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New Delhi: A minor but possibly impactful amendment to the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015), has caught the attention of child rights bodies in at least four states and one Union Territory.
Commissions for Protection of Child Rights of Delhi, Punjab, Rajasthan, West Bengal, and Chandigarh have urged the Union Ministry of Women and Child Development to refrain from notifying the Amendment Act 2021 which, according to the commissions, have classified certain serious offences in cases of child abuse as “non-cognisable”.
The JJ Act, 2015, was amended in 2021 to introduce multiple changes. It has received Presidential assent and has been notified as well. However, its implementation has still not been ordered.
The child rights bodies pointed out an amendment in Section 86 (2) of the JJ Act, 2015, which changed the nature of certain serious crimes from “cognisable” to “non-cognisable”. The crucial amendment will prevent the police from arresting the accused without a warrant and start an investigation without the permission of the court.
The child rights commissions, in a joint letter to the secretary of women and child development ministry Indevar Pandey, said that the amendment, if implemented, will keep crimes like cruelty towards children in an orphanage, employing children for begging, liquor and narcotics peddling, or militant movements, or even sale and procurement of children under the purview of non-cognisable offences.
In essence, crimes against children which are mentioned in the chapter “Other Offences Against Children” of the JJ Act, 2015 that allow an imprisonment between three and seven years will be deemed “non-cognisable”, the commissions said.
The commissions said that these offences were included in the JJ Act, 2015 as one of its progressive chapters, keeping in mind the different forms of child abuse existent in India. However, by preventing the police from acting independently in such cases, the amended Act may only encourage individual offenders and rackets, as much as it may burden the already overburdened courts further.
Citing an instance of a possible child begging case, the Commissions in their joint letter said:
“There are estimated 3,00,000 child beggars in India (although some organisations claim the number to be higher). A 2014 study by Ms. Anupama Kaushik titled “Rights of Children: A Case Study of Child Beggars at Public Places in India” stated that nearly 44,000 children fall into the clutches of the gangs annually. However, by this amendment, the use of children for purposes of begging will not invite an FIR and investigation except with order of Magistrate which is essential in crimes of this nature.”
The letter further said that these crimes were included in the JJ Act, 2015 as cognisable offences after the intervention of Law Commission of India (146th report) and a 2013 Kerala high court order.
“The delay in starting investigations,” the letter noted, “allows offenders time to influence evidence and thwart investigations. Children who are vulnerable to pressure may not be able to provide coherent testimony as time goes by.”
The Union government had claimed that it had reclassified the crimes in the amended act to shield children from arrest without warrant in such cases. However, the child rights’ commissions argued that children are already protected from arrest in such cases through “Rule 8 of the Model Rules” notified under the JJ Act, 2015, and that their protection from arrest is not derived from Section 86 of the Act which was tweaked.
To clear any further doubts, the commissions suggested that the legislation could explicitly make a distinction between adults and children, which it did not. In its current shape, however, the legislation “effectively shields the perpetrators”, nearly all of whom are adults, the letter said.
The commissions also argued that the amendment to the 2015 Act violates India’s international obligation for being a signatory in United Nations Convention on the Rights of the Child or even the progressive spirit of the JJ Act, 2015. The commissions said that even if the legislation created a higher threshold for arrest, it should not impede an early commencement of investigation.
Against a backdrop of rising crimes against children, the commissions said that there is no “reasonable justification or rationale” to reclassify some of the serious crimes mentioned in the 2015 Act, and recommended that a bill be tabled again in the parliament to restore the original spirit of the Act.