Who Is a Child: the Definitions

Section 2(14), "child in need of care and protection". A child who falls in any of the twelve sub-clauses:

(i) found without any home or settled place of abode and without any ostensible means of subsistence; (ii) found working in contravention of the provisions of this Act or of labour laws, or found begging, or living on the street; (iii) resides with a person, whether a guardian or not, who (a) has injured, exploited, abused or neglected the child or violated any other child-protection law; or (b) has threatened to kill, injure, exploit or abuse the child with a reasonable likelihood of the threat being carried out; or (c) has killed, abused, neglected or exploited some other child with a reasonable likelihood of the same happening to this one; (iv) who is mentally ill or mentally or physically challenged or suffering from a terminal or incurable disease, having no one to support him or having parents or guardians unfit to care, if found so by the Board or the Committee; (v) whose parent or guardian is found unfit or incapacitated by the Committee or the Board; (vi) who does not have parents and no one is willing to take care of and protect him, or who is abandoned or surrendered; (vii) who is missing or a run away child, or whose parents cannot be found after reasonable inquiry; (viii) who has been, is being, or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; (ix) who is found vulnerable and has been, is being or is likely to be inducted into drug abuse or trafficking; (x) who is being or is likely to be abused for unconscionable gains; (xi) who is a victim of or affected by any armed conflict, civil unrest or natural calamity; (xii) who is at imminent risk of marriage before attaining the age of marriage, and whose parents, family members, guardian or any other persons are likely to be responsible for solemnising it.

Sub-clauses (vi) and (ix) and the opening words of (ii) were amended by Act 23 of 2021 with effect from 1 September 2022; clause (vi) was substituted, "is likely to be" in (ix) was widened to "has been or is being or is likely to be", and "the provisions of this Act or" was inserted in (ii).

The three classes of offence

These three definitions should be learned as a set, with the punishment test in each.

Section 2(45), "petty offences". Includes offences for which the maximum punishment under the Indian Penal Code or any other law in force is imprisonment up to three years.

Section 2(54), "serious offences", as substituted by Act 23 of 2021 with effect from 1 September 2022. Includes offences for which the punishment is:

(a) minimum imprisonment for a term more than three years and not exceeding seven years; or (b) maximum imprisonment for a term more than seven years, but no minimum imprisonment, or a minimum imprisonment of less than seven years, is provided.

Section 2(33), "heinous offences". Includes offences for which the minimum punishment under the Indian Penal Code or any other law in force is imprisonment for seven years or more.

Work through the logic once and it stays. Heinous looks at the minimum; nothing is heinous unless the law fixes a floor of seven years. Petty looks at the maximum; nothing is petty if it can attract more than three years. Serious catches both the middle and the gap: limb (a) is the ordinary middle band by minimum, and limb (b) sweeps in the offences with a high maximum but no, or a low, minimum, which is precisely what fell through before 2021.

The institutions and the people

Section 2(10), "Board". A Juvenile Justice Board constituted under section 4. Section 2(22), "Committee". The Child Welfare Committee constituted under section 27. Section 2(7), "Authority". The Central Adoption Resource Authority constituted under section 68. Section 2(53), "State Agency". The State Adoption Resource Agency under section 67. Section 2(20), "Children's Court". A court established under the Commissions for Protection of Child Rights Act, 2005, or a Special Court under the Protection of Children from Sexual 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. Section 2(23), "court". A civil court which has jurisdiction in matters of adoption and guardianship, and may include the District Court, Family Court and City Civil Courts. Section 2(18), "Child Welfare Police Officer". An officer designated under section 107(1). Section 2(55), "special juvenile police unit". A unit of the police force of a district or city, or any other police unit such as the railway police, dealing with children and designated under section 107. Section 2(17), "Child Welfare Officer". An officer attached to a child care institution, to carry out the directions of the Committee or the Board. Section 2(48), "probation officer". An officer appointed under the Probation of Offenders Act, 1958, or the Legal-cum-Probation Officer appointed under a District Child Protection Unit. Section 2(26), "District Child Protection Unit". Established under section 106, functioning under the supervision of the District Magistrate. Section 2(26-A), inserted in 2021, provides that "District Magistrate" includes an Additional District Magistrate.

The institutions that house children

These four are constantly confused, and the distinguishing feature of each is in its own definition.

Section 2(40), "observation home". Established in every district or group of districts by the State Government, registered for the purposes in section 47(1). Section 2(56), "special home". 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 there by an order of the Board; registered under section 48. Section 2(46), "place of safety". Any place or institution, not being a police lockup or jail, established separately or attached to an observation home or special home, to receive and take care of 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 during ongoing rehabilitation after having been found guilty, for the period and purpose specified in the order. Section 2(19), "Children's Home". Established in every district or group of districts, registered for the purposes in section 50. Section 2(41), "open shelter". A facility under section 43(1), registered for the purposes of that section. Section 2(21), "child care institution". The umbrella term: Children's Home, open shelter, observation home, special home, place of safety, Specialised Adoption Agency and a fit facility recognised under the Act. Section 2(57), "Specialised Adoption Agency". Recognised under section 65, for housing orphans, abandoned and surrendered children placed there by order of the Committee, for the purpose of adoption. Section 2(27), "fit facility" and section 2(28), "fit person": a facility or a person prepared to own the responsibility of a child for a specific purpose, recognised as fit by the Committee or the Board.

Adoption, care and the rest

Section 2(2), "adoption". The process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents, with all the rights, privileges and responsibilities attached to a biological child. Section 2(1), "abandoned child". A child deserted by his biological or adoptive parents or guardians, declared abandoned by the Committee after due inquiry. Section 2(60), "surrendered child". A child relinquished by the parent or guardian to the Committee on account of physical, emotional and social factors beyond their control, and declared such by the Committee. Section 2(42), "orphan". A child without biological or adoptive parents or legal guardian, or whose legal guardian is not willing to take, or capable of taking, care of him. Section 2(16), "child legally free for adoption". A child declared such by the Committee after due inquiry under section 38. Section 2(29), "foster care". Placement by the Committee for alternate care in the domestic environment of a family other than the child's biological family, selected, qualified, approved and supervised for the purpose. Section 2(30), "foster family", is one found suitable by the District Child Protection Unit under section 44. Section 2(32), "group foster care" is a family like care facility. Section 2(58), "sponsorship". Supplementary support, financial or otherwise, to families to meet the child's medical, educational and developmental needs. Section 2(5), "aftercare". Support, financial or otherwise, to persons who have completed eighteen but not twenty-one years of age and have left institutional care, to join the mainstream of society. Section 2(52), "relative", for adoption: a paternal uncle or aunt, a maternal uncle or aunt, a paternal grandparent or a maternal grandparent. Section 2(34), "inter-country adoption"; 2(38), "non-resident Indian", holding an Indian passport and residing abroad more than one year; 2(43), "overseas citizen of India"; 2(44), "person of Indian origin"; 2(6), "authorised foreign adoption agency"; 2(11), "Central Authority" under the Hague Convention; 2(37), "no objection certificate" issued by CARA; 2(49), "prospective adoptive parents" eligible under section 57.

Three definitions of conduct

Section 2(8), "begging". (i) soliciting or receiving alms in a public place, or entering private premises for that purpose, 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, of another person, or of an animal. Section 2(24), "corporal punishment". Subjecting 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. Section 2(9), "best interest of child". 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. Section 2(15), "child friendly". Any behaviour, conduct, practice, process, attitude, environment or treatment that is humane, considerate and in the best interest of the child. Section 2(25), "childline services". A twenty-four hour emergency outreach service for children in crisis, linking them to emergency or long-term care and rehabilitation.

Section 2(61), the residuary clause. 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.

A worked example

A boy is alleged to have committed an offence punishable with imprisonment which may extend to ten years, and for which the law prescribes no minimum.

Is it heinous? No. Section 2(33) requires a minimum of seven years or more, and there is no minimum at all.

Is it petty? No. Section 2(45) requires a maximum of up to three years.

What is it, then? Serious, under limb (b) of section 2(54) as substituted in 2021: maximum more than seven years, with no minimum or a minimum of less than seven years.

Why does that matter? Because the preliminary assessment under section 15, which can send a child of sixteen or above to be tried as an adult, applies only to a heinous offence.

Change the offence to one carrying a minimum of five years. Minimum more than three and not exceeding seven: serious under limb (a).

Change it to one carrying a minimum of seven years. Heinous, section 2(33).

Change it to one carrying a maximum of two years. Petty, section 2(45).

Now the boy's age. He was seventeen years and ten months on the date of the offence and is nineteen when arrested. He is still a child in conflict with law, because section 2(13) fixes the age on the date of commission of the offence.

A different child, a girl of eight, is found begging at a traffic signal. She is a child in need of care and protection under section 2(14)(ii), which names a child found begging, or living on the street. "Begging" is itself defined in section 2(8).

She has no parents and nobody willing to look after her. She is also within sub-clause (vi), and she is an orphan under section 2(42).

The Committee inquires and declares her free for adoption. That is a child legally free for adoption, section 2(16), declared under section 38.

She is placed in an institution for that purpose. A Specialised Adoption Agency, section 2(57).

And the boy, if found to have committed the offence, is sent to an institution. A special home, section 2(56), by an order of the Board. Had he been held pending inquiry, an observation home; had the Board or Children's Court ordered it, a place of safety, which section 2(46) says is never a police lockup or jail.

Distinctions

What this does NOT mean

"Heinous" is not a judgment about how bad the act was. It is an arithmetical test on the minimum punishment.

"Serious" is no longer only a middle band. Since 2021 limb (b) also catches offences with a high maximum and no or a low minimum.

A child does not stop being a child in conflict with law by growing up. Section 2(13) fixes the age at the date of the offence.

A place of safety is not a jail. Section 2(46) expressly excludes a police lockup or jail.

And a Children's Court is not always a separate court. Where none has been designated, section 2(20) makes it the Court of Sessions having jurisdiction.

Quick revision

• 2(12) child: has not completed eighteen. 2(35) juvenile: below eighteen. 2(13) child in conflict with law: alleged or found to have committed an offence, under eighteen on the date of commission.
• 2(14) child in need of care and protection: twelve sub-clauses, from no home and no means of subsistence to imminent risk of marriage before the age of marriage.
• 2(45) petty: maximum up to three years. 2(54) serious: (a) minimum over three, up to seven, or (b) maximum over seven with no minimum or a minimum under seven. 2(33) heinous: minimum of seven years or more.
• Institutions: observation home (s.47), special home (s.48, by the Board, after inquiry), place of safety (never a lockup or jail, Board or Children's Court, during and after inquiry), Children's Home (s.50), open shelter (s.43), Specialised Adoption Agency (s.65), and the umbrella child care institution.
• Authorities: Board (s.4), Committee (s.27), Authority, that is CARA (s.68), State Agency (s.67), Children's Court (CPCR Act or POCSO Special Court, else the Court of Sessions), special juvenile police unit and Child Welfare Police Officer (s.107).
• Adoption: adoption, abandoned, surrendered, orphan, child legally free for adoption (s.38), relative (paternal or maternal uncle, aunt or grandparent), foster care, sponsorship, aftercare (eighteen to twenty-one).
• 2(61): words used but not defined here take their meaning from the Acts that define them.

Test yourself

1. Who is a "child in conflict with law"? A child alleged or found to have committed an offence who had not completed eighteen years of age on the date of commission of that offence, section 2(13).

2. What makes an offence heinous? That the minimum punishment for it, under the Indian Penal Code or any other law in force, is imprisonment for seven years or more, section 2(33).

3. An offence carries up to ten years and no minimum. Which class? Serious, under limb (b) of section 2(54) as substituted by Act 23 of 2021 with effect from 1 September 2022. It is not heinous because there is no minimum of seven years, and not petty because the maximum exceeds three years.

4. What is the difference between a special home and a place of safety? A special home houses and rehabilitates children in conflict with law who are found through inquiry to have committed an offence and are sent there by an order of the Board, section 2(56). A place of safety is any place or institution, not being a police lockup or jail, which receives 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 during rehabilitation after being found guilty, section 2(46).

5. Give three instances of a child in need of care and protection. A child found without any home or settled place of abode and without ostensible means of subsistence; a child found begging or living on the street; and a child at imminent risk of marriage before attaining the age of marriage, section 2(14)(i), (ii) and (xii).

6. What is aftercare? Provision of support, financial or otherwise, to persons who have completed eighteen but not twenty-one years of age and have left institutional care, to join the mainstream of society, section 2(5).

7. Who is a "relative" for the purposes of adoption? A paternal uncle or aunt, a maternal uncle or aunt, a paternal grandparent or a maternal grandparent, section 2(52).