Ever since the World Health Organisation (WHO) declared COVID-19 as pandemic, it has disrupted not only our primordial socio-legal framework but has also led to severe global economic disturbance. In other words, the analysis of law is directly analogous to the prevailing socio-economic situation. The COVID-19 pandemic has largely impacted Socio-economics, Culture, Politics, Education, Environment and Climate. Now, the important question arises as to how international and domestic law responds to this prevailing social catastrophe which has affected nearly 200 countries. The answer to this lies somewhat in the historically evolved trentino to quarantine law which is known to have been practiced since biblical times and is being applied till date; though not out of context to quote that the “quarantine era has begun”.
A protective sequestration or sometimes referred to as reverse cordon sanitaire (French for sanitary cordon) is a public health social distancing measure or restriction of movement of people in a defined geographical area, taken to protect the healthy population from getting infected by an epidemic or pandemic before the infection reaches that population. Certainly being de-rigueur, new ways of conducting court proceedings have emerged which are safer and inexpensive and are evolving as Socio-legal distancing. However, this socio-legal distancing has presented major disruptions for global legal market in as much as some have direct consequences on contractual obligations under specific agreements while others have universal overtones.
The United States became the third largest hotspot after China and Italy in number of COVID-19 cases. New York being the epi-central hotspot of North America. Thousands of people have been subjected to legally enforceable quarantines or are in “self-quarantine.” The US government has banned entry of foreign nationals travelling from China, Iran, and most of Europe and is screening passengers returning from heavily affected countries. Each country have had its own laws on isolation and quarantine orders but traditionally quarantine has been practiced more in the United States. Courts have upheld quarantine orders in order to protect public health. Apart, the Unites States Congress enacted the Families First Coronavirus Response Act, 2020 which “provides paid leave, establishes free coronavirus testing, supports strong unemployment benefits, expands food assistance for vulnerable children and families, protects front-line health workers and further provides for additional funding to states to countenance and alleviate the ongoing economic consequences wrecked by the pandemic, among other provisions.
The United Kingdom has enacted a law namely Coronavirus Act, 2020 distinctly for coronavirus and incidental purposes. The Act enables the government to have the discretionary power to limit or suspend public gatherings, to detain individuals suspected to be infected by COVID-19 and to intervene or relax regulations in a range of sectors so as to limit transmission of the disease, ease the burden on public health services, to assist healthcare workers and the economically affected. The law also provides measures to deal with economic effects of the pandemic. It enables the government with the power to suspend the eviction of tenants, protect emergency workers from getting unemployed and provides special insurance cover for healthcare workers. However, the effects of this Act have been widely debated as it imposes reasonable restrictions on civil liberties which could remain beyond the end of pandemic.
France enacted Law No.2020-290 declaring itself to be in a State of health emergency and as such has taken Emergency measures to monitor the health situation and to try to prevent lay-offs and business bankruptcies; in addition to the rapid spread of the COVID-19. Apart, this law empowered the French government to legislate by means of Orders in its territories. As such, the government adopted two Orders; firstly to preserve the rights of litigants and secondly adapt legal proceedings to the requirements of fighting the spread of COVID-19. Order No.2020-306 of 25th March 2020 deals with deadlines and measures which have expired or were due to expire between 12th March 2020 till the expiry of a period of one month after the end of the state of health emergency. Therefore, the litigant will be able to act within this period without his action being declared time barred. Order No.2020-304 dated 25th March 2020 aims to adopt rules of procedure for curtailing the spread of COVID-19 and furthermore includes a set of rules dealing with the conditions of hearings before civil and commercial courts.
Germany enacted the COVID-19 Pandemic Law to extenuate the consequences of the COVID-19 pandemic in civil, criminal and insolvency law. The people will benefit in as much as; the obligation to file for insolvency has in general been suspended until 30th September 2020 with the option of an extension by the German Ministry for Justice and Consumer Protection until no later than 31st March 2021. Apart, it deals with measures regarding the execution of shareholder meetings, passing of resolutions, etc., Moratorium, Protection of tenants against eviction and Loan agreements.
Spain declared a State of Emergency by means of Royal Decree 463/2020 declaring COVID-19 as national health crisis which was further amended as Royal Decree 465/2020 and 476/2020. A series of other royal decrees were also passed relating to issues concerning social and economic impact of COVID-19 on health and social workers, food stores and food production, industry, construction, banking, media, energy, water and electricity supplies. The Royal Decree Law 8/2020 specifically addresses the challenges faced by companies who have to comply with their legal obligations under corporate and insolvency regulations.
Undoubtedly COVID-19 pandemic started from China but due to their ambitious, agile and aggressive perseverance and efforts of disease containment, they have achieved something which was considered to be impossible in public health. The first ever substantial measure was the lockdown of Wuhan city alongwith other cities. The lockdown placed over 50 million people under mandatory quarantine since January, 2020. The lockdown effectively curtailed the further spread of the disease in as much as it isolated the infected individuals from the rest of the healthy population. Infact, people from other regions also voluntarily quarantined themselves and were being continuously monitored by the government. The authorities had built dedicated hospitals in Wuhan to truncate the pandemic and health workers were deputed at the outbreak centres.
As per the report of the WHO-China Joint Mission on Coronavirus Disease (COVID-19), “upon detection of a cluster of pneumonia case of unknown aetiology in Wuhan, the CPC Central Committee and the State Council launched the national emergency response. A Central Leadership Group for Epidemic Response and the Joint Prevention and Control Mechanism of the State Council were established.” The Chinese law on Prevention and Treatment of Infectious Diseases categorises diseases into three classes A, B and C. Category A includes only two diseases namely bubonic plague (bubonic derived from an ancient greek word “boubon” meaning groin and a bubo in the groin causes swelling) and Cholera. Category B includes diseases like SARS, anthrax, AIDS, typhoid, and viral hepatitis. Category C includes diseases such as Influenza, leprosy, mumps, and schistosomiasis. However, COVID-19 was included in the category of Class B infectious diseases. The strategy to control the pandemic was divided into three stages of outbreak. Firstly, to prevent and control the source of infection, block transmission and prevent further spread, Secondly, to reduce the intensity of the epidemic and to slow down the escalation of cases and Thirdly, to reduce cluster of cases, thoroughly controlling the epidemic and striking a balance between epidemic prevention and control, sustainable economic and social development, unified command, standardized guidance and scientific evidence-based policy implementation. Thus as such the Chinese authorities launched an unprecedented effort to trace contacts of confirmed cases.
The South Korean government passed new medical laws allowing it to prosecute Coronavirus suspected people who refuse to co-operate from getting tested for COVID-19. The amended law also allows the nation to restrict entry to people confirmed or suspected to have contracted the COVID-19. Further, it authorises the government to ban export or transfer masks and other items. As and when the Korean government disseminated the message on social distancing, the people began to embrace it of their own and as such it has been effective with large scale people’s participation.
Australia enacted The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 under The Biosecurity Act, 2015 for dealing with COVID-19 pandemic. Apart, The Public Health (COVID-19 Self Isolation) Order 2020 was passed under The Public Health Act, 2010 by the government of New South Wales for protecting the health and wellbeing of the public from getting infected from COVID-19. Furthermore, The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 was also enacted; specifically dealing with the working of court proceedings during pandemic. In this way the Australian government has taken measures in the form of income protection, taxation, financial assistance, personal wellbeing through work from home concept and imparting as much awareness about public health information.
India is one of the leading countries who took drastic, efficacious and constructive measures in order to curtail the outbreak of COVID-19 pandemic. A country of 1.3 billion people and a threat of widespread upsurge of the disease, the Union government immediately declared a nationwide lockdown and quarantine measures to be adopted by every citizen; failure of which may result into punitive measures. The law of the land in cases of epidemics has been the 123 years old British colonial era Act i.e. The Epidemic Diseases Act, 1897 which provides for the better prevention of the spread of dangerous epidemic disease. The Act itself empowers the Central and State government to take special measures and prescribe regulations in relation to dangerous epidemic disease. It was enacted to tackle the epidemic of bubonic plague that broke out in the then State of Bombay at that time. In view of the prevalent serious situation having engulfed the nation, a high level Group of Ministers (GOM) was constituted to review, monitor and evaluate the preparedness and measures taken regarding management of COVID-19 in the country. The Ministry of Health and Family Welfare (MoHFW) has been monitoring the steps initiated by the Union Government in order to attenuate the outbreak of the pandemic. The MoHFW engaged all States and Union Territories to invoke Section 2 of the Epidemic Disease Act, 1897, so that all the advisories issued by the MoHFW are enforced by the States and Union Territories. The Union government also invoked the provisions of The Disaster Management Act, 2005 alongwith other advisories. During the nationwide lockdown, some incidents of violence against medical and health workers were reported. Keeping in view their safety and law and order situation, the government promulgated an Ordinance to amend the Epidemic Diseases Act, 1897 in the light of the pandemic situation of COVID-19. The Ordinance is intended to ensure that during any situation akin to the current pandemic, there is “zero tolerance” to any form of violence against healthcare service personnel and damage to property.
Singapore did not invoke any emergency laws to deal with the COVID-19 outbreak. The government took initial measures under The Infectious Diseases Act (IDA) which had been previously strengthened during the global SARS (Severe Acute Respiratory Syndrome) outbreak in 2002-2003. Apart, it invoked powers under The Immigration Act, which allowed the government to deny entry to travellers from Wuhan-the original epicentre of the outbreak and progressively to travellers from other countries. The COVID-19 (Temporary Measures) Act 2020 (“CTMA”) was urgently passed by the Singapore Parliament sanctioning reliefs during COVID-19 pandemic under certain categories namely relief for inability to perform contracts, financially distressed individuals, firms and other businesses, conduct of meetings, measures for court proceedings, measures concerning remission of property tax and COVID-19 control orders. Section 34(7), CTMA specifies that breaches of control orders will be treated as offences. An article on Singapore’ Legislative Approach to COVID-19 suggested that Singapore’s response to COVID-19 pandemic was the envy of many nations. Its strategy of early testing, rapid contact tracing, isolating cases and close contacts was praised for its effectiveness.
There are plenty of legal implications arising from the pandemic such as the handling of affected employment relationships, insolvency proceedings, commercial contracts, insurance coverage of pandemic-related damages or consequences in the field of travel law. However, given the enormous volumes of business and trade which has so far been achieved, it is of highest relevance how pandemic related disruptions may affect the legal side of existing supply and production-related relationships. Keywords of most relevance in this context are the terms “Acts of God” and “Force Majeure clauses”.
The term force majeure is of French origin which means a superior or irresistible force or any unforeseeable event or circumstances which preclude someone from fulfilling a contract. Since it being a contractual term, the fundamental law of force majeure is incorporated under Section 32 and 56 of The Indian Contract Act, 1872. Traditionally, force majeure events may include an act of god or natural disasters, war or war like emergencies, labour unrest or strikes and epidemics etc. Interestingly, the scope of force majeure is restricted to something which cannot be prevented or causes you cannot prevent but considering this ongoing pandemic it is yet to be ascertained whether its gamut should be enlarged or not. A force majeure clause saves the party from performing its obligations beyond its control and as such operates as an exception to a breach of contract. The law regarding force majeure has been dealt extensively by the Hon’ble Supreme Court of India in the case of “Energy Watchdog & Others v. Central Electricity Regularity Commission & Others; (2017) 14 SCC 80.” Apart, if a contract does not include the force majeure clause, then the parties may resort to Section 56 of the Indian Contract Act, 1872 which underlines the principle of “Doctrine of frustration”.
In view of the current situation, the respective governments have taken steps to safeguard the rights and interest of parties in commercial contracts and have resorted to certain safeguards. For example, as per media reports the China Council for the Promotion of International Trade (CCPIT) issued over 1,615 Force Majeure certificates to firms in 30 sectors covering contracts worth over $15.7 billion. Thus, keeping in view the circumstances emerged due to COVID-19, global legal market has effectively included this pandemic under the force majeure clause being an evolving process under the contractual jurisprudence.
The traditional way of litigation has always been an in-person proceedings, however this pandemic has changed the course to virtual courts. Though the transition is critical for protecting public health; yet it will bring transparency and accountability in the judicial system in as much as it has flung the gates wide open for open court proceedings around the globe. The courts are exploring technological methods by setting up virtual courts to ensure that justice delivery system is not impacted and crippled by COVID-19. One of such method is virtual litigation where the proceedings of court are conducted from home court room. The system of virtual court operations is in vogue and being adopted by each and every country focused on dispensation of essential and emergency matters. The courts have shifted criminal arraignments, bail applications, orders of protection and other essential civil, criminal and family matters to a virtual environment. The courts are also hearing pending non-essential matters virtually through video or phone conferencing. The administrative and court staff are assisting judges in using the various digital platforms to conduct the hearings and access records and to do so provision for filing fresh cases is already in practice through e-filing.
The world is talking of disrupted supply chains and collapsed economic activity but what this Socio-legal distancing has achieved is worth noting. The law of Self-quarantine has effectively evolved during this ongoing pandemic and as such benefits the society at large. The global market is transforming during this pandemic as we see invocation of robust social distancing measures; and mandatory quarantines has resulted into creation of new and effective legal tools. With COVID-19 in our communities, we have witnessed effective implementation of public health laws but the sine-qua non at this time will be new laws on bio-terrorism. COVID-19 pandemic has compelled the world to re-examine the laws and regulations governing the control of contagious diseases more so from any potential biological attack. Apart, most importantly during this pandemic the world has witnessed emerging trends in work culture. The newest of these is Virtual Communication or in legal market it is termed as Virtual litigation and Virtual Courts. The occident and orient both have adopted such measures to ensure that this pandemic does not adversely impact timely delivery of justice. The Courts hold virtual courts through videoconferencing to hear urgent matters. The most important socio-legal impact of such measures is that virtual court proceedings ensures safety of litigants as well as are cost effective. These measures in quintessence justify socio-legal distancing. Furthermore, there were unexpected environmental consequences due to COVID-19 such as global reduction in economic activity, reduced industrial and transport emissions and effluents. In India, a Janta Curfew’ or Peoples Curfew was imposed and the results were similar too; following which, a significant dip in air pollution levels were witnessed across the country. Metropolitan cities like New Delhi, Bengaluru, Kolkata and Lucknow saw their average Air Quality Index (AQI) staying within two digits. Consequently, the world of public health might have termed this pandemic as a catastrophe but the world of media and environmentalists have referred to it as a beautiful fortune.
© Chawla Publications (P) Ltd.
“The true principle of taxation is the benefit principle – those who benefit from a government service should pay for it. It’s also known as the ‘user pay’ principle. Every effort should be made to link the payment of taxes or fees to the cost associated with the government service.”
…Mark Skousen
The concept of imposition of Road Tax is not contemporary in India. Road Tax as the name suggests connotes the tax levied on a vehicle before it is put to use on public roads. The Road Tax is a state level tax, i.e., the Government of various states impose it at their respective levels. Each state has different rules and regulations for charging the road tax. Due to the varying percentage of tax levied by different states as stipulated in their respective legislations, the amount of tax is also different. During the registration of a new vehicle, an individual is required to pay the road tax on the cost/ex-factory price of the vehicle and not on ex-showroom price/GST of the vehicle.
The State of Haryana is charging road tax on ex-showroom price/Goods & Services Tax (GST) in respect of purchase of new vehicles during registration. To substantiate, reference is made to Section 3 of the Haryana Motor Vehicles Taxation Act, 2016 wherein it has clearly been mentioned that the rate of tax shall be on the cost of motor vehicle, whereas contrary to the legislative intent, the State of Haryana issued a notification dated 28.03.2017 with regard to computation of tax on motor vehicles whereby the value of motor vehicle for computation of tax in case of registration of new vehicle shall be the ex-show room price. Meaning thereby, that as per the said notification, ex-showroom price is the cost of the vehicle plus taxes. Accordingly, this is beyond the legislative competence as no road tax can or could be levied on the ex-showroom price in the invoice as it amounts to double taxation and the same is on the face of it in clear violation of Section 3 of The Haryana Motor Vehicles Taxation Act, 2016 and Article 265 of the Constitution of India.
According to Article 265 of the Constitution of India, No tax shall be levied or collected except by authority of law. Also, as per Schedule VII of the Constitution, the Union List, State List or the Concurrent List and laws made by the State Legislature in respect to taxation of Motor Vehicles does not permit double taxation. It is manifestly evident that the State of Haryana is benefitting unjustly by imposing/charging road tax on ex-showroom price of the vehicle which apparently tantamounts to double taxation. In the given circumstances, the Doctrine of Unjust Enrichment has to be read herewith to understand the present issue.
The Hon’ble Supreme Court of India has elucidated this doctrine in para Nos 169 to 184 of the judgment in the case titled as Indian Council for Enviro-Legal Action v. Union of India; 2011(8) SCC 161. The relevant para No.181 is reproduced as under:
“Unjust enrichment” means retention of a benefit by a person that is unjust or inequitable. ‘Unjust enrichment’ occurs when a person retains money or benefits which in justice, equity and good conscience, belong to someone else.”
Therefore, it is manifestly evident that the State of Haryana acting as a juristic person has retained a benefit in the form of imposing unjust tax from the public at large thus amounting to double taxation, which clearly is in violation of Article 265 of the Constitution of India.
It is also appurtenant that even adjoining States like Punjab as well as U.T. Chandigarh while issuing their respective notifications have envisaged road tax to be charged on the cost of the vehicle/actual price and not on ex-showroom price. Tax may vary from State to State but that has to be charged on the cost of vehicle which excludes the GST and other taxes.
“There is no worse tyranny than to force a man to pay for what he does not want merely because you think it would be good for him.”
…. Robert A. Heinlein
The State of Haryana contrary to what has been stipulated under its own legislation is charging road tax on GST/ex-showroom price of vehicle during registration of new vehicles beyond and without authority of law. A similar instance in the State of Telangana ensued where a private litigant was forced to pay road tax on ex-showroom price of the vehicle and taking judicial note of this issue, the Hon’ble High Court of Telangana at Hyderabad in Re: Kishore Rai Sohni v. State of Telangana; Writ Petition No.5286 of 2018 decided on 02.05.2018 clarified that the road tax cannot be imposed on ex-showroom price/GST as it amounts to double taxation and is ultra vires of what has been authorized by law and accordingly the road tax being imposed and collected on GST is without any authority of law.
© Chawla Publications (P) Ltd.
“It is perceived that the nonpareil methodology to explore about a civilization, culture and society is to try and understand more and more about its women.”
The word “Women” comes from the union of two words i.e. “Wo” which means “from” and Men, meaning thereby the women itself came from Men, but the male accorded himself to be superior and treated women as inferior in all walks of life. Ever since the history of India, the women in India have been striving to emulate with their male counterparts in what has been known as a conventional patriarchal society. The women always encountered rigid social ideology and expectations which lasted well into the mid-twentieth century. Most women didn’t have the opportunity to overcome this barrage of man-made obstacles and climb to the top. It thus became imperative to take certain ameliorative steps in order to improve the condition of women in this orthodox society.
Indian women have fought against the patriarchal Indian society and triumphed at many levels despite cases of rape, dowry deaths, female infanticide, sexual harassment at workplaces, female illiteracy, and similar problems are being rampant in Indian society. It was in this backdrop that the Committee on the Status of Women in India (hereinafter referred to as CSWI) led to the establishment of the National Commission for Women to fulfill the surveillance functions so as to facilitate redressal of grievances and to accelerate the socio-economic development of women. Thus, in light of the recommendations by CSWI and in order to uphold the mandate of the Constitution, in January 1992, the National Commission for Women (NCW), was set up as a statutory body under the National Commission for Women Act, 1990 (Act No. 20 of 1990 of Government of India) to carry out the mandate set out by the Act as well as CSWI.[1] Thereafter, the corresponding regulations i.e. “The National Commission for Women (Procedure) Regulations, 2005” were enacted which have added to its effectiveness.
The National Commission for Women Act, 1990 constituted the National Commission for Women as a statutory body. The first Commission was constituted on 31st January, 1992 and Mrs. Jayanti Patnaik was appointed as the Chairperson of the National Commission for Women. Section 3 of the Act enables the Central Government for the constitution of the Commission. It consists of one Chairperson, who is committed to the cause of women, five members from diverse fields and a member secretary who shall be an expert in the fields of management, organizational structure, sociological movement or a member of civil service of the Union. All the members of the Commission are nominated by the Central Government. Further, Section 4 of the Act lays down the term of office and conditions of service.
Keeping in view the mandate of the Act and regulations, the Commission has taken initiatives which brought transition in the functioning of the Commission. The NCW brought awareness amongst the women and equipped them with knowledge of their legal rights with a capacity to use these rights. One such event was legal awareness camp on “Reproductive Health Rights, Foeticide, Infanticide, PC & PNDT Act, 1994 and The Medical Termination of Pregnancy Act” held on 21-22nd September, 2012. The Commission has assisted women in redressal of their grievances through pre-litigation services involving efficacious delivery of justice to them by organizing Parivarik Mahila Lok Adalats (PMLA) in different parts of the country and free legal aid which is given through District Legal Services Authority (DLSA). Moreover, the Commission constantly reviews existing provisions of the Constitution and other laws relating to women and recommends periodic amendments thereto. The Commission reviewed laws such as Dowry Prohibition Act, 1961, PNDT Act, 1994, Indian Penal Code, 1860 and the National Commission for Women Act, 1990 to make them more stringent and effective. Apart, NCW organizes promotional activities from time to time to stimulate women and gather information about their status and recommend paradigm shift in their empowerment.
NCW through its various cells investigates and examines all matters relating to safeguards provided for women and devises a comprehensive strategy to tackle cases of violation of the fundamental rights of women under the Constitution and other laws. The Commission in numerous cases has taken cognizance of complaints made by vulnerable section of women and taken suo moto notice of such matters. Also, NCW delves for deprivation of women’s rights. The Commission has also taken cognizance of incidents relating to commission of heinous crimes against women. One of such incident was the Delhi gang rape incident which brought special attention nationwide. In this regard, the Commission with the support of members of civil society appealed the Government to amend the existing sexual assault laws. It was in this backdrop that the Criminal Law (Amendment) Act, 2013 was promulgated. Furthermore, NCW has conducted special studies and investigations into specific problems & situations arising out of discrimination and atrocities against women. It also undertakes promotional and educational research so as to suggest ways of ensuring due representation of women in all spheres and identify factors responsible for impeding their advancement. A two-day National Consultation event was organized on 27th and 28th of February, 2014 at Jaipur, Rajasthan on “Prohibition of Atrocities against Women by Dehumanizing and Stigmatizing them in public” to finalize the NCW Draft Model Central Legislation.
The Commission has published reports, magazines and articles covering contemporary issues of women. One such publication is “Rashtra Mahila”. Moreover, it advises on the planning process of socioeconomic development of women and evaluates the progress of development of women under the Union and States.
The Commission conducts inspection of jails, remand home, women’s institution or other place of custody where they are kept as prisoners or otherwise & pursue with the concerned authorities for remedial action, if found necessary. Taking cognizance of reports in the media regarding gross violation of the rights of women living in Swadhar Grehs in the country, the Commission initiated inspection of 12 such homes in the country on a pilot basis to ascertain the factual status of these homes. In an attempt to make these inspections more meaningful and with a view to cover all Swadhar Grehs in India, the Commission organized a daylong consultation with academia, NGOs and Government Departments on 13.09.2018. Lastly, the Commission endeavors to render financial assistance to women institutions, NGOs and organizations working for the upliftment of women.
The power and responsibilities of the chairperson, members and member secretary are prescribed under Chapter IV of The National Commission for Women (Procedure) Regulations, 2005. Apart, the Commission has devised an effective and expeditious mechanism in the form of NCW Cells for tackling issues pertaining to women in need of aid. They are:
1. Complaints & Investigation Cell:
It processes the complaints received orally or in writing or online via official website of the National Commission for Women. Further it deals with the complaints received from all over the country including those relating to deprivation of rights of women and involving injustice to women. It takes suo motu cognizance of incidents relating to commission of heinous crimes such as acid attack, sexual assault & rape against women under Section 10 of the Act of 1990.
2. Legal Cell:
It is responsible to consider in a wider perspective the suggestions given by expert groups, if any, for revision or amendment in laws pertaining to women with a view to coordinate and harmonise them in the existing climate of economic liberalization.
3. Policy Monitoring & Research Cell:
The PMR Cell is responsible to conduct special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women. Also, to undertake promotional and educational research in order to ensure due representation of women in all walks of life.
4. Non-Resident Indians Cell:
Since National Commission for Woman has been nominated as the Coordinating agency at the National level for dealing with issues pertaining NRI marriages by the Govt. of India therefore, it is obligated to render all possible assistance to women who are deserted by their Overseas Indian husbands.
5. North East Cell:
It is responsible to address problems faced by North East women and take special steps for their development and empowerment. Furthermore, NE Cell has been created to emphasize on problems/challenges faced by women of North East and also to intervene with the State and Central Governments whenever required.
The Commission has intervened in numerous court cases, where women rights have been transgressed. Few of the more prominent ones are:
1. Bhateri Gang Rape Case, Rajasthan
The Commission suo moto took up the case of the victim and extended its full support in going for appeal and also providing security to the victim and appointment of a special public prosecutor to argue her case. The victim was a “Sathin” associated with WDP in Rajasthan who was raped in retaliation for her intervention in a child marriage in September 22, 1992.
2. Commutation of Death Penalty (Ramshree’s Case)
Due to the timely intervention of the National Commission for Women in the Honble Supreme Court, the order of death sentence was temporarily stayed and the Hon’ble Court, later on commuted the death sentence into life imprisonment.
3. Obscenity Cases
The Hon’ble High Court of Delhi put an injunction on the launching of 21+ adult channel. The NCW approached the Hon’ble High Court of Delhi against Star TV, Zee TV, etc for showing obscene pictures on television and other media.
4. Against out dated Customs & Traditions Maimon Baskari’s Nuh Haryana Case
The NCW took up the case of Ms. Maimon Baskari who was allegedly a victim of torture and rape for marrying a person of her choice. The Honble Supreme Court has united the couple.
“There is no tool for development more effective than the empowerment of women.”
…Kofi Annan
The desideratum for a nationwide body to raise women issues and to take constructive measures at law and policy making levels with a view to ensure governmental accountability towards issues concerning women was the raison detre for the demand for a National Commission for Women. For the women fraternity, it is a mechanism that acts as a conduit between them and the government so as to effectively articulate their voice and opinions which is strongly feminist. The Government of India took the initiative to establish this Commission by keeping in view the provisions of the Constitution of India and recommendations by UN Commission on Status of Women so as to invigorate the women on addressing predicaments, repressions and other types of violence they use to encounter. The National Commission for Women also takes the initiatives for overall progression of womens community throughout the country.
[1] http://www.legalserviceindia.com/article/l318- National-Commission-For-Women.html accessed on 12th March, 2019 at 9:34 PM.
[2] http://ncw.nic.in/ncw-cells/legal-cell//important-courtinterventions- inquiries accessed on 15th March, 2019 at 4:40PM.
© Chawla Publications (P) Ltd.
A lot of hue and cry ensued in India when Wg. Cdr. Abhinandan Varthaman was captured by Pakistani forces on February 27, 2019 following a dogfight between the Air Forces of both the countries. Following his capture, a series of debates started all across the country regarding the rights of captured prisoners and the treatment given to them during an armed conflict or war. It was then, when the role of Geneva Convention was unfolded. Thus, in this article I have made an endeavor to canvass the hard psyche of prisoners and their heart-wrenching difficulties eventuating during an armed conflict and subsequent inherent fundamental rights they are entitled to as emanating from the Geneva Convention.
“The law of war forbids the wounding, killing, impressing into the troops of the country, or enslaving or otherwise maltreating the prisoners of war unless they have been guilty of some grave crime, and from the obligations of this law no civilized state can discharge itself.”
…Daniel Webster, 1842
“Prisoners of war” (POWs) are combatants who have fallen into the hands of the enemy, or particularly non-combatants to whom the status of prisoner of war is granted by international humanitarian law. In light of the recent incident of Wg.Cdr. Abhinandan, the million dollar question was what happens to a soldier if he lands in a hostile territory during war or an armed conflict? Whether the belligerent is bound to afford him protection under the obligations of International law? The answer is in affirmative in as much as the protection afforded to a prisoner of war emanates from the “Geneva Convention relative to the Treatment of Prisoners of War, 1929” which was subsequently revised and amended in the year 1949. It caters humanitarian protection & treatment for prisoners of war.
The soi-disant humane treatment of prisoners of war has always been a true myth, at least to the ancient soldiers. Conventionally, any alive soldier was not taken as a prisoner due to the apprehension that he may have to be fed and taken care of by the domain affording protection to him and the burden of protecting him will come upon them. Also there will be chances of his escape and return to the battlefield. Thus, with the advent of time and under international obligations through treaties and conventions, equitable and compassionate treatment of prisoners of war during war or an armed conflict became a sine qua non for the belligerents.
There were four Geneva Conventions in total:
• The First Geneva Convention “for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field” (first adopted in 1864, revised in 1906, 1929 and finally in 1949);
• The Second Geneva Convention “for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea” (first adopted in 1949, successor of the Hague Convention (X) 1907);
• The Third Geneva Convention “relative to the Treatment of Prisoners of War” (first adopted in 1929, last revised in 1949);
• The Fourth Geneva Convention “relative to the Protection of Civilian Persons in Time of War” (first adopted in 1949, based on parts of the Hague Convention (II) of 1899 and Hague Convention (IV) 1907).
• The 1949 convention has been modified with three amendment protocols:
• Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts.
• Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts.
• Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem.
• The Peace Conferences of 1899 & 1907 lead the States to come in agreement between themselves to limit their sovereign rights over prisoners of war.
• The Instructions of 1863 for the United States Army contained the first ever declaration that no retaliation should be carried out upon prisoners of war.
• The Brussels Conference of 1874 which framed a draft International Declaration was the first international step towards regulating the status of prisoners of war.
• In 1880, the International Law Institute adopted a set of rules known as Oxford Manual intending to codify the laws of war.
• The Regulations pertaining to the Hague Conventions of 1899 and 1907 on laws and customs of war bestowed prisoners of war an explicit legal statute which provided them protection from despotic treatment by the detaining state.
• The Berne agreements of 1917 and 1918 necessitated the augmentation of Hague Regulations during the First World War.
• The 10th International Conference of the Red Cross at Geneva in 1921, a request was made to draft a Convention on prisoners of war.
• In 1923, the International Committee of the Red Cross prepared a draft Convention which served as a working paper at the 1929 Diplomatic Conference, held at Geneva from July 1 to 27, when the Prisoners of War Code was drawn up.
• In 1929, the new Convention i.e. the Third Geneva Convention relative to the Treatment of Prisoners of War, 1929 came into existence which also supplemented the Hague Regulations.
• The 1929 Convention was applied throughout the Second World War and afforded prisoners of war an effective protection and treatment far better than that which they had received during the First World War.
• A need for revision of the 1929 Convention was felt so as to expand and modify the existing Convention with expert help from Governments, National Red Cross Societies and other relief Societies.
• The process of revision commenced with the Preliminary Conference of National Red Cross Societies in 1946 and the Conference of Government Experts in 1947.
• In 1948, the International Committee drafted text for the proposed amended Convention and presented it to the 17th International Red Cross Conference held at Stockholm.
• Diplomatic Conference was convened by the Swiss Federal at Geneva from April 21 to August 12, 1949 to discuss the texts for the amended Convention. The Conference set up four main Committees to consider revision of the Convention.
• The Draft approved by the 17th International Red Cross Conference formed the basis for the first reading of the new Convention.
• On May 2, 1949, the Second Committee decided to establish a Special Committee to consider Articles 4, 12, 65-67, 71, 84, 115, 118, 119 & 125 of the 1949 Convention.
• On May 5, 1949, the Second Committee established a Committee of Medical Experts to consider the draft model agreement on direct repatriation and accommodation in neutral countries.
• On August 12, 1949 the new Convention i.e. the Amended Third Geneva Convention was signed and adopted by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August, 1949 after several rounds of discussions and thorough deliberations. It came into force on 21st October, 1950.
• Currently there are 196 state parties to the Third Geneva Convention, 1949 and the 1929 Convention is no longer in operation following the universal acceptance of the Geneva Conventions of 1949.
The Geneva Convention, 1949 has been divided into 6 Parts and contains 143 Articles whereas the 1929 Convention had only 97. Article 4 of Part I discusses Prisoner of War elaborately.
• Every person in enemy hands must have some status under international law as laid down under Article 5.
• A prisoner of war must be treated humanely without any adverse discrimination and his medical needs must be met. Further, he is the responsibility of the State & not of the persons who capture him. Also, he may not be transferred to a State that is not a party to the Convention. (Articles 12 to 16 of Part II)
• During questioning, a prisoner is at liberty to provide only the information as laid down under Article 17 to the detaining State. The method of interrogation is also limited. A prisoner would not be subjected to any sort of physical or mental torture or threatened in any form and any coercive measure may not be inflicted upon the prisoner of war to secure any information from him. A prisoner of war must be evacuated from the combat zone after his capture to a safe zone as soon as possible; which shall be the responsibility of the detaining State. A prisoner of war is entitled to private property subject to articles as prescribed. (Article 17, 18 & 19)
• A prisoner of war shall be entitled to befitting quarters, food and clothing as laid down under Articles 25, 26 & 27.
• A prisoner of war shall always be entitled to sanitary benefits conforming with the rules in order to ensure hygiene and to prevent epidemics. Further, he will be entitled to immediate medical assistance and the cost incurred on treatment shall be borne by the detaining State. (Article 29 & 30)
• A prisoner of war may be compelled to do only the type of labor as laid down under Article 50, taking into consideration factors such as rank, age and sex. Work which is unhealthy or dangerous can only be done by prisoners of war who volunteer for such work.
• A prisoner of war shall be entitled to financial resources as laid down under Section IV. (Articles 58-68)
• A prisoner of war shall be entitled to send and receive mail in the form of letters and cards subject to reasonable restrictions as imposed by the detaining State. (Articles 69-74)
• A prisoner of war shall have the right to make known to the military authorities in whose power he is, his requests regarding the conditions of captivity to which he is subjected. Also, he shall be entitled to make complaints with respect to conditions of captivity. (Article 78)
• A prisoner of war shall be entitled to present his defence with the assistance of a qualified advocate or counsel during judicial proceedings before a military court. No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act for which he is accused. (Article 99)
• A prisoner of war shall be entitled to be repatriated and accommodated subject to conditions laid down under Article 110.
• A prisoner of war shall be released and repatriated without delay after the cessation of active hostilities. (Article 118)
“The only licit end that a State may have in war is at most to weaken the military strength of the enemy. The laws of war do not recognize any belligerent an unlimited liberty to inflict injuries upon the enemy. They are to abstain especially from all needless barbarity, as well as from all traitorous, unjust, or tyrannical acts.”
In ancient times the concept of “prisoner of war” was unknown and the defeated became the victor’s “chattel”. During the middle ages; it became customary to free captives upon payment of a ransom but these practices were discarded in modem times.
Traditionally, soldiers in the battlefield are not subject to human rights considerations. But keeping in view the horrors of world wars of the twentieth century, it was time for taking enemy soldiers alive and keeping them as housed prisoners of war. Also, affording them just and fair treatment & protection became an obligation under International Humanitarian Law.
The Third Geneva Convention provides a wide range of protection for prisoners of war. It defines their rights and sets down detailed rules for their treatment and eventual release. In view of the safeguards bestowed upon the prisoners of war under the Third Geneva Convention and due to the insurmountable diplomatic and international pressure exerted upon Pakistan, Wg. Cdr. Abhinandan was released from captivity within two days.
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“Lets figure out ways of keeping our children out of the juvenile justice system and in the classroom so that they thrive. Because if you are in the juvenile justice system, the chances of going into the adult penal system are greatly increased.”
…Valerie Jarret
Children are the pillars of every progressive society and are considered to be the future builders of the modern world, henceforth are the supreme assets of any country and therefore every effort should be made to overcome the problem of juvenile delinquency generated with the advent of modernization and urbanization. Today crimes by children or in other words crimes by juveniles is not only unbridled but is exhibiting a very brutal color of mind set of these young offenders. The problem of juvenile delinquency is undoubtedly tragic to human interest as it is not only confined to our country but also cuts across national boundaries. Juvenile delinquency laws are inadequate to the extent of determining the age of juvenile when the offence is committed. The concept of juvenile delinquency to widen its limits has drawn adverse criticism on the ground that it is neither necessary nor desirable to use police and courts in private matters which can be well tackled by family themselves. All nations whether it be developed or under-developed desires their youth to refrain from any kind of criminal or anti-social or terrorist activities and therefore, these nations are constantly defining and re-defining their local laws which can ameliorate the future of juveniles. Juveniles are future of tomorrow and the need of the hour is to save our future generations from going astray. With change in time and nations on the road to development, there is a drastic change in the offences committed by juveniles, what to say, from theft to dacoity, murders, rapes, hacking, cyber-crimes, terrorism and many other un-imaginable activities. The purpose behind any juvenile law is not to punish a juvenile but is to safeguard him against the evils of crime society. Another aspect of Juvenile law is to reform and rehabilitate juveniles so as to evolve themselves as crime-free human beings. Also, through punitive measures, to act as a deterrent to habitual young offenders.
The first legislation concerning juveniles was the Apprentice Act, 1850 which provided that children in the age group of 10- 18 years convicted by courts to be provided with some vocational training which might help in their rehabilitation and reformation. It was followed by Reformatory Schools Act, 1897. The Indian Jail Committee (1919-1920) brought forth the vital need for square trial and treatment of young offenders. Its recommendations prompted the enactment of the Children Act in Madras in 1920. This was followed by Bengal and Bombay Acts in 1922 and 1924 respectively. The three pioneer statutes (i.e. Acts concerning Madras, Bengal and Bombay) were extensively amended between 1948 and 1959.
Thereafter, the Central enactment, The Children Act, 1960 was passed to cater to the needs of the Union Territories. To remove some inherent lacunas in the above mentioned Act, The Children (Amendment) Act was passed in 1978. But the need of a uniform legislation regarding juvenile justice for the whole country had been expressed in forums, including Parliament but it could not be enacted on the ground that the subject matter of such a legislation fell in the State List of the Indian Constitution. To bring the operations of the juvenile justice system in the country in conformity with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules, 1985), Parliament seems to have exercised its power under Article 253 of the Constitution read with Entry 14 of the Union List to make laws for the whole of India to fulfill International obligations. On 22nd August, 1986, the Juvenile Justice Bill, 1986 was introduced in the Lok Sabha.
Its objects and scope were straight and clear that a review of the working of the existing Children Acts would indicate that much greater attention is required to be given to children who are found in situations of social ill-treatment, destitution or neglect. The justice system available for adults was not considered appropriate to be applied to juveniles. It was felt that a uniform juvenile justice system should be adopted which could provide for adequate provisions in the changing social, cultural and economic scenario of the country.
The provisions contained in the Juvenile Justice Act, 1986 replaced the corresponding laws on the subject such as Children Act, 1960 and other State enactments on the subject.
As per The Juvenile Justice Act, 1986, the age for a female to be treated as juvenile was 18 years and that of a male was 16 years. Also, apart from the need for a uniform Act regarding children, the Juvenile Justice Act, 1986 was a result of Sheela Barse v. Union of India, 1986 (2) Scale 1.
Though, The Juvenile Justice Act, 1986 came into existence but still there existed loopholes and lacunas and as expected the Act of 1986 could not pass the test of time and had to make way for a new Act that is The Juvenile Justice (Care and Protection of Children) Act, 2000. Under this Act the age was made uniform for both Male and Female. This Act provided for a special approach towards the prevention and treatment of juvenile delinquency and provided a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. This law was brought in compliance to the 1989 United Nations Convention on the Rights of the Child (UNCRC), repealing the earlier Juvenile Justice Act of 1986 after India signed and ratified the UNCRC in 1992.
Since, there were few grey areas where this new Act was silent and not expressive in dealing with certain issues most importantly determining the age of a juvenile offender, the landmark judgment of the Hon’ble Supreme Court of India by a Constitutional Bench in the case titled as Partap Singh v. State of Jharkhand, 2005(3) SCC 551. was pronounced addressing this issue in detail and held that “reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the Court”. Thus, in light of the above decision by the Hon’ble Apex Court, the law pertaining this issue was amended.
The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 came into force on 22nd August 2006. This amendment provided a hope to those juveniles who were more than 16 years of age when the alleged crime had taken place and the old Act i.e. The Juvenile Justice Act, 1986 was in operation. When, The Juvenile Justice (Care and Protection of Children) Act, 2000 came, the age was increased to 18 years from 16 years pending trial. Therefore, this anomaly was removed by way of insertion of a special explanation in Section 20 of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006. However, this provision of law happened to be misused by juveniles in their favour and the country witnessed nation wide heinous crimes committed by juveniles. The offenders in a way understood the shield provided by the amended Act.
The Constitution of India recognizes special status of children through Articles 15(3), 21A, 24, 39(e), 39(f) and 45.
The unfortunate and barbaric gangrape incident of Delhi (Nirbhaya case of 16th December, 2012) which shook the entire nation brought forth the existing lacuna in the present juvenile law. It was due to this incident the existing juvenile law suffered a nationwide criticism owing to its helplessness against crimes where juveniles especially between the age group of 16-18 years, get involved in heinous crimes like rape and murder. Following the sequence of events due to Nirbhayas case, an urgent need for a change in the present law was felt where 16 years or 17 years old were intended to be tried as adults. In 2015, responding to the public sentiment, Juvenile Justice (Care and Protection of Children) Act, 2015 was passed by Parliament of India amidst intense controversy, debate and protest on many of its provisions by Child Rights fraternity. It replaced the Indian Juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, and allowed juveniles in conflict with law in the age group of 16-18 years, involved in heinous offences, to be tried as adults. Under the said law, the Juvenile Justice Boards comprising a metropolitan magistrate or a judicial magistrate and two social workers had the discretion to decide whether the offender should be tried by courts of law like adults or whether the offender should be tried as a juvenile. The new bill introduced concepts from The Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993[1] which were missing in the previous acts. The bill also sought to make the adoption process of orphaned, abandoned and surrendered children more streamlined. The lower house, i.e. Lok Sabha passed the bill on May 7, 2015 and the upper house, i.e. Rajya Sabha on December 22, 2015. The bill was given assent on 31st December, 2015 by the President of India and came into force from 15th January, 2016.
Thus, the new Act has been enacted to give effect to Indias international obligations arising from three international conventions to which India is a signatory namely, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules, 1985), UN Convention on the Rights of Child (CRC) & United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules, 1990).
The American Juvenile Justice System is the system intended to regulate and address youths who are caught and convicted of crimes. The juvenile justice system intervenes in delinquent behavior through police, court and correctional involvement, and is largely punitive. Offending youths and their parents or guardians can face a variety of consequences including probation, community service, youth court, youth incarceration and alternative schooling. The juvenile justice system, similar to the adult system, operates from a belief that intervening early in delinquent behavior will deter adolescents from engaging in criminal behavior as adults.
In the United States of America, the definition of juvenile varies from State to State. The juvenile system applies to anyone between the age of 6-10 years depending upon the State. However it is 18 years except for eleven States (Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, South Carolina, and Texas) where a juvenile is a person under the age of 17 years and for the States of New York and North Carolina it is under 16 years. So the criminal majority begins at 16, 17 or 18 years. The traditional age of majority is 18 years and nearly all states permit persons less than 18 years to be tried as Adults.
The history of law in the United States was heavily influenced by the common law of England, which governed the American colonies. William Blackstone was one of the most important English lawyers of that time and his Commentaries on the Laws of England, first published in the late 1760s, were widely read and admired by founder fathers of the United States. “Infants” and “Adults” at Common Law is one of his Commentaries, where he has identified people who were incapable of committing a crime. According to him, there were two things which required to hold someone accountable for a crime. Firstly, the person had to have a “vicious will” i.e., the intent to commit a crime and Secondly, the person had to commit an unlawful act. If either the will or the act was lacking, no crime was committed. The first group of people Blackstone identified as incapable of committing a crime were “infants”. These were not infants in the modern sense of the word, but children too young to fully understand their actions. Blackstone and his contemporaries drew a line between “infant” and “adult” at the point where one could understand ones actions. Children under the age of seven were as a rule classified as infants who could not be guilty of a felony (a felony is a serious crime such as burglary, kidnapping, or murder). However, children over the age of 14 years were liable to suffer as adults, if found guilty of a crime. Between the ages of seven and fourteen was a grey zone. A child in this age range was presumed incapable of crime. If, however, it appeared that the child understood the difference between right and wrong, the child could be convicted and suffer the full consequences of the crime. These consequences could include death in a capital crime. (A capital crime is a crime for which one might be executed).[2]
During the nineteenth century, the treatment of juveniles in the United States started to change. Social reformers began to create special facilities for troubled juveniles, especially in large cities. In New York City, the Society for the Prevention of Juvenile Delinquency established the New York House of Refuge to house juvenile delinquents in 1825. The Chicago Reform School opened in 1855. The reformers who supported these institutions sought to protect juvenile offenders by separating them from adult offenders. They also focused on rehabilitation trying to help young offenders avoid a future life of crime. In 1899, the first juvenile court in the United States was established in Cook County, Illinois. The idea quickly caught on, and within twenty-five years, most states had set up juvenile court systems. The early juvenile courts shared with reform schools; the same desire to rehabilitate rather than to punish juvenile offenders. They were based on the legal doctrine of parens patriae.[3] In line with their “parental” role, juvenile courts tried to focus on the “best interests of the child”. They emphasized an informal, nonadversarial, and flexible approach to cases. There were few procedural rules that the courts were required to follow. Cases were treated as civil (non-criminal) actions and the ultimate goal was to guide a juvenile offender toward life as a responsible, law-abiding adult. The juvenile courts could, however, order that young offenders be removed from their homes and placed in juvenile reform institutions as part of their rehabilitation program.[4]
All the states adopted juvenile policies relating to decriminalization and deinstitutionalization during the 1970s and 1985. However such policies were not long lived and in the mid 1980s due to change in the nature of crime by young offenders, increase in violence etc criminalization of delinquents were revived. During the early 1990s, several states in US had called for special legislative session to deal with youth crime. Presently, in United States, slogan “adult crime adult time” is being adopted.
Beginning in the 1960s, the United States Supreme Court heard a number of cases that profoundly changed the proceedings in the juvenile courts. The first of these cases was Kent v. United States.[5] It was held that the Juvenile Court order waiving jurisdiction and remitting petitioner (Morris A. Kent Jr.) for trial in the District Court, was invalid.
In re Gault, 387 U.S.1 (1967). was a landmark U.S. Supreme Court decision in which the Primary Holding was that, the Due Process Clause[6] of the 14th Amendment[7] applies to juvenile defendants as well as to the adult defendants. Juveniles accused of crimes in a delinquency proceeding must be afforded many of the same due process rights as adults, such as the right to timely notification of the charges, the right to confront witnesses, the right against self-incrimination and the right to counsel.
Presently in 45 states, the maximum age of juvenile court jurisdiction is of 17 years. Five states Georgia, Michigan, Missouri, Texas and Wisconsin now draw the juvenile/adult line at the age of 16 years. Missouri raised the age of juvenile court jurisdiction to the age of 17 years in 2018 and the law will be into effect from January 1, 2021.
On a concluding note, I would like to quote some lines by Qorianka Kilcher who has beautifully summed up what I intend to express through this article.
“I think its important for us as a society to remember that the youth within juvenile justice systems are, most of the time, youths who simply havent had the right mentors and supporters around them because of circumstances beyond their control.”
Todays juvenile justice system still maintains rehabilitation as its primary goal and distinguishes itself from the criminal justice system in important ways. In the United States, with a few exceptions, in most of the states juvenile delinquency is defined as the commission of a criminal act by a child who was under the age of 18 years at the time when the offence was committed. Most states also allow youth to remain under the supervision of the juvenile court until the age of 21 years. In all States, the legal status of a young person charged with an illegal act is largely determined by the persons age, but the exact definitions are governed by State law. Whatever age is specified by State law as the upper age limit of original juvenile jurisdiction, young people who commit offences after that age are automatically under the jurisdiction of the criminal (adult) court. Whatever happens to them as a result of being arrested is outside the purview of the juvenile justice system. States may also set a lower boundary for the age of original juvenile court jurisdiction. Children below the specified age do not fall within the jurisdiction of the juvenile courts when they commit delinquent acts. Such matters are referred to a child welfare or social services agency.
India has the distinction of having the largest child population as against any country in the world, with approximately 450 million children under the age of 18 years as per the statistics of UNICEF-India.
The Juvenile Justice (Care & Protection) Act, 2015 is considered to be extremely progressive legislation and the Model Rules, 2016 have further added to the effectiveness of this welfare legislation. However, the implementation is a very serious concern and thus the Supreme Court of India constantly reviewed and monitored the implementation of this law in the case titled as Sampurna Behrua v. Union of India, (2018) 4 SCC 433. and Bachpan Bachao Andolan v. Union of India, (2011) INSC 403.
The Hon’ble Supreme Court vide its order dated 09.02.2018 passed in Writ Petition (Civil) No.473 of 2005, in the case of Sampurna Behrua (Supra), issued various directions to be complied with by the High Courts and other authorities. One of the direction was related to registration of proceedings on its own by the High Courts for the effective implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015 so that road blocks if any, encountered by statutory authorities and the Juvenile Justice Committee of the High Court are meaningfully addressed after hearing the concerned governmental authorities. Accordingly, Hon’ble the Chief Justice of Punjab and Haryana High Court initiated suomotto proceedings in case Civil Writ Petition No.5315 of 2018 (Public Interest Litigation) vide order dated 01.03.2018. It is my privilege as an Advocate to have assisted the Hon’ble Bench and apprising it as to what measures regarding juvenile laws have been taken by the respective State Governments and what it intends to do in future.
In addition to the Hon’ble Supreme Court, the Hon’ble High Courts of Bombay and Allahabad are also monitoring the implementation of the Juvenile Justice Act through judicial proceedings. In order to upgrade the Juvenile Justice Administration System, the Government of India launched the Integrated Child Protection Scheme (ICPS) in 2009-10 whereby financial allocations have been increased and various existing schemes have been merged under one scheme.
Based on a resolution passed in 2006 and reiterated in 2009 in the Conference of Chief Justices of India, several High Courts have constituted “Juvenile Justice Committees” headed by sitting judges of High Courts. These committees supervise and monitor implementation of the Act in their jurisdiction. In this way, just like other nations the law makers in India are also striving to achieve a cordial balance between the juvenile and the juvenile laws.
Thus, it is perceived that there is a constant need for larger involvement of informal systems and community based welfare agencies in the care, protection, treatment, development and rehabilitation of juveniles.
[1] The Hague Convention on Protection of children and Co-operation in Respect of Inter-country Adoption (or Hague Adoption Convention) is an international convention dealing with international adoption, child laundering, and child trafficking in an effort to protect those involved from the corruption, abuses, and exploitation which sometimes accompanies international adoption. (Drafted on 29th May, 1993 and Effective from 1st May, 1995).
[2] https://www.americanbar.org/content/dam/aba/migated/publiced/features/DYJpart1.authcheckdam.pdf accessed on 17th February, 2019 at 12:33 PM.
[3] A latin term that means “parent of the country”. The parens patriae doctrine gives the state the power to serve as the guardian (or parent) of those with legal disabilities, including juveniles.
[4] https://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf accessed on 17th February, 2019 at 12:41 PM..
[5] 383 U.S. 541 (1966); Morris A. Kent Jr., a 16-yearold boy, was detained and interrogated by the police in connection with several incidents involving robbery and rape. After Kent admitted some involvement, the juvenile court waived its jurisdiction. This allowed Kent to be tried as an adult. Kent was indicted in district court. Kent moved to dismiss the indictment because the juvenile court did not conduct a “full investigation” before waiving jurisdiction, as required by the Juvenile Court Act. A jury found Kent guilty and sentenced him to serve 30-90 years in prison. The U.S. Court of Appeals for the District of Columbia Circuit affirmed.
[6] Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law. The Supreme Court of the United States interprets the clauses more broadly, concluding that these clauses provide four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.
[7] The Fourteenth Amendment contains a number of important concepts, most famously state action, privileges & immunities, citizenship, due process, and equal protection all of which are contained in Section One. However, the Fourteenth Amendment contains four other sections. Section Two deals with the apportionment of representatives to Congress. Section Three forbids anyone who participates in “insurrection or rebellion” against the United States from holding federal office. Section Four addresses federal debt and repudiates debts accrued by the Confederacy. Section Five expressly authorizes Congress to enforce the Fourteenth Amendment “by appropriate legislation.” The states ratified the Fourteenth Amendment in 1868 in the immediate aftermath of the American Civil War.
[8] Teigen Anne, “Juvenile Age of Jurisdiction and Transfer to Adult Court Laws”, National Conference of State Legislatures (11th January, 2019), retrieved from <
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