, special home and children’s home but the
observation home was meant to be used for keeping both categories of children during the pendency of their
proceedings. Children found to have committed an offence (referred to as delinquent child or juvenile) were
segregated from children found to be in need of care and protection (known as neglected children) only at the post-
decision stage and kept in the special home and children home respectively. The rationale for keeping them
together was the presumption of innocence in case of children alleged to have committed an offence.
During the various consultations held prior to the passing of the JJ Act, 2000, it was emphasized by some NGOs
working with children in need of care and protection that the children alleged to have committed an offence were
having an adverse impact on “their” children. The JJ Act, 2000 changed the earlier scheme and provided for
segregation of children in conflict with law and children in need of care and protection at both stages. It provided for
use of observation home for children in conflict with law during the pendency of proceedings and special home for
keeping them after the disposal of their case by the Board. Children in need of care and protection were to be kept
in children’s home during the pendency of proceedings as well as pursuant to the final order of the Committee. It
assumed that all children alleged to have committed an offence have bad habits and their behaviour will have
negative influence on the other group of children losing sight of the fact that the difference between the two
categories is more a technical one rather than substantive. A child produced for allegedly committing an offence
may be acquitted and the social investigation report of the child in need of care and protection may bring out many
hidden and unreported offences committed by the child. It has been well accepted that in fact, all children in conflict
with law were children in need of care and protection who were denied the required care and protection in time.
The JJ Act, 2015 has followed the same scheme of institutions as provided under the JJ Act, 2000 for institutional
care for the two categories of children covered under it. It provides for establishment of an observation home for
housing children in conflict with law during the pendency of their proceedings before the Board if that are not
released on bail, and a special home for housing children that are found to have committed an offence by the Board
and directed to be kept there. Only one institution needs to be established and run for housing children in need of
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care and protection at both the stages; during pendency of their proceedings before the Committee as well as for
keeping them after completion of the inquiry if appropriate community placement is not available or found suitable
for them. However, this scheme of segregation of children at the stage of pendency of proceedings goes against
the principle of presumption of innocence and incapacity to entertain any mala fide intention contained in section 3
of the JJ Act, 2015.
The JJ Act, 2015 provides for establishment of yet another category of institution, namely, place of safety. “Place of
safety” under the JJ Act, 2015 is a very different kind of institution compared to the place of safety as defined under
the JJ Act, 2000. It is more akin to the place of protective custody under section 16 (2) proviso of the JJ Act, 2000
where children above the age of 16 years of age could be kept pursuant to the direction of the State Government.
The categories of children who may be sent to the place of safety and the circumstances in which they may be so
directed to be kept in the place of safety under the JJA is much wider than those under the JJ Act, 2000.
5.4.1 Observation Homes
As per section 4710 of the JJ Act, 2015, an observation home has to be established by the State Government in
every district or a group of districts. The State Government may run the observation home by itself or through
voluntary or non-governmental organisations. The purpose of an observation home is to receive a child on
temporary basis and provide care and rehabilitation to the child in conflict with law during the pendency of an inquiry
under the Act. The section makes no exception regarding any group of children in conflict with law who may not be
kept in the observation home during pendency of their proceedings under the Act; the scheme of the Act requires
that 16–18 years old children alleged to be in conflict with law be kept in a place of safety and not in the observation
home.
“Care” for the purposes of an observation home should include provision of adequate food, shelter, clothing,
bedding, medical care, and facilities to keep them usefully occupied while their matter is pending before the Board.
Use of the word “rehabilitation” in this section poses question of interpretation for purposes of operationalisation. If
an institution has been given the responsibility of rehabilitation, it would suggest that the home, during the
institutionalisation of the child should take steps to develop capacities and abilities of the child for their reintegration
in society on a permanent basis. No child in an observation home is expected to stay for a period of four months as
the Board is required to dispose all cases within that period. As the Act also provides that bail should be granted to
children as a general rule, most of the children whose cases are pending before the Board are expected to be
released on bail from the observation home as soon as their parents or guardian are found and the observation
home will no more be responsible for them then onwards. Other children continuing to live in the home, if found to
have committed the offence will need to be placed in other programmes as per the provision of section 18 of the JJ
Act, 2015. If they are found not to have committed the offence, they will need to be released from the observation
home irrespective of whether they will be reintegrated and rehabilitated on release. Even if the Board declares that
such a child is a child in need of care and protection, they will have to be transferred to the children’s home and
their case then be processed by the Child Welfare Committee. The observation home will no more have care and
control of children.
All observation homes are required to be registered with the State Government as mentioned above. The conditions
and circumstances for withdrawal of registration is to be governed by the Rules framed for the purpose. Rules also
need to be framed relating to management and monitoring of observation homes, including the standards and
services to be provided by the observation homes for the rehabilitation and social reintegration of the child.
As the name suggests, observation homes are supposed to be used for observing the child in the initial period of
their stay in the government institution offering home-like atmosphere. For effective observation, sub-section (4) of
section 47 provides that children kept in the observation should be segregated by age and gender keeping in view
the physical and mental status of the child and the degree of offence committed. Use of the word “gender” and not
“sex” for the purpose of classification has wide implications. “Sex” is used to denote biological classification while
“gender” is a social construct of stereotypical images of persons belonging to a certain sex. Due to the use of the
word “gender” in the section coupled with the requirement to keep in view the mental status of the child, it is
possible to argue that classification in the homes is not limited to be done only on the basis of sex, that is female
and males but the gender identity of the child too has to be kept in mind while keeping them in an observation
home. With the recognition of the “other” in relation to transgender persons, the management of the observation
home will have a challenging time if a transgender child prefers to use “other” to declare their sexual identity and
not male or female.
While classification of children on the basis of age is well recognized and acceptable criterion, classification on the
basis of “degree of offence” is problematic. It is not clear what “degree of offence” means. Does it refer to the
Page 3 of 6
classification of offences as petty, serious, or heinous? Or does it refer to “nature” of offence? Segregation on the
basis of either stems from the presumption of commission of offence by them contrary to the constitutional principle
of presumption of innocence till proved guilty. Children placed in the observation home are only alleged to have
committed the offence and not found to have committed the offence. It would have been better to provide that the
observation home should have a reception centre where all children should be kept for an initial period of two
weeks for observation of their behaviour and attitude. After which they should be segregated by reference to factors
like aggression, timidity, possibility of causing harm to themselves or others, level of education, etiquettes, medical
condition, etc.
5.4.2 Special Homes
Section 4811 providing for establishment of special homes is drafted on lines similar to those of Section 47 of the JJ
Act, 2015 and poses similar problems of implementation and operationalisation as mentioned above, especially with
regards to segregation on the basis of gender. A special home is for keeping children in conflict with law directed to
be placed there by the Board after disposal of their proceedings before it. These special homes are to be
established in each district or group of districts. It may be run by the State Government itself or through voluntary or
non-governmental organisations. Interestingly, in comparison to section 47(1) which uses both words “care and
rehabilitation” as the purposes of the observation home, sub-section (1) of section 48 refers only “rehabilitation” as
the purpose of the special home. There can be no rehabilitation without taking care of the basic and developmental
needs of children and hence, it may be argued that provision for care of children till they are rehabilitated is to be
assumed among the purposes. However, use of two different words, i.e., “care” and “rehabilitation” when the latter
actually was not required in section 47, and absence of “care” in section 48 while it is a precondition for
“rehabilitation” presents yet another example of casual approach to drafting in the JJ Act, 2015.
It would have been better if the Act itself spelt out the range of services that a special home needs to provide for
rehabilitation of children. These will include not only provision of adequate food, shelter, clothing and medical care
for the child but also services for all round development and growth of the child required for their reintegration and
rehabilitation in society. Such services should include education and vocational training, life and inter-personal
skills, assistance in taking admission in educational and vocational training institutes outside the special home,
special coaching and tutoring arrangements within the special home, counselling, group therapy, de-addiction
support if required, periodical review of progress made by the child and readjustment of individual care plan. For the
final reintegration and rehabilitation of the child it is essential that a plan is prepared before the release of the child
to ensure that if the child is to be restored to their family, the release plan should ensure provision of any services or
support that the family may need to ensure that the child does not relapse in crime. If the child has no family to go
back to, arrangements need to be made to ensure that the child gradually learns to live by themselves in a
responsible manner. After spending long periods in the special home where they did not enjoy the freedom to do
things as they wished or take decisions, they might not have developed the ability to take small decisions required
to live an independent life. They must be supported through aftercare helping them to stand on their own feet.
However, all the details of the range of responsibilities of the special homes have been left to be provided for in the
rules to be framed by the State Governments.
5.4.3 Place of Safety
Under the JJ Act, 2000 and legislations prior to that, “place of safety” referred to a place found fit by the Board or
the Committee for keeping children temporarily while their matter was pending before it. This provision had provided
flexibility in the choice of places where a child might be kept till their cases were finally disposed of by the Board or
the Committee. If there was no space in the observation home, or none was established in the same district, or it
was not suitable keeping in mind the special needs of the child, etc., the child could be placed in a place of safety
which included services of a local person or facility. However, “place of safety” under the scheme of the JJ Act,
2015 has a completely different connotation and function. Section 2(46) defines “place of safety” to mean “any
place or institution, not being a police lockup or jail, established separately or attached to an observation home or a
special home, as the case may be, the person-in-charge of which is willing to receive and take care of the children
alleged or found to be in conflict with law, by an order of the Board or the Children’s Court, both during inquiry and
ongoing rehabilitation after having been found guilty for a period and purpose as specified in the order”. The
definition leaves no doubt that place of safety, under any circumstance cannot be a police lock up or jail. It is
assumed for the purposes of this section that the word “jail” has been used as a generic term and not in contra-
distinction from prison. While sub-section spells out what cannot be a place of safety, there is no provision clarifying
what kind of institutions can be declared as place of safety. Sub-section (3) leaves it completely to the discretion of
the State Government to prescribe under the rules which kind of places may be declared as place of safety. The
Page 4 of 6
only direction contained in sub-section (2) is that the place of safety for keeping children during the pendency of
proceedings should be separate from the place of safety for children found to have committed an offence.
It is also clear that the place of safety may be an independent institution or it may be attached to an observation
home or special home. However, reference to “willingness” of the person-in-charge to receive children creates
doubt. Does it mean that each time a child is sent to a place of safety, willingness of its in-charge will have to be
ascertained? Or does it mean that willingness of the person-in-charge of the institution should be ascertained
before declaring it or part of it as place of safety? As per section 47 and 48 of the JJA, it is only the State
Government that is obligated to establish an observation home and a special home. If such a home is run by the
State Government, the person-in-charge will be appointed by the State Government only and it is doubtful that such
a person can object to getting the institution or part of it declared as a a place of safety if the State Government
decides to do so. The question of willingness of the person-in-charge of an observation home or special home
maintained and run by a voluntary or non-governmental organisation may perhaps arise if the State Government
decides to declare it or part of it as the place of safety. However, once an institution or part of it is declared as a
place of safety, there is no question of seeking willingness of the person-in-charge as the very purpose of the place
of safety is to receive the children in conflict with law directed by the Board to be kept in a place of safety. Use of
the words “found guilty” is against the fundamental principle of use of non-stigmatizing semantics in the processes
pertaining to children contained in section 3(viii) of the JJ Act, 2015.
Section 49 of the JJ Act, 201512 directs the State Government to “set up” a place of safety compared to other
sections which direct the State Government to “establish” an observation home and special home. It seems unlikely
that “setting up” requires processes different than those required for establishing an institution. Hence, use of a
different set of words in legislation is unwarranted as such differential use of terms provides occasion for arguing for
a difference in meaning, scope and operation of the section. The section further obligates the State Government to
establish at least one place of safety in the whole State and not one in each district or group of districts as is the
case with establishment of observation homes and special homes. The provision may have been guided by the
consideration that there may not be sufficient number of children in all the districts who may need to be placed in a
place of safety. However, if only one place of safety is established in a geographically big State, it will pose the
problem of producing children before the Board or the Children’s Courts situated in a different far off district.
As per sub-section (1) the place of safety is meant for placing two categories of persons, namely, persons above
the age of 18 years; and children in conflict with law between the age of 16–18 years either alleged or found to have
committed a heinous offence. However, this provision is not in consonance with section 6, proviso to section
18(1)(g) and section 19(3) of the JJ Act, 2015. Persons apprehended after attaining the age of 18 years claiming to
be child on the date of commission of offence are required to be kept in a place of safety during the pendency of
proceedings in terms of section 6(2) of the JJ Act, 2015 if not released on bail. Under proviso to section 18(1)(g) the
Board may send any child irrespective of their age or the offence committed, to a place of safety if “it would not be
in the child’s interest, or in the interest of other children housed in a special home” to keep the child in the special
home. Section 19(3) provides that children tried by the children’s court as an adult if found to have committed an
offence have to be necessarily sent to a place of safety till they attain the age of 21 years of age. The net result is
that technically 16–18 years old children alleged to have committed a heinous offence may also be sharing space
with persons much older than them as there is no upper age limit for persons falling within the ambit of section 6
and a child of seven years of age if found to have committed an offence may be staying with persons till they attain
the age of 21 years of age. In such a set up young children will become very vulnerable to sexual and physical
abuse by the older persons and these provisions are contradictory to the fundamental principles of best interest and
safety of children.
Section 49 provides no details about the facilities that must be provided to children and persons kept in the place of
safety either during pendency of their proceedings or when directed to be sent there after disposal of the case and
leaves it to be spelt out in the rules to be framed by the State Government. Proviso to section 19(3) though spells
out that reformatory services must be provided by the place of safety and these include educational services, skill
development, and alternative therapy such as counselling, behaviour modification therapy, and psychiatric support.
Further details regarding their operationalisation have been left to be filled by the Rules. It is noteworthy though that
the special homes are also expected to discharge the same functions. It is ironical that the Act provides for
establishing place of safety for children for whom the ordinary juvenile justice mechanism is not found suitable but
the place of safety where they will be kept is not directed to provide anything more than what is to be provided by
the special home. With this kind of lacunae it will not come as a surprise when the place of safety will be just a room
cordoned off from the rest of the special home without any facilities to be used just as a waiting area before the
children sent there are transferred to jail without any substantive efforts or facilities for their reformation or
rehabilitation. Absence of these facilities has a direct impact on the child placed there whose progress is to be
Page 5 of 6
ascertained when they attain the age of 21 years to decide if they will be released or sent to jail. For the failure of
the place of safety to provide the required facilities for bringing about attitudinal changes or personality
development, the child will end up in prison to be lost to society forever.
5.4.4 Children’s Home
Section 50 of the JJ Act, 201513 provides for establishment of Children’s Home in every district or group of districts
for placement of children in need of care and protection during the pendency of the proceedings before the
Committee as well as after disposal of their case if the Committee directs so. The Children’s Home may be
established or maintained by the State Government itself or through voluntary or non-governmental organisations.
All such homes must be registered under the JJ Act, 2000.
The purpose of these homes is to provide for care, treatment, education, training, development and rehabilitation of
children sent there. The word care should include provision of adequate and nutritious food, appropriate clothing
and bedding, and sufficient space for living as per standards prescribed for the healthy growth of children.
Treatment refers to not only medical treatment but bringing about behavioural and attitudinal changes for their all-
round development and growth. Arrangements for their education must be made both within and outside the
institution at par with other children in the community and as per their abilities and educational level. The
educational arrangements within the home should be geared at supporting children’s abilities to compete at par with
children studying in community based schools and should not be an alternative to community based schools. No
certificates issued to the child should indicate child’s residence in the Children’s Home. Inclusion of training among
the obligations of the Children’s Home would require that it should arrange opportunity for children to choose from a
range of vocational trainings as per the aptitude and abilities of the child. The Children’s Homes must focus on
vocational trainings that will enable the child to earn a livelihood in the modern world and not continue with the
antiquated trainings like candle making, cane work, and tailoring which have been offered in many children’s homes
since the time they were established first in the mid 20th century. With computerisation of vehicles the traditional
mechanic’s training has become outdated and must be updated to enable them to repair the computerised vehicles.
The State is obligated to make rules for supervision and management of the children’s home to ensure that each
institution is able to discharge its obligations and responsibilities under the individual care plan for each child
housed there.
Some of the children’s homes may be designated as a home fit for children with disabilities providing the required
care to such children as per their requirements.
10 Section 47 reads, “Observation Homes- (1) The State Government shall establish and maintain in every district or a
group of districts, either by itself, or through voluntary or non-governmental organisations, observation homes, which
shall be registered under section 41 of this Act, for temporary reception, care and rehabilitation of any child alleged to
be in conflict with law, during the pendency of any inquiry under this Act.
(2) Where the State Government is of the opinion that any registered institution other than a home established or
maintained under sub-section (1), is fit for the temporary reception of such child alleged to be in conflict with law
during the pendency of any inquiry under this Act, it may register such institution as an observation home for the
purposes of this Act.
(3) The State Government may, by rules made under this Act, provide for the management and monitoring of
observation homes, including the standards and various types of services to be provided by them for rehabilitation
and social integration of a child alleged to be in conflict with law and the circumstances under which, and the
manner in which, the registration of an observation home may be granted or withdrawn.
(4) Every child alleged to be in conflict with law who is not placed under the charge of parent or guardian and is sent
to an observation home shall be segregated according to the child’s age and gender, after giving due
consideration to physical and mental status of the child and degree of the offence committed.”
11 Section 48 reads, “Special homes- (1) The State Government may establish and maintain either by itself or through
voluntary or non-governmental organisations, special homes, which shall be registered as such, in the manner as may
be prescribed, in every district or a group of districts, as may be required for rehabilitation of those children in conflict
with law who are found to have committed an offence and who are placed there by an order of the Juvenile Justice
Board made under section 18.
(2) The State Government may, by rules, provide for the management and monitoring of special homes, including the
standards and various types of services to be provided by them which are necessary for social re-integration of a
child, and the circumstances under which, and the manner in which, the registration of a special home may be
granted or withdrawn.
Page 6 of 6
(3) The rules made under sub-section (2) may also provide for the segregation and separation of children found to be
in conflict with law on the basis of age, gender, the nature of offence committed by them and the child’s mental
and physical status.”
12 Section 49 reads, Place of safety- (1) The State Government shall set up at least one place of safety in a State
registered under section 41, so as to place a person above the age of eighteen years or child in conflict with law, who is
between the age of sixteen to eighteen years and is accused of or convicted for committing a heinous offence.
(2) Every place of safety shall have separate arrangement and facilities for stay of such children or persons during the
process of inquiry and children or persons convicted of committing an offence.
(3) The State Government may, by rules, prescribe the types of places that can be designated as place of safety
under sub-section (1) and the facilities and services that may be provided therein.”
13 Section 50 reads, “Children’s Home- (1) The State Government may establish and maintain, in every district or group of
districts, either by itself or through voluntary or non-governmental organisations, Children’s Homes, which shall be
registered as such, for the placement of children in need of care and protection for their care, treatment, education,
training, development and rehabilitation.
(2) The State Government shall designate any Children’s Home as a home fit for children with special needs
delivering specialised services, depending on requirement.
(3) The State Government may, by rules, provide for the monitoring and management of Children’s Homes including
the standards and the nature of services to be provided by them, based on individual care plans for each child.”
End of Document
5.5 COMMUNITY BASED RESIDENTIAL CARE
Ved Kumari
Residential Care
5 Residential Care

The Beijing Rules and the Convention on the Rights of the Child have clearly accepted the principle that institutions
should be used as a measure of last resort and only for the duration until a suitable community based care is
arranged for the child. Following that directive, the JJ Act, 2015 has included a range of community based care
options for children which needs to be distinct from the residential care provided by the institutions mentioned in the
previous part.
5.5.1 Fit Facility
Section 2(27) defines14 the fit facility as the facility run by the government or by a voluntary or non-governmental
organisation that is ready to take temporary care of a child for a specific purpose and section 51 of the Act15 gives
the power to the Board or the Committee to recognise such facility after due inquiry regarding the suitability of the
facility to take care of the child. It is important to distinguish a fit facility from the residential homes established
under the Act. While the residential homes are recognised by the State Government, a fit facility is recognised so by
the Board or the Committee. The residential homes have to provide long term all round care to the child while a fit
facility takes only temporary responsibility of the child. The residential homes are obligated to take care of all
aspects of a child’s growth and development, a fit facility is to be used for a specific purpose. For example, a child
having the problem of drug addiction may be referred to a de-addiction centre for this specific purpose till the time
as required to deal with this problem. Another child having infectious disease may require quarantining in a
specialised hospital for a limited period. In all such cases, it is the Board or the Committee which has to decide
which will be the fit facility where the child should be sent for the limited purpose of dealing with the specific problem
for the period needed to deal with that situation. The Board or the Committee may keep a list ready on a permanent
basis to be used as and when required, or may recognise one as and when the need arises on individual case to
case basis. All such facilities recognised as such may be de-recognised by the Board or the Committee at any time
by recording reasons in writing. Such reasons may include failure to provide required care to the child, or becoming
unsuitable for keeping children there for any reason, or not functioning in the best interest of the child, or no more
suitable for keeping children there, etc.
Section 9216 makes specific reference to fit facility where a child suffering from a disease requiring long term
treatment or having other treatable physical or mental complaint may be placed by the Board or the Committee.
These children may be placed there for such period as may be required for treatment. Children suffering from
mental retardation do not fall within this category as that is a mental condition that does not respond to medical
treatment.
5.5.2 Fit Person
Fit person is defined in section 2(28)17 and the power to recognise a person as a fit person is vested in the Board
and the Court by section 52 of the JJ Act, 2015.18 It requires the Board or the Committee to recognise a fit person
after due verification of credential. Any person having any background of child abuse or exploitation must never be
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recognised as fit person. Such person may be derecognised at any time by the Board or Committee for reasons to
be recorded in writing. Such reasons must necessarily be linked to the care, protection and welfare of the child as in
case of withdrawal of recognition of a fit facility.
A fit person as distinguished from a fit facility is an individual and not a facility or an institution. Like the fit facility
such a person also provides temporary care but it is not only for a specific purpose but for all round care, protection
and treatment of the child for the specified period. Children in need of individualised care should be kept in the care
of a fit person until suitable long term arrangements are made for them. Many years ago a child of 10–12 years of
age belonging to Andhra Pradesh was rescued in Delhi from the custody of a 60 years old foreigner to whom she
was married by her parents for money. She did not speak the local language and needed personal care to recover
from the trauma. Such children will do better when kept in the care of a fit person rather than be sent to a children’s
home.
5.5.3 Foster Care
Foster care is defined in section 2(29)19 of the JJ Act, 2015 as alternate care provided in the domestic environment
of a family other than one’s biological family. As per section 2(30) the District Child Protection Unit is responsible for
identifying and declaring families that are suitable to be used as foster family by the Committee. It may be noted
that under the scheme of the Act, foster care is to be used by the Committee thereby meaning that it is to be used
for children in need of care and protection, and unless a child in conflict with law is declared also as a child in need
of care and protection, it is not among the measures that may be used by the Board for taking care of a child in
conflict with law. Group foster care may also be used to foster a sense of belonging and identity through family like
and community based solutions for children having no family.
Section 44 contains detailed provisions regarding placing a child in foster care in an unrelated suitable family other
than child’s biological or adoptive family. If a child is placed in the care of a grandparent or paternal or maternal
uncle or aunt, it is known as kinship care and may not be included within the meaning of foster care within the
meaning given to foster care in the JJ Act, 2015. Such placement is more appropriately called kinship care.
Section 4420 contains further detailed provision regarding foster care under the Act. Sub-section (1) of section 44
provides that the Committee may order to place a child in foster care for their care and protection. The Committee
should carefully choose the foster family based on family’s ability, intent, capacity and prior experience of taking
care of children as per sub-section (2) of section 44. It is reasonable to ensure that the family inclined to take a child
in foster care must be doing so for the purpose of providing opportunity to the child for all round development and
growth and not intend to take the child in their family for some other purpose like house help or looking after the
elderly or disabled persons in the family. Siblings should be placed in one family unless it is against their own
interest.
Sub-section (4) of section 44 provides for inspection of children in foster care by the District Child Protection Unit
after following the procedure to be prescribed to ensure that children in foster care are properly looked after. This
sub-section further directs the State Government to provide monthly funding for such foster care through District
Child Protection Unit which is authorized to conduct the inspection after following the prescribed procedure to
ensure well-being of children so placed in foster care. However, the sub-section has not been properly worded. If
the word “and” is read before the last phrase “for inspection to ensure wellbeing of children” it will become clear that
funding is to be provided both for foster care as well as for conducting inspection. As section 45 dealing with
sponsorship does not make any reference to foster family, the true intent of the subsection has to provide funding to
the foster family as some financial support will encourage more families to come forward to take children in foster
care who may be otherwise suitable to take care of children but do not have the financial ability to do so. The foster
family is responsible for providing education, health and nutrition to the child and to ensure overall well-being of the
child.
The DCPU is further obligated to conduct inspection of the foster family every month to check the well-being of the
child in the foster family and necessary funds must be provided for this purpose. If the foster family is found not to
be taking proper care of the child, the matter should be reported to the Committee which shall then decide if the
child should be removed from that foster family and placed in another foster family.
The State Government has been authorised by sub-section (7) of section 44 to make rules laying down the
procedure, criteria and the manner in which foster care service is to be provided to children.
Foster care may be of two kinds – short term and long term. A child may be given in short term foster care in two
circumstances. First, a child may be placed in short term foster care with the prospective adoptive parents, pending
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finalisation of adoption. Pre-adoption foster care provides the opportunity to the child and prospective adoptive
parents to bond while the process for adoption is going on. Second, children may be placed in short term foster
care if their parents have been found to be unfit or incapable to take care of the child. In such cases, sub-section (5)
section 44 provides that the parents may be allowed to visit their children at regular intervals. If the parents are not
to be permitted to visit their children in foster care, the Committee must record its reasons in writing for such
prohibition. Eventually it is expected that these children will return to their own families when the Committee
declares the parents to be fit to take care of the child.
The possibility of placing a child in long term foster care should be explored only when it is considered that the child
is not likely to go in for adoption. Section 44(9) directs that if a child is considered to be adoptable, such child should
not be given in foster care. This provision should not be read as prohibiting placing a child in temporary foster care
of the prospective adoptive parents. This prohibition is to prevent trauma of separation to the child who may
develop bonds of love and affection with the foster family if that family is not going to be its adoptive family. Most
adoptive parents want healthy infants for adoption. Hence, the chances of adoption of older children or children with
disabilities are few. The Committee may explore the possibility of placing such children in long term foster care in
families.
5.5.4 Open Shelter
Open Shelters are yet another kind of community based residential care that may be provided to children on
temporary basis. As per section 43,21 the open shelter may be established and maintained by the State
Government or it may maintain it through voluntary or non-governmental organisations. In all cases, the open
shelter is also required to be registered like any other institution providing residential care to children under the Act.
Any child in need of residential care may walk in the open shelter and spend the night there with the freedom to
walk out the next day morning. There is no requirement that such a child should be produced before the Committee
for securing their release or for keeping them longer in the open shelter. The idea is that the facilities provided by
the open shelter will persuade them to live in the shelter away from abuse and the life on streets. The primary
objectives of open shelters as stated in section 43 are to protect children from abuse and to wean or keep children
away from a life on the streets.
The open shelters are required to maintain records of children so availing the facilities of the open shelter. These
records need to be sent to the District Child Protection Unit and the Committee every month.
14 For more details, see, Chapter 2

15 Section 51 reads, “Fit facility- (1) The Board or the Committee shall recognise a facility being run by a Governmental
organisation or a voluntary or non-governmental organisation registered under any law for the time being in force to be
fit to temporarily take the responsibility of a child for a specific purpose after due inquiry regarding the suitability of the
facility and the organisation to take care of the child in such manner as may be prescribed.
(2) The Board or the Committee may withdraw the recognition under sub-section (1) for reasons to be recorded in
writing.”
16 Section 92 reads, “Placement of a child suffering from disease requiring prolonged medical treatment in an approved
place- When a child, who has been brought before the Committee or the Board, is found to be suffering from a disease
requiring prolonged medical treatment or physical or mental complaint that will respond to treatment, the Committee or
the Board, as the case may be, may send the child to any place recognised as a fit facility as prescribed for such period
as it may think necessary for the required treatment.”
18 Section 52 reads, “Fit person- (1) The Board or the Committee shall, after due verification of credentials, recognise any
person fit to temporarily receive a child for care, protection and treatment of such child for a specified period and in the
manner as may be prescribed.
(2) The Board or Committee, as the case may be, may withdraw the recognition granted under sub-section (1) for
reasons to be recorded in writing.”
20 Section 44 reads, “Foster care- (1) The children in need of care and protection may be placed in foster care, including
group foster care for their care and protection through orders of the Committee, after following the procedure as may be
prescribed in this regard, in a family which does not include the child’s biological or adoptive parents or in an unrelated
family recognised as suitable for the purpose by the State Government, for a short or extended period of time.
Page 4 of 4
(2) The selection of the foster family shall be based on family’s ability, intent, capacity and prior experience of taking
care of children.
(3) All efforts shall be made to keep siblings together in foster families, unless it is in their best interest not to be kept
together.
(4) The State Government, after taking into account the number of children, shall provide monthly funding for such
foster care through District Child Protection Unit after following the procedure, as may be prescribed, for inspection
to ensure wellbeing of the children.
(5) In cases where children have been placed in foster care for the reason that their parents have been found to be
unfit or incapacitated by the Committee, the child’s parents may visit the child in the foster family at regular
intervals, unless the Committee feels that such visits are not in the best interest of the child, for reasons to be
recorded therefore; and eventually, the child may return to the parent’s homes once the parents are determined by
the Committee to be fit to take care of the child.
(6) The foster family shall be responsible for providing education, health and nutrition to the child and shall ensure the
overall wellbeing of the child in such manner, as may be prescribed.
(7) The State Government may make rules for the purpose of defining the procedure, criteria and the manner in which
foster care services shall be provided for children.
(8) The inspection of foster families shall be conducted every month by the Committee in the form as may be
prescribed to check the well-being of the child and whenever a foster family is found lacking in taking care of the
child, the child shall be removed from that foster family and shifted to another foster family as the Committee may
deem fit.
(9) No child regarded as adoptable by the Committee shall be given for long-term foster care.”
21 Section 43 reads, “Open shelter- (1) The State Government may establish and maintain, by itself or through voluntary
or non-governmental organisations, as many open shelters as may be required, and such open shelters shall be
registered as such, in the manner as may be prescribed.
(2) The open shelters referred to in sub-section (1) shall function as a community based facility for children in need of
residential support, on short term basis, with the objective of protecting them from abuse or weaning them, or
keeping them, away from a life on the streets.
(3) The open shelters shall send every month information, in the manner as may be prescribed, regarding children
availing the services of the shelter, to the District Child Protection Unit and the Committee.”
End of Document
5.6 OBJECTIVES OF INSTITUTIONS FOR CHILDREN
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5 Residential Care

All the residential institutions have the responsibility of taking care of the child to ensure their all-round development
and growth. However, ultimately the child has to return to society and become an integral part of it. Chapter VII of
the JJ Act, 2015 contains provisions focused on rehabilitation and social reintegration of children back in society.
Section 39 of the JJ Act, 2015 is titled “restoration of child in need of care and protection” but it contains provisions
for restoration of both categories of children, namely, children in need of care and protection and children in conflict
with law. It reads as follows:
39. Restoration of child in need of care and protection- (1) The process of rehabilitation and social integration of
children under this Act shall be undertaken, based on the individual care plan of the child, preferably through family based
care such as by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster care:
Provided that all efforts shall be made to keep siblings placed in institutional or non-institutional care, together, unless it is in
their best interest not to be kept together.
(2) For children in conflict with law the process of rehabilitation and social integration shall be undertaken in the observation
homes, if the child is not released on bail or in special homes or place of safety or fit facility or with a fit person, if placed
there by the order of the Board.
(3) The children in need of care and protection who are not placed in families for any reason may be placed in an institution
registered for such children under this Act or with a fit person or a fit facility, on a temporary or long-term basis, and the
process of rehabilitation and social integration shall be undertaken wherever the child is so placed.
(4) The Children in need of care and protection who are leaving institutional care or children in conflict with law leaving
special homes or place of safety on attaining 18 years of age, may be provided financial support as specified in section 46,
to help them to re-integrate into the mainstream of the society.
A quick reading of the Section makes it clear that various measures need to be taken at all stages of proceedings
relating to child to ensure that the child is rehabilitated and reintegrated in society. All efforts need to be made
through individual care plan for restoring the child to their own parents or giving them in the care of guardian or for
placement of the child in a family like setting through adoption or foster care. This placement may be supported with
sponsorship. An important direction has been included in the proviso to section 39 (1) that all efforts must be made
that siblings are not separated by their placement in institutional or non-institutional care. This direction poses a big
challenge to the manner the State has continued to establish all its residential institutions segregating children
based on sex and age of the child. If siblings of different sex are to be kept together, the State will have to establish
and maintain institutions on the pattern of SOS Children’s Village which keeps children of all sexes and age in a
family headed by a mother, and allows them to grow as sisters and brothers.
Page 2 of 3
In relation to children in conflict with law, the Section clearly states that the process of rehabilitation and social
integration has to begin from the stage of placement of the child in the observation home if the child is not released
on bail and has to continue through their placement in the special home, or a place of safety, or a fit facility, or with
a fit person.
For the children in need of care and protection who are not placed in their own families or given in foster care but
are placed in an institution, or with a fit person, or in a fit facility, the process of rehabilitation and social reintegration
has to be undertaken by the person under whose care the child is placed.
This Section also provides that whenever the child in need of care and protection or the child in conflict with law
leaves the residential care provided by an institution, they may be provided financial support as specified in section
46 for helping them to reintegrate into the mainstream of the society. This provision of financial aid should be read
along with the definition of aftercare given in section 2 (5) of the Act and it includes “provision of support, financial or
otherwise” to children between the age of 18 and 21 years leaving residential care. A child leaving the residential
care may be in need of references, testimonials, certificates, etc., in addition to just financial aid in order to find a
job or place of residence, or setting up a small business.
Section 40 of the JJ Act, 2015 clearly states that “restoration and protection of a child shall be the prime objective of
any Children’s Home, Specialised Adoption Agency or open shelter.”22 This sub-section leaves out many other
residential institutions like the special home, fit person, fit facility, place of safety, observation home. Explanation
attached to this section clarifies that “restoration and protection of a child” means restoration to—
(a) parents;
(b) adoptive parents;
(c) foster parents;
(d) guardian; or
(e) fit person.”
The word “restoration” in the ordinary parlance means the action of returning something to a former owner, place or
condition. However, the word has been used in the sense of placement as well as restoration when understood in
the light of the explanation. When a child is placed in the care of a fit person or foster parents, or given in adoption it
does not amount to restoration as understood ordinarily. Even when the child is placed with a guardian other than
natural parents, it will not amount to restoration in the usual sense unless the child was already with the guardian
before the proceeding under the JJ Act, 2015 commenced. The only situation of restoration is when the child is
returned to the care of their parents. Reading the Section as a whole it becomes clear that the final aim of
institutionalisation of children in need of care and protection is to finally place them in family either of their own or a
familial set up provided by the adoptive parents, foster parent, or a guardian. If that is the final objective of
institutions, all institutions must function with the help of social workers who may help restoring the child to their own
parents or who may help identify suitable family or person where the child may be placed for long term care.
Exclusion of Special Homes and Observation Homes from this section indicates that it is assumed that children in
need of care and protection would have their own families to take care of them and in case, they have none, the
Board will refer them to the Committee for appropriate order for their restoration and protection after declaring them
to be children in need of care and protection. A fit facility is to be used only for a specific purpose and hence, need
not focus on ultimate reintegration and rehabilitation of the child placed under its temporary care.
Section 4023 further provides that the Child Welfare Committee should examine the suitability of the parent,
guardian and fit person for placing the child with them and also give appropriate directions to them for taking care of
the child.

23 Section 40 reads, “Restoration of Child in Need of Care and Protection. (1) The restoration and protection of a child
shall be the prime objective of any Children’s Home, Specialised Adoption Agency or open shelter.
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(2) The Children’s Home, Specialised Adoption Agency or an open shelter, as the case may be, shall take such steps
as are considered necessary for the restoration and protection of a child deprived of his family environment
temporarily or permanently where such child is under their care and protection.
(3) The Committee shall have the powers to restore any child in need of care and protection to his parents, guardian
or fit person, as the case may be, after determining the suitability of the parents or guardian or fit person to take
care of the child, and give them suitable directions.
Explanation.—For the purposes of this section, “restoration and protection of a child” means restoration to—
(a) parents;
(b) adoptive parents;
(c) foster parents;
(d) guardian; or
(e) fit person.”
End of Document
5.7 SPONSORSHIP
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5 Residential Care
5.7 SPONSORSHIP
As family placement has been conceived as the primary mode of rehabilitation and social reintegration of children; it
is essential that all families who are willing to take care of children and have the aptitude for it should be financially
supported to look after the child providing opportunities for their all-round development and growth. Section 4524
directs the State to make rules for regulating various programmes for sponsorship of children. It recognises that
sponsorship may not be only financial but it may be programme based also. It further recognises that a child may
be sponsored by someone on individual basis also, like donation made for the educational expenses of a specified
child by a person. Sponsorship may be secured for a group of children or it may be arranged for an individual or a
group of persons, for example, students of a college doing fund raising to support a charitable institute housing
children. Sponsorship programmes may involve a whole community to support the cause of some vulnerable
groups like child victims of natural calamity or children of displaced persons due to communal riots or civil unrest.
Sub-section (2) of the Section provides a list of persons or situations in which they may be supported through any
sponsorship programme and these include children whose mother is widowed, divorced, or abandoned by their
family, orphan children or children living with extended family, children whose parents are suffering from life
threatening disease, or children whose parents are incapacitated due to accident and are unable to take care of
them financially or physically. It must be noted that this list is inclusive and therefore, only illustrative of the
situations in which children may be supported through sponsorship programmes. For example, there is nothing in
this Section that will prevent provision of a sponsorship programme for a child whose parent became incapacitated
to take care of them due to mental illness or whose widower father is not capable of looking after the child.
The duration of the sponsorship is to be prescribed under rules but on the ground it must be commensurate with the
requirement of each child and their circumstances. No hard and fast rule may be made to limit the duration of a
sponsorship programme for a child. Sub-section (4) has made it clear that the sponsorship programmes may
provide supplementary support to the families, children’s homes and to special homes to meet medical, nutritional,
educational and other needs of the children. It is especially noteworthy that sponsorship programme need not focus
only on securing basic need of food, shelter, and clothing of children but may be focused on “improving their quality
of life.”
24 Section 45 reads, “Sponsorship- (1) The State Government shall make rules for the purpose of undertaking various
programmes of sponsorship of children, such as individual to individual sponsorship, group sponsorship or community
sponsorship.
(2) The criteria for sponsorship shall include—
(3) where mother is a widow or divorced or abandoned by family;
(ii) where children are orphan and are living with the extended family;
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5.7 SPONSORSHIP
(iii) where parents are victims of life threatening disease;

(iv) where parents are incapacitated due to accident and unable to take care of children both financially and physically.
(3) The duration of sponsorship shall be such as may be prescribed.
(4) The sponsorship programme may provide supplementary support to families, to Children’s Homes and to special
homes to meet medical, nutritional, educational and other needs of the children, with a view to improving their
quality of life.”
End of Document
5.8 AFTERCARE
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5 Residential Care
5.8 AFTERCARE
Children who grow up in institutional care for a long period of time need various kinds of support on leaving the
institutions and it is integral for their rehabilitation and social re-integration. It should be provided to all children who
were not restored to their parents or given in adoption. In other words, all children who are not growing up in their
own families either natural or adoptive, should be given aftercare. A child placed in the care of a fit person, foster
care, or with a foster family may need after care as much a child growing up in a child care institution. A fit person
and a foster family are responsible to take care of the child till the age of 18 years, and he may need to leave such
care on attaining the age of 18 years. These young persons may also need aftercare like the others who leave
other residential facilities.
The scope of aftercare under the JJ Act, 2015 needs to be delineated by reference to the definition of aftercare and
section 46 of the Act. The two provisions differ from each other in some crucial respects. Under section 2(5),
“Aftercare” means “making provision of support, financial or otherwise, to persons, who have completed the age of
18 years but have not completed the age of 21 years, and have left any institutional care to join the mainstream of
the society.” On the other hand, section 46 provides that “Any child leaving a child care institution on completion of
18 years of age may be provided with financial support in order to facilitate child’s re-integration into the mainstream
of the society in the manner as may be prescribed.”
It is clear in the definition that aftercare is not limited to provision of only financial support but extends to other
support. For example, a young person may need help in getting admission in higher or continuing education or
vocational training, renting a house, psychological support, re-bonding with family, etc. All these aspects are
included in the use of “other” in the definition. Even though the word “other” is missing in section 46, it cannot be
seen as limiting the scope of aftercare under the Act only to provision of financial support as it only enables
provisions of financial support leaving other matters to be prescribed in the rules. Given the overall objective of
rehabilitation of children, all other support needed by the young person on leaving institutional care must be
provided for in the rules.
It may also be noted that the definition section refers to provision of aftercare for a child “leaving institutional care”
but section 46 uses the phrase “leaving a child care institution”. While institutional care has not been defined
anywhere in the Act, a child care institution means “children home, open shelter, observation home, special home,
place of safety, Specialised Adoption Agency and a fit facility recognised under this Act for providing care and
protection to children, who are in need of such services”.25 Technically speaking, section 46 read with the definition
of child care institutions may be interpreted to mean that aftercare may not be provided to children who may be
leaving the care of a fit person or a foster family. However, such interpretation will be against the principle of best
interest of the child as all children who have not been placed in family care, need support in joining the mainstream
of society. Institutional care as used in the definition may be understood in contradistinction to family care entitling
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5.8 AFTERCARE
all children to aftercare who have not already been rehabilitated and reintegrated in their own families or adoptive
families.
The definition clause states that aftercare is to be given only if the child leaves the institutional care after attaining
the age of 18 years but before completing the age of 21 years. No upper age limit has been prescribed in section
46. Reading the two clauses together, it is clear that the Act makes no provision for aftercare in case of children
who were tried as adults and sent to the place of safety for having committed a heinous offence and are released
after attaining the age of 21 years. This should not pose a problem in their rehabilitation as they are to be released
under the care of a monitoring agency which should provide the necessary support to such persons.
Further aspects like duration of aftercare, or the quantum of financial support, etc., have been left to be further
provided for in the Rules to be framed for the purpose.
25 Section 2(22).
End of Document
5.9 MISCELLANEOUS
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5 Residential Care
5.9 MISCELLANEOUS
5.9.1 Transfer of Children
Sections 93, 95 and 96 deal with transfer of children from one institution or place to another institution or place.
Three different situations are covered by these three sections in which a child may need to be transferred from an
institution. First deals with transfer due to the special needs due to mental illness, alcohol or drug addiction, second
provides for transfer to hometown and third for transfer from one institution to another.
Section 93 deals with the situation of the mental state of the child due to which they may need to be transferred. It
provides26 that if the Committee or the Board is of the view that a child placed in any institution under the Act is
mentally ill, or addicted to alcohol or drugs which have led to behavioural changes in the child, such child may be
directed to be removed to a psychiatric hospital or psychiatric nursing home in accordance with the provision of the
Mental Health Act and rules framed under it. Sub-section (2) of section 93 makes further provision for children
suffering from mental illness or addicted to drugs who are discharged from the psychiatric hospital or nursing home
but are directed to be kept further for inpatient treatment. In such instances, the child is to be kept in an Integrated
Rehabilitation Centre for Addicts or similar centres maintained by the State Government for mentally ill persons and
person addicted to any narcotic drug or psychotropic substance. This section assumes that all States have these
facilities in place and that they are suitable for keeping children. However, the Section is silent on the need of
segregating children from adults kept in these institutions. The phrases “mentally ill person”, “psychiatric hospital” or
“psychiatric nursing home” have the same meaning as provided under the Mental Health Act 1987. The
Government is empowered to establish Centres for identification, treatment and rehabilitation of drug addicts by
section 71 of the Narcotic Drugs and Psychotropic Substances Act 1985 and the same are run by many voluntary
or non-governmental organisations under the supervision of National Institute of Social Defence.27 The Central
Sector Scheme of Assistance for Prevention of Alcoholism and Substance (Drugs) Abuse and for Social Defence
Services framed by the Central Government in the Ministry of Social Justice and Empowerment provides for
establishment of Integrated Rehabilitation Centre for Addicts. Society for Promotion of Youth and Masses has been
running such Centres for many years in Delhi.28 However, more details about such Centres in each State are not
easily available.
Section 9529 lays down directions for transfer of children who belong to a place outside the jurisdiction of the Board
or the Committee. Both categories of children, i.e., children in conflict with law as well as children in need of care
and protection may be transferred. While children in conflict with law may be transferred by the Board only after
completion of inquiry in relation to them pending before it and after passing the final order in the case, the child in
need of care and protection before the Committee may be transferred by it at any stage. The child may be
transferred to the Board or the Committee within the State or outside the State. In case of transferring the child
outside the State, the child has to be handed over to the Board or the Committee of the home district or the Board
or the Committee in the Capital city of the Home State. However, the words “if convenient” included in the second
proviso to sub-section (1) leave one wondering what is the rationale for the inclusion of these words? What will
constitute convenience or inconvenience? Is the child to be transferred only if the escorts can be arranged easily? If
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5.9 MISCELLANEOUS
the basic principle is that children should stay at or near their native place, there was no need to include these
words and each Board and the Committee should have been put under the compulsory responsibility of transferring
the child to their native place or at least the native State. India has vast diversity in culture and languages and a
child may be left isolated from all others unless placed in an institution having the milieu familiar to the child.
The rationale for transfer in all cases is “the best interest of the child”. Hence, if the home district or State are hostile
to the child, such a child must not be transferred to that place. In all cases, the Board or the Committee are required
to hold due consultations with the Board or the Committee of the home district or State in order to determine that
such transfer will be in the best interest of the child. The transfers should be done as soon as possible after such
determination and the child should be sent with all the records of the case following the procedure prescribed in the
Rules.
It is an established practice that all children must be escorted while being transferred from one place to another but
it has been a contentious issue who should arrange such escorts. Long delays used to happen as police were
considered as the sole agency to provide escorts and many a times a policeman was not available for such duty.
Sub-section (2) of section 95 clearly states that pursuant to the order by the Board or the Committee the Special
Juvenile Police Unit has to provide an escort within 15 days of such order. However, the Special Juvenile Police
Unit should inform the Board or the Committee if it cannot provide such escort. In such cases, the Board or the
Committee is required to then direct the institution where the child is temporarily staying or the District Child
Protection Unit to provide the escort. These provisions clearly indicate that it is a collaborative process and the
Board or the Committee has to constantly monitor the transfer order till an escort is finally identified and the child is
handed over to the Board or the Committee of the native district or State as the case may be. In all cases, a girl
child is to be escorted by a woman police officer.
Another critical question relating to transfer of children is expenses involved in such transfers. The present Act does
state that the State Government will bear the expenses of transfer. However, in case of inter-State transfer, it is not
clear which State government will be required to bear the travel expenses? Will it be the State government of the
transferring State or the receiving State? I believe that it should be the State Government of the transferring State
as the Board or the Committee of the transferring State will be able to expedite the processes in their own State
rather than deal with the State Government of another State. Sub-section (3) provides that travelling expenses
should be paid to the escorts in advance. This provision will take care of the grievance of the police officers who
end up spending money from their own pockets for meeting the food expenses of the child during the travel time
when the travel time extends to full day or days. Hopefully the Rules will include the food expenses in the travelling
expenses in case of long travel.
Sub-section (4) clarifies and reinforces that the receiving Board or the Committee has the same obligation of taking
all measures necessary for restoration or rehabilitation or social re-integration of the child as that of the Board or the
Committee who initially processes the matter of the child before transfer.
Section 9630 deals with the third situation of transfer of children from one residential facility to another after the final
order by the Board or the Committee. The residential facilities included in the Section are children’s home, special
home, fit facility or fit person. The Board or the Committee may change the residential facility of the child on a
request from the person-in-charge of the children’s home, or special home or fit facility or fit person within the same
district. If the child is to be sent to another district, the Board or the Committee will have to forward the request with
the recommendation that such transfer is in the best interest of the child. If the child is to be transferred to another
State, the State Government can do so in consultation with the State Government of the other State.
The language of the Section permits that a child may be transferred from one kind of residential facility to another
kind of residential facility keeping in view the best interest of the child. However, some limitations may arise due to
the fact that the Board is not authorised to order keeping of the child in a children’s home. Conversely, the
Committee is not authorised to direct keeping of a child in a special home. Hence, the transfer recommendations
will have to be made subject to these limitations on the jurisdiction of the Board or the Committee.
Sub-section (3) of section 96 clarifies that the total period of stay of the child shall not be increased by such
transfer. Sub-section (4) further provides that the orders passed by the transferring Board or the Committee will be
operative vis-à-vis the Board or the Committee of the area where the child is transferred. For example, if the Board
had directed that while the child is placed with the fit person, they shall also attend school. The Board having
jurisdiction over the area where the child is transferred will have to ensure that such condition is fulfilled by the fit
person with whom the child may be placed after transfer.
5.9.2 Leave of Absence

Page 3 of 5
5.9 MISCELLANEOUS
All children placed in various institutions may be permitted leave of absence from an institution for various reasons
and section 9831 contains provisions relating to it. The Section mentions that a child may be granted leave for seven
days on one occasion but it must be noticed that it is a general direction and the person-in-charge of the institution
has the discretion to grant leave of absence for a longer period as per exigency of the situation. The time required
for journey is in addition to the period for which the child has been permitted to remain absent from the institution.
The occasions listed in the Section like examination, marriage, death, and illness are not exhaustive of the
circumstances in which a child may be granted the leave of absence as it also includes “any emergency of like
nature”. However, in all circumstance it is necessary to ensure that somebody is given the responsibility of
supervising the child during the total period of absence. The period of authorised absence is to be counted towards
the total period for which the child is sent to the institution. However, if the child in conflict with law overstays or
does not return if the leave is cancelled, the period of their stay in the special home will have to be extended for a
period equivalent to the period of over stay beyond the sanctioned leave of absence. The Section contains no such
direction in case of children in need of care and protection. This differential treatment is not in consonance with the
underlying philosophy of juvenile justice and specific objectives of the Juvenile Justice Act 2015. The period for
which a child is directed to stay in a special home by the Board is not punishment as the object of institutionlisation
is not to punish but to reform. However, this provision seems to suggest otherwise. All violations of the sanctioned
leave of absence should be dealt with in similar manner for children in conflict with law and children in need of care
and protection. Each child should be given an opportunity to explain the violation and then only the Board or the
Committee should determine whether the period of their stay needs to be increased or not keeping in view the
principle of the best interest of the child.
5.9.3 Release from Institution
Section 9732 provides for early release of a child from an institution either absolutely or conditionally by the Board or
the Committee on the recommendation of the probation officer or social worker or government or a voluntary or
non-governmental organisation. This provision will require elaborate rules to be framed laying down the procedure
through which the probation officer or social worker may send their report to the Board or the Committee in relation
to children who are staying in Special Home or Children’s Home as these children are placed under the care of the
person-in-charge of those homes. The probation officer or social worker should be sending the reports in
consultation and with the consent of the person-in-charge of the institution for maintaining cordiality between the
two sets of officers charged with the responsibility of providing care to the child. Mechanisms and procedures will
also have to be evolved by which the government of the State or other voluntary or non-governmental organisations
may forward the request of the child for early release. In the absence of any mechanism or procedures, the
provision is only vague and will not result in early release of any child except on the recommendation of the
probation officer or social worker directly working with the child in the special home or the children’s home.
The Section authorises the Board or the Committee to release the child absolutely or conditionally, permitting them
to live with parents or guardian or any other person authorised by it who is willing to receive and take charge of the
child ensuring education or training of the child in some useful trade or employment ensuring rehabilitation of the
child. In case the child has been released conditionally and the child fails to fulfill those conditions, such child may
be directed to be returned to the institution for the remaining period for which the child was originally directed to
stay. It must be noted that the proviso to sub-section (1) permits such action to be taken by the Board or the
Committee only if it thinks it to be necessary. It means that the Board or the Committee should give a reasonable
opportunity to the child to explain why the child should not be placed back in the institution. Sub-section (2) of
section 97 clarifies that when a child is released on a temporary basis, the period of release will be deemed to be
part of the period for which the child was directed to stay in the institution. However, if they do not return after the
period of temporary release, their period of stay will have to be extended by the same duration for which they did
not return to the institution in case of children in conflict with law. This section suffers from the same anomaly of
considering the duration of stay ordered by the Board like period of imprisonment ordered by criminal courts.
Further, this sub-section does nothing to clarify how is leave of absence different from temporary release? It seems
to conflate conditional release and temporary release while the two are not the same. I believe that leave of
absence is temporary release as the child granted this leave of absence is released from custody but is required to
return to the institution after the expiry of the period of release. In case of conditional release the child is not
expected to return to the home as they are expected to fulfill the conditions of their release for the remaining period.
The provision for their return is to be made only if they fail to fulfill those conditions. Reference to failure to return
after the prescribe period is misplaced in this sub-section as this section does not deal with release of children for a
period.
Page 4 of 5
5.9 MISCELLANEOUS
26 Section 93 reads, “Transfer of a child who is mentally ill or addicted to alcohol or other drugs- (1) Where it appears to
the Committee or the Board that any child kept in a special home or an observation home or a Children’s Home or in an
institution in pursuance of the provisions of this Act, is a mentally ill person or addicted to alcohol or other drugs which
lead to a psychiatric hospital or psychiatric nursing home in accordance with the provisions of the Mental Health Act
and the rules framed under it behavioural changes in a person, the Committee or the Board, may order removal of such
child to a psychiatric hospital or psychiatric nursing home in accordance with the provisions of the Mental Health Act,
1987 or the rules made thereunder.
(2) In case the child had been removed to a psychiatric hospital or psychiatric nursing home under sub-section (1),
the Committee or the Board may, on the basis of the advice given in the certificate of discharge of the psychiatric
hospital or psychiatric nursing home, order to remove such child to an Integrated Rehabilitation Centre for Addicts
or similar centres maintained by the State Government for mentally ill persons (including the persons addicted to
any narcotic drug or psychotropic substance) and such removal shall be only for the period required for the
inpatient treatment of such child.
Explanation.—For the purposes of this sub-section,—

(a) “Integrated Rehabilitation Centre for Addicts” shall have the meaning assigned to it under the scheme called
“Central Sector Scheme of Assistance for
Prevention of Alcoholism and Substance (Drugs) Abuse and for Social Defence Services” framed by the
Central Government in the Ministry of Social Justice and Empowerment or any other corresponding scheme
for the time being in force;
(b) “mentally ill person” shall have the same meaning assigned to it in clause (l) of section 2 of the Mental Health Act,
1987;
(c) “psychiatric hospital” or “psychiatric nursing home” shall have the same meaning assigned to it in clause (q) of
section 2 of the Mental Health Act, 1987.”
27 For more details see, http://www.nisd.gov.in/content/127_1_DrugAbusePrevention.aspx, last visited on 16 August
2016.
28 Ambika Pandit, Fighting Back Once Addicts now high on life,
http://epaperbeta.timesofindia.com/Article.aspx?eid=31808&articlexml=FIGHTING-BACK-Once-addicts-they-are-now-
high-16082016006026, last visited on 16 August 2016.
29 Section 95 reads, “Transfer of a child to place of residence- (1) If during the inquiry it is found that a child hails from a
place outside the jurisdiction, the Board or Committee, as the case may be, shall, if satisfied after due inquiry that it is in
the best interest of the child and after due consultation with the Committee or the Board of the child’s home district,
order the transfer of the child, as soon as possible, to the said Committee or the Board, along with relevant documents
and following such procedure as may be prescribed:
Provided that such transfer can be made in case of a child in conflict with law, only after the inquiry has been completed
and final order passed by the Board:
Provided further that in case of inter-State transfer, the child shall be, if convenient, handed over to the Committee or
the Board, as the case may be, of the home district of the child, or to the Committee or the Board in the capital city of
the home State.
(2) Once the decision to transfer is finalised, the Committee or Board, as the case may be, shall give an escort order
to the Special Juvenile Police Unit to escort the child, within fifteen days of receiving such order:
Provided that a girl child shall be accompanied by a woman police officer:
Provided further that where a Special Juvenile Police Unit is not available, the Committee or Board, as the case may
be, shall direct the institution where the child is temporarily staying or District Child Protection Unit, to provide an escort
to accompany the child during travel.
(3) The State Government shall make rules to provide for travelling allowance to the escorting staff for the child, which
shall be paid in advance.
(4) The Committee or the Board, as the case may be, receiving the transferred child will process for restoration or
rehabilitation or social re-integration, as provided in this Act.”
30 Section 96 reads, “Transfer of child between Children’s Homes, or special homes or fit facility or fit person in different
parts of India- (1) The State Government may at any time, on the recommendation of a Committee or Board, as the
case may be, notwithstanding anything contained in this Act, and keeping the best interest of the child in mind, order
Page 5 of 5
5.9 MISCELLANEOUS
the child’s transfer from any Children’s Home or special home or fit facility or fit person, to a home or facility, within the
State with prior intimation to the concerned Committee or the Board:
Provided that for transfer of a child between similar home or facility or person within the same district, the Committee or
Board, as the case may be, of the said district shall be competent to issue such an order.
(2) If transfer is being ordered by a State Government to an institution outside the State, this shall be done only in
consultation with the concerned State Government.
(3) The total period of stay of the child in a Children’s Home or a special home shall not be increased by such
transfer.
(4) Orders passed under sub-sections (1) and (2) shall be deemed to be operative for the Committee or the Board, as
the case may be, of the area to which the child is sent.”
31 Section 98 reads, “Leave of absence to a child placed in an institution- (1) The Committee or the Board, as the case
may be, may permit leave of absence to any child, to allow him, on special occasions like examination, marriage of
relatives, death of kith or kin or accident or serious illness of parent or any emergency of like nature, under supervision,
for a period generally not exceeding seven days in one instance, excluding the time taken in journey.
(2) The time during which a child is absent from an institution where he is placed, in pursuance of such permission
granted under this section, shall be deemed to be part of the time for which he is liable to be kept in the Children’s
Home or special home.
(3) If a child refuses, or has failed to return to the Children’s Home or special home, as the case may be, on the leave
period being exhausted or permission being revoked or forfeited, the Board or Committee may, if necessary,
cause him to be taken charge of and to be taken back to the concerned home:
Provided that when a child in conflict with law has failed to return to the special home on the leave period being
exhausted or on permission being revoked or forfeited, the time for which he is still liable to be kept in the institution
shall be extended by the Board for a period equivalent to the time which lapses due to such failure.”
32 Section 97 reads, “Release of a child from an institution- (1) When a child is kept in a Children’s Home or special home,
on a report of a probation officer or social worker or of Government or a voluntary or non-governmental organisation, as
the case may be, the Committee or the Board may consider, the release of such child, either absolutely or on such
conditions as it may think fit to impose, permitting the child to live with parents or guardian or under the supervision of
any authorised person named in the order, willing to receive and take charge, educate and train the child, for some
useful trade or calling or to look after the child for rehabilitation:
Provided that if a child who has been released conditionally under this section, or the person under whose supervision
the child has been placed, fails to fulfill such conditions, the Board or Committee may, if necessary, cause the child to
be taken charge of and to be placed back in the concerned home.
(2) If the child has been released on a temporary basis, the time during which the child is not present in the concerned
home in pursuance of the permission granted under sub-section (1) shall be deemed to be part of the time for
which the child is liable to be kept in the children or special home:
Provided that in case of a child in conflict with law fails to fulfill the conditions set by the Board as mentioned in sub-
section (1), the time for which he is still liable to be kept in the institution shall be extended by the Board for a period
equivalent to the time which lapses due to such failure.”
End of Document
Ved Kumari
Residential Care
5 Residential Care

There have been many reports in the past about the bad conditions of homes established under the earlier Acts and
not much seems to have changed even after many elaborate provisions contained in the JJ Act, 2015. The latest
report is from Chennai, Tamil Nadu33 is that 33 children kept in an observation home escaped. Out of them 29 were
caught soon. Four of the children who could not escape threatened to kill themselves and slit their throats shouting
to be allowed to go from that place. None of them was grievously injured but incidents like this do indicate that the
reality of the residential places actually functioning under the Act is much different than what the laudable provisions
of the Act would have us believe. The problem has not been absence of legal provisions but absence of the will to
implement the law and provide the services and facilities that have been prescribed under the law. The problem is
not any different with the current enactment. The length of the Act has increased with many more legal provisions
with lot more details but there has been no addition to the budgetary allocation for implementing these provisions.
Appointment procedure, the structures of institutions, qualifications of staff, salary scales do not reflect that the best
suitable persons are being roped in to discharge the onerous responsibility of bringing up children who have seen
very troubled times in their young lives and need lot more care and support than children who had the good fortune
of being raised by their own parents without any interaction with the juvenile justice functionaries.
The problems of implementation have been further aggravated by creation of an additional category of institutions,
namely, place of safety but without any clear provisions regarding it obligations, structure, facilities, and services.
No provision has been made for any additional funding for either establishing more institutions or for upgrading the
conditions of the existing institutions.
There seems to be no clear understanding even at the normative level that when the Board or the Committee
directs a child to be kept in a Special Home or Children’s Home for a certain period, it is not “sentencing the child
for that duration”. As per the Beijing Rules, use of institutions is to be resorted to only as a measure of last resort
and only for the minimum duration till alternative community care is arranged for their care. The provision for early
release is indicative of this principle but provision for extending the period of stay in case the child over stays the
leave of absence or if the child fails to fulfill the conditions of conditional release in case of children in conflict with
law negates that approach. The drafting of various provisions has left gaping holes in understanding the scope of
those Sections, responsibilities of the residential institutions and these will result in confusion, dereliction of duty
due to ambiguity, and non-fulfillment of rights of survival, development, and all round growth of abilities of children
kept in various residential institutions under the Act.
33 Sinduja Jane, Juveniles try to slit throats, want shifted out of home, available at
Page 2 of 2
http://www.newindianexpress.com/cities/chennai/Juveniles-try-to-slit-throats-want-shifted-out-of-
home/2016/07/12/article3524815.ece, last visited on 12 July 2016.
End of Document
6 Offences Against Children
Ved Kumari
Offences Against Children

Provisions relating to offences against children have been an integral part of all enactments relating to juvenile
justice since the passing of the first Central Children Act in 1960 though the range of offences and their
categorisation has varied under these. These provisions were subject of much discussion during the debates in
Parliament on the Children Bill 1959 and Juvenile Justice Bill 19861 but not later. The Juvenile Justice Act 2015
(hereinafter referred as JJ Act, 2015) has expanded the range of offences included in Chapter IX but it was not part
of parliamentary debates.
The problem of offences against children has been recognised for long but offences against children have been
increasing at an alarming rate. Reporting of offences under the JJ Act, 2000 has been miniscule2 even after all
offences included in the JJ Act, 2000 were made cognisable recognising the problem of initiating action as child
victims rarely had the familial support to file complaints before the Courts. When an offence is categorised as
cognisable, it means that the police may initiate investigation and arrest the offenders without any complaint being
made by the victim or anybody else. If an offence is categorised as non-cognisable, police is required to only file the
complaint but cannot take any further action unless so directed by the court. However, the JJ Act, 2015 has laid
down the criteria for determining which offences included in it are cognisable and which are non-cognisable.
Section 863 of JJ Act, 2015 declares that all offences punishable by three years of imprisonment or more are
cognisable and non-bailable. Other offences punishable with less than three years or only fine will be non-
cognisable and bailable. It may be noted that this classification is applicable to all offences included in this Act and it
is not limited to offences contained only in Chapter IX. The scheme of classification followed in this section is similar
to that provided in Part II of Schedule 1 of the Code of Criminal Procedure.
This section further lays down that offences against children punishable with more than seven years of
imprisonment will be triable by the Children’s Court, those punishable with imprisonment of three years or more but
less than seven years will be triable by Magistrate of First Class and other offences punishable with imprisonment
of less than three years or fine will be triable by any Magistrate. This provision follows the scheme provided for in
Part II of Schedule 1 of the Code of Criminal Procedure but is in direct conflict with section 25 of the Commissions
for Protection of Child Rights Act, 2005 (the CPCR Act).
Section 25 of the CPCR Act 2005 reads as follows:
Children’s Courts - For the purpose of providing speedy trial of offences against children or of violation of child
rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification,
specify at least a court in the State or specify, for each district, a Court of Session to be a Children’s Court to try the
said offences:
Provided that nothing in this section shall apply if -
(1) a Court of Session is already specified as a special court; or

(2) a special court is already constituted, for such offences under any other law for the time being in force.
Page 2 of 3
It is apparent from a simple reading of this section that the Children’s Court established under this section will have
jurisdiction over all offences against children irrespective of the punishment provided for the offence committed
against the child. This conflict of jurisdiction will need to be resolved by the courts as the overriding effect clause
contained in Section 1(4) of the JJ Act, 2015 applies only to children in conflict with law and children in need of care
and protection and not to adult offenders committing offences against children. As per the general scheme of the
CPCR Act, all adult offenders who commit an offence against a child are to be tried by the Children’s Court
irrespective of the nature of offence or punishment provided for it. As per the JJ Act, 2015, if a child commits any
offence, and that will include the offences included in its Chapter IX also, that child has to be produced before the
Board and be dealt with as per the provisions contained therein. It is difficult to find the reason for creation of this
anomalous situation which has created conflict of jurisdiction provided under these enactments.
Section 89 clearly states that if any offence against children included in Chapter IX of the JJ Act, 2015 is committed
by another child, that child is considered as child in conflict with law.4 It would have been better if a clarifying clause
was added to this section specifically stating that all such children in conflict with law will be dealt with by the Board
as per the scheme of the Act. This omission may give rise to a situation where one may object to production of a
child committing an offence under this chapter on the ground that all these offences are triable by the courts
specified in section 86. It may be argued that section 1(4) which has overriding effect over conflicting provisions of
other laws, has no applicability to the conflicting provisions of the JJ Act, 2015 itself. While the general scheme of
the Act is that all children in conflict with law should be produced before the Board, section 86 is a special provision
within the Act and will override the general scheme of the Act. However, this argument, if accepted, will result in the
anomalous situation that children committing very serious offences under other laws will have to be produced and
dealt with by the Board in view of section 1(4) of the JJA but if the child committed an offence under Chapter IX of
the JJA, they will have to be produced before the courts as specified in section 86. In view of section 1(4) of the JJ
Act, 2015 read with the numerous decisions of the Supreme Court5, there is no doubt that the Board has exclusive
jurisdiction to deal with all offences committed by children. Hence, section 86 must not determine the jurisdiction in
case of offences contained in Chapter IX committed by children. In terms of section 89, a child in conflict with law
must be produced before the Board and dealt with by it as per the provisions of the JJ Act, 2015.
Specific punishment has been prescribed for each offence included in this chapter. However, if any of the offence
included in this Chapter is committed against a child with disability, then the offender will be liable for twice the
punishment prescribed for the offence in terms of section 85.6 Explanation contained in the section states that the
term “disability” has the same meaning as has been given in section 2(i) of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995.7 As per section 878, a person abetting
commission of an offence included within this Chapter is also liable to the same punishment as prescribed for the
commission of the offence if the offence abetted has been committed. There is no provision laying down the
punishment if the offence abetted is not committed. In such cases the punishment as prescribed in section 116 of
the Indian Penal Code may be imposed, namely, “one-fourth part of the longest term provided for that offence; or
with such fine as is provided for that offence, or with both”
Section 889 provides that if the offence included in the JJ Act, 2015 is also an offence under any other law for the
time being in force, then the punishment that is higher in degree provided by such legislations will be imposed on
the offender. This is a provision similar to that included in the JJ Act, 2000 and leaves the problem of how to
determine higher degree of punishment between two legislations. If one legislation provides for slightly longer
duration of maximum imprisonment but minimal fine compared to the other which provides for a very high amount of
fine though a bit shorter imprisonment, which one will be considered as “higher degree of punishment”? Whether
the guiding principle will be duration of imprisonment irrespective of fine or whether it will be determined by
reference to both the quantum of imprisonment and fine together? No cases have been reported on this aspect as it
is only exceptional that offences listed under the Children Acts or JJAs have been imposed on the offenders in
addition to the offences included under other legislations.
1 For details see, Ved Kumari, The Juvenile Justice System in India From Welfare to Rights, pp, 115–116, 217–219 (2nd
Edn 2010) Oxford University Press.
2 As per Crime in India 2014, the total number of incidences of crimes against children under the JJ Act, 2000 was 1315
while the total number of offences against children 89423 (from 14423 in 2004, reported in Crime in India 2004). These
constituted 3.1% of total crimes in India. On an average 20.1 out of every one lakh of children were subjected to some
reported crime against them. Charge sheet was filed in 87.6% cases. Out of these, only 33.1% resulted in conviction of
the accused persons.
Page 3 of 3
3 Section 86 reads, “Classification of offences and designated court: (1) Where an offence under this Act is punishable
with imprisonment for a term more than seven years, then, such offence shall be cognisable, non-bailable and triable by
a Children’s Court.
(2) 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 cognisable, non-bailable and triable by a Magistrate of First
Class.
(3) Where an offence, under this Act, is punishable with imprisonment for less than three years or with fine only, then,
such offence shall be non-cognisable, bailable and triable by any Magistrate.”
4 Section 89 reads, “Any child who commits any offence under this Chapter shall be considered as a child in conflict with
law under this Act.”
5 Madan Singh v State of Bihar, Appeal (crl.) 1285 of 2003, SC DoJ 2.4.05 available at
https://indiankanoon.org/doc/1537019/, last visited on 7 July 2016; Raj Singh, (2000) 6 SCC 759; Raghbir v State of
Haryana, 1981 Cr LJ 1497 (SC); Rohtas v State of Haryana, AIR 1979 SC 1839 [LNIND 1979 SC 310].
6 Section 85 reads, “Offences committed on disabled children. Whoever commits any of the offences referred to in this
Chapter on any child who is disabled as so certified by a medical practitioner, then, such person shall be liable to twice
the penalty provided for such offence.
Explanation— For the purposes of this Act, the term “disability” shall have the same meaning as assigned to it under
clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)
Act, 1995.”
7 Section 2(i) of the PWD Act reads, “’disability’ means - i. blindness; ii. low vision; iii. leprosy-cured; iv. hearing
impairment; v. locomotor disability; vi. mental retardation; vii. mental illness.”
8 Section 87 reads, “Abetment. Whoever abets any offence under this Act, if the act abetted is committed in
consequence of the abetment, shall be punished with the punishment provided for that offence.
Explanation— An act or offence is said to be committed in consequence of abetment, when it is committed in
consequence of the instigation, or in pursuance of the conspiracy or with the aid, which constitutes the abetment.”
9 Section 88 reads, “Where an act or omission constitutes an offence punishable under this Act and also under any other
law for the time being in force, then, notwithstanding anything contained in any such law, the offender found guilty of
such offence shall be liable for punishment under such law which provides for punishment which is greater in degree.”
End of Document
6.1 OFFENCES UNDER THE JJ ACT, 2015
Ved Kumari

6.1.1 Prohibition on disclosure of identity of children
The first offence included in this chapter is disclosure of identity of children. Section 7410 prohibits disclosure of any
information which may lead to identification of any child dealt with under the provisions of this Act through any
report in any newspaper, magazine, news-sheet, or audio-visual media. Children protected by this provision include
children in conflict with law, children in need of care and protection, child victims or child witness of a crime. The
prohibited information includes name, address of the child or of their parents, school attending or attended, picture
of the child, or any other particular that may lead to the identification of the child. Even the records of the police are
within the ambit of this prohibition.
The punishment prescribed for this offence is imprisonment up to six months or fine up to two lakhs or both. This
punishment makes it a non-cognisable offence and no action may be taken unless a complaint is filed before a
magistrate and order obtained directing the police to initiate an inquiry. Under the JJ Act, 2000 the offence was
cognisable though punishable with only fine up to Rs 25,000. The sting of the section lay in the categorisation of the
offence as cognisable but that has been taken away by the JJ Act, 2015. Increase in the quantum of punishment
has no significance if no action can be taken against the publisher without a complaint and a court order in this
respect. Release of the child involved in the Nirbhaya case led to a picture being circulated on social media like
WhatsApp and Facebook as being of the juvenile offender and calls for his annihilation. No formal complaints were
filed and it was not even required as the offence at that time was cognisable. Any person repeating such action
today in relation to any other child in conflict with law may do so with more aplomb as no action today may be
initiated in any case without a complaint.
The only exception in which identity of the child dealt with under the JJ Act, 2015 may be revealed is when the
Juvenile Justice Board or the Child Welfare Committee gives such permission in writing. This written permission
must contain the reasons why revelation of such information is in the best interest of the child.
6.1.2 Punishment for cruelty to child
Section 7511 gives the definition of the offence of cruelty to children and provides a range of punishments for the
same in different circumstances. Cruelty within the meaning of this section includes assault, abandonment of child,
abuse, exposure or neglect of a child in a manner that is likely to cause unnecessary mental or physical suffering to
the child. Any person who has the actual charge or control over the child is punishable for this offence. However,
biological parents who abandon their child are exempt from any criminal action and the liability prescribed under
this section. It was reported that a complaint under section 75 of the JJ Act, 2015 and for abetting commission of
suicide under section 305 of the Indian Penal Code has been lodged against an Assistant Sub-Inspector of Police in
Gujarat in a case where a 14 years old boy in Ahmedabad committed suicide as a consequence of alleged beating
in police custody.12 It may be the first complaint filed under section 75 of the JJ Act, 2015.
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The offence of cruelty when committed by an adult against the child in all circumstances is a cognisable and non-
bailable offence as the minimum punishment prescribed for the offence is imprisonment up to three years or fine of
one lakh or both. If the offender is the employee or manager of a child care institution, the punishment prescribed
increases to imprisonment up to five years and fine up to Rs 5 lakh. If the child is left with physical disability or
develops mental illness or is rendered mentally incapable of doing day to day tasks or if their life or limb becomes at
risk, the punishment prescribed is mandatory minimum imprisonment of three years and fine of Rs 5 lakh. It is
important to compare and contrast the language prescribing punishment in the above mentioned three
circumstances. In the first circumstance, the section lays down the maximum period of imprisonment and the
maximum amount of fine and either or both may be given. In the second scenario, the section provides a higher
upper limit of imprisonment and fine giving discretion to the court to choose any period of imprisonment and amount
of fine within the limit prescribed but both need to be given as the word used in these alternatives is “and” and not
“or”. In the third proviso, the discretion of the court has been further limited by prescription of mandatory minimum
sentence of imprisonment with a higher cap and prescription of the definitive amount of fine. The words used in the
third proviso are not “up to” five lakh rupees but “fine of five lakh rupees’”. It means that the court must impose
mandatorily the fine of rupees five lakhs.
Biological parents, adoptive parents, guardians appointed by the court or otherwise, fit persons, person in charge of
a child care institute or any other person employed in that place, and others who may have got custody and control
of children in any manner will fall certainly fall within the ambit of this section. In my understanding it should also
include the persons who may have kidnapped or abducted a child and have unlawful control and charge over the
child. The purpose of the section is to protect every child in all circumstances against assault, abandonment, abuse,
exposure and willful neglect irrespective of the fact how the abuser got the actual charge or control over the child.
Each one of them has to be charged under this section.
However, this section carves out an important exception in case of biological parents who are found to have
abandoned their child “due to circumstances beyond their control”. In such a case, it is presumed that they did not
abandon the child willfully. In such cases, the section provides that no first information report may be filed and no
penal action be taken against them.
Abandonment is complete desertion of the child, giving up their charge and control over the child. If this is what has
been done by the biological parents, no action can be taken against them provided that the abandonment is for
reasons “beyond their control”. It has been left to the individual police officer to decide what constitute
“circumstances beyond the parents’ control”. Use of the term “parent” in this clause includes both the mother and
the father. However, what circumstance is “beyond control” of the mother may be different from that of the father
given their social status in our patriarchal society. For example, if a mother dumps her daughter, she may have
done so because she could not deal with the pressure of the members of the family who did not want one more
daughter. The father, in such cases, stands on a different footing as he is more likely to have promoted the
abandonment rather being pressurised to abandon his daughter. Similarly, if an unwed mother abandons her new
born baby due to the fear of social stigma because of non-acknowledgment of paternity by the father, she might be
said to be abandoning the child for reasons beyond her control but it is not possible to apply the same reasoning for
the father who is abdicating his responsibility towards the child so born. However, abandonment of a child born out
of wedlock in an adulterous relationship poses questions of further inquiry. Whether the woman was duped or was a
willing partner in the adulterous relationship? Was the child born due to failure of contraceptives used by the
adulterous couple? The moral baggage attached to adulterous relationships, legal stigma of illegitimacy attached to
children born out of wedlock may impact the mother and father differently in different situations but clubbing both
the parents together may result either in non-attachment of liability to guilty parent or the other way round. In any
case, this provision has given the police wide discretionary powers to decide whether, either mother or father or
both the parents are exempt from liability for abandoning their child. For effective implementation of this section,
police will need proper training to understand the difference between abandonment and other forms of cruelty
included in this section and in comprehending what constitute “reasons beyond their control”.
However, any person, including the biological parent, who retains charge and control over the child but still subjects
them to assault, abuse, exposure or willful neglect, may be arrested for subjecting the child to these actions and
prosecuted in terms of this section. It confounds common sense why biological parents abandoning their child have
been kept out of the purview of penal action as such parents are no less responsible for exposing the child to sever
harm and possible death. Abandonment should have been differentiated from surrendering the child in a child care
institution either anonymously or personally.
As the JJ Act, 2015 has been enacted to ensure care, protection, development, etc., for all children, it is difficult to
Page 3 of 8
appreciate the distinction between abandonment and other forms of cruelty caused by parents to child. Abandoning
a child on the garbage dump to the vagaries of nature may result in the same or in some cases worse exposure of
the child resulting in severe health issue or death of the child, but no action is to be initiated against the parents so
abandoning the child. A clear distinction should have been made between parents abandoning children in the
cradle of a child care institution and others who abandon their children on the garbage dump or public places. The
latter exposes them to harm not only to their health due to the weather or the unhygienic conditions but also due to
the moral dangers by getting picked up by persons who may use them for immoral and illegal purposes. It is illogical
and unreasonable that no action can be taken against the biological parents who abandon their child even if the
child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or
has risk to life or limb as a consequence of such abandonment. Whereas the same consequences occurring to a
child abandoned by any other person who had the actual charge or control over the child, will subject such person
to mandatory minimum rigorous imprisonment of three years which may be extended up to 10 years and who shall
also be liable to fine of Rs 5 lakh.
6.1.3 Employment of child for begging
Employment or use of children for begging or causing a child to beg by any person is made a punishable offence by
section 7613 of the JJ Act, 2015. It is punishable with imprisonment up to five years and also fine that may extend to
Rs 1 lakh. If the person amputates or maims a child for the purpose of begging, the punishment is mandatory
minimum of seven years but it may extend to 10 years and fine of Rs 5 lakh. In case of the latter offence, there is no
discretion given to the court of imposing fine of less than five lakh in addition to the period of imprisonment. Even
abetment of these offences by a person who has the actual charge or control over the child is punishable in the
same manner. In addition, such person is presumed to be unfit to take care of the child within the meaning of the
clause (v) of section 2(14) containing the definition of children in need of care and protection. As begging is an
offence in many States, this section clarifies that the child so used shall not be considered a child in conflict with law
but as a child in need of care and protection. Such child is required to be removed from the charge or control of
such a person and produced before the Committee for appropriate orders.
The offence is cognisable and non-bailable as per the directions contained in section 86 of the JJ Act, 2015.
6.1.4 Giving intoxicating liquor or narcotic drug or psychotropic substance to a child
Giving intoxicating liquor or narcotic drug or tobacco products or psychotropic substance to a child, except on the
order of a duly qualified medical practitioner is a cognizable and non-bailable offence as per section 7714 which lays
down the punishment of imprisonment up to seven years and a fine up to Rs 1 lakh for this offence.
Maneka Gandhi is reported to have written to Mr. J.P. Nadda, Minister for Health and Family Welfare15 that the
reason for insertion of this offence was that she “was conscious of the sinister designs of the tobacco industry to
target vulnerable children as their new consumers.” She has further stated that most of the 5,000 children that start
consuming tobacco every day do so because of inducement. She wants that a reference to section 77 be made on
the cigarette packs mentioning the punishment of seven years imprisonment on the cigarette packs. This will act as
a deterrent for anyone inducing children to take tobacco and would go a “long way in protecting children from
inducement by the elder persons in use of tobacco products. She has further claimed that “Section 77 is a path-
breaking anti-tobacco measure taken by any country in the World.” While time will tell if such warning on the
cigarette packs will work as deterrent for wrong doers and protection of children, a look at the former Acts tells us
that the offence of giving liquor, narcotic substances, etc., has been long included in each one of them and there is
nothing new about it. However, earlier Acts made giving liquor of narcotic drugs or psychotropic substance an
offence if given in public. Doing so in the privacy of one’s home fell outside the purview of those sections. No
explanation was available for excluding the private sphere from the scope of this offence as the harm caused to the
child is the same whether these substances were administered to the child in public or private without the doctor’s
prescription. That anomaly has been removed from the current definition of this offence.
6.1.5 Use of children for vending, peddling, etc., of liquor, narcotic drug or psychotropic substance
Section 7816 creates the new cognisable and non-bailable offence of use of children for vending, peddling, carrying,
supplying, or smuggling of any intoxicating liquor, narcotic drug, or psychotropic substance. It may be noted that all
the verbs used in the section are not necessarily an offence. For example vending or carrying or supply of these
substances is not an offence if done with proper license by an adult. However, use of children by an adult for doing
any of these even with a proper license will amount to an offence under this section. This offence is punishable with
imprisonment up to seven years and fine up to Rs 1 lakh.
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6.1.6 Exploitation of Child Employee
Section 7917 creates another cognisable and non-bailable offence of exploitation of child employees. The problem
of forced labour and child labour has been recognised by the Constitution of India itself. Article 23 of the
Constitution prohibits begar and other forms of forced labour and Article 24 prohibits employment of children below
the age of 14 years in any factory, mine or other hazardous work. Pursuant to these constitutional directions, the
Bonded Labour (Prohibition) Act 1976 and Child Labour (Prohibition and Regulation) Act 1986 were passed. While
bonded labour is completely prohibited, employment of a child up to the age of 18 years per se is not prohibited. As
per the Constitutional mandate, employment of children below the age of fourteen years in factory, mines or other
hazardous work is only prohibited. Other forms of child labour are not prohibited and are only regulated. When India
signed the Convention on Rights of the Child, it declared that its obligation of completely abolishing child labour is
limited to the extent of available resources.18
Section 79 makes no distinction by reference to their age or the nature of work in which the child may be employed.
The child employees included within the purview of this section are all children who have not attained the age of 18
years in terms of the definition of child contained in this Act. The range of actions falling within the ambit of this
offence include keeping of a child employee in bondage, or withholding of their earnings or use of their earnings for
one’s own purposes. Anyone who commits these actions is liable to be given rigorous imprisonment up to five
years. It is also compulsory to impose a fine of Rs 1 lakh. This section has an overriding effect over any other
provision contained in any other law in force as this section starts with a non-obstante clause.
6.1.7 Adoption without following prescribed procedure
The JJA has devoted a full chapter laying down elaborate mechanism and detailed procedure for adoption of
orphan, abandoned, or surrendered children to secure familial care and protection to such children as is their right
under the Convention on the Rights of Child. Adoption of children in contravention of the procedure as prescribed
under the Act has been made a new offence under section 8019 of the JJ Act, 2015. Offering, giving, or receiving of
any orphan, abandoned or surrendered child in adoption in contravention of the provisions and procedures as
prescribed in this Act will make a person liable to imprisonment up to three years or fine of Rs 1 lakh or both. If the
offender is a recognised adoption agency, this punishment will be imposed on the person in-charge who is
responsible for the day to day functioning of the agency. In addition, registration of such agency under section 42
and its recognition under section 66 may also be withdrawn for a minimum period of one year. The section does not
provide any maximum period of such withdrawal or the consequence of repeat offence specified under the section.
6.1.8 Sale and procurement of children for any purpose
Trafficking of human beings has been prohibited by the Constitution itself. The Immoral Traffic (Prevention) Act,
195620 was passed to deal with punishing the offenders and to provide for rescue of victims of human trafficking. In
the year 2013, section 370 was included in the Indian Penal Code by the Criminal Law (Amendment) Act providing
for quite severe punishments for trafficking of human beings. Trafficking of children below the age of 18 years for
purpose of exploitation under the IPC is punishable with rigorous imprisonment of minimum ten years, extendable
to life imprisonment and also fine. Section 8121 of the JJ Act, 2015 has also made sale and purchase of children for
any purpose an offence. Even though it does not use the word trafficking, sale and purchase of children is included
within the meaning of trafficking. However, the punishment prescribed for the offence is only rigorous imprisonment
up to five years and fine of Rs 1 lakh. If the offence is committed by a person having the actual charge of the child,
including the employees of a hospital or nursing home or maternity home, the term of imprisonment is mandatory
minimum of three years, extendable up to seven years. Fine of any amount has not been included among the
punishments prescribed for the offence committed by such persons. Such a lackadaisical approach to sentencing in
a chapter that focuses on offences against children, especially in view of the stringent provisions already contained
in the Indian Penal Code is questionable specially knowing the kind of money that is made by traffickers of children.
The Sun, from UK has exposed a slave trader from Jalandhar who has been selling children from Nepal and Bihar
for Rs 5 lakhs to work as domestic servants in England.22 Even though more stringent punishments prescribed
under the Indian Penal Code may be imposed by the Children’s Court in view of section 88 of the JJA, provision of
such lighter punishment despite the existence of the IPC provisions shows a casual approach in the drafting of this
provision not taking cognisance of the seriousness of the offence.
6.1.9 Corporal punishment
Physical abuse and violence against children living in child care institutions is not unknown. Section 8223 makes
provision for punishing the person in-charge of, or employed in such institutions who subjects a child to corporal
punishment. However, the drafting of this provision has left the children without any possibility of relief. The phrase
Page 5 of 8
“corporal punishment” has been defined in section 2(24) as “subjecting of a child by any person to physical
punishment that involves the deliberate infliction of pain as retribution for an offence, or for the purpose of
disciplining or reforming the child”. The offence of corporal punishment as contained in this section is much
narrower as it is limited to infliction of corporal punishment to a child
(1) in a child care institution

(2) by the person in-charge of the institution or a member employed in the institution
(3) used only as a disciplinary measure.
These limitations leave the question open whether the persons mentioned above may be charged under this
section if the corporal punishment is inflicted for a purpose other than for disciplining the child. For example, if
corporal punishment is given to a child for not giving sexual favour to the employee or the person in-charge, it is not
covered within the ambit of the section as drafted. Or, if a child is found stealing by the person in-charge of a fit
facility or children home, etc., and is given a severe beating, a smart defence lawyer of such person in-charge may
argue for strict and narrow interpretation of the clause seeking acquittal on the ground that such beating was not for
the purpose of disciplining but for reformation of the child. The words “corporal punishment” used in this section
should be understood in the light of the definition clause but it will need a judge committed to punish every person
who subjects a child to corporal punishment in an institutional setting to punish whether the physical punishment
was given for disciplining or for retribution or reformation.
While the institutional personnel may be punished for inflicting corporal punishment on the child in the institution for
any reason, the scope of this offence cannot be extended to include deliberate infliction of pain by any person.
Section 82 provides for punishment in case of imposition of corporal punishment by only a member of a child care
institution. By comparing and contrasting the language of section 2(24) and section 82, it will not be possible to
charge a person who beats up a child caught red handed stealing his property under section 82. Such a person
apparently is not connected with any child care institute and is not giving the beating to him for disciplining him. As
all children are in need of protection against corporal punishment, the limitations contained in section 82 are
unwarranted. It must, however, be noted that if such child corporal punishment results in physical injury or mental
cruelty to the child, such persons may be charged under section 75 for the offence of cruelty to the child.
Additional problems are there in the prosecution of even the person in-charge or employee in the child care
institution. The offence under this section is non-cognisable and bailable being punishable only with fine of Rs 1,000
for the first offence. For conviction to happen for the first offence, somebody needs to approach the Court seeking
direction for investigation in such actions. In the absence of such direction, no conviction can happen. The question
of subsequent offence can arise only if the person is convicted for use of corporal punishment in the first instance.
Even if such a complaint was made, investigation and trial held, and the offender is punished with the prescribed
punishment, the same process has to be repeated again for every subsequent violations. Even for repeat offence,
the punishment prescribed is maximum imprisonment of three months or fine or both and hence, it continues to be
classified non-cognisable and bailable. In the unlikely event of conviction of the employee in the first or subsequent
offence of use of corporal punishment for disciplining the child, the employee of the child care institution is liable for
dismissal from service and also be debarred from working directly with children thereafter. It is only when the
management of a child care institution does not cooperate in the inquiry initiated pursuant to the report of the
Committee or Board about use of corporal punishment, that the offence becomes cognisable and non-bailable vis-
à-vis the person in-charge of the institution who may be punished with mandatory minimum sentence of three years
and a fine that may extend to Rs 1 lakh. This section also does not lay down the maximum period of imprisonment
in this case and is yet another example of bad and absent-minded drafting.
6.1.10 Use of child by militant groups or other adults
It has been recognised for a long time that children are used and exploited by adults for commission of offences, as
children are not punishable under law and they are usually not suspected also. In a preventive action, the police
rescued 24 children from the Maoists when the villagers in Jharkhand demanded protection from the Maoists who
had been pressuring them into giving up their children. The police assured to provide security to more children from
other villages if their parents so requested.24
Section 8325 lays down the punishment of rigorous imprisonment up to seven years and fine of Rs 5 lakh for adults
who use children for their own illegal purposes. If a non-State, self-styled militant group or outfit recruits or uses a
child for any purpose, they are liable to be punished in terms of this section. However, the limitation of this section is
that such militant group or outfit should have been declared as such by the Central Government. It leaves the
Page 6 of 8
question open about the liability of the militant group or outfit and the child recruited or used by it till the time such
militant group or outfit is so declared by the Central Government. If a child is arrested in a bomb blast case and is
found to have been recruited by a militant group or outfit unknown to the government so far, will such group or outfit
fall within the purview of this section? Will such child be seen as a victim rather than a child in conflict with law?
Inclusion of the words “declared as such” has narrowed the scope of the section which may result in treatment of
victims of new and unknown militant groups and outfits as child in conflict with law rather than being seen as child
victims of organsised militant groups and outfits. Fortunately, any adult or a group of adults who use children for
illegal activities either individually or as a gang are liable for similar punishment as mentioned earlier and there is no
need that such adults or groups should be known or repeat offenders.
6.1.11 Kidnapping and abduction of child
Section 84 of the JJ Act, 2015 does not create any new offence but incorporates the offences of kidnapping and
abduction as contained in sections 359 to 369 of the Indian Penal Code within the purview of the JJA with one
change. The age of child victims of kidnapping and abduction under the IPC was limited to boys below the age of
16 years and girls below the age of 18 years. Section 8426 raises that age to 18 years for all children irrespective of
their sex.
10 Section 74 reads, “Prohibition on disclosure of identity of children: (1) No report in any newspaper, magazine, news-
sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial
procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a
child in conflict with law or a child in need of care and protection or a child victim or witness of a crime, involved in such
matter, under any other law for the time being in force, nor shall the picture of any such child be published:
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.
(2) The Police shall not disclose any record of the child for the purpose of character certificate or otherwise in cases
where the case has been closed or disposed of.
(3) Any person contravening the provisions of sub-section (1) shall be punishable with imprisonment for a term which
may extend to six months or fine which may extend to two lakh rupees or both.”
11 Section 75 reads, “Punishment for cruelty to child: Whoever, having the actual charge of, or control over a child,
assaults, abandons, abuses, exposes or willfully neglects the child or causes or procures the child to be assaulted,
abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical
suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh or
with both:
Provided that in case it is found that such abandonment of the child by the biological parents is due to circumstances
beyond their control, it shall be presumed that such abandonment is not willful and the penal provisions of this section
shall not apply in such cases:
Provided further that if such offence is committed by any person employed by or managing an organisation, which is
entrusted with the care and protection of the child, he shall be punished with rigorous imprisonment which may extend
up to five years, and fine which may extend up to five lakhs rupees:
Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental
illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, such person shall be punishable
with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be
liable to fine of five lakh rupees.”
12 http://deshgujarat.com/2016/04/03/asi-arrested-by-sog-team-in-gomtipur-boy-suicide-case/, last visited on 4 April 2016.
13 Section 76 reads, “Employment of child for begging. (1) Whoever employs or uses any child for the purpose of begging
or causes any child to beg shall be punishable with imprisonment for a term which may extend to five years and shall
also be liable to fine of one lakh rupees:
Provided that, if for the purpose of begging, the person amputates or maims the child, he shall be punishable with
rigorous imprisonment for a term not less than seven years which may extend up to ten years, and shall also be liable
to fine of five lakh rupees.
Page 7 of 8
(2) Whoever, having the actual charge of, or control over the child, abets the commission of an offence under sub-
section (1), shall be punishable with the same punishment as provided for in sub-section (1) and such person shall
be considered to be unfit under sub-clause (v) of clause (14) of section 2:
Provided that the said child, shall not be considered a child in conflict with law under any circumstances, and shall be
removed from the charge or control of such guardian or custodian and produced before the Committee for appropriate
rehabilitation.”
14 Section 77 reads, “Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance to a child. Whoever
gives, or causes to be given, to any child any intoxicating liquor or any narcotic drug or tobacco products or
psychotropic substance, except on the order of a duly qualified medical practitioner, shall be punishable with rigorous
imprisonment for a term which may extend to seven years and shall also be liable to a fine which may extend up to Rs
1 lakh.”
15 Read more
at:http://economictimes.indiatimes.com/articleshow/52138817.cms#?utm_source=contentofinterest&utm_medium=text
&utm_campaign=cppst, last visited on 6 May 2016.
16 Section 78 reads, “Using a child for vending, peddling, carrying, supplying or smuggling any intoxicating liquor, narcotic
drug or psychotropic substance. Whoever uses a child, for vending, peddling, carrying, supplying or smuggling any
intoxicating liquor, narcotic drug or psychotropic substance, shall be liable for rigorous imprisonment for a term which
may extend to seven years and shall also be liable to a fine up to Rs 1 lakh.”
17 Section 79 reads, “Exploitation of a child employee. Notwithstanding anything contained in any law for the time being in
force, whoever ostensibly engages a child and keeps him in bondage for the purpose of employment or withholds his
earnings or uses such earning for his own purposes shall be punishable with rigorous imprisonment for a term which
may extend to five years and shall also be liable to fine of Rs 1 lakh.
Explanation— For the purposes of this section, the term “employment” shall also include selling goods and services,
and entertainment in public places for economic gain.
18 India’s declaration under the CRC reads, “While fully subscribing to the objectives and purposes of the Convention,
realising that certain of the rights of child, namely those pertaining to the economic, social and cultural rights can only
be progressively implemented in the developing countries, subject to the extent of available resources and within the
framework of international co-operation; recognising that the child has to be protected from exploitation of all forms
including economic exploitation; noting that for several reasons children of different ages do work in India; having
prescribed minimum ages for employment in hazardous occupations and in certain other areas; having made regulatory
provisions regarding hours and conditions of employment; and being aware that it is not practical immediately to
prescribe minimum ages for admission to each and every area of employment in India – the Government of India
undertakes to take measures to progressively implement the provisions of article 32, particularly para 2 (a), in
accordance with its national legislation and relevant international instruments to which it is a State Party.”
19 Section 80 reads, “Punitive measures for adoption without following prescribed procedures. If any person or
organisation offers or gives or receives, any orphan, abandoned or surrendered child, for the purpose of adoption
without following the provisions or procedures as provided in this Act, such person or organisation shall be punishable
with imprisonment of either description for a term which may extend up to three years, or with fine of Rs 1 lakh, or with
both:
Provided in case where the offence is committed by a recognised adoption agency, in addition to the above punishment
awarded to the persons in-charge of, and responsible for the conduct of the day-to-day affairs of the adoption agency,
the registration of such agency under section 41 and its recognition under section 65 shall also be withdrawn for a
minimum period of one year.”
20 It was earlier known as the Suppression of Immoral Trafficking of Women and Girls Act 1956.
21 Section 81 reads, “Sale and procurement of children for any purpose. Any person who sells or buys a child for any
purpose shall be punishable with rigorous imprisonment for a term which may extend to five years and shall also be
liable to fine of Rs 1 lakh:
Provided that where such offence is committed by a person having actual charge of the child, including employees of a
hospital or nursing home or maternity home, the term of imprisonment shall not be less than three years and may
extend up to seven years.”
22 “Take this kiddie to England for £5k: We reveal SHOCKING trade in child slaves sold for just £5,250 on streets”, 4 April
2016.
http://www.thesun.co.uk/sol/homepage/news/7047329/SUN-INVESTIGATION-Brit-families-buy-child-slaves.html#, last
23 S82 reads, “Corporal punishment. (1) Any person in-charge of or employed in a child care institution, who subjects a
child to corporal punishment with the aim of disciplining the child, shall be liable, on the first conviction, to a fine of Rs
Page 8 of 8
10,000 and for every subsequent offence, shall be liable for imprisonment which may extend to three months or fine or
with both.
(2) If a person employed in an institution referred to in sub-section (1), is convicted of an offence under that sub-
section, such person shall also be liable for dismissal from service, and shall also be debarred from working
directly with children thereafter.
(3) In case, where any corporal punishment is reported in an institution referred to in sub-section (1) and the
management of such institution does not cooperate with any inquiry or comply with the orders of the Committee or
the Board or court or State Government, the person in-charge of the management of the institution shall be liable
for punishment with imprisonment for a term not less than three years and shall also be liable to fine which may
extend to Rs 1 lakh.”
24 Cops rescue children from Maoists, http://timesofindia.indiatimes.com/city/ranchi/cops-rescue-children-from-
maoists/articleshow/51517746.cms, last visited on 8 April 2016.
25 Section 83 reads, “Use of child by militant groups or other adults. (1) Any non-State, self-styled militant group or outfit
declared as such by the Central Government, if recruits or uses any child for any purpose, shall be liable for rigorous
imprisonment for a term which may extend to seven years and shall also be liable to fine of Rs 5 lakh.
(2) Any adult or an adult group uses children for illegal activities either individually or as a gang shall be liable for
rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine of Rs 5 lakh.”
26 Section 84 reads, “Kidnapping and abduction of child. For the purposes of this Act, the provisions of sections 359 to
369 of the Indian Penal Code, shall mutatis mutandis apply to a child or a minor who is under the age of 18 years and
all the provisions shall be construed accordingly.”
End of Document
6.2 CONCLUSION
Ved Kumari
6.2 CONCLUSION
In conclusion, it needs to be noted that there are many other acts that have been made punishable which are not
part of Chapter IX. For example, section 3 lays down the punishment of imprisonment up to six months or fine up to
ten thousand or both for violation of mandatory reporting of a missing child. In terms of the classification of offences
provided in section 86 which applies to all offences under the Act, the offence is non-cognisable and bailable.
Similarly the offence of non-registration of a child care institution is also non-cognisable and bailable being
punishable with maximum imprisonment of one year or a fine of not less than Rs 1 lakh or both under section 42. In
case of failure of the specialiased adoption agency to discharge its functions diligently and expeditiously, section
65(4) prescribes imposition of fine up to Rs 50,000 without specifying the agency that may impose the fine and also
leaving it to remain in the category of offences that are non-cognisable and bailable. With this scheme of things, it is
no wonder that nothing is happening when these offences happen. The Delhi High Court has asked the Police to
enforce the law regarding non-reporting of missing children within 24 hours and asked if any mechanism was in
place for doing so.27
Inclusion of many new offences against children in Chapter IX of the JJ Act, 2015 is the result of recognition that the
increase in the number of offences committed against children is a matter of concern. However, it is clear that the
legislature framed these offences as a symbolic action as many offences have been made non-cognisable and
bailable. No mechanism has been set up to initiate action for commission of the non-cognisable offences. Even if an
action is initiated pursuant to the direction of court, the accused has a right to be released on bail and thereby has
the potential to influence investigation or witnesses. A separate court proceedings will need to be initiated for
cancellation of bail after proving that the accused was hampering the investigation or influencing witnesses. Further,
the lacunae in drafting, the punishments prescribed, categorization of offences and creation of ambiguity about the
jurisdiction of children’s court and other courts do not reflect a concerted and sincere effort at bringing adult
offenders to book. Shortly speaking, this chapter and offences contained in other parts of the Act continue to be
symbolic in nature without any substantive effort at protecting children against exploitation and abuse by adults.
27 Akansksha Jain, Enforce law making non-reporting of missing kids a criminal offence, available at
http://www.thehindu.com/news/cities/Delhi/enforce-law-making-nonreporting-of-missing-kids-a-criminal-
offence/article8889020.ece, last visited on 23 July 2016.
End of Document
7 Miscellaneous Provisions
Ved Kumari
Miscellaneous Provisions
This chapter is divided in three parts. The first contains analyses of certain critical issues concerning children and
their rights. The second part consists of provisions that are general in nature and apply to situations and bodies
cutting across the division of children in conflict with law and children in need of care and protection. It includes
provisions relating to procedure to be followed by the Board and the Committee while conducting inquiry, appeals
and revision. The third part contains analyses of miscellaneous matters like protection of action taken in good faith,
power to make rules, repeal and savings and power to remove difficulties. It ends with general concluding
observations about the Juvenile Justice (Care and Protection of Children) Act 2015 (hereinafter referred as JJ Act,
2015).
End of Document
7.1 CRITICAL ISSUES
Ved Kumari
7.1 CRITICAL ISSUES

7.1.1 Age Determination
Whenever a child is produced before the Board or the Committee, the first question that it needs to determine is
whether on the relevant date, the person produced before it was below the age of 18 years. Only if the person
before it is a child or was a child on the relevant date, the Board or the Committee may exercise jurisdiction over
them. In case of children in conflict with law, three pertinent questions have been raised in relation to applicability of
the JJA and the age of the child. First, what is the relevant date on which the child should be below the specified
age? Is it the age on the date of commission of offence or age on the date of first production of the child before the
Board? This question was decided by the Constitutional Bench of the Supreme Court in Pratap Singh1 in which it
held that the age of the child on the date of commission of offence determines the applicability of the Act.2 The
same has now been incorporated in the definition of child in conflict with law which defines a child in conflict with
law as a child who has not completed the age of 18 years on the date of commission of offence. The second
question regarding age relates to evidence of age. What evidence may be relied upon? Who has the duty to raise
the question of age and who has the burden to prove the age? At what stage the question of age may be raised?
The JJ Act, 2000 had imposed a duty on all courts to determine the age of the person before them when that
person was apparently a child and also in those cases where the claim of juvenility was raised before them.3
Section 94 of the JJ Act, 2015 lays down the procedure to be followed by all courts, Board or the Committee
whenever they are required to determine the age of a child in relation to applicability of the JJ Act, 2015.
Section 94 differs in a major way from the earlier section as it provides for age determination by appearance when
there is no doubt that the person before them is a child. In case of doubt, it has provided for detailed directions for
age determination. Sub-section (1) of section 944 authorises the Board and the Committee to declare a person
before them as a child when from the appearance of the person it is “obvious” that such person is a child. In such
cases, it must note this fact and record the age of the child as nearly as may be possible and proceed with the
inquiry.
In case the Board or the Committee has reasonable doubt whether the person is a child or not, sub-section (2) of
section 94 makes the following provision for determination of age:
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it
is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by
seeking evidence by obtaining —
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7.1 CRITICAL ISSUES
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination
Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical
age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within
fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of
this Act, be deemed to be the true age of that person.
If the offence alleged to have been committed by them is heinous, the Board must in addition determine
conclusively if the child before them was below or above the age of 16 years on the date of commission of offence.
If the child was below the age of 16 years on the date of commission of offence, the Board may deal with the case
in the normal manner. However, if the Board determines the child to be above the age of 16 years on the date of
alleged commission of offence, the Board has to further determine whether to deal with the child themselves or to
transfer them to the Children’s Court. Hence, it becomes crucial that the age of the child is determined in the most
scientific manner.
With majority of children coming to the juvenile justice system not having a birth certificate and having dropped
much before their tenth standard, it will be a herculean task to determine with certainty that a particular child falls
within the crucial age range of 16–18 years. The report in THE HINDU5 is only one example of this difficulty. It has
reported that a tribal child was sent to jail in Kerala on the basis of his age recorded in the Aadhar Card for a
heinous offence. He was rescued by the District Child Protection Unit (hereafter referred as DCPU) and was then
produced before the JJB as his age was later determined to be 16 years. It further mentioned that “Age and details
of several other young Adivasis have reportedly been given in approximation as many of them did not have birth
certificates or school certificates.” This report also noted that this is not the first case from Kerala where a child was
sent to jail on wrong assumption of age. About a month ago, another child, incarcerated on wrong assumption of
age, was saved from a jail in Kozhikode by the Child Protection Unit.
The JJ Act, 2015 provides for giving preference to documentary evidence from school and birth certificate in age
determination over medical examination as was the case under the JJ Act, 2000. The medical evidence is to be
admitted only when neither of the two documentary evidences is available. However, it has narrowed down the
scope of medical examination. The JJ Act, 2000 had provided for determination of age by the medical board
conducting bone ossification test and dental and physical examination of the child. Combined finding of the medical
board consisting of experts in different fields of specialiastion reduced the margin of error from two years on either
side to six months on either side. However, the JJ Act, 2015 does not specifically state that age shall be determined
by a Board of Doctors. It merely states that age shall be determined by “bone ossification test or any other latest
medical age determination test” on the orders of the Board or the Committee. In a recently decided case of Siddu
@ Siddeshwar v State,6 the accused was charged under the POCSO Act, 2012 and he claimed to be a child below
the age of 18 years. Hence, he claimed to be dealt with under the provisions of the JJ Act, 2000. There were two
medical opinions, one based on the opinion of only the radiologist and the other was given by the medical board
consisting of physician, dentist and a radiologist. While the former had opined that the accused was 20 years of
age, the latter board had determined his age to be between 16–17 years on the date of the alleged offence. After
noting the statutory direction of age determination by a medical board, the Karnataka High Court directed the State
Government to constitute medical boards consisting of physiologist, dentist, radiologist, and forensic experts in all
the districts for carrying out age determination when the question arises in relation to children. It further directed the
State Government to inform all the doctors that they shall not conduct age determination alone. The recently
notified Juvenile Justice Rules 2016 has added no further clarification to this section but it is hoped that the
directions by the Karnataka High Court will be adopted by other States also to ensure determination of age as
accurate as possible.
Page 3 of 5
7.1 CRITICAL ISSUES
In order to transfer a child to the adult system, the JJB needs to give a clear finding that the child was above the
age of 16 years but below the age of 18 years on the date of commission of offence. In the absence of documentary
evidence, it is going to be daunting task by the Board to determine the age range by reference to the medical tests.
The Act also does not include any provision for giving benefit of doubt in favour of the child.
The Model Rules 2007 under the JJ Act, 2000 do contain a provision that in case of doubt the child should be given
the benefit up to one year on the lower side while determining the age on the basis of medical evidence7 and the
same has been reiterated by the Supreme Court as and when the occasion arose.8 However, even before this
provision was introduced in the Model Rules 2007, the Supreme Court in Rajendra Chandra9 had directed that
benefit of doubt up to one year on the lower side should be given to the child while determining the age of children.
It had also laid down in this case that the standard of proof for determination of age is preponderance of evidence
and not proof beyond reasonable doubt. The same principle needs to be adopted for determining the age limit at
both the lower and upper end.
While there is plenty of case law regarding age determination of children in conflict with law, it has been a non-issue
in relation to children in need of care and protection. There is not even one case reported at the High Court or
Supreme Court level where the child challenged the jurisdiction of the Committee on the ground of not being a child.
It seems that even though the Board and the Committee have the same objects of restoration, rehabilitation, and
reintegration of child in society, the proceedings before the Board are seen as a panacea against the possible
conviction by adult criminal courts and jail sentences. A child in need of care and protection is deprived of liberty10
when directed to be kept in a children home pursuant to the order of the Committee, but proceedings before the
Committee are seen as benevolent and not penal. Hence, there is not much discussion about rights of children
before the Committee at any stage during the pendency of proceedings relating to them before the Committee
whether it is about age determination or right to a lawyer against deprivation of liberty.
7.1.2 Right to a lawyer
Except for the Children Acts of Madras, East Punjab, Hyderabad and West Bengal, all other Children Acts passed
by various States prior to 1960 did not permit presence of a lawyer before the Children’s Court which were dealing
with both categories of children under those Acts, namely, delinquent and neglected children. The Children Act
1960 passed by the Centre established two different bodies to deal with the two categories of children. The
Children’s Court was to deal with children alleged to have committed offences and Child Welfare Board to deal with
neglected children. It also prohibited presence of a lawyer before the Competent Authority, a term used in that
legislation to refer to the Children’s Court and Child Welfare Board. In 1969, the provision prohibiting presence of a
lawyer in the Children’s Court in the Saurashtra Children Act was struck down as being unconstitutional in Kario
alias Mansingh Malu v State of Gujarat.11 Pursuant to this decision, the Children Act 1960 was amended nine years
later in 1978. Lawyers thereafter were allowed to be present by omitting the restriction on their presence but not by
specific provision guaranteeing their presence and assistance to children.12 This provision of the Children Act 1960
was carried verbatim in the Juvenile Justice Act 1986. However, in the Children Act 2000, any reference to any
prohibition before the either of the two bodies established under it to deal with children in conflict with law and
children in need of care and protection was omitted. The JJ Act, 2015 also does not contain any provision restricting
presence of lawyers before either of the two bodies but it does contain the fundamental principle that requires the
State to adhere to principles of natural justice, specifically mentioning right to fair hearing, in all proceedings by all
agencies.
In actual practice, the Boards have been ensuring that a child in conflict with law is represented by a lawyer either
hired by them or the legal aid lawyer provided by the Board. However, no such effort is made or deemed necessary
in case of children in need of care and protection. As any order directing the child to remain in a children home or
any other institution from where the child cannot leave at will, amounts to deprivation of liberty, non-provision of
lawyers in the proceedings before the Committee amounts to serious violation of fundamental right to a lawyer of
one’s own choice guaranteed by the Constitution of India.
7.1.3 Time Periods for Various Proceedings
To children we cannot say “tomorrow” as they are growing today and every day. Hence, their cases need to be
dealt with expeditiously. Keeping this dictum in mind, the JJ Act, 2015 has prescribed periods within which certain
actions and proceedings must be taken or completed. First of all, section 4(5) of the JJ Act, 2015 provides that the
Page 4 of 5
7.1 CRITICAL ISSUES
State Government must ensure induction training and sensitisation to all members of the Board including the
Principal Magistrate within 60 days of their appointment on care, protection, rehabilitation, legal provisions and
justice for children. Section 14(2) lays down the period of four months from the date of first production for disposal
of all inquiries by the Board. For reasons to be recorded in writing, this period may be extended for a period of two
more months in special circumstances. If the offence being inquired is petty, the proceedings must be closed if not
completed even after the extension of two months after four months.13 In case of serious or heinous offences, if any
further time is required, it may be granted only by the Chief Judicial Magistrate or the Chief Metropolitan Magistrate
for reasons to be recorded in writing.
The JJ Act, 2015 provides for age determination to be completed within 15 days in comparison to the JJ Act, 2000
which had provided for the time limit of 30 days for age determination. It surely indicates the need for prioritisation
of age determination while holding various inquiries relating to child as applicability of the whole Act is dependent
on this finding. However, 15 days are not sufficient if the evidence is to be procured from another district.
The preliminary assessment is to be completed within a period of three months from the date of first production as
per section 14(3) of the JJ Act, 2015. Of all the time limits, this is the most controversial as the preliminary
assessment is required to be completed within this period irrespective of whether the final report has been filed by
the police in the matter or not. In the absence of the final report, such assessment is done on the presumption that
the child indeed was involved in the commission of heinous offence which is against the principle of presumption of
innocence of the child.
While laying down of time lines indicated legislature’s concern and commitment for expeditious disposal of cases of
children, unreasonable time lines may lead to just the opposite result of they not being followed in most cases.
1 (2005) 3 SCC 551 [LNIND 2005 SC 100].

2 For detailed discussion, see, Ved Kumari, “Quagmire of Age Issues under the Juvenile Justice Act: From Inclusion to
Exclusion”, 51(2) JILI 163-186 (2009).
3 Section 9, JJ Act, 2015.
4 Section 94(1) reads, “Where, it is obvious to the Committee or the Board, based on the appearance of the person
brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said
person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as
may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further
confirmation of the age.”
5 http://www.thehindu.com/news/national/kerala/wrong-age-in-aadhaar-lands-tribal-child-in-jail/article8420740.ece#, last
6 Criminal Appeal No.200465/2015, date of decision 23 April 2016, available at http://www.livelaw.in/karnataka-hc-asks-
state-constitute-medical-boards-determination-juveniles-conflict-law-issues-directives/, last visited on 11 May 2016.
7 Rule 12(3)(b).
8 For example, see, Kulai Ibrahim @Ibrahim v State, (2014) 12 SCC 232; Shah Nawaz v State of UP, (2011) 13 SCC 751
[LNIND 2011 SC 728].
9 (2002) 2 SCC 287 [LNIND 2002 SC 59].
10 Rules 11(b) of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty provides that
“deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private
custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other
public authority.” G.A. res. 45/113, annex, 45 U.N. GAOR Supp. (No. 49A) at 205, U.N. Doc. A/45/49 (1990).
11 (1969) 10 Guj LR 60. For more details, see, Ved Kumari, Treatise on the Children Act 1986, pp 203–207 (1993) Indian
Law Institute.
12 Section 28 of the Children Act 1960 as amended in 1978 read, “No legal practitioner shall be entitled to appear before a
Board in any case or proceedings before it, except with the special permission of that Board.” The “Board” referred to in
this section is equivalent to the Child Welfare Committee in the JJ Act, 2015.
Page 5 of 5
7.1 CRITICAL ISSUES
End of Document
7.2 COMMON PROVISIONS
Ved Kumari

7.2.1 Procedures for the Board and Committee
Chapter X of the JJ Act, 2015 contains many provisions that apply to the Board and the Committee equally. For
example, section 9014 of the JJ Act, 2015 authorizes the Board or the Committee to require the parent or guardian
who has the actual charge or control of the child to be present during the proceedings whenever it may think it fit to
do so. Ordinarily, all proceedings must be conducted in the presence of the child but section 9115 permits the Board
or the Committee to dispense with the attendance of the child if it thinks that their attendance is not required.
However, when the attendance of the child is required, it is assumed that the child will come with an escort. Section
91(1) provides that in such cases, actual travel expenses of the child and one escort must be paid by the Board or
the Committee or the DCPU. This provision shows the recognition that many children and their escorts may be too
poor to bear the expenses of their travel. However, this Section needs to spell out clearly the circumstances in
which the Board or the Committee or the DCPU will be paying the expenses. Hence, proper and detailed Rules are
required to be framed so that the claimants would know clearly whom to approach for claiming their expenses. It will
also be important to specify that the actual expenses of the child and the escort must be paid on the same date as
the hearing. Asking them to come on another day for collecting the expenses will frustrate the very purpose of this
provision.
The Board and the Committee receive many reports from different sources. For example, the police have to file the
final report stating the total investigation done by them and final conclusion indicating the offence committed by the
child. The probation officer has to file the social investigation report. In case of 16–18 years old child alleged to
have committed a heinous offence, the experts will also be filing the preliminary assessment report. Even after a
child has been sent to an institution, the social workers attached with the residential institution also have to prepare
a progress report which has to be periodically filed before the Board or the Committee. Section 99 of the JJ Act,
2015 provides that all such reports are to be treated as confidential by the Board and the Committee. If necessary
and appropriate, the substance of the same may be communicated to the child or child’s parent or guardian or
another Board or the Committee in order to give them an opportunity to produce evidence relevant to the matter
stated in the report.16 Sub-section (2) of section 99, however, clarifies that the victim is entitled to all records and
papers in the case and nothing contained in the Act shall be used by anyone to deny them access to such records
and papers.
Ordinarily, a court does not have the power to amend its final orders but section 104 of the JJ Act, 2015 in clear
terms lays down17 that the Board and the Committee have the power to amend their own orders relating to the
institution to which a child has to be sent or the person under whose charge the child would be placed. There is no
need to file an appeal or revision petitions for getting these orders changed. The only requirement is that at least
two members of the Board including the Principal Magistrate or at least three members of the Committee must be
present while amending such order and they must hear all other persons who may be connected with the change
before amending the orders.
Page 2 of 6
Section 103 provides18 that the Board and the Committee are required to follow the summons procedure as laid
down in the Code of Criminal Procedure Code while conducting all inquiries under the Act as far as possible. It is a
general provision and is subject to any other provision expressly made in the JJ Act, 2015. For example, summon
procedure is not to be followed while disposing of petty offences by children. Section 14 (d) of the JJ Act, 2015
expressly provides that these cases are to be disposed of by following summary procedure.
7.2.2 Appeals and Revision
Sections 101 and 102 contain important provisions relating to appeals and revision under the JJ Act, 2015.
However, drafting of these provisions has created much scope for confusion. Section 101 provides19 that any
person aggrieved by an order of the Board or the Committee may file an appeal. However, the JJ Act, 2015
contains no definition of who is an “aggrieved person”? The Boards presently are flooded with complaints from the
fathers of young girls who are eloping or are having love affairs with boys of their own choice, against the wishes of
their fathers. These fathers are approaching the Board filing cases of kidnapping and abduction against the boys.
Sometimes they are able to prevail upon their daughters to support them in their complaint. At other times, the girls
end up in the child care institutions when they refuse to return to their parent. In such cases, the father may remain
aggrieved if the Board decides not to transfer the boy to the children’s court to be tried as an adult. The JJ Act,
2015 has been enacted to protect children and not to give a handle to the parents to stifle the agency of young
people in matters of choice or sexuality. Such children might be in need of supervision and guidance but that does
not mean that they should be tried as criminals by an adult court. However, by not limiting the persons who may file
an appeal against the order of the Board, such parents get an unfettered right to appeal against a just order of the
Board. Widening the scope of appeal also means that it will take much longer before a case relating to a child is
finally settled.
It further provides that the appeal may be filed ordinarily within 30 days from the date of order by the Board or the
Committee. However, any delay in filing the appeal may be condoned if there is sufficient reason due to which the
appeal could not be filed within the prescribed period. But when it comes to details regarding the forum for filing an
appeal, there is lot of confusion.
This provision, however, presents a big problem relating to the court to which the appeal is to be made. It is clear
that all appeals from the order of the Committee relating to Foster Care, Sponsorship, and Aftercare are to be filed
before the District Magistrate within 30 days as well as after 30 days. In all other cases, section 101 specifies two
different courts for filing the appeal against the order of the Board or the Committee. It provides that if the appeal is
filed within 30 days, it is to be filed before the Children’s Court. After the expiry of 30 days, the Court of Sessions
may entertain the appeal if it is satisfied that there was sufficient cause which prevented the appellant to approach
the court within time.
One fails to understand the rationale of this provision. Why is the Children’s Court referred to as the court of appeal
when in the scheme of the JJ Act, 2015, it functions as a trial court for all 16–18 years old children alleged to have
committed a heinous offence who have been transferred to it after preliminary assessment to be dealt with as
adults? The Court of Sessions when designated and functioning as the Children’s Court determines whether the
16–18 years old children transferred before it to be tried as adults have committed the alleged offence or not.
Hence, it is a trial court for this category of children like the Board is for other children in conflict with law. It defies
reason why the Court of Session is the appellate court when the appeal is filed beyond the period of 30 days but not
when the appeal is filed earlier? It seems that there is a drafting error in this section. The benefit of making the
Children’s Court as the court of appeal in all matters except transfer may be that the main matter may also be
disposed of by the Children’s Court functioning as the Board after deciding the appeal and that may result in
expeditious disposal of cases without the need for sending it back to the Board. On the downside of this
interpretation, children below the age of 16 years committing petty or serious offences may also end up being dealt
with by the Children’s Court without the beneficial inputs by the social work members who are members of the
Board.
Further, the Court of Session entertaining the appeal after the expiry of 30 days is obligated to dispose of the
appeal within a period of 30 days. No such time limit has been prescribed for disposing of an appeal filed before the
Children’s Court within the period of 30 days. This omission may lead to the consequence that an appeal filed
before the Court of Sessions after the expiry of period of limitation for filing appeal, may be disposed of sooner by
the Court of Session compared to an appeal filed before the Children’s Court within the limitation period.
It is submitted that in the scheme of the JJ Act, 2015, the appropriate court of appeal against the order of the Board
or the Committee is the Court of Sessions. This drafting mistake needs to be corrected by replacing “Children’s
Page 3 of 6
Court” by “Court of Sessions” in sub-section (1) of section 101. This approach is further justified in view of sub-
sections (4) and (5) of section 101. Sub-section (4) prohibits a second appeal against the order of the Sessions
Court. It means that no second appeal may be filed by the aggrieved person before the High Court in cases where
the first appeal has been disposed of by the Court of Sessions. However, sub-section (5) provides that an appeal
may be filed before the High Court by a person aggrieved by the order of the Children’s Court. It means that a
person who filed an appeal before the Children’s Court within a period of 30 days against the order of the Board,
may file another appeal to the High Court if aggrieved by the order of the Children’s Court. This leads to the
incongruous situation of giving different chances of appeal depending on when was the appeal filed. If the Sessions
Court is declared to be the court of appeal in all matters decided by the Board, and the High Court becomes the
court of appeal against all orders made by the Children’s Court, all persons aggrieved by the order of the Board or
the Children’s Court will have the equal right to one appeal on equal footing. However, this drafting error has not
been rectified in the corrigendum or the Rules framed under the Act.
The scope of appeal under the JJA is much wider than was provided under the earlier legislation. Under the JJ Act,
2000, only the child found to be in conflict with law by the Board or a child found to be neglected by the Committee
could file an appeal. Everybody else who felt aggrieved by the order of the Board or the Committee could approach
the higher court only through the process of revision or writ jurisdiction. The JJ Act, 2015, however, has opened a
Pandora box by permitting “an aggrieved person” to file an appeal against any order of the Board or the Committee.
The wide scope of appeals will be a hindrance in speedy closer of proceedings against the child and it will come in
the way of the child moving ahead in life and settling down whereas the JJ Act, 2015 has set the time limit of four
months to decide all cases related to children so that they may move on to rehabilitation and reintegration speedily.
Sub-section (2) of section 101 clearly mentions that an order relating to transfer of children under section 15 is
appealable before the Sessions Court. While section 101(2) does not mention who may file the appeal, section 15
states any aggrieved person may appeal against the order relating to transfer. It may be noted that section 15 or
section 101 does not limit the scope of appeal only to the order transferring the child to the Children’s Court. An
order of the Board not transferring the child to the Children’s Court is as much appealable as the order directing
transfer of the child.
An aggrieved person may file only one appeal against the order of the JJB but it does not prohibit cross appeal from
the same order by the child as well as the victim. For example, a JJB may determine the age of the child to be 17
years but may decide not to transfer the child to the Children’s Court even though alleged to have committed a
heinous offence. In this case the child may challenge the age determination claiming to be less than 16 years of
age and the victim may file an appeal against the non-transfer of the child to the children’s court. Or, a child who
has been transferred to the Children’s Court to be tried as an adult, may appeal again to the High Court against the
order of the Children Court deciding to try the child as an adult. Later, another appeal may be made by the other
aggrieved party challenging the appropriateness of the final order passed by the Children’s Court. However, if such
cross-appeals were decided by the Court of Session, no second appeal is permissible to the High Court.
The scheme of appeals included in the JJ Act, 2015 will result in long delays in the final disposal of cases of 16–18
years old children alleged to have committed a heinous offence. The JJ Act, 2000 permitted no appeal against the
finding of the JJB that the child had not committed an offence. Any person aggrieved by such order of the JJB could
approach the higher courts only through revision or writ petition. In all such cases the High Court or the Supreme
Court had the option of refusing admission at the initial stage itself without assigning reasons in writing. For
example, in Nadeem v State,20 the Delhi High Court refused to entertain an appeal challenging determination of age
by the session judge by referring to sections 52 and 53 of the JJ Act, 2000, simply saying that the High Court had
no appellate powers under the Act and could be approached only through revision. In such cases, the appellate
court will be duty bound to hear the appeal on merits following the principles of fair trial and disposing the matter by
giving reasons in writing.
Sub-section (3) of section 101 is on lines similar to the earlier legislation. If the Committee finds that the child is not
neglected or the order of the Board is that the child has not committed an offence, it prohibits any appeal except in
case of a 16–18 years old child alleged to have committed a heinous offence. It means that if the Board decides to
deal with a 16–18 years old child alleged to have committed a heinous offence itself and comes to a finding that
they have not committed the alleged offence, an appeal may be filed against such an order by the aggrieved
person. This provision certainly is not in consonance with the fundamental principle of best interest of children as it
exposes a 16–18 years old child alleged to have committed a heinous offence to long term litigation merely
because of the accusation even though the Board found that they had not committed the offence. This long drawn
litigation process brought in by appeal puts the whole future and the formative years of a young child at stake.
Page 4 of 6
The JJ Act, 2015 first permits one appeal by an aggrieved party against any order of the JJB in case of 16–18 years
old children alleged to have committed a heinous offence. Second, it permits appeal by any aggrieved person
against an order of the Children’s Courts. In addition, the appellate remedies of revision and writ petitions may also
be resorted to by an aggrieved person. The appellate remedies are not limited to only the final order of the JJB or
the Children’s Court but include many interim orders also. For example, in case of a 16–18 years old child alleged
to have committed a heinous offence, the JJB is required to determine a range of questions. Should the child be
released on bail or not? Whether the child was above the age of 16 years but below the age of 18 years on the date
of alleged commission of offence? Whether the offence in question is a heinous offence? Whether there is a prima
facie case made out against the child? Then it has to procure the preliminary assessment report from experts. After
that it has to determine whether the child should be transferred to the Children’s Court to be tried as an adult? Each
one of these orders is open for appeal by the aggrieved person. It is not clear if an aggrieved person may file one
appeal regarding each one of these orders to the session court. If so, it will be years before the Children’s Court is
ceased of the order.
Once the Children’s Court is ceased of the matter, it has to first reassess whether the child should be tried as an
adult or a child, conduct the inquiry or trial as the case may be, determine if the child had committed the offence or
not, and then to pass the final order. Each one of these may give rise to an appeal by the aggrieved person. With
this range of appeals, revision and the constitutional remedies of Special Leave Petition, it will not be surprising if
we see the first case of 16–18 years old child alleged to have committed a heinous offence taking decades before it
is finally decided.
It must be remembered that provisions relating to appeal have very different consequences than those relating to
revision. A provision enabling appeal creates a right in the aggrieved person to file appeal and the courts have no
discretion not to admit it. The court has to decide the matter on merit. A revision petition filed by an aggrieved
person, however, stands on a different footing as the court may decide not to admit it.
Section 102 of the JJ Act, 2015 provides21 that the High Court may initiate revision proceedings either on its own
motion or on an application received from an aggrieved person for various purposes like review of the legality or
propriety of any order passed by the Committee, or Board, or Children’s Court, or any other court in order to pass
appropriate orders. The proviso to this Section specifies that the High Court must not pass an order prejudicial to
any person without giving an opportunity to such a person to be heard.
The Kerala High Court was the first in initiating a case in revision suo motu when it found many anomalies in the
way the neglected children were treated like offenders. They were not permitted early release as if they had been
sentenced for a term under the Children Act in force at that time.22 The High Court of Delhi too has initiated some
iconic cases suo motu under the JJ Act, 2000 and passed orders that have very positively impacted on the
implementation of that Act. In Court on its Own Motion v Dept of Women and Child Development,23 the High Court
of Delhi, taking cognisance of the Police atrocities in maintaining juvenile delinquents in adult jails and several
irregularities and illegalities committed in treating adolescents found in the jails, gave many directions to the police,
JJBs and the NCPCR for ensuring protection of children as per the provisions of the JJA on different occasions.24
14 Section 90 reads, “Attendance of parent or guardian of child: The Committee or the Board, as the case may be, before
which a child is brought under any of the provisions of this Act, may, whenever it so thinks fit, require any parent or
guardian having the actual charge of the child to be present at any proceeding in respect of that child.”
15 Section 91 reads, “Dispensing with attendance of child- (1) If, at any stage during the course of an inquiry, the
Committee or the Board is satisfied that the attendance of the child is not essential for the purpose of inquiry, the
Committee or the Board, as the case may be, shall dispense with the attendance of a child and limit the same for the
purpose of recording the statement and subsequently, the inquiry shall continue even in the absence of the child
concerned, unless ordered otherwise by the Committee or the Board.
(2) Where the attendance of a child is required before the Board or the Committee, such child shall be entitled to
travel reimbursement for self and one escort accompanying the child as per actual expenditure incurred, by the
Board, or the Committee or the District Child Protection Unit, as the case may be.
16 Section 99 reads, “Reports to be treated as Confidential- (1) All reports related to the child and considered by the
Committee or the Board shall be treated as confidential: Provided that the Committee or the Board, as the case may
be, may, if it so thinks fit, communicate the substance thereof to another Committee or Board or to the child or to the
child’s parent or guardian, and may give such Committee or the Board or the child or parent or guardian, an opportunity
of producing evidence as may be relevant to the matter stated in the report.
Page 5 of 6
(2) Notwithstanding anything contained in this Act, the victim shall not be denied access to their case record, orders
and relevant papers.”
17 Section 104 reads, “Power of the Committee or the Board to amend its own orders- (1) Without prejudice to the
provisions for appeal and revision contained in this Act, the Committee or the Board may, on an application received in
this behalf, amend any orders passed by itself, as to the institution to which a child is to be sent or as to the person
under whose care or supervision a child is to be placed under this Act:
Provided that during the course of hearing for amending any such orders, there shall be at least two members of the
Board of which one shall be the Principal Magistrate and at least three members of the Committee and all persons
concerned, or their authorised representatives, whose views shall be heard by the Committee or the Board, as the case
may be, before the said orders are amended.
(2) Clerical mistakes in orders passed by the Committee or the Board or errors arising therein from any accidental slip
or omission may, at any time, be corrected by the Committee or the Board, as the case may be, either on its own
motion or on an application received in this behalf.”
18 Section 103 reads, “Procedure in inquiries, appeals and revision proceedings- (1) Save as otherwise expressly
provided by this Act, a Committee or a Board while holding any inquiry under any of the provisions of this Act, shall
follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the procedure laid
down in the Code of Criminal Procedure, 1973 for trial of summons cases.
(2) Save as otherwise expressly provided by or under this Act, the procedure to be followed in hearing appeals or
revision proceedings under this Act shall be, as far as practicable, in accordance with the provisions of the Code of
Criminal Procedure, 1973.”
19 Section 101 reads, “Appeals (1) Subject to the provisions of this Act, any person aggrieved by an order made by the
Committee or the Board under this Act may, within thirty days from the date of such order, prefer an appeal to the
Children’s Court, except for decisions by the Committee related to Foster Care and Sponsorship After Care for which
the appeal shall lie with the District Magistrate:
Provided that the Court of Sessions, or the District Magistrate, as the case may be, may entertain the appeal after the
expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the
appeal in time and such appeal shall be decided within a period of thirty days.
(2) An appeal shall lie against an order of the Board passed after making the preliminary assessment into a heinous
offence under section 15 of the Act, before the Court of Sessions and the Court may, while deciding the appeal,
take the assistance of experienced psychologists and medical specialists other than those whose assistance has
been obtained by the Board in passing the order under the said section.
(3) No appeal shall lie from—
(a) any order of acquittal made by the Board in respect of a child alleged to have committed an offence other than
the heinous offence by a child who has completed or is above the age of sixteen years; or
(b) any order made by a Committee in respect of finding that a person is not a child in need of care and
protection.
(4) No second appeal shall lie from any order of the Court of Session, passed in appeal under this section.
(5) Any person aggrieved by an order of the Children’s Court may file an appeal before the High Court in accordance
with the procedure specified in the Code of Criminal Procedure, 1973.”
20 2014 SCC OnLine Del 336; (2014) 207 DLT 337.
21 Section 102 reads, “ Revision- The High Court may, at any time, either on its own motion or on an application received
in this behalf, call for the record of any proceeding in which any Committee or Board or Children’s Court, or Court has
passed an order, for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such
order in relation thereto as it thinks fit:
Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a
reasonable opportunity of being heard.”
22 Sunil Kumar v State, 1983 Cr LJ 99.
23 W.P.(C) 8889/2011.
24 Various orders passed by the High Court of Delhi are available at
http://delhihighcourt.nic.in/dhc_case_status_oj_list.asp?pno=603896, last visited on 13 November 2016.
Page 6 of 6
End of Document
7.3 MISCELLANEOUS
Ved Kumari
7.3 MISCELLANEOUS
7.3.1 Protection of Actions taken in Good Faith
Like all legislations, the JJA also protects all actions taken in good faith by the Central Government, or the State
Government or any person acting under the direction of such government in respect of anything done in pursuance
of this Act or any rules or regulations made thereunder.25 This provision does not protect any violence or abuse
caused to a child by the police or any other official functioning in their official capacity in the name of seeking
information or discipline. The Indian Penal Code states that “Nothing is said to be done or believed in “good faith”
which is done or believed without due care and attention.”26 As noted earlier, section 75 makes cruelty to children
by any person who has got actual charge or custody of children a punishable offence and causing cruelty can never
be covered within the expression “acts done in good faith”.
7.3.2 Power to Make Rules
Section 110 gives rule making powers to the State governments while allowing the Central Government to make
Model Rules that will apply till the State Rules are framed on the subject.27 The corresponding section in the JJ Act,
2000 had originally given the power to make rules to the State Government and it had made no reference to the
Central Government. The Central Government had however, gone ahead and framed Model Rules 2001. In Pratap
Singh v State of Jharkhand28, the Supreme Court, however, held that those Rules had no force of law as the
Central Government had not been given any authority to make rules. The rule making provision was later amended
by the Juvenile Justice (Care and Protection of Children) Amendment Act 2006 authorising the Central Government
to make Model Rules. Pursuant to this Amendment, the Central Government did make a new set of Rules, namely,
Model Rules 2007 which applied to all States who had still not framed their rules. The present section 110(1) reads
the same as the earlier corresponding section 68 of the JJ Act, 2000 as amended in 2007. Even so, the question of
responsibility to frame rules under the JJ Act, 2015 has been raised again in the ongoing Vishanta Case in which
both Haryana Government and the Centre put the responsibility to frame rules on the other.29
On 25 May 2016, the Ministry of Women and Child Development had put the Draft Model Rules under the JJ Act,
2015 on its website for comments and feedback by the civil society members. The deadline for receiving those
comments was 9 June 2016 giving barely two weeks to comment on the 167 page document with additional 156
pages of Forms.30 The feedback was to be limited to five pages at the most. Almost a month later, there was no
further information regarding the feedback received or the finalized Model Rules. My brief comments on the Draft
Model Rules were limited to the most important points relating to transfer of children.31 The Draft Model Rules did
lay down that while conducting preliminary assessment, the Board shall take into consideration the following
grounds32:
(i) whether the child also qualifies as a child in need of care and protection;
(ii) whether the child has himself been a victim of any offence in the past;
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7.3 MISCELLANEOUS
(iii) whether the child has had a history of abuse and exploitation;
(iv) whether the unlawful conduct has been done for survival;
(v) whether the alleged offence has been committed due to situational factors such as the child being put to
extreme mental trauma and cruelty to compel him to commit an offence;
(vi) whether the child had committed the offence under coercion or fear of mental or physical harm to himself
or to some other person;
(vii) whether the alleged offence has been committed under the control of adults, or with an adult or the child
has been used by a group of adults, and if so, the Board shall consider the aspect whether independent of
the influence of the adults, the child may not have committed the offence;
(viii) whether the child suffers from a mental illness;
(ix) whether the child is prone to taking drugs or alcohol;
(x) whether the child is under the influence of peer groups or associates with those who present risk of harm
e.g. sexual offenders, drug peddlers etc., or criminals;
(xi) whether the child has been involved in violent incidents prior to the alleged offence;
(xii) whether the child has been previously involved in any offence;
(xiii) whether the child has suicidal tendencies or of harming himself;
(xiv) whether the child has been exposed to media, internet including pornography and media depicting
violence;
(xv) personality traits and habits of the child;
(xvi) whether the child was aware of what he has done and his perception of the act; and
(xvii) whether the child has been recruited or used by any non-State, self-styled militant group or outfit
declared as such by the Central Government.
However, these contain no indications to determine which of these will be seen as factors in favour of transfer and
which will be against transfer.
Rule 14(7) of the Draft Model Rules was self-contradictory when it reiterated on the one hand the fundamental
principle that the child in conflict with law was presumed to be innocent of any malafide or criminal intent up to the
age of 18 years, but allowed the Board to consider material available on record which prima facie dispelled the
presumption. At the stage of preliminary assessment that needed to be completed within three months, even the
final report of the Police might not be available for it to be reliable information on the face of it. It meant that the
Board might consider transfer just on the basis of allegations made in the first information report without any proof
of even the involvement of the child in the commission of offence. Such allegations must not ever be considered
sufficient to displace the presumption of innocence of mala fide intent so forcefully and in clear terms included in the
general principles contained in section 3 of the JJ Act, 2015 which are declared to be fundamental in the
implementation of the Act to be observed by all functionaries under the Act.
Section 19 of the JJ Act, 2015 mentions that the Children’s Court shall pass “appropriate orders” in “the best
interest of child” after trying the 16–18 years old who is found to have committed a heinous offence. The Draft
Model Rules provided no further insights as to what constituted the “appropriate order” under this section of the JJ
Act, 2015. It has not been clarified in the Juvenile Justice Rules 2016 also.
Similar was the problems of role and responsibilities of “Place of Safety” if children below the age of 16 years or
persons older than 21 years were sent to it for different reasons under the Act. There was no further elaboration of
the facilities to be provided to inmates kept in the Place of Safety during pendency of proceedings and those sent
there after conclusion of the proceedings or trial, as the case might be. There was also no mention of what kind of
support might still be provided to a child transferred to a jail after attaining the age of 21 years who was found not
ready to be released after assessment as provided in section 20.
There was no attempt even to deal with the ambiguity created by referring to the Children’s Court in the first part
and to Sessions Court in the second part of section 101(1) dealing with appeals.
A large number of areas had been pointed out by many concerned members of civil society, and activists. One only
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7.3 MISCELLANEOUS
hoped that at least some of the gaps pointed out by them will be taken note of and the Draft Model Rules will be
suitably amended.
Final Juvenile Justice Rules 2016 have been notified on 21 September 2016 by the Government of India in the
Gazette33 but strangely these are not available on the website of the Ministry of Women and Child Development.
Even a search on internet by using the search phrase “Juvenile Justice Rules 2016” does not yield any results for
this document but only to the Draft Model Rules. Curiously though, this Gazette Notification can be found on a
completely unconnected website34 and unless one has the website address, it is next to impossible to trace the
Juvenile Justice Rules 2016. This Gazette Notification contains the Hindi version in 175 pages and the English
version in 163 pages of which 99 pages are of substantive rules and the remaining consist of 43 forms to be filled
for various purposes relating to the proceedings before the adjudicatory body or progress made by the child over
period of time. As no information has been uploaded on the website about the feedback given by various
stakeholders on the Draft Model Rules, it is not possible to determine which suggestions were accepted and which
were rejected.
A quick look at the Model Rules 2016 relating to preliminary assessment shows that these continue to contain some
problematic provisions. For example, Rule 10 dealing with post-production procedure by Board states in clause 8 as
follows:
While examining a child alleged to be in conflict with law and recording his statement during the inquiry under
section 14 of the Act, the Board shall address the child in a child-friendly manner in order to put the child at ease
and to encourage him to state the facts and circumstances without any fear, not only in respect of the offence which
has been alleged against the child, but also in respect of the home and social surroundings, and the influence or the
offences to which the child might have been subjected to. (Emphasis supplied)
The direction to the Board to encourage the child to state the facts and circumstance without any fear with respect
to the offence may yield statements from the child that may inculpate the child without any warning or information
about their constitutional right to remain silent. Similar provision has been included in Rule 13 also in relation to the
Children’s Court while assessing whether the child transferred to it by the Board after preliminary assessment
should be tried as an adult or be dealt with as a child.
The Rules do not make it mandatory for the Board to take assistance of psychologists or psycho-social workers or
other experts who have experience of working with children in difficult circumstances while making preliminary
assessment as Rule 10A(2) also uses the word “may” as in the parent Act.
Rule 11 has filled in an important gap found in the JJ Act, 2015. It clearly lays down that in case the Board decides
to itself dispose the matter of a child above 16 years alleged to have committed a heinous offence after preliminary
assessment, it may pass orders under section 18 of the JJ Act, 2015. However, if such a child is transferred by the
Board to the Children’s Court to be tried as an adult, the Rules reiterate that the Children’s Court will again assess if
such a child should be tried as an adult or be dealt with as a child but, like the parent Act, contains no guidelines on
the basis of which the Children’s Court should be making that decision. Even some of the factors that were
contained in the draft Rules have been omitted from these Rules.
Rule 13(8)(iii) contains the direction, “Where the child has been found to be involved in the offence, the child may
be sent to a place of safety till the age of 21 years”. Does the word “may” in this Rule suggests that it is not
compulsory that each child must be sent to a place of safety till the age of 21 years? Again, section 19 does little to
clarify what all may amount to “appropriate orders” that need to be passed by the Children’s Court “considering the
special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere keeping in view the
best interest of the child.”35 The subsequent clauses also use the same phrases as used in the legislation and do
not clarify whether there may be situations when a child may be released by the Superintendent from the place of
safety before reaching the age of 21 years without a direction from the Children’s Court? Whether in all cases the
Children’s Court is required to determine whether the child should be released from the place of safety even when
the period for which a child is sent to place of safety gets over before attaining the age of 21 years? There is no
doubt that in all cases where the period directed by the Children’s Court for keeping the child in the place of safety
goes beyond their attaining the age of 21 years, the Children’s Court will have to decide if the child is ready to be
released from the place of safety or should the child be sent to jail.
To sum up, it may be stated that the Juvenile Justice Rules 2016 add little to clarify the crucial and most important
changes introduced in the juvenile justice system by the JJ Act, 2015, namely, preliminary assessment by the
Board, transfer of children to the Children’s Court to be tried as adults, and appropriate orders if the child is tried as
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7.3 MISCELLANEOUS
an adult and found to have committed the offence.
7.3.3 Repeal and Savings
Many people refer to the changes introduced by the JJ Act, 2015 as amendments to the JJ Act, 2000 as main
provisions have remained the same as were in the JJ Act, 2000. However, section 111 (1) clearly states that the
“Juvenile Justice (Care and Protection of Children) Act, 2000 is hereby repealed.” It must be noted that the JJ Act,
2015 has repealed the JJ Act, 2000 and not merely amended it. The most important consequence of this distinction
is that the Rules framed under the JJ Act, 2000 are no more applicable to the JJ Act, 2015. It is for this reason that
the new Juvenile Justice Rules 2016 have been notified under the JJ Act, 2015.
However, sub-section (2) of section 111 saves anything done or any action taken under the earlier Act by declaring
that all such acts are deemed to have been done or taken under the corresponding provisions of this Act.36 For
example, if a 16–18 year old child found to have committed an offence and sent to a special home under the JJ Act,
2000, it will be deemed that they have been sent to the special home under the provisions of the JJ Act, 2015.
Similarly, proceedings initiated and continuing under the JJ Act, 2000 will have to be disposed of by reference to the
provision of the JJ Act, 2000 but the same will be deemed to have been done and disposed of under the JJ Act,
2015 even though those cases will have to be disposed of as per the provisions of the JJ Act, 2000. We may take
the case of a 16–18 year child who was apprehended for allegedly committing murder before 15 January 2016. This
offence falls within the definition of heinous offence under the JJ Act, 2015. However, no preliminary assessment
can be done in such cases due to the prohibition contained in Article 20 of the Constitution of India. This case will
have to be processed and disposed of as per the provisions of the JJ Act, 2000 and this will be deemed to have
been done under the provisions of the JJ Act, 2015 even though the new Act mandates preliminary assessment in
such cases.
7.3.4 Power to remove difficulties
Section 112 gives the Central Government the power to remove difficulties discovered in the implementation of the
Act within a period of two years by placing them before each House of Parliament at the earliest.37 The Government
of India did issue a corrigenda and carried out the following corrections38:
(a) at page 13, line 20, for “applealable”, read “appealable”;

(b) at page 22, -
(i) in line 39, for “protection of children”, read “protection or children”;

(ii) in line 44, for “fulfill”, read “fulfil”;
(c) at page 40, line 29, for “clause (18)” read “clause (17)”.
It is apparent that this corrigenda contains only some spelling and grammatical mistakes and does not address
other significant drafting issues in the Act as noted earlier in this book. The most glaring among them are the
problems relating to the definitions relating to petty, serious and heinous offences and provisions relating to appeal
to the Children’s Court. It seems that it will be left to the Courts either to strike those provisions down or fill in the
ambiguities or correcting the mistakes left in the JJA by the legislature.
25 Section 100 reads, “Protection of action taken in good faith- No suit, prosecution or other legal proceeding shall lie
against the Central Government, or the State Government or any person acting under the directions of the Central
Government or State Government, as the case may be, in respect of anything which is done in good faith or intended to
be done in pursuance of this Act or of any rules or regulations made thereunder.”
26 Section 52, IPC.
27 110. Power to make rules (1) The State Government shall, by notification in the Official Gazette, make rules to carry out
the purposes of this Act:
Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to
which the State Government is required to make rules and where any such model rules have been framed in respect of
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7.3 MISCELLANEOUS
any such matter, they shall apply to the State mutatis mutandis until the rules in respect of that matter are made by the
State Government and while making any such rules, they conform to such model rules.
(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any
of the following matters, namely:
(i) manner of inquiry in case of a missing or run away child or whose parents cannot be found under sub-
clause (vii) of clause (14) of section 2;
(ii) responsibilities of the Child Welfare Officer attached to a Children’s Home under clause (18) of section 2;
(iii) qualifications of the members of the Board under sub-section (2) of section 4;
(iv) induction training and sensitisation of all members of the Board under sub-section (5) of section 4;
(v) term of office of the members of the Board and the manner in which such member may resign under sub-
section (6) of section 4;
(vi) time of the meetings of the Board and the rules of procedure in regard to the transaction of business at its
meeting under sub-section (1) of section 7;
(vii) qualifications, experience and payment of fees of an interpreter or translator under clause (d) of sub-
(viii) any other function of the Board under clause (n) of sub-section (3) of section 8;
(ix) persons through whom any child alleged to be in conflict with law may be produced before the Board and
the manner in which such a child may be sent to an observation home or place of safety under sub-section (2)
of section 10;
(x) manner in which a person apprehended and not released on bail by the officer-in-charge of the police
station may be kept in an observation home until such person is brought before a Board under sub-section (2)
of section 12;
(xi) format for information on pendency in the Board to the Chief Judicial Magistrate or the Chief Metropolitan
Magistrate and District Magistrate on quarterly basis under sub-section (3) of section 16;
(xii) monitoring procedures and list of monitoring authorities under sub-section (2) of section 20;
(xiii) manner in which the relevant records of the child may be destroyed by the Board, police or the court
under sub-section (2) of section 24;
(xiv) qualifications of the members of the Child Welfare Committee under sub- section (5) of section 27;
(xv) rules and procedures with regard to transaction of business at the meetings of the Child Welfare
Committee under sub-section (1) of section 28;
(xvi) process of restoration of abandoned or lost children to their families under clause (x) of section 30;
(xvii) manner of submitting the report to the Committee and the manner of sending and entrusting the child to
Children’s Home or fit facility or fit person under sub-section (2) of section 31;
(xviii) manner of holding an inquiry by the Child Welfare Committee under sub- section (1) of section 36;
(xix) manner in which a child may be sent to a Specialised Adoption Agency if the child is below six years of
age, Children’s Home or to a fit facility or person or foster family, till suitable means of rehabilitation are found
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7.3 MISCELLANEOUS
for the child including manner in which situation of the child placed in a Children’s Home or with a fit facility or
person or foster family, may be reviewed by the Committee under sub-section (3) of section 36;
(xx) manner in which a quarterly report may be submitted by the Committee to the District Magistrate for
review of pendency of cases under sub-section (4) of section 36;
(xxi) any other order related to any other function of the Committee under clause (iii) of sub-section (2) of
section 37;
(xxii) information to be given every month by the Committee to State Agency and Authority regarding number
of children declared legally free for adoption and number of cases pending under sub-section (5) of section
38;
(xxiii) manner in which all institutions under this Act shall be registered under sub-section (1) of section 41;
(xxiv) procedure for cancelling or withholding registration of an institution that fails to provide rehabilitation and
re-integration services under sub-section (7) of section 41;
(xxv) manner in which information shall be sent every month by the open shelter to the District Child
Protection Unit and Committee under sub-section (3) of section 43;
(xxvi) procedure for placing children in foster care including group foster care under sub-section (1) of section
44;
(xxvii) procedure for inspection of children in foster care under sub-section (4) of section 44;
(xxviii) manner in which foster family shall provide education, health and nutrition to the child under sub-
(xxix) procedure and criteria in which foster care services shall be provided to children under subsection (7) of
section 44;
(xxx) format for inspection of foster families by the Committee to check the wellbeing of children under sub-
(xxxi) purpose of undertaking various programmes of sponsorship of children, such as individual to individual
sponsorship, group sponsorship or community sponsorship under sub-section (1) of section 45;
(xxxii) duration of sponsorship under sub-section (3) of section 45;
(xxxiii) manner of providing financial support to any child leaving institutional care on completing 18 years of
age under section 46;
(xxxiv) management and monitoring of observation homes, including the standards and various types of
services to be provided by them for rehabilitation and social integration of a child alleged to be in conflict with
law and the circumstances under which, and the manner in which, the registration of an observation home
may be granted or withdrawn under sub-section (3) of section 47;
(xxxv) management and monitoring of special homes including the standards and various types of services to
be provided to them under sub-section (2) and sub-section (3) of section 48;
(xxxvi) monitoring and management of children’s homes including the standards and the nature of services to
be provided by them, based on individual care plans for each child under sub-section (3) of section 50;
(xxxvii) manner in which a Board or the Committee shall recognise, a facility being run by a Governmental
organisation or a voluntary or non-governmental organisation registered under any law for the time being in
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7.3 MISCELLANEOUS
force, fit to temporarily take the responsibility of a child for a specific purpose after due inquiry regarding the
suitability of the facility and the organisation to take care of the child under sub-section (1) of section 51;
(xxxviii) procedure of verification of credentials, for recognising any person fit to temporarily receive a child for
care, protection and treatment of such child for a specified period by the Board or the Committee under sub-
(xxxix) manner in which services shall be provided by an institution under this Act for rehabilitation and re-
integration of children and standards for basic requirements such as food, shelter, clothing and medical
attention under sub-section (1) of section 53;
(xl) manner in which Management Committee shall be set up by each institution for management of the
institution and monitoring of the progress of every child under sub-section (2) of section 53;
(xli) activities that may be taken up by children’s committees under sub-section (3) of section 53;
(xlii) appointment of inspection committees for all institutions registered or recognised fit, for the State and
district under sub-section (1) of section 54;
(xliii) manner in which Central Government or State Government may independently evaluate the functioning
of the Board, Committee, special juvenile police units, registered institutions, or recognised fit facilities and
persons, including the period and through persons or institutions under sub-section (1) of section 55;
(xliv) manner in which institutions shall furnish details of children declared legally free for adoption to the
Specialised Adoption Agency under sub-section (2) of section 66;
(xlv) any other function of the Authority under clause (e) of section 68;
(xlvi) criteria for the selection or nomination of the Members of the Steering Committee of the Authority and
their tenure as well as the terms and conditions of their appointment under sub-section (2) of section 69;
(xlvii) manner in which Steering Committee of the Authority shall meet under sub-section (4) of section 69;
(xlviii) manner in which the Authority shall submit an annual report to the Central Government under sub-
(xlix) functions of the Authority under sub-section (2) of section 72;
(l) manner in which the Authority shall maintain proper accounts and other relevant records and prepare an
annual statement of accounts under sub-section (1) of section 73;
(li) period that the Committee or Board may think necessary for the treatment of children who are found to be
suffering from a disease requiring prolonged medical treatment or physical or mental complaint that will
respond to treatment to a fit facility under section 92;
(lii) procedure for transfer of child under sub-section (1) of section 95;
(liii) provision for travelling allowance to the escorting staff for the child under sub-section (3) of section 95;
(liv) procedure to be followed by the Committee or a Board while holding any inquiry, appeal or revision under
sub-section (1) of section 103;
(lv) manner in which juvenile justice fund shall be administered under sub-section (3) of section 105;
(lvi) functioning of the Child Protection Society for the State and Child Protection Units for every district under
section 106;
Page 8 of 8
7.3 MISCELLANEOUS
(lvii) to enable the National Commission, or as the case may be, the State Commission to monitor
implementation of the provisions of this Act under sub-section (1) of section 109;
(lviii) any other matter which is required to be, or may be, prescribed. (3) Every rule and every regulation
made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while
it is in session, for a total period of 30 days which may be comprised in one session or in two or more
successive sessions, and if, before the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both
Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect
only in such modified form or be of no effect, as the case may be, so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.
(4) Every rule made by the State Government under this Act shall be laid, as soon as may be after it is made,
before the State Legislature.
28 (2005) 3 SCC 551 [LNIND 2005 SC 100].

29 http://www.livelaw.in/exclusive-centre-haryana-evade-responsibility-supreme-court-frame-rules-juvenile-justice-care-
protection-children-act-2015/, last visited on 13 November 2016.
30 Letter No. CW-II-11/1/2016-CW-II, Government of India, Ministry of Women and Child Development, dated 25th May
2016.
31 Ved Kumari, Many Gaps to Fill published by Deccan Herald on 2 June 2016 available at
http://www.deccanherald.com/content/549976/many-gaps-fill.html, last visited on 6 July 2016.
32 Rule 14(9) of the Draft Model Rules.
33 Gazette of India Extraordinary, Pt II, Section 3, sub-section(i) dated 21 September 2016.
34 Available at http://www.indianemployees.com/uploads/documents/092016/1474634863-660.pdf, last visited on 26
October, 2016.
35 Section 19 of the JJ Act, 2015. For more details, see, Chapter 3.
36 Section 111(2) reads, “Notwithstanding such repeal, anything done or any action taken under the said Acts shall be
deemed to have been done or taken under the corresponding provisions of this Act.”
37 Section 112 reads, “ Power to remove difficulties- (1) If any difficulty arises in giving effect to the provisions of this Act,
the Central Government may, by order, not inconsistent with the provisions of this Act, remove the difficulty:
Provided that no such order shall be made after the expiry of the period of two years from the commencement of this
Act.
(2) However, order made under this section shall be laid, as soon as may be after it is made, before each House of
Parliament.”
38 Gazette of India Extraordinary, Pt II, Section 1, dated 1 January 2016.
End of Document
7.4 CONCLUDING REMARKS
Ved Kumari

The timing of the enactment of JJ Act, 2015 has left child rights activists cringing in their hearts as this legislation
took India back by more than a century. Each day more and more children are being transferred to the adult system
as the penal mindset has taken over the protective approach of the juvenile justice system that was adopted by the
Children Act 1960 as a model and actualized in the Juvenile Justice Act 1986 for the whole country. The JJ Act,
2000 saw the pinnacle of protective approach to all children up to the age of 18 years for all offences. It is hoped
that the arbitrariness of transfer, individual biases of judicial officers, absence of any scientific criteria to determine
who should be transferred and who should not be, will soon lead to the Act being challenged as unconstitutional
and struck down. The drafting of various provisions under the JJ Act, 2015 has left a lot to be desired but the bigger
challenge is its implementation in letter and spirit.
It is time that India learnt from other countries that have shown that transferring children to adult system only breeds
more criminal activities by young persons in their later lives. India must shift its focus to restorative justice, victim-
offender mediation programmes, etc., for better results in prevention of crime by children, and better rehabilitation of
children committing offences as well as the victims of their crimes. Much more effort needs to be made to take care
of children in need of care and protection to ensure that they do not end becoming children in conflict with law.
Individual stories of restorative justice keep being reported but the law still needs to institutionalize it. Stories like the
one given below39 gives me hope that soon restorative justice will become the buzz word in juvenile justice for a
better future of juvenile justice system in India:
Just wanted to share something. In 2014, a biker threw me down on the road and snatched my phone. Thanks to Delhi
Police, he was caught a few days later and my phone retrieved, and I identified him at Tihar Jail – a youngster in his early
20s. The case at Tees Hazari has gone on since and at a hearing a few months ago, the Judge asked me whether I wanted
to take the criminal case forward. I offered the youngster a deal – if he came and did service at my Woman of the Elements
Trust at Saket for 20 days, I would take back the case. He agreed. In those 20 days, he saw so much - he saw the sorrow
of the women who came for help, he saw the help they received and watched the goodness and dedication of my lawyer
under whom he worked. Yesterday morning was the hearing at court – I saw such a different person from the one I had
identified at Tihar. He chatted with me as if he had known me for years, told me that he had just taken up a job, talked
about his mother… and so much more. And as he left, he told me that if I ever needed him, he would be there.
I cannot put into words what I felt yesterday…

Page 2 of 2
39 Shared by Rashmi Anand on Facebook on 10 November 2016, available at

https://www.facebook.com/rashmi.anand.773?pnref=story, last visited on 13 November 2016.
End of Document

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Vedkumari JJ Act, 2015

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1. 1.1 JUVENILE JUSTICE: CONCEPT AND PHILOSOPHY

1.1 JUVENILE JUSTICE: CONCEPT AND PHILOSOPHY

1 Available at http://www.un-documents.net/gdrc1924.htm, last visited on 11 September 2016.

1.2 NORMATIVE DEVELOPMENTS IN INDIA

1.2.2 Children Act 1960

1.2.3 Juvenile Justice Act 1986

1.2.4 Juvenile Justice (Care and Protection of Children) Act, 2000

2 Introduction to the Juvenile Justice Act 2015

2 Introduction to the Juvenile Justice Act 2015

2.1 OBJECTIVES OF THE ACT

7 AIR 1952 SC 75 [LNIND 1952 SC 1].

2 Introduction to the Juvenile Justice Act 2015

2.2 BROAD SCHEME OF THE JJ ACT, 2015

15 https://www.youtube.com/watch?v=zuPhmRp3-Cg&nohtml5=False, last visited on 10 April 2016.

2 Introduction to the Juvenile Justice Act 2015

2.3 TITLE, ENFORCEMENT, AND EXTENT OF THE ACT

32 Appeal (Criminal) 1285 of 2003, SC DoJ 2 April 2005.

2 Introduction to the Juvenile Justice Act 2015

2.4.2 Child in Conflict with Law

2.4.3 Child in Need of Care and Protection

Clause (iii) includes a child

2.4.4 Best Interest of the Child

2.4.5 Child friendly

2.4.6 Adjudicatory bodies under the Juvenile Justice Act

2.4.7 Classification of Offences

2.4.8 Residential Care Options

2.4.8.1 Child Care Institution

2.4.8.2 Fit Person

2.4.8.3 Foster care

2.4.9 Officers for Children

2.4.10.1 Children who may be adopted

(2)Orphan Child: As per section 2(42) “orphan” means a child—

(1) who is without biological or adoptive parents or legal guardian; or

2.4.12 Miscellaneous Definitions

2.4.12.1 Corporal punishment

40 AIR 1982 SC 1057 [LNIND 1982 SC 80].

2 Introduction to the Juvenile Justice Act 2015

2.5 GENERAL PRINCIPLES

2.5.1 Principle of presumption of innocence

2.5.2 Principle of dignity and worth

2.5.3 Principle of participation

2.5.4 Principle of best interest

2.5.5 Principle of family responsibility

2.5.6 Principle of safety

2.5.7 Positive measures

2.5.8 Principle of non-stigmatising semantics

2.5.9 Principle of non-waiver of rights

2.5.10 Principle of equality and non-discrimination

2.5.11 Principle of right to privacy and confidentiality

2.5.12 Principle of institutionalisation as a measure of last resort

2.5.13 Principle of repatriation and restoration

2.5.14 Principle of fresh start

2.5.15 Principle of diversion

2.5.16 Principles of natural justice

36 Section 82 of the IPC.

2 Introduction to the Juvenile Justice Act 2015

2.6 PROVISIONS FOR EFFECTIVE IMPLEMENTATION OF THE JUVENILE

2.6.3 Commissions for Protection of Child Rights

2.6.3.1 Evaluation of Functioning of Structures

2 Introduction to the Juvenile Justice Act 2015

3 Caring for Children in Conflict with Law

3.1 HISTORICAL BACKGROUND