3/17/2013 skannayiram@yahoo.co.in, 1 9444011098 Presentation By - - PowerPoint PPT Presentation

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Presentation By S.KANNAYIRAM, Former Field Officer, Department of Social Defence & Freelance Consultant Contact +919444011098 E-mail: skannayiram@yahoo.co.in

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A working child

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Fundamental Requirements

• f a Juvenile Justice

System

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The system must be rational and humane

• 1. Effective in reaching its goals
• 2. Cost effective in doing so
• 3. Respect for human dignity
• 4. Refer to the United Nations

treaties.

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The child needs to be treated with humanity

• Prohibition of torture, capital punishment and

life imprisonment without possibility of release for all persons below 18 years. UNCRC -37

• Use of deprivation of liberty as a measure of

last resort and for the shortest period of time

• In case of deprivation of liberty, the child

should be treated with humanity and in a manner that takes into account the special needs of persons of that age

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The system shall be child- centered or child-oriented

• The child is subject to fundamental

rights and freedoms

• All actions concerning the child need

to be guided by his/her best

• interests. Article 3 of UNCRC.

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Access to justice to children

• UN initiatives of Millennium

Development Goals to promote the well being of children and protect them from abuse and exploitation are based on the principles of non- discrimination, best in tersest principles, survival and development, and protection from abuse, exploitation etc.

Specialization and multidisciplinary approach

• A juvenile justice system shall aim to

encourage specialization in child justice practice

• A distinct system that treats children

differently in a manner appropriate to their age and level of maturity

• The approach has to involve all the

actors and such actors has to use the discretionary power judicially

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What is Discretion? Discretion is defined as: An authority conferred by law to act in certain conditions or situations in accordance with an official's or an

• fficial agency's own considered

judgment and conscience according to the rules of equity and the nature of the circumstances. Discretion is exercised throughout the juvenile justice System

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Police - vis-à-vis Juveniles

• Juvenile Justice is Governed by

Juvenile Justice (Care and Protection

• f Children) Act, 2000 and amended

in 2006

• Juvenile in Conflict with law means a

person alleged to have committed an

• ffence and has not completed 18

years of age on the date of commission of crime. (Sec. 2 (k) of JJ Act

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Police - vis-à-vis Juveniles

• Nothing is an offence if it is committed by

a child under seven years of age (Sec. 82

• f IPC)
• Offence committed by a child above

seven years and under 12 years is also not an offence, if the individual has no sufficient maturity. (Sec. 83 of IPC)

• Juvenile could not be arrested

invoking the provisions of Section 46 of CrPC.

• Apprehension under Section 10 of

JJAct is to be made.

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Requirements for a lawful apprehension

• A

child who is apprehended for allegedly committing an offence has the right:

• To remain silent
• To be informed promptly of the charges
• Not to be compelled to make any

confession or admission that could be used in evidence against him/her

• To be brought before the Board as soon

as reasonably possible

• To have the assistance of a lawyer

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Requirements

• The police officer should confirm the age of

the child. Obtain school certificate or birth

• certificate. Medical determination shall be the

last option. (State Rules)

• The police must, as soon as possible after

apprehension, explain the nature of the allegations in a manner the child can understand

• A child is to be advised immediately his/ her

right to counsel.

• Separation from adults during transportation
• r transportation with supervision

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Requirements

• A parent or guardian should be

notified immediately after the child is apprehended or, if this is impossible, “within the shortest possible time thereafter.” (Section 13 of JJ Act.)

• Before taking a decision either to

release on bail or to reprimand or to refer to the adjudication procedure, it is the responsibility of the police to do an assessment

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General introduction to assessment

• Assessment (or screening) is a process
• f evaluation of the child, the child’s

home or family circumstances, the nature and circumstances surrounding the alleged commission of the offence, and whether the child accepts responsibility for the offence

• The possibility of conversion to Board

inquiry is investigated and also diversion

• r other restorative justice options
• Assessment can take place soon after

apprehension and/or before the child’s appearance before the Board

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Purposes of assessment are to:

• Determine the nature of the offence and

circumstance leading to its commission

• Where the children are to be placed
• Collect information for the database of cases
• f arrested children
• How to Monitor the treatment programme
• Screening/assessment is the critical point of

entry and an opportunity for diversion

• Assessment guides case planning and

recommendations to the Prosecutor and/or to the Board

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Minor offence

• The police officer will decide immediately

whether to:

• Arrange a police caution
• Send the child to diversionary options
• Send the child to Court
• Depending on :
• The seriousness of the offence
• Whether the child has offended before
• Whether the child admits the offence
• r denies it
• If the offence is denied, the child will go

straight to Board.

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Non-minor offence

• Where a child commits a serious
• ffence
• (i.e. offending behaviour is

determined by the police not to be a minor offence) then the matter might proceed direct to Board.

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Who is competent to deal with juvenile?

• Upon apprehension, the juvenile

shall be placed before the Child Welfare Officer of the Special juvenile Police Unit. Section 10 of JJ Act.

• In every Police Station one Police

Officer has to be designated as Child Welfare Officer who shall be the member of the District or city Special Juvenile Police unit. Section 63 of JJ Act.

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Procedures after apprehension ( Sec. 12

• f JJ Act.
• Upon apprehension and after

assessment the Child Welfare Officer shall be release a juvenile on bail with or without surety or placed under the supervision of a Probation Officer or under the care of a fit institution or fit person.

• If not released to be kept in

Observation Home until the juvenile is produced before the “Board”

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Application of Section 12 of JJ Act

• Police could use the discretionary

power either release a juvenile and reprimanded

• Juveniles could be released on bail in

respect of minor offences with a request to Probation Officer to make follow-up and surveillance.

• Police warning and reprimand and

subject to informal intervention using the concept of “Diversion”

• Police and Probation system could

device procedures for “Diversion”

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Concept of Diversion

• Diversion involves the referral of

cases away from formal criminal court procedures and directs

• ffenders towards community

support

• Diversion options can come into play

at any point of decision-making, either as a generally applicable procedure or on the decision of the police, prosecutor, court or similar body

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Diversion options can include:

• Police warnings
• Mediation
• Probation
• Family groups counselling
• Community service
• Conditional or unconditional release
• Behaviour contracts
• Referral to other services such as

NGO’s programmes and substance abuse centers.

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Conditions of diversion Diversion procedures must follow five basic ground rules:

• Diversion options are to be used only where

children admit to an offence and accept a non-judicial hearing

• It must not be mandated to order deprivation
• f liberty in any form
• The case must be referred to a adjudication

system if no solution acceptable to all can be reached or if the options at the disposal of the alternative system are not appropriate

• The child offender always retains the right to

a hearing or judicial review

• Human rights and legal safeguards must

always be fully respected

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Conditions of diversion by police

• Diversionary options are used if the police officer has

reasonable grounds to charge the child with an

• ffence. If he has no grounds, the young person

should be released immediately

• Most of diversionary options should not be used in

cases in which taking no further action or an informal warning would be sufficient

• Child must consent to diversion
• The parent of the child must be notified if the child is

dealt with by a diversionary option

• The victim of an offence is entitled, on request, to be

informed of the identity of the child who has been dealt with by a diversionary option

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Police and its accountability

• All juveniles upon apprehension if not

dealt with otherwise to be produced before the Board irrespective of the

• ffence committed.
• Provision of Section 27 of CrPC is not

applicable

• Treatment with dignity and honour

(UNCRC -37)

• Investigation should be completed as

quick as possible. Section 14 of JJAct.

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Issues on investigation

• No Police custody and a juvenile should

not be kept in Police Station (Section 10

• f JJ Act)
• Identified Voluntary Organization could

also be involved in producing a child before the Board

• No bar in collecting photos, finger prints
• etc. But should not be preserved and

disposed as soon as the appeal period is

• ver
• Publication of details on juvenile is

prohibited ( Section 21 of JJ Act)

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Challenges for Police

• No policy frame has been made on the

procedure of investigation.

• Police stations are not accessible to

Observation homes or children’s homes or shelter homes

• No place of safety or fit institution or fit

person have been recognized and available for the police to use the residential facilities

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Challenges to Police

• Police custody is prohibited. How to

interrogates children and investigate the cases of children in conflict with law?

• In the case of recovery of property

stolen by a child – What is the procedure?

• How to ensure identification parade?
• Finger printing/PHOTOGRAOPHING

issues

• Procedure in the case of crime committed

by a child along with adults – the issue of time frame

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Juvenile Justice Board

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Responsibilities

Functions with two obligations

• Deal with the immediate needs of

children in conflict with law

• Ensure the long term plan for the

rehabilitation

• Not the motive of establishing the

guilty; rather to facilitate the rehabilitation

• Provide adequate opportunity to

children to be heard and their views are honoured

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Obligation

• Determination
• f

a person as Juvenile

• Dealing with the immediate needs of

the juvenile

• Access to Justice to ensure the

needs of the juvenile and the interest of the community

• Access to justice means to ensure

the service delivery mechanisms assured the positive development of the juvenile

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JJB and it is importance

• Constituted under Section 4 of the Act.
• Consists of One Principal Magistrate

and two social worker members and forming as a bench. (Sec. 4(2)

• Conferred with the power of a

Metropolitan/Judicial Magistrate to deal with JCL alone

• Magistrate shall have knowledge in

Child Psychology and the members should have 7 years experiences in health, education or welfare activities (Sec. 4 (3)

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JJB

• JCL shall be produced before either of the

members including the Principal Magistrate [Section5(2)]

• Orders could not be invalid if passed in the

absence of a member (Sub-section3)

• Final disposition shall be made at least by

two members and among them the presence of the P.M. is the must (Proviso to Sub-section 3)

• Any difference of opinion the majority
• pinion shall prevail in the absence of

majority the opinion of the P.M. shall prevail [Section 5(4)]

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JJB

• Exclusive jurisdiction on JCL [Sec.

6(1)]

• JJB’s power may be exercised by

High Court and Court of Session in appeal, revision or

• therwise –

6(2)

• Any Magistrate upon production of a

person concluded him or her juvenile, after recording the fact referred to JJB.[Sec. 7(1)]

• Juvenile shall be entertained by such

court only for the purpose getting evidence

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JJB

• Juvenility shall be decided based on

authenticated documents or on medical certificates. Affidavits could not be entertained. Sec. 7-A

• Juvenility could be raised at any point
• f time even after final disposition
• Date of commission of crime by a

person is criteria to decide a person as Juvenile. [Sec. 7-A (2).

• Unless the person is decided as

juvenile, the board has no jurisdiction to entertain.

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JJB

• Any court finds a person as juvenile

at any stage of proceedings, the proceedings shall be forwarded to the board and any orders passed by such court shall deemed to be ineffective. [Sec. 7-A (2)].

• Being an adjudication agency trial

and enquiry of all cases against children in conflict with law.

• Perform the role of “Ombudsman”
• Facilitate rehabilitation and

reintegration

• Appropriate disposition options

through optimum usage of community resources

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Detention facilities

• Board, if not released a juvenile on

bail shall ordered to keep him or her in Observation Home based on age classification (Sec. 8)

• Board shall ordered the placement
• f juvenile in Special home

established under Section 9.

• Theses institutions shall have

certain standards of services

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Apprehension, Bail and enquiry

• Upon apprehension the juvenile has

to be placed with SJPU or designated Police officer-Sec. 10

• If custody is granted to any one and

such persons are responsible notwithstanding the claims of

• parents. Sec.11
• Bail shall be granted by the Police

station House Officer and also by the Board with or without surety and

• rdered to keep under

supervision(Sec.12)

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Apprehension, Bail and enquiry

• Juvenile apprehensions have to

be reported to parent and Probation Officer. (Sec.13)

• Enquiry has to be completed

within four months from the date of

• commencement. (Sec.14).
• Pendency shall be reviewed by

CMM/CJM once in six months

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Points for consideration

• What is apprehension?
• Whether such term is found place in

CrPC.

• In

the absence

• f

definition

• f

apprehension in CrPC whether the procedure of arrest is applicable.

• Whether Police custody permissible?
• Whether finger print could be taken?
• Whether

identification parade is applicable in the case of juvenile?

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Disposition

• Seven disposition options to the

board and the board has to use its discretionary power taking into consideration of Social enquiry report of Probation Officer (Sec.15)

• Options for restitution,

compensation and ensure restorative justice.

• Juvenile shall not be sentenced to

life- imprisonment and death penalty

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Other issues

• 106 of Criminal Code procedure is

not applicable to juvenile (Sec.17)

• No Joint trial (Sec.18)
• No disqualification attached (Sec.19)
• Publications of news, information

prohibited (Sec.21)

• Escape does not invite prosecution

(Sec.22)

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Other issues

• Presence of parent/guardian shall be

insisted by the board. (Sec. 46)

• Juvenile's presence shall be dispensed

with at any time (Sec. 47)

• Board has options to place terminally

ill juveniles under appropriate place (48)

• Age determination is the jurisdiction of

the board (Sec.49)

• Disposition shall be ordered to place

the juveniles in outside jurisdictions.Sec.50

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Other issues

• Probation Officer report is
• confidential. Sec.51
• Power to amend the orders (Sec 55)
• Power to discharge either absolutely
• r to transfer to other homes. (Sec.

56 and 59)

• JJB could order the placement of a

juvenile for drug abuse with the appropriate organization (Sec. 58)

• Could order the parent to pay

maintenance charge (Sec. 60

Responsibilities

• Board interface with a person who has

alleged to have committed an offence and such person was not competed the 18 years of age on the date of commission of crime.

• Age determination is crucial. Since, it

could be disputed at any point of time or even after disposition care is to be taken to fix the age appropriately. Advisable to go with legal documents (not affidavit). Exceptional cases, the opinions of Medical personal.

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Responsibilities

• Speaking and interaction with the
• juvenile. Right of participation.
• Fixing of age, assessing the

culpability based on the juvenile’s version, cross verification from the Police and Probation Officer, entertaining of bail, decision on petty offences and final dispositions.

• It is the discretionary power to

decide the best interest

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Benefits of restorative justice

• It recognizes that offenders harm

victims, communities and even themselves

• It includes the victim if he/she wishes

and also communities

• It measures how much harm has been

repaired or prevented

• It recognizes the importance of

community involvement and initiative in responding to and reducing crime, rather than leaving the problem of crime to the government alone

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Legal issues

• Equal protection against discrimination
• Due process rights
• Respect of victim’s rights
• Proportionality
• Physical punishments prohibited.

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Examples of restorative justice schemes

• Victim-offender

reconciliation/mediation programmes

• Conferencing programmes
• Community reparative initiatives
• Financial sanctions

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Children in need of care and protection means (Section 2 (d)

• who is found without settled place
• Begging children, street children or a

working children

• Living in a vulnerable situation
• Child victims
• Victims of armed conflict, natural

disaster etc.,

• Abandoned children
• Children of incapacitated parent

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Child Welfare Committee (Section 29)

• At least one member shall be a woman
• Judicial power for making intervention
• Authority to intervene for the protection
• f children being abused including

sexual abuse in prostitution

• Functions involve two obligations
• Dealing with the immediate situations of

the child; and Evolving a long range plan, suited to the needs of the child

• Role of “Parens Patriae” as a socio-legal

agency

• Criminal terminology need to be avoided

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Role of Child Welfare Committee

• Entreating enquiries relating to children

in need of care and protection. [Sec. 30]

• Competent authority to declare

abandoned children as legally free for

• adoption. [Sec. 41]
• Child victims of all categories shall be

produced before the Committee and not before any other authority

• Competent authority to intervene in child

marriage issues

• All abandoned children shall be

produced before the committee

• Economic exploitation of children as

labours/bonded labour shall also be entertained

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What is participation?

• It means to children and young persons

thinking for themselves, expressing their views effectively, and interacting with people in a positive way

• It also means to empower them as

individual and a member of the civil society

• Democratic principles is an important

ingredient for participation

• Equity and equality is important in

participatory process and participation

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Life is full of obstacle illusions."

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A little help is worth a great deal of pity."

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Crime against children

• Child abuse, child trafficking and

child prostitution are the different dimensions of the same problem

• Trafficking is a transnational organized
• crime. It is a work of combined people at

different level

• Trafficking has not been defined in any law

in accordance with UN definition. But, if the definition is split, there are provisions to address the issues.

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What is Trafficking ?

• Trafficking in person shall mean the

recruitment , transportation, transfer, harboring or receipt of persons, by means of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation.

• -- UN Convention against

Transnational Organized Crime, 2000

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Trafficking vis-à-vis IPC

• Abetment (107 of IPC)---

Recruitment, transportation and transfer

• Criminal conspiracy (120-B IPC) –

deception or coercion

• Harbouring of Offenders (212 of

IPC)

• Criminal confinement (342 IPC)

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Trafficking vis-à-vis IPC

• Abduction (362 of IPC) – forced

movement

• Criminal restraint (371 IPC)
• Criminal breach of trust (405 of

IPC) - deception

• Physical and mental torture
• Displacement -361,362,365 &366 IPC
• Procured illegally- 366 IPC

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Trafficking vis-à-vis IPC

• Wrongful restraint – 339 IPC
• Wrongful Confinement -340 IPC
• Physically tortured/injured -327,

329 IPC

• Mentally tortured - 351
• Defamed- 499 IPC

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Child marriage

• Child marriage is prohibited and is

an offence against a child vide the Prohibition of Child marriage Act, 2006

• Village Vigilance Committees should

ensure the prevention, reporting and follow-up.

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Legal issues of child abuse

• All forms of child abuses involve

abetment, criminal conspiracy, criminal intimidation, criminal restraints, wrongful confinement etc.

• Offences against children are

cognizable offences

• Child victims has to be produced

before Child Welfare Committee (Section 2 (d) of JJAct.

• Action against the perpetrators

before the regular Judicial Court

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Laws on crime against children

• Section 67-B of IT Act, 2000 ensure

punishment for publishing or transmitting

• f materials children sexually Explicit Act,,

in electronic form

• Section 23 -26 of the Juvenile Justice (Care

and Protection of Children) Act, 2000 and amended in 2006 prohibits crime against children

• Schedule Caste & Scheduled Tribe

(Prevention of Atrocities) Act,1989

• The prohibition of Child Marriage Act, 2006
• Domestic Violence against Women Act,

2006

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Laws on crime against children

• The Immoral Traffic (Prevention) Act, 1956
• Punishment for keeping brothel (S- 3)
• Punishment for living on the earning of

prostitution (S- 4)

• Procuring, inducing or taking persons for

the sake of prostitution (S- 5)

• Detaining a person in premises where

prostitution is carried on (S-6)

• Any person who carries prostitution

against a child is punishable (S-7) The onerous of proof of innocent lies with the offender and not on the prosecution

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IPC provisions

• Abatement of suicide of minor (S-305)
• Exposure and abandonment (S-317)
• Criminal confinement (S-342)
• Kidnapping for extortion (S—360)
• Kidnapping for unlawful guardianship (S-361)
• Kidnapping to compel for marriage (S-366)
• Procurement of minor girls for illicit intercourse (S-

366-A)

• Servitude and bondage (S-370)
• Criminal restraint (S-371)
• Selling of girls for prostitution ( S-372)
• Buying of girls for prostitution (S-373)
• Rape (S-376)

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Police and child victims

• Child victims to be produced before

the Child Welfare Committee (Sec 2(d) )

• Rescued child from commercial sex

work shall also be brought before the Committee as victim

• Even in the case of kidnap, the

adolescent girl shall be brought before the committee and the case against the kidnaper shall be before the Court concerned

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Procedure

• Abandoned children are classified as

a child in need of care and protection

• Abandoned infants shall be brought

before Child Welfare Committee

• If not possible to handle such

children, the recognized NGO shall be invited to take charge of the infant

• Upon handing over the child, the

NGO shall be directed to produce the infant before CWC and an intimation shall be sent to CWC

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Procedure

• NGOs shall also report the receipt of

infants from any other sources to Police and such children shall also be produced before CWC

• Police to ensure that no child

welfare institution is functioning in their jurisdiction without proper specific license from the Social Welfare/Social Defence Department

• Periodical monitoring is essential

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Issues for consideration

• Standard operational procedure to

deal with the children by Police and

• ther stakeholders have to be

formulated

• Interaction between Police and

Probation is to be developed

• Directory of services has to be

formulated

• Police to monitor the Unlicensed

NGOs

• Interstate networking is to be evolved

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Monitoring of services

• JJ Act facilitates the monitoring of

services through Inspection Committee constituted under Section 35

• The District Advisory Board shall also

function as Inspection Committee. This could be constituted under Section 62

• f JJ Act.
• Provisions for Social auditing. (Sec.

36)

• Formation of District Child Protection

Unit . (Section 62-A)

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Integrated Child protection Scheme

• Government of India has launched the

Integrated Child Protection Scheme

• More emphasize on community based

intervention through Foster-care, Sponsorship and Adoption

• Micro level monitoring mechanisms at

the village level

• Village Level Watchdog Committees

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Contact Information

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Questions

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