Anant asthana juveniles in jails

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Anant asthana juveniles in jails

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Anant asthana juveniles in jails

  1. 1. (1853-2013)
  2. 2. 1853Charles Hathaway, Inspector General of Prisons in Punjab wrote a Memo toProvincial Government outlining peculiar problems posed by Juvenilesoffenders within and without the colonial prison.The system currently in placefor the punishment of child criminals, Hathaway wrote, was a dismal failure.Young vagrants and thieves drifted in and out of British-Indian jails, returningoften and becoming progressively more delinquent with each visit. Under suchcircumstances, the Inspector General asked, “How is his chance of reformationbettered?”1919-1920Indian Jails Committee emphasized separate treatment of children and youthfuloffenders for their reformation.Long before India’s Struggle forIndependence started ……
  3. 3. Had there been a Children Act in the Bihar Statelike in most other States of the country, acompassionate trial process would have beenstatutorily mandatory and children could not bemarched into regular criminal courts for trial andconviction, nor incarcerated with adult criminalswith obvious debasement and subtle torture suchas homosexual attacks.....Rehabilitation of youngoffenders is basic to juvenile justice which, in turn,is a component of social justiceRam Prasad Sahu vs State of BiharAIR 1980 SC 84
  4. 4. 31.10.1983 : ““…We would also like to know as what is the procedurebeing followed by the Courts of Metropolitan Magistrates in Delhiwhen a young accused is produced before them for the purpose ofascertaining whether he is a child or not within the meaning of theChildren’s Act and if he is not a child and is sent to judicial custodythen what is the procedure being followed by the Superintendentof the Tihar Jail for determining whether he is juvenile within themeaning of Jail Manual where a juvenile is defined as a prisoner whohas not attained the age of 18 years. We are anxious to ensure thatno child within the meaning of the Children’s Act is sent to the jail…”1983Sanjay SuriVs. Delhi Administration1988 AIR SC 414
  5. 5.  As a result of the aforesaid order in Sanjay Suricase , a separate juvenile ward was created inTihar Jail. It was made mandatory for the Magistrates tomention the age of the accused on the custodywarrant. it was made clear that warrant without agewere not to be respected by the Jails.Impact of Sanjay Suri, 1983
  6. 6. “ Whenever a case is brought before the Magistrate and the accusedappears to be aged 21 years or below, before proceeding with thetrial or under taking an inquiry, an inquiry must be made about theage of the accused on the date of occurrence.This sought to be madeso where special Acts dealing with juvenile delinquents are in force.If necessary, the Magistrate may refer the accused to the medical-Board or the Civil Surgeon, as the case may be, for obtaining creditworthy evidence about age. The magistrate may as well call uponaccused also to lead evidence about his age. Thereafter, the learnedMagistrate may proceed in accordance with law. This procedure, ifproperly followed, would avoid, a journey upto the apex court, andthe return journey to the gross-root court.”1983: Gopinath GhoshVs.State of West Bengal
  7. 7. “....It is an elementary requirement of any civilised society and it had been soprovided in various statutes concerning children that children should not beconfined to jail because incarceration in jail has a dehumanising effect and it isharmful to the growth and development of children. But even so the facts placedbefore us, which include the survey made by the Home Ministry and the SocialWelfare Department show that a large number of children below the age of 16years are confined in jails in various parts of the country.”“……….That is why all the statutes dealing with children provide that child shallnot be kept in jail. Even apart from this statutory prescription, it is elementarythat a jail is hardly a place where a child should be kept. There can be no doubtthat incarceration in jail would have the effect of dwarfing the development ofthe child, exposing him to baneful influences, coarsening his conscience andalienating him from the society. It is a matter of regret that despite statutoryprovisions and frequent exhortations by social scientists, there are still a largenumber of children in different jails in the country as is now evident from thereports of the survey made by the District Judges pursuant to our order dated15th April, 1986. Even where children are accused of offences, they must not bekept in jails. …”Sheela Barse versus Union ofIndia 1986(3) SCC 596
  8. 8. “the purpose of the Act was to create a uniformjuvenile justice system and ensuring that juvenilesare not lodged in jails or police lock-ups. It alsoheld that those who are entrusted with theresponsibility of implementing the Act must showsensitivity and concern to the juvenile.”Arnit Das v. State of Bihar,2000(5) SCC488
  9. 9. Juvenile Justice (Care & Protection of Children) Act2000 was amended in year 2006. One significantamendment was in Section 10 titled “Apprehensionof Juvenile in Conflict with Law”. This section wasamended to include a proviso to it to the effectthat “in no case a juvenile in conflict with lawshall be placed in a police lock up or lodged injail”. It was done to stop the practice of juvenilesbeing kept in jails on the ground that sufficientnumber of observation homes were not available.2006 Amendment in JJ Act, 2000
  10. 10. 03.01.2007“It deserves to be noticed at the very outset that it was more than 20 yearsago that this Court, concerned with the plight of the children, developmentof their personality and the appalling conditions in jails, issued variousdirections. Even in the year 1986, this Court expressed regret that despitestatutory provisions and frequent exhortations by social scientists, largenumber of children are lodged in number of jails. It was observed that evenif children are accused of offences, they must not be kept in jails. Rejectingthe argument that there are not enough number of homes or observationhomes or other places where children can be kept is the reason why they arelodged in jails, in Sheela Barse Vs. Union of India {(1988) 4 SCC 226], thisCourt reiterated the earlier decision dated 13th August, 1986 reported in(1986) 3 SCC 632. The Government were again impressed upon to set up thenecessary mechanism, i.e., remand homes, observation homes etc. forlodging children.”Sampura BehruaVersus Unionof India -2007
  11. 11. 24.01.2007:  In the meantime, 20 juveniles shall be  withdrawn  and  taken  out  from  the    Tihar Jail  immediately  and  they  shall  be  lodged  at Special  Home  and  the  Place  of    Safety  at Majnu  Ka  Tila,  for  the  present,  awaiting further  orders  in  this    regard.  They  shall  be provided with food and all other facilitieCOURT ON ITS OWN MOTION RE: SENDING OF13 JUVENILE DELINQUENTS TO TIHAR JAIL W.P.(C) 17690/2006
  12. 12. 25.04.2007: We direct the Delhi Legal Services Authority to send Legal Aid Advocates   to all the  three  Homes,  namely,    1.Nirmal  Chaya  , Tihar  Jail  Complex  (Home  for  girls);   2.Observation  Home  for  Boys,  Sewa  Kutir, Kingsway  House;  and    3.Observation  Home for Boys at Firoz Shah Kotla.COURT ON ITS OWN MOTION RE: SENDING OF13 JUVENILE DELINQUENTS TO TIHAR JAIL W.P.(C) 17690/2006
  13. 13. 1.This orders deals with the issue of a juvenile having been sent to jail in year 2011 in spite of himhaving been declared a juvenile being 15 years of age in year 2009 by this Board. Board observed, “thisis not an isolated case on this issue.” and appointed Amicus curie to assist the JJB in dealing with thisproblem.2.“Because such miss-happenings are routine, we are compelled to take judicial notice of it and to findout how the system can be put in place to avoid reoccurrence of such unfortunate incidents.”3.“This case, as well as other cases of similar nature, suggest that something is missing in system andsuch violations are, primarily, happening due to absence of an effective system of coordination andlinkages and also due to casualness with which young offenders are being dealt with.”4.“The Universal Declaration of Human Rights (UDHR), the foundation of Human Rights Law, to whichIndia is a signatory, protects the right of juveniles of not to be sent to jails and includes the right ofthose who may not be aware that they are juveniles to not be sent to jail without a proper preliminaryinquiry on age. In the case of juveniles, the responsibility of the police is accentuated and they areresponsible for ensuring that juvenile do not suffer deleteriously when they come into contact with thelegal system.”Juvenile Justice Board’s Order dated 16.03.2012 inFIR269/ 2011 by Principal Magistrate AnuradhaShukla Bhardwaj
  14. 14. •“A perusal of the International Covenant on Civil and Political Rights 1996 (ICCPR) reveals thatseveral of its provisions require State Parties to provide for protection of citizens from arbitraryforms of arrest and also specifically protect the interest of juveniles.”•“We, thus see that it was in 1983 that the Hon’ble Supreme Court had shown its concern on themanner in which the children were sent to and kept in jails and 28 years later in 2010-2011 westill had 113 children, who were sent toTihar jail over a small period of eleven months.”•“Often these children have to suffer incarceration for a long time till the help actually reachesthem. A recent UN report of Working group on Human Rights in India released in December2011 has also found that children’s ages are often falsified and they are tried in adult courts orsent to adult prisons. In such cases, the family members have to rush to all corners to get theirchildren recognized as children and then declared so legally. Of course legal remedies areavailable to get the mistake or lapse corrected but by the time mistakes are corrected, the childsuffers in silence. It has been our experience that the children who suffer incarceration in Jailsacquire contamination and their rehabilitation becomes difficult. In some cases, childrenincarcerated in Jails have no body to take care of them. Families are often poor and illiterateand find it difficult to get help.What do the children like the juvenile in the present case do, whodo not have a family to engage a lawyer and to take up the issue of juvenility and fight for it?”Juvenile Justice Board’s Order dated 16.03.2012 inFIR269/ 2011 by Principal Magistrate AnuradhaShukla Bhardwaj
  15. 15. •“Ld. Amicus has explained in great detail the need of introducing “Age Memo”on the line of “Arrest Memo” which was evolved in DK Basu case. Though wemay agree to the need of such “Age Memo” to be put in place in cases involvingyoung offenders, we are not the competent to pass any order in that respect.”•“In each case, where a police officer arrested a person as adult and later onsuch person turns out to be a juvenile, DCP concerned shall undertake aninquiry to satisfy him/her that a deliberate lapse has not been committed.”“Age Memo” suggested in this order has subsequently beenapproved by Delhi High Court and a detailed Age Memohas been institutionalized in criminal proceedings in Delhi.Juvenile Justice Board’s Order dated 16.03.2012 inFIR269/ 2011 by Principal Magistrate AnuradhaShukla Bhardwaj
  16. 16. • Special Panel constituted by NCPCR to inspect Jails in Delhi every month• Introduction of “Age Memo” in Criminal Investigations• Inquiry against Police in case of lapse in age investigation• Training of Magistrates on Age Inquiry• Age Inquiry must by Magistrates in all cases of 18-21 age group• System of multi-layered checks put in place• Six monthly review of progress & implementation• Strong complaint mechanism• Judgment dated 11.05.2012 by Delhi High Court2012: Court on Its Own Motion VersusDepartment of Women & ChildDevelopment (W.P. Civil 8889 of 2011)
  17. 17. National Campaign for Elimination of Incarceration of Children in Jails in Indiain process.Judicial Proceedings going on in High Courts of Delhi,West Bengal, UttarPradesh, Orissa.Interventions in Rajasthan & Karnataka being plannedInitiatives to ensure Birth Registration of children in processLinking of Juvenile Justice System with Birth Registration System- Pilot beingworked out in Delhi with the help of NCPCR---------------------------------------------------------------------------------------Presentation By : Anant KumarAsthanaWay Ahead…..

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