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NO CHILD’S PLAY

If you’re a teacher or work at an institution that deals with children, beware. If you physically punish a child and are convicted of this, you’ll be fined Rs 10,000. Any subsequent conviction and you’ll be imprisoned for up to three months or fined or both. What is more, you’ll be sacked from where you work and debarred from working with children directly.

The draft Juvenile Justice (JJ) Amendments Bill, 2014, which was cleared by the Cabinet last week had also proposed to cover parents who punished their children physically, but this provision is likely to be dropped when it is presented in Parliament.

The bill’s provisions also deal with a spectrum of other subjects — ranging from abuse of disabled children to using a child for selling or carrying intoxicants or by militant groups. Some of the earlier provisions — adoption rules, ragging of children, employing them as beggars or giving them intoxicants — are also a part of the bill.

Child rights activists and lawyers are still grappling with the bill. Most feel that it is both confusing and sketchy.

The most contentious part of the bill, which has been under the scanner from the moment it was made public by the ministry of women and child development, is the bit that seeks to try offenders who are between 16 and 18 years, accused of serious crimes, in adult courts. But after feedback from experts and the public alike, the Centre has decided against this move. Instead, they would be referred to children’s courts.

As for corporal punishment, child rights activists believe that it is a form of child abuse that is yet to be stamped out. The proposed bill has defined corporal punishment under Section 2(y) as “the intentional subjecting of a child to physical punishment or mental harassment by any person with the aim of disciplining the child.”

The bill also provides for the jurisdiction of courts to conduct the trial of corporal punishment offences. These have been assigned to first-class magistrates in some circumstances and to “any magistrate” in some circumstances. “There is no logic for doing so,” says child rights lawyer Anant Asthana. “Why rule out the role of children’s courts in the trial of cases of corporal punishment?”

The bill lays down that if the management of the institution does not co-operate with any inquiry or comply with the orders of the child welfare committee (CWC) or juvenile justice board or court or state government, the person in charge of the management of the institution will be liable for imprisonment for minimum three years and may also be liable to pay a fine of up to Rs 1 lakh.

“The basic idea is to formulate a specific law on corporal punishment so as to stop the torture and abuse that often takes place in children’s shelter homes and schools. There are endless instances of children being abused in shelter homes and schools. This should stop,” says an official at the ministry of women and child development.

Senior advocate and human rights activist Colin Gonsalves sees it as a strong indictment clause and a welcome step to deal with teachers and outsiders. “But I am particularly worried about parents. The word ‘hurt’ should be carefully defined so that parents don’t get into trouble for causing a slight hurt or a very minor offence,” he says.

The move to refer those between 16 and 18 years, accused of serious crimes, to children’s courts has attracted flak. This modification is going to make matters worse, child rights activists say. “First, there are very few children’s courts in our country. Besides, these courts by the very definition have been created to hear cases of offence against children. They are meant to hear child victims. These courts are not acquainted with the nuances of the JJ Act,” says Bharti Ali, co-founder, HAQ: Centre for Child Rights, New Delhi. “For child offenders there is a juvenile justice board. Why unnecessarily complicate matters?”

The bill also has strict penal provisions for any kind of offence against disabled children. If convicted, the person will suffer twice the punishment imposed generally. “Disabled children are still kept outside the social mainstream and are often victims of abuse both at homes and schools. Doubling the penalty will act as a deterrent,” says Monidipa Ghosh, assistant director, CINI Urban Unit, which runs Childline 1098, Calcutta.

But lawyers and activists also point out a few anomalies in the proposed amendments. “There is a huge contradiction in this Juvenile Justice Bill. On the one hand you are punishing those meting out corporal punishment to discipline a child. On the other, you are keeping provisions to punish juveniles between 16 and 18 for heinous crimes,” Ali of HAQ says.

Arlene Manoharan, research fellow and programme head, juvenile justice, Centre for Child and the Law, NLSIU, Bangalore, stresses that it is a “misconception” that the existing JJ Act gives impunity to juveniles who commit crimes.

‘‘The existing law provides for juveniles to be held accountable for their actions, but in a manner that enables them to re-integrate into the community with dignity and hope. Also, evidence from across the world shows us that sending children to the adult justice system produces career criminals,” she says.

Some other provisions are vague. For example, anybody caught “indulging in immoral act” cannot be appointed as a member of the juvenile justice board. “What comprises an immoral act? It’s subjective and arbitrary,” Asthana holds.

Experts also feel that some technical issues, which, if left unresolved, will create problems in implementation. For example the CWCs are being put under two appellate jurisdictions — superior courts as well as those of the district magistrate. Lawyers and activists fear that diluting the CWC’s status as a judiciary body would weaken its authority while delivering justice to children.

Yet some activists think that the anomalies will eventually be sorted out. “I am optimistic that if the bill goes to a parliamentary committee for review, many of these concerns will be resolved. The possibility of life imprisonment with the possibility of parole, judicial waiver, use of criminal law standards for defining serious and heinous offences, and the removal of children courts’ jurisdiction from certain kind of offences under this bill need to be looked at and resolved,” Asthana says.