This article has been written by Ms. Vijetha Saishree Palle, a 1 year student of Symbiosis Law School, NOIDA
ABSTRACT
This article delves into the comparative analysis between The Hindu Minority and Guardianship Act and The Juvenile Justice Act. With this article we will navigate through their respective legal framework, special features, and examining key principle pertaining to the child protection, rights and responsibilities within the narrower concept of The Hindu Minority and Guardianship Act while comparing the intricate aspects of the border spectrum of Juvenile Justice Act. By putting next to several statuses, the research aims to outline the implications for minors under these very distinct legal framework, which contributes to the nuanced and comprehensive understanding of welfare of the child in Indian legal context.
INTRODUCTION
In a nation or a country like India, where every mile has a diverse cultural tapestry, it becomes vital to recognize the importance of various legal frameworks that safeguard the rights and welfare of people from different backgrounds, especially minors. The two significant frameworks brought into action to safeguard the interest of minors are the Hindu minority and Guardianship Act and the Juvenile Justice Act, which play a pivotal role in addressing the issues related to children. Both legal frameworks have different scopes and distinct purposes. Through this article, we will delve into the comparative study or analysis of the critical aspects of each act, focusing on the case laws, applicability, and, more importantly, their interpretation.
THE HINDU MINORITY AND GUARDIANSHIP ACT
The Hindu minority and Guardianship Act was first enacted in 1956, the legislation significantly aimed to amend the laws concerning minority and guardianship within the communities of Hindu, Buddhist, Jain, and Sikh. Their primary intent was to establish a uniform code or legal framework to address the issues related to the guardianship and custody of minors and the overall welfare of the child. Before this act’s enactment, several Customary practices were grounds for considering matters concerning minors. These customary practices were rectified through this act, and the act was provided to standardize the approaches. The act underwent development and transformation through judicial interventions, providing a more equitable understanding of the child’s best interest.
Applicability:
The Respect Women applicability is limited to only Hindu communities and those who practice Buddhism, Jainism, and Sikhism. The act does not imply individuals from other religious backgrounds. Due to this, the spectrum or scope of application is narrowed down to a very significant population.
Guardianship:
The arrangements for appointing a natural guardian for a minor are emphasized in section 6 of the Hindu minority and Guardianship Act. The customary traditions have traditionally exhibited a bias in favor of the father over the mother. However, several legal developments have changed the historical prevalence to establish a more just and unbiased nature of guardianship.
In a landmark judgment of Githa Hariharan versus the Reserve Bank of India, it contested the discriminatory provisions of the act, which primarily gave the preference of guardianship to the father over the mother in the ruling of the honorable Supreme Court. The paramount importance of the welfare of the child is emphasized irrespective of gender bias. This was a significant judgment that marked the establishment of the shift in the interpretation of the act, which aligned with the principles of equality engraved in the Constitution of India.
Section 9 of the Hindu minority and Guardianship Act also emphasizes testamentary guardianship, which allows the Hindu parent to appoint testamentary guardianship with the procedure of a bill that provides an arrangement for planning the guardianship of a minor child.
Custody of minors:
Custody of minors in situations of separation amongst the couples. In this case, Hindu couples are fundamental to every family matter and must be aligned with the welfare of the child. The act provides guidelines for determining the custody of minors and considering the welfare of the child and has emphasized this principle throughout this act.
In the case of Ram Murti Chopra Vs Anil Kumar Joshi, the honorable Court mentioned the centrality of the concept of the child’s welfare in matters of custody. The court directed that the child’s custody will be given to the father during the span of one week for each duration of holidays and vacations. The father will continue to bear the expenses of the education. Similarly, in the case of Mridangra J. Hira Lal Suchak v. Neena M Suchak, the honorable Supreme Court decided that father would be given the custody of the child while the mother gets visitation rights, transforming the stand or gender biased nature of custody of the child.
Capacity of minor to act:
The act through section 8 addresses the capacity of a minor to act on their behalf in certain mentioned situations, recognizing their evolving decision-making capacity and maturity.
JUVENILE JUSTICE ACT
On the other hand, the Juvenile Justice Act. It came into being in 1986, a distinct justice system for juveniles in conflict of law. The legislation recognized juvenile offenders’ vulnerability and reformative needs through this act. A drastic shift occurred in enacting the Juvenile Justice Care and Protection of Children Act in 2000, which further focused on rehabilitation and principles of protection. The Juvenile Justice Act was amended further in 2006 and then in 2015. That focus is to address the multifaced needs of the children in judicial systems across different religions and cultural diversities.
Applicability:
The Juvenile Justice Act has universal applicability over all children, emphasizing recognizing children’s rights and the need to establish a procedure, especially for those in conflict with the law as compared to the Hindu minority and guardianship applicability of the Juvenile Justice Act is much broader which reflects inclusivity and the approach is inclusive of a broader spectrum of children of communities from diverse religious backgrounds.
Child rights:
The Juvenile Justice Act is primarily concerned with topics of care, protection, and rehabilitation of children, in contrast to the Hindu Minority and Guardianship Act, which focuses on family, the concept of custody, guardianship, and inheritance. The act encompasses a broad spectrum of issues and disputes, including juvenile justice as a primary concept of adoption and the need to rehabilitate children in need of care and protection.
The case, Gopalan Nair v. the State of Kerala, in 1974, catalyzed the juvenile justice system in India. In its judgment, the honorable Supreme Court of India saw a dire need for a separate legal framework for dealing with juvenile offenders. Enter primarily focus on rehabilitation rather than punishment. It subsequently gave foundations for the later parts of development in the field of juvenile Justice in India.
Delinquent and offender of conflict with the law:
Compared to the Hindu minority and Guardianship Act, the Juvenile Justice Act explicitly addresses the juvenile delinquent’s primary need for the established separate framework or judicial system to address and deal with juvenile offenders to recognize their distinct vulnerabilities.
The landmark judgement of Jitender Singh v. the State of UP in 2013 dealt with the crucial issue of determining the age of juvenile offenders. The honorable Supreme Court stressed the vital importance of an accurate and a fixed age to determine the method to ensure that the juvenile that heated in accordance with the Juvenile Justice Act.
Section 82 of IPC 1960 also deals with the concept that offences committed by a child under seven are not punishable by law. It is based on the maxim of doli incapax, which means the incapability of a minor under seven to commit a crime. This was established on the need for more mens rea to grasp and understand its act’s consequences in Marsh v. Loader 1863. The defendant cannot be a kid while taking a stick from an area. Later on, it was determined that the child was under seven and could not understand the consequences of his actions. The judgment stated that he was not guilty because of the lack of mens rea in his action.
Sheela Barse & Anr v. Union of India and others, 1986 recognized the concept of juvenile delinquency. A petition was filed under the honorable Supreme Court of India regarding the release of children who are in jail below the age of 16, and they also prayed for the production of complete comprehensive information of all the inmates who are juveniles. The Supreme Court acted on this petition and directed the State legal aid and advisory board to send two lawyers to jail within the state once a week to provide free legal assistance to all the children below the age group of 16 who are detained in prisons for various actions in conflict with the law.
Rehabilitation and social integration:
The primary reason for establishing the Juvenile Justice Act was to emphasize re-establishment and re-habitation into the social setting rather than punishment. The vital feature of this act is the social integration of juvenile offenders. It marks a departure from punitive measures and emphasizes the need for a supportive and reformative approach.
This act distinguished between the child needing care and protection and the child in conflict with the law. The child in need of care and protection was produced before the child welfare committee and later sent to the children’s home for rehabilitation. In contrast, the child in conflict with the law was produced before the juvenile justice board and later sent to observation homes. At this stage, juvenile delinquents with minor crimes can be released on probation, whereas in the case of heinous crimes, they can be produced for rehabilitation and sent to special homes. The latest rehabilitation stage takes place in aftercare organizations in both scenarios.
The case of MC Mehta v. the state of Tamil Nadu in 1997 reinforces the importance of rehabilitation and integration of juvenile offenders in the social setting. The honorable Supreme Court emphasized that the primary focus and aim must be on reformation and integration rather than punishment.
Another landmark judgement was Sampurna Behru v. the Union of India in 2018. The honorable Supreme Court emphasized the integration of juvenile delinquents into society. The directives include
- timely justice delivery,
- special training for juvenile Justice personnel,
- creating a child-friendly environment in the court and
- ensuring that nutrition and education facilities are provided.
The court’s approach was holistic and aimed to address the immediate concerns and establish a comprehensive legal framework, fostering the effective human reintegration of juveniles into the community by acknowledging their rights and welfare beyond the confines of the Juvenile Justice system.
The amendment of the Juvenile Justice Act 2000 and the provision of non-institutional services as an alternative to institutionalization are significant milestones in adopting non-institutional services. A secular adoption law was introduced by the Juvenile Justice Act in 2008 and focused on the adoption of orphans and abandoned or surrendered children under section 41 of the Juvenile Justice Act. The act empowered a board to give a child for adoption with the condition that it must ensure the child’s consent. The adoptive parents must be of the same sex as the adopted children, irrespective of the number of existing biological children.
The case, Shabnam Hashmi v. Union of India in 2008, focused on adopting children under the Juvenile Justice Act of 2000. A petition was filed by Shabnam Hashmi, a Muslim woman, to adopt a girl by administering a request to the court to recognize her right to adopt, which is engraved As a fundamental right in part three of the Constitution. As a Muslim, adoption is not permitted under Muslim law. It was held that adoption can take place under the Juvenile Justice Act, which does not discriminate based on caste or religion.
COMPARATIVE ANALYSIS
Scope: The Hindu Minority and Guardianship Act has a narrower scope than the Juvenile Justice Act, which encompasses children from diverse communities.
Purpose: The primary focus of the Hindu minority and Guardianship Act is on familial issues and disputes such as guardianship, adoption, visitation rights, and custody. In contrast, the Juvenile Justice Act addresses a broader spectrum of issues, including delinquency and their reintegration, child protection, and safeguarding interests.
Legal developments:
Both acts have observed continuous legal developments. After the judgment of the landmark case of Githa Hariharan v. Reserve Bank of India, natural guardianship provisions and a biased nature were established, which was undoubtedly more generally neutral. If we compare it to the Juvenile Justice Act, the case study of Gopalan Nair v. the State of Kerala established a groundbreaking framework dealing primarily with juvenile offenders or delinquents. A primary form of amendment took place in 2015 about the Juvenile Justice Care and Protection of Children Act. The main reason behind amending these previous acts was the heinous crimes committed by children of the age group of 16 to 18 years. Post the gruesome Case of Nirbhaya gang rape in 2012, the need to establish a more comprehensive framework to deal with this age group was introduced. Section 15 of the Juvenile Justice Act of 2015 enabled individuals under the age group of 16 to 18 in cases of heinous crime to be tried like adults.
CONCLUSION
To sum up, both the legal frameworks and legislature are vital for working and implementing welfare for a large segment of society. The younger generation, or the youth, is a significant segment of any community or country and is one of the most essential resources. Hence, it becomes vital for the country to emphasize the growth and development of its youth. The Hindu minority and Guardianship Act, as well as the Juvenile Justice Act, serve very distinct purposes yet, in some manner, protect the welfare of minors in India. Both legal frameworks have transformed and shaped their purpose and features to incorporate the social setting and deviances of the current era. Significant changes in the clauses of interpretation have been noticed. Both acts actively display the intent of the government and judicial evolution to represent India’s dedication towards a comprehensive and analyzed legal framework to prioritize the well-being and rights of the youth in the country.
REFERENCES
Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228
Smt. Rama Alias Ram Kala vs Shri Anil Kumar Joshi, (1999) 124 PLR 711
Gopalan Nair v. State of Kerala, (1973) 1 SCC 469
Sheela Barse v. Union of India, (1986) 3 SCC 596
M.C. Mehta (Child Labour matter) v. State of T.N., (1996) 6 SCC 756
Shabnam Hashmi v. Union of India, (2014) 4 SCC 1
This article was originally written by Ragma published on Legal Service India E-Journal. The link for the same is herein. https://www.legalserviceindia.com/legal/article-4903-infancy-and-criminal-liability-a-comparative-study.html
This article was originally written by Chandan Kumar Pradhan published on iPleaders. The link for the same is herein. https://blog.ipleaders.in/overview-of-the-hindu-minority-and-guardianship-act-1956/
This article was originally written by Parul Chaturvedi published on iPleaders. The link for the same is herein. https://blog.ipleaders.in/introduction-overview-juvenile-justice-care-protection-act-2015/
This article was originally written by S.K. Bhattacharyya published on Journal of the Indian Law Institute Vol.23, No.4. The link for the same is herein. https://www.jstor.org/stable/43950781
This article was originally written by Yogesh Sheni published on Economic and Political Weekly Vol.39, No.41. The link for the same is herein. https://www.jstor.org/stable/4415641