When he was 17, Rahul* (name changed) was arrested on various criminal charges and detained at a “place of safety”- the formal name for a facility for children in conflict with the law. Since he was a minor, Rahul’s case came under the Juvenile Justice (JJ) Act 2015. On paper, the goal of this Act is to support the reformation, rehabilitation and reintegration of children in conflict with law (CCL). But despite the Act’s emphasis on rehabilitation, its relatively simple bail provisions and its stated commitment to avoiding institutionalisation of children, it took Rahul five long years to be released on bail. Ironically, he had more support than is available for most detainees like him. Rahul’s journey is a stark illustration of the different ways in which India’s juvenile justice system comprehensively lets down the children who come before it.
According to the JJ Act, a child is entitled to bail except under three specific circumstances – none of which applied in Rahul’s case. The Act also works on the principle of treating “institutionalisation as a measure of last resort”, which means that an effort will be made to keep a child out of any institution. However, in practice, securing bail under the juvenile justice system can be as difficult as in the regular criminal justice systems. This means that children often end up languishing in institutions for years.
In Rahul’s case, the charges against him were trespass and causing the death of a guard. While there was little proof connecting him to the crime, he was apprehended and placed in a place of safety. Since the charges pressed against him were heinous in nature he had to undergo a Preliminary Assessment (PA). This procedure was put in place by the new Juvenile Justice Act of 2015. Under this provision, if a child in the age group of 16-18 years commits a heinous offence, the Juvenile Justice Board (JJB) will conduct a preliminary assessment to find if he or she is fit to be tried as an adult. The JJB’s task is to evaluate whether the child has the mental and physical capacity to understand the consequences of the alleged crime.
The PA process is currently under challenge on the grounds that it fails to take into account the circumstances the child comes from, and his or her capacity to understand the consequences of the act. In Rahul’s case, the JJB made conclusions based on his involuntary confession and physical and mental capacity in general. The JJB also failed to take into account the fact that his father’s demise when he was very young left his mother struggling to provide for him and his siblings on the meagre salary she earned as a manual labourer. Rahul never had access to schooling, he was living on the street, became a drug user and fell in bad company. Despite these circumstances, the JJB transferred Rahul’s case to the adult justice system in 2018. In such cases, although the child is still entitled to bail, the courts are often reluctant to grant it.
For the next five years, Rahul remained in the place of safety- what children in the system often refer to as “bachcha jail”. His case barely progressed, and he received no support from the legal systems that are meant to protect children. For instance, because he had lost contact with his family after his detention, they could not ensure that he was properly represented. The legal aid lawyer provided to him by the government failed to file a single bail application, and did not appeal against the questionable preliminary assessment. Rahul was not even informed about his right to appeal against an unfavourable order. This is a stark indictment of the quality of pro bono representation provided to vulnerable children like Rahul.
In 2023, iProbono was put in touch with Rahul by Yuva Ekta Foundation, an NGO working with young people, and promptly initiated legal representation by filing a bail application on his behalf. After lengthy arguments, an order granting bail was passed on 19 September 2023. However, Rahul’s journey was still not over.
A requirement for an undertrial (in this case child in conflict with the law) to be released on bail is someone to stand surety.) This means they take responsibility for the person who is released on bail. In the absence of family support, there was no one to stand surety for Rahul.
The Juvenile Justice Act 2015 does allow for bail without surety under the supervision of a probation officer, but the court was unwilling to agree to this. Eventually, Puneeta Roy, the Managing Trustee of Yuva Ekta Foundation, who had interacted with Rahul during the course of her work at the place of safety, volunteered to stand surety for him. iProbono’s panel lawyer took the next step of filing the bail bond on 21 September 2023, and Puneeta personally appeared in the Court. She was told that a police verification would be conducted and then she would be called again.
The police verification report took two days, and once again the matter was listed in court. Puneeta appeared again, hoping that this would be her final visit and Rahul would be released. This time the Court had another doubt: where would Rahul stay after his release? The Court refused to allow the release papers to be signed unless there was clarity on this matter. According to the law, in such circumstances, it is the responsibility of the probation officer to care for the child upon their release. However, the Court decided to transfer the burden of finding a place to live to a child who had been isolated from the outside world for five years.
Once again, someone stepped up to take the responsibility. Rahul’s friend, whom he had met in the ‘place of safety’, agreed to help him and convinced his father to let Rahul stay with his family. The Court was informed of this on the next date, at which point yet another condition was laid down – that the person in whose house Rahul would live should appear before the Court and submit an affidavit. Since the man in question was travelling, there was a further delay.
After these additional 21 days of delays, on 11 October 2023, the necessary documents were finally signed, and Rahul was released on bail.
To sum up, it took two NGOs, a pro bono lawyer, a friend’s father, more than 5 years hearings on bail alone, and an additional 21 days of illegal detention after the initial grant of bail before Rahul could leave the child care institution where he was held.
Rahul’s case is not unique. He is merely one of many children in conflict with the law who are languishing in detention for years awaiting trial. The sad reality is that this condition is in complete violation of the principle of institutionalisation as a measure of last resort and the principle of innocence.
Yamina Rizvi – Program Officer, India.