The Juvenile Justice (Care and Protection of Children) Act, 2001 -
Impact in the context of the HIV/AIDS Epidemic

http://www.lawyerscollective.org/lc-hiv-aids/Abstracts/abstracts.htm

Early this year, the Parliament of India passed a new Juvenile Justice Act, purportedly in order to bring the juvenile justice regime in consonance with India's human rights obligations under the Convention on the Rights of the Child. This new Act replaces the old Juvenile Justice Act of 1986, which has proved ineffective in addressing problems children face in hostile circumstances. The new Act has received the assent of the President of India and will come into force as and when the Central Government makes a notification to this effect. Already, before it is actually in force, legal experts and activists working around rights of children and young persons are expressing concern about the maladies that will be created by the Act and the regressive attitudes towards rights of children that it articulates. This edition of Positive Dialogue brings focus on some of the problems in the new Act in the context of the HIV/AIDS epidemic.

The conceptualisation of children as human beings with specific human rights is of recent origin. The Convention on the Rights of the Child (CRC) came into force as late as 1990 and India became a signatory to it only in 1992. Signatories to the CRC are under the obligation to bring their laws in consonance with it and to make special laws to realise the principles it espouses. The CRC lays down the right to a complete and wholesome development and opportunity along with specific rights such as the right to family, education, health services, participation in decision making, freedom of expression, freedom of association and the right against exploitation, trafficking and torture. The underlying assumption of the CRC is that the family is essential for the development of the child and that children need special protection because of their 'physical and mental immaturity'. It does not put focus on the fact that children and young people are capable of being responsible for themselves and are capable of exercising their rights. The implication of this is that the laws that are made for the purpose of compliance need not attempt to bring about empowerment of children, but merely their 'protection'.

Vulnerability of a group of people to HIV is related to behaviour patterns and life experiences, which in turn are affected by social, cultural, economic, political and legal factors. The human rights status of a given group of people is closely linked with its vulnerability to HIV and the impact of the epidemic on it. Vulnerability is thus contextual, except for broad commonalties such as biological factors (the biological vulnerability of children is due to underdeveloped genital and anal tracts, which are more susceptible to abrasion, and in the developing world, linked to lower nutritional levels and general health standards of children, especially girls). Children and adolescents in certain contexts are thus more susceptible to being infected with HIV than others are. Life situations where children are additionally vulnerable include living on the street, trafficking, child marriage, child sexual abuse, absence of child friendly health (especially sexual health) services, sex work and sex in the absence of safer sex knowledge and options. Although there are laws that attempt to address many of these situations, most of them are misplaced and insensitive to realities.

Prevalence of sexual activity amongst children living on the street, whether amongst peers or with adults and whether consensual or otherwise is a widely observed reality. Though largely ignored, injecting drug use is also common amongst adolescents in many parts of the country. Apart from behaviour that could put them at a risk of HIV transmission, the low nutritional levels and health status makes the impact of infection more severe. Coupled with this are lack of primary or specialised health care and the lack of information and power to keep oneself safe from transmission of the virus. Thus, the context that children live in makes them vulnerable. Two obvious options in dealing with this situation are either to take the child away from the environment or to empower them to protect themselves within this environment.

Response of the Juvenile Justice System

The Juvenile Justice Act (JJ Act), which has been the primary response of the state to its responsibility towards children, chose the first option. The basic presumption of this Act being the physical and mental immaturity of children, the understanding is that children are never in a position to understand or control their lives or the environment they live in and are incapable of effective participation in societal processes. The child is seen as a helpless victim of structural problems.

The JJ Act provides a simplistic solution to the fact that a large number of children today find themselves in circumstances where they are left to fend for themselves, whether with or without parents. It gives the police the power to take a 'neglected juvenile' into custody and to produce her/him before the Juvenile Welfare Board (JWB), which in turn decides what must be done with the child. While the JWB has various options including placing the child with a fit person or institution, the obvious focus of the JJ Act is to institutionalise the child in what is commonly known amongst children as the children's jail. An institution built for the welfare of children is thus considered a threat and a cause for constant fear. This perhaps reflects the circumstances in such homes, and also of how children view this changed lifestyle. In the bargain, an antagonism is created between the child and the state, making the state an enemy rather than a friend. Apart from the implication that as a result children do not access the services meant for them, and would rather escape contact with the state, this also implies that the enforcement of the juvenile justice system is largely coercive. This is antithetical to basic human rights.

Alternatives that focus on respect for human rights have been suggested. Street based interventions, encouraging (and recognising) collectivisation of children, providing relevant education and skills, creating accessible health services etc. may in fact be more effective in empowering children than displacing them from their environment. These alternatives must, of course go hand in hand with changes in the model of development, which is causing such unsupported migration, which leads children to potentially exploitative and hostile environment.

Institutionalisation, it may be pointed out, does not necessarily cause behaviour change. It does not mean that adolescents stop having sex. Neither does it mean that they adopt safer sexual practices. It definitely means lesser access to tools necessary for safer sex, including information and condoms.

The strategy of institutionalisation has also been questioned on its sustainability. Children living on the streets are not a static population. There are children coming into cities everyday, and to institutionalise them all would mean the continuous creation and monitoring of facilities necessary for their wholesome upbringing. In a context where this has not been possible for even the miniscule number of children provided with 'homes', to envisage institutionalisation as an effective remedy for all those in need of support would require extraordinary resources to be deployed.

The opportunity of making the new law could have been an occasion to reassess the strategy in the 1986 JJ Act. However, the lawmakers have chosen only to reinforce it. The 2001 Act continues in much the same manner, except for a few cosmetic changes and miscellaneous additional provisions, some of which make interesting changes, but many of which may prove counterproductive.

The first departure from the old law is in the definition of a child in need of care and protection (called 'neglected juvenile' in the old Act). In addition to aspects of the old definition, the new law includes 'children suffering from terminal or incurable diseases having no one to support or look after' as neglected. On the face of it, this recognition that children may be HIV positive and may need special services is an affirmative sign. However, this gives the juvenile justice system the power to test a child for HIV to ascertain whether she is 'in need of care and protection' without her consent.

The 2001 Act envisages the production of a child in need of care and support before the Child Welfare Committee (ominously similar to the Juvenile Welfare Board under the old law) by a range of people, including police officers, the special juvenile police unit (set up under the Act), childlines and NGOs recognised by the Government and public-spirited citizens authorised by the state. This means that any of these persons may take a child in their custody, ascertain whether she is in 'need of care and support' and produce the child before the Welfare Committee.

The next provision that has a direct bearing on HIV is Section 48 of the Act, which provides that 'Where a child is found to be suffering from leprosy, sexually transmitted disease, Hepatitis B, open cases of Tuberculosis and other such diseases or is of unsound mind, (s)he shall be dealt with separately through various specialised referral services or under the relevant laws as such'.

This essentially means that a child found to suffer from any of these 'diseases', may be isolated from the rest of her community and kept separately in a different institution. In effect, thus, the new Act is a license to round up children living in poverty and their mandatory testing and isolation.

Responses to the HIV/AIDS epidemic have been of two types - isolationist and integrationist. The former is based on the premise that keeping people living with HIV away from the rest of society is an effective way of preventing further spread of the virus and is signified by mandatory testing, disrespect of the right to confidentiality and discrimination. The new Act is an example of this approach. The integrationist approach, on the other hand, is based on the premise that the only way of effectively dealing with the epidemic is by the integration of those affected into the mainstream. The basic principles of this approach are encouragement for voluntary testing, respect for confidentiality of HIV status and non-discrimination. Experiences the world over, with respect to HIV and other epidemics has been that the isolationist approach is counterproductive as it inhibits people from accessing health services, leads to human rights violations and pushes the epidemic underground. The Indian response to the epidemic, though initially isolationist, has changed to an integrationist approach, as is articulated in the National Policy. However, it is surprising that the integrationist strategy espoused by the National AIDS Control Organisation and the Ministry of Health and Family Welfare has been given a complete go-by by the drafters of the 2001 Act.

Children and young persons, especially those living in poverty, clearly need access to services and support. The juvenile justice system, which could provide or facilitate provision of these essentials, is presently perceived to be an adversary, which seems to evoke no faith amongst the children. The isolationist approach further increases the negative connotations of interaction with the system and will further alienate children and young persons. The very creation of institutions where children and adolescents may be detained (even if it is for treatment) due to particular health problems that they may be inflicted with, may, and probably will have the impact of inhibiting even that access to health services, which they presently utilise.

One of the few positive aspects of the 2001 Act is the creation of a system to facilitate the adoption of children. The Act contemplates adoption, as a manner of rehabilitation of children who are orphaned, abandoned, neglected and abused. Presently, a legal adoption is possible only in limited circumstances and only by Hindus. The 2001 Act, however, does away with these limitations and makes possible legal adoption by a much wider range of persons. This would have especially beneficial implications for the rising number of children left behind by persons who have died due to AIDS related illnesses. The 2001 Act also contemplates foster care, sponsorship and after-care organisations as modes of rehabilitation and 'reintegration' into society. These are, however, provided as alternatives to rehabilitation in children's homes.

The definition of 'neglected juveniles' in the 1986 JJ Act includes children of sex workers per se. In effect this means that women in sex work under the 1986 JJ Act do not have the right to bring up children at all. The definition in the 2001 Act does not include such children as a category. This is a positive development in that it removes some of the stigma on sex work and is more respectful of human rights of people in sex work. At the same time, it may be noted that the definition of 'child in need of care and protection' could still be interpreted to have the same effect. As such, the change may be merely cosmetic and sex workers may continue to be at the risk of losing their children to the juvenile justice system.

The right to life and personal liberty is considered one of the most basic fundamental rights. It cannot be curtailed except by the passing of a constitutionally valid law. When it comes to children and adolescents, however, the justification for coercive action in curtailing this right is protection and care. This is purportedly in order to ensure that other rights are accessible to such children. Whereas on one hand, this has not translated into reality, on the other hand, it has meant the exclusion of a large number of children from the benefits of the juvenile justice system.

At a basic level, there is a need for the reconceptualisation of the meaning of rights of children and adolescents as persons capable of exercising their rights. Strategies must change towards the empowerment of children, rather than their removal from what is considered as a hostile environment for them. This is not to say that there must be merely a shift of focus to empowerment on the streets. In the context of the HIV epidemic, the juvenile justice system will have to envisage a combination of strategies, whereby care and support is accessible, and at the same time, the rights of children to make choices and participate in societal processes are respected. The 2001 Act fails to do so. The coming days, when the 2001 Act comes into force, are bound to be even more difficult. There is a need for mobilisation to pressurise the Government to delay the implementation of the Act until it is reviewed keeping realities and alternative models of intervention in mind.

Contributions by Diva Saxena and Akshay Khanna