A recent right-to-information-based study is out of the many that highlight the larger concerns with the Juvenile Justice (Care and Protection of Children) Act, 2015 which has failed to stop juveniles from being wrongly incarcerated as adults.
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“THE State, we say in law, is parens patriae. Because the State is the parent, and the State is stealing the childhood, the least it could do is to improve the system. We are all participants in the crime— the police, the judiciary and the jail.”
Former Supreme Court judge Justice S. Ravindra Bhat underlined the grim reality of the juvenile justice system in India in these words at the release of a new report on children in prisons.
The report, titled Incarceration of Children in Prisons in India, has found at least 9,681 children were wrongly incarcerated in adult prisons between January 1, 2016, to December 31, 2021. Justice Bhat suggested that there must be monetary accountability in such cases.
The report was released by iProbono at an event in Delhi on May 11. iProbono is a legal justice non-governmental organisation that focuses on child rights. The report examines the implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).
The study is based on 474 replies obtained through the Right to Information Act, 2005 (RTI) filed from 28 states and two Union territories in prison headquarters except for Uttar Pradesh and Chattisgarh, where RTI applications were filed in each district and Central jails as directed by prison headquarters.
At least 9,681 children were wrongly incarcerated in adult prisons between January 1, 2016, to December 31, 2021.
For Delhi, RTIs were filed at the Delhi State Legal Service Authority (DSLSA), National Commission for Protection of Child Rights (NCPCR) and Prison Headquarters, Delhi.
The launch of the report was followed by a panel discussion involving various stakeholders Sunil Kumar Gupta, former law officer at the Tihar jail in Delhi; Arul Varma, additional sessions judge; Arnod K. Kanth, former deputy superintendent of police; and Anand Kumar Asthana, child rights activist.
Legal framework under JJ Act
As per the JJ Act, a child alleged to have committed an offence or found guilty of an offence is to be placed in an appropriate juvenile home— such as an observation home, special home or a place of safety— not an adult prison.
This category is known as the ‘child in conflict with law’. It is defined under Section 2(13) of the JJ Act as a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence.
In Pratap Singh versus State of Jharkhand (2005), commenting on the object and purpose of the JJ Act, the Supreme Court said: “The said Act is not only a beneficent legislation, but also a remedial one. The Act aims to grant the care, protection and rehabilitation of a juvenile vis-a-vis adult criminals.
“Having regard to Rule 4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, it must also be borne in mind that the moral and psychological components of criminal responsibility were also one of the factors in defining a juvenile.”
The court added: “The first objective, therefore, is the promotion of the well-being of the juvenile and the second objective is to bring about the principle of proportionality whereby and whereunder the proportionality of the reaction to the circumstances of both the offender and the offence, including the victim, should be safeguarded.”
In Sheela Barse & Ors versus Union of India & Ors (1988), the Supreme Court observed: “It is an elementary requirement of any civilised society and it has been so provided in various statutes concerning children that children should not be confined to jail because incarceration in jail has a dehumanising effect, and it is harmful to the growth and development of children.”
Further, as per the JJ Act, the Juvenile Justice Board (JJB) plays an active role in preventing the incarceration of children in adult prisons by visiting prisons in their respective districts and identifying inmates who could be children.
As per Section 8(3)(m) (powers, functions, and responsibilities of the Board) of the JJ Act, the JJB has the statutory duty of conducting regular visits to adult, prisons to check if a child is being lodged there and to take immediate measures for the transfer of such a child to the appropriate child care institution.
Despite various checkpoints, why are children still sent to prisons?
As per JJ Act, there are multiple statutory checkpoints to prevent a child from going into an adult prison, beginning with the police who are under a duty to determine the age of a child in conflict with law.
As per the JJ Act, a child alleged to have committed an offence or found guilty of an offence is to be placed in an appropriate juvenile home— such as an observation home, special home or a place of safety— not an adult prison.
For instance, in Section 10 of the JJ Act, when a child alleged to be in conflict with the law is apprehended by the police, such child shall be placed under the charge of the special juvenile police unit or the designated unit of the welfare police officer. The child must be produced before the JJB without any loss of time but within a period to 24 hours.
Section 10 prohibits a child in conflict with the law to be placed in a police lockup or lodged in a jail.
Section 9 of the JJ Act states that when a child in conflict with law is brought before a magistrate, if the magistrate is of the opinion that person is a child he must, without any delay, record such opinion and forward the child immediately along with his records to the JJB.
If a child is brought before a court other than a board, and he claims to be a juvenile or the court is of the opinion that he is a juvenile on the date of the commission of an offence, the court is empowered to inquire to determine the child’s age as per Section 9(2).
The JJB is mandated to inquire about the child in conflict with law under Section 14 of the JJ Act.
Apart from the JJ Act, there is the National Legal Services Authority Standard Operating Procedures on Access to Legal Aid Services to Prisoners and Functioning of Prison Legal Aid Clinics, 2022 (SoP). As per this, the secretary and chairperson of the DSLA shall make monthly and once in three months visits to the prison.
As per the SoP, when a paralegal volunteer of DSLA meets an undertrial who appears to be a minor, it shall enquire about the age proof of the person. Suppose a person claims to be below 18 years of age.
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In that case, the paralegal volunteer must inform the prison superintendent and the DLSA secretary who shall immediately apply to a court to initiate proceedings to determine the age of the person and to immediately transfer the person to the observation home under Section 9(4) of the JJ Act.
The 2016 Model Prison Manual also has provisions on age determination. It states that during the medical examination of prisoners, if a prisoner looks younger than his age, the matter shall be referred back to the court concerned.
What are the consequences of children being sent to adult prisons?
In Court on its own Motion versus Dept. of Women and Child Development (2011), the court rightly pointed out that: “There can be no doubt that incarceration in jail would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society.”
As per the JJ Act, the Juvenile Justice Board (JJB) plays an active role in preventing the incarceration of children in adult prisons by visiting prisons in their respective districts and identifying inmates who could be children.
In this case, an RTI application revealed that from October, 2010 to August, 2011, 114 persons were shifted from Tihar jail to observation homes after they were found to be juveniles.
It further added: “It is the atmosphere of the jail which has a highly injurious effect on the mind of the child, estranging him from the society and breeding in him aversion bordering on hatred against a system which keeps him in jail.”
In this regard, the court had observed that state governments are obliged to set up necessary remand homes and observation homes where children accused of an offence can be lodged pending investigation and trial.
The court said: “On no account should the children be kept in jail and if a state government has not got sufficient accommodation in the remand homes or observation homes, the children should be released on bail instead of being subjected to incarceration in jail.”
The court in this case extensively dealt with the dehumanising effect of juveniles being sent to prisons. It noted that lodging juveniles along with hardened adult criminals can have drastic implications on the physical and mental well-being of juvenile offenders.
The court noted: “Trying minors in adult courts and sentencing them to adult prison is totally against the object and purpose of the JJ Act. Even for hardened career (sic) criminals, jail can be a dangerous place, but for youth it can be especially dangerous as they are often vulnerable to prison victimisation because of their size and age.”
The court particularly pointed out that juvenile offenders have psychological or social issues that need to be addressed as a part of the rehabilitative process. This is because adult prisons often lack the facilities to address the needs of juveniles.
It said: “In effect, what will happen is that if the youth is sent to an adult prison, then it is more likely for him to re-offend and escalate into violent behaviour than their peers who go to the juvenile system, where rehabilitative services are far more extensive. Juveniles confined within an adult prison may not have social services they need but with constant access to criminal minds, there are more chances of them becoming a recidivist.”
The court went on to observe that lodging juveniles in adult prisons amounts to deprivation of their personal liberty and, therefore, is a violation of Article 21 of the Indian Constitution.
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Based on the observations, the court laid down extensive guidelines including compensation and awareness training. Interestingly, the court asked the police authorities to introduce ‘age memo’ on the line of ‘arrest memo’ which was evolved by the Supreme Court in the case of D.K. Basu versus State of West Bengal (1996).
The court had also imposed compensation in cases in favour of victims who were wrongly kept in prisons. It stated that the authorities must be held personally accountable in such cases.
Findings of the report
The data indicates wrongful incarceration at least for two reasons. First, because the data received is wholly incomplete. The overall response rate of RTIs are exactly 50 percent. Madhya Pradesh and West Bengal (with the 3rd and 6th highest prison population, respectively) and one Union territory (Ladakh), did not respond.
Section 10 prohibits a child in conflict with the law to be placed in a police lockup or lodged in a jail.
Second, the number of children eventually transferred from adult prisons to juvenile homes is not an indication of how many children were eligible for transfer. It only indicates that those children were successfully identified as children in conflict with the law and therefore transferred following the procedure stipulated in the JJ Act.
The report finds that an average of just over 1,600 children every year are transferred out of prisons after being confirmed to be below 18 years old at the time of committing the offence.
State-wise, Uttar Pradesh has the highest number of 2,914 children being transferred, followed by Haryana (1621) and Bihar (1518).
In Delhi, 767 children were transferred. Delhi is unique in terms of the fact that the Delhi High Court in 2012 executed specific directions to all appropriate authorities for compliance to prevent the incarceration of children in conflict with the law and their subjection to the adult criminal justice system.
The directions were specifically passed to the Tihar and Rohini jails, the National Commission for Protection of Child Rights (NCPCR), Delhi State Legal Services Authority (DSLSA) and JJBs in Court on its own Motion.
For Tihar and Rohini jails, the court said: “Every prison shall display at a prominent place in all the wards, canteens and visitors’ areas in Hindi, English and Urdu languages notice boards informing inmates that persons who are below 18 years old at the time of the commission of offence are not supposed to be in jail and are entitled to be kept in children homes and be treated under the provisions of Juvenile Justice Act and be dealt with by the Juvenile Justice Board which makes efforts for reformation and rehabilitation.
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“Such notification shall also inform the procedure to be adopted and the persons to be contacted within the prison in case they want to claim juvenility. Prison Authorities, as well as Legal Aid Authorities, shall be under a duty to provide effective and speedy legal aid to every inmate who wants to claim juvenility from the Court.”
For the NCPCR, the court remarked: “NCPCR shall constitute a panel of at least ten (10) persons to make visits to various prisons in Delhi to find out if there are any persons lodged in such prisons who should have been the beneficiaries of the JJ Act. Members of such panel may visit various prisons as per the schedule drawn in consultation with/ intimation to the prison authorities.”
For the DSLA, the court stated: “Legal Aid Lawyers from Delhi State Legal Services Authority who are authorised to be the prison visiting lawyers shall visit prisons on their schedule as may be prescribed and shall intimate the details of inmates who may be juveniles to the Secretaries of the respective District Legal Services Authorities for further appropriate action”.
The 2016 Model Prison Manual also has provisions on age determination. It states that during the medical examination of prisoners, if a prisoner looks younger than his age, the matter shall be referred back to the court concerned.
As per these directions, the data sought from Central jail, Delhi suggests that 767 children were transferred. As per the NCPCR, 866 children were identified by them during their visits to the Central prison in Delhi and the DSLSA stated that 1,314 detained children were identified by them.
However, regarding the visits made by JJBs, DLSA lawyers and the NCPCR panel, all prisons replied that they do not maintain such records.
Interestingly, despite the statutory requirement of JJB visits, many states and Union territories such as Arunachal Pradesh, Delhi, Jammu & Kashmir, Manipur, Sikkim and Tripura have no JJB visits.
Conclusion
Recently, the National Legal Services Authority has launched a pan-India campaign Restoring the Youth to identify juveniles in prisons and render them legal assistance. However, it remains to be seen if the campaign is going to work out especially when the existing statutory jurisprudence has failed the juveniles.
