Highlights of the Bill
1) The Juvenile Justice (Care and Protection of Children) Act, 2015 states that adoption of a child is final on the issuance of an adoption order by the civil court. The Bill provides that instead of the court, the district magistrate (including additional district magistrate) will issue such adoption orders.
2) Under the 2015 Act offences committed by juveniles are categorised as heinous offences, serious offences, and petty offences. Serious offences include offences with three to seven years of imprisonment. The Bill adds that serious offences will also include offences for which maximum punishment is imprisonment of more than seven years, and minimum punishment is not prescribed or is less than seven years.
Key Issues and Analysis
- Adoption of a child is a legal process which creates a permanent legal relationship between the child and adoptive parents. Therefore, it may be questioned whether it is appropriate to vest the power to issue adoption orders with the district magistrate instead of a civil court.
- As of July 2018, there were 629 adoption cases pending in various courts. In order to expedite adoption proceedings, the Bill transfers the power to issue adoption orders to the district magistrate. An issue to consider is whether the level of pendency justifies shifting the load to the district magistrate.
- The Standing Committee on Human Resource Development (2015) had noted that various statutory bodies under the Act were not present in many states.
- In 2017, the Madhya Pradesh High Court noted that children declared legally free for adoption were not being given timely referrals by Central Adoption Resource Authority (CARA). It recommended that the Steering Committee of CARA may monitor and investigate the conduct of CARA.
About the Act
A juvenile is a person less than 18 years of age. The Juvenile Justice (Care and Protection of Children) Act, 2015 addresses children in conflict with law and children in need of care and protection.
The Act fulfils India’s commitment as a signatory to the United Nations Convention on the rights of the child, the Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption (1993), and other related international instruments.
As a signatory, India is required to undertake all appropriate measures to ensure the rights of children with regard to juvenile justice, care and protection, and adoption.
The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 was introduced in Lok Sabha on March 15, 2021 and is currently pending in Rajya Sabha. The Bill amends the Juvenile Justice (Care and Protection of Children) Act, 2015.
The Statement of Objects and Reasons of the 2021 Bill states that adoption cases have witnessed significant delay in courts. Further, it states that adoption cases are non-adversarial in nature and can be dealt through a well laid out process.
*A similar Bill empowering district magistrates to issue adoption orders was introduced in Lok Sabha in August 2018. However, the Bill lapsed with the dissolution of the 16th Lok Sabha.
Under the 2015 Act offences committed by juveniles are categorised as: heinous offences (those with minimum punishment of seven years of imprisonment under IPC or any other law), (ii) serious offences (three to seven years of imprisonment), and (iii) petty offences (below three years of imprisonment).
In 2020, the Supreme Court observed that the Act does not deal with offences where the maximum sentence is more than seven years of imprisonment, but there is no minimum sentence, or minimum sentence is of less than seven years. The Court ordered that these offences should be categorised as serious offences. The Bill also seeks to give effect to this order.
Key Features
- Adoption: Under the Act, once prospective adoptive parents accept a child, an adoption agency files an application in a civil court to obtain the adoption order. The adoption order issued by the court establishes that the child belongs to the adoptive parents. The Bill provides that instead of the court, the district magistrate (including additional district magistrate) will perform these duties and issue all such orders.
- Appeals: The Bill provides that any person aggrieved by an adoption order passed by the district magistrate may file an appeal before the Divisional Commissioner, within 30 days of such order. Such appeals should be disposed within four weeks from the date of filing of the appeal.
- The Act provides that there will be no appeal for any order made by a Child Welfare Committee concluding that a person is not a child in need of care and protection. The Bill removes this provision.
- Serious offences: The Act provides that the Juvenile Justice Board will inquire about a child who is accused of a serious offence. Serious offences are those for which the punishment is imprisonment between three to seven years. The Bill adds that serious offences will also include offences for which maximum punishment is imprisonment of more than seven years, and minimum punishment is not prescribed or is less than seven years.
- Designated Court: The Act provides that offences against children that are punishable with imprisonment of more than seven years, will be tried in the Children’s Court (equivalent to a Sessions Court). Other offences (punishable with imprisonment of less than seven years) will be tried by a Judicial Magistrate. The Bill amends this to provide that all offences under the Act will be tried in the Children’s Court.
- Offences against children: The Act provides that an offence under the Act, which is punishable with imprisonment between three to seven years will be cognizable (where arrest is allowed without warrant) and non-bailable. The Bill provides that such offences will be non-cognizable and non-bailable.
- Child Welfare Committees (CWCs): The Act provides that states must constitute one or more CWCs for each district for dealing with children in need of care and protection. It provides certain criteria for the appointment of members to CWC. For instance, a member should be: (i) involved in health, education, or welfare of children for at least seven years, or (ii) a practising professional with a degree in child psychology, psychiatry, law, or social work. The Bill adds certain criteria for a person to be ineligible to be a member of the CWC. These include: (i) having any record of violation of human rights or child rights, or (ii) being a part of the management of a child care institution in a district.
Key Issues and Analysis
The Juvenile Justice (Care and Protection of Children) Act, 2015 states that adoption of a child is final once a civil court issues an adoption order. The Bill amends this to provide for the district magistrate (including the additional district magistrate) to issue such adoption orders instead. Any person aggrieved by such an adoption order may file an appeal with the Divisional Commissioner. This may raise certain issues discussed below.
Need for transferring power to issue adoption orders from courts to the district magistrate
The Statement of Objects and Reasons (SOR) of the Bill states that there is significant delay in finalising adoption cases in courts. To expedite adoption proceedings, the Bill empowers the district magistrate to issue such orders.
Between April 2015 and March 2020, about 19,000 children have been adopted, an average of 320 adoptions per month.
As on July 2018, there were 629 adoption cases pending in various courts. The question is whether this constitutes a significant delay, and consequently requires shifting the power to issue adoption orders from the court to the district magistrate. Empowering district magistrates to issue adoption orders may also lead to delays as they are already burdened with several responsibilities such as maintenance of law and order, land and revenue administration, disaster management, general administration, and implementing government schemes and programmes in their district. A district magistrate chairs about 75 committees, spread across 23 departments.
Lack of judicial scrutiny in adoption orders
The question is whether it is appropriate for an administrative authority to issue adoption orders instead of a judicial body.
The SOR of the Bill states that adoption cases are non-adversarial in nature and can be dealt as per the process laid out. Adoption of a child is a legal process which creates a permanent legal relationship between the child and adoptive parents.
When deciding on adoption, courts review documents, ensure necessary procedures have been complied with, and conduct an inquiry of the child and adoptive parents. This helps ensure that due consideration is given to the wishes of the child, and the adoption is for the welfare of the child. It may be argued that determining whether the adoption is in the best interests of the child requires judicial training and competence.
Further, the Bill provides that any person aggrieved by an adoption order, may file an appeal before the divisional commissioner. Thus, it does not provide for judicial oversight at the appeal stage as well.
District magistrates and divisional commissioners are trained to be administrators and perform functions of the government. They may not have the competence to issue adoption orders or hear appeals related to them. Vesting of such core judicial functions with them may also raise concerns of separation of powers between the executive and the judiciary.
Note that, since the Juvenile Justice (Care and Protection of Children) Act, 2000 (replaced by the 2015 Act) came into force, the power to issue adoption orders has rested with the courts. Similarly, in countries such as United Kingdom, Germany, France, and several states in the United States of America, adoption orders are issued only by the court.
Moreover, The 2015 Act provides for setting up one or more Juvenile Justice Boards (JJBs) and Child Welfare Committees (CWCs) in every district. The Standing Committee on Human Resource Development (2015) had noted that statutory bodies under the Juvenile Justice Act, 2000 including JJBs and CWCs were not present in many states. Several bodies existed only on paper, and were not functioning. Further, populous districts which were likely to produce larger caseloads had inadequate CWCs.
The National Legal Services Authority (2019) noted that only 17 of 35 states/Union Territories (UTs) had all basic structures and bodies required under the Act in place. For e xample, states such as Assam, Bihar, and Haryana, did not have CWCs in all districts.
The Standing Committee on Human Resource Development (2015) also noted that CWCs and JJBs lack authority to manage their financial and human resources and are dependent on the state or district administration. Due to lack of infrastructure or specific funds, action taken by them was limited and delayed. It recommended greater financial allocation, training and cadre-building for various bodies.
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Petrol in India is cheaper than in countries like Hong Kong, Germany and the UK but costlier than in China, Brazil, Japan, the US, Russia, Pakistan and Sri Lanka, a Bank of Baroda Economics Research report showed.
Rising fuel prices in India have led to considerable debate on which government, state or central, should be lowering their taxes to keep prices under control.
The rise in fuel prices is mainly due to the global price of crude oil (raw material for making petrol and diesel) going up. Further, a stronger dollar has added to the cost of crude oil.
Amongst comparable countries (per capita wise), prices in India are higher than those in Vietnam, Kenya, Ukraine, Bangladesh, Nepal, Pakistan, Sri Lanka, and Venezuela. Countries that are major oil producers have much lower prices.
In the report, the Philippines has a comparable petrol price but has a per capita income higher than India by over 50 per cent.
Countries which have a lower per capita income like Kenya, Bangladesh, Nepal, Pakistan, and Venezuela have much lower prices of petrol and hence are impacted less than India.
“Therefore there is still a strong case for the government to consider lowering the taxes on fuel to protect the interest of the people,” the report argued.
India is the world’s third-biggest oil consuming and importing nation. It imports 85 per cent of its oil needs and so prices retail fuel at import parity rates.
With the global surge in energy prices, the cost of producing petrol, diesel and other petroleum products also went up for oil companies in India.
They raised petrol and diesel prices by Rs 10 a litre in just over a fortnight beginning March 22 but hit a pause button soon after as the move faced criticism and the opposition parties asked the government to cut taxes instead.
India imports most of its oil from a group of countries called the ‘OPEC +’ (i.e, Iran, Iraq, Saudi Arabia, Venezuela, Kuwait, United Arab Emirates, Russia, etc), which produces 40% of the world’s crude oil.
As they have the power to dictate fuel supply and prices, their decision of limiting the global supply reduces supply in India, thus raising prices
The government charges about 167% tax (excise) on petrol and 129% on diesel as compared to US (20%), UK (62%), Italy and Germany (65%).
The abominable excise duty is 2/3rd of the cost, and the base price, dealer commission and freight form the rest.
Here is an approximate break-up (in Rs):
a)Base Price | 39 |
b)Freight | 0.34 |
c) Price Charged to Dealers = (a+b) | 39.34 |
d) Excise Duty | 40.17 |
e) Dealer Commission | 4.68 |
f) VAT | 25.35 |
g) Retail Selling Price | 109.54 |
Looked closely, much of the cost of petrol and diesel is due to higher tax rate by govt, specifically excise duty.
So the question is why government is not reducing the prices ?
India, being a developing country, it does require gigantic amount of funding for its infrastructure projects as well as welfare schemes.
However, we as a society is yet to be tax-compliant. Many people evade the direct tax and that’s the reason why govt’s hands are tied. Govt. needs the money to fund various programs and at the same time it is not generating enough revenue from direct taxes.
That’s the reason why, govt is bumping up its revenue through higher indirect taxes such as GST or excise duty as in the case of petrol and diesel.
Direct taxes are progressive as it taxes according to an individuals’ income however indirect tax such as excise duty or GST are regressive in the sense that the poorest of the poor and richest of the rich have to pay the same amount.
Does not matter, if you are an auto-driver or owner of a Mercedes, end of the day both pay the same price for petrol/diesel-that’s why it is regressive in nature.
But unlike direct tax where tax evasion is rampant, indirect tax can not be evaded due to their very nature and as long as huge no of Indians keep evading direct taxes, indirect tax such as excise duty will be difficult for the govt to reduce, because it may reduce the revenue and hamper may programs of the govt.
Globally, around 80% of wastewater flows back into the ecosystem without being treated or reused, according to the United Nations.
This can pose a significant environmental and health threat.
In the absence of cost-effective, sustainable, disruptive water management solutions, about 70% of sewage is discharged untreated into India’s water bodies.
A staggering 21% of diseases are caused by contaminated water in India, according to the World Bank, and one in five children die before their fifth birthday because of poor sanitation and hygiene conditions, according to Startup India.
As we confront these public health challenges emerging out of environmental concerns, expanding the scope of public health/environmental engineering science becomes pivotal.
For India to achieve its sustainable development goals of clean water and sanitation and to address the growing demands for water consumption and preservation of both surface water bodies and groundwater resources, it is essential to find and implement innovative ways of treating wastewater.
It is in this context why the specialised cadre of public health engineers, also known as sanitation engineers or environmental engineers, is best suited to provide the growing urban and rural water supply and to manage solid waste and wastewater.
Traditionally, engineering and public health have been understood as different fields.
Currently in India, civil engineering incorporates a course or two on environmental engineering for students to learn about wastewater management as a part of their pre-service and in-service training.
Most often, civil engineers do not have adequate skills to address public health problems. And public health professionals do not have adequate engineering skills.
India aims to supply 55 litres of water per person per day by 2024 under its Jal Jeevan Mission to install functional household tap connections.
The goal of reaching every rural household with functional tap water can be achieved in a sustainable and resilient manner only if the cadre of public health engineers is expanded and strengthened.
In India, public health engineering is executed by the Public Works Department or by health officials.
This differs from international trends. To manage a wastewater treatment plant in Europe, for example, a candidate must specialise in wastewater engineering.
Furthermore, public health engineering should be developed as an interdisciplinary field. Engineers can significantly contribute to public health in defining what is possible, identifying limitations, and shaping workable solutions with a problem-solving approach.
Similarly, public health professionals can contribute to engineering through well-researched understanding of health issues, measured risks and how course correction can be initiated.
Once both meet, a public health engineer can identify a health risk, work on developing concrete solutions such as new health and safety practices or specialised equipment, in order to correct the safety concern..
There is no doubt that the majority of diseases are water-related, transmitted through consumption of contaminated water, vectors breeding in stagnated water, or lack of adequate quantity of good quality water for proper personal hygiene.
Diseases cannot be contained unless we provide good quality and adequate quantity of water. Most of the world’s diseases can be prevented by considering this.
Training our young minds towards creating sustainable water management systems would be the first step.
Currently, institutions like the Indian Institute of Technology, Madras (IIT-M) are considering initiating public health engineering as a separate discipline.
To leverage this opportunity even further, India needs to scale up in the same direction.
Consider this hypothetical situation: Rajalakshmi, from a remote Karnataka village spots a business opportunity.
She knows that flowers, discarded in the thousands by temples can be handcrafted into incense sticks.
She wants to find a market for the product and hopefully, employ some people to help her. Soon enough though, she discovers that starting a business is a herculean task for a person like her.
There is a laborious process of rules and regulations to go through, bribes to pay on the way and no actual means to transport her product to its market.
After making her first batch of agarbathis and taking it to Bengaluru by bus, she decides the venture is not easy and gives up.
On the flipside of this is a young entrepreneur in Bengaluru. Let’s call him Deepak. He wants to start an internet-based business selling sustainably made agarbathis.
He has no trouble getting investors and to mobilise supply chains. His paperwork is over in a matter of days and his business is set up quickly and ready to grow.
Never mind that the business is built on aggregation of small sellers who will not see half the profit .
Is this scenario really all that hypothetical or emblematic of how we think about entrepreneurship in India?
Between our national obsession with unicorns on one side and glorifying the person running a pakora stall for survival as an example of viable entrepreneurship on the other, is the middle ground in entrepreneurship—a space that should have seen millions of thriving small and medium businesses, but remains so sparsely occupied that you could almost miss it.
If we are to achieve meaningful economic growth in our country, we need to incorporate, in our national conversation on entrepreneurship, ways of addressing the missing middle.
Spread out across India’s small towns and cities, this is a class of entrepreneurs that have been hit by a triple wave over the last five years, buffeted first by the inadvertent fallout of demonetization, being unprepared for GST, and then by the endless pain of the covid-19 pandemic.
As we finally appear to be reaching some level of normality, now is the opportune time to identify the kind of industries that make up this layer, the opportunities they should be afforded, and the best ways to scale up their functioning in the shortest time frame.
But, why pay so much attention to these industries when we should be celebrating, as we do, our booming startup space?
It is indeed true that India has the third largest number of unicorns in the world now, adding 42 in 2021 alone. Braving all the disruptions of the pandemic, it was a year in which Indian startups raised $24.1 billion in equity investments, according to a NASSCOM-Zinnov report last year.
However, this is a story of lopsided growth.
The cities of Bengaluru, Delhi/NCR, and Mumbai together claim three-fourths of these startup deals while emerging hubs like Ahmedabad, Coimbatore, and Jaipur account for the rest.
This leap in the startup space has created 6.6 lakh direct jobs and a few million indirect jobs. Is that good enough for a country that sends 12 million fresh graduates to its workforce every year?
It doesn’t even make a dent on arguably our biggest unemployment in recent history—in April 2020 when the country shutdown to battle covid-19.
Technology-intensive start-ups are constrained in their ability to create jobs—and hybrid work models and artificial intelligence (AI) have further accelerated unemployment.
What we need to focus on, therefore, is the labour-intensive micro, small and medium enterprise (MSME). Here, we begin to get to a definitional notion of what we called the mundane middle and the problems it currently faces.
India has an estimated 63 million enterprises. But, out of 100 companies, 95 are micro enterprises—employing less than five people, four are small to medium and barely one is large.
The questions to ask are: why are Indian MSMEs failing to grow from micro to small and medium and then be spurred on to make the leap into large companies?
At the Global Alliance for Mass Entrepreneurship (GAME), we have advocated for a National Mission for Mass Entrepreneurship, the need for which is more pronounced now than ever before.
Whenever India has worked to achieve a significant economic milestone in a limited span of time, it has worked best in mission mode. Think of the Green Revolution or Operation Flood.
From across various states, there are enough examples of approaches that work to catalyse mass entrepreneurship.
The introduction of entrepreneurship mindset curriculum (EMC) in schools through alliance mode of working by a number of agencies has shown significant improvement in academic and life outcomes.
Through creative teaching methods, students are encouraged to inculcate 21st century skills like creativity, problem solving, critical thinking and leadership which are not only foundational for entrepreneurship but essential to thrive in our complex world.
Udhyam Learning Foundation has been involved with the Government of Delhi since 2018 to help young people across over 1,000 schools to develop an entrepreneurial mindset.
One pilot programme introduced the concept of ‘seed money’ and saw 41 students turn their ideas into profit-making ventures. Other programmes teach qualities like grit and resourcefulness.
If you think these are isolated examples, consider some larger data trends.
The Observer Research Foundation and The World Economic Forum released the Young India and Work: A Survey of Youth Aspirations in 2018.
When asked which type of work arrangement they prefer, 49% of the youth surveyed said they prefer a job in the public sector.
However, 38% selected self-employment as an entrepreneur as their ideal type of job. The spirit of entrepreneurship is latent and waiting to be unleashed.
The same can be said for building networks of successful women entrepreneurs—so crucial when the participation of women in the Indian economy has declined to an abysmal 20%.
The majority of India’s 63 million firms are informal —fewer than 20% are registered for GST.
Research shows that companies that start out as formal enterprises become two-three times more productive than a similar informal business.
So why do firms prefer to be informal? In most cases, it’s because of the sheer cost and difficulty of complying with the different regulations.
We have academia and non-profits working as ecosystem enablers providing insights and evidence-based models for growth. We have large private corporations and philanthropic and funding agencies ready to invest.
It should be in the scope of a National Mass Entrepreneurship Mission to bring all of them together to work in mission mode so that the gap between thought leadership and action can finally be bridged.