Manipur Government's water cannon and arrest of school students are illegal and go against Juvenile Justice Act 2015. Why?
- Part 2 -

Ningombam Bupenda Meitei *

Manipur Police using water cannon to disperse the protesting school students in Manipur on May 29 2016 :: Pix - Shankar Khangembam

(4) Manipur Government's police arrest of school students go against Juvenile Justice Act 2015. Why?

(a) Draft Rules of Juvenile Justice Act 2015

In the Draft Rules of Juvenile Justice Act 2015 released by Union Minister for Women and Child Development Maneka Gandhi, as reported in a news report of Hindustan Times - No FIRs against juveniles for petty offences, say new rules – dated 26th May, 2016, it mentions that "No longer can police register an FIR against underage offenders accused of minor offences. But they can do so if the crime attracts imprisonment of more than seven years, or is committed jointly with adults. Barring crimes for which an FIR can be registered, all other cases will be handled by the special juvenile police unit or the child welfare police officer who will record the offence in the general diary. The juvenile offenders will not be put in a lock-up or jail with adults. They will get medical and legal aid while guardians have to be informed promptly after a child is detained or arrested. If the child is hungry at the time of arrest and says so, he or she must be provided food without delay. For heinous crimes such as rape and murder committed by a suspect of more than 16 years of age, the child welfare police officer will have to produce statements of witnesses and investigation reports within a month."

The Draft Rules, as reported in India Today - Juvenile Justice Act comes into force tomorrow: Here are the draft rules – dated 26th May, 2016, also mentions: "The JJB or Juvenile Justice Committee will determine the age of the child within 30 days from date of submission of application. Wherever medical opinion is required, same will be sought from a duly constituted medical board for which all government hospitals will constitute medical boards on permanent basis. Where medical boards give a range of age, the age of the child on lower side will be considered in order to give benefit to the child. No child between 16 and 18 years of age in conflict with law will be handcuffed or sent to jail or lock-up. Every state government is required to set up at least one 'place of safety' for the rehabilitation of such children."

(b) Juvenile Justice Act 2015

In Chapter 1(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, No. 2 of 2016, definition of terms used are explicitly stated to avoid any other interpretation of the definitions, and some of its definitions which are used in this argument are: (9) "best interest of child" means 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; (12) "child" means a person who has not completed eighteen years of age; (13) "child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence; (15) "child friendly" means any behaviour, conduct, practice, process, attitude, environment or treatment that is humane, considerate and in the best interest of the child;

(17) "Child Welfare Officer" means an officer attached to a Children's Home, for carrying out the directions given by the Committee or, as the case may be, the Board with such responsibility as may be prescribed; (18) "Child Welfare Police Officer" means an officer designated as such under sub-section (1) of section 107; (26) "District Child Protection Unit" means a Child Protection Unit for a District, established by the State Government under section 106, which is the focal point to ensure the implementation of this Act and other child protection measures in the district; (33) "heinous offences" includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more; (35) "juvenile" means a child below the age of eighteen years; (45) "petty offences" includes the offences for which the maximum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment up to three years;

(46) "place of safety" means any place or institution, not being a police lockup or jail, established separately or attached to an observation home or a special home, as the case may be, the person in-charge of which is willing to receive and take care of the 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 ongoing rehabilitation after having been found guilty for a period and purpose as specified in the order; (54) "serious offences" includes the offences for which the punishment under the Indian Penal Code or any other law for the time being in force, is imprisonment between three to seven years; (55) "special juvenile police unit" means a unit of the police force of a district or city or, as the case may be, any other police unit like railway police, dealing with children and designated as such for handling children under section 107; and (61) 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.

According to 3 of Chapter II (General Principles of Care and Protection of Children) of the Act, the Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:–– (i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years; (ii) Principle of dignity and worth: All human beings shall be treated with equal dignity and rights; (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; (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; (viii) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the processes pertaining to a 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; (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.

In 9(1) of the Act, it states, "when a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction." The board, here, means "Juvenile Justice Board". In 9(3), it states, "If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect." In 10(1) of the Act, it states, "As soon as a child alleged to be in conflict with law is apprehended by the police, such child shall be placed under the charge of the special juvenile police unit or the designated child welfare police officer, who shall produce the child before the Board without any loss of time but within a period of twenty-four hours of apprehending the child excluding the time necessary for the journey, from the place where such child was apprehended: Provided that in no case, a child alleged to be in conflict with law shall be placed in a police lockup or lodged in a jail."

According to 12 of the Act, it also states the following with regard to bail to a person who is apparently a child alleged to be in conflict with law:

"12 (1). When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person: Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.

12 (2). When such person having been apprehended is not released on bail under subsection (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.

12 (3). When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.

12 (4). When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."

According to 74 of the Act, it states the following with regard to prohibition on disclosure of identity of children:

"74 (1). No report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published: Provided that for reasons to be recorded in writing, the Board or Committee, as the case may be, holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child.

74 (2). The Police shall not disclose any record of the child for the purpose of character certificate or otherwise in cases where the case has been closed or disposed of.

74 (3). Any person contravening the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or fine which may extend to two lakh rupees or both."

According to 86 of the Act, it states the following with regard to classification of offences and designated court:

" 86 (1). Where an offence under this Act is punishable with imprisonment for a term more than seven years, then, such offence shall be cognizable, non-bailable and triable by a Children's Court.

86 (2). Where an offence under this Act is punishable with imprisonment for a term of three years and above, but not more than seven years, then, such offence shall be cognizable, non-bailable and triable by a Magistrate of First Class.

86 (3). Where an offence, under this Act, is punishable with imprisonment for less than three years or with fine only, then, such offence shall be non-cognizable, bailable and triable by any Magistrate."

According to 106 of the Act, it states the following with regard to State Child Protection Society and District Child Protection Unit:

"106. Every State Government shall constitute a Child Protection Society for the State and Child Protection Unit for every District, consisting of such officers and other employees as may be appointed by that Government, to take up matters relating to children with a view to ensure the implementation of this Act, including the establishment and maintenance of institutions under this Act, notification of competent authorities in relation to the children and their rehabilitation and co-ordination with various official and non-official agencies concerned and to discharge such other functions as may be prescribed."

According to 107 of the Act, it states the following with regard to Child Welfare Police Officer and Special Juvenile Police Unit:

"107 (1). In every police station, at least one officer, not below the rank of assistant sub-inspector, with aptitude, appropriate training and orientation may be designated as the child welfare police officer to exclusively deal with children either as victims or perpetrators, in co-ordination with the police, voluntary and non-governmental organisations.

107 (2). To co-ordinate all functions of police related to children, the State Government shall constitute Special Juvenile Police Units in each district and city, headed by a police officer not below the rank of a Deputy Superintendent of Police or above and consisting of all police officers designated under sub-section (1) and two social workers having experience of working in the field of child welfare, of whom one shall be a woman.

107 (3). All police officers of the Special Juvenile Police Units shall be provided special training, especially at induction as child welfare police officer, to enable them to perform their functions more effectively.

107 (4). Special Juvenile Police Unit also includes Railway police dealing with children."

According to 108 of the Act, it states the following with regard to public awareness on provisions of Act:

"108. The Central Government and every State Government, shall take necessary measures to ensure that—

(a) the provisions of this Act are given wide publicity through media including television, radio and print media at regular intervals so as to make the general public, children and their parents or guardians aware of such provisions;

(b) the officers of the Central Government, State Government and other concerned, persons are imparted periodic training on the matters relating to the implementation of the provisions of this Act."



To be continued....