Open Access Research Article
THE ROLE OF LEGAL AID COUNSEL IN JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT 2015
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Article Details
THE ROLE OF LEGAL AID COUNSEL IN JUVENILE JUSTICE
(CARE AND PROTECTION OF CHILDREN) ACT 2015
AUTHROED BY -
JASDEEP KAUR
ABSTRACT[1]
The Juvenile Justice Act
of 2015 in many jurisdictions has ushered in a paradigm shift in the treatment
of children in conflict with the law. Central to the effective implementation
of this legislation is the pivotal role played by legal aid counsel in ensuring
that the rights and interests of juvenile offenders are safeguarded throughout
the judicial process. This abstract explores the multifaceted responsibilities
and significance of legal aid counsel within the framework of the Juvenile
Justice Act 2015. This paper has furthermore put limelight on the Sampurna Behrua v. Union of India & Ors
which makes clear that Juvenile Justice Boards must ensure immediate legal aid
for juveniles. If difficulties arise, District Legal Services Authorities should
be instructed to provide assistance. Last part of this paper talks about the
suggestions findings and conclusions.
Key points: Legal aid counsel, JJ
act 2015, juvenile, child rights, dslsa,
Introduction
The Supreme Court of
India's judgements have reinforced India's legislative framework for juvenile
justice[2].
Additionally, consider foreign trends. The UN Guidelines on Standard Minimum
Rules for Administration of Juvenile Justice, 1985 (Beijing Rules) prompted the
creation of the JJ Act, 1986, which established a unified legal framework for
minors nationwide. On December 11, 1992, India became a signatory to the UN
Convention on the Rights of the Child (UNCRC), marking a significant step
forward in juvenile justice. The Juvenile Justice Act of 1986 was deemed to be
incompatible with the UNCRC's juvenile justice viewpoint. As a result, the
Parliament of India repealed the Act and adopted the Juvenile Justice (Care and
Protection of Children) Act, 2000.[3]
The JJ Act of 2000 aims
to safeguard vulnerable, neglected, and abused children, as well as those in
confrontation with the law. The JJ Act of 2000 was amended in 2006 to address
concerns raised by the Committee on the Rights of the Child in 2004 regarding
the Supreme Court's ruling that a person's juvenility was not determined by the
date of the offense.2 The primary objective of the Juvenile Justice Act is to
create a rehabilitative rather than punitive approach towards juvenile
offenders. Legal aid counsel plays a crucial role in upholding the principles
enshrined in the Act, ensuring that the juvenile justice system remains
child-centric and protective of the rights of the child. This includes
providing legal representation to juvenile offenders during court proceedings,
advocating for their best interests, and ensuring fair and just treatment.
One of the key features
of the Juvenile Justice Act 2015 is the emphasis on rehabilitation and
reintegration of juvenile offenders into society. Legal aid counsel, through
their involvement, contribute significantly to the assessment of the individual
needs of the juvenile, enabling the court to tailor rehabilitation programs
that address the root causes of delinquency. This requires a holistic
understanding of the child's background, circumstances, and potential for
reform, which legal aid counsel are uniquely positioned to provide.
Discussing further this
paper talks about the following
1. Constitutional Provisions:
Article 39 of the Constitution of
India; Outlines principles of policy for the state, emphasizing the need for
children to develop in a healthy manner and be protected against exploitation.
-
Article
39A of the Constitution: Highlights the state's responsibility to ensure equal
justice and free legal aid. It stresses the promotion of justice on the basis
of equal opportunity, providing legal aid to citizens irrespective of economic
or other disabilities.
-
Articles
14 and 22(1):Oblige the state to ensure equality before the law and a legal
system that promotes justice based on equal opportunity.
-
Criminal
Procedure Code (Section 304): Specifies the constitutional duty to provide
legal aid at state expense from the time the accused is first produced before
the Magistrate.
2.
International Declarations:
-
Universal
Declaration of Human Rights (Article 8): Recognizes everyone's right to an
effective remedy by a competent national tribunal for acts violating
fundamental rights granted by the Constitution or law.
-
International
Covenant on Civil and Political Rights (Article 14 (3)): Guarantees the right to be tried in person or
through legal assistance, with the provision of legal assistance assigned in
cases where justice requires it, without payment if the individual lacks
sufficient means.
3. India's Commitments:
-
India
is a signatory to the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights.
-
In
1980, a Committee chaired by Hon. Mr. Justice P.N. Bhagwati, a Supreme Court
Judge, was established at the national level to oversee and supervise legal aid
programs.
The provided text
discusses the establishment of the Committee for Implementing Legal Aid Schemes
(CILAS) and the enactment of the Legal Services Authorities Act in 1987 in
India. Here's a summary of the key points:
1. CILAS and Legal Services Authorities Act:
-
Formation
of CILAS: The Committee for Implementing Legal Aid Schemes (CILAS) was
established to monitor legal aid activities throughout the country.
-
Legal
Services Authorities Act, 1987: Enacted to provide a statutory basis to legal aid
programs across the country in a uniform manner.
-
Enforcement:
The Legal Services Authorities Act was enforced on November 9, 1995, following
amendments introduced by the Amendment Act of 1994.
-
Fulfilment
of State Mandate: The Legal Services Authorities Act, 1987, aligns with the
state mandate stated in Article 39 and 39A of the Indian Constitution. It aims
to provide free legal services to the weaker sections of society, ensuring that
justice is not denied due to economic or other disabilities.
2.
Legal Services Authorities Act, 1987:
Section 12 - Persons Entitled to
Legal Services:
The Act specifies categories of
persons entitled to legal services, including:
-
Members
of Scheduled Castes or Scheduled Tribes.
-
Victims
of human trafficking or beggary.
-
Women
or children.
-
Mentally
ill or otherwise disabled persons.
-
Persons
in circumstances of undeserved want (e.g., mass disaster victims).
-
Industrial
workmen.
-
Persons
in custody, including those in protective homes, juvenile homes, or psychiatric
hospitals.
Section
13 - Entitlement to Legal Services:
-
Individuals
meeting the criteria specified in Section 12 are entitled to receive legal
services, provided the concerned authority is satisfied that they have a prima
facie case to prosecute or defend.
-
An
affidavit regarding income may be considered sufficient unless there is a
reason to disbelieve it.
###
Free Legal Services:
The Act
outlines that free legal services include:
-
Payment
of court fees, process fees, and other charges related to legal proceedings.
-
Provision
of legal representation by lawyers in legal proceedings.
In summary, the Legal
Services Authorities Act, 1987, establishes a framework for providing free
legal services to various disadvantaged sections of society, aligning with
constitutional principles and international commitments. It outlines the
entitlement criteria and specifies the services covered under free legal
assistance.[4]
The text outlines the
hierarchy of bodies created under the Legal Services Authorities Act, focusing
on the National Legal Services Authority (NALSA) and its state-level
counterparts. Additionally, it discusses the evolution of legal aid in the
Juvenile Justice System and the challenges faced, leading to certain directives
from the Supreme Court.
1. Hierarchy of Bodies under the Legal
Services Authorities Act:
a.
National Legal Services Authority (NALSA):
-
Role:
Apex body responsible for laying down policies, principles, and guidelines for
effective legal aid schemes.
-
Functions:
-
Formulating
policies and guidelines.
-
Framing
economical schemes.
-
Disbursing
funds and grants to State Legal Services Authorities and NGOs.
b.
State Legal Services Authority (SLSA):
-
Role:
Implements NALSA policies and directions at the state level.
-
Functions:
-
Provides
free and competent legal services to eligible persons.
-
Organizes
Lok Adalats for dispute resolution.
-
Conducts
legal awareness camps in rural areas.
c.
District Legal Services Authority:
-
Role:
Implements legal aid programs and schemes at the district level.
-
Chairperson:
District Judge serves as the ex-officio Chairman.
d.
Taluk Legal Services Committees:
-
Role:
Coordinates legal services in Taluk or Mandal areas.
-
Chairperson:
Senior Civil Judge operating within the jurisdiction of the committee serves as
the ex-officio Chairman.
2. Legal Aid in the
Juvenile Justice System:
a.
Historical Focus:
-
Initially
concentrated on providing legal aid to adults.
-
Juvenile
Justice System functioned with the assistance of Probation Officers (POs).
b.
Shift in Focus:
-
Over
time, the role of Probation Officers got diluted.
-
Private
lawyers became more involved, leading to challenges and exploitation of
children.
-
Nexus
observed between police and private lawyers, influencing the appointment of
lawyers for children in conflict with the law.
c.
Supreme Court Directives (October 2011):
-
Case:
Sampurna Behrua v. Union of India (Public Interest Litigation).
-
Directives:
-
Designate
one police officer in each police station as a juvenile/child welfare officer.
-
Train
designated police officials.
-
Provide
free legal services to all children in conflict with the law.[5]
The provided text
outlines the directives issued by the Honorable Supreme Court of India in the
case of Sampurna Behrua v. Union of India & Ors. (W.P.(C) No.473/2005)
dated 19.08.2011. The focus is on the establishment of Legal Aid Centres
attached to Juvenile Justice Boards in State capitals with high pending cases.
Here's a summary of the key points:
Supreme Court Directives:
1.
Legal Aid Centres:
-
NALSA
(National Legal Services Authority) is directed to establish Legal Aid Centres
attached to Juvenile Justice Boards in State capitals with high pending cases.
2.
Steps for Implementation:
a. District Legal Services Authority (DLSA):
-
DLSA
of the Capital District is directed to establish Legal Aid Centres in Juvenile
Justice Boards in the capital city.
b. Selection of Panel Lawyers:
-
DLSA
should prepare a list of young panel lawyers, preferably women, willing to work
the entire day in a child-friendly manner.
-
The
same set of lawyers may be available for legal aid in Child Welfare Committees
(CWCs) and different Homes under the Juvenile Justice Act.
c. Training Camp:
-
DLSA
to organize a training camp for panel lawyers on juvenile jurisprudence,
focusing on the UN Convention on the Rights of the Child 1989 and the Juvenile
Justice Act.
d. Attendance at JJB Proceedings:
-
Panel
lawyers to attend Juvenile Justice Board (JJB) proceedings throughout the day,
regulated by DLSA based on the volume of work.
e. Communication to JJB:
-
List
of panel lawyers communicated to Principal Magistrates and JJB Members,
displayed prominently in JJB premises.
f. Request to Magistrates and JJB Members:
-
Request
to Principal Magistrates and JJB Members to use the services of panel lawyers
and inform children about the availability of free legal aid.
g. Honorarium:
-
State
Legal Services Authority to fix a special honorarium rate for panel lawyers
attending JJBs for the entire day.
h. Use of Infrastructural Facilities:
-
Panel
lawyers permitted to use existing infrastructural facilities available in the
District Legal Services Authority.
i. Monthly Statistical Report:
-
Submission
of a monthly statistical report on legal aid given to children to the State
Legal Services Authority, included in statistics sent to NALSA.
j.
uidelines for Panel Lawyers:
-
Guidelines
to be supplied to panel lawyers, with copies given to each lawyer, and
acknowledgment of receipt obtained.
The directives aim to
enhance the provision of legal aid to children in conflict with the law, emphasizing
training, awareness, and the active involvement of lawyers in Juvenile Justice
Board proceedings.
The provided guidelines outline the
procedures and expectations for legal services in Juvenile Justice Institutions
based on the directives in the Sampurna Behrua v. Union of India & Ors.
case. Here's a summary of the guidelines:
Guidelines for Legal
Services in Juvenile Justice Institutions:
1. Introduction to Legal
Aid Lawyer:
-
When
a child is brought before the Juvenile Justice Board (JJB) by the police, the
Board should call the legal aid lawyer in front of it.
-
The
lawyer should be introduced to the Child in Conflict with Law (CCL) and their
parents.
-
Emphasize
to the CCL and their family/parents that they have the right to legal aid, and
no fees need to be paid.
2. Interaction Time:
-
JJB
should give time to the legal aid lawyer to interact with the CCL and their
parents before conducting the hearing.
3. Documentation in
Orders:
-
The
Juvenile Justice Board should mention in its order that a legal aid lawyer has
been assigned.
-
The
name and presence of legal aid lawyers should be explicitly mentioned in the
order.
4. Sufficient Time for Familiarity:
-
Ensure
that the child and their parents are given sufficient time to become familiar
with the legal aid counsel and discuss the case before the hearing.
5. Universal Legal Aid:
-
The
Juvenile Justice Board should ensure that no case of a Child in Conflict with
Law goes without having a legal aid counsel.
6. Certificate and
Verification:
-
JJB
should issue a certificate of attendance to legal aid lawyers at the end of
each month.
-
Verify
the work done reports of legal aid lawyers.
7. Reporting Lapses:
-
In
case of any lapse or misdeed by legal aid lawyers, the Board should inform the
State Legal Services Authority and take corrective steps.[6]
8. Coordination and
Solidarity:
-
Encourage
a spirit of understanding, solidarity, and coordination between the Juvenile
Justice Board and legal aid lawyers.
9. Understanding of
Juvenile Justice Law:
-
Legal
aid lawyers should develop a good understanding of Juvenile Justice Law and
child psychology by reading and participating in workshops/training.
10. Diary Maintenance:
-
Legal
aid lawyers should maintain a diary at the centre in which dates of cases are
regularly entered.
11. Leave and Attendance:
-
If
a legal aid lawyer goes on leave or is unable to attend the Board on any given
day, they should ensure that cases are attended by a fellow legal aid lawyer,
and no case is neglected.
12. Professionalism:
-
Legal
aid lawyers should not treat legal aid work as charity but should strive to
deliver the best services.
13. Monthly Meetings:
-
Legal
aid lawyers should raise issues, concerns, and problems in monthly meetings
with the State Legal Services Authority.
These guidelines aim to
ensure the effective provision of legal aid to children in conflict with the
law and promote coordination between legal aid lawyers and the Juvenile Justice
Board.
These guidelines, based
on Sampurna Behrua v. Union of India & Ors., provide a comprehensive
framework for legal services in juvenile justice institutions. They emphasize
the importance of ensuring that Child in Conflict with the Law (CCL) receives
adequate legal representation and support. Here's a summary of the guidelines:
1. Introduction to Legal
Aid:
-
The
Juvenile Justice Board (JJB) should call the legal aid lawyer when a child is
brought before the Board by the police.
-
Introduce
the CCL and their parents to the lawyer.
-
Emphasize
that legal aid is their right and they need not pay any fees for it.
2. Pre-Hearing
Interaction:
-
JJB
should allow time for the legal aid lawyer to interact with the CCL and their
parents before the hearing.
3. Documentation:
-
The
JJB should explicitly mention in its order that a legal aid lawyer has been
assigned.
-
Include
the name and presence of legal aid lawyers in the order.
4. Sufficient Time for
Familiarization:
-
Ensure
that the child and parents have adequate time to become familiar with the legal
aid counsel and discuss the case before the hearing.
5. Universal Legal Aid:
-
Ensure
that every CCL's case has a legal aid counsel assigned.
6. Certificate and
Verification:
-
JJB
should issue a certificate of attendance to legal aid lawyers at the end of
each month.
-
Verify
the work done reports of legal aid lawyers.
7. Accountability:
-
In
case of any lapse or misdeed by legal aid lawyers, the Board should inform the
State Legal Services Authority and take corrective steps.
8. Collaboration and
Coordination:
-
Encourage
a spirit of understanding, solidarity, and coordination between the Juvenile
Justice Board and legal aid lawyers.
9. Professional
Development:
-
Legal
aid lawyers should develop a good understanding of Juvenile Justice Law and
child psychology through reading and participating in workshops/trainings.
10. Record Keeping:
-
Legal
aid lawyers should maintain a diary at the center in which dates of cases are
regularly entered.
11. Alternate Representation:
-
If
a legal aid lawyer is on leave or unable to attend, ensure that cases are
covered by a fellow legal aid lawyer to prevent neglect.
12. Professionalism:
-
Legal
aid lawyers should not view legal aid work as a matter of charity; they should
deliver the best services.
13. Communication:
-
Legal
aid lawyers should raise issues, concerns, and problems in monthly meetings
with the State Legal Services Authority.
These guidelines aim to
promote fairness, accountability, and effective legal representation for
children involved in the juvenile justice system.
Continuing with the
guidelines for legal services in juvenile justice institutions, here are
additional points related to the responsibilities and conduct of Legal Aid
Lawyers:
14. Case Documentation:
-
Legal
Aid Lawyers should maintain a file for each case.
-
Daily
entries of proceedings should be made to ensure comprehensive documentation.
15. Proactive Case
Handling:
-
Legal
Aid Lawyers should not wait for the Juvenile Justice Board (JJB) to call them
for taking up a case.
-
Efforts
should be made to proactively approach families who come to the JJB and take up
cases independently.
16. Inspire Faith and
Confidence:
-
Legal
Aid Lawyers should inspire faith and confidence in children and their families
whose cases they take up.
-
Make
all possible efforts to provide necessary assistance and support to the
clients.
17. Adherence to
Empanelment Terms:
-
Legal
Aid Lawyers should strictly abide by the terms and conditions of empanelment on
the Legal Aid Panel.
18. Monthly Work Done
Report:
-
Legal
Aid Lawyers should tender their monthly work done report to the JJB within one
week of each month.
-
Submit
the report to the concerned authority along with the attendance certificate for
processing payments.
19. Client Communication:
-
Legal
Aid Lawyers must inform the client about the next date of the hearing.
-
Provide
the client with their contact information so that they can make calls in case
of any need.
These additional
guidelines focus on the importance of thorough case documentation, proactive
case management, maintaining professional conduct, and effective communication
with clients. They aim to ensure that Legal Aid Lawyers are actively involved
in the cases they take up, providing comprehensive support to children and
their families within the juvenile justice system.
The provided text
discusses the discontinuation of practices like Bal Adalat, Bal Samwad Adalat,
and Bal Lok Adalat for disposing of cases involving children in conflict with
the law. It highlights the perspective that such practices are against the
letter and spirit of juvenile law, emphasizing the need for a rehabilitative
mechanism for children in conflict with the law.
Here are the key points and the suggested way forward:
1. Discontinuation of Bal
Adalats:
-
The
National Legal Services Authority (NALSA) communicated that holding Bal Adalats
for disposing of cases related to children in conflict with the law is against
the juvenile law's principles.
-
The
practice of holding Bal Adalats has been discontinued, emphasizing the
importance of treating children differently and incorporating individual care
plans in disposal orders.
2. Importance of Juvenile
Justice Act (2015)[7]:
-
The
Juvenile Justice (Care and Protection of Children) Act 2015 is highlighted as a
socio-legal act, with a need for the social and legal aspects to work hand in
hand.
-
The
Juvenile Justice Board comprises a magistrate and two social workers,
reflecting the dual nature of the Act.
3. Concerns about Legal
Aid Emphasis:
-
While
strengthening legal aid is seen as a positive move, there is apprehension about
doing so without concurrently strengthening the probation system.
-
The
text expresses concern about the potential "legalization" of the
"socio-legal Act" due to an overemphasis on legal aspects without
adequate focus on rehabilitation.
4. Emphasis on
Rehabilitation:
-
The
text emphasizes the need for a balance between case disposal and rehabilitation
of children in conflict with the law.
-
Strengthening
both free legal aid and the probation system simultaneously is seen as crucial
for the true functioning of the juvenile justice system.
5. Challenges of Free
Legal Aid:
-
Challenges
related to free legal aid persist, even with the establishment of a panel of
lawyers trained to deal with cases involving children.
-
The
implementation of provisions ensuring fair compensation for lawyers across all
states is highlighted as a challenge.
6. Socio-Legal Cell
Concept:
-
The
text suggests that a concept of a "Socio-Legal Cell" may be more
appropriate than a "Legal Aid Cell" in the context of juvenile
justice.
-
This
implies a focus not only on legal aspects but also on the socio-legal
dimensions of addressing the needs and rehabilitation of children in conflict
with the law.
Findings
and suggestions
Findings on the Role of
Legal Aid Counsel in the Juvenile Justice Act (JJ Act):
1. Legal Representation: Legal aid
counsel plays a crucial role in providing legal representation to juveniles in
conflict with the law, ensuring their rights are protected during court
proceedings.
2. Best Interest Advocacy: Legal aid
counsel advocates for the best interests of juveniles, aligning with the
rehabilitative approach of the JJ Act and contributing to fair and just
treatment.
3. Rehabilitation Assessment: Legal aid
counsel assists in the assessment of individual needs, aiding the court in
tailoring rehabilitation programs that address the underlying causes of
juvenile delinquency.
4. Child-Centric Approach: Legal aid
counsel contributes to maintaining a child-centric approach in the juvenile
justice system, safeguarding the rights and dignity of juvenile offenders.
5. Special Procedures Safeguarding
Rights: Legal aid counsel ensures the implementation of special procedures
mandated by the JJ Act to protect the vulnerable rights of juveniles, including
confidentiality and protection from harm.
Suggestions:
1. Enhanced Training: Provide
specialized training for legal aid counsel in juvenile law to effectively
navigate the unique challenges associated with juvenile justice.
2. Resource Allocation: Allocate
sufficient resources to legal aid services, ensuring they have the capacity to
meet the demands of representing juveniles in conflict with the law.
3. Awareness Campaigns: Conduct
awareness campaigns to educate legal aid counsel about the nuances of the JJ
Act and its rehabilitative objectives.
4. Collaboration with District Legal
Services Authorities: Foster strong collaboration between Juvenile Justice
Boards and District Legal Services Authorities to streamline the process of
providing immediate legal aid when difficulties arise.
5. Regular Monitoring and Evaluation:
Implement mechanisms for the regular monitoring and evaluation of legal aid
counsel's performance in juvenile cases to ensure adherence to the principles
of the JJ Act.
By implementing these findings and
suggestions, the role of legal aid counsel in the Juvenile Justice Act can be
strengthened, contributing to a more effective and child-centric juvenile
justice system.
Conclusion
In summary, the text
emphasizes the need for a balanced approach that integrates legal aid and the
probation system, with a strong focus on the rehabilitation of children in
conflict with the law within the framework of the Juvenile Justice Act.
Furthermore, the Act
recognizes the vulnerability of juveniles in the justice system and mandates
special procedures to protect their rights. Legal aid counsel acts as a
safeguard, ensuring that the juvenile is treated with dignity and fairness, and
that their rights to legal representation, confidentiality, and protection from
harm are diligently upheld.
The act delves into the
challenges faced by legal aid counsel in implementing the Juvenile Justice Act.
These challenges may include resource constraints, societal biases, and the
need for specialized training in juvenile law. Overcoming these challenges is
crucial to effectively fulfill the role of legal aid counsel and to promote the
overarching goals of the Juvenile Justice Act 2015.
In conclusion, this
abstract provides a comprehensive overview of the indispensable role played by
legal aid counsel in the implementation of the Juvenile Justice Act 2015. By
advocating for the rights and well-being of juvenile offenders, legal aid
counsel contribute significantly to the establishment of a fair, child-centric,
and rehabilitative juvenile justice system.
[1] Jasdeep kaur Advocate (author ) is
a Registered Phd candidate at Amity University Jaipur Rajasthan batch july 2020
, she has completed her LLM in corporate governance and banking laws from
University school of law and legal studies Shri Guru Gobind Singh Indraprastha
University Delhi Dwarka and currently working with Delhi State Legal Services
Authorities as Legal aid counsel at Juvenile Justice Board Delhi
9821378225, advjasdeepkaur@gmail.com
[2] Sheela Barse vs. Union of India,
1986 SCALE (2) 230
[3] Committee on the Rights of the
Child, Consideration of Reports submitted by State Parties under Article 44 of
the Convention- Concluding Observations: India, CRC/C/15/Add.228, 26 February
2004, para 78.
[4] https://nalsa.gov.in/acts-rules
[5] Sampurna Behrua v. Union of India
& Ors. W.P.(C) No.473/2005
[6]
http://nalsa.gov.in/sites/default/files/document/Guidelines%20JJB.pdf
[7] The Juvenile Justice (Care and
Protection of Children) Act 2015
Article Information
THE ROLE OF LEGAL AID COUNSEL IN JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT 2015
Authors: JASDEEP KAUR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/30
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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