The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter the ‘JJ Act 2015’) was amended in 2021. The Amendment Act of 2021 included multiple modifications in some essential areas of the legislation, including adoption, categorisation of offenses, designated courts, and eligibility criteria for members of Child Welfare Committees (CWCs). The Amendment Act was overwhelmingly supported by both ruling and opposition parties. However, some of the changes made can have disastrous consequences for the welfare and best interests of children, which was the original legislation’s goal.
One such problematic change concerns the amendment to Section 86(2) of the JJ Act 2015 through which some serious offenses are converted from being cognisable to non-cognisable. The amended Section 86(2) of the JJ Act 2015 states that where an offense under this Act is punishable with imprisonment for a term of three years and above, but not more than seven years, then such offense shall be non-cognisable and non-bailable. Recently, the Amendment Act 2021 has been challenged by the Delhi Commission for Protection of Child Rights (DCPCR) in the Supreme Court of India for making categories of offenses non-cognisable.
It is critical for readers to comprehend what a non-cognisable offense is. Section 2(l) of the Criminal Procedure Code, 1973 (CrPC) defines ‘non-cognisable offense’ as one for which a police officer has no authority to arrest without a warrant. Aside from that, Section 155(2) of CrPC states that ‘no police officer shall investigate a non-cognisable case without the order of a Magistrate having the power to try such case or commit the case for trial’.
Chapter IX of the JJ Act 2015 addresses multiple offenses against children, including cruelty to a child, sale and procurement of child, child employment for begging, the penalty for giving intoxicated liquor or narcotic drug or psychotropic substance to a child, and exploitation of child employees, etc. With the prevalence of different forms of child abuse in our country, a few additional offenses were introduced to this chapter in 2015, including the sale and procurement of children, as well as the use of children by militant groups or other adults, which became one of the defining elements of the JJ Act 2015. However, with this amendment, the following previously cognisable offenses have become non-cognisable:
- Cruelty to children by CCI staff (Section 75)
- Employing children for begging (Section 76)
- Giving intoxicating liquor or narcotic drug or psychotropic substance to a child (Section 77)
- Using a child for vending, peddling, carrying, supplying or smuggling any intoxicating liquor, narcotic drug or psychotropic substance (Section 78)
- Exploitation of a child employee (Section 79)
- Sale and procurement of children for any purpose (Section 81)
- Use of Children by militant groups or other adults (Section 83)
Making these offenses non-cognisable prevents the police from arresting the accused without a warrant and initiating an investigation without the permission of the court. Besides, the delay in investigation can provide the accused in each case more opportunities to tamper with the evidence and influence witnesses.
In the case of In Re: Contagion of COVID -19 Virus In Children Protection Homes, the National Commission for Protection of Child Rights recently estimated that there are roughly 15-20 lakh street children in the country. Street children are one of the groups that are most vulnerable to the crimes listed above. According to the National Human Rights Commission, approximately 40,000 children are abducted each year, with over 25 percent of them going missing. A study conducted by an Associate Professor of Political Science, Dr. Anupam Kaushik, titled ‘Rights of Children: A Case Study of Child Beggars at Public Places in India’, states that every year nearly 44,000 children fall into the clutches of the criminal gangs across the country. While on the one hand, thousands of children are abducted and forced to engage in begging, trafficking, smuggling and peddling of illegal substances, and other kinds of crime, on the other, the amendment has weakened the law to confront such grave offenses against children.
Let us assume that a poor person approaches the police to file a complaint about the aforementioned offenses, but the police are unable to arrest and investigate the matter without the permission of the court, and the complainant is directed to seek the court’s permission. Do we believe that the poor in our society can traverse this complex legal process without access to quality legal aid? Even Supreme Court Judge and Executive Chairman of the National Legal Services Authority, Justice Uday Umesh Lalit, has expressed concern over quality legal aid and the exceedingly low number of cases that end up with the Legal Services Authority.
There are reports that illustrate how the pandemic has deepened the vulnerabilities of children and crime, such as through an increase in child trafficking. A few child rights organisations have actively voiced similar concerns, but it appears through this action that the government has turned a deaf ear to them. Interestingly, the NCPCR, a statutory organisation that has taken proactive steps to address child-rights violations across the country, has remained silent on the Amendment Act. The NCPCR’s role entails examining and reviewing current legal safeguards, as well as making recommendations for successful implementation of the law.
In Parliament, the rationale put forward for making serious offenses non-cognisable is to bar children from arrest without warrant. This argument is flawed because the protection of children doesn’t come from Section 86 of the Act that talks about the classification of offenses and designated courts, but from Rule 8 of the Model Rules notified under this Act, which talks about the pre-production actions of the police and other agencies. Rule 8 provides that the police shall exercise its power to apprehend a child only in case of heinous offenses, unless it is in the best interest of the child, whereas in all other cases involving petty and serious offenses, apprehending the child is not necessary. In addition, the legislature has failed to make a distinction between adults and children, as a result of which the Amendment Act shields the perpetrators of offenses against children, nearly all of which are adults.
With an increase in crimes against children, the recent amendment has a negative impact on the spirit of the Juvenile Justice Act, as well as on India’s commitment to the rights of children at the international level. Let’s hope the legislature corrects this error and aligns the legislation with the progressive nature of the law, which is to safeguard, protect, uphold and promote the welfare of children.
Krishna Aruna Sharma – Justice Leila Seth Fellow.
*Featured Photo – Aurélie Marrier d’Unienville/Caritas for UNODC.