The General Principles

(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.

(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 rights of the child is permissible or valid, whether sought by the child or a 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; 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.

(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 to proceed judicially.

(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.

How the principles work in the body of the Act

It is worth seeing that each principle has a section behind it, because that is what makes them enforceable rather than aspirational.

• Presumption of innocence (i) underlies section 3's own age limit and the whole idea of an inquiry rather than a trial.
• Participation (iii) appears in the requirement that the child be heard, and in the Board's duty to conduct proceedings in a child-friendly manner.
• Family responsibility (v) and repatriation and restoration (xiii) are the reason restoration comes first in the rehabilitation chapter, and why section 39 begins with the family.
• Safety (vi) is behind the definition of a place of safety, which section 2(46) says is never a police lockup or jail.
• Non-stigmatising semantics (viii) is why the Act never says "accused", "trial", "conviction" or "sentence" for a child; it says child in conflict with law, inquiry, found to have committed an offence, and order.
• Privacy and confidentiality (xi) is enacted in the prohibition on disclosing a child's identity.
• Institutionalisation as a last resort (xii) is the reason the Board's list of orders under section 18 puts admonition, group counselling, community service and probation before a special home.
• Fresh start (xiv) is enacted in section 24, the removal of disqualification attaching to a finding of an offence, and in the destruction of records.
• Diversion (xv) is why petty and serious offences are disposed of without the full apparatus, and why the Board may pass orders under section 18(1) without any question of trial.

A worked example

A boy of fifteen is brought before a Board on an allegation of theft.

How is he to be regarded? As presumed innocent of any mala fide or criminal intent, principle (i).

The Board wishes to hear the matter and decide it without him. That breaks principle (iii): he has a right to be heard and to participate in all processes and decisions affecting his interest, and his views must be taken into account with due regard to his age and maturity.

His father offers, on his behalf, to give up his right to legal representation to get the matter over with. That is not possible. Principle (ix) says no waiver of any right of the child is permissible or valid, whether sought by the child, by a person on his behalf, or by a Board or a Committee.

The Board proposes to send him to an institution. Only as a step of last resort, after making a reasonable inquiry, principle (xii); and the primary responsibility of care remains with the family, principle (v).

The order refers to him as "the accused" and to the proceeding as a "trial". Principle (viii) forbids adversarial or accusatory words in processes pertaining to a child.

A newspaper asks for his name. Principle (xi) gives him a right to protection of his privacy and confidentiality, by all means and throughout the judicial process.

The inquiry ends and he is restored to his family. Principle (xiii) entitles him to be re-united with his family at the earliest and restored to the same socio-economic and cultural status he was in, unless that is not in his best interest.

Years later he applies for a job and the record surfaces. Principle (xiv), fresh start: all past records should be erased except in special circumstances, and section 24 removes the disqualification attaching to the finding.

Distinctions

What this does NOT mean

These are not preambular sentiments. Section 3 says the named authorities shall be guided by them while implementing the Act.

They do not bind only the Board. The Central Government, the State Governments, the Board, the Committee and other agencies are all named, and the Committee was added expressly in 2021.

The presumption of innocence in principle (i) is not the ordinary evidentiary one. It is a presumption of the absence of mala fide or criminal intent, stated to hold up to the age of eighteen.

Non-waiver is absolute as to who may waive. The principle names the child, a person acting on his behalf, and even a Board or a Committee; and non-exercise of a fundamental right is not waiver.

And diversion is not automatic. It yields where proceeding judicially is in the best interest of the child or of society as a whole.

Quick revision

• Bound by section 3: the Central Government, the State Governments, the Board, the Committee, or other agencies.
• (i) presumption of innocence, up to eighteen; (ii) dignity and worth; (iii) participation, with due regard to age and maturity; (iv) best interest, the primary consideration; (v) family responsibility, on the biological, adoptive or foster family; (vi) safety, while in contact with the system and thereafter; (vii) positive measures, mobilising family and community; (viii) non-stigmatising semantics.
• (ix) non-waiver, binding the child, anyone on his behalf, and the Board or Committee; (x) equality and non-discrimination, including sex, caste, ethnicity, place of birth and disability; (xi) privacy and confidentiality throughout the judicial process; (xii) institutionalisation as a last resort after reasonable inquiry; (xiii) repatriation and restoration at the earliest, to the same socio-economic and cultural status; (xiv) fresh start, records erased except in special circumstances; (xv) diversion, without judicial proceedings; (xvi) natural justice, the fair hearing, the rule against bias and the right to review.

Test yourself

1. Who is bound by the general principles? The Central Government, the State Governments, the Board, the Committee, or other agencies, while implementing the provisions of the Act.

2. State the principle of presumption of innocence. Any child shall be presumed to be innocent of any mala fide or criminal intent up to the age of eighteen years.

3. Can a child, or his father, give up a right the Act confers? No. Under the principle of non-waiver of rights, no waiver of any right of the child is permissible or valid, whether sought by the child, by a person acting on his behalf, or by a Board or a Committee; and non-exercise of a fundamental right does not amount to waiver.

4. When may a child be placed in an institution? As a step of last resort, after making a reasonable inquiry, under the principle of institutionalisation as a measure of last resort.

5. What is the principle of fresh start? That all past records of any child under the juvenile justice system should be erased except in special circumstances.

6. What is the principle of diversion? That 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 of society as a whole to proceed judicially.

7. Which principle forbids calling a child "the accused"? The principle of non-stigmatising semantics: adversarial or accusatory words are not to be used in the processes pertaining to a child.