The Government is contemplating to amend J&K Justice Juvenile (Care & Protection of Children) Act 2013 by introducing a draft Juvenile Justice Bill 2018 through Department of Social Welfare. One of the amendments relates to lowering of juvenile age from 18 years to 16 for criminal liability. According to J & K Juvenile Justice Act 1997 (unimplemented so far) juvenile means a boy or girl who has not completed age of 16 /18 years respectively. Various age tags stand prescribed by precedent or law for different people or positions to consider them for approval or negation. For voting purpose the age is gender neutral at 18 years. Legally for marriage of a boy it is 21 years and for a girl 18 years. These limits have been set after taking into consideration the physical and the mental maturity aspects of the genders to decide their representatives in constitutional/other bodies and be able to share the responsibilities of parenthood to maintain a reasonably balanced political & social order. Age for marriage is elastic as even the below 16 couple can have marital results but biology is totally different from psychology, psychiatry and brain sciences juveniles are more confronted with.
Indubitably the lowering of age will bring more juvenile offenders under the ambit of correctional mechanism. Does the mechanism deliver the intended results, suffers guarantee of certainty as jackboot policy cages body and not the mind or emotions to hold manifestation. They need schooling, psychological and in some cases psychiatric orientation which we perennially lack drastically. The amendment is feared to create more problems than solving. The lowered age will widen the catch-net dragging more and more children to trial courts from the repository of lodging houses denying them access to the reformative & the rehabilitative interventions under the Juvenile Justice Act. This may tend to harden them prematurely to argumentative and animus state. While locking up them in the prisons for adults they shall be exposed and tempted to the adult world of crime rendering them irreparable. If Government readies itself for shouldering the pain/cure of these incidental offenders efforts should be made to reach the source such tendency sprouts from. Make laws, rules & regulations to create an atmosphere that would help eliminate or reduce the youth impairment. Lowering the age will not wipe out the problem. The age should remain 18 years.
The draft bill, inter alia, proposes one more important provision of legalizing ‘ Adoption’ which was not in the earlier Act of 2013. The clause states, “A child in respect of whom an adoption order is issued by the court , shall become the child of the adoptive parents, and the adoptive parents shall become the parents of the child as if the child has been born to the adoptive parents, for all purposes, including intestacy with effect from the date on which the adoption order takes effect and on and from such date all the ties of the child in the family of his/her birth shall stand severed and replaced by those created by the adoption order in the adoptive family.” The draft further says that, “provided that any property which has vested in the adoptive child immediately before the date on which the adoption order takes effect shall continue to vest in the adopted child subject to the obligation, if any. attached to the ownership of such property including the obligations, if any , to maintain the relatives in the biological family.” The bill also provides for having ‘ Specialized Adoption Agencies’ in the state for the rehabilitation of orphans, abandoned or surrendered children through adoption and non-institutional care , ‘State Adoption Revenue Authority’ to facilitate adoption and frame regulations on adoption and related matters as may be necessary from time to time.
It is to recapitulate that in Muslims, which is the majority community in J&K , the practice of adoption is not in vogue by precept except by a thin precedent and that too within blood relations. There is a lucid pronouncement in the holy book of the Quran that adopted children cannot be named after their adoptive parents or be heir to inherit the property in a manner the biological children do. The intention is that heir-ship does not drift away from the genuine biological heirs to non heirs not entitled to it naturally. However, to accommodate destitute, orphans, needy, poor, disabled, abandoned, surrendered etc, provisions of paying zakat, oushur (1/10th) and creation of baitul-maal have been made mandatory, making testacy upto 1/3rd of the total property suggested and giving alms/charity encouraged in a number of verses in the same Book. Experiencing the fate of beggars & the beggar/leper homes , the only two observation homes, from some time past and the drug de-addictions centres now, the proposal of adoption needs to be dropped and turned down as has been done by the Law Department during 2013. The best way for redressal is through the Department of Social Welfare itself which has an age old experienced net work upto grass root levels. The department if provided with required funds in time and monitored properly with ensured accountability and transparency can surpass in achieving very well the objectives of all adoption like initiatives.
However, if Government wants to go ahead with adoption, it should be intra-state and within the blood relations. To make the process state friendly the cases must be dealt in line with Notifications No.1-L/84 dated 20-4-1927, No. 13L dated 27-6-1932, Article 6 of Constitution of J & K and Article 35A promulgated through Presidential Order of 14-5-1954 under Article 370 (1) of Constitution of India. To ensure transparency cases should be allowed only after registration, scrutiny and authentication by the appropriate Hon’ble judicial authorities after vetting these like conveyance deeds based on genuine revenue records of the state subjects. Besides, the provision for adoption should include a clause that no law/ amendment would be passed that would attack special status of J & K as apprehended. Moreover, proposal for effecting any amendments should be invariably put on outer-net to gain feedback for better outcomes. The J& K having its separate independent constitution and special status must make its own laws , sans imitations, catering to its distinct needs.
(The author is a former Sr. Audit Officer working as Consultant in the A.G’s Office Srinagar.)
Mohammad jalaluddin2012@gmail.com