Reclassifying serious offences unconstitutional, correct it, 5 child rights bodies write to Centre

New Delhi: Child rights bodies of five states and union territories have now written to the Union Women and Child Development Ministry highlighting that the most recent amendment to the Juvenile Justice Act with relation to reclassifying serious offences committed upon children as non-cognizable is regressive, unconstitutional, and a significant departure from settled criminal jurisprudence.

The State Commissions for the Protection of Child Rights in Delhi, West Bengal, Chandigarh, Punjab and Rajasthan have pointed out now that the 2021 amendment to Section 86(2) reclassifies serious offences (punishable with 3-7 years jail) as non-cognizable - which will make the registration of FIR in these cases much more difficult.

The offences to which this amendment would apply include cruelty to child by the CCI staff; employment of child for begging; giving intoxicating liquor or narcotic drug of psychotropic substance to a child; using a child for vending, peddling, carrying, supplying

or smuggling any intoxicating liquor, narcotic drug of psychotropic substance; exploitation of a child employee; sale and procurement of children for any purpose; use of children by militant groups or other adults for legal or illegal purposes.

Under the Criminal Code of Procedure, making an offence non-cognizable means that a police officer would not be empowered to register a case and begin an investigation even if they receive information about it.

The police will only be able to register an FIR if a magistrate orders it - compelling the complainant to first make a case before the concerned magistrate.

While the amendment has received the President's assent and the date of its commencement is yet to be notified, the five child rights bodies have now recommended that the Union government not notify the amendment and instead bring a Bill in Parliament to correct this error, adding that they will be forced to move the concerned High Court or the Supreme Court if the Centre does not consider their recommendation.

Speaking to Millennium Post, Ananya Chakraborti Chatterjee, Chair of the WB SCPCR, said, "This is totally against basic tenets of child rights. As defenders of child rights, we are dumbfounded. We hope the Centre considers our recommendations soon and will now wait for a few weeks before deciding our next course of action."

Punjab SCPCR Member, Ravee Singh Ahluwalia also expressed his concerns saying that such an amendment, if notified, might increase the use of children in cross border drug trafficking and terror activities - especially in Punjab.

The rights bodies have noted that the Cente's justification for making serious offences non-cognizable is that it will protect children in conflict with the law from arrest without warrants - but said that this rationale is misplaced because CCLs draw their protection from Rule 8 of the Model Rules under the JJ Act (which remains) and not from Section 86 of it.

In their letter to the Union government, the child rights bodies have said, "The amendment makes the prosecution of the offence more difficult, expensive, and time consuming for no apparent reason..." They also pointed out in the April 8 letter that the drafting of the amendment is incongruent and incoherent - in that it makes the offences non-cognizable but also non-bailable - somehow meaning that these offences are not grave enough to be cognizable but are grave enough to be non-bailable.

The Commissions have further told the Union government that in addition to making it harder for vulnerable children to register FIRs for crimes committed upon them, such an amendment would overburden the already burdened courts of magistrates, which will be flooded with representations for FIRs in such offences.

Moreover, such a reclassification of the offences runs contrary to India's international obligations as a signatory to the United Nations Convention of the Rights of the Child (UNCRC), the child rights bodies said.

The Commissions added that they have also considered all available literature and jurisprudence in India and globally on the matter and concluded that the amendment to Section 86(2) is "ultra-vires the Constitution and puts the children's life and liberty at risk" and that it will not survive the test of Constitutionality if challenged.