“Juvenile Justice Act” & “Pocso Act”

- Written by: Isha Gajananrao Khond

“Safety and securities don’t just happen; they are the result of collective consensus and public investment. We owe our children, the most vulnerable citizens in our society, a life free of violence and fear.”-Nelson Mandela.

The Children of our country are the most vulnerable citizens of our country towards child abuse. Silence towards it is a failure on our side. In 2007, the survey conducted by the Ministry of Women and Child development in which 12,500 children participated across 13 states showed that 53% said that they had been subjected to one or more forms of sexual abuse.

With the intent to effectively address the evil of sexual exploitation and sexual abuse of children, Protection of Children from Sexual Offences Act (POCSO) was passed by the parliament in the year 2012 and The Juvenile Justice Act (JJA) pertains to provisions for children found in conflict with the law in India. It also gives provisions for children in need of care and protection.

The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2018 had been introduced in the Lok Sabha. Its aim is towards the amendment of the Juvenile Justice (Care and Protection of Children) Act, 2015. An important provision of the amended Act is that it provides for minors in the age group 16 -18 years to be treated as adults in the case of heinous crimes. The Act distinguishes between children in conflict with the law and children in need of care and protection. All children below the age of 18 would be treated equally except for one departure from the norm. That is, in the case of heinous crimes. Any minor of the age group 16 - 18 and who has been accused of committing a heinous crime can be tried like an adult. For this, the Juvenile Justice Board would assess the child’s physical and mental capacities, his/her ability to comprehend the consequences of the crime, etc. and determine whether the child can be treated as an adult.

The Women and Child Development ministry informed that the Juvenile Justice (Care and Protection of Children) Act, (JJ Act), 2015 which is the primary legislation for children in need of care and protection (CNCP) and children in conflict with the law. “Child accused of crime under POCSO Act is protected under the provisions of JJ Act, 2015 based on the principle of restorative justice. The JJ Act, 2015 empowers Juvenile Justice Board to decide upon matters of children in conflict with the law. Further, offences committed by the children have been categorised as petty, serious and heinous offences,” the WCD ministry said in its response. “The JJ Act, 2015 also includes a procedure to decide upon cases where children above the age of 16 years have been alleged to commit a heinous offence,” the WCD ministry added.

* Statistical Data

“More than 99 per cent of crimes registered under the POCSO Act in 2020 were against girls, according to NCRB data which showed that girl child continues to be part of one of the most vulnerable sections of the society.”

An analysis of the latest NCRB data by NGO Child Rights and You (CRY) revealed that among 28,327 children who were victims of crimes reported under the POCSO Act, 28,058 were girls.

A deeper analysis of the cases reported under the Protection of Children from Sexual Offences (POCSO) Act showed that crimes against adolescent girls within the 16 to 18 age group were the highest at 14,092, followed by 10,949 crimes against girls within the 12 to 16 age group.

Child Marriage-

The Prohibition of Child Marriage Act at (PCMA), 2006 is apparently aimed at prohibiting marriage of any girl below 18 years of age and any boy below 21 years of age. However, according to the District Level Household and Facility Survey-3 (DLHS-3) data brought out in 2010, 43% of women in India aged 20-24 were married before 18 years. It is estimated that there are more than 23 million child brides in India, which is 40% of the child brides globally. 8 In the last 15 years the decline in child marriage is 11%, which is less than 1% per year. The National Strategy Document on Prevention of Child Marriage 2013 highlights these statistics of child marriage prominently.

It is necessary to address the issue of child marriage in an integrated manner in connection with the other related legislations such as: Protection of Children from Sexual Offences Act (POCSO) (2012), Juvenile Justice (Care and Protection of Children Act) (2006) and the exception of Section 375 Indian Penal Code (IPC), which legalises sexual intercourse within child marriage between 15 and 18 years. There is an ongoing public interest litigation, before the honourable Supreme Court (Independent Thought vs Union of India - Civil Writ Petition 382 of 2013), demanding the declaration of the above IPC provision as unconstitutional in the light of POCSO and the larger state policy.

What we should be discussing is not just why the number of rapes of small children under 10 is increasing and to what extent, but whether POCSO is being implemented if and when people do come forward to report crimes. One must remember that a large number of the sexual assaults against small children take place in the home or by people known to the children. Such cases go largely unreported. Where cases are reported, even a reasonably good law like POCSO is not implemented either because of the casual approach of the law enforcers or because people are not aware of their rights under the law.

Instead, we are witness to demands of more “stringent” laws to deal with heinous crimes. Even the Supreme Court has taken the same line with the caveat that any change in the existing law must be discussed in Parliament and is not the job of the Court. What is surprising in this instance is that the Court did not point out that POCSO already exists with fairly stringent provisions and that its implementation was the imperative that ought to be pursued with seriousness rather than tinkering further with existing laws.

Landmark Judicial

Pronouncements Jitendra Singh @ Babboo Singh & Anr. v. State of U.P. 13 In this case, the court held that anyone claiming to be a minor on the date of an offence should make such a claim at the earliest available opportunity before the Trial Court or the High Court. But, if no such claim is made for some reason, then that does not disentitle a person from raising such a claim before the Supreme Court. JJ Act is a beneficial legislation and a technical plea (like delay in making the claim of juvenility) would not disable a person from making a claim under the Act. But, the burden of proof, for making out a prima facie case for directing an inquiry into the plea of juvenility, rests on the person who makes such a claim.

Jarnail Singh v. State of Haryana, 15 In this case, the court held that for the determination of the age of a minor, a reference must be made to Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007. Furthermore, it observed that even though the procedure mentioned under the aforesaid rule is meant only to determine the age of a child in conflict with the law, it can even be used for determining the age of a child who is a victim of a crime.

Salil Bali v. Union of India & Anr., 17 In this case, the petitioners had prayed the court to strike down the provisions of Section 2 (k) of the JJ Act, 2000. This section defines Juvenile/Child, as a person who has not completed the age of 18 years. The Hon’ble Supreme Court discussed the rationale behind the said age limit and observed that the age of 18 had been fixed based on the understanding of experts in child psychology and behavioural patterns. So, the court dismissed the appeals by noting that no interference was necessary with the provisions of the JJ Act, 2000 till sufficient data is available.

a Juvenile gets Life Term Punishment Under POCSO Act

In perhaps the first instance of its kind in the country, a 19-year-old youth from Hyderabad has been sentenced to life imprisonment for sodomising & murdering a 10-year-old boy when he was a minor. He was convicted by 1st additional metropolitan sessions judge Kunchala Suneetha, who is also special judge for cases under the Protection of Children from Sexual Offences (POCSO) Act. The convict was 17 during the crime in 2017. He had lured the child to the top of a government school building on the pretext of playing with him. He then sodomised him & killed him by hitting him on the head with an iron pipe. Judge Kunchala Suneetha, in her verdict, said he was sentenced to life under POCSO Act & also under IPC provisions that deal with murder. He was also sentenced to 10 years for kidnapping &under Section 377 of the IPC dealing with ‘unnatural sex’. Another seven years were added for causing disappearance of evidence.

The Hon’ble Supreme Court has delivered a catena of judgments on the subject of Juvenile Justice and Child Rights, interpreting and moulding the law of the land in favour of the Children in Conflict with Law. Legislature has also done a commendable job by standardizing the law on this subject. Now, the primary task in front of us is to ensure the proper implementation of the law that has been laid down by the courts and the legislature. After all, as Hon’ble Justice S. Ravindra Bhatt said in one of his addresses, the true equity, and justice of the society is how fairly it treats its children.

A Juvenile offender held under the POCSO Act:

The complaints filed before the POCSO Act was enacted in 2012 when the age of consent was 16 years. The POCSO Act raised the age of consent to 18 years increasing the chances of criminalisation of consensual relationships between young people. 19 The existing research necessitates a closer examination of POCSO cases rather than just relying on the increased numbers to suggest drastic measures that are in contravention to the objectives of the Juvenile Justice Act and the UN Convention on the Rights of the Child.

Applicability of the Act:

Section 42A of Protection of Children from Sexual Offences Act, 2012 says that Act not in derogation of any other law- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have an overriding effect on the provisions of any such law to the extent of the inconsistency.

Section 1(4) of the Juvenile Justice (Care and Protection of Children) Act, 2015, deals with the applicability of the Act, which reads as follows: 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.

Thus, Juvenile Justice Act has overriding effect on all other laws.

In Kallu v. State of Haryana, AIR 2012 SC 3212 case, the Court observed that the Juvenile Justice Act is intended to protect children from the rigours of trial by a Criminal Court.

In Ajit Singh v. Union of India, 2004 Cri LJ 3994 Del case, an offence was committed by a juvenile recruited in Army. The applicability of the Juvenile Justice Act was held valid for the offence committed by the juvenile overriding the Army Act.

In cases where both the victim and the offender are minors, which act will be predominant? Whether a victim will be granted justice by awarding punishment to a juvenile offender under the POCSO Act, 2012 or a juvenile offender will be granted relief under the Juvenile Justice (Care and Protection of Children) Act, 2015?

Death penalty or life imprisonment has expressly been forbidden as a punishment for minors below eighteen years of age under Article 37(3) of Convention on the Rights of the Child and also under Rule 17.2 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, popularly known as Beijing Rules. Under the Juvenile Justice (Care and Protection) Act, 2015, the maximum punishment that can be awarded to a ‘juvenile in conflicts with law’ is three years. Sections 82 and 83 of the IPC grant exemption to children from criminal liability for acts done by them owing to their immature age and understanding.

Therefore, in case of any inconsistency, the provisions of this the Juvenile Justice (Care and Protection of Children) Act, 2015, shall have an overriding effect on the provisions of the POCSO Act, 2012 to the extent of the inconsistency.