???? : 21st Feb2021    ⌚ : 20 Minutes   

GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation. Development processes and the development industry -the role of NGOs, SHGs, various groups and associations, donors, charities, institutional and other stakeholders. Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

 Note

• Following is the summary of ‘The Big Picture’ discussion, which was aired on RSTV.
• Host: Frank Rausan Pereira
• Panellists: Deepak Kumar, Former CEO, Central Adoption Resource Authority; Rosi Taba, Member, National Commission for Protection of Child Rights; Manoj Kumar Rai, Director, Government of UP.
• Please note that some inputs have been given by our team in order to make the topic more relevant to UPSC.

Context

• Recently, the Union cabinet has approved comprehensive amendments in the Juvenile Justice (Care and Protection of Children) Act, 2015 to enhance protection of children and strengthen the monitoring system of agencies pertaining to childcare.

Prelims Focus

Approved Changes

• The changes are aimed at strengthening the provisions of the law and the agencies concerned with childcare and protection of the children.
• The act expands the definition of children in the need of care and includes victims of drug abuse, child trafficking and child labour. It also includes those children who have been abandoned by their guardians.
• It also defines the eligibility parameters of the members of the Child Welfare Committee.
• The act now empowers the District Magistrate to issue orders for adoption and monitor the implementation of the act.
• The District Child Protection Units will function under the DMs and he will be responsible for assessing the capacity and conduct a background check on a person who wishes to establish a shelter home for children.
• The DM would also be responsible for evaluating the functioning of the Child Welfare Committee, Special Juvenile Protection Units and other registered childcare institutes.

Juvenile Justice Act: Juvenile Justice (Care and Protection of Children) Act, 2015 or JJ Act was passed in 2015. It categorises the children in 2 categories: Children in need of protection Children in conflict with the law The act was enacted to make Indian laws compatible with UN Convention on the Rights of the Child.It has given statutory status to Central Adoption Resource Authority (CARA).

 

UN Convention on the Rights of the Child (UN-CRC): The convention was signed in 1989 and it became effective in 1990. It is an international agreement which sets out the rights of the child. It is one of the most accepted international treaty, with almost all members of UN as members, with notable exception of the United States, which has signed but not yet ratified it. India is a member of the convention.

Mains Focus

Reasons for the changes

• Provision of care and love: It is important for the children to be united with a caring family, so that they can experience love and care which they deserve. The accidents of nature cannot be allowed to interfere with the nurturing process of children and scar their intellects forever.
  • However, it is important to ensure that the foster care which is provided to the children are sensitive towards their needs and are equipped with the required facilities.
• Supervisory architecture: The law is managed by multiple institutions at the district level, including Child Welfare Committee and District Child Care Protection Unit. The problem with these institutions is in multiple dimensions:
  • Although the qualifications of the members of these committees are mentioned in the act, there was a need for further clarification to find the appropriate persons who would be sensitive to the concerns of the children.
  • At the same time, it was always not possible to find the qualified persons in many states as the states (like Arunachal Pradesh) face shortage of qualified personnel as well as lack of interest for such posts.
  • Similarly, the District Child Protection Units were headed by an officer who is low in hierarchy, thereby preventing effective authority and undermining coordination with various other governmental agencies. Also, sometimes the units were being supervised by contractual or ad-hoc staff. Transferring the authority to an empowered officer like DM raises the respect commanded by the authority at the institutional level.
  • The amendment also eases the burden on monitoring agencies like National Commission for the Protection of Children (NCPCR), who now have to coordinate with the executive directly, rather than facing a plethora of defunct institutions.
• Overburdened Judiciary: The adoption orders under the JJ Act were being pronounced by the judiciary. This was leading to a huge delay as the judiciary is already over-burdened by the huge pendency. This was effectively leading to over-shooting the prescribed timelines in the case of adoptions, causing various issues like difficulty in adoption process, lapsing of the insurance policies and delays in admission to the educational institutions.
  • Shifting the adoption mechanism to the executive decreases the delays and provides redressal to the grievances related to time over-runs. The adoption cases usually involve a quick verification of facts, and no witnesses and evidences are required. Therefore, the cumbersome procedures of Civil Procedure Code are not applicable here and the nature of cases is fit to be dealt by the executive itself.
  • Also, it has to be kept in mind that the judiciary is an institution whose primary aim is to pronounce decisions between two adversaries. This means that the decisions so pronounced are by definition, favourable to a party and against a party. Therefore, it is important to take due care in such cases. However, the adoption cases usually have no such compulsions and all stakeholders benefit from an early decision. Therefore, it makes sense to shift the procedure to the executive from judiciary.
• Ensuring Accountability: Media reports had pointed to the disconnected nature of relationship between the two important institutions viz. Child Welfare Committee and District Child Care Protection Unit. The amendment brings the executive into the picture and ensures accountability by shifting the burden to the executive. It also clarifies the role and responsibilities of the different institutions per se, so that the conflicts can be addressed and multiplicity of institutions does not lead to problems in implementation of the act.
• Simplification of Procedure: The amendment tries to simplify the procedure of child care and adoption by creating a chain of command in a hierarchical structure, which ensures proper information flow. This information flow would ensure faster resolution of cases and would bring satisfaction to the children in need of care as well as the prospective parents, who will find it easier to ensure compliance to the law.

Perceived Benefits from the amendment

• Overcoming Implementation issues: Making the DM the fulcrum would ensure better check mechanism and faster decision making as he will be the single check point under which the District Child Care Protection Units and Child Welfare Committees will function. Therefore, shifting the accountability to the DM would ensure frequent inspections and faster decision making for the involved institutions.
• Strengthening of the Act: The Juvenile Justice Act has been appreciated by the United Nations and other such agencies for being a robust act, protecting the rights of children and ensuring safety for them. The act has been completely in sync with the UN Convention on Rights of the Children (UNCRC). Therefore, the amendments are well in line to make the act a model act to be followed by other countries in the case of inter-country transfers and for adoption in their respective domestic territories.
• Widening the scope of the Act: The act also includes the children who are victims of child trafficking and puts them under the category of Children in need of protection. This is important as there are cases where children could not be ensured adequate protection because of the confusion caused by the multiplicity of agencies like Ministry of Women and Child Development, Child Welfare Committee, District Child Care Protection Unit etc. Pinpointing the authority in such cases would avoid such scenario and ensure protection for the children.

Existing Challenges

• Lack of Awareness: It has been found that the CWC members are not properly equipped to handle the cases as they are not aware of the details of the law. Therefore, a lack of intellect combined with lack of knowledge leaves the officials unable to discharge their duties effectively and the cases continue to linger, without a proper resolution.
• Overburdened Officials: The officials are in charge of multiple portfolios like ensuring law and order, promoting growth and development, providing social protection etc. Therefore, they are unable to keep a tab on the cases under Juvenile Justice Act and have to admit ignorance in front of the monitoring agencies.
• Lack of Training Programmes: There is a need to ensure that the officials are aware of the nitty-gritties of the law and they can take necessary action as and when required under the law. This can only be ensured by a proper training programme for the officials. For e.g., the state of Uttar Pradesh has taken an initiative to ensure training of officials in coordination with UNICEF, to ensure better understanding among the Child Welfare Committee members.
• Hardening of criminals: There is a need to segregate children committing serious and petty crimes from the children committing heinous crimes. It is to be understood that a child in conflict with the law is actually a failure of the society in general, which was unable to provide conditions for better development of the child. Therefore, it has to be ensured that the bail is granted in such cases where the child can be brought back under the morals of the society and is prevented from being hardened as a criminal in the company of repeat offenders.
• Following the spirit of the act: The act seeks to ensure protection for the children in need of care and reform the children in conflict with law. Therefore, it is important to ensure that the judiciary is sensitised in such a manner that the focus shifts to bringing the child into the fold of society rather than enforcing punishment for the past acts.
• Prioritising the act: There is a need to keep the issue at the top of agenda as the district magistrates are already involved in multiple decision making roles and may push the issues under juvenile justice act to the backburner. Therefore, constant reminders need to be sent to the district executive to keep them updated about the act as well as keep reminding them about the urgency of resolution of such cases as the rights of the children need to be kept prioritised.
• Better Coordination: Since the law requires coordination at multiple levels, therefore it is important to ensure better coordination both between the federal entities i.e. central and state governments, as well as the multiple organs of the government, viz. executive and the judiciary.

Way Forward

• Better implementation: As already mentioned, Juvenile Justice Act is an internationally acclaimed act and has garnered praise from the United Nations as well as different countries. However, it is to be remembered that no law can serve its purpose if its implementation is lax. Therefore, it is important to ensure effective implementation of the law.
• Empowerment of the stakeholders: It is critical to ensure that the agencies are empowered as the law ensures rights of the children and the child rights need to be prioritised to the top of the stack. A shortcoming in the implementation of the act would only be harmful for the upcoming generation and jeopardise the social as well as economic development.
• Reconciliation of the ambiguities: There is a need to develop sympathetic attitude for the children, as the focus needs to be making the children an integral part of the society. Ostracising the children in conflict with the law is counter-productive as it only increases the alienation of such children and makes the society unsafe, besides spoiling the future of a child.
• Attitudinal Change: The law is welcome but it is important that the law is communicated properly to the district officials and they understand it to the last detail. Lack of awareness cannot be accepted as an excuse for letting the children languishing in detention centres and not giving them the proper care which they deserve.
• Deinstitutionalisation: It is important to ensure a loving and caring environment for the children, as the children need to be allocated proper foster care, rather than being in the Child Care Institutions. Despite the acts of nature, proper development of the children a societal responsibility and ensuring a fulfilling childhood is its integral part.

Conclusion

• The act is a much-needed change as it ensures proper accountability of the act and provides protection to the children in need.
• However, it is important to understand that each district is unique in itself and therefore, the officials need to be adequately empowered to ensure proper implementation as per the local setting.

Practice Question

• Enumerate the important provisions in the amendment to the Juvenile Justice Act. Also, discuss how these provisions enhance the protection of the children, while at the same time ensuring the accountability of the executive.

UPSC Previous Year Question

• “If the amendment bill to the Whistleblowers Act, 2011 tabled in the Parliament is passed, there may be no one left to protect.” Critically evaluate.                                                                                                                                                                             (GS2 – 2015)
• Examine critically the recent changes in the rules governing foreign funding of NGOs under the Foreign Contribution (Regulation) Act (FCRA), 1976.                                                                                                                                                                    (GS2 – 2015)