Written by Sanskriti Sanghi (firstname.lastname@example.org), Gujarat National Law University, Gandhinagar
In 2008, the UN Committee had opined, “The Committee regrets that the principle of the best interests of the child is still not reflected as a primary consideration in all legislative and policy matters affecting children, especially in the area of juvenile justice.” As recently as February 2018, the Apex Court of India in Sampurna Behura v. Union of India has displayed the inclination to adopt a pro-active approach in upholding the rights of the child in accordance with the governing legal instrument, the Juvenile Justice (Care and Protection of Children) Act, 2015.
As per the UN Convention on the Rights of the Child, the best interests of the child are to be the primary consideration in decisions and actions concerning the rights of children. India had ratified the UNCRC as early as 1992. This obligates India to not only recognize the principle in the letter of the law but to build and sustain an effective system where the procedural rights of the children are complied with.
Sampurna Behura was a landmark in its recognition of children as subjects and not objects of human rights. It opined, “No one has any doubt that it is time for the State to strongly and proactively acknowledge that even children in our country have fundamental rights and human rights and they need to be enforced equally strongly.” More importantly, it displayed the Judiciary’s call for recognition of rights of children through the fulfilment of duties delineated for each of the wings of the Government. The tenor of the decision displays criticism of the lackadaisical attitude of the Executive towards implementation of rights with piece-meal efforts through mere cosmetic changes in the law.
A commitment to timely and monitored compliance is clearly visible. Strict directions have been issued to governments, impressing upon them their focal role. Immediate and effective measures have been sought from stakeholders – in the commissioning of Special Juvenile police units, the appointment of experts in management, a robust juvenile justice fund and effective coordination on the basis of results of periodic surveys.
A mandate is further placed upon the Ministry of Women and Child Development at the Centre in conjunction with the State Governments, toensure that all positions in the National and State Commissions are expeditiously filled. It is important to highlight that compromise on quality will not be permissible despite the importance accorded to time – statutory requirements must not be relaxed in the constitution of Child Welfare Committees and Juvenile Justice Boards, to apply their minds ably for the benefit of children.
Specific directions were also issued to the Chief Justices of High Courts. A requirement was outlined to register proceedings under the Act of 2015 for the purpose of records for a referral. High Courts have been mandated to probe the possibility of special courts and provide details on whether such courts can be established to ensure the speedy trial of offences committed in each district.
Pertinently, the decision recognizes that the system is made up of its constituents and stresses upon the need for sensitization and training of child welfare authorities. They are to be equipped with knowledge of the relevant laws, tools for optimal utilization of the juvenile justice fund, the collection of relevant data for missing or trafficked children and methods for ensuring better conditions for those in orphanages or asylums etc.
The decision, in highlighting the tardy implementation rendering the Act of 2015 a mere paper tiger, revealed a larger irony. If the system is not sufficient to protect and guarantee the rights of the child, what impetus does it provide for children to grow up with respect for human rights? The practice of the letter of the law needs to ensure the psychosocial and cognitive needs of the child – in the legal process as well as its aftermath, which is only possible if the procedural system is just and equitable. The decision is a landmark not only due to the directions it issues for action with a stern eye on implementation but the lesson it serves for the potential of a transition from a paper tiger to a tool for effective change due to checks and balances by wings of the government who complement each other’s roles.