Since the first non-bailable warrant (NBW) served in 1997 till he was arrested last evening , the sitting MLA was served with 101 NBWs but he never appeared in court.
The Pune car crash case has once again brought systemic inadequacies in relation to the treatment of juveniles in India’s criminal justice system to the fore. While it is a crime that deserves punishment, it is also crucial to turn our attention to the inadequacies of the juvenile justice system. Bail policies, orders for stay in an observation home, procedures for trying minors as adults, liability of parents for actions of their children, are issues being discussed all around. There is however, one systemic inadequacy in the context of children that is often overlooked, i.e., the continued detention of minors, who are accused of committing a crime, in prisons meant for adults.
A recent nation-wide study published by iProbono has revealed that between 2016 to 2021, at least 9,681 children in conflict with law were transferred from prisons to child-care institutions. While this may have come as a surprise to many, for me, this just sounded all too familiar. After all, it wasn’t the first time that I had come across such instances of injustice.
In 2012, a visit to a prison located in the heart of Kolkata, uncovered a harsh reality. Over 50 children — persons below the age of 18 years, i.e., juveniles or children in conflict with law (as they are termed now), were confined inside. A public interest litigation followed, resulting in the release/transfer of these alleged juveniles, to child-care institutions. In 2013, the Calcutta High Court issued a slew of directives reiterating legal provisions, to prevent future such incidents. Young into the profession back then, I thought this had been an isolated incident.
Soon after, in 2015, a new juvenile justice act was enacted that continued to categorically prohibit the detention of any child in conflict with law in a prison. This was applicable also in cases where an inquiry for age determination was pending, as well as where the child was accused of having committed a heinous offence. The only legally permitted institution for the detention of a child in conflict with law is either an observation home or a place of safety, but not a prison. Additionally, the Juvenile Justice Board was mandated to conduct regular inspections of prisons to ensure that no such alleged juveniles were detained. The naïve me thought all would be well, what I had witnessed in 2012 would never repeat itself.
But then again, in between 2017 to 2019, my colleagues came across 75 alleged juveniles while conducting inspections in prisons of Haryana, Punjab and Karnataka. These were just some instances that came to our notice, the actual numbers could have been far higher. An examination into the circumstances in which these instances occurred, led to strikingly similar narratives from these children in all the three states — the police misrepresented the age, despite the child informing his correct age; the police officers never explained to the children their rights; they were not aware that they could have a lawyer; the production before the magistrate was delayed or was not in person; visits by the Juvenile Justice Board or other stakeholders to ascertain that no juveniles were detained were rarely conducted.
Clearly, instances of detention of children in conflict with law in prisons seems to be a recurring issue, and also not one that is restricted to any particular state or jurisdiction. Why, one would ask? Is our system inherently flawed, or are these merely cases that fell through a crack in the system, only to be rectified upon at a later stage, resulting in the transfer of the child from a prison to a child-care institution?
In my view, any system that relies on an “after the fact” mechanism to rectify errors is inherently flawed. A closer look at the procedural requirements juxtaposed with constitutional guarantees in relation to arrest and the right to a lawyer, reveal critical gaps within the system, particularly at the time of questioning and interrogation at the police station. Our Constitution guarantees the right to consult and to be defended by a legal practitioner to any person who is arrested. The Supreme Court has extended this right to suspects at the time of questioning, too. Yet, neither the Constitution nor statutory provisions outline how this right would be implemented in practice. No mandates are set for the police or any other agency to ensure that a person has a lawyer at the time of questioning or interrogation; or that they are to wait for a reasonable period before initiating questioning or interrogation, allowing a person to seek advice or secure services of a lawyer, private or legal aid; or the consequences of not having a lawyer present at the time of questioning or interrogation.
Even in the context of children in conflict with law, rules mandate the police officer to immediately inform the district legal services authority to provide legal services upon the apprehension of a child. Here also the rules remain silent on the procedure to be followed till the lawyer is assigned, and before he visits and interacts with the child.
Interactions with prisoners, including alleged juveniles, indicate that in most cases, the first time they had the occasion to interact with their lawyer was after a few weeks of their imprisonment. By then, all is in vain.
Pre-trial safeguards are crucial for protecting rights, especially of children. When the police fail in their duty, it is upon the lawyer to seek compliance with legal procedures and hold the police accountable. It is the lawyer who can defend the child before the judicial magistrate at the time of production and present necessary evidence to establish the age of a child.
But till our laws remain silent on actualising the right to legal representation, no matter how hard we train our police, judicial officers, prison officers, members of the Juvenile Justice Boards or lawyers, children have, are and will continue to be incarcerated in adult prisons for years to come.
The writer is a lawyer and expert on prison reforms. She has been associated with the Prison Reforms Programme at the Commonwealth Human Rights Initiative since 2008. Views are personal
