The Ministry of Women, Children, Gender and Sexual Minorities and Social Security has prepared a draft of the Children Act, 2075 Amendment Bill. The draft bill has been prepared to amend the provisions of the Act related to birth registration, juvenile justice system, juvenile correctional homes, sentencing and jurisdiction of the court.

The draft has replaced the phrase ‘if the child’s mother so desires’ in Section 4 (3) of the Act with the provision ‘if the child’s mother and, in the case of death or untraceability, other family members or guardians so desire’. Currently, Section 4 (3) of the Act states that ‘the mother of a child born of rape or incest punishable under the prevailing law, shall register the birth by mentioning only the mother’s name’. The draft also proposes that if the mother or guardian is unable to register the birth, the registration officer shall register the birth on the recommendation of the concerned local child rights committee.

It has been proposed to amend the term ‘son-daughter’ in Section 5(2) of the original Act to include the words ‘son-daughter, son-son and daughter-daughter’ to reflect gender equality. Currently, Section 5(2) of the Act states that ‘no one shall discriminate between children, sons or daughters, daughters or children born of a previous spouse or wife or a previous spouse in the upbringing, education and health care of children’.

In the provision in Section 11(3), the phrase ‘from the juvenile court, police office, guardian, guardian and other bodies’ has been removed in the draft. The section, which has the right to privacy, currently states that ‘the name, surname, age, gender, family background and other details of children accused of or victims of criminal acts by the juvenile court, police office, guardian, guardian or other bodies shall not be used except in accordance with the law’.

The provision relating to pre-trial detention in Section 24 of the Act is also being amended. Section 24 currently has 5 subsections, but one subsection has been proposed to be added. Subsection 5 states that ‘if a child in someone’s care does not comply with the conditions prescribed by the Child Rights Act, he/she may be kept in a juvenile correctional home and the case may be tried.’ Subsection 6 of the draft states that ‘notwithstanding anything contained in Section 5, if a child accused of a criminal act is found after attaining the age of 18 years or if he/she appears before the juvenile court, the juvenile court shall not be prevented from detaining such a person for the trial of the case in accordance with the prevailing law in order to demand bail or bail.’ The provision related to the right of investigation and prosecution in Section 27 is also being amended. The draft stipulates that the investigating officer can decide on an offense punishable by a fine of up to 10,000 rupees or imprisonment for up to one year, and the government prosecutor has the authority to decide on an offense punishable by a fine of up to 30,000 rupees or imprisonment for up to three years. Under the current provision of the Act, the investigation officer is responsible for the fine of up to five thousand rupees or a fine of up to two thousand rupees or imprisonment for one month, the government prosecutor is responsible for the fine of up to ten thousand rupees or a fine of up to five thousand rupees or imprisonment for three years, and the juvenile court is responsible for the fine of up to ten thousand rupees or imprisonment for any amount of fine or imprisonment. 

It has been proposed to change the provision related to the age of children in the provision of punishment in Section 36, which states that criminal liability for juvenile offenses will be fixed at 12 years instead of 10 years. Currently, there is a provision that if a child is less than 10 years old when committing a criminal act, no case will be filed against him and he will not be punished in any way. 

It has been proposed that the imprisonment for children should not exceed half of the punishment for adults, but not more than five years, and if it is two-thirds of the punishment, it should not exceed seven years. Currently, there is a legal provision that if a child aged 14 or above and under 16 years commits any criminal act, he will be punished with half of the punishment that would be imposed on a person who has reached the age of majority according to law. The Act also states that if a child aged 16 or above and 18 or below commits any criminal act, he or she will be sentenced to two-thirds of the punishment that would be imposed on a person of legal age.

The draft bill has added a provision to reduce the period of correction of children in a juvenile correctional home, grant exemption or put them on parole under Section 38. A provision has been proposed to recommend to the court in cases of good conduct, continuity in education and skill development, or serious illness. The current Act has a provision that if there is satisfactory improvement in the behavior of children under the protection or supervision of an institution or person in a juvenile correctional home as decided by the juvenile court, the child welfare officer can recommend to the juvenile court to reduce the period of correction of such children or grant exemption.

Section 42 also proposes that if a person who has completed 18 years of age commits a criminal offense inside a juvenile correctional home, he or she can be detained in police custody with the permission of the court for investigation. The current Act states that no child in dispute can be nailed or handcuffed or kept in solitary confinement or detention or imprisonment.

Sub-section 3 (a) has been added to Section 43, according to which a provision has been proposed to allow security personnel to enter and use necessary force if a security threat arises inside a juvenile correctional home. However, the current Act states that the juvenile court can monitor and inspect juvenile correctional homes established within its territorial jurisdiction, give necessary instructions to such juvenile correctional homes, and require such juvenile correctional homes to submit a report on the status of the correction of children in the juvenile correctional home.

Section 56 of the Act states that if an institution is given the responsibility of guardian, the head of such institution is considered to be ultimately responsible for the care and upbringing of the children. However, the revised draft has removed the term ultimately responsible and made it fully responsible.

Section 65 (1) proposes to use the word juvenile court instead of high court. Currently, the Act states that if the rights of children are violated or the obligations of children are not fulfilled, the concerned child or stakeholders can directly apply to the concerned high court for the implementation of rights or fulfillment of obligations. The provision related to the basis for determining the age of children in Section 83 is also being prepared to be amended. In it, the date of birth mentioned in the birth certificate of children issued by the hospital has been removed.