On 11 May 2012, the Delhi High Court passed a 33-page judgment addressing the travesty of incarcerating juveniles in jails meant for adult offenders. Underlining that this was against the law, the court laid down exhaustive directions for every agency of the criminal justice system – police, magistrate, prisons, and legal aid authorities – to protect juveniles from the “hardship of the adult penal system.”
But in 2020, the incarceration of juveniles in “adult jails” remains a bleak reality. Information received from the Tihar prison authorities through Right to Information applications shows that hundreds of juveniles still end up sharing prison barracks with adult offenders.
It is a telling account of how the agencies of the criminal justice system – the police and the magistrates – are failing to ensure proper identification of juveniles before remanding them to judicial custody. Are these mistakes, or lapses of judgment, or signs of a growing punitive attitude?
Ignoring the Juvenile Justice Act
The Juvenile Justice Act, the law governing children in conflict with the law, is not just beneficial legislation but also a remedial one. Its aim is to protect juvenile offenders from the adult criminal justice system, and ensure measures are in place for their care, reformation, and rehabilitation.
Courts have time and again held that trying juveniles in adult courts or keeping them in adult jails is completely against the object and purpose of the Juvenile Justice Act. In a suo motu matter in 2012, the Delhi High Court had highlighted that adult jails, which are dangerous even for “hardened career criminals”, can be especially dangerous for juveniles as it can expose them to “prison victimisation” due to their “size and age”.
“Adult facilities/prison often lack the staff to address the needs of young incarcerated persons. 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 juvenile system, where rehabilitative services are far more extensive.”Delhi High Court
The Law Protects, the Protectors Don't
In its 2012 ruling, the Delhi High Court was of the view that incarceration of children in jails meant for adults results from improper inquiries by the police during arrest, and by magistrates when arrested persons are produced before them.
There’s a clear mandate of the law that even in the case of suspicion about the age of the accused, he should be produced before the Juvenile Justice Board instead of a criminal court.
a. Directions for the Police: The arresting officer must ascertain age of the accused at the time of arrest by asking for age proof. Age must be mentioned in the arrest memo. If age proof is unavailable, the arresting officer shall make an assessment from the appearance of the accused, and if he appears to be juvenile, take him to the Juvenile Justice Board instead of a criminal court. The arresting officer is obligated to inform the accused about his rights under the Juvenile Justice Act while making the arrest.
b. Directions for the Magistrate: Magistrates must also make an inquiry about the age of the accused either by referring to the age mentioned in the arrest memo or by assessing the appearance of the person produced, especially in those cases where age is mentioned as 18-21 years.
c. Directions to Delhi State Legal Services Authority: The jail visiting lawyers of the DSLSA were directed to identify prisoners who may be juveniles and inform the concerned Superintendent to initiate an inquiry. Legal aid lawyers were also directed to provide legal assistance to prisoners claiming juvenility. Even the National Commission For Protection of Child Rights (NCPCR) was directed to constitute a team that would make monthly visits to jails to identify juvenile prisoners.
The Reality of Incarcerating Juveniles
Despite the detailed directions of the Delhi High Court, the data continues to show a large number of juveniles landing up in adult jails.
In a reply to an RTI application filed on 8 August 2020 to all the 16 jails of Tihar prison complex, it was revealed that at least 123 prisoners were declared juveniles in 2019-2020. This figure was obtained from just eight jails in Tihar, as the other eight jails did not reply to the RTI query.
Of the eight jails that replied to the RTI, five mentioned that they do not maintain any data on the identification and declaration of prisoners as juveniles, clearly violating the obligations set by the Delhi High Court.
The lack of maintenance of data along with inadequate replies suggests the actual figure of juveniles at Tihar Jail is much higher than 123. This apprehension is supported by data published by the Delhi State Legal Services Authority (DSLSA).
The reports of jail visiting lawyers published by DSLSA show a total of 230 prisoners identified as juveniles between 2019-2020. However, even this data was obtained during visits made between April and November 2019.
Disturbingly, DSLSA data is clearly not properly maintained, as it shows no record of visits made to the jail after November 2019. This completely flouts the Delhi High Court’s order which had directed jail visiting lawyers to conduct monthly assessments. This only raises our apprehension that the actual number of juveniles at Tihar Jail may be much higher.
A Juvenile's Journey to Adult Incarceration
In order to understand how juveniles end up in adult prisons despite the strict directions of law, we interviewed jail-visiting lawyers who handle cases of prisoners claiming juvenility.
Interviews conducted with 10 jail-visiting lawyers empanelled with DSLSA expose various factors that push juveniles into adult jails. A huge majority of them come from socio-economically underprivileged groups, with little to no official documentation. Some are migrants from other states, others are escaping from broken or abusive families.
“Most of the juveniles I dealt with were extremely vulnerable to the forces of the society. They were largely homeless, living under flyovers or near railway tracks, with no family records. They were mostly arrested for petty offences such as theft.”A legal aid lawyer from South District of Delhi
Legal aid lawyers further highlighted that due to lack of education and absence of permanent residence, these juveniles are often unable to present legitimate age proof at the time of the arrest.
“How can you expect a homeless boy to show Aadhaar? How do you expect an illiterate boy to show a school leaving certificate? That too, as they are being arrested!”A legal aid lawyer empanelled in West District of Delhi
The identification of hundreds of juveniles in adult jails is also reflective of the punitive attitude of the police and the lower judiciary. Often, arresting officers mark the accused as an adult when he’s unable to produce proof of age, even if physical appearance suggests the opposite. When in doubt, it seems the police favours declaring the accused an adult.
Magistrates seem to skip the assessment of the physical appearance of the accused. Around 85 percent of the prisoners who approached legal aid lawyers claiming juvenility, claimed that they were not represented by a lawyer when they were brought before the magistrate. They complained about magistrates remanding them to prison almost mechanically, based solely on the paperwork submitted by the police.
An overwhelming 94 percent of the prisoners who approached legal aid lawyers claiming juvenility, were unaware of their rights at the time of arrest. They stated that arresting officers did not inform them about their rights under the Juvenile Justice Act, or of the fact that they had to produce age proof.
A Sorry State of Affairs
A legal aid lawyer from the South-East district who has been handling juvenility claims cases for the past three years told The Quint that juveniles are failed by the very system that was set up to address their rights.
The legal aid lawyer stated that the arresting officer, who’s usually a havaldar (constable), is at times not well versed with the law, especially the Juvenile Justice Act. They are also not adequately trained and sensitised on how to deal with children in conflict with the law.
He also said that 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 further jeopardises the accused before the magistrate. Legal aid lawyers claim that 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.
Once the accused is sent to an adult jail, the process of identifying him as a juvenile and then sending him before the Juvenile Justice Board takes a long time. Legal aid lawyers say the process has too many stages, and requires too much paperwork. As a result, juveniles are stuck in adult jails for a lot longer. Calling it a “sorry state of affairs” one legal aid lawyer said:
“The juvenile first has to approach the jail visiting lawyer, who then inform the Superitendent. The Superitendent then informs the DSLSA, who then marks the case to one of its empaneled lawyers. This lawyer then moves a petition before the Magistrate, who asks for a report from investigating officer and the jail. After all this, the age verification inquiry will be ordered, and only then the final order on juvenility will be passed.”
Magistrates spend weeks, even months to decide claims of juvenility. A legal aid lawyer empanelled in Delhi's East District said he once handled a case where a prisoner claiming juvenility was released on bail even while his application for juvenility was pending before the magistrate!
Defeating the Purpose of Juvenile Justice
Advocate Prabhsahay Kaur, who actively represents Bachpan Bachao Andolan before various courts, believes that as soon as a juvenile is kept in an adult prison, even for one day, it is a blatant violation of the child’s rights and a wrong that cannot be remedied.
She said the entire purpose of the Juvenile Justice Act is to prevent a child in conflict with the law, during or even after the trial, from becoming a criminal. Instead, the system is moving starkly in the opposite direction.
Despite detailed directions from the court, children in conflict with the law still end up in adult jails. Why? Because those running these systems continue to have punitive attitudes. Till we work on changing those attitudes, these juveniles will remain stuck at Tihar Jail.
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