In this post, I’ll discuss another issue of grave concern in the area of juvenile justice – keeping children in adult jails. The Juvenile Justice Act (the ‘JJ Act’) is beneficial legislation that aims to provide care, protection and rehabilitation to children who commit offenses. But when a child is tried in adult courts and sentenced to adult prison even for a day without due process being followed, it is completely against the object and purpose of the JJ Act. Testimony to this is that recently, when asked by the Delhi High Court, the Delhi government placed a record indicating that an alarming number of 800 children were detained in adult jails at Tihar, Rohini and Mandoli over the last five years, and subsequently transferred to child care institutions. Thus, despite legislation prohibiting this, children are still being incarcerated in adult jails.
Studies on juvenile justice show that over time, changing perceptions towards juvenile justice has meant a departure from the criminal justice model of punishment to creating alternative justice models for children. This alternative system is based on the idea of rehabilitation rather than retribution for children. One of the reasons for creating a different system is to protect children from the harmful effects of the adult criminal justice system, before they reach adulthood. There are various reports on children tried as adults in the United States who were sent to adult prison being sexually or physically abused, committing suicide, reoffending, and committing more serious crimes.
In India too, the issue of keeping children in adult jail is very real and needs immediate attention. In the case I’ve talked about earlier in this piece from the Delhi High Court that deals with a criminal reference where the Delhi Government was asked to indicate the number of children transferred from adult jails to Observation Homes in the last five year, the Court passed an order on this issue. It stated that it is important to understand the systemic flaws that lead to delinquent children/juveniles ending up in adult jails. The Delhi High Court is also considering streamlining the process of assessing the age of an arrestee, at the very first stage when the individual is brought to a police station.
While it is good to see the proactive approach of the Court, what is surprising is that ten years ago in 2012, the same Delhi High Court passed a judgment addressing this travesty and illegality of children incarcerated in adult jails and issued detailed directions to authorities regarding this. The fact that the issue still persists is another example of ineffective implementation of juvenile justice laws.
Why is this important?
In 1983, Sheela Barse, a journalist, filed a writ petition in the Supreme Court seeking the release of 1400 children lodged in various jails in India despite the prohibition against use of police stations or jails under law. During the pendency of the petition, the Supreme Court recognised that there were varied cut-off ages defining the age of a child in different legislations in force, which violated the fundamental rights of children, and created the need for uniform national legislation. Based on this direction, Parliament enacted legislation for children applicable to the whole of India, the Juvenile Justice Act 1986, providing that using police stations or jails for keeping girls below the age of 18 years and boys below the age of 16 years was illegal.
There are reports demonstrating that placing children in adult jails and associating with adult criminals will make these children more violent and hostile. Children in prisons are forced to accept this violence as part of their daily life, which hampers their development. There are also studies which show that children have a higher possibility of reformation since their capacities are still being built and developed. We know that prisons and jails, being retributive in nature, can have adverse effects in identity formation for these children whereas juvenile homes offer rehabilitative measures in a comparatively safer environment than prisons. The juvenile justice system in India was always meant to be reformative and not retributive.
Accountability of those Protecting the Law
I strongly believe that the issue of children being kept in adult jails demonstrates a complete failure of the system. I am now sharing the Delhi High Court’s series of directions to various stakeholders passed in 2012:
Direction for Police: The Court directed that the “investigating officers while making arrests must ascertain the age of the accused, and shall reflect the age of the arrested person in the Arrest Memo. It would be the duty of the Police Officer to ascertain the said age by making an inquiry from the prisoner arrested if such prisoner is in possession of any age proof etc. In other cases, if a prisoner, from appearance, appears to be juvenile and the police officer has belief that the prisoner is a juvenile, he shall be produced before the JJB instead of criminal court”.
Surprisingly, what happens on the ground is that the arresting officers only ask for age proof when the accused claims to be a juvenile. If the accused doesn’t claim to be a juvenile, the arresting officer would not do his due diligence, conduct an inquiry, or ask for age proof; and would simply mark the accused as an adult. The lack of due diligence by the arresting officer jeopardises the accused.
Direction for Magistrates: The Court directed that “when a young person is apprehended/arrested and he is produced before the Magistrate, it will be the duty of the Magistrate also to order ascertainment of the person’s age. The Magistrate shall, in all such cases, undertake this exercise where the young person from his/her looks appears to be below 18 years of age and also in all those cases where in the arrest memo age is stated to be 18-21 years.”
Most magistrates simply look at the age mentioned in the arrest memo and remand the accused to judicial custody. It is rare to see a magistrate making an inquiry about the accused’s age based on their physical appearance.
Apart from these directions, Rule 12❲2❳ of the Juvenile Justice Model Rules, 2016 mandates regular visits by Principal Magistrates of JJBs to observation homes and adult jails. The board needs to submit a quarterly report to the Chief Judicial Magistrate or District Magistrate. What makes me ponder is that if these visits are taking place regularly, then why are hundreds of children still in the adult jails of Delhi?
Direction to Delhi State Legal Service Authority: The Court directed that the teams of Delhi State Legal Services Authority (DSLSA) and National Commission for Protection of Child Rights (NCPCR) visit all the Jails in Delhi on monthly basis to identify suspected juveniles. As per directions, it has to be ensured that juveniles are not lodged in regular jails along with adults and are dealt with only under Juvenile Justice Act.
When I visited the DSLSA website, I found no record or data on the visits made by legal aid lawyers to the jail to conduct monthly assessments.
This indicates that court directions have been flouted by the relevant stakeholders. In addition, there are reports that once the accused is sent to an adult criminal justice system, the process of identifying him as a juvenile and then sending him before the Juvenile Justice Board takes a long time. Lawyers working in the juvenile justice system say the process of identification has too many stages and requires too much paperwork. As a result, children are stuck in adult jails for very long periods.
An Injustice to Children
Lodging children with hardened adult criminals can have drastic implications on the physical and mental well being of a child. When a child is sent to an adult prison, it is more likely for them to re-offend 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 the social services they need and with constant access to criminal minds, there is a higher likelihood of them becoming recidivists.
Though I do not have numbers for the entire country, the reality is that there are likely to be hundreds of children who are in adult jails across India. With no access to lawyers or information, and in a state of shock and fear, they are stuck in jails which are not meant for them. Their brutalisation will likely affect their sense of personhood and self-worth and make them resent the state and the system.
We need to stop and ask ourselves: is juvenile justice law actually reformative? Who is accountable for this failure? Is it only the juvenile justice system or have we as a society contributed to this as well? I believe that by not addressing the issue of incarcerating children in adult jail, we are ensuring that we churn out hardened criminals, instead of reformed individuals.