BLINDJuvenile ALLEY Justice in India HAQ: Centre for Child Rights Blind Alley Juvenile Justice in India Paromita Shastri Enakshi Ganguly Th ukral Centre With inputs from For Child Bharti Ali Rights Vipin Bhatt i © HAQ: Centre for Child Rights ISBN No. 978-81-906548-3-8 Published by: HAQ: Centre for Child Rights 208 Shahpur Jat New Delhi 110049 India Telephone: +91-11-26490136 Telefax: +91-11-26492551 Supported by: CORDAID, Th e Netherlands Photographs: Enakshi Ganguly Th ukral Cover Photograph: Amit Mitra Design and Typesetting: Aspire Design, New Delhi ii Foreword HAQ’s fi rst report on the juvenile justice system in India is based primarily on its own journey over the last three and a half years and experiences in this fi eld. It is also a personal journey that we as individuals have traversed in this period. Several co-travellers joined us and left, each one of them bringing in something new and signifi cant. Th ey include our team members, volunteers and interns. One of them was Ruzbeh N Bharucha, who went on to write ‘my god is a JUVENILE DELINQUENT’, based on what he saw and experienced as a volunteer with HAQ, working with the Juvenile Justice Board. Our co-travellers have also been the children who allowed us into their lives, shared with us their pain and hope, so that we could help them in some way. Parts of our journey were shared by members of the Child Welfare Committees and Juvenile Justice Boards, and the Delhi High Court Committee on Juvenile Justice that was set up sometime after we started work. We were all walking new roads and experimenting. Th is report is also in a way the culmination of a journey that began in 1993, long before we started HAQ, when we were visiting a children’s home in Delhi following reports of the death of a child. In about a year, our permission to visit the home was cancelled and our journey aborted. But we needed to reconnect with the issue and take it forward, which we have done now after 16 years. In 2005, we began with legal aid and support to the children and their families. Th is included fi nding them lawyers as well as preparing them for court. Our experience in the courts and using the laws helped us advocate for changes in laws and policies As part of some of the committees set up by the government to draft laws, policies, rules, programmes and schemes, we too learnt a lot. However, the challenge of delivery of justice lies in implementation. Th is is where this study belongs. It is the culmination of our action research work over the last four years, supported by CORDAID, Th e Netherlands. Since 2005, many changes have taken place in the juvenile justice system in India, more so in Delhi, and many more are unfolding, thanks to the interest and intervention of new actors. Several of these changes happened even as this report was being written. Because we felt the need to include all the new things, the report almost acquired the permanent status of a ‘work-in- progress’, till we decided to say halt. Much more is still left to be done. Th e fate of the children caught helplessly in the juvenile justice system fi rst came to light in 1985 when a case was fi led seeking justice for four boys of 8-14 years belonging to the Pahadiya tribe of the Santhal Parganas, Bihar, who had been under trial for 14 years in connection with a murder committed in 1972. Since then, stories have become common of children being incarcerated in adult jails and, if they are lucky, in remand homes and of the thousands of little victims of abuse and exploitation awaiting justice all over the country, going back and forth in court, unable to leave behind their past and get on with life. Even as we were fi nalising iii this report, Hindustan Times Newspaper reported the case of twelve-year-old Shiv Prasad Yadav, who according to Uttar Pradesh Police is a criminal with a “history”! His story is recorded in chapter 7. Th e fi rst Indian law on juvenile justice was enacted in 1986, giving way to a new one in 2000, which was amended in 2006. In most countries of the world, juvenile justice law deals only with children who have come in confl ict with law, while in India this law addresses both children who are in need of care and protection including victims of crimes and those who have already ‘broken’ the law in some way. However, the thinking on and understanding of juvenile justice across the world is still at a nascent stage and evolving. With rapid changes in society, the nature of off ences committed against and by children also adopts diff erent dimensions, requiring changes in law as well as the understanding of how to deal with it. Caught between the old and the new, justice for children is both delayed and diminished. It is therefore not at all surprising that several concepts and procedures, though identifi ed as important, need much more thinking and fl eshing out. Th is report is yet one more step towards identifying them as challenges that need much greater debate and thinking. Our trainings for police as well as the wider juvenile justice implementing system–members of the Child Welfare Committees and the Juvenile Justice Boards, Public Prosecutors and Probation Offi cers, NGOs, etc have been sources of learning for us. For this study, we have drawn into all these learnings. We have also drawn upon our own experience of engaging with the juvenile justice system in Delhi and elsewhere, our interactions with practitioners at all levels and children, and visits to other states as well as our ongoing work on child traffi cking as part of the Campaign Against Child Traffi cking. While the rest of the world would go sight-seeing, members of HAQ used their spare time to visit juvenile justice institutions! Paromita Shastri, who was commissioned to write this project last year and has since joined the HAQ team, also interviewed the following persons for this study. We thank them for their time and intellectual inputs. Justice Madan B. Lokur, Judge and Chairperson, Juvenile Justice Committee, High Court of Delhi Ms. Dipa Dixit, Member, National Commission for Protection of Child Rights Mr. Sudhir Yadav, Joint Commissioner of Police, Special Police Unit for Women and Children, Delhi Ms. Suman Nalwa, ACP, Special Police Unit for Women and Children, Delhi Dr. Bharti Sharma, former Chairperson, Child Welfare Committee, Delhi Mr. Raaj Mangal Prasad, former Director, Pratidhi and Chairperson, Child Welfare Committee, Delhi Mr. Santosh Shinde, Member, Child Welfare Committee, Mumbai and Child Rights Activist Mr. Sanjay Joshi, Executive Director, Bal Sahyog Ms. Ratna Saxena, former Superintendent, Prayas Observation Home for Boys, Delhi Ms. D. Geetha, Advocate specialising in laws on children, Chennai We hope that this report will be a signifi cant contribution to the ongoing debate and discourse on juvenile justice in India. Enakshi Ganguly Th ukral Bharti Ali Co-Director Co-Director iv Content Prologue 1 A Cry for Justice 3 Th e Rights of a Child 7 Unloved: Th e Child in India 15 Do We Really Care? 25 Blindfolding Justice 37 Who Speaks for Me? 49 Are You with Us? 59 Don’t Just Reform, Innovate 77 Endnote 89 v vi Prologue In late 1972, four boys of the Pahadiya tribe belonging to the Santhal Parganas, Bihar, were arrested in connection with a murder case. Th ey were around 8-14 years of age and, according to the jail wardens, apparently innocent. Th eir ages were put down at 18-24 years during the registration of the case. Th e boys were committed to the session court in July 1974 and the trial was posted for 30 August 1977. But the case was never heard. Eight years later, luck smiled on the Pahadiya boys, Kadra, Chamra, Jame and Jome. On a visit to the jail in the course of her research, civil rights and legal activist Vasudha Dhagamwar chanced upon their case and wrote to the Supreme Court. Th e Supreme Court took up her letter as Public Interest Litigation. Th e case fi nally opened for hearing in January 1981. Th e boys were acquitted a month later, after their entire boyhood was lost in prison where they spent their days doing manual work for the staff . Annoyed with such callous neglect of the boys by the local police and magistrates, Dhagamwar decided to fi ght for compensation. In 1986, the Supreme Court awarded Rs 5000 as interim compensation to each of the boys. Th is was also the year when India’s fi rst Juvenile Justice Act was passed, which defi ned (section 2h) a juvenile as “ a boy who has not attained the age of sixteen years or a girl who has not attained age of eighteen years.” But the fi nal orders for the four Pahadiya boys who were defi nitely juveniles as per the new law, had still not come till 2000, 14 years after. On 15 November 1994, three members of a family in Vasant Vihar area of Dehradun were killed reportedly by their domestic servant, Om Prakash Lakra.1 Th e boy went missing after the incident and was arrested years later from his home in West Bengal. Th e Sessions Judge at Dehradun convicted him and sentenced him to death, a sentence that was confi rmed on 19 September 2001.