The Juvenile Justice Act: Object, Scheme and Application

The first recital, the constitutional base. 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.

Those five are worth knowing individually:

• Article 15(3) permits the State to make special provision for women and children, which is what makes a separate Act for children constitutional rather than discriminatory.
• Article 39(e) directs that the tender age of children is not abused and that they are not forced by economic necessity into unsuitable work.
• Article 39(f) directs that children be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth be protected against exploitation and against moral and material abandonment.
• Article 45 concerns early childhood care and education.
• Article 47 concerns the raising of the level of nutrition and the standard of living and the improvement of public health.

The second recital, the Convention. The Government of India acceded on 11 December 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which prescribes standards to be adhered to by all State parties in securing the best interest of the child.

The third recital, why the 2000 Act was re-enacted. It was expedient to re-enact the Juvenile Justice (Care and Protection of Children) Act, 2000 to make comprehensive provisions for both classes of children, 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, known as 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 Hague Convention in that list is the reason the Act contains a whole chapter on adoption, which no criminal statute would otherwise carry. The Act is not only a criminal law for children; it is also the law under which a child is adopted.

Section 1: title, extent, commencement, application

Sub-section (1). The Act may be called the Juvenile Justice (Care and Protection of Children) Act, 2015.

Sub-section (2). It extends to the whole of India.

The words "except the State of Jammu and Kashmir" stood here originally and were omitted by Act 34 of 2019, section 95 and the Fifth Schedule, with effect from 31 October 2019. Since that date the Act runs throughout the country.

Sub-section (3). It comes into force on such date as the Central Government may, by notification in the Official Gazette, appoint. That date was 15 January 2016, by notification S.O. 110(E) dated 12 January 2016.

Sub-section (4), the application clause, and it is the most important sentence in the section. 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.

Read the two elements of sub-section (4) together. The non obstante clause puts this Act above other laws where a child is concerned, and the word "all" before "matters" makes the coverage complete. That is why a child is not arrested and tried under the Sanhita even though the Sanhita is the general law of criminal procedure: section 1(4) displaces it.

Sections 111 and 112: repeal, savings, and difficulties

Section 111(1), repeal. The Juvenile Justice (Care and Protection of Children) Act, 2000 is hereby repealed.

Sub-section (2), savings. Notwithstanding the repeal, anything done or any action taken under the said Act shall be deemed to have been done or taken under the corresponding provisions of this Act.

Section 112, power to remove difficulties.

Sub-section (1). 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. Proviso: no such order shall be made after the expiry of two years from the commencement of the Act.

Sub-section (2). Every such order shall be laid, as soon as may be after it is made, before each House of Parliament.

A worked example

A boy of fifteen is alleged to have committed theft. The police propose to arrest him under the Bharatiya Nagarik Suraksha Sanhita and produce him before a Magistrate.

Which law governs? The Juvenile Justice Act. Section 1(4) begins notwithstanding anything contained in any other law for the time being in force, and applies the Act to all matters concerning children in conflict with law, including expressly apprehension, detention, prosecution, penalty or imprisonment.

Is it constitutional to treat him differently from an adult? Yes, and the Preamble names the source: Article 15(3) permits the State to make special provision for children, and Articles 39(e), 39(f), 45 and 47 impose duties towards them.

Change it: a girl of nine is found living on a railway platform with nobody to look after her. She has committed no offence. She is a child in need of care and protection, and the Act applies to her too, by the second limb of section 1(4), covering rehabilitation, adoption, re-integration and restoration.

A couple wish to adopt her. That too is under this Act, because the Preamble records that it was drafted taking into consideration the Hague Convention on Inter-country Adoption, 1993.

Somebody relies on an order made under the 2000 Act. The 2000 Act is repealed, section 111(1), but anything done or action taken under it is deemed to have been done under the corresponding provisions of this Act, sub-section (2).

A difficulty arises in working the Act in 2026. The Central Government cannot use section 112: the power expired two years after the commencement, that is on 15 January 2018.

Distinctions

What this does NOT mean

The Act is not only about children who offend. Half of it, and more than half of its sections, concern the child in need of care and protection, who has committed nothing.

It is not subordinate to the Sanhita. Section 1(4) opens with a non obstante clause and applies to all matters concerning both classes of children.

It is not a purely domestic enactment. The Preamble records four international instruments taken into consideration, and the accession to the Convention on the Rights of the Child.

The repeal of the 2000 Act did not undo what was done under it. Section 111(2) deems it done under the corresponding provisions of this Act.

And section 112 is no longer available. The proviso expired two years after the commencement.

Quick revision

• Long title: to consolidate and amend the law on children in conflict with law and children in need of care and protection, by care, protection, development, treatment, social re-integration and rehabilitation, with a child-friendly approach in the best interest of children.
• Constitutional base: Articles 15(3), 39(e), 39(f), 45 and 47.
• International base: the Convention on the Rights of the Child (acceded 11 December 1992), the Beijing Rules 1985, the UN Rules for the Protection of Juveniles Deprived of their Liberty 1990, and the Hague Convention on Inter-country Adoption 1993.
• 1(1) to (3): the Juvenile Justice (Care and Protection of Children) Act, 2015, extending to the whole of India since the omission of the Jammu and Kashmir words on 31 October 2019, in force from 15 January 2016 by S.O. 110(E) of 12 January 2016.
• 1(4): notwithstanding any other law, the Act applies to all matters concerning both classes of children, expressly including apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration, and rehabilitation, adoption, re-integration and restoration.
• 111: the 2000 Act is repealed, but anything done under it is deemed done under this Act.
• 112: the Central Government could remove difficulties by order, but not after two years from commencement, and every order is laid before each House of Parliament.

Test yourself

1. What is the object of the Act? 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, catering to their basic needs through proper care, protection, development, treatment and 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.

2. Which constitutional provisions does the Preamble name? Clause (3) of article 15, clauses (e) and (f) of article 39, article 45 and article 47.

3. When did the Act come into force? On 15 January 2016, by notification S.O. 110(E) dated 12 January 2016.

4. Does the Act apply in Jammu and Kashmir? Yes. The words "except the State of Jammu and Kashmir" were omitted by Act 34 of 2019 with effect from 31 October 2019, and the Act now extends to the whole of India.

5. What is the effect of section 1(4)? Notwithstanding anything in any other law in force, the Act applies to all matters concerning children in need of care and protection and children in conflict with law, including their apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration, and the procedures and orders relating to rehabilitation, adoption, re-integration and restoration.

6. What became of the 2000 Act? It is repealed by section 111(1), but anything done or action taken under it is deemed to have been done or taken under the corresponding provisions of the 2015 Act.

7. Can the Central Government still remove difficulties under section 112? No. The proviso barred any such order after the expiry of two years from the commencement of the Act, that is after 15 January 2018.