A young girl, a little over 17 years old, was apprehended by the Uttar Pradesh police in April 2018. Despite being a minor, she found herself in an adult prison, in complete disregard of her rights under the Juvenile Justice Act 2015. She spent almost six years in a UP prison. Her journey unveils the systemic flaws that perpetuate such injustices.
The Juvenile Justice Act legally mandates that children under the age of 18 be placed in observation homes or places of safety, not adult prisons. Indian courts have repeatedly stressed the need for all state actors to actively ensure this. It is essential for reform and rehabilitation to be possible—without the inevitable trauma, abuse, and exposure to hardened criminals that incarceration in adult jails would result in.
The case in question exemplifies the violation of safeguards at crucial junctures, from the time of her arrest to her placement in an adult jail. This breach occurred at the hands of law enforcement authorities, the remand magistrate, and a failure on the part of the state-provided legal aid system. It highlights not only the poor implementation of existing safeguards but also the need for further protective measures at the pre-trial stage to ensure an accurate determination of age.
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Determining age
When a young person is taken into custody, the police, as the first point of contact, decide whether they will be treated as a child or an adult. This practice of placing discretion with the police is based on the erroneous presumption that age is a clearly established fact during arrest.
In 2012, the Delhi High Court in Court on Its Own Motion v. Women and Child Development, directed that at the stage of arrest, the police must note the age of the arrested person on the arrest memo and also prepare an age-memo. This requires a visual assessment of the person’s appearance and checking age-proof documents. Unfortunately given the subjective nature of the former and frequent absence of the latter, this safeguard often falls short. Anecdotal evidence paints a concerning picture of prejudice by law enforcement against young offenders, revealing a troubling bias towards retribution rather than reformation. The disadvantaged socio-economic backgrounds of many of these young offenders often contribute to them being treated based on societal stereotypes rather than their individual circumstances. In the earlier-mentioned case, the police never made an effort to verify her age, even when the child asserted her juvenility at the time of the arrest.
As the initial point of interaction, the police require sensitisation regarding the objectives of an alternative system for handling juvenile cases, so that they may exercise discretion in a manner that prioritises rehabilitation and individualised care. The system must strengthen the police’s role for the judicious application of rehabilitative measures as opposed to defaulting to the conventional criminal justice process
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Role of the magistrate
The law mandates the physical production of every accused person before a magistrate within 24 hours of their arrest. At this stage, the magistrate must assess the age and/or verify the documents in the age memo. Magistrates are, in fact, obligated by the 1983 apex court judgment of Gopinath v. State of West Bengal to obtain creditworthy evidence about the age of all accused under 21 years old, with the opinion of the medical board or the civil surgeon. However, its implementation remains questionable at best.
If a child in conflict with law is not accurately identified up until the stage of remand, the protections under the Juvenile Justice Act cannot be availed during the subsequent steps. Children often end up in adult jails and are not granted bail as a matter of right. In fact, RTI responses received by iProbono suggest that between 2016 and 2021, 730 children were confined in jails in Delhi. Notably, over 90 per cent of these children experienced incarceration for a period exceeding one month.
Once the investigation and trial begin under the erroneous presumption of the child being an adult, the system by itself will not offer safeguards for the plea of juvenility. The burden then shifts to the accused minor to personally navigate and substantiate their age. This places a considerable onus on the shoulders of young individuals, shifting the responsibility away from the state. For this 17-year-old girl, as the trial commenced in the sessions court, there were no safeguards in place to eliminate the possibility of her being considered a child in conflict with law. This was despite her matriculation mark sheet, a crucial document supporting her claim of juvenility, being present in the court records.
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Quality legal representation gap
Another important aspect of the case is the inadequacy of the quality of legal aid provided to undertrials, right from the stage of arrest to the trial. In her close to six years of incarceration, this child’s legal aid counsel never met her, never filed a bail application on her behalf, and never gave her any information about her case apart from the next date of hearing.
Quality legal representation both at the police station and during trial is essential in protecting the rights of children in conflict with law. The first 24 hours after arrest is a crucial period—those who are not able to establish their juvenility often find themselves in adult prisons. As per RTI responses received by iProbono, between 2019 and 2023, 4,54,86 individuals got legal representation during the remand stage i.e., in court, while only 46,985 could avail help at the police station when they were first arrested. This highlights a concern about the effectiveness of mechanisms to offer legal aid at the police station, a stage that is crucial for correct and early age determination.
The child in question was let down by every institution, and at every stage that was meant to protect her rights. Only with proper legal representation did she secure release on bail, following a prolonged four-month legal battle that unfolded in both the sessions court and the Juvenile Justice Board.
The recently launched ‘Restoring the Youth’ campaign by the National Legal Services Authority is a welcome initiative that focuses on identifying and releasing children in conflict with law erroneously placed in adult jails. Nevertheless, the initiative must be accompanied by reforms that advance best practices in legal aid services to ensure that every possible remedy and safeguard is made accessible at all stages, placing special emphasis on the pre-trial phases as highlighted above. While this young girl embarks on the journey of re-imagining her life beyond prison walls, her story serves as a poignant reminder that thousands of other children continue to languish behind bars.
Shrutika Pandey is a lawyer and researcher specialising in access to justice. She is a Program Officer at iProbono, where she engages in developing strategies to advance the rights of undertrial prisoners through pro bono legal representation, research, and advocacy. Yamina Rizvi is a lawyer specialising in child rights. She is a Program Officer at iProbono, where she leads the Juvenile Justice vertical, offering pro bono legal representation to children in conflict with law. Her advocacy focuses on ensuring adequate and high-quality legal representation for young offenders. Views are personal.
(Edited by Theres Sudeep)