Centre for Child and the Law, National Law School of India University, 28 May 2011 Juvenile Justice

Board, Child Welfare Committee and Commission for Protection of Child Rights A Comparative Table

Sl.No 1.

Parent Act

2. 3.

Constituting Authority Constitution

JJB The Juvenile Justice Board (JJB) is constituted under The Juvenile Justice (Care and Protection of Children) Act 2000 (JJ Act)1 State Government4

CWC The Child Welfare Committee (CWC) is constituted under The Juvenile Justice (Care and Protection of Children) Act 20002 State Government5

The State Government may constitute one The State Government may or more JJBs in each District.7 constitute one or more CWCs in each District.8 for Within one year from the date of the commencement of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 JJB comprises of one Magistrate and two social workers as members.9 Out of two

4.

Time frame constituting body Composition

5.

Within one year from the date of commencement of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 CWC comprises of one NCPCR/SCPCR comprises of one Chairperson and Chairperson and four members and six members, among the six members, at least two

CPCRs The National/State Commission for Protection of Child Rights (NCPCR/SCPCR) are constituted under The Commissions for Protection of Child Rights Act 2005 (CPCR Act)3 Central Government is responsible for constituting the NCPCR and the State Government is responsible for constituting SCPCR6 The NCPCR shall be constituted by the Central Government at national level and the SCPCR is to be constituted by the respective State Government at state level. No time frame has been provided for constituting the NCPCR/SCPCR

1 2

Section 4 (1) of JJ Act Section 29(1) of JJ Act 3 Section 3 (1) and 17(1) of CPCR Act 4 Section 4(1) of the JJ Act
5

Section 29(1) of JJ Act Section 3(1) and 17 (1) of CPCR Act Section 4(1) of JJ Act. Section 29(1) of JJ Act

7 8

 Centre for Child and the Law, National Law School of India University, 28 May 2011 members one shall be a woman.10 of the four members at least one shall be a woman and another an expert on matters concerning children.11 (1) A person to be selected as a Chairperson or Member of the Committee shall have either of the following qualifications, in addition to a minimum of seven years experience in their respective field: (i) a person with post graduate degree in social work, psychology, child development, education, sociology, law, criminology and, where such a person is not available, a person with at least a graduate degree in any of the social science disciplines; (ii) a teacher, doctor or a social worker who has been involved in work concerning children. (2) The Chairperson or Member of the Committee shall be a person not less than 35 years of age. Disqualifications shall be women.12

6.

Qualifications

The Principal Magistrate shall be a Metropolitan Magistrate or a Judicial Magistrate of First Class and the members shall be persons having special knowledge or training in child psychology or child welfare or a social worker who has been actively involved in health, education, or welfare activities pertaining to children for at least seven years.13 The social worker to be appointed shall be one Who is not less than 35 years of age, who has a post-graduate degree in social work, health, education, psychology, child development or any other social science discipline and has been actively involved and engaged in planning, implementing and administering measures relating to child welfare for at least seven years

The Chairperson shall be a person who has done outstanding work for the promoting welfare of the children. The members shall be among persons of eminence, ability, integrity, standing and experience in (i) education (ii) child health, care, welfare or child development; (ii) juvenile justice or care of neglected or marginalized children or children with disabilities; (iv) elimination of child labour or children in distress; (v) child psychology or sociology and (vi) law relating to children.16 Disqualifications No person having any past record of violation of human rights or child rights shall be eligible for appointment as Chairperson or other Members of the Commission.17

10

Section 4(2) of JJ Act Section 4(2) of the JJ Act.

11 12

Section 29(2) of JJ Act Section 3(2) and 17(2) of CPCR Act. 13 Section 4 (2) and (3) of the JJ Act.

 Centre for Child and the Law, National Law School of India University, 28 May 2011

Disqualifications A person shall not be considered for selection as a Member of the Board if(a) has been convicted under any law; (b) have ever indulged in child abuse or employment of child labour or any other human rights violations or immoral act; (c) is holding such other occupation that does not allow him to give necessary time and attention to the work of the Board; (d) does not fulfill the qualification and experience prescribed in the Act and the rules made there under and in such a case the Selection Committee shall after due inquiry and on establishment of such fact, reject his application and recommend the name of the next person from the list of names prepared for filling the vacancies.14 .

No person shall be considered for Selection as a Chairperson or Member of the Committee, if he,(i) has a previous conviction record; (ii) has been involved in any immoral act or in an act of child abuse or employment of child labour; (iii) is holding such full-time occupation that may not allow him to give necessary time and attention to the work of the Committee as per the Act and these rules; (iv) does not fulfill the qualification and experience prescribed in the Act and the rules made thereunder, and in such a case the Selection Committee shall after due inquiry and on establishment of such fact, reject his application and recommend the name of the next person from the list of names prepared for filling the vacancies.15 As per the Model Rules the tenure of the CWC shall be three years and the tenure of the Chairperson and Members shall be co-terminus with the tenure of the Committee.19(may The term of office of Chairperson and every members of the N/SCPCR is three years from the date on which he assumes office.20 However, the Chairperson or Member cannot hold office after he has attained the age of sixty-five years and sixty

7.

Tenure

As per the Juvenile Justice (Care and Protection of Children) Rules, 2007 (also known as the Model Rules), the tenure of the JJB shall be three years and the appointment of the members shall be co-

14

Rule 7, JJ Model Rules 2007. Rule 22, JJ Rules, 2007

15

 Centre for Child and the Law, National Law School of India University, 28 May 2011 terminus with the tenure of the Board18. differ across states as per the State years respectively. (may differ across states as per the State Rules) Rules) 8. Mandate The JJB handles cases involving juvenile in conflict with law. As per the JJA juvenile in conflict with law means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of the commission of such offence.21 The CWC handles children who are in need of care and protection. As per JJ Act a child in need of care and protection means a child i. who is found without any home or settled place or abode and without any ostensible means of subsistence, i (a) who is found begging, or who is either a street child or a working child,22 ii. who resides with a person (whether a guardian of the child or not) and such persona. has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or b. has killed, abused or neglected some other child or children and there is a reasonable likelihood of The NCPCR/SCPCR handles all cases of child rights violations. According to the NCPCR Act, 2005, child rights includes the children's rights adopted in the United Nations convention on the Rights of the Child on the 20th November, 1989 and ratified by the Government of India on the 11th December, 1992.24 The Commissions are also entrusted to handle complaints relating to violation of childrens right to free and compulsory education as per The Right of Children for Free and Compulsory Education Act, 2009. (RTE Act).25

17

Rule 3, NCPCR Rules 2006.

16 18

Section 3(2) and 17 (2) of CPCR Act Rule 6(1) of JJ Model Rules 2007. 19 Rule 21(1) of JJ Model Rules 2007. 20 Section 5(1) and 19(1) of CPCR Act. 21 Section 2(l) of JJ Act.
22

Inserted by Section 4 of the JJ (Amendment) Act, 2006.

 Centre for Child and the Law, National Law School of India University, 28 May 2011 the child in question being killed, abused or neglected by that person, iii. who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after, iv. who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child, v. who does not have parent and no one is willing to take care of or whose parents have abandoned or surrendered him or who is missing and run away child and whose parents cannot be found after reasonable inquiry, vi. who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts, vii. who is found vulnerable and is likely to be inducted into drug abuse or trafficking, viii. who is being or is likely to be abused for unconscionable gains, ix. who is victim of any armed conflict, civil commotion or natural calamity;23

23 25

Section 2(d) of JJ Act Section 31(1) of RTE Act.

 Centre for Child and the Law, National Law School of India University, 28 May 2011

9.

Meetings/Sittings

Premises- The Board shall hold its sittings in the premises of an Observation Home or, at a place in proximity to the observation home or, at a suitable premise in any institution run under the Act, and in no circumstances shall the Board operate from within any court premises. The premises where the Board holds its sittings shall be child-friendly and shall not look like a court room in any manner whatsoever

Premises- The Committee shall The NCPCR shall meet regularly as the Chairperson hold its sittings in the premises thinks fit, but three months shall not intervene of the childrens home or, at a place between its last and next meeting.28 in proximity to the childrens home or, at a suitable premise in any institution run under the Act

If circumstances are such that the child or children cannot be produced before the Committee, the Committee may move out to reach the child or children and hold its sitting at a place that is convenient Frequency- The Board shall meet on all for such child or children. working days of a week, unless the case pendency is less in a particular district and The premises where the Committee concerned authority issues an order in this holds its sittings shall be childregard. friendly and shall not look like a court room in any manner Minimum Attendance- A minimum of whatsoever. three-fourth attendance of the Chairperson and Members of the Board is necessary in Frequency- The Committee shall a year. meet a minimum of three days a week, which may be extended by Every member of the Board shall attend a the State Government depending on minimum of five hours per sitting.26 case and pendency of work. A minimum of three-fourth attendance of the Chairperson and Members of the Committee is necessary in a year. Every member of the Committee

 Centre for Child and the Law, National Law School of India University, 28 May 2011 shall attend a minimum of four hours per sitting. Duration- dependent on pendency of work before Committee.27 10 . Time limit completion inquiry. for The inquiry has to be completed by the of Board within four months from the date of its commencement which might be extended upto six months in rarest cases, on recording the reasons for such delay, in writing.29 Opinion of the majority shall prevail, if there is any difference of opinion among the members. But in the absence of majority, the opinion of the Principal Magistrate shall prevail.31 The Board shall act as a Bench and shall the the

The inquiry has to be completed by No such time limit is stipulated in the legislation for the Committee within four months completion of inquiry by the Commission. from the date of receipt of order and can be extended by such period as committee may determine, on recording the reasons in writing.30 Opinion of the majority shall prevail, if there is any difference of opinion among the members. But if there is no such majority opinion the opinion of the Chairperson shall prevail.32 In NCPCR/SCPCR the majority opinion shall prevail but in case of equality of votes, the Chairperson, or in his absence the person presiding, shall have and exercise a second or casting vote. 33

11 .

Decision-making

12
24

Powers

The Committee shall act as a Bench The Commission shall, while inquiring into any

Section 2 (b) of CPCR Act Rule 9 of the JJ Model Rules 2007. Rule 24 of the JJ Model Rules 2007.

26

27

28 29

Section 10(1) of CPCR Act. Proviso to Section 14(1) of JJ Act 2000 and Rule 13(6) of JJ Model Rules 2007. 30 Section 33(2) of JJ Act 2000 and Rule 22 (4) of JJ Model Rules 2007. 31 Section 5 (4) of JJ Act 32 Section 30(3) of JJ Act 33 Section 10(2) of CPCR Act.

 Centre for Child and the Law, National Law School of India University, 28 May 2011 have the powers conferred by the Code of Criminal Procedure, 1973, on a Metropolitan Magistrate or as the case may be, a Judicial Magistrate of first class.34 and shall have the powers conferred by the Code of Criminal Procedure, 1973, on a Metropolitan Magistrate or as the case may be, a Judicial Magistrate of first class.35 matter shall have all the powers of a civil court as trying a suit under the Code of Civil Procedure, 1908. 36 These are the powers of(a) summoning and enforcing the attendance of any person and examining him on oath;. (b) discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; and (e) issuing commissions for the examination of witnesses or documents.37 Also, under Section 14(2) of the NCPCR Act, 2005, the Commission shall have the power to forward any case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973. 13 . Orders that can be Where the JJB is satisfied on inquiry that passed/steps after a juvenile has committed an offence, then inquiry notwithstanding anything to the contrary contained in any other law for the time being in force, may pass the following orders : Under Section 33(4) JJ Act, after the completion of the inquiry, if, the Committee is of the opinion that the child has no family or ostensible support or is in continued need of care and protection, it may

After the enquiry under Section 13(1)(j) of the NCPCR Act, the Commission can, (1) where the inquiry discloses, the Commission of violation of child rights of a serious nature or contravention of provisions of any law for the time

34 35

Section 4(2) of JJ Act Section 29(5) of JJ Act. 36 Section 14(1) of CPCR Act. 37 Section 14(1) of the NCPCR Act, 2005.

 Centre for Child and the Law, National Law School of India University, 28 May 2011 (a) allow juvenile to go home after advice or admonition and counsel parents/ guardian, and the child; (b) direct the juvenile to participate in the group counselling and similar activities; (c) order the juvenile to perform community service (d) order the parent of the juvenile or the juvenile himself to pay a fine, if juvenile is above 14 years of age and earns money; (e) direct the juvenile to be released on probation of good conduct, and place under care of parent, guardian or other fit person, or such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and wellbeing of the juvenile for any period not exceeding three years; (f)- direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for not exceeding three years (g) direct the juvenile to be sent to a Special Home for a period of three years provided that the Board may if it is satisfied that having regard to the nature of offence and the circumstances of the case, it is expedient to do so, may reduce the period of stay to such period as it thinks fit. It would record the reasons for reducing the duration. The JJB cannot sentence the juvenile to death or imprisonment for any term which allow the child to remain in the childrens home or shelter home till suitable rehabilitation is found for him or till he attains the age of eighteen years.39 The Committee can order the transfer of a child who hails from a place outside the jurisdiction, to the competent authority having jurisdiction over the place of residence of the child.40 The Committee shall have powers to restore any child in need of care and protection to his parent, guardian, fit person or fit institution and give them suitable directions. Restoration of and protection of a child means restoration to parents, adopted parents, foster parents, guardian, fit person, fit institution.41 being in force, it may recommend to the concerned Governmentor or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons; (2) approach the Supreme Court or the High Court concerned for such direction, orders or writs as that Court may deem necessary; (3) recommend to the concerned Government or authority for the grant of such interim relief to the victim or the members of his family as the Commission may consider necessary. 42

 Centre for Child and the Law, National Law School of India University, 28 May 2011 may extend to imprisonment for life or commit to prison in default of payment of fine or in default of furnishing security, provided the Board can order the juvenile to be kept in place of safety and report the case for the order of State Government38 14 . Nature of decisions The decision taken by the Board shall be binding as it is a judicial order. The decision taken by the The decision taken by the Commission shall be only Committee shall be binding as it is of recommendatory nature and thus not binding. .43 a judicial order.

38

Section 16 of JJ Act Inserted by the JJ (Amendment) Act 2006 Section 38 (1) of JJ Act Section 39 (3) of JJ Act Section 15, CPCR Act. Section 15 of CPCR Act.

39

40

41

42

43

 Centre for Child and the Law, National Law School of India University, 28 May 2011 15 . Functions The Board performs the following functions:-44 a) adjudicate and dispose cases of juveniles in conflict with law; The Committee performs the following functions:- 45 (a) take cognizance of and receive children produced before the Committee; The Commissions perform the following functions:-46 (a) examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation; . (b) present to the Central Government, annually and at such other intervals, as the Commission may deem fit, reports upon the working of those safeguards; (c) inquire into violation of child rights and recommend initiation of proceedings in such cases (d) examine all factors that inhibit the enjoyment of rights of children affected by terrorism, communal violence, riots, natural disaster, domestic violence, HIV /AIDS, trafficking: maltreatment, torture and exploitation, pornography and prostitution and recommend appropriate remedial measures; . (e) look into the matters relating to children in need of special care and protection including children in distress, marginalized and disadvantaged children, children in , conflict with law, juveniles, children without family and children of prisoners and recommend appropriate remedial measures; (f) study treaties and other international instruments

(b) take cognizance of crimes committed over children like cruelty on child, (b) decide on the matters brought employment of child or sing child for before the Committee; begging, giving intoxicants to children, exploitation of child or child employee. (c) reach out to such children in need of care and protection who are (c) monitoring institutions for juveniles in not in a position to be produced conflict with law and seeking compliance before the Committee, being in from them in cases of any noticeable difficult circumstances, with lapses and improvement based on support from the District Child suggestions of the Protection Unit or State Child Board; Protection Unit or the State Government; (d) deal with non-compliance on the part of concerned government functionaries or (d) conduct necessary inquiry on all functionaries of voluntary organizations, issues relating to and affecting the as the case may be, in accordance with safety and well being of the child; due process of law; (e) direct the Child Welfare (e) pass necessary direction to the district Officers or Probation Officers or non-governmental organisations to authority and police to create or provide conduct social inquiry and submit a necessary infrastructure or facilities so report to the Committee; that minimum standards of justice and treatment are maintained in the spirit of (f) ensure necessary care and the Act protection, including immediate
44 45

Rule 10 of JJ Model Rules 2007. Rule 25 of JJ Model Rules 2007. 46 Section 13 (1) of CPCR Act 2005

 Centre for Child and the Law, National Law School of India University, 28 May 2011 (f) maintain liaison with the Committee in shelter; respect of cases needing care and protection; (g) ensure appropriate rehabilitation and restoration, including passing (g) liaison with Boards in other districts to necessary directions to parents or facilitate speedy inquiry and disposal of guardians or fit persons or fit cases through due process of law; institutions in this regard, in (h) take suitable action for dealing with addition to follow-up and unforeseen situations that may arise in the coordination with District Child implementation of the Act and remove Protection Unit or State Adoption such difficulties in the best interest of the Resource Agency and other juvenile. agencies; (i) send quarterly information about juveniles in conflict with law produced before them, to the District, State Child Protection Unit, the State Government and also to the Chief Judicial Magistrate or Chief Metropolitan Magistrate to increase the frequency of sittings or for constituting additional Boards; (j) any other function assigned by the State Government from time to time relating with juveniles in conflict with law. (h) direct the Officer-in-charge of childrens homes to receive children requiring shelter and care; (i) document and maintain detailed case record along with a case summary of every case dealt by the Committee; (j) provide a child-friendly environment for children; and undertake periodical review of existing policies, programmes and other activities on child rights and make recommendations for their effective implementation in the best interest of children; (g) undertake and promote research in the field of child rights; (h) spread child rights literacy among various sections of the society and promote awareness of the safeguards available for protection of these rights through. publications, the media, seminars and other available means; (i) shall inspect or cause to be inspected any juvenile custodial home, or any other place of residence or institution meant for children, under the control of the Central Government or any State Government or any other authority, including any institution run by a social organisation; where children are detained or lodged for the purpose of treatment, reformation or protection and take up with these authorities for remedial action, if found necessary;

(j) inquire into complaints and notice of matters (k) recommend fit institutions to relating to,the State Government for the care (i) deprivation and violation and protection of children; (ii) non-implementation of laws providing for protection and development of children; (l) declare fit persons; (iii) non-compliance of policy decisions, guidelines or instructions aimed at, mitigating

 Centre for Child and the Law, National Law School of India University, 28 May 2011 (m) declare a child legally free for hardships to and ensuring welfare of the children adoption; and to provide relief to such children; or take up the issues arising out of such matters with (n) keep information about and take appropriate authorities; necessary follow-up action in respect of missing children in their (k) such other functions as it may consider jurisdiction; necessary for the promotion of child rights and any other matter incidental to the above functions. (o) maintain liaison with the Board in respect of cases needing care and protection; (p) visit each institution where children are sent for care and protection or adoption at least once in three months to review the condition of children in institutions, with support of the State Government and suggest necessary action; (q) monitor associations and agencies within their jurisdiction that deal with children in order to check on the exploitation and abuse of children; (r) co-ordinate with the Police, Labour Department and other agencies involved in the care and protection of children with the support of District Child Protection Unit or State Child Protection Unit

 Centre for Child and the Law, National Law School of India University, 28 May 2011 or State Government; (s) liaison and network with corporate sector and NGOs for any of the above functions including for social inquiry, restoration and rehabilitation, as and when required (t) maintain a suggestion box to encourage inputs from children and adults alike and take necessary action.

16 .

Appeal

An appeal can be made to the Sessions Court against any order of the JJB within thirty days from the date of the order, except in cases where the juvenile has been acquitted and no second appeal shall lie from any order of the Sessions Court.47

An appeal can be made to the There is no provision for appeal against the Sessions Court against any order of recommendations made by the Commission as these the CWC within thirty days from are non-binding. the date of the order except in cases where an order has been made by the Committee finding that a person is not a neglected child and no second appeal shall lie from any order of the Sessions Court. 48

47 48

Section 52(1) and 2 (g) of JJ Act 2000 Section 52(1) and 2 (g) of JJ Act 2000.