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Transgender Persons…

  1. Introduction 

Every human being is entitled to certain basic rights such as education, employment, health care and, most importantly, self-identification. But such rights are denied to the transgender people, i.e., the people who are having a gender identity or a gender expression that varies from the gender assigned to them at birth including hijras, eunuchs, kothis, aravanis, jogappas, shiv-shakthis, etc. who strongly identify with the gender opposite of their biological sex; male and female in India even after the enactment of Transgender Persons' (Rights Protection) Act on November 25, 2019.

Sometimes, our community ridicules and exploits the Transgender community and in public places such as railway stations, bus stands, schools, offices, malls, theatres, hospitals, they are ignored and viewed as untouchable, unaware that the moral deficiency lies in society's inability to accept or tolerate various gender identities and expressions, an attitude that the society must alter.

The research paper addresses the problem of transgender in the community where they were used as an instrument of harassment and physical abuse and explores different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation in India.

1.1 Historical Background of Transgender in India

During the British rule, legislation was introduced to monitor the activities of the Hijras / transgender community, called the Criminal Tribes Act, 1871, which considered the entire Hijras community to be innately criminal and habituated to the systematic commission of non-bailable crimes. The law provided for the registration, supervision and control of certain criminal tribes and eunuchs, and penalised eunuchs who were enrolled and seemed to be dressed or ornamented like a woman, in a city street or in a public setting, as well as those who danced or expected to perform music in a public venue. Such persons could also be detained without a warrant and sentenced to imprisonment of up to two years or a fine or both.

Piror to the enactment of the Criminal Tribes Act, 1871, Section 377 of Indian Penal Code, 1860, criminalized all penile- non-vaginal sexual acts between persons, including at a time when transgender individuals were also typically associated with prescribed sexual practices.

The case Suresh Kumar Koushal and another v. Naz Foundation and others  found Section 377 of Indian Penal Code, 1860, and other legal prohibitions against private, adult, consensual, and non-commercial same-sex was in the violation of fundamental rights provided by the Indian Constitution. The Supreme Court had previously upheld Section 377 of the IPC on the grounds that only a tiny fraction of the country's population, according to the court, belonged to the LGBTQI community. The Court in Navtej Singh Johar v. Union of India, rejected this argument and finally the court ruled that Section 377 is unconstitutional as it infringed the fundamental rights of autonomy, intimacy, and identity, thus legalizing homosexuality in India. 

The Court relied upon its decision in National Legal Services Authority v. Union of India,  to emphasize that gender identity is fundamental to one's personality and to ignore the same will be a breach of one's integrity. 

Also relied upon the case K.S. Puttaswamy v. Union of India, where it was held that ignoring the LGBT community the right to privacy on the basis that they constitute a minority of the population would be in violation of their fundamental rights.  It held that Section 377 constitutes an inappropriate restriction on the right to freedom of expression, because consensual carnal intercourse in private "does not in any way affect public dignity or morality". The Court held that "intimacy between consenting adults of the same sex is beyond the legitimate interests of the State" and sodomy laws violate the right to equality under Article.14 and Article 15 of the Constitution by excluding sections of the population for their sexual orientation.

Also the case  Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of Indiaheld that Reaffirming that the right of an individual to "choose a life partner of his / her desire" is a facet of human liberty.


1.2 Constitutional Perspective


1. Article 14 of the Constitution provides equal protection and, therefore, a substantive duty on the State to ensure equal protection of laws by bringing about required social and economic reforms, so that all, including transgenders, will enjoy equal protection of laws and no one is denied such protection.

However there are some instances that portray such facts and figures backed by relevant materials that despite constitutional guarantee of equality, transgender people in all sectors of society have faced extreme discrimination. Furthermore, access to public toilets is also a serious issue which they often face. Since the transgender people do not have separate toilet facilities, they will have to use male toilets where they are vulnerable to sexual abuse and harassment. Therefore discrimination on the basis of sexual orientation or gender identity impairs equality before law and equal protection of law and violates Article 14 of the Indian Constitution.


2. Article 15 and 16 of the Constitution prohibit discrimination on certain enumerated grounds against any citizen, including on grounds of gender. In fact, both Articles forbid all forms of gender bias and discrimination based on gender.

Consequently, discrimination on the basis of sex under Articles 15 and 16 covers discriminating on the basis of gender identity. The term sex used in Articles 15 and 16 is not limited to male or female biological sex alone, but intended to include individuals who consider themselves to be neither male nor female.

Transgenders have been denied basic rights under Article 15(2) to which no disability, liability, restriction or condition of access to public places is to be subjected. Special provisions for the advancement of the socially and educationally backward classes (SEBC) of citizens, which they are legally entitled and eligible to receive the benefits of SEBC, were also not granted to TGs pursuant to Article 15(4). They were also denied rights pursuant to Article 16(2) and discriminated against on basis of sex in respect of employment or office within the State. TGs are also entitled, as provided for in Article 16(4) of the Constitution, to make a reservation in the matter of appointment.


3.Article 19(1) (a) of the Constitution states that “all citizens shall have the right to freedom of speech and expression, which includes ones right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.”

Gender identity, therefore, lies at the core of ones personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgenders personality could be expressed by the transgenders behavior and presentation. State cannot prohibit, restrict or interfere with a transgenders expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights.


4.Article 21 of the constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law.

At the heart of the fundamental right to dignity lies the recognition of one's gender identity. Gender, as already indicated, constitutes the core of ones sense of being as well as an integral part of a person’s identity. Consequently, legal recognition of gender identity forms part of the right to dignity and freedom guaranteed by our Constitution.

In Anuj Garg v. Hotel Association of India, the Supreme Court held that personal autonomy involves both the negative right of others not to be subjected to interference and the positive right of individuals to make decisions about their lives, to express themselves and to choose which activities to participate in. Gender self-determination is an essential part of personal autonomy and self-expression, and falls within the realm of personal liberty guaranteed by Article 21 of India's Constitution.

The case which is taken as a landmark case when we talk about the transgender community is National Legal Services Authority v. Union of India, where a writ petition was filed by the National Legal Services Authority, an Indian statutory body formed to provide legal representation to disadvantaged sections of society. The petition was supported by a non-governmental organisation representing the Transgender Kinnar community and a person who described himself as a Hijra.

The petition sought a legal recognition of their gender identity other than the one given at the time of birth and the non-recognition of their gender identity violated Articles 14 and 21 of the Constitution of India. The transgender community has called for their inability to express themselves on the basis of binary identity to deny them equal protection of the law and social welfare programmes. They also prayed for legal rights as a backward community, as well as the right to be able to express their self-identified gender in governmental ways.

Thus, the supreme court held that gender identity and sexual orientation include trans genders and that “each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures as a requirement for legal recognition of their gender identity.” Also stated that “apart from binary gender, be treated as ‘third gender’ for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.” It also instructed the state governments to offer legal recognition of their gender identity as male, female or third-gender.


1.3 Transgender Persons (Protection of Rights) Bill, 2019

Based to the 2011 Census, the number of people who do not identify as 'male' or 'female' but as 'other' is 4.87.803 (0.04 per cent of the total population). This 'other' group referred to individuals that were not classified as either male or female and included transgender individuals.

In 2013, the Government formed an expert committee to discuss issues related to transgender people. The Committee reported that transgender people were presented with problems of social stigma and discrimination impacting their access to education , health care, jobs and government records. In 2014, the Supreme Court acknowledged the right of a transgender person to self-identify as male, female or third-gender. The Court also directed central and state governments to give legal recognition to transgender people, to resolve issues of social stigma and prejudice and to provide them with social welfare schemes.

The Transgender Persons (Protection of Rights) Bill, 2019 was passed by Parliament on November 26, 2019. The Bill describes a transgender person as being partially female or male; or a mixture of female and male; or neither female nor male. In addition, the gender of the person shall not adhere to the gender assigned at birth and shall include trans-men, trans-women, individuals with intersex differences and gender-queers. 

It also criminalizes begging and Protects people from discrimination against a transgender person in fields such as education, jobs and health.

A transgender person is required to obtain a certificate of identity as evidence of identification as a transgender person and to invoke rights under the Bill. Such a certificate will be given by the District Magistrate on the recommendation of the Screening Committee. The committee will be composed of a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official and a transgender person.


1.4 Conclusion


The decision made in the both the cases, i.e, Navtej Singh Johar v. Union of India, and National Legal Services Authority v. Union of India, were historic in nature and has exceptionally high precedent significance, as determined by the Constitutional Bench of the Supreme Court of India. It sets a bidding precedent for all courts across India and for the smaller Supreme Court benches.

However, the bill essentially denies the majority of transgender people their right to self-identification by offering an unnecessarily complicated bureaucratic system requiring the applicant to apply for a transgender certificate to be accepted by two separate sets of authorities, despite earlier widespread criticism by the transgender community of this mechanism.

The Bill also included mandatory sex reassignment surgery for transgender individuals who want to define their gender within the binary (male / female) system. This provision would be contrary to the judgement of the Supreme Court in NALSA v. UOI, which guarantees the right to self-identification without the need for medical intervention.

Moreover, the recognition of beggary' as an offence under the Bill is troublesome, as it remains one of the few livelihood opportunities for many transgender people in the country.

Moreover, notwithstanding the clear directions of the Supreme Court in NALSA v. UOI, the Bill does not discuss the issue of employment and education reservations neither any separate public toilets and other facilities are established for them. They are still being discriminated in hospitals, employment, housing, healthcare and other services.

ACQUIRED RIGHTS DIRECTIVE…

Introduction

The council Directive 77/187 of 14th February 1977 has been given the name the Acquired Rights Directive. It focuses on the approximation of laws of the member states relating to safeguarding the rights of employees in the event of undertaking, businesses or parts of businesses. The acquired rights regulate the transfer of an undertaking by ensuring that the terms and conditions of employment are maintained for the affected employees. It has essential implications for privatisation and contracting out policies in some member states.

If privatisation includes the transfer of part of the state-owned firm with its workforce, this normally means that the employees transferred benefit from the protection of the Directive. The same thing happens when the services are the public are contracted out to private enterprises which undertake to employ the existing workforce.

The Transfer of Undertakings Directive of 1977 (TUPE)

The Transfer of Undertakings Directive of 1977 (TUPE) became a part of Irish law by the European Communities Regulations,1980, which safeguards the rights of employees where the business in which they are employed is transferred to a new owner.

TUPE protects the employees in Transfer of undertaking, a business, school, colleges, Educational institutions, charities, local authorities, health boards, trade associations, trade unions, state and semi-state bodies. The employees can retain all the rights in their employment contract with the originating employers, such as,

a)      Employee and trade union contractual entitlements

b)      Employee representatives continue to have standing

c)      Employees are entitled to be notified and consulted about the transfer before it happens

d)     Employees can not be dismissed because of the transfer of the entity

e)      Their length of service includes their time with the original business

Employees’ protection

The protection of employees on transfer of undertaking regulations apply to any person:

·         Working under a contract of employment, including apprenticeship.

·          Employed through an employment agency.

·          Holding office under or in the state’s service, an officer or servant of a harbour authority.

·          Health board or vocational educational committee and a member of the Garda Siochana or the defence forces.

Under such situations the TUPE is applied in cases of service organisations-

a)      When the activities are outsourced to a contractor

b)      When activities are moved from one contractor to another

c)      When activities are moved in house from a contractor

In situations where the rights and obligations in respect of employment contracts of transferring business are transferred to a new business that time the employees and trade union contractual entitlements survive post transfer regardless of irrespective of the fact that whether the purchasers are aware of these entitlements or not.

The pension rights are not transferred and it is the responsibility of the new business to comply with TUPE. if the first business is insolvent,  or where the transfer of business is by way of share sale then TUPE does not apply.

Thus, TUPE is enacted to protect the jobs of workers, their record of the length of service, and the working conditions when the business they are working for changes the ownership. The starting date of the employee is considered to be when he joins the original entity, his accrued vacation, stock shares, all such things needs to be transferred or should be compensated with cash. Most importantly, the new employer may not ever transfer employees working conditions to match those of its existing employees if such is solely due to the transfer. Such action would be a violation of TUPE.

The ETO (economic, technical and organisational) defence

The ETO (economic, technical and organisational) defence is allowed. This means that the employee can be dismissed if the reason is ETO. However, this is considered as a redundancy situation and the transferee will be liable for the redundancy costs.

There are 2 conditions in order to avail the ETO Defence-

1.      The changes made in the workplace

2.      The employees surplus to requirement

To avail this defence, the employer needs to show a bona fide decision to make changes in the workplace. But, ETO defence does not permit any employer to reduce the remuneration of an employee.

Acquired Rights Directive…

INTRODUCTION

Directive 2001/23/EC on Transfers of Enterprises is a European Union law protecting employment contracts for individuals employed in enterprises transferred between owners. It replaced  and revised the legislation previously known as Directive 77/187/EC on Acquired Rights.

The object of the Directive is to control the transition of an undertaking by ensuring that conditions of employment for the affected employees are retained. For collective agreements, Article 3(3) stipulates that this privilege should last until' the date on which the collective agreement is terminated or expires or another collective agreement comes into effect or applies.'

Transfer of Enterprises (Employment Protection) Regulations, 2006

The 2006 Transfer of Enterprises (Employment Protection) Regulations, known colloquially as TUPE, are the regulation of the European Union Transfer of Enterprises Directive by the United Kingdom. It is an important part of UK labor law to protect workers whose work is transferred to another country. The regulations of 2006 replace the old regulations of 1981 introduced the original directive. The legislation was revised in 2014 and 2018 and the specific provisions of the 2006 Regulations have changed.

A company or activity (or part of a business) based in the United Kingdom immediately prior to the move, which moves between one employer to another, may also include when two businesses cease to exist and combine to form a new, as well as the transition of an economic entity that maintains its identity.

Objectives of TUPE

The main objectives of the Regulations are to ensure that employment is covered in connection with the transition are mentioned below-

employees are not dismissed

employees' most important terms and conditions of contracts are not worsened

affected employees are informed and consulted through representatives prior to the transfer


This does not refer to transactions that only include the selling of the stock of a company. If that occurs, because the employer is still the same employer, all contractual obligations remain the same. The Directive and Regulations apply, through the selling of physical assets and leases, to other ways of transfer. In some cases, the rules often apply to work being passed to contractors. Such covered employment contract terms include hours of work, wages, service duration, and so on, but pension entitlements are excluded.

It protects the employment and contractual contact of an employee by ensuring that the person in charge of the business is obliged to honor the employees in the contractual terms in force prior to the transfer. As well as preventing the employee from being fired by the company as part of the transfer of undertakings, it will be an involuntary unfair dismissal for the transfer of undertakings. Nevertheless, Regulation 7(2) provides that if the employee has been dismissed for an economic, technological or organizational purpose which has entailed a change in the workforce of either the transferor or the transferor, the reason for the dismissal shall be treated as either for redundancy or for a substantial reason such as to justify the dismissal of the employee holding the position.

It also means that the company or person taking possession of the entity must accept all established trade unions and established employee representatives, as well as adhere to any collective agreements reached by the unions on behalf of the employees, which remain in place until either they dissolve or they are replaced by new agreements.

Certain obligations which are transferred-

General responsibilities and duties arising from Regulation 5(2) Art 3(1) occur within a transition and are as follows- 

Where a transition happens, all workers hired by the seller will be transferred to the buyer under their current terms and conditions of employment and retained continuity of jobs. This is known as the theory of automatic transfer which occurs at the point of transfer, which is usually at the time of completion rather than contract exchange.

The buyer shall inherit all the rights, duties and liabilities of the seller under or in connection with the contracts for the transfer of employees. This will include all contractual and statutory privileges such as vacation pay, incentives and other entitlements such as maternity / redundancy programs as well as any future disputes that may have occurred before the transition due to the seller's actions or omissions.

TUPE Regulation 13 allows the transferee to notify and communicate with relevant employee representatives before completion. The obligation to communicate would extend if it is assumed that measures will be taken in relation to any workers rendered in connection with the move.

The Court of Appeal held that the Royal Mail had not failed in its duty to provide the required information as it had provided information that it truly believed was correct.


Conclusion

The Transfer of Undertaking (Protection of Employment) Regulations (2006) are in place in order to protect the employees statutory rights in the event of a business take over, by ensuring continued employment at the same, or more favorable contractual terms. It also gives the employees guidelines of a course of action to take if there is a breach of these contractual terms.


Life Insurance covers…

A life insurance policy is generally taken by someone to ensure that their family remains financially independent after the policyholder dies in case of sudden misfortune. But it gets very challenging for the family to deal with such an unforeseen situation and to the lose only financial security in the form of insurance policies due to the absence of suicide from being covered by the policy measures only increases the difficulties of the family. So, the insurance regulator IRDAI (Insurance Regulatory and Development Authority of India) has incorporated changes to the suicidal provision that have been in effect since 1 January 2014.

As per the World Health Statistics 2019 published by World Health Organization (WHO), India’s suicide rate in 2016 was 17.8 per 100,000 people, much higher than the global suicide rate of 10.5 and the causes of suicide deaths in India have indeed been linked to factors such as economic debt, mental issues, education and lower fertility rates.

In the case of Faquir Singh v. Union of India AIR 2002 J&K 62, an insured person died due to the use of a rope around the neck that caused cardiac failure. The court held that it was inappropriate to deny the benefit of postal insurance to the father of the insured whose death occurred as a result of committing suicide. 

In case of Northern India Assurance Co. v. Kanhayala,(1938) Lahore High Court, 561, the insured person committed suicide within 13 months. So, the court held that committing suicide is not a felony in India and the benefit of postal insurance were to be given to the family.

As life insurance policies focus on providing suicidal death coverage after a period of one year. However, if the policyholder commits suicide before a time frame of one year, then the nominee may not be able to benefit from the full amount of insurance. Rather, the insurer may need to provide the family with a benefit equal to a certain percentage of the premium paid during the term of the policy.

However, all this vary depending on the terms of policy. The restriction on payment of the amount insured in cases of suicide before the end of 12 months helps insurance companies to prevent insurance fraud. There may be instances where the insured person has incurred a huge debt and wants to get out of this circumstance first by purchasing insurance policy and then committing suicide.

Conclusion

The sole reason for offering suicidal death insurance is to assist the emotionally devastated family members by paying them a certain amount (as per the clauses) out of the premium paid by the departed family member. If the insured person commits suicide within 12 months of the issue of the policy term, the nominee is not allowed to obtain full death benefits, but the insurer can only pay the nominee a benefit equal to a certain percentage of the premium paid during the policy term by the policyholder. Likewise, if the policyholder commits suicide within 12 months from the date of the planned renewal, the nominee shall receive just 80 per cent of the premiums paid as a death benefit.


The Tuticorin Custodial…

Police brutality, an important phenomenon in India today, abuses numerous civil and human rights by abusing and tormenting a individual. From 2000 to 2016, according to the National Crime Record Bureau figures, there were 1,022 confirmed deaths of people in police custody, but only 428 FIRs were charged, of which 5 percent of the policemen were eventually sentenced. Police brutality has been accepted to the point that it is part of our mass culture and has even been idolized in modern years – but this portrayal may not be further from the facts.

In the current Tuticorin case, the death of father (Jeyaraj) and son (Fenix) due to alleged custodial torture in the town of Sathankulam near Thoothukudi in Tamil Nadu has provoked frustration and anger all over the state. The Tamil Nadu Traders Association closed shutters across the state. The victims were traders from the Nadar caste, a socially and politically influential group in southern Tamil Nadu.

Both the father and the son ran a cell phone shop at Sathankulam town, which was opened 15 minutes after the curfew on June 18, during the COVID-induced lockdown. 

Jeyaraj allegedly made several negative remarks about the police patrol unit on June 18, ordering shop owners to close down stores early for locking laws. The auto driver had told the police about the comments, and the police team had come to take him in custody the very next day. After Jeyaraj was taken into custody by an angry police team, his son, J Fenix, followed the police team to the station.

At the Sathankulam police station, a senior police officer said that Bennix saw his father getting physically harassed by an cop. An angry Fenix confronted the cop, attempted to hinder the officer, or pressured him to safeguard his father. “It had provoked the police team, they thrashed both father and son for hours. There were two sub-inspectors and two constables in the torture team. A total of 13 officers were there at the station during the incident, including volunteer’s part of Friends of Police,” the officer said.

This was a direct abuse of the police's arresting authority, as the store was shut down within 15 minutes. The next day, however, the two were arrested and charged with what appears to be an exaggerated count of charges. Even though two FIRs have been filed, no policeman has been charged with murder charges. Regarding the uproar and protest movements, four police officers, including two sub-inspectors, were suspended. The inspector for the station has been transferred. The judicial investigation is ongoing, the post-mortem report has been submitted to the High Court of Madras in a sealed form, and the court is awaiting a police report.

The causes of these barbarous actions by the police must be thoroughly examined and reviewed, so that effective steps can be taken to nip these behaviors in the bud. The judiciary needs to start paying a little more consideration to such a horrific and extreme abuse of authority and examine the complaints and bring the wrongdoer to justice. Clear and unmistakable instructions need to be issued to police departments that unwarranted use of force and authority can just bring them trouble.


SHOULD MINORS BE TREATED…

INTRODUCTION

According to our present system of juvenile justice, when a minor commits a crime that is not necessarily committed by them alone, it is assumed that it is because of the spirit of adventure that is in every minor, or because of his own ignorance, or because of his lack of discipline. Yet they fail to realize that in the future, mankind has its stars, and the future is too vital to be wasted under the weight of youthful stupidity and naive superstition.

The word' Juvenile' was coined in the late 1800s when juvenile crime and abuse were redefined as distinct and separate from adult crimes, and new social intervention structures were created to handle children with problems. Young offenders who used to be treated as just young ‘criminals' were turned into' juveniles.' Nevertheless, the word ‘juvenile' reflects a number of different behaviors and means different things at various times and locations.

WHO IS A JUVENILE?

A juvenile is a child who has not reached eighteen years of age. The term has a legal significance to it. According to the Juvenile Justice (Care and Protection) Act, 2000, a juvenile is not to be considered as an adult even though he / she are involved in any criminal activity for the purposes of conviction and punishment in court.

REASON BEHIND JUVENILE CRIMES IN INDIA

There are many factors which contribute to the child's criminal nature. Most of these young people come from discording or abusive homes. Peer pressure, environment also has an impact on a child's growth. Poverty is also one of the major causes of juvenile delinquency. While education plays an significant role in molding future people, the framework somehow lacks the capacity to keep non-bookish and non-academic individuals' interest and thus leads to many cases of juvenile delinquency. Delinquents are typically the ones who take studies as a burden and resort to crime on being rebuked. Crime committed by minors under the statutory age is referred to as juvenile criminal offence. According to the statistics reported by the National Crime Records Bureau (NCRB), juvenile offenders between the ages of 16 and 18 accounted for more than 60 per cent of the crimes recorded in India in 2013. The number of juveniles in dispute with the law has reportedly risen in recent years by a large amount. This also included the modesty of outraged women.

 

MEASURES

There are some steps that can help in changing these children:

1.      Instill in them a sense of security and offer them the love and affection they might have been deprived of.

2.      Parents should be encouraged to identify early signs of maladjustment, so that any inclination towards delinquency can be broken at the roots.

3.      At the very beginning, a sense of moral and social values should be instilled in them.

4.      Upon identification of a delinquent behavior, one must remember to condemn the behavior and not the offender.

PRESENT LEGISLATION

The Juvenile Justice (Care and Protection) Act, 2000 (hereinafter called “The Act”) stipulates that juveniles in conflict with the law or juvenile offenders must be detained in an' Observation Home' while children in need of care and security must be detained in a'‘Children's Home' during proceedings pending before the competent authority.

A juvenile will only be detained for a maximum duration of 3 years, irrespective of the severity of the crime that he has committed, and he will be remanded to' Special Home.' The Juvenile Justice (Care and Protection) Act, 2000 provides protection for the offender who is under the age of 18 Years at the time of the commission of the alleged crime from prosecution in Criminal Court or other penalty under Criminal Law pursuant to section 17 of the Act.

This new Act was intended to rehabilitate the child and assimilate him / her in mainstream society. The reasoning is that due to his / her tender age and lack of maturity a child still has the potential of being transformed and it is the State's duty to protect and change the child.

Taking into account the rise in juvenile crimes, the Union Cabinet has approved an amendment to the Juvenile Justice (Care and Protection of Children) Act, 2000, to consider minors over 16 years of age as adults if charged with serious crimes such as rape. However, such delinquent youth are not to be granted death or life imprisonment.

PROPOSED AMENDMENT IN JUVENILE JUSTICE ACT 2000

1.      The proposed law would amend the current Juvenile Act.

2.      It specifically described and categorized crimes as minor, serious and heinous.

3.      It was recognized that the increasing number of serious offenses committed by juveniles in the 16-18-year age range.

4.      Therefore, in consideration of the victims ' rights as well as the rights of juveniles, it is recommended that these heinous crimes should be treated in a specific way.

5.      Therefore, it was proposed that if a person in the age group of 16 to 18 years commits a heinous crime, the Juvenile Justice Board will first determine whether the crime was committed by that person as a' child' or as an' adult.'

6.      The Juvenile Justice Board will include psychologists and social professionals in it to ensure that juvenile rights are adequately secured if the crime is committed.

CONCLUSION

It is reasonable to assume the juveniles committing crimes such as rape, since the best known example is the case of Nirbhaya Delhi Rape, in which the juvenile is sent to correctional home for just 3 years. This amendment in the JJ Act also provides the other offenders a means to commit their heinous crimes which they can now achieve through such juveniles since they are safe that the juveniles will be free after 3 years and then again can join their gang as a mature criminal.

 

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