History Of Juvenile Justice In India v2j6t

HISTORY OF JUVENILE JUSTICE IN INDIA

The term juvenile justice emerged from the word Juvenis, in latin it means Young so a justice system for the young. Historically the concept of juvenile justice was derived from a belief that the problems of juvenile delinquency in abnormal situations are not amenable to the resolution within the framework of traditional process of criminal law.1 Over the time a need felt in ensuring that juvenile justice system beside catering the needs of young offenders only it also provide specialized and preventive treatment services like community , harmonizing impersonal state intervention with the family, community and institutional interventions for the children and as a means of prevention, rehabilitation and socialization through schools and religious bodies.2 During the British Rule certain laws were enacted to address the issue of juvenile delinquency and child welfare. laws like Whipping Act of 1864 was ed to punish the juvenile through whipping and then setting him free so that he should not repeat the same act, it was to deter the child against committing crime. The Indian Penal code Act 1860 and criminal procedure code 1861 treating child differently through various procedures. Act XIX of 1850, 1876 reformatory schools act, the Borstal School Act, Children’s act of 1920, and other state specific legislations like Bengal children’s Act, Madras children’s Act to address neglected and deviant children’s these laws gave delinquents some special provisions regarding their Institutionalization and rehabilitation.3

1 Ved kumari, The Juvenile Justice in India: from welfare to rights, New Delhi: OUP. p1 2 working paper “juvenile justice: before and after the onset of juvenile delinquency” made by the secretariat of sixth United Nations congress on prevention of crime and treatment of offenders, caracas, Venezuela 25 to 29 August 1980. Agenda Item 4, 1980, A/CONF.87/5/Rev.1, p62-63 3 Sen, Satadru. (2004), A separate punishment: Juvenile offenders in colonial India, Association of Asian studies, 63(1), 81-104

Colonial masters dealt with the problem of delinquents, through the laws of Reformatory schools and Borstal School Act to reform and rehabilitate juvenile delinquents. Although there were state laws the children’s Act but post–Independence a central law The Juvenile Justice Act 1986 was introduced for a uniform system, procedure and personnel in the domain of juvenile justice throughout the country, in this Act the age of male juvenile was kept at sixteen years while the girl age was kept at eighteen years. 4 These cut off age were chosen because in the children Act 1960 where the age was sixteen years and also the children bill of 1953 which defined children as below sixteen years also because of the Bombay children Act of 1948 which was one of the model legislation. As this law was ed prior to the UNCRC 1989 which India ratified in 1992. 5 In 2000 the former law was repealed and a new law which was more exhaustive and one of the best law was enacted The Juvenile Justice (care and protection of children) Act 2000 but the age was kept at 16 only later it was Amended in 2006 to increase the age of the child which increased to 18 years to adhere the International ratified laws. The juvenile justice is one of the step taken by the state so as to attain constitutional vision of India pertaining care and welfare of children. The provisions of constitution which grants the special status to the children Article 15(3), 24, 39(e) & (f) and 45, National policy for children 1974, 2013, declare that children are national asset. Further through constitutional directions many other laws and statutory provisions have been enacted to protect the rights of children like RTE 2009, child labor prohibition act 1986, JJ act 1986, later JJ(C&P) Act 2000.

Juvenile Justice in India Historical development of juvenile justice in India can be divided into six phases through reference of treatment of children, legislative developments, judicial Intervention and other government policies. Prior to 1773, 1773-1850, 1850-1950, 1950-2000, 2001-20106 4 section 2(h) Juvenile Justice Act, 1986. 5 http://www.unicef.org/crc 6 Kethineni Sesha & Braithwaite Jeremy, towards a compliance model: The Indian Supreme Court and the Attempted Revolution in Child Rights

Year 1773 was a benchmark in the Indian legal system as Regulating Act of 1773 granted East India company the power to make and enforce laws, the Charter Act of 1833 changed commercialization of company into a governing body. Between 1773 -1850 many committees were established focusing on children’s in jails, first law was made in 1850 to keep juveniles out of jails later the Report on All India Jail committee 1919-1920 segregated children from criminal justice system.

Status of Juveniles prior to 1773 Both Hindu law (Manusmriti) and Islamic law (Sharia) prescribes for maintenance and proper upbringing of the children and it was the sole responsibility of parents to provide care and protection to the children and if the families were unable then someone from the community took care of the children. According to Islamic law if anyone finds the abandoned child and feels that child would be harmed then he must take care of the child (Ved kumari 2004). Study of Manusmriti and sharia shows different punishment for the children in certain offences 7 like under Hindu law if a child is found throwing filth on the public road he has to clean the place while an adult has to pay the fine.8 While in Muslim law, there is a specific Injunction which forbids execution of children.9 Provisions in the traditional texts shows the children were treated separately from that adults, wanting special care for their survival and they were not fully responsible for their actions. So the Indian culture historically treated child as a child in need of care and protection such that if he has committed any wrong he was treated not as per the adult’s law.

Status of Juveniles from1773-1849

7 kumari, Ved The Juvenile Justice in India: from welfare to rights, New Delhi: OUP. p57 8 Muller, M.F. (1886). The laws of Manu. oxford: clarendon press 9 Unnithan, N. Prabha (edited. 2013). Crime and Justice in India; ch.13, Kethineni Sesha & Braithwaite Jeremy, towards a compliance model: The Indian Supreme Court and the Attempted Revolution in Child Rights. New Delhi; sage publication, p.306

As during this period India was prominently dominated by East India Company which started as a trading company in 1608. After the company failed the government of Britain took over under the Governor General and this was the period when the reform momentum was gaining a pace which also affected India. Colonial exploitation ruined the agrarian economy forcing deprived class to live in slums in the city outskirts. This increased destitution and delinquency among children.10 Welfare mechanism for the children took different forms. Krishna Chandra Ghoshal and Jai Narayan Ghoshal approached to Lord the then Governor General for establishing the home for destitute juveniles in major trading city of Calcutta. The first Ragged School for vagrant and orphan children was established in 1843 in Bombay now it’s known as David Sasson Industrial School (Ved Kumari, 2004). The objective was to reform the child delinquents who were arrested by the police this was done by encouraging them to work through apprenticeship and Industrial Training which prepared the base for ing the Apprentices Act 1850.

Period from 1850-1919 This period saw ing of specific legislations concerning children, first law which provided a special status for juveniles was the Apprentices Act 1850 (Clayton Hartjen & Sesha Kethineni, 1996), children who were vagrants of committed petty offences in age group of 10-18 years were made to undergo their sentence as apprentices. The objective of the law was to channelize the energy of the children and deviate them from criminal influence and make them work so that after reaching majority they could earn a living.11 Later the Indian Penal Code 1860 which fixed the age limitations for criminal culpability doli Incapax and doli capax under section 82&83 of IPC which provided protection to children from criminal prosecution until they have developed cognitive faculties to understand the nature of their actions. The code of criminal procedure 1861/1898 in three sections 298, 399 &562 prescribed for separate trial for the persons below the age of 15 years and required that they should be confined in reformatories rather than in adult

10 Chatterjee, G. The Reformation of Neglected and Delinquent Children in British Raj: An Historical overview, p.2, Material for National Workshop on Neglected children; by Prayas,Shramik Vidyapeeth and Delhi school of social work, New Delhi, 19-20 june 1992 (hereafter Prayas Workshop). 11 Mukundan, K.P . (2008). Study of the status of the justice delivery system for juveniles in conflict with law in Maharastra . Mumbai: Tiss

prisons (Clayton Hartjen 1996) this changed the philosophy of penalizing from punishment to reformation. As prison reports constantly pointed towards the change in policy and istration, noticing high rate of perpetrators and increase of juvenile offenders in especially in Poona where the number went up drastically from one to sixty five between 1860-1861 so as to reduce the reduce the number the government ed Whipping Act of 1864 aiming that whipping for certain class of offences by young delinquents will have a deterrent effect, and government will not have to Invest on establishing the reformatories for the juveniles as juvenile delinquency got politicized such that some were in favor of corporal punishment and some were on rehabilitation and lastly corporal was chosen as it was viable in of economic conditions.12 Between 1872 to 1875, the Poona juvenile prison was running smoothly and satisfactorily in of health and conduct of the juvenile offenders as they were provided mechanical and scholastic education and other after care facilities while at other places the proportion of juveniles to the total imprisoned was increasing so segregation of them became a necessity.13 This different treatment of juveniles was strengthened by The Reformatory schools Act 1876, 189714 which provided that boys under the age of fifteen who were imprisoned or transported should be placed in the reformatories. The period of incarceration was specified to be not less than three years and not be more than seven years (Clayton Hartjen & Sesha Kethineni, 1996). The second Reformatory Schools Act of 1897 dealt specifically with the treatment and Rehabilitation of juvenile delinquents in the age group of seven and fifteen years but it didn’t established such places for girls (Sesha Kethineni & Jeremy Braithwaite, 2013).Children of the criminal tribes received special attention after the enactment of criminal tribes (amendment) Act 1897. It provided for establishing agricultural and reformatory schools for the children of criminal tribe in age group of four to eighteen years (Ved Kumari, 2004). The Code of 12 Sen, Satadru. (2004), A separate punishment: Juvenile offenders in colonial India, Association of Asian studies, 63(1), 81-104 13 kumari, Ved The Juvenile Justice in India: from welfare to rights, New Delhi: OUP. p63 14 Saibaba, Anuradha , Juvenile Justice: critically Juxtaposing the models in India and Singapore (working paper series No. 28) september 2012, Asian Law Institute.

criminal procedure of 1898 extended imprisonment at the reformatory schools for the juveniles until they complete the age of eighteen years, and then prescribed that they be placed on probation till they are twenty one.15

Period from 1919-1950 The Indian Jail committee was established in 1919-1920, which urged to the British government for establishing separate institutions and to have separate trials for the juveniles (Biranchi Narayan Mishra, 1991) also Juveniles should compulsorily be given bail in most cases and their reformation and rehabilitation should be the motive of the law. (Tapan Chakraborty, 2002). Also the league of Nation’s Declaration instigated Madras (1920), Bengal (1922), and Bombay (1924) in enacting the Children Acts (Sesha Kethineni & Jeremy Braithwaite, 2013) and later the Delhi children Act, 1941, Mysore children Act, 1943, The Travancore children Act 1945, The Coachin children Act, 1946, and the East Punjab children Act, 1946 (Ved Kumari, 2004). Although Bengal children’s Act was ed later but it has juvenile court from 1914 onwards. Madras children’s act was the first delinquency law in India, it did not used the term delinquent instead defined ‘child’ as anyone under the age of fourteen years, a ‘young’ person from fourteen to eighteen years and an ‘youthful offender’ under the age of eighteen years who has been convicted of offence mentioned in Indian Penal code or any other special or local laws for which an offender can be incarcerated16 One of the important law pertaining to the street or vagabond children The Vagrancy Act 1943 which provided for care and training to children below fourteen years living on begging or lacked proper guardianship had parents who were involved in criminal habits and drinking, visiting prostitutes or were destitute.17

1950-2000

15 Chakraborty, Tapan. (2002). Juvenile Delinquency and Juvenile Justice System in India. In the Juvenile Justice Systems: International Perspectives (edited.), John A. Winterdyk 2nd ed., Toronto: Canadian Scholars' Press. 16 Hartjen, A. Clayton & Kethineni, Sesha (1996). Comparative Delinquency India and the United States, New York & London: Garland Publishing, P 36. 17 The Bengal Vagrancy Act, 1943 [25th October 1943]

By 1960 many states had established separate systems and laws for juveniles which varied in of definitions, and other procedural requirements and their implementation also varied. In 1960 Union government enacted The children Act 1960, which was applicable to union territories which were directly istered by the Union government. It was intended to serve as a model for the state legislations which did a groundwork for the National law ed as Juvenile Justice Act 1986 acted as uniform law throughout the country. Apex court Judgment in Sheela Barse played a crucial role in ing the uniform law on juvenile justice where it acknowledged that the children in the jails are entitled to special treatment and recommended that parliament should make a uniform law applicable throughout the country.18 Parliament invoked its power under Article 253 of constitution of India in making the juvenile justice system in India to conform the United Nations standard Minimum Rules for the istration of Juvenile Justice (Beijing Rules 1985) to abide the International Obligation which India agreed by ratifying in 1985. For the first time the law mandated care, protection, treatment, development and rehabilitation of neglected and delinquent juveniles and for adjudication and disposition of juvenile delinquency matters throughout country.19 The act formulated separated procedures for the juvenile delinquents and neglected juveniles, by establishing separate juvenile courts and juvenile welfare boards. Juvenile courts handled the offences committed by girls under the age of eighteen years and sixteen years for the boys accused of committing crime.20 Under the 1986 law, juvenile delinquents are persons below specified ages who committed certain acts that would be treated as crimes if committed by adults. Those juveniles would be processed through special courts following due process rules applied to adult offenders with exception that these proceedings are private and confidential and as far as possible be nonjudicial in nature. The delinquents who are convicted could be fined or placed under supervision for a maximum of three years but they cannot be executed or imprisoned or jailed.

2000-2015 18 Sheela Barse & Anr. Vs. Union of India & Ors. 1986 AIR 1773 ORS. 19 The Juvenile Justice Act, 1986. 20 Ibid

The Juvenile Justice (care and protection of children) Act 2000 was ed in December 2000 and came in force on April 1, 2001 and was amended in 2006 aiming to protect, care, rehabilitate and educate the juvenile and to provide them with vocational training opportunities. As the Preamble clearly states that the “object of the law relating to juveniles in conflict with law is providing proper care, protection and treatment by catering to their development needs and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through institutions established under this law”.21 The law underlines a welfare approach by inclusion of non-criminal justice language (arrest is replaced by apprehension, act does not speak about Jail, court, police, trial), Age of juvenile in conflict with law made same for both boys and girls as eighteen years after the country ratified United Nation convention on child rights which mandates the age of criminality as eighteen years, more emphasis on rehabilitation, re-socialization and reintegration of juvenile in conflict with law rather than punishment, placing minimal intervention of the correctional authorities and police as the special provision for special juvenile police to handle the cases in inquiry and replacing juvenile courts by Juvenile Justice Boards so as to make more child friendly in adjudication. The Law specifically mandates for the Rehabilitation and social re-integration, after acre services process, special provisions for adoption and sponsorship for mainstreaming them into society. The new law also emphasized on the involvement of voluntary organizations and urged for their participation in the process of juvenile justice through running the Observation homes, special homes, compiling social investigation reports.22 There is no such provision of death sentence in the law and juvenile cannot be sent to prison if unable to pay the fine and establishing separate homes for different age groups in order to separate younger offenders from mature juveniles so that the system could meet the requirements of the Beijing Rules on istration of Justice. After the tragic Delhi Gang Rape of December 16, 2012 where a juvenile was involved with other adult offenders in raping and torturing due to which the victim died, the issue raised a 21 Juvenile Justice (care and protection of children) Act 2000 22 ibid

debate on reduction of age of Juvenile in conflict with law as debated that juvenile offenders are increasing. Later a committee headed by Justice Verma was established for amending the laws in criminal law to protect the rights of women but the committee refused to reduce the age of juvenile and said that the time is not ripe for reduction and one case cannot be the reason for changing the law. Subramaniam swamy later filed a petition on reducing the age of criminality which again Apex court quashed with specific reasons which this paper will discuss in next chapter but the base was prepared after the rage and anger in the public sphere which led to coming of the Bill on The Juvenile Justice (care and protection of children) bill 2014. Although the bill is well equipped with protection mechanisms for the child in conflict with law (earlier juvenile in conflict with law) but the law has distinguished the offences for which the a child can be sentenced like Adult offenders.

Juvenile Justice System in India The state guarantees special treatment to them through statutory law. However, in practice, they often get victimized by legal and procedural entanglements The emergence of the concept of juvenile justice in India owes much to the developments that have taken place in western countries, especially in the perception of children and human rights jurisprudence in Europe and America. The Apprentices Act, 1850 was the first legislation that laid the foundation of juvenile justice system in the country. The concept consequently gained momentum with the enactment of the Indian Penal Code (1860), Reformatory Schools Act (1897), Code of Criminal Procedure (1898) and recommendations

made by the Indian Jail Committee (1919-1920), which categorically mentioned that the child offender should be treated differently from an adult offender. It also held that imprisonment of child offenders should be prohibited and recommended for provision of reformatory schools and constitution of children’s courts with procedures ‘as informal and elastic as possible’. The Committee also drew attention to the desirability of making provisions and special enactment for children who had not committed crime so far, but could do so in the near future on of living in criminal or inhuman surroundings or those without proper guardians or homes. The Madras Children Act 1920 was the first Children Act to be enacted, closely followed by Bengal and Bombay in 1922 and 1924, respectively. Later, many more states enacted their own Children Acts, covering within their sphere two categories of children, viz., (i) delinquent children, and (ii) destitute and neglected children. Both these categories of children were to be handled by the juvenile courts. They were to be kept in remand homes and certified schools or released on probation, with a possibility of imprisonment when the nature of offence was serious and the character of the offender so depraved as to justify imprisonment (Ved Kumari: 2004). During this period, by and large, the “welfare” approach was adopted for children – whether delinquent, destitute or neglected. Development of Juvenile Justice System in India Independence ushered in a new era for children in the country. The Constitution of India took care of survival, development and protection needs of children by making relevant provisions in ‘Fundamental Rights’ and ‘Directive Principles of State Policy’.

Children Act 1960 The special status accorded to children in the Constitution and the fact that there was a substantial growth in the number of destitute, neglected and delinquent children in the wake of partition, saw some special programmes being taken up to meet the needs of this group of children during the First Five-Year Plan. Industrialization coupled with urbanization further brought forth its own set of problems for children. One of them was increase in cases of juvenile delinquency in large cities, the most common offence being theft. As legislation for dealing with delinquent children existed only in few states, the Government of India enacted the Children Act 1960. The Act, however, was applicable only to the Union Territories as it was a model to be followed by the states in the enactment of their respective Children Acts.

The 1960 Children Act, provided for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected and delinquent children. For the first time in India, the Children Act prohibited the imprisonment of children under any circumstance. It provided for separate adjudicatory bodies – a children court and a child welfare board - to deal with delinquent and neglected children. The Act also introduced a system of three-tier institutions, namely, an observation home for receiving children during the pendency of their proceedings, a children’s home for accommodating neglected children, and a special school for delinquent children. It, however, introduced a sex discriminatory definition of child.Child

in case of a boy was one who was below 16 years and in case of a girl below 18 years of age. All states subsequently enacted similar, but not exactly the same Children Acts. The definition of the term child differed from state to state. As a result, delinquent and neglected children were subjected to differential treatment emanating from the diverse conceptions of child and childhood.

Juvenile Justice Act 1986 The need for a uniform Children Act across the country paved the way for the enactment of the 1986 Juvenile Justice Act (JJA). It promoted ‘the best interest of the juveniles’ by incorporating into its fold not only the major provisions and clauses of the Indian Constitution and the 1974 National Policy Resolution for Children but also the universally agreed principles and standards for the protection of juveniles such as the 1959 United Nations Declaration of the Rights of the Child and the 1985 United Nations Standard Minimum Rules for the istration of Juvenile Justice (Beijing Rules). The JJA overruled imprisonment of juveniles in police lock-up or jail. Other than this, it stipulated two main authorities – a juvenile welfare board and a juvenile court – to deal with neglected and delinquent juveniles. It also stipulated establishment of various kinds of institutions for the care of juveniles – a juvenile home for the reception of neglected juveniles, a special home for the reception of delinquent juveniles, an observation home for the temporary reception of juveniles during the pendency of any inquiry regarding them, and an after-care home for the purpose of taking care of juveniles after they were discharged from a juvenile home or a special home. It further guaranteed a wide range of dispositional alternatives with preference for family or community-based placement, and a vigorous involvement of voluntary agencies at various stages of the juvenile justice process. The basic ideology for adopting this differential approach was to save children from devastating ill-effects of criminalization, penalization and stigmatization. With the enactment of the JJA, the “welfare” approach gave way to the “justice” paradigm (Maharukh Adenwalla: 2006). But the implementation of the JJA had many loopholes in of age determination, separate trials, court proceedings, notification of charges to parents or guardians, filing of reports by probation officers, reasons for and length of confinement, rehabilitation and after care of juveniles. The juveniles were often not provided with a copy of the rules governing their detention and the written description of their rights. Many juveniles housed in institutions run by the government did not know the purpose of their stay and the future of their institutionalization. Like the 1960 Children Act, the JJA too promoted a sex discriminatory definition of a juvenile. Moreover, most of the states and union territories who had formulated their Rules for the implementation of the JJA were devoid of the basic infrastructure consisting of juvenile welfare boards, juvenile courts, observation homes, juvenile homes, special homes and after care homes. They had also not taken up the required measures for observance of minimum standards for institutional care or for the advancement of non-institutional care, such as foster care, sponsorship, adoption, etc. The chasm between reality and the application of the law was felt all the more with the adoption of the 1989 Convention on the Rights of the Child (CRC) and its ratification by the Government of India in 1992. The provisions of the CRC with regard to children in conflict with law were amplified in two other United Nations instruments - the United Nations Guidelines for the istration of Juvenile Delinquency (Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (JDL Rules). Both

provide detailed directions about the processes to be followed by the juvenile justice system in dealing with persons below the age of 18. The 1993 World Conference on Human Rights in Vienna and the successive adoption of Vienna Declaration and Programme of Action which urged States to ratify and implement promptly the CRC too made a definitive impact on all those concerned with the plight of these children in India including the government. Juvenile Justice (Care & Protection of Children) Act 2000

Taking a cue from all these developments, the government recast the JJA so that it could be in consonance with the CRC and brought in a new Act, the 2000 Juvenile Justice (Care & Protection of Children) Act. The ing of this Act endorsed the “justice” as well as the “rights” approach towards children and moreover made use of a better terminology by providing for “juveniles in conflict with law” and “children in need of care and protection”. It calls for keeping both the categories separate pending their inquiries. This segregation aims to curb the bad influence on the child who is in need of care and protection from the one who is in conflict with law. The JJA 2000 brings about standardization in the definition of a ‘juvenile’ or a ‘child’ across the country except for Jammu and Kashmir. A ‘juvenile’ or ‘child’ is a person who has not completed eighteenth year of age. Juveniles in conflict with law include all those children alleged to or found to have committed an offence. They are to be handled by the juvenile justice board. Children in need of care and protection cover a range of ‘at risk’ children to be dealt by child welfare committee. While dealing with juveniles and children, it gave importance to their respective families for tendering of advice and counselling. It furthermore introduced a wide range of community placement options for juveniles and children. The 2000 Act, though ed with good intentions, overlooked the inclusion of certain substantive and procedural due process rights.

Juvenile Justice (Care and Protection of Children) (Amendment) Act 2006

JJA 2000 was further amended in 2006 to make it clear that juvenility would be reckoned from the date of commission of offence who have not completed eighteenth year of age thus clarifying ambiguities raised inArnit Das vs State of Bihar [(2000] 5 SCC 488]. The amendment also made it clear that under no circumstances, a juvenile in conflict with law is to be kept in a police lock-up or lodged in a jail. In addition, it stipulated that the Chief Judicial Magistrate or the Chief Metropolitan Magistrate is to review the pendency of cases of the Board at every six months, and child protection units should be set up in states and districts to see to the implementation of the Act.

National Human Rights Commission and Measures for Juvenile Justice System

The National Human Rights Commission (NHRC) is an embodiment of India’s concern for the promotion and protection of human rights. Ever since the NHRC came into existence, it has been concerned about the plight of juveniles who come in conflict with law and children who are in need of care and protection. While the Law Division of the NHRC has been dealing with complaints; the Policy Research, Projects and Programmes Division of the NHRC has been monitoring the implementation of the related Act at the national level as well as studying and recommending effective application of those international instruments that intend to improve the overall functioning of the juvenile justice system in the country. Some instances of NHRC intervention in this regard are given below.

Deaths and Rapes in Homes set up under JJA 1986 In September 1996, the NHRC called for information with regard to incidents of deaths and rapes in Homes set-up under the JJA 1986 within 24 hours of its occurrence by writing to the Chief Secretaries/s of all the States/Union Territories. Later, in February 2002, the NHRC modified its existing instructions on the subject directing that an inquest by a Magistrate be conducted immediately in all cases of deaths in Homes and the report – including comments on possible medical negligence – to be sent to the NHRC. In case of any allegation of rape/unnatural offence on any inmate of the Home, a criminal case should be ed immediately against the offending staff member/officer and a copy of the FIR and the supervision note should invariably be sent to the NHRC. If any foul play is suspected in the magisterial inquest, the post-mortem examination should invariably be done and the post-mortem report sent to the NHRC. In all cases of death of an inmate where the initial inquest by a Magistrate indicates some foul-play, magisterial inquiry should be made mandatory.

Escape of Inmates from Juvenile Homes

Under this broad head, the NHRC dealt with 87 cases, where its attention was drawn to the escape of several inmates from the Beggars’ Homes/Juvenile Homes/Remand Homes situated in different parts of Maharashtra. The Commission pointed out that it was the state government’s duty to take appropriate measures for the safe custody of the inmates. The escape of such a large number of inmates was indicative of the fact that there were either serious infrastructural deficiencies or that security arrangements were faulty. The Commission directed that the state chief secretary should review the functioning of these homes with a view to ensuring better care and avoiding the recurrence of circumstances leading to such incidents (NHRC: Annual Report 1998-1999). Illegal Detention of a Three-year-old Child for Ten Years A former Member of Parliament drew the attention of the NHRC to the plight of a young girl who had witnessed a murder, and was thereafter, detained in police custody for about ten years. The NHRC immediately took note of the letter and called for a report from the

Director General of Police, West Bengal. The report of the Director General of Police stated that on 30 March 1990, the learned Magistrate, Nadia had ordered that one child, who was an eyewitness in a case in which her father had allegedly murdered her mother, should be lodged at Liluaha Home and produced in the court, as and when required. She was last produced in the court on 20 September 1996, wherein she failed to identify the accused. In 1992, she was shifted from Liluaha Home to a Child Care Home (run by an NGO) on the orders of an IAS Officer who was also the ex-officio Director of Social Welfare Department, West Bengal, for proper upkeep, schooling, protection, care and further rehabilitation of the concerned child. However, when the said NGO approached the learned court for approval of transfer, the learned Sessions Judge termed the act as highly irregular and asked for an explanation from the Director of Social Welfare for having transferred the child without prior approval and intimation to the court. Subsequently, she was again sent back to Liluaha Home. Through its memo dated 1 September 1997, the Social Welfare Department once more directed transfer of the child to a government approved/recognized NGO Child Care Home for her education, care and rehabilitation. The report stated that the court had not ed any order so far. The Commission expressed its shock at the inhuman and apathetic manner in which the case was handled by the police and other authorities. It found the very idea of retaining a girl child, who was only three years old at the time of the incident, and considering her competent to be a witness in a court of law, and keeping her waiting for the commencement of the trial for ten long years, as shocking. The appalling lack of interest shown by the authorities in the welfare of the innocent child resulted in depriving her of her normal childhood which could never be regained. No amount of compensation, the Commission felt, would be adequate for the loss she had suffered. However, it recommended to the Government of West Bengal to ensure that the child is suitably rehabilitated and educated in an SOS Children’s Home or sent to a reputable institute run by an NGO in or around the city of Calcutta, till she became a major. The Commission also recommended that a sum of Rs.50,000/- be deposited in her name through a court guardian, the interest of which would be paid to the institute looking after her, and the principal amount to be released to her on her becoming a major to enable her to settle in life. Thereafter, a compliance report from the Government of West Bengal was received in the matter (NHRC: Annual Report 19992000). Other Measures In October 2005, when the Registrar General of the High Court of Patna informed the NHRC that the implementation of the JJA 2000 was extremely poor in Bihar, the NHRC once again directed that the matter of juvenile justice be reviewed expeditiously in each state and union territory. Prior to this, the NHRC in collaboration with an NGO (Socio-Legal Information Centre, New Delhi) had undertaken a study concerning the implementation of the JJA 2000 in 16 states. Its findings revealed that the implementation of the JJA 2000 was poor in all its aspects and needed to be strengthened. The NHRC organized a two-day National Conference on Juvenile Justice System in India on 3 and 4 February 2007 in New Delhi. The Conference made a number of recommendations/suggestions to improve the functioning of the juvenile justice system in

the country. It laid stress on the implementation of the JJA 2006 in both letter and spirit, urging the states/union territories to establish the required infrastructure under the juvenile justice system to ensure that there is zero pendency and that the inquiry is completed within the stipulated period. It also emphasized on providing requisite care to ensure protection, growth and development of children, both in conflict with law and in need of care and protection. Conclusion Undoubtedly, juveniles in conflict with law and children in need of care and protection are defenceless and they need special protection. The state guarantees special treatment to them through statutory law. However, in practice, they often get victimized by legal and procedural entanglements. They are more prone to human rights violations at the hands of state agencies, their own family and community in the form of arbitrary detention, cruel punishments, torture and abuse. In recent years, the problems of children in need of care and protection and those in conflict with law has been receiving considerable attention both of the government, NHRC, social activists as well as the civil society at large. But, the problems encountered by them are of gigantic nature and all that is being done is not sufficient. If the problems faced by them are not taken into , we as a society would be failing in our duties. It is therefore of paramount importance that as a society we must devote full attention to ensure that they are properly cared for so that they have their rightful place in the society. For this to happen, there is need to spread awareness on the problems faced by them as well as build-up the capacities of all those dealing with them. The Integrated Child Protection Scheme (IS) of the Ministry of Women and Child Development, Government of India that was launched during the on-going Eleventh Five Year Plan (2007-2012) is a welcome step in this direction. The IS encomes the existing schemes of (i) Integrated Programme for Street Children, (ii) Shishu Greha Scheme, (iii) Programme for Juvenile Justice, etc. The focus of the IS is on child protection and is the shared responsibility of the government, family, community and civil society.