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Journalism of Courage
MUMBAI, DEC 1: Long criticised for lacking in a perspective where the child comes first, the juvenile justice system of the country is in for some urgent changes. In fact, early this month, Professor N L Mitra, the Juvenile Justice Chair in the Child and Law Centre of the National Law School, Bangalore held a meeting with other social organisations on a draft of the Juvenile Justice Act and Neglected Children Act’. The draft is to be considered by the union government’s Ministry for Social Justice and Empowerment, headed by minister of state, Maneka Gandhi.
The draft, though, has come in for criticism in its decision to “criminalise” the juvenile system (where children could be convicted and sentenced like adults), and even as efforts are on to revise it, noted child rights activists Sheela Barse has drawn up a draft herself to be sent to the union government for consideration.
The Act has been divided into three sections dealing with Protection of Minors like a child on the streets or a runaway child; a juvenile who “Comes into Conflict with Law” and a much needed Victim Deposition Procedure, where child victims are accorded an informal atmosphere in a courtroom where judges or lawyers or any persons in authority do not wear robes which could intimidate him. Where the court proceeds in an informal across-the-table-manner and is not divided into levels where a child is unable to look in the eye of the judge he is speaking to. In this, Barse is drawing from certain orders in her favour for the child victims in the Freddy Peats case of Goa, granted to her by the Panaji bench of the Bombay High Court in 1995. Peats was eventually convicted for life for sexual offences against children including sexual exploitation.
In her draft, Barse has included the principle of right to innocence – where a child is innocent of any malafide or criminal intent upto the age of 12. On the same lines, she has urged that in the case of older juveniles, episodic acts of survival, where a child steals food for himself, or is forced into such acts due to environmental or situational factors not under his control, “would be deemed to be covered by the principle of innocence”.
A guardian ad litem’- who will be an adult counsellor friendly to and communicative with the child, not the parent or the defending lawyer – and which has never been allowed in any case in the country, not even in the Peats case, has been included in the provisions to protect the juvenile’s right to innocence. Such a provision however exists in the civil procedure code for the country.
Erasure of records is another inclusion in her draft that could revolutionise the existing juvenile system. Termed the principle of fresh start’, it says that once a child is out of the system, his records should be erased so that new beginning chances are promoted. This can be done at two stages; when the juvenile is being assessed on his strengths, or when he has attained the age of 18.
She has evolved the SWITCH system (single window intervention for the child including habitat) so a child who is evidently delinquent or homeless can be protected. Day care centres for the mother who works at the construction site or washing vessels at homes and cannot look after her children have also been included in the draft.
The draft also contains a clause for a diversion process whereby a juvenile “in conflict with law” can be diverted directly to a home or institute for counselling or habitation, without any case being registered against him, including an FIR or any case being “determined” against him. A decision could be taken by the minor’s court or even by the policeman investigating the complaint.
Barse would like the juvenile justice system to have an appellate court, (where one can appeal if these juvenile justice “services” are overlooked) rather than the high court, which could reduce the burden on the high court as well as spare the child the rigours of an adult atmosphere of the courts.
If a child were to escape a remand home or any such institution, the draft disallows any retribution in the form of a punishment or any disciplinary action. Extradition of children or repatriation of children to countries, even if their families are untraceable will also be disallowed under this draft.
