How recent amendments to the Juvenile Justice Act threaten years of progress
Children are sold in the market like potatoes, tomatoes and onions, said additional sessions judge Kamini Lau in a landmark 2014 order, where she reiterated the recommendations of the Law Commission made in 1993 to prohibit the sale of children. In 2013, the Kerala High Court similarly emphasised the need for implementation of recommendations of the Law Commission. But until 2015, the sale of children, except for the purpose of prostitution and trafficking, was not classified as an offence.
The Juvenile Justice (Care and Protection of Children) Act 2015 changed that. It declared the sale and procurement of children an offence punishable with imprisonment that may extend up to five years, and made the offence cognisable which meant that the police is mandated to register a First Information Report (FIR) and begin an investigation.
Six years on, the progress made on this is threatened. The Juvenile Justice (Care and Protection of Children) Amendment Act, 2021, passed by Parliament last year, classified the offence of sale and procurement of children as non-cognisable. Section 155(2) of the Criminal Procedure Code bars the police from registering an FIR or investigating a case without the permission of the judicial magistrate in non-cognisable offences. The aggrieved must first approach the magistrate and seek directions to the police for registration of FIR so that the investigation can begin.
Most crimes against children are committed against Dalit, Muslim, transgender and poor kids. Given the institutional disadvantage, they struggle to navigate the legal processes. The classification as non-cognisable compels them to hire advocates, rendering the legal process a cruel joke for these vulnerable communities. Given the poor can hardly afford advocates, and that the state of free legal aid is shambolic, the sale and procurement of children is an offence that the government appears to have turned a blind eye to.
I am not even accounting for the time lost in hiring an advocate, approaching a judicial magistrate, and seeking direction for the police to register an FIR. Those seeking time to destroy evidence have found great allies in those in power. The new law does further damage in classifying all the offences under the Juvenile Justice Act 2015 that are punishable for up to seven years as non-cognisable. The amendment changes the classification of eight offences from cognisable to non-cognisable. This includes employment of children for begging, cruelty inflicted on the children by the staff of children homes and use of children by militant groups. In none of these can the police automatically start investigations.
The United States Congress-mandated 2020 Trafficking in Persons Report states that children as young as 14 are recruited by militants to handle weapons and Improvised Explosive Devices. The law must provide them relief.
At a loss to make sense of the rationale, I turned to the parliamentary debate. The speech of the minister in-charge provides no clarification and doesn’t even mention this change in classification. In the Lok Sabha, two members spoke about this but supported the provision, believing it shields children in conflict with the law from arrest without warrant. But children’s protection from arrest does not come from this section.
The President has already given his assent to the bill, making it a law. The central government is, however, yet to notify the enforcement of the Act. I hope wisdom prevails and the Government of India amends the provision instead of notifying the enforcement.
Nearly 410,000 crimes against children have been reported in the past three years, according to the National Crime Records Bureau. In 1993, the sale of a child for ₹12,000 went unpunished by the local trial court as there was no law in this regard. In 2014, justice Lau acquitted the staff of a hospital who attempted to sell a one-month-old baby. The 2015 law changed this by making the sale and procurement of children illegal.
But the new amendment may ensure that police maintain the records, but not investigate the crime. Historians in the future may point to this as the turning point in our quest to secure our children.