Diversion for Children in Conflict with Law: A Glimpse Into An Innovative Diversionary Method of Indian Juvenile Justice Law

The Indian way of doing Diversion for Children in Conflict with Law can be a subject of curiosity for observers of Juvenile Justice Practices worldwide because it is way more complex, multi-tiered and interesting than one would ordinarily want to imagine. India's Juvenile Justice Law has several ways in which it conceives and operationalizes the principle of Diversion.

One of the most fascinating ways, in my view, is the way it empowers India's Juvenile Justice Boards (JJBs) to liberate prima facie innocent Children alleged to be in conflict with law from the clutches of Juvenile Justice System itself in a rather unconventional and in an un-criminal law way. This I will explain in a bit.

Juvenile Justice Boards are district level adjudicatory & justice delivery Units which are vested with the powers of a Judicial Magistrate of First Class or Metropolitan Magistrate in Metro City Jurisdictions. These JJBs have exclusive jurisdiction over all matters related to the children in conflict with law. All such children are mandatorily brought before these Juvenile Justice Boards.

Now imagine a situation when on the very first day of interaction with the Child, Juvenile Justice Board feels that the allegation against the minor is either unfounded or is of trivial or petty nature. Can JJB close the case and let the child go back home?

A Criminal Law expert will say "NO". But an expert of India's Juvenile Justice Law will say, " Of course! Why not?".

It is unheard and rather unbelievable also in criminal law that a Criminal Court closes a criminal case on the very first date of production of accused by holding that the allegation made by Police or complainant is unfounded or is of petty nature.

But this is where diversionary magic of India's Juvenile Justice Law happens. At least since last 17 years, in India's Juvenile Justice Law, there is a legal provision which actually empowers the JJBs in a way Criminal Law cannot even imagine empowering its Criminal Courts. Without police filing chargesheet, Criminal Courts cannot close a case. They can grant bail or refuse judicial custody of accused but they have to wait till police completes the investigation and files a chargesheet. Only after this happens that Criminal Courts have all the powers to close the case in various ways. But equipped with the mandate of enforcing Principle of Diversion, India's Juvenile Justice Law allows Juvenile Justice Boards a power which Indian Criminal Courts do not enjoy.

Just few weeks ago, a Juvenile Justice Board in Delhi has closed a case against a minor on the mixed grounds that apart from being highly improbable, the allegation constituted merely a petty offence. Principle of Diversion has been cited in the JJB's order as a basis for this decision.

Few years ago, when I was a Legal Aid Lawyer in one of the JJBs in Delhi, one of my own cases was disposed of on the very first date of production of child because based on the documents and records of police agency, the allegations made against the minor were found to be impossibility even prima facie, hence totally unfounded allegations. There have been thousands of such decisions from Juvenile Justice Boards across the country, as we stand in year 2024. The awareness and understanding that these orders and the legal provision allowing such orders are based on Principle of Diversion is rather recent, but the practice is almost 15 years old in India.

17 years ago, JJ Act, 2000 was in force and to give effect to its various provisions, the Central Government had framed the Juvenile Justice (Care and Protection of Children) Model Rules, 2007. These model rules supplied procedural juvenile justice law for entire country. It contained a Rule 13 (1) (a) which is subject matter of this discussion. It is reproduced below:

Rule 13. Post-production processes by the Board.― (1) On production of the juvenile before the Board, the report containing social background of the juvenile and circumstances of apprehension and offence alleged to have been committed provided by the officers, individuals, agencies producing the juvenile shall be reviewed by the Board, and the Board shall pass the following order in the first summary inquiry on the same day, namely:- (a) dispose off the case, if the evidence of his conflict with law appears to be unfounded or where the juvenile is involved in trivial law breaking;

For a very long time, in practice, rules like this were not much known nor they were often put to use and nor there existed an environment conducive of its usage. But when through trainings and advocacy, this rule started getting space in child rights and Juvenile Justice discussions and also made its way into some judicial orders passed by JJB, this rule started throwing several philosophical, implementation and interpretation related challenges, which I will elaborate in a separate Diversion Diary series.

This particular rule after a nine yearlong evolutionary journey is now Rule 10 (1) (i) of The Juvenile Justice (Care and Protection of Children) Model Rules, 2016 and its language is now as below:

Rule 10. Post-production processes by the Board. - (1) On production of the child before the Board, the report containing the social background of the child, circumstances of apprehending the child and offense alleged to have been committed by the child as provided by the officers, individuals, agencies producing the child shall be reviewed by the Board and the Board may pass such orders in relation to the child as it deems fit, including orders under sections 17 and 18 of the Act, namely: (i) disposing of the case, if on the consideration of the documents and record submitted at the time of his first appearance, his being in conflict with law appears to be unfounded or where the child is alleged to be involved in petty offenses;

The Journey of Rule 13 (1) (a) of JJ Model Rules 2007 to Rule 10 (1) (i) of JJ Model Rules 2016 is also a fascinating story of stakeholder engagement and evolution of one of the most robust and strong diversionary provision in India's Juvenile Justice law. I will tell this story of evolution in a subsequent article. But in the meantime, I invite readers of this post to locate differences between content of Rule 13 (1) (a) and Rule 10 (1) (i).