The Juvenile Justice Board

Sub-section (3), qualification of a social worker. No social worker may be appointed unless he has been actively involved in health, education or welfare activities pertaining to children for at least seven years, or is a practising professional with a degree in child psychology, psychiatry, sociology or law.

Sub-section (4), disqualifications. No person is eligible for selection 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 the conviction has not been reversed and he has not been granted full pardon; (iii) has been removed or dismissed from the service of the Central or a State Government, or of an undertaking or corporation owned or controlled by either; (iv) has ever indulged in child abuse, or employment of child labour, or any other violation of human rights or immoral act.

Sub-section (5), training. The State Government shall ensure induction training and sensitisation of all members, including the Principal Magistrate, on care, protection, rehabilitation, legal provisions and justice for children, within sixty days from the date of appointment.

Sub-section (6). The term of office and the manner of resignation are as prescribed.

Sub-section (7), termination. The appointment of any member 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 the Act; or (ii) fails to attend the proceedings consecutively for three months without valid reason; or (iii) fails to attend a minimum of three-fourths of the sittings in a year; or (iv) becomes ineligible under sub-section (4) during his term.

In clause (iii) the word "minimum" was substituted for "less than" by Act 23 of 2021 with effect from 1 September 2022.

Sections 5 and 6: the child who ages out

Section 5, turning eighteen during the inquiry. Where an inquiry has been initiated in respect of a child and during the course of the inquiry the child completes eighteen years of age, then, notwithstanding anything in this Act or any other law, the inquiry may be continued by the Board and orders may be passed in respect of that person as if he had continued to be a child.

Section 6, apprehended after eighteen for an offence committed before.

Sub-section (1). Any person who has completed eighteen years of age and is apprehended for committing an offence when he was below eighteen shall, subject to this section, be treated as a child during the process of inquiry.

Sub-section (2). If not released on bail by the Board, he shall be placed in a place of safety during the inquiry.

Sub-section (3). He shall be treated as per the procedure specified under this Act.

These two sections are the practical consequence of section 2(13), which fixes age on the date of the offence. Without them, delay in detection or in the inquiry would defeat the Act.

Section 7: how the Board works

Sub-section (1). The Board shall meet at such times and observe such rules for the transaction of business 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 a regular court.

Sub-section (2). A child in conflict with law may be produced before an individual member of the Board when the Board is not in sitting.

Sub-section (3), quorum. The Board may act notwithstanding the absence of any member, and no order shall be invalid merely by reason of the absence of any member during any stage of the proceedings. Proviso: there shall be at least two members, including the Principal Magistrate, present at the time of final disposal of the case, or in making an order under section 18(3).

Sub-section (4), difference of opinion. On any difference among the members in the interim or final disposal, the opinion of the majority shall prevail; and where there is no such majority, the opinion of the Principal Magistrate shall prevail.

Section 8: powers, functions and responsibilities

Sub-section (1), exclusivity. Notwithstanding anything in any other law but save as expressly provided in this Act, the Board shall have the power to deal exclusively with all proceedings under this Act relating to children in conflict with law in its area of jurisdiction.

Sub-section (2). Those powers may also be exercised by the High Court and the Children's Court when proceedings come before them under section 19 or in appeal, revision or otherwise.

Sub-section (3), the functions. They 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 apprehension, inquiry, aftercare and rehabilitation; (c) ensuring the availability of legal aid through the legal services institutions; (d) providing, wherever necessary, an interpreter or translator of the prescribed qualifications and on the prescribed fees, if the child fails to understand the language used; (e) directing the Probation Officer, or if none is available the Child Welfare Officer or a social worker, to undertake a social investigation and submit a social investigation report within fifteen days of the first production, to ascertain the circumstances in which the alleged offence was committed; (f) adjudicating and disposing of cases in accordance with the inquiry specified in section 14; (g) transferring to the Committee matters concerning a child alleged to be in conflict with law who is stated to be in need of care and protection at any stage, recognising that a child can be both at once and that both bodies may need to be involved; (h) disposing of the matter and passing a final order that includes an individual care plan for rehabilitation, with follow up by the Probation Officer, the District Child Protection Unit or a member of a non-governmental organisation; (i) conducting inquiry for declaring fit persons regarding the 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 recommending improvements to the District Child Protection Unit and the State Government; (k) ordering the police to register a first information report for offences committed against any child in conflict with law, on a complaint; (l) ordering the police to register a first information report for offences committed against any child in need of care and protection, on a written complaint by a Committee; (m) conducting regular inspection of jails meant for adults to check whether any child is lodged there, and taking immediate measures for transfer of that child to an observation home or place of safety; (n) any other prescribed function.

Clause (g) is worth a sentence of its own in an answer. The Act recognises that the boy who steals is very often also the boy nobody is looking after, so the Board may send the same child to the Committee as a child in need of care and protection at any stage.

Section 9: the Magistrate who is not empowered

Sub-section (1). When a Magistrate not empowered to exercise the powers of the Board is of opinion that the person before him is a child, he shall, without any delay, record that opinion and forward the child immediately, with the record of the proceedings, to the Board having jurisdiction.

Sub-section (2), the claim of juvenility. Where a person claims before a court other than a Board that he is a child, or was a child on the date of the offence, or the court itself is of that opinion, the court shall make an inquiry, take such evidence as may be necessary, but not an affidavit, to determine his age, and shall record a finding stating the age as nearly as may be.

Proviso, and it is very wide. Such a claim may be raised before any court and shall be recognised at any stage, even after final disposal of the case; and it shall be determined under this Act and the rules, even if the person has ceased to be a child on or before the date of commencement of this Act.

Sub-section (3). If the court finds that the person committed the offence and was a child on the date of commission, it shall forward him to the Board for passing appropriate orders, and the sentence, if any, passed by that court shall be deemed to have no effect.

Sub-section (4). Where such a person must be kept in protective custody while the claim is inquired into, he may be placed in the intervening period in a place of safety.

Two things in section 9 catch students out. The evidence taken under sub-section (2) is not an affidavit; the Act says so expressly. And a sentence already passed by a court which turns out to have been dealing with a child is deemed to have no effect, not merely set aside.

A worked example

A boy is produced before a Judicial Magistrate of the First Class on a charge of housebreaking. He looks about fifteen.

What must the Magistrate do? If he is not empowered to exercise the Board's powers and is of opinion that the person is a child, he shall record that opinion without delay and forward the child at once, with the record, to the Board, section 9(1).

The boy claims juvenility only during his appeal, years later. The claim may be raised before any court and shall be recognised at any stage, even after final disposal, and shall be determined under this Act even if he has since ceased to be a child, proviso to section 9(2). The court must inquire and take evidence, but not an affidavit.

It finds he was a child. It forwards him to the Board, and the sentence already passed is deemed to have no effect, section 9(3). Meanwhile he may be kept in a place of safety, sub-section (4).

Who now hears him? A Board: a Principal Magistrate with at least three years' experience, who may not be the Chief Judicial or Chief Metropolitan Magistrate, and two social workers, at least one a woman, section 4(2).

One social worker has only four years' experience with children. She is not qualified: section 4(3) requires seven years of active involvement, or a practising professional with a degree in child psychology, psychiatry, sociology or law.

The proceedings are held in a regular courtroom. That breaks section 7(1): the venue must not be intimidating and must not resemble a regular court.

One member is absent on a hearing day. The Board may still act, and the order is not invalid for that absence, section 7(3). But at final disposal, or for an order under section 18(3), there must be at least two members including the Principal Magistrate.

The three members disagree at the final disposal. The majority prevails; if there is no majority, the Principal Magistrate's opinion prevails, section 7(4).

During the inquiry it emerges that the boy has no home and nobody looking after him. The Board may transfer the matter to the Committee as a child in need of care and protection, section 8(3)(g), recognising that he may be both at once.

He turns eighteen while the inquiry is going on. The inquiry may be continued and orders passed as if he had continued to be a child, section 5.

And a different young man, now twenty, is arrested for an offence he committed at seventeen. He is treated as a child during the process of inquiry, and if not bailed is placed in a place of safety, section 6.

Distinctions

What this does NOT mean

The Board is not the Chief Judicial Magistrate. Section 4(2) expressly excludes a Chief Metropolitan Magistrate and a Chief Judicial Magistrate from being the Principal Magistrate.

It is not a one-judge court. Two of the three members are social workers, and at least one must be a woman.

Its exclusivity is not absolute. By section 8(2) the High Court and the Children's Court also exercise its powers when matters come before them under section 19 or in appeal or revision.

A claim of juvenility is not lost by delay. It may be raised before any court, at any stage, even after final disposal.

And an ordinary Magistrate does not decide a child's case. Section 9(1) requires him to record his opinion and forward the child immediately to the Board.

Quick revision

• 4: a Board in every district, notwithstanding the Code; a Principal Magistrate with three years' experience, not the CJM or CMM, and two social workers, one at least a woman; social workers need seven years with children or a degree in child psychology, psychiatry, sociology or law; four disqualifications; induction training within sixty days; termination of a non-judicial member for misuse of power, three months' consecutive absence, failing three-fourths of the sittings, or becoming ineligible.
• 5 and 6: turning eighteen during the inquiry does not stop it; a person apprehended after eighteen for an offence committed before is treated as a child during the inquiry and, if not bailed, goes to a place of safety.
• 7: child friendly procedure, a venue not resembling a regular court; production before an individual member when the Board is not sitting; the Board may act despite an absence, but two members including the Principal Magistrate at final disposal or an s.18(3) order; majority, else the Principal Magistrate.
• 8: exclusive jurisdiction over children in conflict with law, shared with the High Court and Children's Court under s.19 or in appeal or revision; functions include informed participation, legal aid, an interpreter, a social investigation report within fifteen days, inquiry under s.14, transfer to the Committee, a final order with an individual care plan, declaring fit persons, monthly inspection of residential facilities, ordering FIRs, and inspecting adult jails for children.
• 9: an unempowered Magistrate records his opinion and forwards the child; a claim of juvenility may be made before any court at any stage even after final disposal, decided on evidence but not an affidavit; on a finding of juvenility the child goes to the Board and the sentence is deemed to have no effect; protective custody in a place of safety.

Test yourself

1. What is the composition of a Juvenile Justice Board? A Metropolitan Magistrate or Judicial Magistrate of the First Class, not being a Chief Metropolitan Magistrate or Chief Judicial Magistrate, with at least three years' experience, called the Principal Magistrate, and two social workers of whom at least one shall be a woman, forming a Bench, section 4(2).

2. What qualification must a social worker member have? Active involvement in health, education or welfare activities pertaining to children for at least seven years, or being a practising professional with a degree in child psychology, psychiatry, sociology or law, section 4(3).

3. Who must be present when the Board finally disposes of a case? At least two members including the Principal Magistrate, proviso to section 7(3); and the same for an order under section 18(3).

4. What happens if the members differ? The opinion of the majority prevails, and where there is no majority, the opinion of the Principal Magistrate prevails, section 7(4).

5. A child turns eighteen while the inquiry is pending. What follows? The inquiry may be continued by the Board and orders may be passed in respect of him as if he had continued to be a child, section 5.

6. What must a Magistrate not empowered under the Act do? Record his opinion without delay that the person before him is a child, and forward the child immediately, along with the record of the proceedings, to the Board having jurisdiction, section 9(1).

7. Can juvenility be claimed after the case is over? Yes. The proviso to section 9(2) allows the claim to be raised before any court and recognised at any stage, even after final disposal, and it is determined under this Act even if the person has ceased to be a child.