On 9 February, the Supreme Court took the extant government to task for the "tardy if not virtual non-implementation" of juvenile justice laws, and ignoring the plight of "voiceless if not silenced" children of India, after a public interest litigation (PIL) was initiated by activist and human rights defender, Sampurna Behura. The apex court also requested chief justices of all high courts to establish child-friendly courts and vulnerable courts in each district.
The Supreme Court Bench, comprising Justices Madan B Lokur and Deepak Gupta, spoke about the lackadaisical attitude of the government and authorities towards children – there is pendency of cases of abandoned, orphaned and surrendered children; the conditions of children in shelter and observation homes are abysmal; there is an increased number of vacancies in juvenile justice institutions; and there is an absolute lack of initiative by legal service bodies to act, despite the passing of an amendment to the Juvenile Justice (Care and Protection of Children) Act, 2000 in 2015.
There were several chief justices' conferences held in 2006, 2009, 2013, 2015 and 2016 about the need to ensure the adequate and effective implementation of the Juvenile Justice Act. As a part of the resolutions passed in these conferences, the Supreme Court noted that every high court has a constituted Juvenile Justice Committee that is headed by a judge to take stock and address issues that concern children. Besides this, the Chief Justice of India also set up a Committee to address issues of implementation of child welfare laws.
Acknowledging that the Bench might be criticised for excessive judicial activism, it stated that the government has done very little for implementation of the Act in its true spirit: "Over the last decade or so, state governments and Union Territories have not fully complied with the provisions of a law solemnly enacted by Parliament for the benefit of children. In many instances, only cosmetic changes have been introduced at the ground level with the result that voiceless children continue to be subjects of official apathy."
Justice Lokur also observed that: "No one has any doubt that it is time for the State to strongly and proactively acknowledge that even children in our country have fundamental rights and human rights and they need to be enforced equally strongly."
The Bench ensured that it brought up the rights-based nature of the Juvenile Justice Act, and how the government has done very little for the realisation of the rights of children.
Indicating their dismay at poor implementation of the Act, the Bench observed various unresolved issues and provided for some directions, inter alia, to the institutions – courts, policymakers and implementers – of the country:
- All vacancies in the Child Rights Commissions should be filled up so that they can function meaningfully
- State-level Child Protection Societies and District-level Child Protection Units must take assistance from NGOs and civil society actors.
- All positions in the Juvenile Justice Boards (JJBs) and Child Welfare Commissions (CWCs) are expeditiously filled up, in accordance with the Model Rules framed by the state government. All JJBs and CWCs must have sittings on a regular basis so that a minimal number of inquiries are pending at any point in time.
- There must be creative use of information and communication technology by the Ministry of Women and Child Development for the purpose of collecting data as well as operating a database of missing and trafficked children, and for the follow up of adoption cases.
- Special Juvenile Police Units and Child Welfare Police Officers must be set up in terms of the Juvenile Justice Act at the earliest, and the roles and responsibilities of such units and officers must be clearly identified and defined.
- Proper utilisation of the Juvenile Justice Fund, which so far has been an "embarrassment". The court observed, on this point, that, "If financial resources are not made available for the welfare of the children we shudder to think what could be better utilisation of the funds."
- The National Legal Services Authority (NALSA) must compile a nation-wide comprehensive three-part report regarding juveniles in conflict with the law for easier policy-making and decision-making.
- All authorities under the Juvenile Justice Act such as the JJBs, CWCs, Probation Officers, members of the Child Protection Units, Special Juvenile Police Units, Child Welfare Police Officers must be adequately sensitised and given training regarding child welfare laws.
- High courts must establish child-friendly courts and vulnerable witness courts in each district. The chief justice of every high court must register suo-moto proceedings for the effective implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015. This would serve to meaningfully address road-blocks if any, encountered by statutory authorities and the Juvenile Justice Committee of the High Court.
While these are very valuable recommendations that the Supreme Court has put out, there is no reference to the 'best interests of the child' doctrine that the JJ Act is based on. Sampurna Behura's petition mentions the doctrine several times, in order to indicate that it is the constitutional obligation of the Judiciary to ensure that the doctrine is at the centre of all laws and implementation. However, the directions by the Supreme Court seem to completely discount the doctrine, and its purpose in the implementation of the Juvenile Justice Act.
The UN Convention on the Rights of the Child (1989), which was ratified by India in 1992, states that the "best interests of the child shall be a primary consideration in all actions affecting children (Article 3)". The term 'best interests' broadly describes the well-being of a child, which is determined by a variety of individual circumstances such as age, level of maturity of the child, the presence or absence of parents, and the environment and experiences of the child.
General Comment 6 (2005) provided by the Committee on the Rights of the Child discusses and defines 'best interests', stipulating that best interests must be "the determining factor for specific actions", especially adoption (Article 21) or separation of a child from parents against their will (Article 9), and that best interests must be "a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies."
The Supreme Court's directions are not based on the best interests of the child, even if one examines such directions more intrinsically. The directions are infrastructural and shallow – they speak to the authorities on establishing or building bodies constituted by the Juvenile Justice Act or filling in gaps, such as vacancies or raising awareness.
The directions, while well-meaning, are not child-focused. From a governance and policy perspective, the directions look sound – the Judiciary is pulling up the government for not doing its job well, and for the lack of implementation of the legal policy. But the problem is further away – there is no theoretical understanding of the international principle and hence, there is no execution of the principle in practice.
During the 66th Session of the Committee on the Rights of the Child, the Committee's Concluding Observations for India recommended, after going through the National Policy for Children (2013), that India develop procedures and criteria to provide guidance to all relevant persons in authority for determining the best interests of the child in every area and for giving it due weight as a primary consideration, and also establish effective monitoring and evaluation procedures in this regard.
The UN High Commissioner for Refugees (UNHCR) talks about BID or "best interests determination" that describes a "formal process with strict procedural safeguards designed to determine the child's best interests for important decisions that affect the child; it facilitates adequate child participation without discrimination, involves decision-makers who have expertise in certain areas and balance all relevant factors in order to find the best option".
Neither the Judiciary nor the policymakers currently have a mechanism to determine best interests of the child. For the effective implementation of the Juvenile Justice Act, this should the first step. Institutions and infrastructure are only secondary to rights-based standards. Therefore, while the intention of the Supreme Court is well-meaning, its methods to implement child-welfare laws should be ensconced in the UNCRC principles to achieve positive results.
Published Date: Feb 13, 2018 17:19 PM | Updated Date: Feb 13, 2018 17:25 PM