The Juvenile Justice (Care and Protection of Children) Act 2015 (hereupon referred to as the JJ Act) is a law that holds immense significance for the welfare of children in India. The development of juvenile justice jurisprudence in our country is ongoing, with new challenges arising daily. These challenges provide an opportunity for courts to establish a positive legal precedent on...
The Juvenile Justice (Care and Protection of Children) Act 2015 (hereupon referred to as the JJ Act) is a law that holds immense significance for the welfare of children in India. The development of juvenile justice jurisprudence in our country is ongoing, with new challenges arising daily. These challenges provide an opportunity for courts to establish a positive legal precedent on the subject and offer us the ability to view issues from various perspectives.
One of the issues in the juvenile justice system is the principle of a fresh start for children in conflict with the law. The principle of a fresh start is a guiding principle of juvenile justice which provides a child in conflict with the law with an opportunity to start afresh by putting their past behind them and reconstructing their life. For example, in a case of a minor, X, who was accused of a heinous offense. The case continued for almost six years before his acquittal by a Juvenile Justice Board in Delhi. Despite the ongoing case, Child X pursued his studies and excelled academically. Throughout the case, Child X's primary concern was whether his criminal record as a child would affect his chances of obtaining government or private jobs. Every Child in Conflict with the Law (CiCL) who wants to move on from their past but fears being seen as a "criminal" and discriminated against in future opportunities shares this concern. This article examines the principle of a fresh start, its critical significance, the judicial approach to it, and the genuine challenges that arise while effectively implementing it.
Looking at the history of juvenile justice, it becomes apparent that the Juvenile Justice System's paradigm has shifted from a punitive criminal justice model to a more rehabilitative approach in response to evolving attitudes. The idea behind creating an alternative system for children is to protect children from the negative repercussions of the adult criminal system. The juvenile justice law aims to prevent children from getting involved in criminal activities by providing robust rehabilitation, with institutionalisation as a last resort. The Juvenile Justice Legislation is based on principles of care, protection, and rehabilitation for children in conflict with the law (CiCLs). These principles are outlined in international documents such as the United Nations Convention on the Rights of the Child (hereinafter ‘UNCRC’), the Beijing Rules, and the Havana Rules. Section 3 of the JJ Act enumerates 16 fundamental principles that all stakeholders must observe while implementing the Act. These Fundamental Principles of Juvenile Justice (Protection of Children) Act 2015 are crucial for administering juvenile justice properly. One such principle is the principle of fresh start, which provides the juvenile with a renewed opportunity for reformation.
Principle of Fresh Start
Sec. 3(xiv) of the Act provides, “All past records of any child under the Juvenile Justice system should be erased except in special circumstances.” The principle of fresh start advocates the idea that the criminal records of a juvenile offender be expunged, intending to reintegrate juvenile offenders into society without any stigma. It flows from the right to privacy of juveniles, embodied under the UNCRC, which guarantees this right to all juvenile offenders, without distinction, during all stages. It meant avoiding the juvenile offender's labelling and stigmatisation, prejudicing his access to future education, employment, or housing. This principle strengthens the act's objective to reform, rehabilitate and reintegrate the child so that they can lead a better life.
It is crucial to understand that the JJ Act has specific provisions in place to support the "Principle of Fresh Start." Section 24(1) of the act safeguards children in conflict with the law (CiCL) from any disqualification, while Section 74(2) explicitly prohibits the police from disclosing any records of a child for the purpose of a character certificate or otherwise, if the case has been closed or disposed of. These provisions form a strong foundation for the "Principle of Fresh Start," which is a fundamental guiding principle in administering the JJ Act.
Judicial Approach
The idea of the fresh start principle has been reinforced by the Hon’ble Supreme Court and various High Courts over the period through multiple judgments. In December 2019, in the Union of India v. Ramesh Bishnoi case, while upholding the appointment of a man as Sub-Inspector in the Central Industrial Security Force ❲CISF❳. The Supreme Court observed that ‘even if a juvenile is convicted, the same should be obliterated, so that there is no stigma with regard to any crime committed by such a person as a juvenile. It is with the clear objective of reintegrating such juveniles back into society as a normal person, without any stigma’. In this case, authorities cancelled the person’s appointment after he revealed in an official form that a criminal case had once registered against him when he was a juvenile.
Recently in March 2023, the Rajasthan High Court, in the case of State of Rajasthan v Bhawani Shankar Moorh, held that “a perusal of the language of Section 24 of the JJ Act, 2015 and the corresponding provision of Section 19 of the JJ Act, 2000 would make it clear that the record of conviction of the child in conflict, cannot be preserved and has to be destroyed. As a direct consequence, any disqualification entailing from the conviction would have to be ignored and cannot act to the detriment of the child in conflict with the law in any manner, which would include a selection process for public employment.”
Challenges to a fresh start
It is frequently noted that those who have a criminal record as a minor may face challenges when seeking employment opportunities. It comes under notice that even though the JJ Act talks about the fair chance for young adults to integrate into mainstream life, their past haunts them. The principles of fresh start and confidentiality for juveniles are often disregarded by the state bodies themselves. Preliminary research shows that various state bodies, such as the Ministry of Home Affairs, the Ministry of Rural Development, the Delhi High Court, and many others, ask for criminal antecedents without any exceptions for CiCL. There job forms come with clauses like - “Has one ever been arrested? Has one ever been Prosecuted? Has one Kept under detention? Has one ever been Fined by Court? Has one ever been convicted by a Court of Law for any offence? One knows that the ultimate aim of comprehensive criminal record checks is to provide the government administration with a safe workplace. However, this disclosure requirement, without any exception for adults with criminal records as minors, directly conflicts with the principle of fresh start.
The problem is the interplay between the disclosure requirement in the context of public sector employment and the protective ambit of the JJ Act. This scenario raises a few critical legal questions, such as:-
- Does the protective ambit of the JJ Act not apply to pending cases against a person from the time when they were a minor, or does it apply to both pending and closed cases?
- Does the protective ambit of the JJA 2015 apply to all closed cases or only to cases where the person suffered a conviction?
- Does the protective ambit apply as a whole,or is it contingent upon the nature of prospective employment involved?
- Are applicants required to disclose case history, and prospective employers, upon seeing that the same pertains to a case? In contrast, the applicant was a minor; ignore the same.
- Can applicants refrain from mentioning these details when asked in application forms? Does this expose them to liability?
Even if a recruitment form or attestation certificate states that a person need not disclose any juvenile cases or convictions, the selecting authority may still find out through police verification and disqualify the candidate. However, the JJ Act specifically forbids police from disclosing any child record once the case is closed or disposed of.
Rule 14 of the Juvenile Justice Model Rules, 2016, specifies that the records of conviction of a Child in Conflict with the Law (CiCL) must be destroyed either after the period of appeal or within seven years. Despite this mandate, police verifications still reveal instances where the records have not been destroyed as required.
In 2018, the Delhi High Court reinstated a constable in the Reserved Police Force who was dismissed for not disclosing a criminal case registered against him when filling out his job application. The petitioner argued that he was a minor at the time of the case and was acquitted in 2015. The bench of Justice Hima Kohli and Justice Rekha Palli observed that the Centre and the Ministry of Railways' contention that the man was obligated to disclose this information was "contrary to the very spirit of the Act". The Court also noted that the police breached confidentiality by revealing the petitioner's information in the criminal case as he was a juvenile at the time, which was a gross breach of confidentiality contemplated under the JJ Act.
Highlighting the need for a system of records expungement, the United States v. Dancy court remarked, "the stigma of a criminal conviction may itself be a greater handicap in later life than an entire misspent youth.” Expunging records of a juvenile are also in sync with the rehabilitative ideals of the juvenile justice system, which aims to ensure the reintegration of juvenile offenders into society.
It is not only employment, but some other disqualifications go against the principle of a fresh start. Let us suppose a person applies for a passport; the governing law[1] provides that passport authority can refuse to issue a passport or visa on the ground that:
- if the applicant has been convicted by a court in India for any offence involving moral turpitude and sentenced to imprisonment for not less than two years.
- Some criminal proceeding is pending before a criminal court in India.
In another case, a person contesting an election can get disqualified if convicted of an offence and sentenced to imprisonment for two years or more shall be disqualified[2]. A person contesting an election has to disclose any ongoing criminal case / past convictions in their election affidavit and even publicise the same in newspapers, websites of political parties, etc. It is worth noting that disqualification clauses in various laws do not provide any exemptions for juvenile convictions or trials, except for cases where the JJ Act mandates a two-year imprisonment.
Having even a minor criminal record can harm an applicant by disqualifying them or subjecting their application to additional scrutiny under the JJ Act. It constantly reminds them that they are "criminals," making reintegration into society challenging.
Under the JJ Act, the fresh start principle requires the records of child offenders to be removed. However, this provision is accompanied by a condition that such records may not be removed under “special circumstances.” However, it is essential to note that the nature of special circumstances has not been specified or defined, leaving it entirely open-ended. There are no criteria for determining “special circumstances,” which may allow discretion to the deciding authorities.
It is important to note that the JJ Act contradicts the principle of a fresh start. Section 24 exempts a child from disqualification for committing an offence, but section 24(2) allows the retention of conviction records for children dealt with as adults. No child being tried as an adult in children's court suffers disqualification on conviction, denying them protection under the principle of fresh start. Disqualifications under the law would apply, casting a permanent stain on their future lives, contradicting the principle of fresh start and rehabilitative juvenile policy[3].
It is imperative to acknowledge the fact that no child is born a delinquent. The truth is that most delinquent behaviour is learned through interactions with others. There are reports showing how factors such as dysfunctional families, violence within the family, community influence, school, or a bad peer group can lead to children getting involved in criminal activities. It is society's responsibility to welcome these children with hope, not stigmatization. Labelling and stigmatizing them will only make it harder for them to reintegrate into society. Therefore, adhering to the principle of fresh start is crucial. This approach will effectively support the reformation, rehabilitation, and reintegration of these children, which is the ultimate goal of the Act.
Views are personal.