REPORT NO. 264

PARLIAMENT OF INDIA RAJYA SABHA

DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON HUMAN RESOURCE DEVELOPMENT

TWO HUNDRED SIXTY FOURTH REPORT The Juvenile Justice (Care and Protection of Children) Bill, 2014

(Presented to the Rajya Sabha on 25th February, 2015) (Laid on the Table of Lok Sabha on 25th February, 2015)

Rajya Sabha Secretariat, New Delhi February, 2015/Phalguna, 1936 (Saka) Website: http://rajyasabha.nic.in E-mail: [email protected] Hindi version of this publication is also available

PARLIAMENT OF INDIA RAJYA SABHA

DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON HUMAN RESOURCE DEVELOPMENT

TWO HUNDRED SIXTY FOURTH REPORT

The Juvenile Justice (Care and Protection of Children) Bill, 2014

(Presented to the Rajya Sabha on 25th February, 2015) (Laid on the Table of Lok Sabha on 25th February, 2015)

Rajya Sabha Secretariat, New Delhi February, 2015/Phalguna, 1936 (Saka)

CONTENTS

PAGES

1. COMPOSITION OF THE COMMITTEE ...... (i)-(ii)

2. PREFACE ...... (iii)-(iv)

3. ABBREVIATIONS ...... (v)

4. REPORT ...... 1—45

5. RECOMMENDATIONS/OBSERVATIONS — AT A GLANCE ...... 46—54

6. MINUTES ...... 55—66

7. ANNEXURES ...... 67—190

COMPOSITION OF THE COMMITTEE (Constituted w.e.f. 1st September, 2014)

#1. Shri Jagat Prakash Nadda — Chairman *2. Dr. Satyanarayan Jatiya

RAJYA SABHA 3. Prof. Jogen Chowdhury 4. Prof. M.V. Rajeev Gowda 5. Shri Anubhav Mohanty 6. Dr. Bhalchandra Mungekar 7. Shri Vishambhar Prasad Nishad 8. Shri Basawaraj Patil 9. Shri Sharad Pawar 10. Shrimati Sasikala Pushpa 11. Shri Tiruchi Siva

LOK SABHA 12. Shrimati Santosh Ahlawat 13. Shri Bijoy Chandra Barman 14. Shri C.R. Chaudhary 15. Shrimati Bhawana Gawali 16. Shrimati Kothapalli Geetha $17. Dr. Ramshankar Katheria 18. Prof. Chintamani Malviya 19. Shri Bhairon Prasad Mishra 20. Shri Chand Nath 21. Shri Hari Om Pandey 22. Dr. Bhagirath Prasad 23. Shri N.K. Premachandran 24. Shri K.N. Ramachandran 25. Shri Mullappaly Ramachandran 26. Shri Sumedanand Sarswati 27. Shri M.I. Shanavas 28. Dr. Nepal Singh 29. Dr. Prabhas Kumar Singh 30. Shri P.R. Sundaram 31. Shri Ajay Tamta 32. Shrimati P.K. Sreemathi Teacher

# Shri Jagat Prakash Nadda was elevated to Minister of Health and Family Welfare on 9.11.2014. * Dr. Satyanarayan Jatiya nominated as a member and Chairman of the Committee w.e.f. 26.11.2014. $ Dr. Ramshankar Katheria was elevated to Minister of State, Human Resource Development on 9.11.2014.

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SECRETARIAT Shrimati Vandana Garg, Additional Secretary Shri N.S. Walia, Director Shri Vinay Shankar Singh, Joint Director Shrimati Himanshi Arya, Assistant Director PREFACE

I, the Chairman of the Department-related Parliamentary Standing Committee on Human Resource Development, having been authorized by the Committee, present this Two Hundred and Sixty Fourth Report of the Committee on the Juvenile Justice (Care and Protection of Children) Bill, 2014.* 2. The Juvenile Justice (Care and Protection of Children) Bill, 2014 was introduced in the Lok Sabha on the 12th August, 2014. In pursuance of Rule 270 relating to the Department-related Parliamentary Standing Committees, the Chairman, Rajya Sabha referred** the Bill to the Committee on 19th September, 2014 for examination and report. 3. The Bill seeks 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. The Committee issued a Press Release on 29th September, 2014 for eliciting public opinion on the Bill. The Committee received a total number of 38 memoranda in response to the Press Release. The Committee held extensive deliberations on the Bill with the stakeholders which included Secretary, Ministry of Women and Child Development, representatives of various organizations like Tulir-Centre for the Prevention and Healing of Child Sexual Abuse, Indian Alliance for Child Rights, Save the Children, Butterflies, Centre for Child and the Law and Prayas. The Committee also heard the Member Secretary, National Commission for Protection of Child Rights and Secretary, Central Adoption Resource Authority on the Bill. The Committee also took note of the written submissions of the other stakeholders. Views of the stakeholders and comments of the Department were taken note of while formulating the observations and recommendations of the Committee. 4. The Committee, while drafting the Report, relied on the following: (i) Background Note on the Bill received from the Ministry of Women and Child Development; (ii) Note on the clauses of the Bill received from the Ministry of Women and Child Development; (iii) Verbatim record of the oral evidence taken on the Bill; (iv) Presentation made and clarification given by the Secretary, Ministry of Women and Child Development; (v) Memoranda received from organizations/individuals; and (vi) Replies to questionnaires received from the Ministry of Women and Child Development.

* Published in Gazette of India Extraordinary Part-II Section 2 dated the 12th August, 2014. ** Rajya Sabha Secretariat Parliamentary Bulletin Part-II No. 52379 dated the 22nd September, 2014.

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4. The Committee considered the Bill in five sittings held on 21st October and 15th December, 2014, 2nd and 28th January and 16th February, 2015. 5. The Committee considered the Draft Report on the Bill and adopted the same in its meeting held on 16th February, 2015. 6. For facility of the reference, observations and recommendations of Committee have been printed in bold letters at end of Report.

NEW DELHI; DR. SATYANARAYAN JATIYA February 16, 2015 Chairman, Magha 27, 1936 (Saka) Department-related Parliamentary Standing Committee on Human Resource Development. ABBREVIATIONS

CARA : Central Adoption Resource Authority CCs : Children’s Court CCL : Child in Conflict with Law CNCP : Child in Need of Care and Protection CrPC : Code of Criminal Procedure CWCs : Child Welfare Committees DCPU : District Child Protection Unit HAMA : Hindu Adoption and Maintenance Act ICDS : Integrated Child Development Scheme ICPS : Integrated Child Protection Scheme JJBs : Juvenile Justice Boards LSG : Local Self Government NCPCR : National Commission for Protection of Child Rights NCRB : National Crime Records Bureau NGOs : Non Governmental Organisations NHRM : National Health Rural Mission NSS : National Service Scheme PTA : Parent Teacher Association POCSO : Protection of Children from Sexual Offences Act RTE : Right of Children to Free and Compulsory Education Act, 2005 SAA : State Adoption Agencies SARA : State Adoption Resource Agency SCPCR : State Commission for Protection of Child Rights SJPU : Special Juvenile Police Unit SMCs : School Management Committees SSA : Sarva Shiksha Abhiyan UNCRC : United Nations Convention on the Rights of the Child

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1

REPORT

I. INTRODUCTION 1.1 The Juvenile Justice (Care and Protection of Children) Bill, 2014 was introduced in Lok Sabha on the 12th August, 2014 and referred to the Department-related Parliamentary Standing Committee on Human Resource Development by the Chairman, Rajya Sabha, in consultation with the Speaker, Lok Sabha on the 19th September, 2014 for examination and report. 1.2 The Juvenile Justice (Care and Protection of Children) Bill, 2014 seeks 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. 1.3 The Statement of Objects and Reasons to the Bill reads as follows:– “The United Nations Convention on the Rights of Children, ratified by India on 11 th December, 1992, requires the State Parties to undertake all appropriate measures in case of a child alleged as, or accused of, violating any penal law, including (a) treatment of the child in a manner consistent with the promotion of the child’s sense of dignity and worth (b) reinforcing the child’s respect for the human rights and fundamental freedoms of others (c) taking 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. The Juvenile Justice (Care and Protection of Children) Act was enacted in 2000 to provide for the protection of children. The Act was amended twice in 2006 and 2011 to address gaps in its implementation and make the law more child-friendly. During the course of the implementation of the Act, several issues arose such as increasing incidents of abuse of children in institutions, inadequate facilities, quality of care and rehabilitation measures in Homes, high pendency of cases, delays in adoption due to faulty and incomplete processing, lack of clarity regarding roles, responsibilities and accountability of institutions and inadequate provisions to counter offences against children such as corporal punishment, sale of children for adoption purposes, etc. which have highlighted the need to review the existing law. Further, increasing cases of crimes committed by children in the age group of 16-18 years in recent years make it evident that the current provisions and system under the Juvenile Justice (Care and Protection of Children) Act, 2000, are ill equipped to tackle child offenders in this age group. The data collected by the National Crime Records Bureau establishes that crimes by children in the age group of 16-18 years have increased, especially in certain categories of heinous offences. Numerous changes are required in the existing Juvenile Justice (Care and Protection of Children) Act, 2000 to address the above mentioned issues and therefore, it is proposed to repeal existing Juvenile Justice (Care and Protection of Children) Act, 2000 and re-enact a comprehensive legislation”. 1.4 Giving a background of the Bill, the Secretary, Ministry of Women and Child Development, in his deposition before the Committee on the 21st October, 2014, submitted that the Juvenile 2

Justice (Care and Protection of Children) Act, 2000 was in operation for more than a decade. The Act was amended twice in 2006 and 2011 to make it more child-friendly and to remove discriminatory references to children suffering from certain diseases. In 2009-10, the Government introduced the Integrated Child Protection Scheme (ICPS) to provide financial resources to State Governments and Union Territory Administrations to implement the Act. During its implementation in the last 13 years many issues arose constraining its effective implementation. One of such issues was increase in heinous offences by the children. On a specific query regarding the problem areas noticed during the implementation of the Juvenile Justice (Care and Protection of Children) Act, 2000, the Committee was informed of the following problem areas:– – delays in various processes under the Act, such as decisions by Child Welfare Committees (CWCs) and Juvenile Justice Boards (JJBs), leading to high pendency of cases. – delay in inquiry of cases leading to children languishing in Homes for years altogether for committing petty offences. – increase in reported incidents of abuse of children in institutions. – inadequate facilities, quality of care and rehabilitation measures in Homes, especially those that are not registered under the Act, resulting in problems such as children repeating offences, abuse of children and runaway children. – disruption of adoption and delays in adoption due to faulty and incomplete processing and lack of timelines. – lack of clarity regarding roles, responsibilities, functions and accountability of Child Welfare Committees and Juvenile Justice Boards. – limited participation of the child in the trial process, delays in rehabilitation plan and social investigation report for every child. – lack of child-friendly procedures by Juvenile Justice Boards and conduct of Board sittings in Courts in many districts. – lack of any substantive provision regarding orders to be passed if a child apprehended for allegedly committing an offence was found innocent. – no specific provisions for reporting of abandoned or lost children to appropriate authority in order to ensure their adequate care and protection under the Act. – non-registration of institutions under the Juvenile Justice Act and inability of the States to enforce registration due to lack of any penal provisions for non-compliance. – lack of any check-list of rehabilitation and re-integration services to be provided by institutions registered under this Act. – inadequate provisions to counter offences against children such as corporal punishment, sale of children for adoption purposes, ragging etc; and – increase in heinous offences committed by children and lack of any specific provisions to deal with such children. It was also informed that the Ministry adopted a consultative process to address these issues with the concerned stakeholders. Based on those consultations and considering the suggestions of the Legislative Department, Ministry of Law and Justice that the Act may be repealed and re-enacted due to numerous amendments proposed, otherwise it may lead to confusions in implementation, the Ministry came up with the proposed legislation. 3

1.5 The Secretary informed the Committee that in 2007, the Central Government had framed the model rules for implementation of the Juvenile Justice Act. These rules were either adopted in toto or adapted as per the requirements of the respective State Governments. As these rules lacked statutory status, they were subject to different interpretations by stakeholders. In order to bring uniformity in understanding and to ensure easy applicability of the law, several provisions of the model rules of 2007 have also been incorporated in the proposed legislation. 1.6 Highlighting key provisions of the Bill, the Secretary, Ministry of Women and Child Development cited the chapter on the children in conflict with law which contained provisions to deal with child offenders of heinous crimes in 16-18 years of age. According to him, the current provisions and the system under the Juvenile Justice Act, 2000 were not equipped to tackle such child offenders. Therefore, special provisions were being made to address heinous offences such as rape, murder and grievous hurt by children above the age of 16 years which will act as a deterrent for child offenders committing heinous crimes. This would address the issue of increased lawlessness in the society to some extent and will also protect the rights of victim to justice. If the Juvenile Justice Board, after conducting a preliminary inquiry relating to the physical and mental capacity of the child, ability to understand consequences of the offence and his circumstances, comes to the conclusion that there is a need for further trial in such cases, it has been given the option to transfer the matter to the Children’s Court, which is the Session Court having jurisdiction to try heinous offences. If after trial, a child is found guilty of committing a heinous offence by the Children’s Court, then such a child is proposed to be sent to a place of safety for reformation and rehabilitation up to the age of twenty-one years. After completing the age of twenty-one years, an evaluation of the child is to be conducted by the Children’s Court after which either the child is released on probation or transferred to an adult jail for the rest of the term of imprisonment. He emphasized that the Juvenile Justice System was based on the principle of restorative justice and such children during their stay in the place of safety would be provided with many reformative measures such as education, health, nutrition, de-addiction, treatment of disease, vocational training, skill development, life skill education and counselling. The child would be transferred to a jail after completing 21 years, only if he was incorrigible and the measures in the place of safety did not result in his becoming a contributing member of the society. The Secretary also stated that as per the UN Convention on the Rights of the Child, provisions of prohibiting death sentence and life imprisonment were being retained in the proposed legislation. 1.7 The Ministry of Women and Child Development highlighted the following key provisions also:– – In order to address high pendency of cases relating to non-serious offences by children, where it has been seen that cases against children who have committed petty offences have been pending for years altogether, the proposed legislation provides for termination of proceedings in case the inquiry of such offences remains inconclusive after a period of six months; – In order to check abuse of children in institutions, conducting of at least one inspection visit every month of homes by Juvenile Justice Board and Child Welfare Committee has been included in the Bill which was earlier given under the Rules instead of the law. The provision of inspection committees has also been strengthened by including number of visits and reporting mechanism of the committees for the effective functioning of the homes; – A separate new chapter on Adoption has been included in the proposed legislation. To streamline adoption procedures for orphan, abandoned and surrendered children, the existing Central Adoption Resource Authority (CARA) has been given the status of a 4

statutory body to enable it to perform its functions better. The chapter includes detailed provisions relating to adoption and punishments for not complying with the laid down procedure; – In order to bring more clarity about the roles, responsibilities and powers of JJB and CWC, detailed provisions related to these have been included in the proposed legislation, which were earlier included in the Model Rules, 2007; – Detailed procedure for declaration of child as ‘legally free for adoption’ by CWC has been prescribed to include timelines for such declaration, that is two months for children who are up to two years of age and within four months for children above two years of age; – Reporting of abandoned or lost children within twenty four hours to the Child Welfare Committee or local police or District Child Protection Unit or Childline Services has been made mandatory. Non-reporting is regarded as an offence with a punishment of imprisonment up to six months or fine of ten thousand rupees; – The proposed legislation makes it mandatory for all child care institutions to register and proposes stringent penalty in case of non-compliance, which is missing in the existing Juvenile Justice Act; – Detailed rehabilitation and re-integration services are proposed to be provided by institutions registered under the Act such as food, shelter, clothing, medical attention, education, skill development, life skill education, recreational activities, vocational training, de-addiction and treatment of disease where required, birth registration, etc; and – The existing Juvenile Justice Act covers only limited offences committed against a child such as cruelty, exploitation, employment for begging, giving intoxicating liquor or narcotic drug, etc. Several new offences against children are proposed to be added, which are so far not adequately covered under any other law, such as: sale and procurement of children for any purpose including illegal adoption, corporal punishment, ragging, use of child by militant groups, offences against disabled children and kidnapping and abduction of child. 1.8 The Committee appreciates that the proposed legislation has the laudable objective of providing for proper care, protection, development, treatment and social re-integration of children in difficult circumstances by adopting a child-friendly approach. The Committee has been given to understand that a number of problem-areas pertaining to very crucial issues were being faced in the implementation of the earlier Act of 2000. Besides that, increasing trend of heinous crimes being committed by children in the recent times has also compelled a re-thinking in handling of child offenders in the age-group of 16-18 years. Committee’s attention was drawn to the National Crime Records Bureau data, substantiating the Ministry’s contention that there was a significant increase in the number of children apprehended for heinous crimes in the age-group of 16-18. The Ministry also highlighted the age-group and involvement of juvenile offenders in some of the publicised cases of rape in recent times which even triggered public debate in the country, as one of the reason for concluding that the present Juvenile Justice System was inadequate to address the situation. The Committee, however, takes a cautious note of the background issues that have led the Ministry to repeal the Juvenile Justice Act of 2000 and come up with the proposed legislation. 1.9 The Committee strongly feels that issues relating to care and protection of children are very sensitive and involve complexities. Formulation of any law in this area, therefore, needs to be tackled very cautiously and objectively, taking care of all allied aspects. 5

1.10 Against this backdrop, the Committee before initiating its deliberation process, decided to seek the views of all concerned. Accrodingly, a Press Release inviting memoranda/suggestions on various provisions of the Bill from all the stakeholders was issued on the 29th September, 2014. The Press Release elicited a good response from the stakeholders. Out of the 38 memoranda received from the stakeholders, prominent were from the National Human Rights Commission, National Commission for Protection of Child Rights, Centre for Child and the Law, Pro-Child, HAQ, PRAYAS, CARA, India Alliance for Child Rights, Save the Children, Butterflies, CRY, Mumbai Working Group on Juvenile Justice and other groups and individuals.

II. CONSULTANTATIVE PROCESS 2.1 As the Juvenile Justice (Care and Protection of Children) Bill, 2014 seeks to repeal and reenact the Juvenile Justice Act of 2000 and provide for legal frame-work relating to juveniles in conflict with law and children in need of care and protection in addition to providing for proper care, protection and treatment of children by adopting a child-friendly approach and their rehabilitation through institutional help, the views of all the major stakeholders were very vital to make it an effective piece of legislation. The Committee, accordingly, initiated the consultative process by making specific enquiries from the Ministry in this regard. 2.2 The Committee was informed that the Juvenile Justice (Care and Protection of Children) Bill, 2014 was drafted after going through an intensive consultative process involving all stakeholders. The Ministry had held there Regional Consultations from June to November, 2011 to seek views and suggestions for amending the Juvenile Justice Act of 2000. A National Consultation was also held with the State Governments/Union Territory Administrations, representatives of civil society and other stakeholders in June, 2011. The Ministry, then, constituted a Review Committee in October, 2011, under the Chairpersonship of the Additional Secretary, Ministry of Women and Child Development which had Members from the concerned Ministries, State Governments, civil society, experts and academicians to review the existing legislation for making it more effective. This Review Committee also included Member, National Commission for Protection of Child Rights (NCPCR), nominated Members of Child Welfare Committees from the States of Maharashtra and Uttar Pradesh, nominated Members of Juvenile Justice Boards from Delhi and Kerala, representatives of the Departments of Social Welfare, Women and Child Development from the States of Assam, Delhi, Andhra Pradesh, Gujarat and the representatives of NGOs Tulir, Salam Balak Trust, Balsakha and Concern for Working Children. This Review Committee also had special invitees from the ministries of Home Affairs, Labour and Employment, Human Resource Development, Panchayati Raj, Social Justice and Empowerment, Health and Family Welfare and Law and Justice, Department of Legal Affairs. 2.3 The Ministry had also informed the Committee that the draft Juvenile Justice (Care and Protection of Children) Bill, 2014 was also placed on its website on the 18th June, 2014 for fifteen days for inviting comments from the civil society and individuals. More than 250 Civil Society Organisations, individuals and experts gave detailed and comprehensive comments on the draft Bill. The Ministry also received comments from the State Commissions for Protection of Child Rights, Child Welfare Committees, Juvenile Justice Boards and State Adoption Agencies across the country. The draft Bill was also sent to all the State Governments/UT Administrations and the National Commission for Protection of Child Rights for their comments. Thereafter, a Cabinet Note on the Bill was circulated to the Ministries/Departments of Law and Justice (Department of Legal Affairs and Legislative Department) Human Resource Development (Department of School Education and Literacy), Labour and Employment, Home Affairs, Minority Affairs, Tribal Affairs, Social Justice and Empowerment (Department of Disability Affairs), Finance (Department of Expenditure), External Affairs, Overseas Indian Affairs and the Planning Commission for their comments and suggestions. 6

2.4 Committee’s attention was drawn to some of the major suggestions received by the Ministry from the stakeholders on the draft Bill which inter-alia included the following:– – Amending the applicability of the Bill by not extending it to the State of Jammu and Kashmir as the proposed legislation falls under entry 5 of List III Concurrent List of Seventh Schedule to the Constitution; – Considering exclusion of same sex couples from adopting children; – Need for clarity on the kind of offences committed by children and the procedures for inquiry and trial; – Review of provisions for children committing heinous offences; – Deputy Commissioner or District Magistrate not to be designated the Chairperson of the Child Welfare Committee; – Final adoption order not to be passed by the Principal Magistrate of Juvenile Justice Board, Juvenile Board is a criminal court and is meant for children in conflict with law whereas adoption is a civil matter for children in need of care and protection and is a sensitive, social, inheritance and legal issue; – Review of the time period within which the adoption application should be disposed and enhancing the period of reconsideration given by Child Welfare Committee in case of a surrendered child; – Inclusion of child friendly procedures for child victims; – Onus on Central and State Governments to spread awareness on the provisions of the Act; and – Review of punishments for offences committed against children. 2.5 From the feedback made available to the Committee by the Ministry, it was evident that the Ministry undertook a thorough consultative process with all the stakeholders, while drafting this piece of legislation. However, a closer scrutiny of the suggestions reveals that major concerns of the stakeholders right from the rationale of repealing the Juvenile Justice Act of 2000 to the constitutional safeguards and India’s commitment to UN Conventions, provisions relating to children in conflict with law and their protection, rehabilitative and reformatory nature of juvenile justice system have not been given due importance by the Ministry while drafting the proposed legislation. The Committee is dismayed to note that inspite of such a huge feedback made available to the Ministry, it failed to analyse and incorporate many of the valid suggestions of the stakeholders on some crucial provisions in the proposed legislation. Keeping this in view, the Committee decided to interact with some of the major stakeholders who were also part of the Ministry’s consultative process. Accordingly, the Committee heard the views of Tulir - Centre for the prevention and healing of Child Sexual Abuse, India Alliance for Child Rights, Save the Children, Butterflies, National Commission for Protection of Child Rights (NCPCR), Central Adoption Resource Authority (CARA), Maharukh Adenwalla, Supreme Court lawyer, Centre for Child and the Law and Prayas. The Committee’s interaction with these stakeholders proved to be very fruitful. 2.6 The Committee, during its deliberations with the stakeholders, found that their views on some of the critical issues remained the same as they were before the Ministry. The Committee is surprised to note that many observations and suggestions of the stakeholders have not found place in the proposed legislation. According to the representative of Tulir-Centre for the Prevention and Healing of Child Sexual Abuse, it was surprising that a whole new legislation was being envisaged instead of amending and strengthening the Act of 2000. On National Crime Records Bureau data it was observed that there have been some lacunae in the way this data was being collated, compiled and 7 analyzed by the police and that one should be circumspect about the need to decrease the age to 16 years based on NCRB’s data. Commenting on child in conflict with law, it was submitted that to send a child to an adult court required a sentencing policy which the country did not have presently. The Observation Homes or Special Homes were mini-incarceration homes affording no opportunities for children in conflict with law. In the Criminal Justice System, with few exceptions, it was the poor who was at complete disadvantage. On adoption issue, the representative opined that the surrender of a child should be in the physical presence of the Child Welfare Committee. Presently, the children’s homes get surrender deed from the parents and then present it to the Child Welfare Committee which did not have the ability to ascertain from the actual surrendering parents whether they were surrendering the child. Surrendering parents should also be given information by the CWC that they have requisite amount of time to claim the child back. On the children found begging, the representative opined that such a children were presumed to be in need of care and protection and their cases should be decided in the jurisdiction in which they were found begging. Raising specific reservation on the provision in clause 75, the stakeholder opined that this provision was worrying as it needed to be looked at in relation to section 23 of POCSO Act. 2.7 The representative of Save the Children was also of the view that the Act of 2000 was good and there was no need for re-enactment. Commenting on the objective of the Bill, the representative observed that some clauses of the Bill actually violate the objective itself in addition to violating UNCRC principles and the Constitution of India. A lot of misinformation about the juvenile crimes was being spread through media which required relooking. Research has shown that adolescence was a specific stage of development where the brain is not fully developed and matured, therefore, the adolescents were more prone to reckless behaviour. A lot of children who end up offending were also the children in need of care and protection requiring extra attention. The whole philosophy of juvenile jurisprudence centred around the quality of restoration, rehabilitation and reform and not around incarceration into jails and throwing children with adults into a system where they would get further brutalized. About the NCRB data, the representative opined that juvenile crimes account for only 1.2 per cent and that this percentage had remained constant over 2012 and 2013. Even most cases of rape were either love or elopement cases where girl’s parents subsequently charged the boy with rape. Thus, numerous instances of children and younger people being falsely apprehended cannot be ignored. The representative was of the definite view that the definition of ‘heinous’ should be removed and also that clause 19 of the Bill may be reviewed as the Act of 2000 had a provision in section 16 to deal with children above 16 years who had committed offences of a very serious nature. Section 16 of the Juvenile Justice Act, 2000 conformed to not only the Juvenile jurisprudence but also to UNCRC, India’s constitutional provisions and the Supreme Court judgements. 2.8 The representative of the India Alliance for Child Rights observed that the provisions of the proposed legislation did not cover the comprehensive rights of the children. The terms ‘care’ and ‘protection’ have also not been defined in the proposed legislation. The representative had specific reservation on clubbing the children in conflict with law with the children in need of care and protection. According to the representative, all children in situations of vulnerability should come under the ambit of law and that it should be defined in the proposed Bill. A Child born through surrogacy must also find mention in the proposed Bill. 2.9 The representative of Butterflies was of the view that the juvenile justice legislation in any country should be reformative and not punitive. The 2000 Act was a progressive legislation and reformative in nature. About the crimes committed by children between 2012 and 2013, the representative opined that it was just 1.2 per cent of a population of 472 million children in our country which was very small and miniscule in comparison to America. The number of children who come under serious and heinous crime was miniscule and a good number of such offences were sexual offences. Further, children involved in heinous crimes such as murder and rape were 8 more amenable to reforms and should be given a chance of fresh start in life. Commenting on the proceeding in the JJBs, the representative observed that cases involving children were brought before them, the JJBs look into the cases, transfer and retransfer them putting a child into a psychological pressure requiring rethinking. There were no services for children in terms of counselling, case work, treatment and mediation, indicating failure of juvenile justice system. The representative further submitted that according to this legislation, a child between 16-18 would be transferred to a special home and he will remain there upto the age of 21 years. After this he would be assessed and if not reformed would be sent to an adult prison. It was emphasized that if the system has failed him once how could he be failed again. Referring to the confusion on the roles of District Child Protection Units, the Juvenile Justice Boards and the Child Welfare Committees, the representative submitted that the District Child Protection Unit was meant for preventive things and JJB and CWC were part of the legal system, therefore, clear demarcations were required. Under the proposed legislation, the DCPU has Secretarial services and staff and the CWC and JJBs would be taking from their services which would not be practical. The CWC and JJB should have their own staff and people. The representative also opined that there should be special probationary officers only for children. The representative expressed reservation on one month time given to a parent after the parent has surrendered the child. 2.10 The representative of NCPCR pointed out that there were implementation problems at district level and due to a weak monitoring mechanism the need for the present legislation arose. Terming clause 7 of the Bill a major lacuna, the representative pointed out that it was contradictory of clause 3 of the Bill which contained the principle of presumption of innocence upto the age of 18 years. Referring to clauses 15 (3), 16, 19 (3) and 20 of the Bill, the representative submitted that the issue of registration of birth and issuance of certificate by the Village Panchayats or the municipality was itself questionable and that there was need to ensure registration of every birth in the country. The representative further submitted that Juvenile Justice Boards and their members were not in a position to conduct and analyse the physical and mental capacity of the child or the circumstances which led the child to commit a heinous crime. It was pointed out that if a child’s case was tried by the children’s court, his record would never be destroyed and this would be a huge disadvantage for the child and the whole process of reformation would take a back seat. The representative suggested that clause 46 of the Bill should be expanded to include children of families without sufficient means of subsistence, dysfunctional families, harmless children, children displaced due to various reasons and children of incarcerated parents. It was also suggested that clause 76 of the Bill, which dealt with punishment for cruelty to child, needed elaboration with classification of the crime on the basis of nature and severty for fixing of maximum quantum of punishment so that penal provisions were provided for uncaring and callous parents and guardians also. The representative also suggested inclusion of the word “traffic” in clause 82 of the Bill. Concluding, the representative of NCPCR suggested that education, health and counselling should be made mandatory for every child in need of care and protection. 2.11 The representative of the Central Adoption Resource Authority suggested changes in the definitions of the terms ‘abandoned child’, ‘adoption’, ‘Child Welfare Officer’, ‘guardian’ and ‘registered’. In clause 28(4), the representative suggested three years’ experience in place of seven years and in clause 28(6) it was pointed out that once the CWC members were trained it must be ensured that they worked for a reasonable period, hence two terms each for a period of three years were suggested. The representative submitted that since the CWC also functioned as the complainant authority for any abuse or neglect of child, not only in child care institutions, but also in any family set-up, therefore clause 31(xvi) must also include ‘family’. In clause 59(2) it was suggested to include the social workers of District Child Protection Unit or State Adoption Resource Agency for conducting home study for the purpose of Adoption. In clause 60(1), the representative suggested for not specifying the time period of 30 days because different criteria had been set up to address the needs of different kinds of children in the draft adoption guidelines of 9 the Authority. In clause 60(10), the representative suggested that the prospective adoptive parents should be given custody of the child on the NOC issued by CARA. Further under clause 62(1) the NOC given by CARA for inter country adoption should be recognised along with other papers. In clause 63(2), the representative suggested inclusion of the word expeditiously’ in place of four months as adoption process itself depended upon several agencies working together. Further in clause 66(4), the representative was against the hard measures in case the specialised adoption agencies defaulted. Concluding, the representative submitted that in clause 70(4) the steering Committee should meet on quarterly basis or in such frequent intervals as may be prescribed. 2.12 Maharukh Adenwalla, Supreme Court lawyer submitted before the Committee that the existing juvenile justice law was an extremely good piece of legislation for protection and promotion of children, both in need of care and protection and in conflict with law. It also conformed to our international commitments as well as constitutional provisions as contained in Article 14, 15(3) and 20(1). According to the stakeholder, our Constitution allowed for special laws for protection of children because they were vulnerable and have some special characteristics due to which they could not be attributed same culpability as adults. Referring to the report of the Indian Jail Committee 1919-1920, the stakeholder submitted that it was well settled that children should not be treated as adult offenders. Referring to figures relating to juvenile crimes, it was pointed out that only 1.2 per cent of total crimes in our country was committed by juveniles and 20 out of this 1.2 per cent, only 7 per cent comprised things like murder and rape. The number was extremely few which could be tackled under the current system. It was emphasised that section 16 of the Act of 2000 had a specific provision to deal with children between 16-18 years who had committed serious offences which was well within the existing juvenile system and that there was no need to push juvenile offenders into adult criminal system. Commenting on the international convention of keeping 18 years as the age of the child, the stakeholder submitted that our country accepted this and there were a number of laws where the age of child was kept at 18 years such as Contract Act, Motor Vehicles Act, etc. The stakeholder had specific objections to the provisions as contained in clauses 2(33), 2(45) and 2((54) which had divided offences into petty, serious and heinous offences and clause 7 of the Bill which were violating not only the principles of juvenile justice but also of Article 20(1) of the Constitution. Expressing strong reservation on clause 19(3), the stakeholder submitted that it was discriminatory and violative of Article 15(3) of the Constitution. Commenting on the implementation part of the juvenile justice law, the representative submitted that the institutions envisaged under the Act have not either been set up or functional in the States and there was no representation of academics in JJBs. It was pointed out that rehabilitation has not been defined in the present legislation and after care provisions have also been weakened. 2.13 The representative of the Centre for Child and the Law submitted before the Committee that the existing juvenile justice system had a potential for reparation, healing and reformation which was sought to be erased by the proposed legislation. Under the existing law, if a child, in conflict with law, between the age of 16-18 years was found to have committed an offence by the Juvenile Justice Board, there was a range of rehabilitative dispositions that could be passed by the Juvenile Justice Board. These rehabilitative dispositions included admonition, community service, imposition of a fine, probation, group counselling and an extreme measure of deprivation of liberty by way of placement of the child in a special home for three years. These alternatives were in absolute compliance with UN Convention on the rights of the child. In the proposed legislation, however, the Juvenile Justice Board, a body meant to dispose cases in the best interest of children, was being obligated to decide whether a child should be pushed into the adult system on the basis of a preliminary inquiry. The representative was of the opinion that it was a highly arbitrary inquiry violating several rights under the Constitution as well as the U.N. Convention on the rights of the child. Strong reservation was also expressed on the inclusion of the term “heinous offence” which was in complete contradiction of the UNCRC. Regarding the procedure to be carried out after a child attained the age of 21 years, it was pointed out that there were no tools available in the world to assess the mental maturity and 10 capacity of a child. The stakeholder further pointed out that the existing juvenile justice system required greater commitment in terms of financial allocation, training and cadre-building for its effective implementation. It was emphasized that if the social investigation, individual care plan and monitoring were done effectively, it would enable the rehabilitation of the juvenile. In addition to this, the rights of the victims were also needed to be ensured. 2.14 The representative of PRAYAS submitted before the Committee that the underlying principle of the existing juvenile justice system in the country was to keep a separate system of law and justice for the juveniles. This system provided for care and protection to homeless, working, shelter-less and very poor children in the country, thus covering 95 per cent of children in need of care and protection. It was only less than 5 per cent children who commit crimes and come under juvenile system. It was further submitted that while upholding the constitutional validity of the Juvenile Justice Act, 2000, the Supreme Court concluded that there were only a few number of children committing crimes and that there was no need to reduce the age of 18 years. It was emphasized that the problem lied not with the law but its implementation. There was section 16 in the existing Act to deal with children in the age group of 16-18 years who were involved in the heinous crimes. Under the proposed legislation, these children have been sought to be treated differently without any justification. The representative expressed strong reservations on the provision as contained in clauses 16, 17, 19 and 22 and on some of the definitions in the proposed legislation. The representative was of considered opinion that children in the age group of 16-18 should not be put in adult criminal system in any circumstance. 2.15 In brief, the Committee finds the following observations of the stakeholders which have not been addressed by the Ministry, while coming up with the proposed legislation: – India had a long legislative history of dealing with the protection of children which is being eroded by the proposed legislation. Indian Penal Code (1860), CrPC (1898-1973) distinguished amongst the children/adolescent in the age group of 7 to 12, 12-21, provided for exemptions and no punishments; Children’s Act (1960), provided to deal with neglected, delinquent children, juvenile boys below 16 years and girls below 18 years, Juvenile Justice Act, (1986) replicated definition of Juvenile from the Children’s Act; Juvenile Justice (Care and Protection of Children) Act, 2000 ensured India’s compliance UNCRC, provided for authorities and mechanisms to deal with juveniles in conflict with law and children in need of care and protection; – Juvenile Justice (Care and Protection of Children) Act, 2000 was a very sound, progressive piece of legislation, reformatory in nature, only needed strengthening; – National Crime Records Bureau data should be viewed with circumspection, as it does not reflect disposal of cases; – number of crimes committed by children between 2012-13 just 1.2 per cent of a population of 472 million children which is miniscule, a good number of offences committed by children are sexual offences which were love affairs and elopement cases; – research has shown that adolescence is a particular age where brain has not fully developed; – children are more amenable to reforms; – children cannot be attributed same standards of culpability as adults due to their immaturity; – for children in conflict with law there needs to be a balance between sentencing, punishment, deterrence and rehabilitation; – philosophy of juvenile jurisprudence centres around quality of restoration, rehabilitation and reform restorative justice approach is gaining international recognition across the world; 11

– some sections of the Bill violate UNCRC principles and constitutional provisions; and – some sections of the Bill are regressive in nature-introduction of transfer system for children between 16-18 years alleged to have committed heinous offences to be tried and treated as an adult marks a shift from rehabilitation to retribution, introduction of heinous categories of crimes and apprehending a juvenile after completing 21 years for a heinous crime committed between 16-18 years and be tried as an adult are regressive and retributive features. 2.16 The Committee had very extensive and meaningful deliberations with all the stakeholders appearing before it. Besides that, the Committee was also benefitted by the exhaustive briefs submitted by the stakeholders. It was mainly because of this exercise, the Committee managed to get insight into some of the critical aspects pertaining to the proposed legislation. It enabled the Committee to make an in-depth and objective analysis of the Bill. The Committee places on record its deep sense of appreciation for all the stakeholders for their contribution and for making the task of the Committee easier.

III. CRITICAL ISSUES NOT COVERED IN THE BILL 3.1 The Committee, during its interactions and deliberations found that there were a number of critical issues /areas of concern, especially relating to the provisions of children in conflict with laws which have not been given adequate consideration by the Ministry. In the following paragraphs, the Committee has made an objective analysis in this regard. The Committee is of the considered view that all these critical issues merit serious consideration and need to be reflected appropriately in the proposed legislation.

Applicability of the National Crime Records Bureau Data 3.2 One of the key provisions in the proposed legislation that attracted a lot of debate from the stakeholders was relating to the children in conflict with law. The Secretary, Ministry of Women and Child Development contended before the Committee that the National Crime Records Bureau data showed that the number of children apprehended for heinous crimes, especially in the age group of 16-18 years, had gone up significantly in the recent times. From 531 murders in 2002, the figure had gone up to 1, 007 in 2013, for rape and assault with intent to outrage the modesty of women, the figures have gone up from 485 and 522 to 1, 424 and 1, 884 respectively during the same period. According to the Secretary, these were disturbing figures. The background note on the Bill submitted by the Ministry also stated that special provisions in the proposed law have been made to address heinous offences committed by children above the age of 16 years, which would act as a deterrent for child offenders committing such crimes. On a specific query regarding the number of heinous offences committed by children in the age group of 16-18 years during the last three years and the current year, the Committee was provided with the following All India figures by the Ministry:–

Years Murder Rape Kidnapping & Dacoity Abduction 2010 600 651 436 105 2011 781 839 596 142 2012 861 887 704 207 2013 845 1,388 933 190 12

Committee’s attention was also drawn to the following data of the National Crime Records Bureau by many stakeholders appearing before it, which indicated the percentage of juvenile crimes to total cognizable crimes committed in India from 2003 up to 2013:–

National Crime Records Bureau (Crimes in India, 2013)

Year Total Cognizable Total Juvenile Percentage of Juvenile Crimes Crimes Crimes to Total Cognizable Crimes 2003 1716120 17819 1.7 2004 1832015 19229 1.8 2005 1822602 18939 1.7 2006 1878293 21088 1.9 2007 1989673 22865 2.0 2008 2093379 24535 2.1 2009 2121345 23926 2.0 2010 2224831 22740 1.9 2011 2325575 25125 2.1 2012 2387188 27936 2.3 2013 2647722 31725 2.6

3.3 Almost all the stakeholders heard by the Committee questioned the wisdom of the Ministry in relying on the NCRB data for bringing out such drastic provisions for children in conflict with law in the age-group of 16-18 years. According to the representative of Tulir-Centre for the Prevention and Healing of Child Sexual Abuse, great circumspection was required in analysing the NCRB data as the same was collated and compiled by the police. Similarly, the representatives of Save the Children and Butterflies were of the view that NCRB data itself indicated that the juvenile crimes account for only 1.2 per cent of the total crimes committed in the country and also that the figures of juvenile crimes remained constant in 2012 and 2013. Maharukh Adenwalla, Supreme Court Lawyer also submitted that only 1.2 per cent of the total crimes were committed by the juveniles in our country, a small number which could be handled within the existing juvenile system. She further submitted that of this 1.2 per cent, only 7 per cent comprised of crimes like murder and rape. According to the representative of Prayas, only a very small number i.e 1 to 2 per cent of children committed crimes out of the population of 42 per cent children in the country. 3.4 According to the stakeholders, the NCRB data on juvenile crimes has been highly misrepresented to re-enact the proposed law and to bring the children in the age-group of 16-18 years under the purview of the criminal justice system, a highly retrograde step likely to serve no purpose. It was emphasized that the NCRB data was based on FIR and was not about children who were found guilty but was of those alleged to have committed an offence. It was pointed out that the percentage of juvenile crimes to total crimes in India has been a miniscule 1.2 per cent only and that the percentage of violent crimes committed by juveniles could even be smaller. It was contended that there was misconception amongst the public that the number of children committing offences, more particularly violent offences, such as rape and murder, was on the increase. 13

3.5 The National Crime Records Bureau Report itself contradicted this conception according to which a good number of children were being acquitted every year as they were found not guilty. Committee’s attention was also drawn towards the Ministry of Home Affairs publication ‘Crime in India, 2012’ which also showed that juvenile crime was 1.2 per cent of the total crimes committed. The Committee was apprised that the juvenile crime from the period 1990 to 2012 ranged between 0.5 to 1.2 per cent of total crimes committed in India. The average of juvenile crime to total crime during these 22 years has been only 0.8 per cent. The percentage of juvenile crime to total crime increased in 2001 when the age limit for male juveniles was raised to 18 years but it was still 0.9 per cent and had remained stabilized thereafter. 3.6 Committee’s attention was also drawn towards the data pertaining to violent crimes registered against juveniles in the year 2012. The percentage of violent crimes registered against the juveniles in 2012 was only 15.6 per cent of total IPC crimes committed by juveniles in 2012 of which murder (990) and rape (1,175) constituted only 7.7 per cent of total IPC crimes committed by juveniles (27,936). The afore-mentioned data denotes that violent crimes, such as murder and rape, were a small percentage of crimes registered against juveniles. This has been the general trend, even after the age of juvenility was increased from 16 to 18 years in 2001. 3.7 Committee also took note of ‘Crimes in India, 2013’ which again showed juvenile crimes to be 1.2 per cent of the total crimes committed. Total IPC crimes committed by juveniles in 2013 were 31, 725, out of which 1,884 were rape and (5.93 per cent of total IPC crimes) and 1,007 murders which constituted 5.93 and 3.17 per cent of the total IPC crimes. Hence, 9.1 per cent of total IPC crimes constituted rape and murder. Further, the increase in number of rape cases in 2013 could be attributed to the Protection of Children from Sexual Offences Act, 2012 which increased the age of consent to sexual activity from 16 to 18 years. With the advent of POCSO Act 2012, sexual activity which was earlier treated as consensual was criminalised, resulting in a significant surge in rape and kidnapping/abduction cases against women. 3.8 Further, a significant number of cases of rape and kidnapping included love cases and consensus elopement where girl’s parents charged the boy with rape subsequently. Numerous instances of children being falsely apprehended by the police also could not be ignored. From this data, it is evident that juvenile crime is a miniscule proportion of total crime committed and that the same is not significantly increasing. Such small numbers can most easily be dealt with under the juvenile justice system with appropriate infrastructure and human resources. Furthermore, when we compare these numbers with the child population, it is evident that the increase is mostly hypothecated rather than a reality. Juvenile crimes were only 1.2 per cent in 2012 and 2013 as compared to the child population of 472 million in 2013. Moreover, it is important to note that a similar increase has been noted in crimes committed against women by the general population in 2013 also. The above data indicates that there is no basis to conclude that the pattern of juvenile crime in relation to overall pattern of crime in the country has altered in any significant manner. 3.9 Another area of concern highlighted by the stakeholders was the socio-economic background of the juvenile offenders in conflict with law. It was submitted that majority of juvenile offenders came from poor, illiterate families and were homeless or living without parents. The data of the National Crime Records Bureau, 2000 to 2010, denotes that about 60 per cent of juveniles apprehended came from families whose income was less than `25,000/- per annum, and 20 per- cent from families whose income was between `25,000/- to `50,000/- per annum, aggregating to 80 per cent of juveniles arrested during that period. In 2010, 30,303 juveniles were arrested, out of which 6,339 were illiterate and 11,086 had studied till primary level. Hence, it is not the stringent punishment for juvenile offenders that will result in reduction of juvenile crime, attempts should be made to improve the socio-economic condition of families thereby satisfying the developmental needs of children. In 2013, 50.24 per cent of the juveniles apprehended came from families whose 14 income was less than `25,000/- per annum, and 27.31 per cent from families whose income was between `25,000/- to `50,000/- per annum, aggregating to 77.55 per cent of juveniles arrested. It was emphasized that it would be the deprived and poor children who would be arrested and thrown into jails through the proposed legal changes. 3.10 When attention of the Ministry was drawn to the reliability of NCRB data, it was admitted that there were not many cases of children committing serious and heinous crimes. However, it was also emphasized that the data maintained by NCRB revealed that the percentage of offences committed by children in the age-group of 16-18 years had increased to total crimes committed by children across all ages. It was also informed that a crime-wise review of offences committed by children in the age-group of 16-18 years revealed that cases of assault on women with intent to outrage their modesty had increased from 154 in 2010 to 1142 in 2013 and cases of rape by such children had increased from 651 in 2010 to 1388 in 2013. 3.11 The Committee was also given to understand that the current prvisions and system under the JJ Act were ill-equipped to tackle child offenders in the age-group of 16-18 years, who had committed heinous offences, with the awareness that children could get away with relatively lighter punishment under the existing Juvenile Justice system. It was also pointed out that the Delhi gang rape in December, 2012, the Shakti Mill rape case in Mumbai in July, 2013 and the Guwahati rape case in September, 2013 involving child offenders had also triggered a debate across the country about the inadequacy of punishment awarded to children who committed heinous crimes. A weak law could not be a determent and therefore to address the increasing trend of crimes by children, the new Bill has been introduced. 3.12 Keeping in view the analysis of NCRB data and delibration with the stakeholders, the Committee is not inclined to agree with the following justification given in the Statement of Objects and Reasons to the Bill: “---increasing cases of crimes committed by children in the age group of 16-18 years in recent years makes it evident that the current provisions and system under the Juvenile Justice (Care and Protection of Children) Act, 2000, are ill-equipped to tackle child offenders in this age-group. The data collected by the National Crime Records Bureaus establishes that crimes by children in the age-group of 16-18 years have increased especially in certain categories of heinous offences.” The detailed interactions with all the stakeholders on the authenticity, viability and relevance of NCRB data in the context of the Juvenile Justice (Care and Protection of Children) Bill, 2014 has presented an entirely different scenario. 3.13 The Committee finds the submissions of the stakeholders very valid. The Committee takes note of the view of National Commission for Protection of Child Rights that NCRB data was based on FIRs and did not provide information on the conviction of children in the age-group of 16-18 years or otherwise. It is true that FIR/complaint was merely an information regarding occurrence of an offence. The Committee is of the firm opinion that increased reporting of crime against children in the specific age-group should not necessarily lead to assumption of increased conviction of juvenile in the crime. The realistic figure of involvement of juvenile in heinous crime needs to be based on completion of investigation, filing of final report by the police before the court and pronouncement of judgment. 3.14 Statistics made available to the Committee clearly indicate that the incidence of juvenile crime only increased from 0.9 in 1999 and 2000 to 1.6 in 2001 when age of juvenility was raised to 18 years. Not only this, these figures thereafter have retained their stable proportionality, fluctuating between 1.7 to 2.3. Another related issue which cannot be ignored is that with the 15 enactment of the Protection of Children from Sexual Offences Act, 2012 that increased the age of consent to sexual activity from 16 to 18 years, reporting of such cases also showed an increasing trend. With the advent of the POSCO Act in 2012, sexual activity earlier treated as consensual was criminalised, resulting in a significant surge in reporting of rape and kidnapping/abduction cases against women. 3.15 The Committee would also like to point out that an increase has also been noted in 2013 in crimes committed against women by the general population (adults) - a 32.1 per- cent increase regarding rape, and a 35.6 per cent increase in registration of cases regarding kidnapping and abduction of women and girls. Thus, it would not be wrong to conclude that the pattern of juvenile crime in relation to overall pattern of crime in the country has altered in any significant manner. There is a similar trend of increase in crimes committed against women in both the juvenile and general population. Lastly, one must also not forget that it is only natural that the highest age-group will contribute the largest to the total of crime committed by juveniles. The objective analysis of the data of the National Crime Records Bureau placed before the Committee makes it abundantly clear that the percentage of juvenile crimes in India i.e 1.2 per cent of the total child population of the country is quite low. Secondly, some incidents of juvenile crime, though a cause of serious concern should not be the basis for introducing drastic changes in the existing juvenile justice system. The Committee would like to draw the attention of the Ministry to the Salil Bali vs. Union of India (2013) where the Supreme Court has very aptly observed: “There are, of course, exceptions where a child in the age-group of 16 to 18 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 charge 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.” 3.16 One must not forget that juvenile justice law is based on a strong foundation of reformation and rehabilitation, rather than on retribution. Therefore, drastic changes proposed in some key areas of the existing system of juvenile justice need very deep introspection. It is all the more surprising that the Ministry has very comfortably chosen to ignore the views of all the major stakeholders in this regard. As rightly pointed out by some of the witnesses, better implementation of the Act and more public awareness were required to be focussed upon to curb the recent cases of juvenile crime.

Violation of constitutional provisions 3.17 Almost all the stakeholders heard by the Committee were of the considered opinion that some of the provisions of the proposed legislation were violative of the constitutional provisions as contained in Articles 14, 15 (3), 20(1) and 21. It was specifically pointed out by Save the Children, Prayas, Cenre for Law and Child and Maharukh Adenwalla, Supreme Court Lawyer that provisions of clauses 2(33), 2(45), 2(54), 7, 16, 19(3) and 20 of the proposed legislation seeking to bring major changes in juvenile justice system were in contravention of these constitutional provisions. 3.18 Article 14 of the Constitution obligates the State not to deny to any person equality before law or equal protection of laws within the territory of India. It was pointed out that in India the concept of equality was not the formal equality as was observed in USA but was that of proportional equality which recognised that everyone was not equal and that the State was obligated to enact laws in favour of the weak and disadvantaged section of the society. Proportional equality 16 was based on that of right to equal treatment in similar circumstances and that the persons who were unequally circumstanced could not be treated at par. It was submitted that through Article 14, it was recognised that weaker and vulnerable sections required special/additional protection. Further, Article 15(3) of the Constitution permited the State to enact special laws for the protection of children. 3.19 Thus, it can be concluded that the Constitution recognised that children being vulnerable, have special needs requiring special protection and care. Based on these two Articles, many laws have been enacted for the benefit of women and children and one such legislation was the Juvenile Justice (Care and Protection of Children) Act, 2000 which was based on a premise that the juveniles have some characteristics intrinsic to their age, requiring both differential treatment and opportunities for reformation and rehabilitation. Even before this Act the juvenile justice jurisprudence in the country had always accorded differential treatment to the juveniles recognising their peculiarities and need for reformation. 3.20 Committee’s attention was also drawn to two chapters of the Report of the Indian Jails Committee 1919-1920 to emphasize that the juvenile justice system in the country had always recognised the fact that the ordinary healthy child criminal was mainly the product of unfavourable environment and that he was entitled to a fresh chance under better surroundings. Further, that a child who committed crime could not have the same full knowledge and realization of the nature and consequences of his act as an adult. Another observation said that familiarization of these young offenders with prison life and their possible contamination by older offenders was to be avoided. Another observation stated that special efforts should be made to bring them under reforming influences and to improve their minds by education both general and special as well as by religions and moral teaching. It was difficult to provide such special treatment in an ordinary jail. 3.21 From the above, the Committee can only conclude that the 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. 3.22 It was also brought to the notice of the Committee that clauses 7 and 21 of the proposed legislation were also unconstitutional and contrary to the established principle of juvenile justice. It is the characteristics inherent in a child that requires child offenders to be treated differently from adult. Therefore, it would be the age of the person on the date on which the offence was committed that would determine whether such person was to be dealt with under the juvenile justice system or the criminal justice system. Clause 7 of the Bill allows for a person who was a juvenile on the date of offence to be dealt with under the criminal justice system if arrested on completion of 21 years of age. This provision violates Article 20(1) of the Constitution which provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence nor be subjected 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. Hence, under clause 7 of the Bill, a person would be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. 3.23 Clause 21 of the Bill, which allows the Children’s Court to transfer a child in conflict with law on attaining 21 years of age from a place of safety to jail is also violative of not only Article 20(1) but also of established principle of juvenile justice which prohibits co-mingling of a child offender with hardened criminals. It was forcefully contended by the stakeholders that why should treatment of a child become harsher on crossing a particular age. When our system does 17 not allow a child below 18 to drive, vote, enter into contracts, engage a lawyer, sue and take legal action, marry or own property why that child be allowed to go to adult criminal justice system. The Committee also notes that introducing children into the criminal justice system amounts to violation of Article 21 (Protection of life and personal liberty) as the procedures contained therein are not commensurate with the requirements of children. The juvenile justice system has child-appropriate procedures keeping in mind the best interest of the child. 3.24 Furthermore, there were provisions in the Act of 2000 itself i.e. Section 16 to deal with children between 16-18 who have committed serious crime which were within the juvenile system and there was no need to push those children into adult criminal system, a move which could be described as retributive only. 3.25 When the issue of violation of constitutional provisions in the proposed legislation was taken up with the Ministry, it was strongly contested. Contention of the Ministry was that the children below the age of 18 years are proposed to be treated equally. Hence, there was no violation of Article 14[Equality before law]. Only exception was that in case of children in the age-group of 16-18 years, who commit heinous offences such as rape or murder, a detailed treatment was proposed in the Bill. It was also mentioned that in case of heinous offences committed by children between the age-group of 16-18 years, a longer reformatory period was required. Similarly, no provision of the Bill was violative of Article 15 [Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth] and Article 21 [Protection of life and personal liberty]. 3.26 The Committee is not convinced by the clarification given by the Ministry. As an example, clause 7 of the Bill is in clear violation of Articles 14 and 20 of the Constitution. An artificial differentiation between children apprehended before 21 years and those apprehended after 21 years of age is proposed to be created. The Committee strongly feels that this categorization has no rationale. A person who was a child when the offence was committed will be treated as an adult on account of a failure on the part of the investigating agencies in apprehending him/her. The existing system that allows all juveniles to be treated within the juvenile justice system does not offend the right to equality under the Constitution. Altering the existing system under the guise of promoting the rights of victims of the right to equality is, therefore, highly suspect. 3.27 The Committee takes note of serious reservations/apprehensions voiced by majority of stakeholders with regard to certain provisions of the proposed legislation not being in conformity with a number of Articles of the Constitution. The Committee has been given to understand that in the Act of 2000, there was no such contravention. The Committee would like to point out that such changes may lead to uncalled for situation in future. This becomes all the more worrisome as the most vulnerable section of the society, our children are likely to be adversely affected. The Committee is, therefore, of the firm view that all the relevant clauses of the Bill need to be reviewed in the light of constitutional provisions and modified so as to adhere to the Constitution.

Violation of UN Conventions 3.28 Committee’s attention was drawn to some of the international conventions which recognised that a child who had committed an offence required rehabilitation and should be dealt with differently than an adult offender. It was pointed out by Save the Children, Prayas, Centre for Law and Child and Maharukh Adenwalla, Supreme Court Lawyer that the UN Declarations, Rules, Conventions and General Comments adopted/issued on the international platform denoted the progressive realization of the right of a child, being a person under 18 years, to be dealt with by the juvenile justice system without any exception. It was emphasized that UN Convention on the Rights of the Child was built on the principle that all children were born with fundamental 18 freedoms and all human beings had some inherent rights. Reference was also made to United Nations Standard Minimum Rules for the Administration of Juvenile Justice known as Beijing Rules, which entailed that a child or young person who had committed an offence should be treated by the law differently from an adult. 3.29 Committee’s attention was also drawn to the Convention of the Rights of the Child which were acceded to by the Government of India in 1992. Article 1 of the CRC defined a child to mean every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier. The Majority Act, 1875 provided that the age of majority for those domiciled in India was 18 years. The stakeholders were of the considered opinion that many provisions of the proposed legislation were in contravention of the UN Convention on Rights of the Child. Some of these provisions are indicated below:–

Violative Provisions of the Bill UN Convention on the Rights of the Child 1 2 Transfer system: Clauses 15(3), 19(3), 20(1), Article 2 : prohibition on non-crimination read 20(3) and 21 with General Comment No. 10 on juvenile justice. Article 3 : best interest considerations (rehabilitation, re-integration, and restorative justice objectives) must outweigh considerations of the need of public safety, sanctions and retribution.

Institutionalization under clauses 20(3) 21(2) Article 37(b): deprivation of liberty to be a and 22 measure of last resort and for the shortest possible period of time. Article 6 : Right to life All forms of life imprisonment to be abolished.

Preliminary inquiry under clause 16(1) Article 40(2)(b)(i) : Presumption of innocence which also prohibits the prejudging of the outcome. Article 37(b) : Arbitrary deprivation of liberty.

Clause 21(1) : Evaluation by Children’s Court Violation of the prohibition on arbitrary whether child has undergone reformation and deprivation of liberty under Article 37(b). can make meaningful contributions to society.

Clause 19(1) : Exclusion of children between 16 Violation of the principle of deprivation of and 18 years found to have committed a liberty to be a measure of last resort under heinous offence from rehabilitative dispositions Article 37(b) and requirement of alternative that can be passed by JJB. dispositions under Article 40(4).

Clauses 19(3) and 20(1) : Transfer by JJB of a Article 40(1) : Right to be treated with dignity child in conflict with law to the Children’s Court and which reinforces the desirability of and trial and sentencing by a Children’s Court. promoting the child’s re-integration.

Clauses 20(3) and 21(2)(ii) : Transfer to prison Article 37(c) : Separation of juveniles from adults which does not mean “that a child placed in a facility for children has to be moved to a facility for adults immediately after he/she turns 18.” 19

1 2 Clause 7 : Trial as adults of children Violation of the prohibition on no retroactive apprehended after completion of 21 years for juvenile justice under Article 40(2)(a) + Article committing serious or heinous offences. 15, ICCPR.

Clause 25(3) : preservation of records of Violation of the right to privacy under Articles juvenile sent to jail by the Children’s Court. 16 and 40(2)(b)(vii) which applies to “all stages of the proceedings” including “from the initial contact with law enforcement up until the final decision by a competent authority, or release from supervision, custody or deprivation of liberty.”

3.30 It may not be out of place to take note of the concluding observations of the Committee on the Rights of the Child : India (dated 23rd February, 2000) which says– “Definition of the child - 26. In the light of article 1, the Committee is concerned that the various age limits set by the law are not in accordance with the general principles and other provisions of the Convention. Of particular concern to the Committee is the very low age of criminal responsibility under the Penal Code, which is set at seven years: and the possibility of trying boys between 16 and 18 years as adults. The Committee recommends that the State party review its legislation with a view to ensuring that age limits conform to the principles and provisions of the Convention, and that it take greater efforts to enforce those minimum-age requirements.” Administration of juvenile justice (articles 37, 40 and 39) - 79. 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. The Committee is further concerned at the overcrowded and unsanitary conditions of detention of children, including detention with adults. The Committee recommends that the State party review its laws in the administration of juvenile justice to ensure that they are in accordance with the Convention, especially articles 37, 40 and 39 and other relevant international standards such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules). The Committee also recommends that the State party consider rising the age of criminal responsibility and ensure that persons under 18 years are not tried as adults. 3.31 On being asked to clarify the status of the proposed legislation vis-a-vis the International Conventions, it was categorically stated by the Ministry that the Bill was not in contradiction with the International Instruments to which India was signatory. Attention of the Committee was drawn towards the various provisions of the Bill which were in consonance with such International Instruments. 3.32 It was also pointed out by the Ministry that with regard to differential treatment of children in the age group of 16-18 years who committed heinous crimes, it was noted that the international instruments did not specify any age limit. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) under the section on “Scope of the Rules and definitions used” does not prescribe the age limit for making determination of a juvenile of offender. It only states that a juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult. The United Nations 20

Convention on the Rights of Child (UNCRC) has set a clear age limit in only two articles. These two articles are article 37, which states that no child under the age of 18 years should be given capital punishment of life imprisonment without the possibility of release and Article 38, which states that no child under the age of 15 years should be recruited into the armed forces or participate directly in hostilities. In two more articles, the Convention urges countries to set a minimum age and gradually raise that age. These are Article 32 on child labour and Article 40 on criminal responsibility. Article 40 does not state that the age of criminal responsibility should be 18 years. Given the reality that children tend to mature faster and at much younger ate, it is important to define the age of criminal responsibility at a level which is in tune with the current scenario. 3.33 It was also emphasized by the Ministry that India was a sovereign country and the laws of the country were made by the Parliament. It was true that India had ratified several international instruments and due importance was given to the principles of these instruments and they were being incorporated in the policies and laws as far as feasible. However, lot of societal changes had taken place since the General Declarations of the Rights of the Child was signed in 1924, Declaration of the Rights of the Child signed in 1959 and UN Convention as the Rights of the Child signed in 1992. The Committee was also informed that clause 16 of the United Nations Rules for the Protection of Juvenile deprived of their Liberty, 1990 stated that Rules were to be implemented in the context of the economic, social and cultural conditions prevailing in the country. 3.34 The Committee, while taking note of the observations of the stakeholders about the commitments of the country in the context of various international conventions and the compliance status as indicated by the Ministry, would like to emphasize that the universal truth which nobody can dispute is that a child who has committed an offence requires protection and treatment differential from that of an adult. CRC states that a child is a person who has not completed 18 years of age. With the advent of CRC, on the international platform, persons under 18 years have been recognized as children. Ambiguity, if any, has been ended vide the General Comment No. 10 which categorically states that principles relating to juvenile justice should apply to all persons below 18 years of age, without exclusion. 3.35 In this context, the Committee made an attempt to trace the compliance of UNCRC on juvenile justice in the country. It was in 2000 that the CRC Committee had criticized discriminatory definition of Juvenile in JJ Act, 1986. JJ Act, 2000 was subsequently, was enacted and the term ‘juvenile’ was defined to mean all persons below 18 years. Thereafter, urged India was also asked by CRC Committee to clarify that the date on which offence was committed and not when the juvenile was apprehended was relevant. Accordingly, JJ Act was amended in 2006 to clarify that the date of reckoning would be the date on which offence was committed. Then in 2007, CRC Committee’s General Comment No. 10 on juvenile justice expressly recommended countries to change laws that allowed the treatment of juveniles aged 16-17 as adults to ensure non- discriminatory application to all children below 18 years. UN Committee has also expressed concern about the proposed JJ Bill, 2014 and urged to ensure that age of criminal responsibility in the Rules was respected and that children were not detained with adults. 3.36 The Committee finds no merit in the contention of the Ministry that lot of societal changes have taken place with the signing of UN Convention the Rights of the Child in 1992 and relook at our laws was required so as to revise them as per the current needs. The Committee is somewhat surprised to note the apparent contradiction in the above position and the following paras of the proposed of the Preamble in the Bill: “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 21

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.” The Committee can only conclude that as per the well-established practice, the proposed legislation has to contain provisions which adhere to all the enumerated objectives in the real sense.

Violation of Supreme Court Judgements 3.37 The Committee was given to understand that there were minimum five judgements of the Supreme Court, namely Rohtas (1978), Raghbir (1981) Abujar Hussain (2012), Salil Bali (2013) and Subramaniam Swamy (2014) which have been set aside by the proposed Bill. In each of these judgements, it was categorically provided that all children should be dealt with under the juvenile justice system. 3.38 The Committee notes that in 2013, in Salil Bali vs. GOI, the Supreme Court, while upholding the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act, 2000 had observed that the Act of 2000 was in tune with the provisions of the Constitution and the various declarations and conventions adopted by the world community represented by the United Nations. Recognising children’s vulnerability in the same judgement, the Supreme Court had held that children were amongst the most vulnerable sections in any society. Upholding 18 years as the age of juvenility, it was also observed that the age of eighteen has been fixed on account of the understanding of experts in child psychology and behavioural pattern and 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. Acknowledging rehabilitative spirit of the juvenile justice legislation, it said that the essence of the Juvenile Justice Act, 2000 and the Rules framed thereunder in 2007, was restorative and not retrobutive, providing for rehabilitation and reintegration of children in conflict with law into mainstream society. Opining that the difficult cases of children between 16 to 18 years should also be dealt with within the juvenile justice system, it clearly observed that there are exceptions where a child in the age group of 16-18 years may have developed criminal propensities, which would make it virtually impossible for him/her to be reintegrated into mainstream society, but such examples were not of such proportions as to warrant any change in thinking, since it was probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals. 3.39 The Committee observes that in Dr. Subramaniam Swamy and Ors vs, Raju and Other (2014) case also, the Supreme Court had observed that there was a considerable body of world opinion that all persons under 18 ought to be treated as juveniles and separate treatment ought to be meted out to them so far as offences committed by such persons were concerned. The avowed object was to ensure their rehabilitation in the society and to enable the young offenders to become useful members of the society in later years. India has accepted the above position and legislative wisdom has led to the enactment of the Juvenile Justice Act, 2000 in its present form. 3.40 From the above, the Committee can conclude that the underlying principle of the juvenile justice system has always been to treat all children who have committed offences within the juvenile justice system and differential treatment or sending the child to the adult criminal justice system had always been excluded by the Supreme Court. The Committee is constrained to observe that observations/judgements of the Apex Court of the country have simply been ignored. The Committee takes a serious view of this development. Implementation of the Juvenile Justice Act, 2000. 22

3.41 The Committee had the opportunity to interact with a number of NGOs working at the grass-root level with children and closely associated with the implementation of the JJ Act, 2000. The one disturbing fact which kept on emerging during these discussions was the very discouraging status of implementation of the JJ Act, 2000. 3.42 The Committee was given to understand that while some States like Delhi, Maharashtra (Mumbai), Karnataka (Bangalore), Andhra Pradesh (Hyderbad) and few other districts within these States implemented the legal provisions for children well, most other states and districts lagged behind. States that pro-actively pushed for greater convergence with NGOs, police, Administration capacities of child protection structures and making them effective. However, in States like UP, Bihar and Madhya Pradesh, Statutory bodies, i.e. CWCs and JJBs were not in place, accountability mechanism of these bodies was poorly defined and there was no monitoring or performance appraisal of these bodies and other support mechanisms for building their capacities were absent. Rehabilitation facilities were very poor and psychological conselling and treatment were practically non-existent. 3.43 The Committee also took note of the view of the National Human Rights Commission on the implementation aspect of the Act which stated that there had been gross failure in the existing juvenile justice system primarily because its provisions, in particular those relating to rehabilitation, vocational training and social reintegration, had not been implemented in d letter and spirit. The need of the hour was to give effect to the provisions contained in the Juvenile Justice Act, 2000 and Rules framed thereunder so that children in conflict with law as well as those in need of care and protection were provided the requisite infrastructure, prescribed standards of care in institutions, education, counselling, vocational training, individual care plan, as per their development needs and best interest. 3.44 Committee’s attention was drawn to the following implementation flaws:– – Insufficient Investments: Juvenile Justice covers almost 40 per cent of national population (0- 18 years) but the investments made to develop infrastructure, recruit qualified staff, restoration, rehabilitation, education of CNCP and CCL children are woefully inadequate. The budget for child protection has always been least ‘Out of total union budget, only 0.04% are allocated for the child protection’. This covers Juvenile Justice System, child labour and provision for orphan and street children. These low investments result in different financial outlays in different states. The training support is not uniform and the secretariat support to CWC and JJB is limited and most importantly the investment into developing infrastructure is negligible. The percentage share of children’s budget within the Union Budget has been reduced from 4.76% in 2012-13 to 4.64% in 2013-14. Worryingly, maximum cuts have been made in the component of child protection, especially at a time when the Centre is pushing for the implementation of the Juvenile Justice Act and the Protection of Children from Sexual Offences Act. The total expenditure for the Integrated Child Protection Scheme (ICPS) has been reduced from `400 crores to `300 crores this year, which is a 25% cutback, as against the backdrop of the 12th Planning Commission having estimated the need for operationalization of child protection programmes at `5300 crores over the Plan period i.e. `1060 crores per year. – Lack of adequate number of JJB’s and CWC’s: Inadequate number of CWCs and JJBs, and many JJBs and CWCs exist only on paper, and are not functioning. Further, the more populous districts are likely to produce larger CWC caseloads and need additional CWCs. However, despite this, the most populous district in India, i.e. Thane district in Maharashtra, with a population of over 1.1 crores has just one CWC. This is the same as Sindhudurg district with a population of less than 8.5 lakh. One CWC 23

for more than one district is noted to be severely inadequate for a State like Delhi with around 51,000 street children alone. The case loads of the existing CWCs have been found to be very high; in 2010, a total of 2725, 2494, 1357, and 1141 were heard by each of the four CWCs. It is also found that many of the State Governments are yet to start a separate girls and boys observation homes in every district. The CWC has limited teeth as they can only raise the issue with the Child Welfare department but the department is their monitoring authority and the Head of department is also the Head of Advisory Board in most of the states, hence monitoring is not effective. – In the absence of common guidelines in the states, appointments of CWC and JJB members have been made without following norms. There were also long delays in making these appointments that rendered these statutory bodies ineffective during those periods. The uniform understanding on the functions and deliverables amongst the appointed members suffered in absence of orientation and regular trainings. – Lack of Homes: Despite the fact that there are several homes being run by the Government and other civil society organisations, there is still dearth of homes to accommodate both CNCP and CCL. A study conducted by Ministry of Social Justice and Empowerment, GoI clearly stated that “the proportion of homes where children in conflict with law and those in need of care and protection live together is about 20% of the total sample”5. The lack of institutional infrastructure and trained manpower in the states has blunted the whole objective of this legislation. – Lack of Monitoring: There is no Institution nominated either at state level or at national level to monitor the progress and provide support to the child protection structures. The JJ Act requires concurrent training and capacity building of CWC, JJB, Police, Child care institution officials and other stakeholders. However there is no such training institution at the state level. The central training institution of NIPCCD provides capsule courses of two days, which is inadequate as all the members are not sufficiently trained. The National Rural Health Mission that came into existence much later in April, 2005 successfully developed different training modules for “Asha/Sahiya” that built the capacities of the field staff, but there are no such uniform, standardised training efforts made to build capacity of stakeholders dealing with JJ Act. – Constitution of Special Juvenile Police Units (SJPU) – The crucial appointments of child welfare officers in police stations have not been looked into seriously. In most states, it is observed that the second officer at police station is assigned or designated as “Child Welfare Officer”. In the absence of structured trainings, these designated officers were constrained to perform and meet the needs of their new role. ‘There are number of incidences of violation of procedures of handling of juveniles by the police. Infact the indifference of police towards this law is one of the most disappointing features. The basic idea of this law has not been internalized by the police due to insufficient training and orientation. The instances of changing the age of juvenile into adult range while writing the FIR by the police are often heard. Handcuffing and keeping the juvenile in police lockup is not unusual’. – Lack of coordination: Effective coordination among the various statutory bodies, their accountabilities, performance appraisals, training and capacity building, infrastructure support services, poorly defined terms of references for the statutory bodies or their roles are the major challenges in operationalization of this law. – The implementation of CWC and JJB orders by the authority has been limited and delayed. The CWC and JJB have no financial authority or human resources and are 24

dependent on State Government or district administration. Due to lack of infrastructure or specific funds, follow up action has been delayed and limited. – many States fall short of structures like the Child Welfare Committees, children’s homes or shelter homes, every State is expected to constitute CWCs in every district, many States have only few CWCs serving the care and protection needs of the entire State. Similar is the case with homes which leave many children uncared, unprotected and victimised; – there are no institutional facilities, qualified and experienced personnel for the care of mentally ill especially abandoned and destitute children; – many institutions have serious staff shortages and the appointed staff lacked the mandated qualifications, most homes lack satisfactory number of trained professionals; – in several institutions strategic decision making positions and front line positions are filled by inadequately qualified and inexperienced personnels. There is no provision for their training also; – capacity building of care givers and other staff is not accorded adequate priority. Many of the issues that affect children’s lives also affect the staff especially the poor quality of infrastructure facilities; – though the Act of 2000 and JJ Model Rules, 2007 envisaged periodical inspection of homes by the inspection Committees to monitor the functioning of the homes, it is found to be rare and in cases where such visits occurred their effectiveness is unknown. In most cases it is perceived to be a norm fulfilling exercise; – the alternative care options like adoption, foster care and sponsorship requires to be streamlined and strengthened. Procedural delays in adoption cases require to be addressed effectively. – the components of foster care should include recruitment and training of foster carers, matching foster carers to children, on-going care planning and work towards reintegration, monitoring placements, on-going support for children and foster carers and support for care leaving. – most homes lack spacious dormitories causing congestion, inadequate number of toilets leading to health and hygiene issues, lack of recreation facilities, life skill education including vocational training, counselling, mental health programmes, socio-cultural activities etc. – there is no study available on the children who have been reintegrated/rehabilited in the society after they have left child care homes. – no separate cadre of officials under JJ Act i.e probation officers, superintendents, care takers, counsellors, care workers, vocational/educational teachers and therapists; – observation homes/special homes have inadequate infrastructure; – lack of constructive programmes for detainees who are left to drift; and culture of homes similar to junior jails. 3.45 The Committee is constrained to observe the very discouraging implementation status of the JJ Act, 2000. The Committee strongly feels that along with amendments in the JJ Act, focussed attention has to be given to the implementation of the Act, as envisaged. Otherwise like the JJ Act, 2000, proposed new legislation will virtually remain 25 on paper. The Committee is of the firm view that the Ministry, being the nodal authority at the centre, can play the role of a motivator and facilitator in coordination with all the implementing agencies at the state level. The Committee is also of the view that if the systems envisaged in the Juvenile Justice Act, 2000 are given effect to by the respective agencies i.e. the Central Government, the State Governments and other institutions involved in the juvenile justice system, then the system itself can achieve the intended outcome i.e to provide for justice, care and protection of children in conflict with law and children in need of care and protection. The Committee, accordingly, recommends that the systems and procedures contemplated under the existing Act need to be uniformly established by all the stakeholders.

Public Awareness for Child Care and Protection 3.46 During the course of the deliberations on the Juvenile Justice (Care and Protection of Children) Bill, 2014, Committee’s attention was constantly drawn to the lack of public awareness about the rights of the child and issues relating to their care and protection. On specific queries in this regard from the stakeholders, it emerged that the society was not very receptive to the issues relating to child care and protection, as childhood was not considered as a separate phase in the life of a human being and care and protection was based on dominant ideas in different socio-cultural contexts in the country. As a result, children were treated as private property of their parents. Sometimes child care and protection were ignored in the name of ‘socialisation’. It was the considered opinion of the stakeholders that concentrated efforts were required to be taken by the Government including local self-government, non-government organizations, religious bodies/ institutions, educational institutions and other civil society movements to sensitize society on issues related to child care and protection. To achieve this end, the scope of the definition of child care and protection may also be widened. A right based approach reaffirming UNCRC and Constitutional provisions should be followed in the process of defining childhood. Contribution of experts in the area of child rights and childhood are vital for widening the definition. Massive campaign programmes may also be undertaken to sensitize the family and society print, visual and social media could be used for campaigning. Role of Local Self Government (LSG) is crucial in empowering families to take care of their children in collaboration with other institutions in the neighbourhood. Linking the families to various schemes/programmes of Government is also necessary to help them to get their entitlements. ICDS, SSA programme, NHRM/UHRM, Ladli scheme etc should be made part of this programme. The model of kinship care practiced in the State of Mizoram could also be advocated. 3.47 The stakeholders also highlighted that training programmes on prevention, detection and response towards issues related to child care and protection be organized for parents, children, teachers, LSG members, community/religious leaders, police personnel, health professionals, media professionals and Government functionaries on regular intervals. Collaboration with voluntary organizations, NGOs and School of Social Work could also be helpful in conducting training programmes. In addition to the training programmes on child care and protection issues, sessions on parenting skills need to be conducted for parents. Schools should make an attempt to reach to the parents and children through their engagement in School Management Committee (SMCs), Parent Teacher Association (PTA) and NSS programmes. The suggestion of RTE, i.e. 50 per cent of members of SMC should be from economically and socially disadvantaged communities need to be implemented. This would be beneficial in reaching to more parents from disadvantaged sections, thereby increasing retention level and learning outcomes of children. Furthermore, it sensitizes teachers about the social realities of children from poor disadvantaged communities. Religious institutions and resident welfare associations should reach to the people with this message. Seminars and workshops could be organized in universities and colleges to sensitize the student 26 community. NGOs, voluntary organizations and other civil society movements could anchor programmes like exhibitions, rallies, public meetings, seminars, street plays, competitions etc. on various themes related to child care and protection. 3.48 The Committee finds the above suggestions of the stakeholders to be very crucial for achieving the goals of care and protection for children. The Committee feels that some of the suggestions could prove to be preventive in nature, especially in the case of children in conflict with law.

Monitoring 3.49 Bringing any piece of legislation into force starts with issue of Gazettee Notification. Real work starts thereafter by getting it implemented at different levels, Implementation can be effective if all the concerned agencies work in coordination with each other. However, it is often seen that this most crucial area generally remains the most neglected. Laws which are mandated to impact issues like care and protection of the most vulnerable section of our society need to have a very effective and vibrant monitoring mechanism. 3.50 The Committee made an attempt to have an idea of the efficacy of the JJ Act, 2000. However, its interaction with all the stakeholders presented a very discouraging scenario. The Committee was given to understand that majority of the child care institutions were marred by complaints of poor infrastructure, and staff behaviour and high rates of abuse perpetrated by adults in homes/institutions. Child Care institutions, instead of giving proper care and protection have often left children vulnerable and resulted in their exploitation. 3.51 On a request of the Committee, the Ministry shared the State-wise details of the Child Welfare Committees and the Juvenile Justice Boards. The details were as indicated below:

Sl. No. Name of State/UT No. of Districts CWCs JJBs 12 345 1. Andaman and Nicobar island 3 1 1 2. Andhra Pradesh 23 23 23 (including Telangana) 3. Arunachal Pradesh 17 16 16 4. Assam 27 27 27 5. Bihar 38 38 38 6. Chandigarh 1 1 1 7. Chhattisgarh 27 27 17 8. Dadra and Nagar Haveli 1 1 1 9. Daman and Diu 2 2 2 10. Delhi 9 7 2 11. Goa 2 2 2 12. Gujarat 26 26 26 13. Haryana 21 21 21 27

12 345 14. Himachal Pradesh 12 12 12 15. Jammu and Kashmir 22 – – 16. Jharkhand 24 24 21 17. Karnataka 30 31 30 18. Kerala 14 14 14 19. Lakshadweep 1 1 1 20. Madhya Pradesh 50 50 50 21. Maharashtra 35 35 35 22. Manipur 9 9 9 23. Meghalaya 7 7 7 24. Mizoram 8 8 8 25. Nagaland 11 11 11 26. Odisha 30 30 30 27. Puducherry 4 3 4 28. Punjab 22 22 22 29. Rajasthan 33 33 33 30. Sikkim 4 4 4 31. Tamil Nadu 32 32 32 32. Tripura 8 4 8 33. Uttarakhand 13 13 13 34. Uttar Pradesh 75 72 72 35. West Bengal 19 19 19

TOTAL: 660 626 612

3.52 The Committee was also informed of the following State-wise pendency of cases in the Child Welfare Committees and the Juvenile Justice Boards:

(a): State-wise Pendency of Cases in Child Welfare Committees

Sl. No. State 01.04.2011 01.04.2012 01.04.2013 30.09.2014 12 3456 1. Andhra Pradesh (including Telangana) 163 155 293 123 2. Assam 156 189 409 330 3. Chandigarh – – – 0 28

12 3456 4. Chhattisgarh – – 161 663 5. Daman and Diu – – 0 0 6. Delhi – 2432 1533 1759 7. Gujarat – 861 833 115 8. Haryana – 118 118 226 9. Himachal Pradesh – – – 25 10. Kerala – – – 992 11. Karnataka – – 773 – 12. Madhya Pradesh – 321 – – 13. Meghalaya – – 34 39 14. Mizoram 4 4 30 48 15. Nagaland – – 25 – 16. Odisha – – 255 1194 17. Puducherry 3 3 4 3 18. Punjab – – – 1 19. Rajasthan 1987 893 484 1657 20. Sikkim 1 1 1 6 21. Tamil Nadu 935 1317 838 818 22. Tripura – – 105 211

(b): State-wise Pendency of Cases in Juvenile Justice Board Sl. No. State 01.04.2011 01.04.2012 01.04.2013 30.09.2014 12 3456 1. Andhra Pradesh (including Telangana) 315 341 516 55 2. Assam 1592 1703 1812 1852 3. Chandigarh – – – 12 4. Chhattisgarh – – 6394 6840 5. Daman and Diu – – 0 9 6. Delhi – 338 370 9 7. Gujarat – 10778 11707 12831 8. Haryana – 1714 1925 2035 29

12 3456

9. Himachal Pradesh – – – 507

10. Kerala – – – 1047 11. Karnataka – – 1547 –

12. Madhya Pradesh – 13783 – –

13. Meghalaya – – 22 143

14. Mizoram 80 135 92 42

15. Nagaland – – 46 –

16. Odisha – – 591 4735 17. Puducherry 35 57 63 61

18. Punjab – – – 1299

19. Rajasthan 6813 6776 5174 8647

20. Sikkim 35 41 28 14

21. Tamil Nadu 2811 3300 3586 5066 22. Tripura – – 18 54

From the above details, the Committee notes that out of 660 districts in the country, 626 have Child Welfare Committees and 612 Juvenile Justice Boards in existence. However, if the pendency of cases both in the Child Welfare Committees and the Juvenile Justice Boards is looked into a disturbing scenario emerged. Delhi had maximum number of cases pending in the Child Welfare Committees followed by Rajasthan, Nagaland, Kerala, Tamil Nadu and Chandigarh. All these States had district-wise CWCs and JJBs, except Delhi which had 7 and 2 CWCs and JJBs respectively for 9 districts. Similarly, Gujarat had highest number of cases pending in the Juvenile Justice Boards followed by Rajasthan, Chhattisgarh, Tamil Nadu and Odisha. Again with the exception of Chhattisgarh all the States had district-wise CWCs and JJBs. From the above details, the Committee can only conclude that CWCs and JJBs were not fully functional. Reasons for this could be lack of funds, inadequate facilities and absence of trained manpower. In addition, procedural delays could also not be ignored.

3.53 Committee’s attention was drawn to the following gaps in the monitoring of Child Care institutions:

– Frame-work of monitoring under the JJ Act has actually not been brought into practice across must States.

– The structural framework of monitoring has gaps as there are parallel monitoring mechanisms through CWCs, district officials, inspection committees with no flow of information or convergence between them on the inspect framework.

– Generally, inspect committees randomly ask questions to children about their lives and abuse within home in the presence of others and many a times do more harm than good. 30

As per the information made available to the Committee, as on 2012, out of the 35 States/ UTs in the country, in 16 States/UTs, the Inspection Committees were either not constituted or no information was available. Besides that, constitution of Inspection Committees in 4 States was in process. There were also States, where although the Inspection Committees were constituted, but no details about inspections done by them were available. 3.54 On being asked about suggestions for an effective monitoring mechanism, following worth- noting initiatives were given by the stakeholders: – Constitution of an independent monitoring authority having representatives of SCPCR, Human Rights, Experts of Child Care and Protection; – the Principal responsibility of monitoring institutions should be that of the District Women and Child Development Officer; – A local visitors Body must be attached to each Home for children. It must visit the home at least once a month or immediately on receipt of a complaint; – A State Rapid Action Team to be drawn from mental health, medicine, disability and child rights experts, social work, academic and law that would be empowered to visit and investigate all centres throughout the State; – All child care institutions should be placed under a nodal department which holds responsibility for implementing the JJ Act and ICPS so that uniform standards of care are ensured; – At the national level, a centralised knowledge centre and monitoring unit needs to be created; – Mechanism of inquiry for cases of abuse reputed from institutions should be standardized; and – Mandatory periodic assessment of child care institutions by a team of independent experts. 3.55 The Committee would appreciate if all the above suggestions are taken note of by the Ministry and implemented in the right spirit. The Committee notes that the National Commission for Protection of Child Rights is assigned the role of examining reviewing the safeguards provided by or under any law for the protection of child rights and recommend measures for the effective implementation. The Committee hopes that monitoring of all the agencies/bodies involved in the implementation of the Act is taken up in the right earnest and all the bottlenecks noticed/identified in the JJ Act, 2000 are eliminated. 3.56 The Committee observes that the Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted after the Juvenile Justice Act, 1986 was repealed. Likewise, the Act of 2000 is sought to be repealed by the Juvenile Justice (Care and Protection of Children) Bill, 2014. The Committee was given to understand by some of the stakeholders that required amendments in the Act of 2000 would have served the purpose and there was no need of bringing in a new law. The Committee, however, on a comparative analysis of the Act of 2000 and the proposed law finds that the Bill is a comprehensive legislation when compared with the Act of 2000. The Bill provides for general principles of care and protection of children, procedures in case of children in need of care and protection in conflict with law, rehabilitation and social re-integration measures for such children and offences committed against children. 31

IV. The Committee observes that there are quite a few new provisions in the Bill which will go a long way in fulfilling its objectives. Broadly speaking, the Committee welcomes the proposed law. However, there are certain very critical areas/aspects in the context of some of the provisions in the Bill which need to be relooked. The Committee makes the following recommendations/ observations on such provisions of the Bill.

CLAUSE 1: SHORT TITLE, EXTENT AND COMMENCEMENT 4.1.1 Sub clause (1) of Clause 1 dealing with the title of the Act reads as follows: “(1) This Act may be called the Juvenile Justice (Care and Protection of Children) Act, 2014.” 4.2 Objections were raised on the title of the Bill by many stakeholders which included many State Governments as well as NGOs. It was pointed out that whereas the words ‘juvenile in conflict with law’ have been replaced by ‘child in conflict with law’, in the entire text of the Bill, title still continues to include the words ‘Juvenile Justice’. It was felt that the word ‘juvenile’ generally has negative connotations. 4.3 On this issue being taken up with the Ministry, it was clarified that the change in nomenclature has been made from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, as necessary, across the Act. This has been proposed as it was felt that the word ‘juvenile’ carries a negative connotation and has been used for children committing crimes and resulting in stigma for children in conflict with law and also hampering their social re-integration. It was also submitted that similar change had not been proposed in the title of the Bill as it is was felt it would be inappropriate to change the title, which after a decade of implementation is well understood by most of the stakeholders such as police, legal authorities, Child Care Institutions, institutions under the Act and the civil society. A new title may result in confusion in the field and may hamper effective implementation of the Bill. 4.4 The Committee is somewhat surprised by the contradictory stand taken by the Ministry. Inspite of agreeing that the word ‘juvenile’ carries a negative connotation and used for children committing crimes, the Ministry is not ready to suitably modify the title. The Committee would like to point out that the main objective of the Bill is to make the law relating to children alleged and found to be in conflict with law and also children in need of care and protection. Common usage of the word ‘juvenile’ is vis-à-vis a child who has committed an offence. Apparently, the existing title gives an impression that this Act deals with children who have committed offence. The title of the Bill should reflect the childfriendly approach. The Committee recommends the title of the Bill to be changed as Justice for children (Care and Protection of Children) Bill, 2014.

V. CLAUSE 2: DEFINITIONS 5.1 Clause 2(2): This sub-clause deals with the definition of the word ‘adoption’. “Adoption means the process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a legitimate child.” 5.2 Objections were raised to the use of word ‘legitimate’ in the context of a child. It was felt that the use of language that classifies children as legitimate or illegitimate was not in the best interests of children. The Committee, accordingly, recommends that the words ‘legitimate child of his adoptive parents’ may be read as ‘lawful child of his adoptive parents’ and the words “that are attached to be legitimate child’ may be read as ‘that are attached to a biological child.’ 32

5.3 Clause 2(5): This sub-clause deals with the definition of the word “aftercare” and reads as: “Aftercare means making provision of support, financial or otherwise, to persons, who have completed the age of eighteen years but have not completed the age of twenty-one years, and have left any institutional care to join the mainstream of the society.” 5.4 The Committee observes that social re-integration and rehabilitation of children in need of care and protection as well as children alleged and found to be in conflict with law are the most crucial areas of proposed legislation. Experience of grass-root level NGOs has been that aftercare is the most important programme for the juvenile/young offenders and also for the children in difficult circumstances and considering the fact that majority of them happen to be extremely poor and deprived in the age group of 16-21 years they need to be guided and protected. The Committee observes that the definition of ‘aftercare’ restricts its availability to only persons between 18-21 years who have left institutional care. It was also possible that a child may leave an institution before he/she attains the age of 18 years and be in need of after-care services. 5.5 The Committee notes that the Bill provides a narrow definition and is a digression from internationally recognised and recommended concept and principles of aftercare. Rehabilitation of children who are in need of care and protection or those in conflict with law cannot always end by the age of 18 and who have left any institutional care or the Child Justice System to join the mainstream of the society as this would also provide for children out of institutional care for their rehabilitation. The Committee, accordingly, recommends that the definition of the term ‘aftercare’ may be modified as follows: “Aftercare” means making provision of support, financial or otherwise, to persons, who have not completed the age of twenty-one years and have left any institutional care to help them integrate with society. 5.6 Clause 2(14)(i): This sub-clause gives definition of the term “child in need of care and protection” as a child who is found without any home or settled place of abode and without any ostensible means of subsistence. 5.7 The Committee feels that a child does not first have to become a victim and then be in need of care and protection. Both care and protection rights exist before the point of affliction and a vulnerable child is always in need of both the safeguards. The Committee, accordingly, recommends that this definition may be made more clear and specific. 5.8 Clause 2(14)(ii): As per this sub-clause, a child found working in contravention of labour laws for the time being in force or is found begging, or living on the street would be considered to be in need of care and protection. It was pointed out to the Committee that a reference to labour laws would restrict the extension of care and protection measures to only those children who come under the protection ambit of labour laws. As a result, children between 14 and 18 years engaged in labour would be deprived of rehabilitation measures available under the Bill. Agreeing with the apprehension of the stakeholders, the Committee recommends that the words “in contravention of labour laws for the time being in force” may be deleted from the definition. 5.9 Clause 2(14)(viii): As per this sub-clause, a child who is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts would be considered to be in need of care and protection. 5.10 The Committee notes that this sub-clause leaves those children who may have been abused in the past. The Committee feels that children who have been abused may face stigma, trauma and may be in need of support, as well as linkages to services. The Committee is of the view that this sub-clause should apply to both children who have been 33 abused or may be abused at any point of time. The Committee, accordingly, recommends that the words ‘has been’ may be added after the word ‘who’. 5.11 Clause 2(35): The word ‘ juvenile’ has been defined to mean a child below the age of eighteen years. 5.12 The Committee is of the view that when the definition of the word ‘child’ has been included under the definition clause, and the word ‘juvenile’ is considered not to be appropriate because of the element of negativity involved in its meaning, the definition of the word ‘juvenile’ may not be included under the definition clause.

VI. CLAUSE 4: JUVENILE JUSTICE BOARD 6.1 This clause provides for constitution of one or more Juvenile Justice Boards by the State Government for every district for exercising the powers and discharging the duties conferred under this Act. It provides for the composition of the Board as indicated below: “A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the First Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal Magistrate) with at least three years of experience and two social workers from two different reputed non-governmental organisations 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 the First Class.” It also states that no social worker shall be appointed as a member of the Board unless the 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 degree in child psychology, psychiatry, sociology or law. 6.2 A comparative analysis of the composition of the JJ Board as envisaged in the proposed legislation with that provided in the JJ Act, 2000 indicates no significant change as in both the Boards, Metropolitan Magistrate/Judicial Magistrates of the first class and two social workers of whom one being a woman would be there. The only difference is that while the Metropolitan/ Judicial Magistrate will have to have at least three years of experience, the two social workers will have to be from two different NGOs. Further, the social worker will have to be 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. 6.3 These additions in qualifying criteria of social workers for being members were not found acceptable by majority of the witnesses appearing before the Committee. The Committee finds merit in their reservations. It is true that the proposed legislation restricts the appointment of social workers as members of the Juvenile Justice Board to only representatives of non-governmental organizations. By this limitation, academics and other professionals not associated with non- governmental organizations are excluded, thereby depriving a child of inputs from this sector. The Committee was given to understand that juveniles in conflict with law have benefited from the experience and expertise of social work members who are academics, mental health professionals, etc. 6.4 The Committee was further informed that a large number of children were languishing in various reform homes because of delay in decisions by the Juvenile Justice Boards. The reasons for pendency of cases include inadequate sittings of the Board, Principal Magistrates having additional charge of JJBs, less sensitivity of JJB towards children (and therefore treating them at par with adult), posting of Principal Magistrates as JJB chairperson against their wishes. It has also 34 been observed that in many cases Principal Magistrates lacked adequate experience and sensitivity in dealing with juvenile crimes. It was also emphasized that metropolitan Judicial Magistrates being over-burdened with too many responsibilities, had their own limitations so far as mandate of JJB was concerned. 6.5 The Committee is of the view that in order to strengthen the functioning of JJB, it is necessary that the Chairperson is in a position to give adequate time and attention to his responsibilities. One suggestion which has come to the Committee is to have a retired District and Sessions Judge as the Chairperson of JJB. Secondly, the Committee also feels that restricting the nomination of social workers from reputed NGOs only and that too having seven years’ experience would be a very restrictive provision. The Committee, accordingly, recommends that the composition of JJB needs to be reviewed and required changes made. 6.6 Committee attention was also drawn to the fact that while the Bill lays down certain eligibilities and disqualifications for members of CWCs and JJBs, but it does not lay down any provision for constitution of a selection committee to select the members and its procedures etc. Different States follow different selection procedures. As a federal republic, States are free to frame their own Rules with respect to the juvenile justice legislation and most matters concerning children. While some States set up a Selection Committee, others do not, thereby compromising on a fair and transparent selection process. The Committee, accordingly, recommends that it will be prudent if the Bill establishes the importance of ensuring a proper, fair and transparent selection process and clearly lays a complaints-cum-oversight mechanism for functioning of individual members, including requirement for constitution and functioning of a Selection Committee or a Selection-cum-oversight mechanism and a fair process of selection. The Committee would appreciate if the provisions related to the composition of the Selection Committee and the Selection Process are included in the Bill so as to ensure uniformity and transparency which can be easily replicated from Rules 91 and 92 of the Juvenile Justice (Care and Protection) Rules, 2007 with appropriate modifications. 6.7 The Committee was also given to understand that in some cases, there has been found to be a conflict of interest, as members also hold positions in the management of child care institutions in the very district for which they have been appointed. If that be so, the Committee feels that a provision needs to be included requiring members to resign from an office of profit on being appointed a Member of the Board.

VII. CLAUSE 6: PLACEMENT OF PERSONS, WHO COMMITTED AN OFFENCE, WHEN THE PERSON WAS BELOW THE AGE OF EIGHTEEN YEARS 7.1 This clause deals with the placement of persons, who committed an offence, when the person was below the age of eighteen years. The clause reads as: “(1) Any person, who has completed eighteen years of age, but is below twenty-one 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 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.” 7.2 It was pointed out by some stakeholders that this provision allowed differential treatment of a person who has completed eighteen years of age but is below twenty one years of age for 35 an offence committed when he/she was below the age of 18 years simply because the state machinery was unable to bring him into the juvenile justice system when needed and would amount to a violation of all constitutional guarantees and other national commitments. Further, there is no legal or constitutional obligation on any person to surrender before the police for an alleged offence. It arbitrarily presumes that the delay in production of such person before the Court is caused by the accused. Also, obligation of the State Parties under Article 40 of CRC means “that every person under the age of 18 years at the time of the alleged commission of an offence must be treated in accordance with the rules of juvenile justice.” 7.3 The Committee understands that the intention of clause 6 should be to ensure that a person who has crossed the age of juvenility should not be allowed to mingle with children in an observation home as he may have a detrimental effect on them. On the other hand, owing to psychological reasons, such person may require concerted specialized treatment which may not be available or possible in the observation home. The Committee also observes that the intention cannot be that all persons apprehended between the age of 18 and 21 years should be placed in a place of safety and not an observation home and such decision should be left to wisdom of the Board. The fact remains that a child in conflict with the law is defined as a person who is alleged or found to have committed an offence and who has not completed the age of 18 years as on the date of commission of the offence. Allowing any exceptions would amount to a violation of this definition and the principles of juvenile justice. 7.4 The Committee agrees with views of the stakeholders that age on date of committing of the offence should determine whether the person should be dealt with under the JJ system or criminal justice system. The Committee recommends that such a person who is not a juvenile should not be allowed to mingle with children in an observation home and should be kept separately. The words ‘but is below twenty one years of age’ may be deleted from clause 6.

VIII. CLAUSE 7: PLACEMENT OF A PERSON ABOVE AGE OF TWENTY-ONE YEARS FOR COMMITTING ANY OFFENCE WHEN HE WAS A CHILD 8.1 This clause provides that if 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. 8.2 Besides the general issues, the Committee had the opportunity to interact at length with the stakeholders on the various provisions of the proposed legislation. The Committee notes that, besides modifications of existing provisions in the JJ Act, 2000, certain new provisions form part of the Bill. Clause 7 is one such provision. Very strong objections and apprehensions about the likely impact of this provision were voiced by all the stakeholders appearing before it. Deletion of clause was emphatically advocated by them. 8.3 On being asked about the rationale for having such a provision, the Ministry classified that under clause 7, it was proposed that persons above the age of 21 years were to be apprehended for committing a serious or heinous offence when he was a child, then he was proposed to be tried as an adult. It would encourage persons to come forward and inform about the offences committed so that they remained under the Juvenile Justice System. The Committee was also given to understand that during the implementation of the JJ Act, 2000, it was seen that adults who had committed an offence when they were below the age of 18 years were kept along with children in Observation Homes or Special Homes. This had resulted in abuse and exploitation of children by adults. It was felt that keeping in view the best interest of children, it was necessary they were separated from adults. Accordingly, anyone above the age of 21 years apprehended for committing an offence when he was a child be treated and kept under the adult criminal system. 36

8.4 The Committee views with serious concern the kind of argument put forth by the Ministry, while justifying the inclusion of a provision like clause 7. The Committee fails to comprehend as to how could such a provision would encourage persons to come forward and inform about the offences committed by them so that they could remain under the Juvenile Justice System. The Committee would like to point out that unless a person is proved guilty, he cannot be treated like an offender. Secondly, the perception that a person in the agegroup of 16-18 years alleged to be committing a serious or heinous offence would be mature enough to come forward to inform about his offence so as to ensure his remaining under the Juvenile Justice System seems to be far from convincing. 8.5 After analysing all the facts placed before it, the Committee is left with no other alternative but to conclude that concerns expressed by all the stakeholders are very genuine and cannot be ignored. The Committee is also of the view that clause 7 is in clear violation of Article 20(1) of the Constitution which states that: “No person shall be convicted of any offence except for violation of the law in force at the time of the Commission of the act charged as an offence, nor be subjected 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.” A plain reading of clause 7 clearly indicates that a person who was a child when the offence was committed will be treated as an adult on account of failure on the part of the investigating agencies in apprehending him/her. Besides this, the Committee also observes that this provision is also in complete violation of the right to equality under Article 14 which states that: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Again, clause 7 creates an artificial differentiation between children apprehended before 21 years and those apprehended after 21 years of age. The Committee finds no rationale in such a categorization. 8.6 The Committee was also informed that this provision would also violate Article 15 of the International Covenant on Civil and Political rights, a non-derogable right under the convention which reads as follows: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.” The Committee also takes note of Supreme Court judgments in Umesh Chandra (1982), Arnit Das (2000), Arnit Das (2001) and Pratap Singh (2005). The five judges Constitutional Bench of the Supreme Court in Pratap Singh held the age on the date of offence to be determinative of the application of the Juvenile Justice Act. The observation of the Supreme Court in its judgement (SLPC(vi) No. 1953 of 2013) in Dr. Subramanian Swamy Vs. Raju, Member, JJB pointed out that: “..If the legislaure has adopted the age of 18 as the dividing line between juveniles and adults and such a decision is constitutionally permissible, the enquiry by the Courts must come to an end. Even otherwise there is a considerable body of world opinion that all under 18 persons ought to be treated as juveniles and separate treatment ought to be meted out to them so far as offences committed by such persons are concerned.” 37

8.7 Keeping in view the very specific constitutional provisions, international conventions and Supreme Court judgments, the Committee simply fails to comprehend the absurdity and the arbitrary nature of clause 7. The Committee finds no logical reason why persons apprehended after they have crossed 21 years should face serious disadvantage or how this severe provision furthers the goals of criminal justice. The Committee also takes note of the fact that there have been several legal controversies surrounding this very question. The JJ Act, 2000 was amended in 2006 precisely in order to clarify that the date of reckoning will be the date on which the offence was allegedly committed and not when the juvenile was apprehended. 8.8 The Committee is of the firm opinion that clause 7 is discriminatory in itself, undermines the constitutional provisions as well as international commitments and ignores the Supreme Court directives. The Committee, accordingly, recommends that such a provision should not be a part of the proposed legislation and be deleted.

IX. CLAUSE 15: INQUIRY BY BOARD REGARDING CHILD IN CONFLICT WITH LAW. 9.1 Clause 15(3): The clause deals with the procedure for inquiry by JJ Board with regard to a child in conflict with law : “A preliminary inquiry in case of heinous offences under section 16 shall be disposed of by the Board within a period of one month from the date of first production of the child before the Board.” 9.2 The Committee notes that this sub-clause requires JJB to conclude a preliminary inquiry in case of heinous offences within a period of one month from the date of first production of the child before the Board. During its deliberations with stakeholders, the Committee was given to understand that in normal course of crimes committed by adults, no chargesheet can be filed within the stipulated period. However, as per this sub-clause, JJB is required to take a decision of transferring such a child to the Children’s Court within a period of one month without a proper investigation by the investigating agency or before such investigation is completed and the child is prima facie found to have committed such heinous offences. This provision proceeds on the assumption that the alleged offence has been committed by the child and is contrary to the presumption of being innocent till proved guilty. It thus violates Fundamental Rights guaranteed under Article 14 and 21 of the Constitution by directing JJB to inquire into the culpability prior to prima facie establishment of the guilt. The Committee, accordingly, recommends that the period of preliminary inquiry by JJ Board may be suitably enhanced.

X. CLAUSE 16: PRELIMINARY INQUIRY INTO HEINOUS OFFENCES BY THE BOARD 10.1 This clause reads as: “(1) In case of a heinous offence committed by a child who has completed or is above the age of sixteen years, the Board shall conduct a preliminary inquiry 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 committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 19: Provided that for such an inquiry, the Board may take the assistance of experienced psychologists, psycho-social workers and other experts. (2) Where the Board is satisfied on preliminary inquiry 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 inquiry under this section shall be completed within the period specified in section 15.” 38

10.2 This clause specifically deals with cases of such children who have completed or are above the age of sixteen years and have committed a heinous offence. Procedure regarding holding a preliminary inquiry in such cases has been enumerated in this provision. In other words, a distinction is sought to be made between children below and above sixteen years of age in the context of gravity of an offence. The Committee notes that such a provision was not part of the JJ Act, 2000. Very strong views were expressed by all the stakeholders appearing before the Committee about the viability of a provision which prime facie seemed to be very discriminatory. 10.3 The foremost flaw pointed out was that this provision required JJB to assess whether a child above sixteen years of age who has committed a heinous offence has the physical and mental capability to commit the offence, along with circumstances in which he has committed the offence. In other words, it implies an assumption that the child has already committed the alleged offence. This enquiry in an essence would be a sentencing decision that is arrived at even before the guilt is established. It was emphasized that such an action would denote complete violation of the presumption of innocence, a central tenet of the juvenile justice as well as the criminal justice system. Also, such an arbitrary and irrational procedure clearly contravenes the fundamental guarantees made under Articles 14 and 21 of the Constitution. 10.4 Differential treatment of children who have completed or are above 16 years and below the age of 18 and are in conflict with law as a result of commission of heinous crimes are to be tried as an adult under the criminal justice system was also in complete contravention to the UNCRC and the Bill’s stated purpose of adopting a child friendly approach in the adjudication and disposal of matters in the best interests of children. It was further pointed out that in fact the subsequent trial shall also not be a fair trail as the preliminary inquiry has already labelled the child as “capable of committing crime”. 10.5 Another significant deficiency brought to the notice of the Committee was that the assumption that an accurate assessment of mental capacity/maturity for the purpose of transfer of the trial of the care to the Children’s Court was possible when this was not true. Not only this, such an assessment would be fraught with errors and arbitrariness and would allow inherent biases to determine which child was to be transferred to an adult court. The very presumption that persons between 16 and 18 years were competent to stand trial just as adults was also not free from very genuine doubts. 10.6 The Committee also takes note of the fact that this clause binds Juvenile Justice Board (JJB) to conduct a ‘preliminary enquiry within one month in respect of heinous offences committed by children above 16 years regarding their mental and physical capacity and understanding of consequences, etc. and pass orders under section 19 including, transferring the child for trial by children’s court or the sessions court in the absence of children’s court. The Committee would like to point out that considering the fact that large number of innocent children are being involved in crimes, which was evident from the decisions of JJBs across the country, it is impossible to conduct such a complex enquiry within a period of one month. Such a provision will amount to complete denial of fundamental rights, justice, fair and discriminate proceedings and also the negation of basic principles and provisions of Juvenile Justice (Care and Protection) Act, 2000 itself. 10.7 The Committee is of the view that all children below 18 years are amenable and should be treated in the same manner because of the fact that their involvement in offending acts was primarily due to either environmental factors or their unique developmental features such as risk taking nature, less future orientation, adventurism, etc., or both. The Committee would also like to point out that the process suggested for treating 16-18 years children involved in heinous offences, i.e. preliminary inquiry by JJB and professional team, then based on their decision to Children’s Court (CC) then decision by CC regarding where to be 39 tried, then sending the child back to JJB for trial would lead to multiple and repeated trials before different authorities that would psychologically drain him/her. The Committee, accordingly, recommends that this entire process needs a relook and review. 10.8 Lastly, the Committee also observes that the clause envisages that the Juvenile Justice Boards shall conduct a preliminary inquiry with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence, with the assistance of experienced psychologists, psycho-social workers and other experts. One can not ignore the fact that there is a severe shortage of competent psychologists, psycho- social workers and other experts and this will adversely affect the quality of inquiry and timely disposal of cases. 10.9 The Committee is in full agreement with the very comprehensive views of the stakeholders that clause 7 is discriminatory and all children below 18 years should be treated as children. The proposed legislation is meant for children alleged and found to be in conflict with law and the definition of both the terms ‘child’ and ‘child in conflict with law’ mean a person who has not completed eighteen years of age. Accordingly, the question of envisaging a differential treatment for children above sixteen years of age should not arise. Such a move would lead to contravention of international laws and also the stated purpose of the Bill.

XI. CLAUSE 19: ORDERS REGARDING CHILD FOUND TO BE IN CONFLICT WITH LAW 11.1 This clause reads as: “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 sixteen 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,— (3) Where the Board after preliminary inquiry under section 16 comes to the conclusion that there is a need for further 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” 11.2 All the stakeholders appearing before the Committee voiced their concerns about the differential procedure envisaged for children between 16-18 years under the inquiry to be conducted by JJ Board. It was emphatically advocated that the distinction made between heinous and other offences in the Bill would deny children between 16 to 18 years of their rights under the juvenile justice system. The discretion to pass any of the rehabilitative orders for children between 16 and 18 years as listed under clause 19(1) and 19(2) as compared with 19(3) of the Bill was discriminatory is nature. The Committtee was given to understand that the juvenile justice system which had evolved under the international child rights law was based upon the fact that mental, cognitive and emotional capacity of the child was not sufficiently developed till he/she attained the age of 18 years and, therefore, should not be held responsible for the omissions/ commissions made. There was a need to continue with the differential approach and treatment adopted towards children in conflict with law as being followed presently. However, implementation of sub-clause (3) would lead to automatic transfers of several children aged 16 and above, alleged to have committed a heinous offence, to the adult criminal justice system. These children would thus be denied of orders aimed at care, protection, development, treatment and social reintegration, a legislative commitment stated in the Preamble of the Bill itself. 40

11.3 Committee’s attention was drawn to the fact that transferring cases of children in conflict with law to Children’s Court would not be different from putting them under the formal judicial proceedings. Children’s Courts were the sessions courts where cases of children coming in contact with law were dealt with. These were not dedicated courts dealing exclusively with children cases and were in the same premises of the regular criminal courts. The procedure followed was according to CrPC which did not consider juvenility and impact of trial on children’s physical, mental and emotional condition. Also referring such cases to Children’s Courts was against the international instruments adopted and ratified by India and against the principles of the constitution. 11.4 The general consensus was that the Board should have the jurisdiction to make orders with respect to all children in conflict with the law and no such child should be subjected to any other judicial authority. The transfer of children above 16 years alleged to have committed a heinous offence would deprive them of the right of rehabilitative orders under clause 19(1) and the right to equality. The preliminary inquiry would go against the “principle of presumption of innocence”, and the trial before the Children’s Court would compromise the “principles of dignity and worth, best interests, positive measures, non-waiver of rights, non-stigmatizing semantics, equality and non-discrimination, and institutionalization as a measure of last resort”, all of which are “fundamental” to the understanding, interpretation, implementation, and application of the Bill under clause 3. For instance, the principle of best interest required 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.” A decision to transfer a child to the Children’s Court or to an adult jail was not justified in the light of this principle. 11.5 In view of the above, the Committee recommends that clause 19, especially clause 19(3) needs to be reviewed. Committee’s observation is substantiated by the fact that the concept of Children’s Court was specifically designed to try offences against children and not offences by them. These courts were essentially Sessions Courts that have been given the additional task of ensuring speedy trials of offences against children. Therefore, by all interpretations they were courts for adults. The Committee would like to point out that the objective of creating a separate Act for children was to have a separate system for children in conflict with law and not include them in the criminal justice system. There is no doubt that this sub-clause diminishes the distinction between child victims and children in conflict with law by entitling the courts under the Protection of Children from Sexual Offences Act, 2012, the jurisdiction to adjudicate the cases involving children in conflict with law. 11.6 The Committee also recommends that all relevant clauses (clauses 6, 7, 16, 19, 20) dealing with Children’s Courts and differential treatment of children between 16-18 years of age need to be reviewed in that light of its observations and recommendations.

XII. CLAUSE 28 : CHILD WELFARE COMMITTEE 12.1 This clause deals with the Child Welfare Committee Sub-clause 28(8) provides that the District Magistrate shall conduct a quarterly review of the functioning of the Committee. The Committee notes that the Child Welfare Committee is a quasi-judicial body whereas the District Magistrate is the executive. Thus, subjecting CWC to a review by the District Magistrate would lead to infringement of its powers. The Committee feels that since CWC is appointed by the State Government, it is appropriate for CWC to report to and be accountable to the State Government. The review of the functioning and pendency of cases before CWC, if vested in its appointing authority will also facilitate addressing bottlenecks for its efficient functioning, including the decision to set up additional CWCs, if required. It is important to note that under the JJ Act, 2000, the process to review pendency of cases before the CWC is with the State Government (section 33(3) of the Act, 2000 refers). 41

Clause 37(4) regarding submission of a quarterly report on the disposal/pendency of cases to the District Magistrate by CWC may also be amended accordingly.

XIII. CLAUSE 36: THE CLAUSE DEALS WITH THE SURRENDER OF CHILDREN 13.1 This clause reads as: “(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. (3) The parents or guardian who surrendered the child, shall be given one month 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.” 13.2 It was pointed out that the period given to the parent/guardian to reconsider their decision to surrender the child for adoption has been kept at one month. Thus, a child is to be declared legally free for adoption by the Child Welfare Committee within one month of such child being surrendered. It was submitted that while recognizing that the adoption process should be completed expeditiously, it was also imperative to recognize that the welfare of the child was paramount. One must not forget that every child has a right to be brought up in a nurturing family environment- and not be separated from his/her birth family. Chances were there that parents surrendering/ relinquishing the child could be taking the decision under compelling circumstances and under immense emotional and social pressure. In the best interest of the child, a child should be separated from biological family only in exceptional circumstances. 13.3 It was emphasized that adoption permanently severed the child from his biological parents, therefore, sufficient opportunity should be given to the parent to reconsider the decision to surrender the child for adoption. It was, therefore, suggested that the period to reconsider such a decision should remain at 60 days as contained in the JJ Act 2000 and the CARA Guidelines. 13.4 Committee’s attention was drawn to the fact that the existing legal framework provided for two months’ re-consideration period for a woman intending to surrender her child, and this should be retained. The time period of one month was considered to be insufficient, given that the woman needed to recover from the physical and emotional stress of delivery first, before she was able to even think clearly about what to do with her baby. Agreeing with the view of the stakeholders, the Committee recommends that time period of sixty days should be kept for surrender of a child.

XIV. CLAUSE 47: THIS CLAUSE DEALS WITH CHILDREN LEAVING CHILD CARE INSTITUTION 14.1 This clause reads as: “Any child leaving a child care institution on completion of eighteen years of age may be provided with a onetime financial support in order to facilitate child’s re-integration into the mainstream of the society in the manner as may be prescribed.” 14.2 The Committee notes that the concept of aftercare has been reduced to one time financial care for children leaving institutions. This is very limiting both in sense of its coverage to all children in need of care and protection as well as conflict with law as well as in terms of nature of the programme. The said provision in real sense defeats the very objective of aftercare. It will leave out a large number of children (as critiqued in the definition of aftercare). Also providing one 42 time monetary support without counselling, psycho-socio-legal aid, follow up, training/education support, residential support, mentoring etc. would not solve the purpose of aftercare. The Committee strongly feels that that aftercare should be visualized as a full-fledged programme which includes a range of services towards enabling mainstreaming of young adults who have been children in need of care and protection or children in conflict with law. The programme should be in consonance with the financial norms laid down by the Integrated Child Protection Scheme (ICPS). Rightfully, aftercare includes shelter, education, vocational training, apprenticeship and life-skills education to be able to integrate into the community as a self-reliant/independent individual. 14.3 The Committee also takes note of the fact that the JJ Act, 2000 and ICPS have both conceptualized aftercare as a programme with multiple activities. Since the law provides for other forms of non-institutional care also, children placed in family as well as such alternative care may also require after care. The Committee, accordingly, recommends the provisions contained in Section 44 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Rule 38 of the Juvenile Justice (Care and Protection of children) Rules, 2007, should be retained.

XV. CLAUSE 57: ADOPTION 15.1 Sub-clauses (1) and (2) of this clause read as follows: “(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.” 15.2 It was pointed out that there was no uniform law in India for adoptions, only personal laws were prevalent i.e. Hindu Adoptions and Maintenance Act 1956, which concerned the adoption of the children by Hindu adoptive parents. The proposed change in the J.J. Act for inter-religious adoptions was a step in the right and secular direction towards a Common Code, and also complying with the observation made by the Supreme Court in Writ Petition (Civil) no. 470 of 2005, wherein it had been ruled that any person can adopt a child under the JJ Act, 2000 irrespective of the religion he/she follows and even if the personal laws of the particular religion did not permit it, the Act was a secular law enabling any person to take a child in adoption irrespective of the religion. The proposed law, which was in line with the recent ruling of the Supreme Court as mentioned here in above would give right to adopt a child to Muslims, Christians, Jews, Parsis and all other communities. As of now, Muslims, Christians, Jews and Parsi community have the legal competence of only guardianship under the Guardianship and Wards Act, 1890, wherein one possesses only legal right on the child till he/she turns an adult, and the biological parents have a right to intervene during that period. 15.3 The other view - point which was put forth before the Committee was that clause 57 (2) would cause confusion with respect to similar adoptions allowed under the Hindu Adoption and Maintenance Act. In case of Hindu Adoption between relatives, there was a completely different set of procedures referred to in HAMA. It was pointed out that the Bill contained a non-obstant clause in the very beginning making JJ Act the over-riding law in all matters concerning adoption, rehabilitation and reintegration of children in need of care and protection and section 5(1) of HAMA makes all adoption of a Hindu Child by a Hindu void if carried out under any other law. This Bill also does not provide clarity on the procedures that shall be followed in case of adoption between 43 relatives and whether and how section 58 and other related sections of the Bill on adoption shall be applicable in such cases. It was suggested that following proviso may be added to clause 57(2). “Provided that adoption of a Hindu child by a Hindu relative shall continue to be governed by HAMA.” 15.4 The Committee takes note of divergent views coming from stakeholders about clause 57 and viability thereof. The Committee would appreciate if this clause is reviewed, in the light of the implications and also sensitivity involved once this provision comes into effect.

XVI. CLAUSE 60: THE CLAUSE DEALS WITH PROCEDURE FOR INTER-COUNTRY ADOPTION OF AN ORPHAN OR ABANDONED OR SURRENDERED CHILD 16.1 This clause reads as: “(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 specialized adoption agency and State Agency within thirty days from the date the child.” 16.2 This clause provides that if an orphan or abandoned or surrendered child could not be placed with an Indian prospective adoptive parent or NRI, despite the joint effort of the specialized adoption agency and State Agency within thirty days from the date the being declared legally free for adoption, then the child shall be free for inter-country adoption. Details of the procedure for such adoption have also been included under this provision which were not there in the earlier Act. 16.3 During its deliberations with different stakeholders, one serious objection which was raised again and again was the time-line of thirty days for setting a child free for inter-country adoption. It was pointed out that in the best interest of the child, preference should be given to place a child in in-country adoption. To achieve this aim, it was required to give the Special Adoption Agency and the State Agency sufficient time to identify prospective adoptive parents within the country. It was emphasized to extend the time line from thirty to sixty days. 16.4 Committee’s attention was drawn towards multiple procedures to be followed before the papers for adoption may be ready for submission in the court. Such procedures included child study report, additional medical examinations as permissible to parents, matching with Prospective Adoption Parents (PAP) wherein each would have its own response time, followed by procedural documentation. Also, many children are transferred across districts to a State Adoption Agency (SAA) only after being declared legally free for adoption. Therefore, the time taken by the State Adoption Agency (SAA) may even be higher in these cases. 16.5 On this issue being taken of with the Ministry, the Committee was given to understand that the existing adoption guidelines were under revision and it was envisaged that there would be less role of recognized adoption agencies in adoption placement. Adoption process was proposed to be made entirely online through the CARINGS (Child Adoption Resource Information and Guidance System), a web-based IT application which would be under the direct control of the Central Adoption Resource Authority. The prospective adoptive parents would be able to match online and adoption procedure would be further simplified. In case, the adoption agency did not consider a parent eligible for adoption, it had to give justification for its decision. Further, the activities of adoption agencies shall be monitored on-line by State Adoption Resource Agency (SARA) and CARA (Central Adoption Resource Authority). The Guidelines also provide different timelines for different categories of children, i.e. normal, physically and mentally challenged children, older children and siblings. Efforts would be made for every child to get a family with resident Indians and NRIs before they were considered for inter-country adoptions. The intention was to facilitate expeditious de-institutionalization of children through adoption. 44

16.6 The Committee is of the view that children need a permanent family/home and would prefer domestic adoption rather than inter country adoption. The emphasis should be on domestic adoption and only where such domestic adoptee parents are not available should inter-country adoption be considered. 16.7 The Committee also agrees with the stand of the stakeholders about thirty days period being too short. The Committee strongly feels that adherence to this above mentioned period of thirty days is like an enabling process, to let majority of children to be opted for inter-country adoptions and hence requires a review. The Committee would also like to point out that the period of thirty days as provided for in the clause 60(1) of the Bill contradicts the period of two months provided for the courts to finalize adoption under the proposed Section 62(2). 16.8 The provision 60(1) of the Bill that allows the child for inter-country adoption after one month is unacceptable. Inter-country adoptions may be resorted to only in cases when there is a problem in finding suitable prospective adoptive parents due to special needs of the child. The Committee would like to suggest that in the event an adoption agency cannot find an Indian parent on their wait list roster, there should be a mechanism to intimate other adoption agencies about the availability of a child in their adoptive centre. All efforts should be made to give a child to an Indian parent. Moreover, the inter-country adoption should be made only by ensuring that it is used appropriately through proper regulation, and, importantly, the ratification of the Hague convention.

XVII. CLAUSE: 69 CENTRAL ADOPTION RESOURCE AUTHORITY 17.1 This clause provides that 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 and also enumerates the functions to be performed by the Authority. 17.2 The Committee observes that at present there is no general adoption law in India. CARA which is expected to function as a regulatory authority has not been able to discharge its mandate effectively as a registered society under the Societies Registration Act, 1860. The Juvenile Justice (Care and Protection of Children) Act, 2000, providing a machinery to ensure the welfare of children in need of care and protection or in conflict with law, made a brief provision for adoption. The Committee finds that the emphasis of the proposed legislation is on non-institutional care of children by strengthening the status and role of CARA which is envisaged to be an apex body for adoption. CARA is mandated to monitor and regulate in-country and inter-country adoptions. It is also required to act as a clearing house for information about children eligible for adoptions, develop PR campaigns; undertake research and evaluation; monitor and regulate the work of recognized and associated agencies; liaison with the other Central Authorities and foreign missions and ensure post-adoption follow-up and care for the adopted children. The Committee welcomes this initiative and hopes that this will lead to streamlining the adoption procedure and removing the complexities involved therein at present.

XVIII. CLAUSE 106: JUVENILE JUSTICE FUND 18.1 This clause reads as: “ (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. 45

(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.” 18.2 The Committee welcomes the proposal for creation of a Juvenile Justice Fund by each State Government. Funds collected under such a Fund are to be used for the welfare and rehabilitation of children dealt with under the Act. The Committee would like to point out that while the objective of such a fund is laudable, every effort would need to be made by all concerned to administer the fund objectively with the interest and welfare of needy children remaining the top priority.

XIX. CONCLUSION 19. The Committee accepts the remaining provisions of the Bill. The Committee is of the view that with modifications recommended by it in respect of some clauses, the proposed legislation can be considered a very comprehensive law mandated for care and protection of children as well as to provide justice to children in conflict with law. The Committee, however, has a word of caution. Concerted efforts at all levels by all the implementing agencies will have to be made vigorously so as to ensure that the proposed law does not remain confined to notification stage. 20. The enacting formula and the title are adopted with consequential changes. 21. The Committee recommends that the Bill may be passed after incorporating the amendments/additions suggested by it. 22. The Committee would like the Ministry to submit a note with reasons on the recommendations/suggestions which could be incorporated in the Bill. 46

RECOMMENDATIONS/OBSERVATIONS — AT A GLANCE

III. CRITICAL ISSUES NOT COVERED IN THE BILL

Applicability of the National Crime Records Bureau Data. The Committee is of the firm opinion that increased reporting of crime against children in the specific age-group should not necessarily lead to assumption of increased conviction of juvenile in the crime. The realistic figure of involvement of juvenile in heinous crime needs to be based on completion of investigation, filing of final report by the police before the court and pronouncement of judgment. (Para 3.13) The objective analysis of the data of the National Crime Records Bureau placed before the Committee makes it abundantly clear that the percentage of juvenile crimes in India i.e. 1.2 per cent of the total child population of the country is quite low. Some incidents of juvenile crime, though a cause of serious concern, should not be the basis for introducing drastic changes in the existing juvenile justice system. The Committee would like to draw the attention of the Ministry to the Salil Bali vs. Union of India (2013) where the Supreme Court has very aptly observed: “There are, of course, exceptions where a child in the age-group of 16 to 18 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 charge 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.” (Para 3.15) One must not forget that juvenile justice law is based on a strong foundation of reformation and rehabilitation, rather than retributive. Therefore, drastic changes proposed in some key areas of the existing system of juvenile justice need very deep introspection. It is all the more surprising that the Ministry has very comfortably chosen to ignore the views of all the major stakeholders in this regard. As rightly pointed out by some of the witnesses, better implementation of the Act and more public awareness were required to be focussed upon to curb the recent cases of juvenile crime. (Para 3.16) The Committee can only conclude that the 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. (Para 3.21) Clause 7 of the Bill is in clear violation of Articles 14 and 20 of the Constitution. An artificial differentiation between children apprehended before 21 years and those apprehended after 21 years of age is proposed to be created. The Committee strongly feels that this categorization has no rationale. A person who was a child when the offence was committed will be treated as an adult on account of a failure on the part of the investigating agencies in apprehending him/her. The existing system that allows all juveniles

46 47 to be treated within the juvenile justice system does not offend the right to equality under the Constitution. Altering the existing system under the guise of promoting the rights of victims of the right to equality is, therefore, highly suspect. (Para 3.26) The Committee takes note of serious reservations/apprehensions voiced by majority of stakeholders with regard to certain provisions of the proposed legislation not being in conformity with a number of Articles of the Constitution. The Committee has been given to understand that in the Act of 2000, there was no such contravention. The Committee would like to point out that such changes may lead to uncalled for situation in future. This becomes all the more worrisome as the most vulnerable section of the society, our children are likely to be adversely affected. The Committee is, therefore, of the firm view that all the relevant clauses of the Bill need to be reviewed in the light of constitutional provisions and modified so as to adhere to the Constitution. (Para 3.27)

Violation of UN Conventions The Committee finds no merit in the contention of the Ministry that lot of societal changes have taken place with the signing of UN Convention the Rights of the Child in 1992 and relook at our laws was required so as to revise them as per the current needs. The Committee is somewhat surprised to note the apparent contradiction in the above position and the following paras of the proposed of the Preamble in the Bill: “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.” The Committee can only conclude that as per the well-established practice, the proposed legislation has to contain provisions which adhere to all the enumerated objectives in the real sense. (Para 3.36)

Violation of Supreme Court Judgements The Committee can conclude that the underlying principle of the juvenile justice system has always been to treat all children who have committed offences within the juvenile justice system and differential treatment or sending the child to the adult criminal justice system had always been excluded by the Supreme Court. The Committee is constrained to observe that observations/judgements of the Apex Court of the country have simply been ignored. The Committee takes a serious view of this development. (Para 3.40)

Implementation of the Juvenile Justice Act, 2000 The Committee is constrained to observe the very discouraging implementation status of the JJ Act, 2000. The Committee strongly feels that along with amendments in the JJ Act, focussed attention has to be given to the implementation of the Act, as envisaged. Otherwise like the JJ Act, 2000, proposed new legislation will virtually remain on paper. The Committee is of the firm view that the Ministry, being the nodal authority at the centre, can play the role of a motivator and facilitator in coordination with all the implementing 48 agencies at the state level. The Committee is also of the view that if the systems envisaged in the Juvenile Justice Act, 2000 are given effect to by the respective agencies i.e. the Central Government, the State Governments and other institutions involved in the juvenile justice system, then the system itself can achieve the intended outcome i.e. to provide for justice, care and protection of children in conflict with law and children in need of care and protection. The Committee, accordingly, recommends that the systems and procedures contemplated under the existing Act need to be uniformly established by all the stakeholders. (Para 3.45)

Monitoring The Committee notes that the National Commission for Protection of Child Rights is assigned the role of examining reviewing the safeguards provided by or under any law for the protection of child rights and recommend measures for the effective implementation. The Committee hopes that monitoring of all the agencies/bodies involved in the implementation of the Act is taken up in the right earnest and all the bottlenecks noticed/ identified in the JJ Act, 2000 are eliminated. (Para 3.55) The Committee observes that the Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted after the Juvenile Justice Act, 1986 was repealed. Likewise, the Act of 2000 is sought to be repealed by the Juvenile Justice (Care and Protection of Children) Bill, 2014. The Committee was given to understand by some of the stakeholders that required amendments in the Act of 2000 would have served the purpose and there was no need of bringing in a new law. The Committee, however, on a comparative analysis of the Act of 2000 and the proposed law finds that the Bill is a comprehensive legislation when compared with the Act of 2000. The Bill provides for general principles of care and protection of children, procedures in case of children in need of care and protection in conflict with law, rehabilitation and social re-integration measures for such children and offences committed against children. (Para 3.56)

IV. CLAUSE 1: SHORT TITLE, EXTENT AND COMMENCEMENT The Committee would like to point out that the main objective of the Bill is to make the law relating to children alleged and found to be in conflict with law and also children in need of care and protection. Common usage of the word ‘juvenile’ is vis-a-vis a child who has committed an offence. Apparently, the existing title gives an impression that this Act deals with children who have committed offence. The title of the Bill should reflect the child-friendly approach. The Committee recommends the title or the Bill to be changed as Justice for children (Care and Protection of Children) Bill, 2014. (Para 4.4)

V. CLAUSE 2: DEFINITIONS Objections were raised to the use of word ‘legitimate’ in the context of a child. It was felt that the use of language that classifies children as legitimate or illegitimate was not in the best interests of children. The Committee, accordingly, recommends that the words ‘legitimate child of his adoptive parents’ may read as ‘lawful child of his adoptive parents’ and the words “that are attached to be legitimate child’ may read as ‘that are attached to a biological child.’ (Para 5.2) The Committee notes that the Bill provides a narrow definition and is a digression from internationally recognised and recommended concept and principles of aftercare. Rehabilitation of children who are in need of care and protection or those in conflict with 49 law cannot always end by the age of 18 and who have left any institutional care or the Child Justice System to join the mainstream of the society as this would also provide for children out of institutional care for their rehabilitation. The Committee, accordingly, recommends that the definition of the term ‘aftercare’ may be modified as follows: “Aftercare” means making provision of support, financial or otherwise, to persons, who have not completed the age of twenty-one years and have left any institutional care to help them integrate with society. (Para 5.5) The Committee feels that a child does not first have to become a victim and then be in need of care and protection. Both care and protection rights exist before the point of affliction and a vulnerable child is always in need of both the safeguards. The Committee, accordingly, recommends that this definition may be made more clear and specific. (Para 5.7) Clause 2(14)(ii): As per this sub-clause, a child found working in contravention of labour laws for the time being in force or is found begging, or living on the street would be considered to be in need of care and protection. It was pointed out to the Committee that a reference to labour laws would restrict the extension of care and protection measures to only those children who come under the protection ambit of labour laws. As a result, children between 14 and 18 years engaged in labour would be deprived of rehabilitation measures available under the Bill. Agreeing with the apprehension of the stakeholders, the Committee recommends that the words “in contravention of labour laws for the time being in force’ may be deleted from the definition. (Para 5.8) The Committee feels that children who have been abused may face stigma, trauma and may be in need of support, as well as linkages to services. The Committee is of the view that this sub-clause should apply to both children who have been abused or may be abused at any point of time. The Committee, accordingly, recommends that the words ‘has been’ may be added after the word’ who’. (Para 5.10) The Committee is of the view that when the definition of the word ‘child’ has been included under the definition clause, and the word ‘juvenile’ is considered not to be appropriate because of the element of negativity involved in its meaning, the definition of the word ‘juvenile’ may not be included under the definition clause. (Para 5.12)

VI. CLAUSE 4: JUVENILE JUSTICE BOARD The Committee is of the view that in order to strengthen the functioning of JJB, it is necessary that the Chairperson is in a position to give adequate time and attention to his responsibilities. One suggestion which has come to the Committee is to have a retired District and Sessions Judge as the Chairperson of JJB. Secondly, the Committee also feels that restricting the nomination of social workers from reputed NGOs only and that too having seven years’ experience would be a very restrictive provision. The Committee, accordingly, recommends that the composition of JJB needs to be reviewed and required changes made. (Para 6.5) Committee attention was also drawn to the fact that while the Bill lays down certain eligibilities and disqualifications for members of CWCs and JJBs, but it does not lay down any provision for constitution of a selection committee to select the members and its procedures etc. Different States follow different selection procedures. As a federal republic, States are free to frame their own Rules with respect to the juvenile justice legislation and most matters concerning children. While some States set up a Selection Committee, others do not, thereby compromising on a fair and transparent selection process. The Committee, 50 accordingly, recommends that it will be prudent if the Bill establishes the importance of ensuring a proper, fair and transparent selection process and clearly lays a complaints-cum- oversight mechanism for functioning of individual members, including requirement for constitution and functioning of a Selection Committee or a Selection-cum-oversight mechanism and a fair process of selection. The Committee would appreciate if the provisions related to the composition of the Selection Committee and the Selection Process are included in the Bill so as to ensure uniformity and transparency which can be easily replicated from Rules 91 and 92 of the Juvenile Justice (Care and Protection) Rules, 2007 with appropriate modifications. (Para 6.6) The Committee was also given to understand that in some cases, there has been found to be a conflict of interest, as members also hold positions in the management of child care institutions in the very district for which they have been appointed. If that be so, the Committee feels that a provision needs to be included requiring members to resign from an office of profit on being appointed a Member of the Board. (Para 6.7)

VII. CLAUSE 6: PLACEMENT OF PERSONS, WHO COMMITTED AN OFFENCE, WHEN THE PERSON WAS BELOW THE AGE OF EIGHTEEN YEARS The Committee agrees with views of the stakeholders that age on date of committing of the offence should determine whether the person should be dealt with under the JJ system or criminal justice system. The Committee recommends that such a person who is not a juvenile should not be allowed to mingle with children in an observation home and should be kept separately. The words ‘but is below twenty one years of age’ may be deleted from clause 6. (Para 7.4)

VIII. CLAUSE 7: PLACEMENT OF A PERSON ABOVE AGE OF TWENTY-ONE YEARS FOR COMMITTING ANY OFFENCE WHEN HE WAS A CHILD The Committee views with serious concern the kind of argument put forth by the Ministry, while justifying the inclusion of a provision like clause 7. The Committee fails to comprehend as to how could such a provision would encourage persons to come forward and inform about the offences committed by them so that they could remain under the Juvenile Justice System. The Committee would like to point out that unless a person is proved guilty, he cannot be treated like an offender. Secondly, the perception that a person in the age-group of 16-18 years alleged to be committing a serious or heinous offence would be mature enough to come forward to inform about his offence so as to ensure his remaining under the Juvenile Justice System seems to be far from convincing. (Para 8.4) After analysing all the facts placed before it, the Committee is left with no other alternative but to conclude that concerns expressed by all the stakeholders are very genuine and cannot be ignored. The Committee is also of the view that clause 7 is in clear violation of Article 20(1) of the Constitution which states that: “No person shall be convicted of any offence except for violation of the law in force at the time of the Commission of the act charged as an offence, nor be subjected 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.” A plain reading of clause 7 clearly indicates that a person who was a child when the offence was committed will be treated as an adult on account of failure on the part of the investigating agencies in apprehending him/her. Besides this, the Committee also observes that this provision is also in complete violation of the right to equality under Article 14 which states that: 51

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Again, clause 7 creates an artificial differentiation between children apprehended before 21 years and those apprehended after 21 years of age. The Committee finds no rationale in such a categorization. (Para 8.5) The Committee was also informed that this provision would also violate Article 15 of the International Covenant on Civil and Political rights, a non-derogable right under the convention which reads as follows: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.” The Committee also takes note of Supreme Court judgments in Umesh Chandra (1982), Arnit Das (2000), Arnit Das (2001) and Pratap Singh (2005). The five judges Constitutional Bench of the Supreme Court in Pratap Singh held the age on the date of offence to be determinative of the application of the Juvenile Justice Act. The observation of the Supreme Court in its judgement (SLPC(vi) No. 1953 of 2013) in Dr. Subramanian Swamy Vs. Raju, Member, JJB pointed out that “…If the legislature has adopted the age of 18 as the dividing line between juveniles and adults and such a decision is constitutionally permissible, the enquiry by the Courts must come to an end. Even otherwise there is a considerable body of world opinion that all under 18 persons ought to be treated as juveniles and separate treatment ought to be meted out to them so far as offences committed by such persons are concerned.” (Para 8.6) Keeping in view the very specific constitutional provisions, international conventions and Supreme Court judgments, the Committee simply fails to comprehend the absurdity and the arbitrary nature of clause 7. The Committee finds no logical reason why persons apprehended after they have crossed 21 years should face serious disadvantage or how this severe provision furthers the goals of criminal justice. The Committee also takes note of the fact that there have been several legal controversies surrounding this very question. The JJ Act, 2000 was amended in 2006 precisely in order to clarify that the date of reckoning will be the date on which the offence was allegedly committed and not when the juvenile was apprehended. (Para 8.7) The Committee is of the firm opinion that clause 7 is discriminatory in itself, undermines the constitutional provisions as well as international commitments and ignores the Supreme Court directives. The Committee, accordingly, recommends that such a provision should not be a part of the proposed legislation and be deleted. (Para 8.8)

IX. CLAUSE 15: INQUIRY BY BOARD REGARDING CHILD IN CONFLICT WITH LAW As per this sub-clause, JJB is required to take a decision of transferring such a child to the Children’s Court within a period of one month without a proper investigation by the investigating agency or before such investigation is completed and the child is prima facie found to have committed such heinous offences. This provision proceeds on the assumption that the alleged offence has been committed by the child and is contrary to the presumption of being innocent till proved guilty. It thus violates Fundamental Rights guaranteed under Article 14 and 21 of the Constitution by directing JJB to inquire into the culpability prior 52 to prima facie establishment of the guilt. The Committee, accordingly, recommends that the period of preliminary inquiry by JJ Board may be suitably enhanced. (Para 9.2)

X. CLAUSE 16: PRELIMINARY INQUIRY INTO HEINOUS OFFENCES BY THE BOARD The Committee would like to point out that considering the fact that large number of innocent children are being involved in crimes, which was evident from the decisions of JJBs across the country, it is impossible to conduct such a complex enquiry within a period of one month. Such a provision will amount to complete denial of fundamental rights, justice, fair and discriminate proceedings and also the negation of basic principles and provisions of Juvenile Justice (Care and Protection) Act, 2000 itself. (Para 10.6)

The Committee would also like to point out that the process suggested for treating 16-18 years children involved in heinous offences, i.e. preliminary inquiry by JJB and professional team, then based on their decision to Children’s Court (CC) then decision by CC regarding where to be tried, then sending the child back to JJB for trial would lead to multiple and repeated trials before different authorities that would psychologically drain him/her. The Committee, accordingly, recommends that this entire process needs a relook and review. (Para 10.7)

The Committee is in full agreement with the very comprehensive views of the stakeholders that clause 7 is discriminatory and all children below 18 years should be treated as children. The proposed legislation is meant for children alleged and found to be in conflict with law. And the definition of both the terms ‘child’ and ‘child in conflict with law’ mean a person who has not completed eighteen years of age. Accordingly, the question of envisaging a differential treatment for children above sixteen years of age should not arise. Such a move would lead to contravention of international laws and also the stated purpose of the Bill. (Para 10.9)

XI. CLAUSE 19: ORDERS REGARDING CHILD FOUND TO BE IN CONFLICT WITH LAW The Committee would like to point out that the objective of creating a separate Act for children was to have a separate system for children in conflict with law and not include them in the criminal justice system. There is no doubt that this sub-clause diminishes the distinction between child victims and children in conflict with law by entitling the courts under the Protection of Children from Sexual Offences Act, 2012, the jurisdiction to adjudicate the cases involving children in conflict with law. (Para 11.5) The Committee also recommends that all relevant clauses (clauses 6, 7, 16, 19, 20) dealing with Children’s Courts and differential treatment of children between 16-18 years of age need to be reviewed in that light of its observations and recommendations. (Para 11.6)

XII. CLAUSE 28: CHILD WELFARE COMMITTEE The Committee notes that the Child Welfare Committee is a quasi-judicial body whereas the District Magistrate is the executive. Thus, subjecting CWC to a review by the District Magistrate would lead to infringement of its powers. The Committee feels that since CWC is appointed by the State Government, it is appropriate for CWC to report to and be accountable to the State Government. The review of the functioning and pendency of cases before CWC, if vested in its appointing authority will also facilitate addressing bottlenecks for its efficient functioning, including the decision to set up additional CWCs, if required. 53

It is important to note that under the JJ Act, 2000, the process to review pendency of cases before the CWC is with the State Government (section 33(3) of the Act, 2000 refers). Clause 37(4) regarding submission of a quarterly report on the disposal/pendency of cases to the District Magistrate by CWC may also be amended accordingly. (Para 12.1)

XIII. CLAUSE 36: THE CLAUSE DEALS WITH THE SURRENDER OF CHILDREN Committee’s attention was drawn to the fact that the existing legal frame-work provided for two months’ re-consideration period for a woman intending to surrender her child, and this should be retained. The time period of one month was considered to be insufficient, given that the woman needed to recover from the physical and emotional stress of delivery first, before she was able to even think clearly about what to do with her baby. Agreeing with the view of the stakeholders, the Committee recommends that time period of sixty days should be kept for surrender of a child. (Para 13.4)

XIV. CLAUSE 47: THIS CLAUSE DEALS WITH CHILDREN LEAVING CHILD CARE INSTITUTION The Committee strongly feels that that aftercare should be visualized as a full- fledged programme which includes a range of services towards enabling mainstreaming of young adults who have been children in need of care and protection or children in conflict with law. The programme should be in consonance with the financial norms laid down by the Integrated Child Protection Scheme (ICPS). Rightfully, aftercare includes shelter, education, vocational training, apprenticeship and life-skills education to be able to integrate into the community as a self-reliant/independent individual. (Para 14.2) The Committee also takes note of the fact that the JJ Act, 2000 and ICPS have both conceptualized aftercare as a programme with multiple activities. Since the law provides for other forms of non-institutional care also, children placed in family as well as such alternative care may also require after care. The Committee, accordingly, recommends the provisions contained in Section 44 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Rule 38 of the Juvenile Justice (Care and Protection of children) Rules, 2007, should be retained. (Para 14.3)

XV. CLAUSE 57: ADOPTION The Committee takes note of divergent views coming from stakeholders about clause 57 and viability thereof. The Committee would appreciate if this clause is reviewed, in the light of the implications and also sensitivity involved-once this provision comes into effect. (Para 15.4)

XVI. CLAUSE 60: THE CLAUSE DEALS WITH PROCEDURE FOR INTER-COUNTRY ADOPTION OF AN ORPHAN OR ABANDONED OR SURRENDERED CHILD The Committee is of the view that children need a permanent family/home and would prefer domestic adoption rather than inter country adoption. The emphasis should be on domestic adoption and only where such domestic adoptee parents are not available should inter- country adoption be considered. (Para 16.6) The Committee also agrees with the stand of the stakeholders about thirty days period being too short. The Committee strongly feels that adherence to this above 54 mentioned period of thirty days is like an enabling process, to let majority of children to be opted for inter-country adoptions and hence requires a review. The Committee would also like to point out that the period of thirty days as provided for in the clause 60(1) of the Bill contradicts the period of two months provided for the courts to finalize adoption under the proposed Section 62(2). (Para 16.7) The provision 60(1) of the Bill that allows the child for inter country adoption after one month is unacceptable. Inter country adoptions may be resorted to only in cases when there is a problem in finding suitable prospective adoptive parents due to special needs of the child. The Committee would like to suggest that in the event an adoption agency cannot find an Indian parent on their wait list roster, there should be a mechanism to intimate other adoption agencies about the availability of a child in their adoptive centre. All efforts should be made to give a child to an Indian parent. Moreover, the inter-country adoption should be made only by ensuring that it is used appropriately through proper regulation, and, importantly, the ratification of the Hague convention. (Para 16.8)

XVII. CLAUSE: 69 CENTRAL ADOPTION RESOURCE AUTHORITY The Committee finds that the emphasis of the proposed legislation is on non- institutional care of children by strengthening the status and role of CARA which is envisaged to be an apex body for adoption. CARA is mandated to monitor and regulate in- country and inter-country adoptions. It is also required to act as a clearing house for information about children eligible for adoptions, develop PR campaigns; undertake research and evaluation; monitor and regulate the work of recognized and associated agencies; liaison with the other Central Authorities and foreign missions and ensure post-adoption follow-up and care for the adopted children. The Committee welcomes this initiative and hopes that this will lead to streamlining the adoption procedure and removing the complexities involved therein at present. (Para 17.2)

XVIII. CLAUSE 106: JUVENILE JUSTICE FUND The Committee welcomes the proposal for creation of a Juvenile Justice Fund by each State Government. Funds collected under such a Fund are to be used for the welfare and rehabilitation of children dealt with under the Act. The Committee would like to point out that while the objective of such a fund is laudable, every effort would need to be made by all concerned to administer the fund objectively with the interest and welfare of needy children remaining the top priority. (Para 18.2)

XIX. CONCLUSION The Committee accepts the remaining provisions of the Bill. The Committee is of the view that with modifications recommended by it in respect of some clauses, the proposed legislation can be considered a very comprehensive law mandated for care and protection of children as well as to provide justice to children in conflict with law. The Committee, however, has a word of caution. Concerted efforts at all levels by all the implementing agencies will have to be made vigorously so as to ensure that the proposed law does not remain confined to notification stage. (Para 19) 55

MINUTES

IV FOURTH MEETING

The Committee on Human Resource Development met at 11.00 A.M. on Tuesday, the 21st October, 2014 in Committee Room ‘A’, Ground Floor, Parliament House Annexe, New Delhi.

MEMBERS PRESENT

RAJYA SABHA 1. Shri Tiruchi Siva — In the Chair 2. Prof. Jogen Chowdhury 3. Prof. M.V. Rajeev Gowda 4. Dr. Bhalchandra Mungekar 5. Shri Vishambhar Prasad Nishad 6. Shri Basawaraj Patil

LOK SABHA 7. Shri Bijoy Chandra Barman 8. Shri C.R. Chaudhary 9. Shrimati Kothapalli Geetha 10. Dr. Ramshankar Katheria 11. Shri Bhairon Prasad Mishra 12. Shri Hari Om Pandey 13. Dr. Bhagirath Prasad 14. Shri N.K. Premchandran 15. Shri Mullappaly Ramachandran 16. Shri Sumedanand Sarswati 17. Shri M.I. Shanavas 18. Shri Nepal Singh 19. Dr. Prabhas Kumar Singh 20. Shri P.R. Sundram 21. Shri Ajay Tamta 22. Shrimati P.K. Sreemathi Teacher

SECRETARIAT Shrimati Vandana Garg, Additional Secretary Shri N.S. Walia, Director Shri Vinay Shankar Singh, Joint Director Shrimati Himanshi Arya, Assistant Director

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The Juvenile Justice (Care and Protection of Children) Bill, 2014 (I) Ministry of Women and Child Development (i) Shri V.S. Oberoi, Secretary (ii) Dr. Vivek Joshi, Joint Secretary (iii) Shri Ashi Kapoor, Deputy Secretary (iv) Shri B.K. Sahu, Deputy Director, CARA (v) Shri Naveen Yadav, Under Secretary (II) Tulir Centre for the Prevention and Healing of Child Sexual Abuse Ms. Vidya Reddy, Director (III) Indian Alliance for Child Rights Ms. Razia Ismail Abbassi, Director (IV) Save the Children Ms. Shireen Vakil Miller, Advocacy Director (V) Butterflies Ms. Rita Panicker, Director 2. At the outset, the Chairman welcomed the members to the meeting of the Committee convened to hear the views of the Secretary, Ministry of Women and Child Development and the representatives of four NGGs i.e. Tulir Centre for Prevention and Healing of Child Sexual Abuse, Indian Alliance for Child Rights, Save the Children and Butterflies on the Juvenile Justice (Care and Protection of Children) Bill, 2014. 3. The Committee first heard the views of the Secretary, Ministry of Women and Child Development on the Juvenile Justice (Care and Protection of Children) Bill, 2014. The Secretary pointed out that this Bill was a comprehensive legislation seeking to provide for the general principles of care and protection of children, procedure in case of children in need of care and protection and children in conflict with law, rehabilitation and social re-integration measures for such children and adoption of orphan, abandoned and surrendered children and other connected matters in the best interest of children. The members raised a number of queries on the various provisions of the Bill, some of which were replied to by the Secretary. The Committee decided to send a detailed questionnaire to the Ministry for their written replies. 4. Thereafter, the Committee heard the views of the representatives of Tulir Centre for Prevention and Healing of Child Sexual Abuse, Indian Alliance for Child Rights, Save the Children and Butterflies on the Juvenile Justice (Care and Protection of Children) Bill, 2014. The members raised a number of queries on various provisions of the Bill, some of which were replied to by the representatives. The Committee, thereafter, decided to send a questionnaire for the written replies of the representatives.

5. The Committee then adjourned at 1.45 P.M. 59

VI SIXTH MEETING

The Committee on Human Resource Development met at 4.00 P.M. on Monday, the 15th December, 2014 in Room No. ‘63’, First Floor, Parliament House, New Delhi.

MEMBERS PRESENT

RAJYA SABHA 1. Shri Satyanarayan Jatiya — Chairman 2. Prof. M.V. Rajeev Gowda 3. Shri Anubhav Mohanty 4. Dr. Bhalchandra Mungekar 5. Shri Basawaraj Patil

LOK SABHA 6. Shrimati Santosh Ahlawat 7. Shri C.R. Chaudhary 8. Shrimati Kothapalli Geetha 9. Shri Bhairon Prasad Mishra 10. Shri Chand Nath 11. Shri Hari Om Pandey 12. Dr. Bhagirath Prasad 13. Shri N.K. Premachandran 14. Shri Mullappally Ramachandran 15. Dr. Nepal Singh 16. Dr. Prabhas Kumar Singh 17. Shri P.R. Sundaram 18. Shrimati P.K. Sreemathi Teacher

SECRETARIAT Shrimati Vandana Garg, Additional Secretary Shri Vinay Shankar Singh, Joint Director Shrimati Himanshi Arya, Assistant Director

The Juvenile Justice (Care and Protection of Children) Bill, 2014 I. National Commission for Protection of Child Rights 1. Shri Asheem Srivastav, Member Secretary II. Central Adoption Resource Authority 2. Shri Veerendra Mishra, Secretary 3. Shri Jagannath Pati, Joint Director

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2. At the outset, the Chairman welcomed the members to the meeting of the Committee convened to hear the views of the Member Secretary, National Commission for Protection of Child Rights and the Secretary, Central Adoption Resource Authority on the Juvenile Justice (Care and Protection of Children) Bill, 2014. 3. The Committee, first, heard the views of the Member Secretary, National Commission for Protection of Child Rights on various provisions of the Bill. The members raised a number of queries, some of which were replied to by the Member Secretary, National Commission for Protection of Child Rights. The Committee, thereafter, decided to send a detailed questionnaire for the written replies of the Commission. 4. Further, the Committee heard the views of the Secretary, Central Adoption Resource Authority on various issues relating to adoption. The members raised a number of queries on the various provisions relating to adoption in the Bill. The Secretary, Central Adoption Resource Authority replied to some of the queries.

5. The Committee then adjourned at 5.25 P.M. 61

VII SEVENTH MEETING

The Committee on Human Resource Development met at 3.00 P.M. on Friday, the 2nd January, 2015 in Committee Room ‘A’, Ground Floor, Parliament House Annexe, New Delhi.

MEMBERS PRESENT

RAJYA SABHA 1. Dr. Satyanarayan Jatiya — Chairman 2. Prof. M.V. Rajeev Gowda 3. Shri Vishambhar Prasad Nishad 4. Shri Basawaraj Patil 5. Shrimati Sasikala Pushpa 6. Shri Tiruchi Siva

LOK SABHA 7. Shri Bijoy Chandra Barman 8. Shri C.R. Chaudhary 9. Shrimati Kothapalli Geetha 10. Prof. Chintamani Malviya 11. Shri Bhairon Prasad Mishra 12. Dr. Bhagirath Prasad 13. Shri N.K. Premachandran 14. Shri Mullappally Ramachandran 15. Dr. Nepal Singh 16. Shri Ajay Tamta

SECRETARIAT Shrimati Vandana Garg, Additional Secretary Shri N.S. Walia, Director Shri Vinay Shankar Singh, Joint Director Shrimati Himanshi Arya, Assistant Director

The Juvenile Justice (Care and Protection of Children) Bill, 2014 I. Ms. Maharukh Adenwalla, Advocate, Mumbai II. Centre for Child and the Law (i) Ms. Arlene Manoharan, Programme Head (ii) Ms. Swagata Raha, Sr. Legal Researcher

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III. PRAYAS (i) Shri Amod Kanth, General Secretary (ii) Shri Kumar Rohit (iii) Shri A.K. Singh (iv) Shri Vishwajeet Ghoshal (v) Ms. Deepshikha Singh (vi) Shri Amitabh Srivastava 2. At the outset, the Chairman welcomed the members to the meeting of the Committee convened to hear the views of Ms. Maharukh Adenwalla, Advocate, Mumbai, the Centre for Child and the Law, Bengaluru and the General Secretary, PRAYAS, Delhi on the Juvenile Justice (Care and Protection of Children) Bill, 2014. 3. The Committee, first, heard the views of Ms. Maharukh Adenwalla, Advocate on various provisions of the Bill. The members raised a number of queries, some of which were replied to by her. 4. Thereafter, the representatives of the Centre for Child and the Law made a detailed presentation on various provisions of the Bill before the Committee. The members raised a number of queries, some of which were replied to by the representatives. 5. The Committee, then, heard the presentation of the General Secretary, PRAYAS on various provisions of the Bill. The members raised a number of queries, some of which were replied to by the General Secretary, PRAYAS. 6. A verbatim record of the proceedings of the meeting was kept.

7. The Committee then adjourned at 5.15 P.M. 63

VIII EIGHTH MEETING

The Committee on Human Resource Development met at 3.00 P.M. on Wednesday, the 28th January, 2015 in Committee Room ‘A’, Ground Floor, Parliament House Annexe, New Delhi.

MEMBERS PRESENT

RAJYA SABHA 1. Dr. Satyanarayan Jatiya — Chairman 2. Prof. M.V. Rajeev Gowda 3. Shri Anubhav Mohanty 4. Prof. Bhalchandra Mungekar 5. Shri Vishambhar Prasad Nishad

LOK SABHA 6. Shrimati Santosh Ahlawat 7. Shri Bijoy Chandra Barman 8. Shri C.R. Chaudhary 9. Shrimati Kothapalli Geetha 10. Prof. Chintamani Malviya 11. Shri Bhairon Prasad Mishra 12. Shri Chand Nath 13. Shri Hari Om Pandey 14. Shri N.K. Premachandran 15. Shri K.N. Ramachandran 16. Dr. Nepal Singh 17. Dr. Prabhas Kumar Singh 18. Shri Ajay Tamta 19. Shrimati P.K. Sreemathi Teacher

SECRETARIAT Shrimati Vandana Garg, Additional Secretary Shri N.S. Walia, Director Shri Vinay Shankar Singh, Joint Director Shrimati Himanshi Arya, Assistant Director 2. At the outset, the Chairman welcomed the Members to the meeting of the Committee convened to have a clause-by-clause discussion on the Juvenile Justice (Care and Protection of Children) Bill, 2014.

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3. The Committee then had a clause-by-clause discussion on the Juvenile Justice (Care and Protection of Children) Bill, 2014. Members of the Committee gave their views and suggestions on various provisions of the Bill. The Committee directed the Secretariat to prepare a draft report on the Bill. 4. The Committee decided to meet again on the 16th February, 2015.

5. The Committee then adjourned at 4.30 P.M. 65

IX NINTH MEETING

The Committee on Human Resource Development met at 2.30 P.M. on Monday, the 16th February, 2015 in Committee Room ‘A’, Ground Floor, Parliament House Annexe, New Delhi.

MEMBERS PRESENT

RAJYA SABHA 1. Dr. Satyanarayan Jatiya — Chairman 2. Prof. M.V. Rajeev Gowda 3. Prof. Bhalchandra Mungekar 4. Shri Vishambhar Prasad Nishad 5. Shri Basawaraj Patil 6. Shri Sharad Pawar 7. Shrimati Sasikala Pushpa 8. Shri Tiruchi Siva

LOK SABHA 9. Shrimati Santosh Ahlawat 10. Shri C.R. Chaudhary 11. Shri Bhairon Prasad Mishra 12. Shri Chand Nath 13. Dr. Bhagirath Prasad 14. Shri N.K. Premachandran 15. Shri Mullappaly Ramachandran 16. Shri Sumedanand Sarswati 17. Shri M.I. Shanavas 18. Dr. Nepal Singh 19. Dr. Prabhas Kumar Singh 20. Shrimati P.K. Sreemathi Teacher

SECRETARIAT Shrimati Vandana Garg, Additional Secretary Shri N.S. Walia, Director Shri Vinay Shankar Singh, Joint Director Shrimati Himanshi Arya, Assistant Director 2. At the outset, the Chairman welcomed the Members to the meeting of the Committee convened to consider and adopt the draft 264th Report on the ‘Juvenile Justice (Care and Protection of Children) Bill, 2014’.

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3. The Committee then considered the draft 264th Report on the ‘Juvenile Justice (Care and Protection of Children) Bill, 2014’ and adopted the same after some discussion. 4. The Committee then decided to present/lay the above mentioned Report in both the Houses of Parliament on 25th February, 2015. The Committee authorized the Chairman and in his absence Prof. M.V. Rajeev Gowda, M.P., Rajya Sabha to present the Report in the Rajya Sabha and Shri N.K. Premachandran and in his absence Dr. Bhagirath Prasad M.P., Lok Sabha to lay the Report in the Lok Sabha.

5. The Committee then adjourned at 3.30 P.M. 67

ANNEXURES

AS INTRODUCED IN LOK SABHA Bill No. 99 of 2014

THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL, 2014

ARRANGEMENT OF CLAUSES

CHAPTER I

PRELIMINARY

CLAUSES 1. Short title, extent, commencement and application. 2. Definitions.

CHAPTER II

GENERAL PRINCIPLES OF CARE AND PROTECTION OF CHILDREN 3. General principles to be followed in administration of Act.

CHAPTER III

JUVENILE JUSTICE BOARD 4. Juvenile Justice Board. 5. Placement of person, who ceases to be a child during the process of inquiry. 6. Placement of persons, who committed an offence, when the person was below the age of eighteen years. 7. Placement of a person above the age of twenty-one years for committing any offence when he was a child. 8. Procedure in relation to Board. 9. Powers, functions and responsibilities of the Board. 10. Procedure to be followed by a Magistrate who has not been empowered under this Act.

CHAPTER IV

PROCEDURE IN RELATION TO CHILDREN IN CONFLICT WITH LAW 11. Apprehension of child alleged to be in conflict with law. 12. Role of person in whose change child in conflict with laws placed. 13. Bail to a person who is apparently a child alleged to be in conflict with law. 14. Information to parents, guardian or Probation Officer. 15. Inquiry by Board regarding child in conflict with law. 16. Preliminary Inquiry into heinous offences by the Board. 17. Review of pendency of Inquiry. 18. Orders regarding a child not found to be in conflict with law.

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CLAUSES 19. Orders regarding child found to be in conflict with law. 20. Powers of Children’s Court. 21. Child attained age of twenty-one years and yet to complete prescribed term of stay in place of safety. 22. Order that may not be passed against a child in conflict with law. 23. Proceeding under Chapter VIII of the Code of Criminal Procedure not to apply against child. 24. No joint proceedings of child in conflict with law and person not a child. 25. Removal of disqualification on the findings of an offence. 26. Special provision in respect of pending cases. 27. Provision with respect of runaway child in conflict with law.

CHAPTER V

CHILD WELFARE COMMITTEE 28. Child Welfare Committee. 29. Procedure in relation to Committee. 30. Powers of the Committee. 31. Functions and responsibilities of the Committee.

CHAPTER VI

PROCEDURE IN RELATION TO CHILDREN IN NEED OF CARE AND PROTECTION 32. Production before Committee. 33. Mandatory reporting regarding a child found separated from guardian. 34. Offence of non-reporting. 35. Penalty for non-reporting. 36. Surrender of children. 37. Inquiry. 38. Orders passed regarding a child in need of care and protection. 39. Procedure for declaring a child legally free for adoption.

CHAPTER VII

REHABILITATION AND SOCIAL RE-INTEGRATION 40. Process of rehabilitation and social re-integration. 41. Restoration of child in need of care and protection. 42. Registration of child care institutions. 43. Penalty for non-registration of child care institutions. 44. Open Shelter. 45. Foster care. 46. Sponsorship. 47. After care of children leaving child care institution. 48. Observation Homes. 49. Special Homes. 50. Place of Safety. 71

CLAUSES 51. Children’s Home. 52. Fit facility. 53. Fit person. 54. Rehabilitation and re-integration services in institutions registered under this Act and management thereof. 55. Inspection of institutions registered under this Act. 56. Evaluation of functioning of structures.

CHAPTER VIII

ADOPTION 57. Adoption. 58. Eligibility of prospective adoptive parents. 59. Procedure for adoption by Indian prospective adoptive parents living in India. 60. Procedure for inter-country adoption of an orphan or abandoned or surrendered child. 61. Procedure for inter-country relative adoption. 62. Court procedure and penalty against payment in consideration of adoption. 63. Additional procedural requirements and documentation. 64. Effect of adoption. 65. Reporting of adoption. 66. Specialised Adoption Agencies. 67. Adoption of children residing in institutions not registered as adoption agencies. 68. State Adoption Resources Agency. 69. Central Adoption Resource Authority. 70. Steering Committee of Authority. 71. Powers of Authority. 72. Annual Report of Authority. 73. Grants by Central Government. 74. Accounts and audit of Authority.

CHAPTER IX

OTHER OFFENCES AGAINST CHILDREN 75. Prohibition on disclosure of identity of children. 76. Punishment for cruelty to child. 77. Employment of child for begging. 78. Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance to a child. 79. Using a child for vending, peddling, carrying, supplying or smuggling any intoxicating liquor, narcotic drug or psychotropic substance. 80. Exploitation of a child employee. 81. Punitive measures for adoption without following prescribed procedures. 82. Sale and procurement of children for any purpose. 83. Corporal punishment. 84. Use of child by militant groups or other adults. 85. Kidnapping and abduction of child. 72

CLAUSES 86. Offences committed on disabled children. 87. Classification of offences and designated court. 88. Abetment. 89. Alternative punishment. 90. Offence committed by child under this Chapter.

CHAPTER X

MISCELLANEOUS 91. Attendance of parent or guardian of child. 92. Dispensing with attendance of child. 93. Placement of a child suffering from disease requiring prolonged medical treatment in an approved place. 94. Transfer of a child who is mentally ill or addicted to alcohol or other drugs. 95. Presumption and determination of age. 96. Transfer of a child to place of residence. 97. Transfer of child between children’s homes, or special homes or fit facility or fit person in different parts of India. 98. Release of a child from an institution. 99. Leave of absence to a child placed in an institution. 100. Reports to be treated as confidential. 101. Protection of action taken in good faith. 102. Appeals. 103. Revision. 104. Procedure in inquiries, appeals and revision proceedings. 105. Power of the Committee or the Board to amend its own orders. 106. Juvenile Justice Fund. 107. State Child Protection Society and District Child Protection Unit. 108. Child Welfare Police Officer and Special Juvenile Police Unit. 109. Power to make rules. 110. Repeal and savings. 111. Power to remove difficulties. 73

AS INTRODUCED IN LOK SABHA ON 26TH NOVEMBER, 2012

Bill No. 99 of 2014

THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL, 2014

A BILL 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.

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;

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;

73 74

AND WHEREAS, it is expedient to re-enact the Juvenile Justice (Care and Protection of Children) Act, 2000 to make comprehensive 56 of 2000. 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 Intercountry Adoption (1993), and other related international instruments.

BE it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows:—

CHAPTER I

PRELIMINARY

Short title, 1. (1) This Act may be called the Juvenile Justice (Care and extent, Protection of Children) Act, 2014. commencement and application. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. (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 — (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.

Definitions. 2. In this Act, unless the context otherwise requires,— (1) “abandoned child” means a child deserted by his biological or adoptive parents or guardians, who has been declared as abandoned by the Committee after due inquiry; (2) “adoption” means the process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a legitimate child; (3) “adoption regulations” means the regulations framed by the authority and notified by the Central Government in respect of adoption; 75

(4) “administrator” means any district official not below the rank of Deputy Secretary to the State, on whom magisterial powers have been conferred; (5) “aftercare” means making provision of support, financial or otherwise, to persons, who have completed the age of eighteen years but have not completed the age of twenty-one years, and have left any institutional care to join the mainstream of the society; (6) “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; (7) “Authority” means the Central Adoption Resource Authority constituted under section 69; (8) “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; (9) “best interest of child” means the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development; (10) “Board” means a Juvenile Justice Board constituted under section 4; (11) “Central Authority” means the Government department recognised as such under the Hague Convention on Protection of Children and Cooperation in Intercountry Adoption (1993); (12) “child” means a person who has not completed eighteen years of age; (13) “child in conflict with law” means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence; 76

(14) “child in need of care and protection” means a child— (i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or (ii) who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street; or (iii) who resides with a person (whether a guardian of the child or not) and such person— (a) 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 child; or (b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or (c) 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; or (iv) 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; or (v) 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; or (vi) who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or (vii) who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed; or (viii) who is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or (ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or 77

(x) who is being or is likely to be abused for unconscionable gains; or (xi) who is victim of or affected by any armed conflict, civil unrest or natural calamity; or (xii) 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; (15) “child friendly” means any behaviour, conduct, practice, process, attitude, environment or treatment that is humane, considerate and in the best interest of the child; (16) “child legally free for adoption” means a child declared as such by the Committee after making due inquiry under section 39; (17) “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 51; (18) “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; (19) “Child Welfare Police Officer” means an officer designated as such under sub-section (1) of section 108; (20) “Children’s Court” means a court established under 4 of 2006. the Commissions for Protection of Child Rights Act, 2005 or a Special Court under the Protection of Children from Sexual 32 of 2012. 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; (21) “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; (22) “court” means a civil court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts; (23) “Committee” means a Child Welfare Committee constituted under of section 28; (24) “corporal punishment” 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; 78

(25) “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; (26) “District Child Protection Unit” means a Child Protection Unit for a District, established by the State Government under section 107, which is the focal point to ensure the implementation of this Act and other child protection measures in the district; (27) “fit facility” means 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 52; (28) “fit person” 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; (29) “foster care” 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; (30) “foster family” means a family found suitable by the District Child Protection Unit to keep children in foster care under section 45; (31) “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; (32) “group foster care” 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; (33) “heinous offences” includes the offences for which the minimum punishment under the Indian Penal Code 45 of 1860. or any other law for the time being in force is imprisonment for seven years or more; 79

(34) “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; (35) “juvenile” means a child below the age of eighteen years; (36) “narcotic drug” and “psychotropic substance” shall have the meanings, respectively, assigned to them in the 61 of 1985. Narcotic Drugs and Psychotropic Substances Act, 1985; (37) “no objection certificate” for inter-country adoption means a certificate issued by the Central Adoption Resource Authority for the said purpose; (38) “Non-Resident Indian” means a person who holds an Indian passport and is presently residing abroad for more than one year; (39) “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; (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 48; (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 44, and registered as such, for the purposes specified in that section; (42) “orphan” means a child— (i) who is without biological or adoptive parents or legal guardian; or (ii) whose legal guardian is not willing to take, or capable of taking care of the child; (43) “overseas citizen of India” means a person 57 of 1955. registered as such under the Citizenship Act, 1955; (44) “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; (45) “petty offences” includes the offences for which 45 of 1860. the maximum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment up to three years; 80

(46) “place of safety” 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; (47) “prescribed” means prescribed by rules made under this Act; (48) “probation officer” means an officer appointed by the State Government as a probation officer under the Probation of Offenders Act, 1958 or the Legal-cum-Probation 20 of 1958. Officer appointed by the State Government under District Child Protection Unit; (49) “prospective adoptive parents” means a person or persons eligible to adopt a child as per the provision of section 58; (50) “public place” shall have the same meaning assigned to it in the Immoral Traffic (Prevention) Act, 1956; 104 of 1956. (51) “registered”, with reference to child care institutions or agencies or facilities managed by the State Government, or a voluntary or non-governmental organisation, means observation homes, special homes, place of safety, children’s homes, open shelters or specialised adoption agency or fit facility or any other institution that may come up in response to a particular need or agencies or facilities authorised and registered under section 42, for providing residential care to children, on a short-term or long-term basis; (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; (53) “State Agency” means the State Adoption Resource Agency set up by the State Government for dealing with adoption and related matters under section 68; (54) “serious offences” includes the offences for which the punishment under the Indian Penal Code or any other law 45 of 1860. for the time being in force, is imprisonment between three to seven years; (55) “special juvenile police unit” 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 108; 81

(56) “special home” means an institution established by a State Government or by a voluntary or non-governmental organisation, registered under section 49, 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; (57) “Specialised Adoption Agency” means an institution established by the State Government or by a voluntary or non-governmental organisation and recognised under section 66, for housing orphans, abandoned and surrendered children, placed there by order of the Committee, for the purpose of adoption; (58) “sponsorship” means provision of supplementary support, financial or otherwise, to the families to meet the medical, educational and developmental needs of the child; (59) “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; (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; (61) 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.

CHAPTER II

GENERAL PRINCIPLES OF CARE AND PROTECTION OF CHILDREN

3. The Central Government, the State Governments, the General Board, and other agencies, as the case may be, while implementing principles to be followed in the provisions of this Act shall be guided by the following administration fundamental principles, namely:–– of Act. (i) 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 eighteen years. (ii) Principle of dignity and worth: All human beings shall be treated with equal dignity and rights. (iii) Principle of participation: 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. 82

(iv) 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. (v) 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. (vi) 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. (vii) 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. (viii) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the processes pertaining to a child. (ix) 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. (x) Principle of equality and non-discrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability or offence committed, and equality of access, opportunity and treatment shall be provided to every child. (xi) 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. (xii) 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. (xiii) 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. 83

(xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances. (xv) 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. (xvi) 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.

CHAPTER-III

JUVENILE JUSTICE BOARD

4. (1) Notwithstanding anything contained in the Code of Juvenile Justice 2 of 1974. Criminal Procedure, 1973, the State Government shall, constitute for Board. 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 the First Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal Magistrate) with at least three years of experience and two social workers from two different reputed non-governmental organisations 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 2 of 1974. Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the 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 atleast 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; 84

(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 sixty 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.

Placement of 5. Where an inquiry has been initiated in respect of any child person, who under this Act, and during the course of such inquiry, the child ceases to be a child during the completes the age of eighteen years, then, notwithstanding anything process of contained in this Act or in any other law for the time being in force, inquiry. 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.

Placement of 6. (1) Any person, who has completed eighteen years of age, persons, who but is below twenty-one years of age and is apprehended for committed an offence, when committing an offence when he was below the age of eighteen the person was years, then, such person shall, subject to the provisions of this below the age section, be treated as a child during the process of inquiry. of eighteen years. (2) The person referred 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.

Placement of a 7. Any person, who is apprehended after completing the age person above the age of twenty- of twenty-one years, for committing any serious or heinous offence one years for when such person was between the age of sixteen to eighteen years, committing any then he shall, subject to the provisions of this Act, be tried as an offence when he was a child. adult. 85

8. (1) The Board shall meet at such times and shall observe Procedure in relation to such rules in regard to the transaction of business at its meetings, Board. 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 atleast 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 19. (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.

9. (1) Notwithstanding anything contained in any other law Powers, for the time being in force but save as otherwise expressly provided functions and responsibilities in this Act, the Board constituted for any district shall have the of the Board. 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. (2) 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 20 or in appeal, revision or otherwise. (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; 86

(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 fifteen 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 15; (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, hereby 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; (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.

Procedure to be 10. (1) When a magistrate, not empowered to exercise the followed by a powers of the Board under this Act is of the opinion that the person Magistrate who has not been alleged to have committed the offence and brought before him is a empowered child, he shall, without any delay, record such opinion and forward under this Act. the child immediately along with the record of such proceedings to the Board having jurisdiction. 87

(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 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) Subject to provisions of section 7, 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.

CHAPTER IV

PROCEDURE IN RELATION TO CHILDREN IN CONFLICT WITH LAW

11. (1) As soon as a child alleged to be in conflict with law Apprehension is apprehended by the police, such child shall be placed under the of child alleged to be charge of the special juvenile police unit or the designated child in conflict welfare police officer, who shall produce the child before the Board with law. 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,— (i) 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. 88

Role of 12. Any person in whose charge a child in conflict with law person in whose charge is placed, shall while the order is in force, have responsibility of the child in said child, as if the said person was the child’s parent and conflict with responsible for the child’s maintenance: law is placed. 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.

Bail to a 13. (1) When any person, who is apparently a child and is person who is alleged to have committed a bailable or non-bailable offence, is apparently a child alleged apprehended or detained by the police or appears or brought before to be in a Board, such person shall, notwithstanding anything contained in conflict with the Code of Criminal Procedure, 1973 or in any other law for the 2 of 1974. law. 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.

Information 14. (1) Where a child alleged to be in conflict with law is to parents, apprehended, the officer designated as Child Welfare Police Officer guardian or Probation of the police station, or the special juvenile police unit to which Officer. 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 89

(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.

15. (1) Where a child alleged to be in conflict with law is Inquiry by produced before Board, the Board shall hold an inquiry in Board regarding accordance with the provisions of this Act and may pass such child in orders in relation to such child as it deems fit under sections 18 and conflict with 19 of this Act. law. (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 inquiry in case of heinous offences under section 16 shall be disposed of by the Board within a period of one month from the date of first production of the child before the Board. (4) If inquiry by the Board under sub-section (2) for petty or serious offences remains inconclusive even after the extended period, the proceedings shall stand terminated: Provided that for 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; 90

(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 16.

Preliminary 16. (1) In case of a heinous offence committed by a child Inquiry into who has completed or is above the age of sixteen years, the Board heinous offences by the Board. shall conduct a preliminary inquiry 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 committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 19: Provided that for such an inquiry, the Board may take the assistance of experienced psychologists, psycho-social workers and other experts. (2) Where the Board is satisfied on preliminary inquiry 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 inquiry under this section shall be completed within the period specified in section 15.

Review of 17. (1) The Chief Judicial Magistrate or the Chief pendency of Metropolitan Magistrate shall review the pendency of cases of the Inquiry. 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. (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. 91

(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.

18. (1) Where a Board is satisfied on inquiry that the child Orders brought before it has not committed any offence, then regarding a child not notwithstanding anything contrary contained in any other law for the found to be in time being in force, the Board shall pass order to that effect. conflict with law. (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.

19. (1) Where a Board is satisfied on inquiry that a child Orders irrespective of age has committed a petty offence, or a serious regarding child found to offence, or a child below the age of sixteen years has committed a be in conflict heinous offence, then, notwithstanding anything contrary contained with law. 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; 92

(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. (2) If an order is passed under clauses (a) to (g) of sub- section (1), the Board may, in addition pass orders to— (i) attend school; or (ii) attend a vocational training centre; or (iii) attend a therapeutic centre; or (iv) prohibit the child from visiting, frequenting or appearing at a specified place; or (v) undergo a de-addiction programme. (3) Where the Board after preliminary inquiry under section 16 comes to the conclusion that there is a need for further 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.

Powers of 20. (1) After the receipt of preliminary inquiry from the Board Children’s under section 16, the Children´s Court may decide that— Court. (i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 2 of 1974. and pass appropriate orders after trial subject to the provisions of this section and section 22; or (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: 93

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.

21. (1) When the child in conflict with the law attains the age Child attained of twenty-one years and is yet to complete the term of stay, the age of twenty-one Children´s Court shall provide for a follow up by the probation years and yet officer or the District Child Protection Unit or a social worker or to complete by itself, as required, to evaluate if such child has undergone prescribed term of stay reformative changes and if the child can be a contributing member in place of of the society and for this purpose the progress records of the child safety. under sub-section (4) of section 20, 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.

22. No child in conflict with law shall be sentenced to death Order that may or for life imprisonment without the possibility of release, for any not be passed against a child such offence, either under the provisions of this Act or under the in conflict with 45 of 1860. provisions of the Indian Penal Code or any other law for this time law. being in force.

23. Notwithstanding anything to the contrary contained in the Proceeding 2 of 1974. Code of Criminal Procedure, 1973, or any preventive detention law under Chapter VIII of the for the time being in force, no proceeding shall be instituted and no Code of order shall be passed against any child under Chapter VIII of the Criminal said Code. Procedure not to apply against child. 94

No joint 24. (1) Notwithstanding anything contained in section 223 of proceedings of child in the Code of Criminal Procedure, 1973 or in any other law for the 2 of 1974. conflict with time being in force, there shall be no joint proceedings of a child law and alleged to be in conflict with law, with a person who is not a child. person 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.

Removal of 25. (1) Notwithstanding anything contained in any other law disqualification for the time being in force, a child who has committed an offence on the findings of 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. (2) The Board shall make an order directing the Police or the Children’s Court and 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. (3) In case of a heinous offence when such a case is transferred to a Children’s Court under section 19, the Children’s Court shall keep the record of the child only when the child is sent to a jail.

Special 26. Notwithstanding anything contained in this Act, all provision in proceedings in respect of a child alleged or found to be in conflict respect of pending cases. 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.

Provision 27. (1) Notwithstanding anything to the contrary contained in with respect any other law for the time being in force, any police officer may of run away child in take charge of a child in conflict with law who has run away from conflict with a special home or an observation home or a place of safety or from law. 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 twenty four 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. 95

(4) No additional proceeding shall be instituted in respect of such child.

CHAPTER V

CHILD WELFARE COMMITTEE

28. (1) The State Government shall by notification in the Child Welfare Official Gazette constitute for every district, one or more Child Committee. 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 atleast one shall be a woman and another, an expert on the matters concerning children. (3) The District Child Protection Unit shall be provide with a Secretary and other staff that may be required for secretarial support to the Committee for its effective functioning by the State Government. (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 atleast 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. 96

(9) The Committee shall function as a Bench and shall have the powers conferred by the Code of Criminal Procedure, 1973 on 2 of 1974. a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the 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.

Procedure in 29. (1) The Committee shall meet at least twenty days in a relation to month and shall observe such rules and procedures with regard to Committee. the transaction of business at its meetings, as may be prescribed. (2) A visit to an existing child care institution by the Committee, to check its functioning and well being 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 atleast three members present at the time of final disposal of the case.

Powers of the 30. (1) The Committee shall have the authority to dispose of Committee. 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.

Functions and 31. The functions and responsibilities of the Committee shall responsibilities include— of the Committee. (i) taking cognizance of and receiving the children produced before it; 97

(ii) conducting inquiry on all issues relating to and affecting the safety and wellbeing 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 atleast 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; (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 moto 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 atleast 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 32 of 2012. Children from Sexual Offences Act, 2012; (xiv) dealing with cases referred by the Board under sub-section (2) of section 18; 98

(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.

CHAPTER VI

PROCEDURE IN RELATION TO CHILDREN IN NEED OF CARE AND PROTECTION

Production 32. (1) Any child in need of care and protection may be before produced before the Committee by any of the following persons, Committee. 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: Provided that the child shall be produced before the Committee without any loss of time but within a period of twenty- four hours excluding the time necessary for the journey. (2) 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 shelter home or fit facility or fit person, as the case may be, during the period of the inquiry. 99

33. (1) Any individual or a police officer or any functionary Mandatory reporting of any organisation or a nursing home or hospital or maternity regarding a home, who or which finds and takes charge, or is handed over a child found child who appears or claims to be abandoned or lost, or a child who separated from appears or claims to be an orphan without family support, shall guardian. 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.

34. If information regarding a child as required under Offence of section 33 is not given within the period specified in the said non-reporting. section, then, such act shall be regarded as an offence.

35. Any person who has committed an offence under Penalty for section 34 shall be liable to imprisonment up to six months or fine non-reporting. of ten thousand rupees or both.

36. (1) A parent or guardian, who for physical, emotional and Surrender of social factors beyond their control, wishes to surrender a child, children. 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 one month 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.

37. (1) On production of a child or receipt of a report under Inquiry. section 32, 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 32, may pass an order to send the child to the children’s home or shelter 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. 100

(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 39. (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.

Orders passed 38. The Committee on being satisfied through the inquiry that regarding a the child before the Committee is a child in need of care and child in need of care and protection, may, on consideration of Social Investigation Report protection. 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; 101

(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 45; (f) sponsorship orders under section 46; (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 39. (2) The Committee may also pass orders for — (i) declaration of fit persons for foster care; (ii) getting one time after care support under section 47 of the Act; or (iii) any other order related to any other function as may be prescribed.

39. (1) In case of orphan and abandoned child, the Committee Procedure for shall make all efforts for tracing the parents or guardians of the declaring a child legally child and on completion of such inquiry, if it is established that the free for child is either an orphan having no one to take care, or abandoned, adoption. 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: 102

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 36, 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 atleast three members of the Committee. (5) The Committee shall inform the State Agency and Central 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.

CHAPTER VII

REHABILITATION AND SOCIAL RE-INTEGRATION

Process of 40. (1) The process of rehabilitation and social integration of rehabilitation children under this Act shall be undertaken, based on the individual and social re- integration. 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. 103

(3) The children in need of care and protection who are leaving institutional care or children in conflict with law leaving special homes on attaining eighteen years of age, may be provided financial support as specified in section 47, to help them to re- integrate into the mainstream of the society.

41. (1) The restoration and protection of a child shall be the Restoration prime objective of any children’s home, Specialised Adoption Agency of child in need of care or open shelter. and protection. (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.

42. (1) Notwithstanding anything contained in any other law Registration for the time being in force, all institutions, whether run by a State of child care institutions. 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 56 of 2000. 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 Shelter Home, or 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. 104

(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. (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 54 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 55, 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.

Penalty for 43. Any person, or persons, in-charge of an institution non- housing children in need of care and protection and children in registration of child care conflict with law, who fails to comply with the provisions of sub- institutions. section (1) of section 42, shall be punished with imprisonment which may extend to one year or a fine of not less than one lakh rupees or both: 105

Provided that every thirty days delay in applying for registration shall be considered as a separate offence.

44. (1) The State Government may establish and maintain, by Open shelter. 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.

45. (1) The children in need of care and protection may be Foster care. 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. (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 well being 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 therefor; 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 well being of the child in such manner, as may be prescribed. 106

(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.

Sponsorship. 46. (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,— (i) where mother is a widow or divorced or abandoned by family; (ii) where children are orphan and are living with the extended family; (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.

After care of 47. Any child leaving a child care institution on completion of children eighteen years of age may be provided with a one-time financial leaving Child care support in order to facilitate child’s reintegration into the mainstream Institution. of the society in the manner as may be prescribed.

Observation 48. (1) The State Government shall establish and maintain in Homes. 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 42 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. 107

(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.

49. (1) The State Government may establish and maintain Special either by itself or through voluntary or non-governmental Homes. 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 19. (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. (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.

50. (1) The State Government shall set up atleast one place Place of of safety in a State registered under section 42, so as to place a Safety. 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. 108

Children’s 51. (1) The State Government may establish and maintain, in Home. 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.

Fit facility. 52. (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.

Fit person. 53. (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.

Rehabilitation 54. (1) The services that shall be provided, by the institutions and re- registered under this Act in the process of rehabilitation and re- integration services in integration of children, shall be in such manner as may be institutions prescribed, which may include— registered under this Act and (i) basic requirements such as food, shelter, clothing management thereof. 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: 109

Provided that for children between the age of six to fourteen years, the provisions of the Right of Children to Free 35 of 2009. 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; (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. (2) 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. (3) 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.

55. (1) The State Government shall appoint inspection Inspection of committees for the State and district, as the case may be, for all institutions registered under institutions registered or recognised to be fit under this Act for such this Act. 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, atleast once in three months in a team of not less than three members, of whom atleast one shall be a woman and one 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. 110

Evaluation of 56. (1) The Central Government or State Government may functioning of independently evaluate the functioning of the Board, Committee, structures. 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.

CHAPTER VIII

ADOPTION

Adoption. 57. (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. 78 of 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 sub-section (1) of section 81.

Eligibility of 58. (1) The prospective adoptive parents shall be physically prospective fit, financially sound, mentally alert and highly motivated to adopt a adoptive parents. 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 fulfilment 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.

Procedure for 59. (1) Indian prospective adoptive parents living in India, adoption by Indian irrespective of their religion, if interested to adopt an orphan or prospective abandoned or surrendered child, may apply for the same to a adoptive specialised adoption agency, in the manner as provided in the parents living in India. adoption regulations framed by the Authority. 111

(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.

60. (1) If an orphan or abandoned or surrendered child could Procedure for not be placed with an Indian or non-resident Indian prospective inter-country adoption of an adoptive parent despite the joint effort of the specialised adoption orphan or agency and State Agency within thirty days from the date the child abandoned or has been declared legally free for adoption, such child shall be free surrendered for inter-country adoption. child. (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. (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. 112

(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.

Procedure for 61. (1) A relative living abroad, who intends to adopt a child inter-country from his relative in India shall obtain an order from the court and relative adoption. 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. 113

62. (1) Before issuing an adoption order, the court shall Court procedure satisfy itself that –– and penalty against payment in consideration (a) the adoption is for the welfare of the child; (b) due of adoption. consideration is given to the wishes of the child having regard to the age and understanding of the child; and (c) that neither the prospective adoptive parents has 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.

63. (1) The documentation and other procedural requirements, Additional not expressly provided in this Act with regard to the adoption of an procedural requirements orphan, abandoned and surrendered child by Indian prospective and adoptive parents living in India, or by non-resident Indian or documentation. 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.

64. A child in respect of whom an adoption order is issued Effect of by the court, shall become the child of the adoptive parents, and the adoption. 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.

65. Notwithstanding anything contained in any other law for Reporting of the time being in force, information regarding all adoption orders adoption. 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. 114

Specialised 66. (1) The State Government shall recognise one or more Adoption Agencies. 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.

Adoption of 67. (1) All the institutions registered under this Act, which children may not have been recognised as Specialised Adoption Agencies, residing in institutions shall also ensure that all orphan or abandoned or surrendered not registered children under their care are reported, produced and declared legally as adoption free for adoption, by the Committee as per the provisions of agencies. section 39. (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.

State 68. (1) The State Government shall set up a State Adoption Adoption Resource Agency for dealing with adoptions and related matters in Resource Agency. the State under the guidance of Authority. (2) The State Agency, wherever already exists, shall be deemed to be set up under this Act. 115

69. The Central Adoption Resource Agency existing before the Central commencement of this Act, shall be deemed to have been Adoption Resource constituted as the Central Adoption Resource Authority under this Authority. 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; (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.

70. (1) The Authority shall have a Steering Committee with Steering following members: Committee of Authority. (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; 116

(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 its headquarter and through its regional offices as may be set up as per its functional necessity.

Powers of 71. (1) For the efficient performance of its functions, Authority. Authority shall have the following powers, namely:— (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. 2 of 1974. (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.

Annual Report 72. (1) The Authority shall submit an annual report to the of Authority. 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.

Grants by 73. (1) The Central Government shall, after due appropriation Central made by Parliament by law in this behalf, pay to the Authority by Government. 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. 117

(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).

74. (1) The Authority shall maintain proper accounts and Accounts and other relevant records and prepare an annual statement of accounts audit of in such form as may be prescribed by the Central Government in Authority. 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 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.

CHAPTER IX

OTHER OFFENCES AGAINST CHILDREN

75. (1) No report in any newspaper, magazine, news-sheet or Prohibition on audio-visual media or other forms of communication regarding any disclosure of identity of inquiry or investigation or judicial procedure, shall disclose the children. 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 off. 118

(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.

Punishment 76. Whoever, having the actual charge of, or control over, a for cruelty child, assaults, abandons, abuses, exposes or wilfully neglects the to child. 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 rupees or with both: Provided 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 further 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 lakhs rupees.

Employment 77. (1) Whoever employs or uses any child for the purpose of child for of begging or causes any child to beg shall be punishable with begging. 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. (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.

Penalty for 78. Whoever gives, or causes to be given, to any child any giving intoxicating liquor or any narcotic drug or tobacco products or intoxicating liquor or psychotropic substance, except on the order of a duly qualified narcotic drug or medical practitioner, shall be punishable with rigorous imprisonment psychotropic substance to a for a term which may extend to seven years and shall also be liable child. to a fine which may extend up to one lakh rupees. 119

79. Whoever uses a child, for vending, peddling, carrying, Using a child for vending, supplying or smuggling any intoxicating liquor, narcotic drug or peddling, psychotropic substance, shall be liable for rigorous imprisonment carrying, for a term which may extend to seven years and shall also be liable supplying or smuggling any to a fine up to one lakh rupees. intoxicating liquor, narcotic drug or psychotropic substance.

80. Notwithstanding anything contained in any law for the Exploitation of time being in force, whoever ostensibly engages a child and keeps a child employee. 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 one lakh rupees.

Explanation.–– For the purposes of this sub-section, the term “employment” shall also include selling goods and services, and entertainment in public places for economic gain.

81. If any person or organisation offers or gives or receives, Punitive any orphan, abandoned or surrendered child, for the purpose of measures for adoption adoption without following the provisions or procedures as provided without in this Act, such person or organisation shall be punishable with following imprisonment of either description for a term which may extend prescribed procedures. upto three years, or with fine of one lakh rupees, 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 42 and its recognition under section 66 shall also be withdrawn for a minimum period of one year.

82. Any person who sells or buys a child for any purpose Sale and shall be punishable with rigorous imprisonment for a term which procurement of children may extend to five years and shall also be liable to fine of one lakh for any rupees: purpose.

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.

83. (1) Any person in-charge of or employed in a child care Corporal institution, who subjects a child to corporal punishment with the aim punishment. of disciplining the child, shall be liable, on the first conviction, to a fine of ten thousand rupees and for every subsequent offence, shall be liable for imprisonment which may extend to three months or fine or with both. 120

(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 one lakh rupees.

Use of child 84. (1) Any non-State, self-styled militant group or outfit by militant declared as such by the Central Government, if recruits or uses any groups or other adults. 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 five lakh rupees. (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 five lakh rupees.

Kidnapping 85. For the purposes of this Act, the provisions of and abduction sections 359 to 369 of the Indian Penal Code, shall mutatis 45 of 1860. of child. mutandis apply to a child or a minor who is under the age of eighteen years and all the provisions shall be construed accordingly.

Offences 86. Whoever commits any of the offences referred to in this committed Chapter on any child who is disabled as so certified by a medical on disabled children. practitioner, then, such person shall be liable to twice the penalty provided for such offence. Explanation.— For the purpose 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. 1 of 1966.

Classification 87. (1) Where an offence under this Act is punishable with of offences imprisonment for a term more than seven years, then, such offence and designated court. shall be cognizable, 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 cognizable, non- bailable and triable by a Magistrate of the 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-cognizable, bailable and triable by any Magistrate.

Abetment. 88. 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. 121

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.

89. Where an act or omission constitutes an offence Alternative punishable under this Act and also under any other law for the time punishment. 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.

90. Any child who commits any offence under this Chapter Offence shall be considered as a child in conflict with law under this Act. committed by child under this Chapter. CHAPTER X

MISCELLANEOUS

91. The Committee or the Board, as the case may be, before Attendance which a child is brought under any of the provisions of this Act, of parent or guardian of may, whenever it so thinks fit, require any parent or guardian child. having the actual charge of the child to be present at any proceeding in respect of that child.

92. (1) If, at any stage during the course of an inquiry, the Dispensing Committee or the Board is satisfied that the attendance of the child is with attendance of not essential for the purpose of inquiry, the Committee or the Board, child. 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.

93. When a child, who has been brought before the Placement of a Committee or the Board, is found to be suffering from a disease child suffering from disease requiring prolonged medical treatment or physical or mental requiring complaint that will respond to treatment, the Committee or the prolonged Board, as the case may be, may send the child to any place medical treatment in recognised as a fit facility as prescribed for such period as it may an approved think necessary for the required treatment. place.

94. (1) Where it appears to the Committee or the Board that any Transfer of a child kept in a special home or an observation home or a children’s child who is mentally ill or home or a shelter home or in an institution in pursuance of the addicted to provisions of this Act, is a mentally ill person or addicted to alcohol or alcohol or other drugs which lead to behavioural changes in a person, the other drugs. Committee or the Board, may order removal of such child to a psychiatric hospital or psychiatric nursing home in accordance with the 14 of 1987. provisions of the Mental Health Act, 1987 or the rules made thereunder. 122

(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; 14 of 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. 14 of 1987.

Presumption 95. (1) Where, it is obvious to the Committee or the Board, and based on the appearance of the person brought before it under any determination of age. 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 15 or section 37, as the case may be, without waiting for further confirmation of the 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 — (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: 123

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.

96. (1) If during the inquiry it is found that a child hails from Transfer of a a place outside the jurisdiction, the Board or Committee, as the case child to place of residence. 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 reintegration, as provided in this Act.

97. (1) The State Government may at any time, on the Transfer of recommendation of a Committee or Board, as the case may be, child between children’s notwithstanding anything contained in this Act, and keeping the best homes, or interest of the child in mind, order the child’s transfer from any special homes children’s home or special home or fit facility or fit person, to a or fit facility or fit person home or facility, within the State with prior intimation to the in different concerned Committee or the Board: parts of India. 124

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-section (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.

Release of a 98. (1) When a child is kept in a children’s home or special child from an home, on a report of a probation officer or social worker or of institution. 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 fulfil 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.

Leave of 99. (1) The Committee or the Board, as the case may be, may absence to a permit leave of absence to any child, to allow him, on special child placed in an occasions like examination, marriage of relatives, death of kith or institution. 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. 125

(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.

100. (1) All reports related to the child and considered by the Reports to be Committee or the Board shall be treated as confidential: 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. (2) Notwithstanding anything contained in this Act, the victim shall not be denied access to their case record, orders and relevant papers.

101. No suit, prosecution or other legal proceeding shall lie Protection of against the Central Government, or the State Government or any action taken in good faith. 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.

102. (1) Subject to the provisions of this Act, any person Appeals. 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) 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; 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. 126

(3) No second appeal shall lie from any order of the Court of Session, passed in appeal under this section. (4) 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. 2 of 1974.

Revision. 103. 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.

Procedure in 104. (1) Save as otherwise expressly provided by this Act, a inquiries, Committee or a Board while holding any inquiry under any of the appeals and revision provisions of this Act, shall follow such procedure as may be proceedings. prescribed and subject thereto, shall follow, as far as may be, the procedure laid down in the Code of Criminal Procedure, 1973 for 2 of 1974. 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.

Power of the 105. (1) Without prejudice to the provisions for appeal and Committee or revision contained in this Act, the Committee or the Board may, on the Board to amend its own an application received in this behalf, amend any orders passed by orders. 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.

Juvenile Justice 106. (1) The State Government may create a fund in such Fund. name as it thinks fit for the welfare and rehabilitation of the children dealt with under this Act. 127

(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.

107. Every State Government shall constitute a Child State Child Protection Society for the State and Child Protection Unit for every Protection Society and District, consisting of such officers and other employees as may be District Child appointed by that Government, to take up matters relating to Protection children with a view to ensure the implementation of this Act, Unit. 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.

108. (1) In every police station, at least one officer, not Child Welfare below the rank of assistant sub-inspector, with aptitude, appropriate Police Officer and Special training and orientation may be designated as the child welfare Juvenile Police police officer to exclusively deal with children either as victims or Unit. 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.

109. (1) The State Government shall, by notification in the Power to make Official Gazette, make rules to carry out the purposes of this Act: rules. 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 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. 128

(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 (6) 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 8; (vii) qualifications, experience and payment of fees of an interpreter or translator under clause (d) of sub-section (3) of section 9; (viii) any other function of the Board under clause (n) of sub-section (3) of section 9; (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 11; (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 13; (xi) format for information on pendency in the Board to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate and District magistrate on quarterly bases under sub-section (3) of section 17; (xii) monitoring procedures and list of monitoring authorities under sub-section (2) of section 21; (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 25; (xiv) qualifications of the members of the Child Welfare Committee under sub-section (5) of section 28; 129

(xv) rules and procedures with regard to transaction of business at the meetings of the Child Welfare Committee under sub-section (1) of section 29; (xvi) process of restoration of abandoned or lost children to their families under clause (x) of section 31; (xvii) manner of submitting the report to the Committee and the manner of sending and entrusting the child to children’s home or shelter home or fit facility or fit person under sub-section (2) of section 32; (xviii) manner of holding an inquiry by the Child Welfare Committee under sub-section (1) of section 37; (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 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 37; (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 37; (xxi) any other order related to any other function of the Committee under clause (iii) of sub-section (2) of section 38; (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 39; (xxiii) manner in which all institutions under this Act shall be registered under sub-section (1) of section 42; (xxiv) procedure for cancelling or withholding registration of an institution that fails to provide rehabilitation and reintegration services under sub-section (7) of section 42; (xxv) manner in which information shall be send every month by the open shelter to the District Child Protection Unit to the Committee under sub-section (3) of section 44; (xxvi) procedure for placing children in foster care including group foster care under sub-section (1) of section 45; (xxvii) procedure for inspection of children in foster care under sub-section (4) of section 45; 130

(xxviii) manner in which foster family shall provide education, health and nutrition to the child under sub- section (6) of section 45; (xxix) procedure and criteria in which foster care services shall be provided to children under sub-section (7) of section 45; (xxx) format for inspection of foster families by the Committee to check the well being of children under sub- section (8) of section 45; (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 46; (xxxii) duration of sponsorship under sub-section (3) of section 46; (xxxiii) manner of providing one time financial support to any child leaving institutional care on completing eighteen years of age under section 47; (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 48; (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 49; (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 51; (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 force, fit to temporarily take the responsibility of a child for a specific purposeafter due inquiry regarding the suitability of the facility and the organisation to take care of the child under sub- section (1) of section 52; (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-section (1) of section 53; 131

(xxxix) manner in which services shall be provided by an institution under this Act for rehabilitation and reintegration of children and standards for basic requirements such as food, shelter, clothing and medical attention under sub- section (1) of section 54; (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 54; (xli) activities that may be taken up by children’s committees under sub-section (3) of section 54; (xlii) appointment of inspection committees for all institutions registered or recognised fit, for the state and district under sub-section (1) of section 55; (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 56; (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 67; (xlv) any other function of the Authority under clause (e) of section 69; (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 70; (xlvii) manner in which Steering Committee of the Authority shall meet under sub-section (4) of section 70; (xlviii) manner in which the Authority shall submit an annual report to the Central Government under sub-section (1) of section 72; (xlix) functions of the Authority under sub-section (2) of section 73; (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 74; (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 93; 132

(lii) procedure for transfer of child under sub- section (1) section 96; (liii) provision for travelling allowance to the escorting staff for the child under sub-section (3) of section 96; (liv) procedure to be followed by the Committee or a Board while holding any inquiry, appeal or revision under sub- section (1) of section 104; (lv) manner in which juvenile justice fund shall be administered under sub-section (3) of section 106; (lvi) functioning of the Child Protection Society for the State and Child Protection Units for every district under section 107; (lvii) 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 thirty 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 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.

Repeal and 110. (1) The Juvenile Justice (Care and Protection of savings. Children) Act, 2000 is hereby repealed. 56 of 2000. (2) 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.

Power to 111. (1) If any difficulty arises in giving effect to the remove provisions of this Act, the Central Government may, by order, not difficulties. 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. 133

STATEMENT OF OBJECTS AND REASONS

Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Articles 39 (e) and (f), 45 and 47 further makes the State responsible for ensuring that all needs of children are met and their basic human rights are protected. 2. The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate measures in case of a child alleged as, or accused of, violating any penal law, including (a) treatment of the child in a manner consistent with the promotion of the child’s sense of dignity and worth (b) reinforcing the child’s respect for the human rights and fundamental freedoms of others (c) taking 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. 3. The Juvenile Justice (Care and Protection of Children) Act was enacted in 2000 to provide for the protection of children. The Act was amended twice in 2006 and 2011 to address gaps in its implementation and make the law more child-friendly. During the course of the implementation of the Act, several issues arose such as increasing incidents of abuse of children in institutions, inadequate facilities, quality of care and rehabilitation measures in Homes, high pendency of cases, delays in adoption due to faulty and incomplete processing, lack of clarity regarding roles, responsibilities and accountability of institutions and, inadequate provisions to counter offences against children such as corporal punishment, sale of children for adoption purposes, etc. have highlighted the need to review the existing law. 4. Further, increasing cases of crimes committed by children in the age group of 16-18 years in recent years makes it evident that the current provisions and system under the Juvenile Justice (Care and Protection of Children) Act, 2000, are ill equipped to tackle child offenders in this age group. The data collected by the National Crime Records Bureau establishes that crimes by children in the age group of 16-18 years have increased especially in certain categories of heinous offences. 5. Numerous changes are required in the existing Juvenile Justice (Care and Protection of Children) Act, 2000 to address the above mentioned issues and therefore, it is proposed to repeal existing Juvenile Justice (Care and Protection of Children) Act, 2000 and re-enact a comprehensive legislation inter alia to provide for general principles of care and protection of children, procedures in case of children in need of care and protection and children in

133 134 conflict with law, rehabilitation and social re-integration measures for such children, adoption of orphan, abandoned and surrendered children, and offences committed against children. This legislation would thus ensure proper care, protection, development, treatment and social re-integration of children in difficult circumstance by adopting a child-friendly approach keeping in view the best interest of the child in mind. 6. The notes on clauses explain in detail the various provisions contained in the Bill. 7. The Bill seeks to achieve the above objectives.

NEW DELHI; MANEKA SANJAY GANDHI The 8th August, 2014. 135

Notes on clauses

Clause 2.—This clause provides for definitions. It defines the various expressions used in the proposed legislation which, inter alia, include the expressions “abandoned child”, “adoption ”, “adoption guidelines”, “administrator”, “aftercare”, “authorised foreign adoption agency”, “begging”, “best interest of child”, “Board”, “Central Adoption Resource Authority”, “Central Authority”, “child”, “child in conflict with law”, “child in need of care and protection”, “child friendly”, “child legally free for adoption”, “open shelter”, “Children’s Home”, “child welfare officer”, “child welfare police officer”, “children’s Court”, “child care institution”, “court”, “committee”, “corporal punishment”, “childline services”,“District child protection unit”, “fit facility”, “fit person”, “foster care”, “foster family”, “guardian”, “group foster care”, “heinous offences”, “inter country adoption”, “juvenile”, “narcotic drug and psychotropic substances”, “no objection certificate”, “Non-resident Indian”, “notification”, “observation home”, “orphan”, “overseas citizen of India”, “person of Indian origin”, “petty offences”, “place of safety”, “prescribed”, “probation officer”, “prospective adoptive parents”, “public place”, “registered”, “relative”, “State Adoption Resource Agency”, “Special Juvenile Police Unit”, “Special Home”, “Specialised Adoption Agency”, “sponsorship”, “State Government”, “surrendered child”. It further provides that words and expressions used but not defined in the proposed legislation but defined in other Acts shall have the meanings respectively assigned to them in those Acts. Clause 3.—This clause provides guidance to the Central Government, the State Governments, the Board, and other agencies, through fundamental principles for the implementation of the provisions of this Act. These fundamental principles are: (i) Principle of presumption of innocence: Any child is to be presumed to be innocent of any mala fide or criminal intent upto the age of eighteen years. (ii) Principle of dignity and worth: All human beings are to be treated as equal in dignity and rights. (iii) Principle of participation: Every child has a right to be heard and to participate in all processes and decisions affecting his interest and the child’s views are be taken into consideration with due regard to the age and maturity of the child. (iv) Principle of best interest: All decisions regarding child are to be based on the primary consideration that they

135 136 are in the best interest of the child and are to help the child to develop his full potential. (v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child is that of the biological family or adoptive or foster parents, as the case may be. (vi) Principle of safety: All measures are to 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. (vii) Positive measures: All resources are to be mobilized 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. (viii) Principle of non-stigmatizing semantics: Adversarial or accusatory words are not to be used in processes pertaining to a child. (ix) Principle of non-waiver of rights: No waiver of rights 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. (x) Principle of equality and non-discrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability, offence committed and equality of access, opportunity and treatment are to be provided to every child. (xi) Principle of right to privacy and confidentiality: The child has a right to protection of his privacy and confidentiality, by all means and throughout the judicial process. (xii) Principle of institutionalisation as a measure of last resort: A child is to be placed in institutional care as a step of last resort after reasonable inquiry. (xiii) Principle of repatriation and restoration: Every child in the juvenile justice system has 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 the Act, unless such restoration and repatriation is not in his best interest. (xiv) Principle of fresh start: All past records of any child under the juvenile justice system should be erased expect in special circumstances. 137

(xv) Principle of diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings is to be promoted unless it is in the best interest of the child or the society as a whole. (xvi) 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. Clause 4.—This clause provides for constitution of one or more Juvenile Justice Boards by the State Government for every district for exercising the powers and discharging the duties conferred or imposed on them in relation to children in conflict with law under this Act. It also provides for the composition of the Board, which shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class (not being Chief Metropolitan Magistrate or Chief Judicial Magistrate) with at least three years of experience and two social workers from two different reputed non- governmental organisations. The selection of the members of the Board shall be done in prescribed manner however; at least one member of the Board shall be a woman. The Board shall be forming a Bench and every Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, a Judicial Magistrate of the first class. It also states that the Magistrate on the Board shall be designated as the Principal Magistrate. It is clarified that no social worker shall be appointed as a member of the Board unless the 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, psychiatry, sociology or law. It is further clarified that 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 he 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; (iv) has ever indulged in child abuse or employment of child labour or any other human rights violations or immoral act. 138

The clause also states that the State Government shall provide for the induction training and sensitisation of all members of the Board including the Principal Magistrate of the Board. The training shall be provided on care, protection, rehabilitation, legal provisions and justice for children, within a period of sixty days from the date of their appointment. Further, the clause also states that the term of office of the members of the Board and the manner in which a member may resign shall be done as may be prescribed. The appointment of any member of the Board, except of that of the Principal Magistrate, may be terminated after holding inquiry, by the State Government, if he –– (i) he has been found guilty of misuse of power vested under this Act; or (ii) fails to attend the proceedings of the Board for consecutive three months without any valid reason; (iii) or fails to attend less than three-fourths of the sittings in a year; or becomes ineligible under sub-section (5) during his term as member. Clause 5.—This clause clarifies that when an inquiry has been initiated in respect of any child under this Act, and during the course of inquiry, if the child completes the age of eighteen years, then, the inquiry may be continued by the Board and orders may be passed in respect of that person as if the person had continued to be a child. Clause 6.—This clause states that if a person, who has completed eighteen years of age but is below twenty one years, is apprehended for committing an offence when he was below the age of eighteen years, then the person shall be treated as a child during the process of inquiry. The Clause further states that if the person is not released on bail by the Board then the person shall be placed in a place of safety during the process of inquiry. If the Board after inquiry comes to the conclusion that the person has committed any offence, then the person shall be placed in a Place of Safety till he completes his term. If the Children’s court after the inquiry comes to the conclusion that the person has committed any heinous offence, then such a person shall be placed in the place of safety till he attains the age of twenty-one years. After completing age of twenty-one years he shall be transferred to the jail meant for adults. Clause 7.—This clause provides that if 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 fried as an adult. 139

Clause 8.—This clause states that the Board shall ensure that all procedures are child friendly and that the venue is not intimidating to the child and does not resemble regular courts. Further, the times at which the Board shall meet and the rules that shall be observed in regard to the transaction of business at its meetings, shall be prescribed. This clause also states when the Board is not sitting, a child in conflict with law may be produced before an individual member of the Board. It also states that a Board may act even in the absence of any member of the Board, and no order passed by the Board shall be invalid in the absence of any member during any stage of proceedings. This clause clarifies that at the time of final disposal of the case or in making an order under sub-section (3) of section 19 at least two members including the Principal Magistrate shall be present and 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. In case there is no majority then the opinion of the Principal Magistrate, shall prevail. Clause 9.—This clause provides the functions and responsibilities of the Board and also states that 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 the Board. The powers conferred on the Board under this Act may also be exercised by the High Court and the Children’s Court, when the proceedings come before them under this section or in appeal, revision or otherwise. 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 fifteen days from the date of first production before the Board to ascertain circumstances in which the alleged offence was committed; 140

(f) adjudicate and dispose of cases of children in conflict with law in accordance with the process of inquiry specified in section 14 of the Act; (g) transferring to the Committee, matters concerning the child alleged to be in conflict with the law, stated to be in need of care and protection at any stage, hereby recognising that a child in conflict with the 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 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, 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, on a written complaint by a Committee in this regard; (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. (n) any other function as may be prescribed. Clause 10.—This clause provides that when a magistrate who is not empowered to exercise the powers of Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child then in such a case the magistrate shall, without any delay, record his opinion and forward the child immediately, and send record of the proceeding, to the Board having jurisdiction over the proceeding. In case a person alleged to have committed an offence claims that he was a child on the date of commission of the offence before a court other than a Board, or is the court itself is of the opinion that the person was a child on the date of commission of the offence, then the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of the person, and shall record 141 a finding on the matter, stating the age of the person as nearly as may be. This clause further clarifies that such a claim can be raised before any court and it shall be recognised at any stage, even after final disposal of the case. Such a claim shall be determined in terms of the provisions contained in this Act and the rules made under the Act even if the person has ceased to be a child on or before the date of commencement of this Act. This clause also states that subject to provisions of section 7 if the court finds that a person has committed an offence and was a child on the date of commission of the offence, it shall forward the child to the Board for passing appropriate orders and the sentence. If any order or sentence is passed by the court, it shall be deemed to have no effect in such case. In case a person under this clause is required to be kept in protective custody, while the person’s claim of being a child is being inquired into, then such person may be placed, in the interim period, in a place of safety. Clause 11.—This clause provides that as soon as a child alleged to be in conflict with law is apprehended by the police, then the child shall be placed under the charge of the special juvenile police unit or the designated child welfare police officer. The special juvenile police unit or the designated child welfare police officer 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 the child was apprehended. This clause clarifies 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. The clause also provides that the State Government shall make rules consistent with this Act,— (i) 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. Clause 12.—This clause provides that any person in whose charge a child in conflict with law is placed, shall while the order is in force, have responsibility of the child, as if the said person was the child’s parent and responsible for the child’s maintenance. This clause further clarifies that the child shall continue to stay in the person’s charge for the period stated by the Board. The person shall continue to have charge of the child even when the 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. Clause 13.—This clause provides that when any person, who is apparently a child and is alleged to have committed a bailable or 142 non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, then 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. This clause also clarifies that the person shall not be released if there appears reasonable grounds for believing that the release is likely to bring this person into association with any known criminal or expose the said person to moral, physical or psychological danger or that the person’s release would defeat the ends of justice. The Board shall record the reasons for denying the bail and circumstances that led to such a decision. This clause also provides when a person having been apprehended is not released on bail under this clause by the officer in-charge of the police station, then the officer shall keep the person in an observation home in such manner as may be prescribed until the person can be brought before a Board. Further, when the person is not released on bail by the Board, it shall make an order sending him to an observation home or a place of safety, during the period of pendency of the inquiry regarding that person, for a period that may be specified in the order. This clause states that when a child in conflict with law is unable to furnish bail within seven days of the bail order, then such child shall be produced before the Board for modification of conditions of bail. Clause 14.—This clause provides that 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. This clause also provides that where a child is released on bail, the probation officer or the Child Welfare Officer shall be informed by the Board. Clause 15.—This clause provides that where a child alleged to be in conflict with law is produced before a Board, then the Board shall hold an inquiry in accordance with the provisions of this Act and may pass orders in relation to the child as it deems fit under 143 clauses 18 and 19 of this Act. This clause further provides that the inquiry under this clause 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. It also provides that a preliminary inquiry shall be conducted by the Board in case of heinous offences under clause 16 and shall be disposed off within a period of one month from the date of first production of the child before the Board. In case of petty or serious offences, if inquiry by the Board remains inconclusive even after the extended period, the proceedings shall stand terminated. This clause also clarifies that for 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 the Chief Metropolitan Magistrate, for reasons to be recorded in writing. This clause provides the following steps to be taken by the Board 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 to be heard and participate in the inquiry; (d) cases of petty offences, shall be disposed off 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 off by the Board, by following the procedure, for trial in summons case under the Code of Criminal Procedure, 1973; (f) inquiry in case of heinous offences,— (i) for child below the age of sixteen years as on the date of commission of an offence shall be disposed off by the Board under clause (e); (ii) for child above the age of sixteen year as on the date of commission of an offence shall be dealt with in the manner prescribed under clause 15. 144

Clause 16.—This clause provides that in case of a heinous offence, committed by a child above the age of sixteen years, the Board shall conduct a preliminary inquiry 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 committed the offence. This clause also provides that the Board may thereafter pass an order in accordance with the provisions of sub-clause (3) of clause 19. This clause also clarifies that the Board may take the assistance of experienced psychologists, psycho-social workers and other experts for such an inquiry. This clause provides that where the Board is satisfied on preliminary inquiry that the matter should be disposed off by the Board, then the Board shall follow the procedure, for trial in summons case under the Code of Criminal Procedure, 1973. It is also clarified that the inquiry under this clause shall be completed within the period specified under clause 15. Clause17.—This clause provides that 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 also recommend the constitution of additional Boards. It also provides that the number of cases pending before the Board, the duration of such pendency, the nature of pendency and reasons thereof shall be reviewed every six months by a high level committee. This Committee shall be chaired by the Executive Chairperson of the State Legal Services Authority, consisting of the Home Secretary, the Secretary responsible for implementation of this Act in the State and a representative from a voluntary or non- governmental organisation to be nominated by the Chairperson. It also provides that 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 a format as may be prescribed by the State Government. Clause 18.—This clause provides that 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. It also provides that in case it appears to the Board that the child referred to in this clause is in need of care and protection, it may refer the child to the Committee with appropriate directions. Clause 19.—This clause provides that where a Board is satisfied on inquiry that a child irrespective of his age has committed a petty offence or a serious offence; or a child is below the age of sixteen years and 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 145 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 may pass any of the following orders— (a) allow the child to go home after advice or admonition 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 a fine: Provided that, in case the child is working, it may be ensured that the provisions of any existing labour laws 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 or a place of safety, as the case may be: Sub-clause (g) further clarifies that for committing a petty offence, the term of stay in a special home or a place of safety, shall not be more than three months. It also clarifies 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 the child to the place of safety. Additionally the clause provides that if an order is passed under clauses (a) to (g), the Board may also pass orders to— (i) attend school; (ii) attend a vocational training centre; 146

(iii) attend a therapeutic centre; (iv) prohibit the child from visiting, frequenting or appearing at a specified place; (v) undergo a de-addiction programme. Further, this clause states that where, the Board after preliminary inquiry under cluase 16 comes to the conclusion that there is a need for further trial of the 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. Clause 20.—This clause provides that after the receipt of preliminary inquiry from the Board under clause 16 of the Act, 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 Code of Criminal Procedure, 1973 and pass appropriate orders after trial subject to provisions of this section and section 22 or; (ii) there is no need for trial of the child as an adult and may conduct an inquiry as Board and pass appropriate orders in accordance with the provisions of sub-sections (1) and (2) of section 18. This clause further states that 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. The Children’s Court shall ensure that the child who is found to be in conflict with the law is sent to a place of safety till he attains the age of twenty one years, thereafter, the person shall be transferred to a jail. It is also clarified 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. The clause states that 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, 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. The reports under this clause shall be forwarded to the Children´s Court for record and follow up. Clause 21.—This clause provides that when a child in conflict with the law attains the age of twenty-one years and is yet to complete the term of his stay, the Children´s Court then shall provide for a follow up by the probation officer or the District Child Protection Unit or a social worker or by itself. The purpose of the follow up is to evaluate if the child has undergone reformative changes and if the child can be a contributing member of the society. 147

The evaluation shall be based on the progress records of the child under sub-clause (4) of clause 20 of this Act, along with evaluation of relevant experts. After the completion of the evaluation, 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 an adult jail. The clause further clarifies that each State Government shall maintain a list of monitoring authorities and monitoring procedures as may be prescribed under the Rules. Clause 22.—This clause provides that 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 under any other law for the time being in force. Clause 23.—This clause provides that despite 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 Code of Criminal Procedure, 1973. Clause 24.—This clause provides that despite anything contained in section 223 of the Code of Criminal Procedure, 1973 or in any other law for the time being in force, no joint proceedings shall be conducted of a child alleged to be in conflict with law with a person, who is not a child. It also provides that if during the inquiry by the Board or by the Children’s Court, the person alleged to be in conflict with law is found to be not a child, then that person shall not be tried along with a child. Clause 25.—This clause provides that despite anything that may be contained in any other law for the time being in force, if a child who has committed an offence and has been dealt with under the provisions of this Act shall not suffer any disqualification attached to a conviction of an offence under any other law. It also provides that the Board shall make an order, in which it will direct the police or the court and its own registry to destroy the relevant records of conviction after the expiry of the period of appeal or a reasonable period, which shall be prescribed under the rules. The clause clarifies that in case of a heinous offence committed by a child and when the case is transferred to a Children’s Court under clause 19 of this Act, the Children’s Court shall keep the record of the child, only when the child is sent to an adult jail. Clause 26.—This clause provides that despite anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law which are pending before any 148

Board or court on the date when this Act comes into force, shall be continued in that Board or court as if this Act has not been passed. Clause 27.—This clause provides that despite anything to the contrary that may be 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. The clause further provides that the police officer shall produce the child within twenty-four hours, preferably before the Board which passed the original order in respect of that child if possible, or the Board nearest to where the child is found. It further provides that the Board shall determine the reasons for the running away of the child and shall 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. It also clarifies that the Board may also give additional directions regarding any special steps that may be necessary, for the best interest of the child. Further the clause states that no additional proceeding shall be instituted in respect of such child. Clause 28.—This clause provides that the State Government shall constitute one or more Child Welfare Committees for every district, for exercising the powers and to discharge the duties conferred on them in relation to children in need of care and protection under this Act. These Committees shall be notified in the Official Gazette and the State Government shall ensure that all members of the committee are provided with induction training and sensitisation within two months from the date of notification. With regard to the composition of the Committee, the clause states that 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 matters concerning children. The District Child Protection Unit shall also provide a Secretary and other staff that may be required for secretarial support to the Committee for its effective functioning. The clause further clarifies that no person shall be appointed as member of the Committee unless he/she has been actively involved in health, education, or welfare activities pertaining to children for atleast 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. It is also clarified that no person shall be appointed as member unless he/she possesses qualifications that may be prescribed under the Rules of this Act and no person shall be appointed as member of the Committee for more than three years. The appointment of any member of the Committee shall be terminated by the State Government, after inquiry, if— 149

(i) he has been found guilty of misuse of power vested 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 for consecutive three months without any valid reason or he fails to attend less than three-fourths of the sittings in a year. The clause provides that a quarterly review of the Committee shall be conducted by the District Magistrate. It also states that the Committee shall function as a Bench of Magistrates and shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, a Judicial Magistrate of the first class. Further, the clause provides that the District Magistrate shall be the grievances authority for the Child Welfare Committee and anyone connected with the child may file a petition before him and he shall consider the same and may pass appropriate orders. Clause 29.—This clause provides that the Committee shall meet at least twenty days in a month and the rules and procedures in regard to the transaction of its business shall be prescribed in the Rules. It is clarified that a visit to an existing child care institution by the Committee, to check its functioning and well being of children shall be considered as sitting of the Committee. The Clause further provides that when the Committee is not in session, a child in need of care and protection may be produced before an individual member of the Committee for placing the child in a Children’s Home or with a fit person. In the event of any difference of opinion among the members of the Committee at the time of any decision, the opinion of the majority shall prevail. In case there is no such majority, then the opinion of the Chairperson shall prevail. It is clarified that the Committee may act, despite the absence of any member and no order made by the Committee shall be invalid for such reason during any stage of the proceeding. It is also clarified that at the time of final disposal order of the case, at least three members shall be present. Clause 30.—This clause provides that 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, and shall also provide for their basic needs and protection. Where a Committee has been constituted for any area, then despite anything contained in any other law for the time being in force, the Committee shall have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection. Clause 31.—This clause provides the functions and responsibilities of the Committee, which include:— 150

(i) taking cognizance of and receiving children produced; (ii) conducting inquiry on all issues relating to and affecting the safety and wellbeing of 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 the decision as well as making all efforts to keep the family together; (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 such decision is taken by atleast 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. 151

(xiv) dealing with cases referred by the Board under sub-section (2) of section 18 of this Act; (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 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. Clause 32.—This clause provides that any child who is 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 labour laws; (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. The clause further clarifies that the child shall be produced before the Committee within twenty-four hours excluding the time necessary for the journey and without any delay. The State Government shall 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 shelter home or fit facility or fit person, during the period of the inquiry. Clause 33.—This clause provides for procedure in case an individual or a police officer or any functionary of any organisation or a nursing home or hospital or maternity home finds and takes charge, or is handed over a child and the child appears or claims to be abandoned or lost, or an orphan without family support. As per this clause, information regarding such child shall be given within twenty-four hours (excluding the time necessary for the 152 journey) by persons listed in this clause to 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. It also provides that the information regarding a child referred to in sub-clause (1) of this clause shall be mandatorily uploaded on a portal specified by the Central Government or the Committee or the District Child Protection Unit or the child care institution, as the case may be. Clause 34.—This clause provides that if information regarding a child as required under clause 33 is not given within the stipulated period, then it shall be regarded as an offence under this Act. Clause 35.—This clause provides that the persons responsible for reporting under clause 34 shall be liable to imprisonment up to six months or fine of rupees 10,000 or both, in case they commit an offence under clause 34. Clause 36.—This clause provides that if parent or guardian of a child, who for physical, emotional and social factors beyond their control, wish to surrender their child then they shall produce the child before the Committee. If, the Committee after prescribed process of inquiry and counselling, is satisfied about the factors then a surrender deed shall be executed by the parent(s) or guardian in the manner prescribed under the Rules. The clause provides that the surrendering parents or guardian, shall be given one month reconsideration time for surrendering the child. In the interim period, the Committee after due inquiry, shall either allow the child to be with his parents or guardians 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 the child is above six years. Clause 37.—This clause provides that the when a child is produced or a report is received by the Committee under clause 32, then the Committee shall hold an inquiry in the prescribed manner under the Rules. The Committee shall either on its own or on the report from any person or agency as mentioned in sub-clause (2) of clause 32, may pass an order to send the child to the children’s home or shelter 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. It is clarified 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. It also provides that the social investigation shall be completed within fifteen days so as to enable the Committee to pass the final order within four months of first production of the child. It is clarified that for orphan, abandoned or surrendered children, the time for completion of inquiry shall be as specified in clause 39. 153

The clause further elaborates that after the completion of the inquiry, if, the Committee is of the opinion that the child has no family or ostensible support or is in continued need of care and protection, then 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, or till the child attains the age of eighteen years. It is again clarified 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 per the Rules under this Act. Under the clause, the Committee is required to submit a quarterly report of the nature of disposal of cases and pendency to the District Magistrate as per the Rules under this Act, for review of pendency of cases every three months by the District Magistrate. After review, the District Magistrate shall direct the Committee to take necessary remedial measures to address pendency, if necessary and send a report of reviews to the State Government. The State Government may cause the constitution of additional Committees, whenever required. It is clarified that in case the pendency still continues to be unaddressed by the Committee even after three months of receiving such directions, the State Government shall terminate the existing Committee and a new Committee shall be constituted in its place. Further the State Government is required to maintain a standing panel of eligible persons to be appointed as members of the Committee, which shall be useful in anticipation of termination of the Committee and no time shall be lost in reconstituting a new Committee. In case of any delay in the constitution of a new Committee under sub-clause (5), in the interim period, the Child Welfare Committee of a nearby district shall assume responsibility. Clause 38.—This clause provides that the Committee after being satisfied through the inquiry that the child brought before it is a child in need of care and protection may pass one or more of the following orders. The Committee shall also consider the Social Investigation Report submitted by Child Welfare Officer and shall take into account the child’s wishes in case the child is sufficiently mature to take a view— (a) declaration of a child as in need of care and protection; (b) restoration of child to the parents or legal 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; 154

(d) placement of the child with “fit person” for long term or temporary care; (e) foster care orders under section 45 of this Act; (f) sponsorship orders under section 46 of this Act; (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 related 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 District Child Protection Unit or State Government and other agencies; (h) declaration of child as legally free for adoption under section 39 of this Act; The clause also provides that the Committee may also pass orders for — (i) declaration of fit persons for foster care; and (ii) getting one time after care support under section 47 of the Act; (iii) any other order related to any other function as may be prescribed. Clause 39.—This clause provides that in case of orphan and abandoned child, the Committee shall make all efforts to trace the child’s parents or guardians. Only after the 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. It is clarified that the declaration by the Committee shall be made within 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. It is further clarified that 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, not withstanding anything contained in this regard in any other law for the time being in force. The clause provides that in case of a surrendered child, the institution where the child has been placed by the Committee, shall bring the case before the Committee, immediately, on completion of the re-consideration period as specified under clause 36, for declaring the child legally free for adoption. Further, in case of a child of a mentally retarded parents or a unwanted child of victim of sexual assault, the child may be declared free for adoption by the Committee, by following the procedure under this Act. 155

It is clarified that the decision to declare an orphan, abandoned and surrendered child as legally free for adoption shall be taken by at least three members of the Committee. The Committee shall every month inform the State Adoption Resource Agency and Central Adoption Resource Authority regarding the number of children declared legally free for adoption and number of cases pending for decision in the manner prescribed under the Rules. Clause 40.—This clause provides the process of rehabilitation and social integration of children under this Act. The process shall be based on the individual care plan of the child, preferably through family based care i.e., by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster-care. It is clarified that all efforts shall be made to keep siblings together when they are placed in institutional or non-institutional care, unless it is in their best interest not to be kept together. For children in conflict with law, the clause states that 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 the child is placed there by orders of the Board. In case of 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. The process of rehabilitation and social integration shall be undertaken wherever the child is so placed by the Committee. Additionally, the clause provides that children in need of care and protection who are leaving institutional care or children in conflict with law leaving special homes on attaining eighteen years of age, may be provided support through aftercare fund under clause 47, to help them to reintegrate into society. Clause 41.—This clause provides that restoration and protection of a child shall be the prime objective of any children’s home, Specialised Adoption Agency or open shelter. The children’s home, specialised adoption agency or an open shelter shall take all necessary steps for the restoration and protection of a child deprived of his family environment temporarily or permanently where the child is under their care and protection. The Committee also has the power to restore any child in need of care and protection to his parent, guardian or fit person, after determining the suitability of the parent or guardian or fit person to take care of the child, and give them suitable directions. Explanation.—For the purposes of this clause “restoration of and protection of a child” means restoration to— (a) parents; (b) adoptive parents; 156

(c) foster parents; (d) guardian; or (e) fit person. Clause 42.—This clause provides that despite anything contained in any other law for the time being in force, all institutions, whether they are run by State Government or run by voluntary or non-governmental organisations, which are meant, either wholly or partially, for housing children in need of care and protection as defined under clause (n) of clause 2 or children in conflict with law, shall, be registered under this Act. The manner of registration shall be prescribed under the Rules and the registration shall be done within a period of six months from the date of commencement of this Act, regardless of whether they are receiving grants from the Government or not. It is clarified 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 be registered under this Act as well. The clause provides that at the time of registration under this clause, the State Government shall determine and record the capacity and purpose of the institution and shall register the institution as a Shelter Home, or Children’s Home or open shelter or Specialised Adoption Agency or Observation Home or Special Home or Place of Safety. On receipt of application for registration under sub-clause (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. The provisional registration shall be granted within one month of the date of application, for a maximum period of six months, in order to bring the institution under the purview of this Act. The State Government shall also determine the capacity of the Home which shall be mentioned in the registration certificate. It is clarified that if the said institution does not fulfil the prescribed criteria for registration, within the stipulated time, the provisional registration shall be cancelled and provisions of sub-clause (5) shall apply. It further states that if the State Government does not issue a provisional registration certificate within one month of date of application, the proof of receipt of application shall be treated as provisional registration to run an organisation for a maximum period of six months. If the application for registration is not disposed of within the stipulated period by any officer or officers of concerned government, it shall be regarded as dereliction of duty on their part by their higher controlling authority and appropriate departmental proceedings shall be instituted. The clause explains that the initial period of registration of an institution shall be for a period of five years, after which, it shall be subject to renewal every five years. The State Government may, 157 after following the procedure prescribed in the Rules, cancel or withhold registration, of an institution which fails to provide rehabilitation and reintegration services. These services shall be as prescribed under clause 54 and till such time that the registration of an institution is renewed or granted. The State Government shall manage the institution. Moreover, any registered child care institution under this clause 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 government or not. It is also clarified that despite anything contained in any other law for the time being in force, the inspection committee set up under clause 55, shall have the powers to inspect any institution housing children, even if not registered under this Act, to determine if such institution is housing children in need of care and protection. Clause 43.—This clause provides that any person, or persons, incharge of an institution housing children in need of care and protection and children in conflict with law, who fails to comply with sub-clause (1) of clause 42, shall be punished with imprisonment which may extend to one year or a fine of not less than one lakh rupees or both. It is clarified that every thirty days delay in applying for registration shall be considered as a separate offence. Clause 44.—This clause provides that the State Government shall establish and maintain, by itself or through voluntary or non- governmental organisations, as many Open Shelters as may be required. These Open Shelters shall be registered as prescribed under the Rules. The Open Shelters referred to in sub-clause (1) shall function as a community based facility for children in need of residential support, on a short term basis, with the objective of protecting them from abuse or weaning them, or keeping them, away from a life on the streets. The Open Shelters are required under the clause to send information every month to the District Child Protection Unit and the Committee regarding children availing services of the shelter. The manner of providing information shall be prescribed under the Rules. Clause 45.—This clause provides that children under this Act may be placed in foster care, including group foster care for their care and protection through orders of the Committee. The procedure in this regard shall be prescribed under the Rules. The foster care means a family which does not include the child’s biological or adoptive parents or an unrelated family recognised as suitable for the purpose by the State Government, for a short or extended period of time. The selection of the foster family shall be based on family’s ability, intent, capacity and prior experience of taking care of children. All efforts shall be made to keep siblings together in foster families, unless it is in their best interest not to be kept together. 158

The clause further provides that based on the number of children, the State Government shall provide monthly funding for foster care through District Child Protection Unit after following the prescribed procedure for inspection to ensure well being of children. It is clarified that in case of children who have parents but are placed in foster care because the parents are unfit or unable to take care of the child, the child’s parents may visit the child in the foster family at regular intervals. The Committee may restrict such visits if it feels that such visits are not in the best interest of the child. The clause clarifies that 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. The foster family shall be responsible for providing education, health and nutrition to the child and shall ensure the overall well being of the child, which shall be prescribed in the Rules. Further, the State Government may make rules for the purpose of defining procedure, criteria and the manner in which foster care services shall be provided for children. Inspection of foster families shall be conducted every month by the Committee in the format as may be prescribed in the Rules to check the well-being of the child. 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 may be deemed fit by the Committee. No child regarded as adoptable by the Committee shall be given for long term foster care. Clause 46.—This clause provides that 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. The clause also provides the criteria for sponsorship which includes: (i) where mother is a widow or divorced or abandoned by family; (ii) where children are orphan and are living with the extended family; (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. The clause states that the duration of sponsorship shall be prescribed under the Rules. 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. Clause 47.—This clause provides that any child leaving a child care institution on completion of eighteen years of age may be provided with a onetime financial support in order to facilitate his reintegration into the society. The manner in which this support shall be provided will be prescribed in the Rules. 159

Clause 48.—This clause provides that the State Government shall establish and maintain observation homes in every district or a group of districts, either by itself, or through voluntary or non- governmental organisations. These Homes shall be registered under clause 42 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. The clause provides that if the State Government is of the opinion that any registered institution other than a home established or maintained under sub-clause (1), is fit for the temporary reception of a 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. The clause also states that the State Government may make Rules for the management and monitoring of observation homes. The Rules shall also cover the standards and various types of services to be provided by observation homes 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. Lastly, the clause states that 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. Due consideration shall be given to physical and mental status of the child and degree of the offence committed. Clause 49.—This clause provides that the State Government may establish and maintain special homes either by itself or through voluntary or non-governmental organisations. These homes shall be registered as per the Rules under the Act. The Special homes shall be established in every district or a group of districts, for rehabilitation of children in conflict with law who are found to have committed an offence and who are placed there by order of the Juvenile Justice Board under clause 19 of this Act. Under the clause, the State Government may make Rules 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. The rules 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 offences committed by them and the child’s mental and physical status. Clause 50.—This clause provides that the State Government shall set up atleast one place of safety in every state. This place of safety shall be registered under clause 42 of this Act for persons 160 above the age of eighteen years or children in conflict with law, who are between the ages of sixteen to eighteen years and are accused or convicted of committing a heinous crime under this Act. The clause further states that each place of safety shall have separate arrangement and facilities for stay of children or persons during the process of inquiry and children or persons convicted of committing an offence. It also states that the State Government may make Rules to prescribe the types of places that can be designated as place of safety under sub-clause (1) and the facilities and services that may be provided by them. Clause 51.—This clause provides that the State Government may establish and maintain, in every district or group of districts children’s homes, either by itself or through voluntary or non- governmental organisations. These Children’s homes shall be registered for the placement of children in need of care and protection for their care, treatment, education, training, development and rehabilitation. Further, the State Government shall designate any children’s home as a home fit for children with special needs delivering specialised services, depending on requirement. The clause further states that the State Government may make rules to 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. Clause 52.—This clause provides that the Board or the Committee shall recognise an organisation as fit whether it is being run by a Governmental Organisation or a voluntary or non- governmental organisation after due inquiry regarding the suitability of the facility. Such fit organisation registered under any law for the time being in force shall temporarily take the responsibility of a child for a specific purpose after due inquiry regarding the suitability of the facility. The clause also states that rules for recognition of such a fit facility may also be made. Under the clause, the Board or the Committee may withdraw the recognition for reasons to be recorded in writing. Clause 53.—This clause provides that 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. The rules may also be prescribed under this clause. Further, the Board or Committee may withdraw the recognition after recording the reasons in writing. Clause 54.—This clause provides that the services to be provided by institutions registered under this Act and the process of rehabilitation and re-integration of children may include— (i) basic requirements such as food, shelter, clothing and medical attention as per the prescribed standards; 161

(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) age appropriate education, including supplementary education, special education, and appropriate education for children with special needs. The sub clause further clarifies that for children between six to fourteen years of age the provisions of the Right of Children to Free and Compulsory Education Act, 2009 shall be followed; (iv) skill development; (v) occupational therapy and life skill education; (vi) mental health interventions, including counselling specific to the need of 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 etc., where required; (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. It is further provided that each institution shall have a Management Committee, set up in a manner as may be prescribed under the rules to manage the institution and monitor the progress of every child. 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. Clause 55.— This clause provides that the State Government shall appoint inspection committees for all institutions registered or recognised fit, under this Act. These inspection committees shall be appointed for the State and districts. The period and purpose of these Committees shall be prescribed in the rules. This clause provides that these inspection committees shall mandatorily conduct visits to all facilities housing children in the 162 area allocated to them. These visits shall be conducted 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 shall be a medical officer. The Inspection Committees shall submit reports of the findings of their visits within a week of visit, to the District Child Protection Units or State Government for further action. 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. Clause 56.—This clause provides that 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. It is further clarified that in case such independent evaluation is conducted by both the Governments, the evaluation by the Central Government shall prevail. Clause 57.— This clause provides that adoption shall be resorted to for ensuring right to family for the orphan, abandoned and surrendered children. Further, the adoption shall be as per the provisions of this Act, the rules and the adoption guidelines. It is clarified that the 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 guidelines. Further, all inter- country adoptions shall be done only as per the provisions of this Act and the adoption guidelines. Lastly, the clause states that 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 sub– clause (1) of clause 80. Clause 58.—This clause provides that the prospective adoptive parents shall have to be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him. In case of a couple, the consent of both the spouses for the adoption shall be required. The clause clarifies that a single or divorced person can also adopt, provided they fulfil the criteria and are found suitable as per the adoption guidelines. It is made clear that a single male is not eligible to adopt a girl child. The clause also provides for any other criteria for prospective adoptive parents that may be specified in the adoption guidelines. Clause 59.—This clause provides that an Indian prospective adoptive parents living in India, irrespective of their religion, if are interested to adopt an orphan or abandoned or surrendered child, then they may apply for the same to a specialised adoption agency and the manner of such adoption shall be provided in the adoption guidelines. The specialised adoption agency shall prepare the home 163 study report of the prospective adoptive parents. After finding them eligible, it will refer the child declared legally free for adoption to them along with the child’s study report and his medical report, in the manner as provided in the adoption guidelines. This clause provides that on the receipt of the acceptance of the child from the prospective adoptive parents along with the child study report and his medical report signed by the prospective adoptive parents, the specialised adoption agency shall give the child in pre-adoption foster care. After giving the child in pre-adoption foster care, the agency shall file an application in the court for obtaining the adoption order, in the manner as provided in the adoption guidelines. This clause provides that on the receipt of a certified copy of the court order, the specialised adoption agency shall send it immediately to the prospective adoptive parents. The progress and well being of the child in the adoptive family shall be followed up and ascertained in the manner as provided in the adoption guidelines. Clause 60.—This clause provides that if an orphan or abandoned or surrendered child could not be placed with an Indian prospective adoptive parent or non-resident Indian despite the joint effort of the specialised adoption agency and State Agency within thirty days from the date the child being declared legally free for adoption, then the child shall be free for inter-country adoption. This clause provides that 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. The Non- resident Indian or overseas citizen of India, or a person of Indian origin or a foreigner, who are prospective adoptive parents living abroad, irrespective of their religion, if they are interested to adopt an orphan or abandoned or surrendered child from India, then they may apply to an authorised foreign adoption agency, or central authority or a concerned Government department in their country of habitual residence, in the manner as provided in the adoption guidelines. Further, the authorised foreign adoption agency, or central authority, or a concerned Government department, 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 guidelines. 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. 164

This clause elaborates that 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 agency. 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 guidelines. 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. The Authority shall intimate about the adoption to the immigration authorities of India and the receiving country of the child. 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. It is clarified that the authorised foreign adoption agency, or central authority, or the concerned government department, 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. This shall be done in consultation with Authority and concerned Indian diplomatic mission, in the manner as provided in the adoption guidelines. Finally, a foreigner or a person of Indian origin or an overseas citizen of India, who has habitual residence in India, if is 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 guidelines. Clause 61.—This clause provides that a relative living abroad, who intends to adopt a child from his relative in India shall obtain an order from the court and may apply for no objection certificate from Authority, in the manner as provided in the adoption guidelines. Authority shall on receipt of the order and the application from either the biological parents or from the adoptive parents, shall issue no objection certificate under intimation to the immigration authority of India and of the receiving country of the child. The adoptive parents shall, after receiving no objection certificate shall 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. Clause 62.—This clause provides that 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 (c) that neither the prospective adoptive parents has given or agreed to give nor the specialised adoption agency or the 165 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 guidelines towards the adoption fees or service charge or child care corpus. Further, 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. Clause 63.—This clause provides that 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 guidelines. This clause also provides that 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. Clause 64.—This clause provides that 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 the 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. It is further clarified that any property which has vested in the adopted child immediately before the date on which the adoption order takes effect shall continue to be vested in the adopted child subject to the obligations, if any attached to the ownership of the property including the obligations, if any, to maintain the relatives in the biological family. Clause 65.—This clause provides that despite 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 guidelines, so as to enable Authority to maintain the data on adoption. Clause 66.—This clause provides that 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 guidelines, for the rehabilitation of orphan, abandoned or surrendered children, through adoption and non- 166 institutional care. It also provides that 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. It is also provided that the State Government shall get every Specialised Adoption Agency inspected at least once in a year and take necessary remedial measures, if required. In case any Specialised Adoption Agency is in default in taking necessary steps on its part as stipulated in this Act or in the adoption guidelines 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 parent(s) or in obtaining adoption order from the court within stipulated time, then such Specialised Adoption Agency shall be punished with a fine which may extend up to fifty thousand rupees. In case of repeated default, the recognition of the Specialised Adoption Agency shall be withdrawn by the State Government. Clause 67.—This clause provides that 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 clause 39. Further, all institutions under sub-clause (1) of this clause 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 prescribed, for the placement of such children in adoption. This clause also states that if any such institution contravenes the provisions of sub-clause (1) or sub-clause (2) of this clause it shall be liable to fine of fifty thousand rupees in 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. Clause 68.—This clause provides that 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. The State Agency, wherever they already exist, shall be deemed to be set up under this Act. Clause 69.—This clause provides that 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: (a) to promote in-country adoptions and to facilitate inter-State adoptions in co-ordination with State Agency; (b) to regulate inter-country adoptions; 167

(c) to frame guidelines on adoption and related matters from time to time as may be necessary; (d) to carry out the functions of the Central Authority under the Hague Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption; (e) any other function that may be prescribed. Clause 70.—This clause provides that 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; (c) Joint Secretary, Ministry of Women and Child Development, Government of India, dealing with Finance; (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. Further, the 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 prescribed under the rules. The clause provides for the functions of the Steering Committee as: (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 power that may be vested with it by the Central Government from time to time. Additionally, the clause states that the Steering Committee shall meet once in a month in the manner as may be prescribed 168 under the rules and Authority shall function from its headquarter and through its regional offices as may be set up as per its functional necessity. Clause 71.—This clause provides that for the efficient performance of its functions, Authority shall have the following powers: (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. Additionally, 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. Clause 72.—This clause provides that Authority shall submit an annual report to the Central Government in the manner as may be prescribed under the rules. The Central Government shall cause the annual report of Authority to be laid before each House of Parliament. Clause 73.—This clause provides that 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. The clause further states that 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-clause (1). Clause 74.—This clause provides that 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. The accounts of Authority shall be audited 169 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 Central Adoption Resource Authority to the Comptroller and Auditor-General. Further, 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. It shall in particular 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. Further, 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 Authority. And finally, 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. Clause 75.—This clause provides that no report in any newspaper, magazine, newssheet 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 of the child 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, under any Act for the time being in force. The picture of any such child shall also not be published. It is clarified that for reasons to be recorded in writing, the Board or Committee, holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child. Further, 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 off. Any person contravening the provisions of sub-clause (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. Clause 76.—This clause provides that whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully 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 then such person shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or both. It is clarified 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 or both. 170

It is further clarified that on account of the aforesaid mentioned 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, then 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 lakhs rupees or both. Clause 77.—This clause provides that 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 or both. It is clarified that for the purpose of begging, if 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 or both. This clause also provides that whoever, having the actual charge of, or control over the child, abets the commission of an offence under sub-clause (1), shall be punishable with the same punishment as provided for in sub-cluase (1) and such person shall be considered to be unfit under clause 2 (n) (v) of this Act. Further, 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. Clause 78.—This clause provides that 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 one lakh rupees or both. Clause 79.—This clause provides that 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 to a fine up to one lakh rupees or both. Clause 80.—This clause provides that despite anything contained in any law for the time being in force, whosoever apparently employs a child for the purpose of employment or keeps him in bondage for the purpose or withholds his earnings or uses such earning for his own purposes, he shall be punishable with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine of one lakh rupees or both. Explanation under this clause states that the term ‘employment’ shall also include selling goods and services, and entertainment in public places for economic gain. 171

Clause 81.—This clause provides that 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, then such person or organisation shall be punishable with imprisonment of either description for a term which may extend upto three years, or with fine of one lakh rupees, or with both. It is clarified that 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 clause 41 and its recognition under clause 65 shall also be withdrawn for a minimum period of one year. Clause 82.—This clause provides that any person who sells or buys or procures 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 one lakh rupees or both. It is further clarified that where such offence is committed by 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. Clause 83.—This clause provides that any person in-charge of or employed in a child care institution subjects a child to corporal punishment by intentionally subjecting a child to physical punishment or mental harassment with the aim of disciplining the child, shall be liable, on the first conviction, to a fine of ten thousand rupees and for every subsequent offence, such person shall be liable for imprisonment which may extend to three months and fine or both. Further, if a person employed in an institution providing services to children, is convicted of an offence under this sub-clause then such person shall also be liable for dismissal from service, and shall also be debarred from working directly with children thereafter. It is also provided under the clause that in case, where any corporal punishment is reported in an institution 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, then 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 one lakh rupees. Clause 84.—This clause provides that any non-State, self- styled militant group or outfit recognised by the 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 five lakh rupees or both. This clause also states that any adult or an adult group who 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 five lakh rupees or both. 172

Clause 85.—This clause provides that for the purposes of this Act, the provisions of clauses 359 to 369 of the Indian Penal Code, shall mutatis mutandis apply to a child or a minor who is under the age of eighteen years and all the provisions shall be construed accordingly. Clause 86.—This clause provides that whoever commits any of the offences referred in Chapter IX 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. The explanation under this clause states that 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. Clause 87.—This clause provides that where an offence under this Act is punishable with imprisonment for a term more than seven years, then, such offence shall be cognizable, non-bailable and triable by a Children’s Court. Also, where is 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 cognizable, non-bailable and triable by a Magistrate of the first class. Lastly, 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-cognizable, bailable and triable by any Magistrate. Clause 88.—This clause provides that whosoever 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. The explanation under this clause states that 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, with constitutes the abetment. Clause 89.—This clause provides that 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. Clause 90.—This clause provides that any child who commits any offence under in this Chapter shall be considered as a child in conflict with law under this Act. Clause 91.—This clause provides that the Committee or the Board, 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. 173

Clause 92.—This clause provides that 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, then the Committee or the Board, shall dispense with the attendance of a child and limit the same for the purpose of recording the statement. Subsequently, the inquiry shall continue even in the absence of the child concerned, unless ordered otherwise by the Committee or the Board. Further, 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. Clause 93.—This clause provides that 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, may send the child to any place recognised as a fit facility as prescribed under the Rules for a period as it may think necessary for the required treatment. Clause 94.—This clause provides that 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 a shelter home or in an institution in pursuance of this Act, is a mentally ill person or addicted to alcohol or other drugs which lead to behavioural changes in a person, then 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. The clause also provides that in case the child had been removed to a psychiatric hospital or psychiatric nursing home under sub-clause (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 the 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). Such removal of the child shall be only for the period required for the inpatient treatment of the child. Explanation under this clause states that: (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; 174

(b) “mentally ill person” shall have the 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 meaning assigned to it in clause (q) of section 2 of the Mental Health Act, 1987. Clause 95.—This clause provides that 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, then the Committee or the Board shall record its observation stating the age of the child as nearly as may be and proceed with the inquiry under clause 14 or cluase 36, without waiting for further confirmation of the age. Further, 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, shall undertake the process of age determination, by seeking evidence by obtaining — (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from an 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. It is further clarified that such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days of first production of the person. Additionally, 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. Clause 96.—This clause provides that if during the inquiry it is found that a child hails from a place outside the jurisdiction of the Board or Committee then the Board or Committee if satisfied after due inquiry that it is in the best interest of the child and also 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 under the Rules. It is also clarified 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. It is further clarified 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. 175

Once the decision to transfer is finalised, the Committee or Board, shall give an escort order to the Special Juvenile Police Unit to escort the child, within fifteen days of receiving such order. It is clarified that a girl child shall be accompanied by a woman officer and further where a Special Juvenile Police Unit is not available, the Committee or Board, 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. It also states in the clause that the State Government shall make rules to provide for travelling allowance to the escorting staff for the child, which shall be paid in advance and the Committee or the Board, on receiving the transferred child will process for restoration or rehabilitation or social reintegration, as laid down under this Act. Clause 97.—This clause provide that the State Government may at any time, on the recommendation of a Committee or Board, despite anything contained in this Act, and keeping the best interest of the child in mind, shall order 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. It is clarified that for transfer of a child between similar home or facility or person within the same district, the Committee or Board, of the said district shall be competent to issue such an order. 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. Further, the total period of stay of the child in a children’s home or a special home shall not be increased by such transfer. Additionally, orders passed under sub- clause (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. Clause 98.—This clause provides that when a child is kept in a children’s home or special home and on a report of a probation officer or social worker or of Government or a voluntary or non- governmental organisation, 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. It is also clarified that if a child who has been released conditionally under this cluase, or the person under whose supervision the child has been placed, fails to fulfil 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. 176

This clause also states that if the child has been released on a temporary basis, the time during which the child is not in the concerned home in pursuance of such permission granted under sub-clause (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. It is also clarified that in case of a child in conflict with law fails to fulfil the conditions set by the Board as mentioned in sub-clause (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. Clause 99.—This clause provides that the Committee or the Board, 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. The period shall generally not exceed seven days in one instance, excluding the time taken in journey. The clause further provides that the time during which a child is absent from an institution where he is placed, in pursuance of such permission granted under this clause, 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. 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. It is clarified 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. Clause 100.—This clause provides that all reports related to the child and considered by the Committee or the Board shall be treated as confidential. Additionally, the Committee or the Board, 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. The clause also provides that despite anything contained in this Act, the victim shall not denied access to their case record, orders and relevant papers. Clause101.—This clause provides that 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, 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 guidelines made thereunder. 177

Clause 102.—This clause provides that 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 Court of Session, except for decisions by the Committee related to Foster Care and Sponsorship After Care for which the appeal shall lie with the District Magistrate. It is clarified that the Court of Sessions, or the District Magistrate, 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. 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; 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. Further, no second appeal shall lie from any order of the Court of Session, passed in appeal under this clause and 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. Clause 103.—This clause provides that the High Court may, at any time, either of 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. It is clarified 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. Clause 104.—This clause provides that 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 trials in summons cases. Further it also states that 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. Clause 105.—This clause provides that without prejudice to the provisions for appeal and revision under 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. It is clarified that during the 178 course of hearing for amending any such orders, there shall be at least two members of the Board out which one shall be the Principal Magistrate and at least three members of the Committee out of which one shall be the Chairperson and all persons concerned, or their authorized representatives, whose views shall be heard by the Committee or the Board before the said orders are amended. It is also added that 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, either on its own motion or on an application received in this behalf. Clause 106.—This clause provides that the State Government may create a fund under such name as it thinks fit for the welfare and rehabilitation of the children dealt with under this Act. There shall be credited to the fund such voluntary donations, contributions or subscriptions as may be made by any individual or organisation. The clause also states that the fund created under sub-clause (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. Clause 107.—This clause provides that every State Government shall constitute a Child Protection Society for the State and Child Protection Units for every District, consisting of officers and 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. The State Government shall also provide for 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 under the Rules. Clause 108.—This clause provides that 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. It further states that 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- clause (1) and two social workers having experience of working in the field of child welfare, of whom one shall be a woman. 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. 179

It is clarified that Special Juvenile Police Unit also includes Railway police dealing with children. Clause 109.—This clause provides that the State Government shall, by notification in the Official Gazette, make rules to carry out the purposes of this Act. It is clarified 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 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. The clause further states that 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 (6) 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 8; (vii) qualifications, experience and payment of fees of an interpreter or translator under clause (d) of sub-section (3) of section 9; (viii) any other function of the Board under clause (n) of sub-section (3) of section 9; (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 11; (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 13; 180

(xi) format for information on pendency in the Board to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate and District magistrate on quarterly bases under sub-section (3) of section 17; (xii) monitoring procedures and list of monitoring authorities under sub-section (2) of section 21; (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 25; (xiv) qualifications of the members of the Child Welfare Committee under sub-section (5) of section 28; (xv) rules and procedures with regard to transaction of business at the meetings of the Child Welfare Committee under sub-section (1) of section 29; (xvi) process of restoration of abandoned or lost children to their families under clause (x) of section 31; (xvii) manner of submitting the report to the Committee and the manner of sending and entrusting the child to children’s home or shelter home or fit facility or fit person under sub-section (2) of section 32; (xviii) manner of holding an inquiry by the Child Welfare Committee under sub-section (1) of section 37; (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 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 37; (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 37; (xxi) any other order related to any other function of the Committee under clause (iii) of sub-section (2) of section 38; (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 39; (xxiii) manner in which all institutions under this Act shall be registered under sub-section (1) of section 42; 181

(xxiv) procedure for cancelling or withholding registration of an institution that fails to provide rehabilitation and reintegration services under sub-section (7) of section 42; (xxv) manner in which information shall be send every month by the open shelter to the District Child Protection Unit to the Committee under sub-section (3) of section 44; (xxvi) procedure for placing children in foster care including group foster care under sub-section (1) of section 45; (xxvii) procedure for inspection of children in foster care under sub-section (4) of section 45; (xxviii) manner in which foster family shall provide education, health and nutrition to the child under sub- section (6) of section 45; (xxix) procedure and criteria in which foster care services shall be provided to children under sub-section (7) of section 45; (xxx) format for inspection of foster families by the Committee to check the well being of children under sub- section (8) of section 45; (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 46; (xxxii) duration of sponsorship under sub-section (3) of section 46; (xxxiii) manner of providing one time financial support to any child leaving institutional care on completing eighteen years of age under section 47; (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 48; (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 49; (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 51; 182

(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 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 52; (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-section (1) of section 53; (xxxix) manner in which services shall be provided by an institution under this Act for rehabilitation and reintegration of children and standards for basic requirements such as food, shelter, clothing and medical attention under sub- section (1) of section 54; (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 54; (xli) activities that may be taken up by children’s committees under sub-section (3) of section 54; (xlii) appointment of inspection committees for all institutions registered or recognised fit, for the state and district under sub-section (1) of section 55; (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 56; (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 67; (xlv) any other function of the Authority under clause (e) of section 69; (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 70; (xlvii) manner in which Steering Committee of the Authority shall meet under sub-section (4) of section 70; 183

(xlviii) manner in which the Authority shall submit an annual report to the Central Government under sub-section (1) of section 72; (xlix) functions of the Authority under sub-section (2) of section 73; (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 74; (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 93; (lii) procedure for transfer of child under sub- section (1) section 96; (liii) provision for travelling allowance to the escorting staff for the child under sub-section (3) of section 96; (liv) procedure to be followed by the Committee or a Board while holding any inquiry, appeal or revision under sub- section (1) of section 104; (lv) manner in which juvenile justice fund shall be administered under sub-section (3) of section 106; (lvi) functioning of the Child Protection Society for the State and Child Protection Units for every district under section 107; (lvii) any other matter which is required to be or may be, prescribed. This clause further states that every rule and 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 thirty 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 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. This clause also provides that every rule made by the State Government made under this clause shall be laid, as soon as may be after it is made, before the State Legislature. 184

Clause 110.—This clause states that of the Juvenile Justice (Care and Protection of Children) Act, 2000 is hereby repealed. It also states that despite 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. Clause 111.—This clause provides that 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. It further clarifies that no such order shall be made after the expiry of the period of two years from the commencement of this Act. However, order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament. 185

MEMORANDUM REGARDING DELEGATED LEGISLATIONS

Sub-clause (1) of clause 110 of the Bill provides that the State Government shall make rules to carry out the purposes of this Act. It also provides that the Central Government may frame model rules, which shall apply to the State mutatis mutandis until the rules in that matter are made by the State Government. 2. Sub-clause (2) provides making rules for all or any of the following matter, 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 (6) 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 8; (vii) qualifications, experience and payment of fees of an interpreter or translator under clause (d) of sub-section (3) of section 9; (viii) any other function of the Board under clause (n) of sub-section (3) of section 9; (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 11; (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 13; (xi) format for information on pendency in the Board to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate and District magistrate on quarterly bases under sub-section (3) of section 17;

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(xii) monitoring procedures and list of monitoring authorities under sub-section (2) of section 21; (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 25; (xiv) qualifications of the members of the Child Welfare Committee under sub-section (5) of section 28; (xv) rules and procedures with regard to transaction of business at the meetings of the Child Welfare Committee under sub-section (1) of section 29; (xvi) process of restoration of abandoned or lost children to their families under clause (x) of section 31; (xvii) manner of submitting the report to the Committee and the manner of sending and entrusting the child to children’s home or shelter home or fit facility or fit person under sub-section (2) of section 32; (xviii) manner of holding an inquiry by the Child Welfare Committee under subsection (1) of section 37; (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 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 37; (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 37; (xxi) any other order related to any other function of the Committee under clause (iii) of sub-section (2) of section 38; (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 39; (xxiii) manner in which all institutions under this Act shall be registered under sub-section (1) of section 42; (xxiv) procedure for cancelling or withholding registration of an institution that fails to provide rehabilitation and reintegration services under sub-section (7) of section 42; 187

(xxv) manner in which information shall be send every month by the open shelter to the District Child Protection Unit to the Committee under sub-section (3) of section 44; (xxvi) procedure for placing children in foster care including group foster care under sub-section (1) of section 45; (xxvii) procedure for inspection of children in foster care under sub-section (4) of section 45; (xxviii) manner in which foster family shall provide education, health and nutrition to the child under sub- section (6) of section 45; (xxix) procedure and criteria in which foster care services shall be provided to children under sub-section (7) of section 45; (xxx) format for inspection of foster families by the Committee to check the well being of children under sub- section (8) of section 45; (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 46; (xxxii) duration of sponsorship under sub-section (3) of section 46; (xxxiii) manner of providing one time financial support to any child leaving institutional care on completing eighteen years of age under section 47; (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 48; (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 49; (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 51; (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 188 registered under any law for the time being in 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 52; (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-section (1) of section 53; (xxxix) manner in which services shall be provided by an institution under this Act for rehabilitation and reintegration of children and standards for basic requirements such as food, shelter, clothing and medical attention under sub- section (1) of section 54; (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 54; (xli) activities that may be taken up by children’s committees under sub-section (3) of section 54; (xlii) appointment of inspection committees for all institutions registered or recognised fit, for the state and district under sub-section (1) of section 55; (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 56; (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 67; (xlv) any other function of the Authority under clause (e) of section 69; (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 70; (xlvii) manner in which Steering Committee of the Authority shall meet under sub-section (4) of section 70; (xlviii) manner in which the Authority shall submit an annual report to the Central Government under sub-section (1) of section 72; 189

(xlix) functions of the Authority under sub-section (2) of section 73; (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 74; (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 93; (lii) procedure for transfer of child under sub- section (1) section 96; (liii) provision for travelling allowance to the escorting staff for the child under sub-section (3) of section 96; (liv) procedure to be followed by the Committee or a Board while holding any inquiry, appeal or revision under sub- section (1) of section 104; (lv) manner in which juvenile justice fund shall be administered under sub-section (3) of section 106; (lvi) functioning of the Child Protection Society for the State and Child Protection Units for every district under section 107; (lvii) any other matter which is required to be or may be, prescribed. Sub-clause (3) of clause 110 provides that every rule and regulation made under this clause shall be laid, as soon as may be after it is made, before each House of Parliament. Sub-clause (4) of clause 110 provides that every rule made by the State Government made under this clause shall be laid, as soon as may be after it is made, before the State Legislative. 3. The matters in respect which the Central Government may make rules are matter of procedure and administrative details and it is not practicable to provide for them in the Bill itself. The delegation of Legislation power is, therefore, of a normal character. LOK SABHA

A BILL 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.

(Shrimati Maneka Sanjay Gandhi, Minister of Women and Child Development)

190 Printed at : Bengal Offset Works, 335, Khajoor Road, Karol Bagh, New Delhi-110005.