Imprisonment of Minors in Indian Correctional Facilities

A recent study conducted by the London-based organization iProBono has unveiled a troubling trend in India where children are unlawfully detained.

The study found that from January 1, 2016, to December 31, 2021, approximately 9,681 children were wrongly held in adult facilities.

This equates to an average of over 1,600 children being moved out of prisons each year. The study's findings are based on a combination of research data and government Right to Information (RTI) applications.

Neha, a Child in Conflict with the Law (CCL), shared her harrowing experience, expressing how she felt as though she had lost her childhood during her time behind bars.

Accused by her father of murdering her mother at the age of 17, Neha, legally classified as a minor under the Juvenile Justice (JJ) Act, endured years in an adult jail before finally being granted bail.

The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015) mandates that individuals under the age of 18, who are accused or convicted of an offense, must be placed in observation homes, places of safety, special homes, or similar facilities. It prohibits the placement of children in adult prisons, emphasizing the importance of protecting them from potential physical and mental harm while promoting rehabilitation and reform. While there are concerns about the effectiveness of the childcare system in achieving rehabilitation, it offers more opportunities for restorative measures compared to the adult prison system.

In the Sheela Barse case , the

Supreme Court observed:

“It is an elementary requirement of any civilised society and it had been so provided in various statutes concerning children that children should not be confined to jail because incarceration in jail has a dehumanising effect, and it is harmful to the growth and development of children”

NALSA launched a national campaign titled “Restoring the Youth”, at the inauguration of which the Executive Chairperson of NALSA, Justice Sanjiv Khanna, stated unequivocally that the aim is to have “zero error cases”.

An error case would be where a CCL is incarcerated without the authorities or NALSA being aware, and where the necessary steps are not taken to ensure that if they were a child on the date of the offence, they receive the full protection of the law

UTTAR PRADESH

71% response, 2914 children transferred, 70 JJB visits

All 5 central prisons and 42 out of 61 district prisons responded to the RTI application. District Prison Gorakhpur had the highest number of children (294) transferred in six years, despite there being no JJB visits there. Among the five central jails, only Central Prison Naini transferred children – 203 across the period, and 3 JJB visits were made there.

In District Prison Badaun, 68 CCLs were identified by the JJB across six years, but n0 transfers were made. Of the 51 district prisons that responded, visits were made in only 9 prisons based on the data received. In the rest, no JJB visits were made and no children were transferred. In Mainpuri District Prison, monthly visits were reportedly conducted by the JJB, a sign of good practice. However, no children were transferred from here.

MADHYA PRADESH & West Bengal provided no data despite us going up to a second

appeal under the RTI Act.

Summary:

• The data we received indicates that

at least 9681 children had been wrongly incarcerated in adult prisons across the country between 1 January 2016 and 31 December 2021. This means an average of over 1600 children were transferred out of prisons across the country, every year.

• This number is despite an overall response rate of exactly 50 per cent, i.e. responses from 285 district

and central prisons out of a total of 570. This also does not include the 749 other prisons from which we

did not request data, including sub- jails, women’s prisons, open prisons, special prisons, borstal schools, and other prisons. It also, as previously mentioned, only includes those who were successfully identified and

transferred, not all those who were juveniles at the time of their alleged offence, including those identified by

prison visitors, families, or through self-identification.

• There is a glaring absence of data from two big states – Madhya Pradesh and West Bengal. Both states failed to respond to the RTI applications despite us going up to a second appeal under the RTI Act with the respective State Information Commissions. Nagaland and Ladakh failed similarly despite us going up to a first appeal under the RTI Act. In total, these two states and two union territories account for data missing from 85 district and central prisons. Coupled with the III.
  

• WHERE DO WE GO FROM HERE? Data received from Jail no. 5 in Central Prison Tihar in Delhi, and from District Prison,Jhunjhunu, also provide illustrative indication of how long children could spend in prison before being transferred. For Jail no. 5 in Delhi across six years, out of the total of 730 children transferred, only 22 children were there for one week or less. 93 per cent were there for less than three months, 26 children from 3-6 months, 14 from 6-12 months, three childrenfor over one year, and one child who only got transferred in his third year in prison.

• In District Prison Jhunjhunu, out of the 16 children transferred, only three were there for on week or less. 10 were there for less than three months, four between 3-6 months, and two between 6 and 12 months. overall response rate of 50 per cent, this underscores the fact that there are major lapses by state prison departments in fulfilling their voluntary disclosure obligations under the RTI Act.

• We went up to a first appeal under the RTI Act for Gujarat, Haryana and Tamil Nadu and second appeal in Uttar Pradesh and Rajasthan.

Recommendation:

Establishing state accountability through compensation for wrongful incarceration is a potent method to hold authorities responsible for their lapses. Various schemes and legal judgments advocate for monetary restitution from the state in cases of fundamental rights violations. Such demands, coupled with advocacy efforts, exert pressure on the state to acknowledge its deficiencies and enact reforms. For instance, in 2004, Justices Dalveer Bhandari and DY Chandrachud of the Bombay High Court awarded Rs. 1 lakh in compensation to a boy wrongly imprisoned for nearly three years, with the Borivali Police Station and Mumbai Central Prison collectively ordered to pay.

Similarly, in 2011, Justices Ravindra Bhat and Gita Mittal of the Delhi High Court ordered Rs. 5 lakhs compensation to a Child in Conflict with the Law (CCL) wrongly incarcerated at 14 or 15 years old for 8 years, despite the Juvenile Justice (JJ) law stipulating a maximum punishment of three years in a special home for juveniles.

This bench also halted proceedings against him and directed the department to dismiss all criminal charges. In another instance in 2018, an advocate approached the NHRC seeking Rs. 28 lakhs compensation for an individual wrongly imprisoned as a juvenile for 14 years in Odisha. Additionally, in cases of deliberate misconduct by officials, disciplinary actions should be pursued.

Furthermore, it's imperative for state child protection bodies to monitor and provide legal education, integrating children's rights into school curriculums to empower them with knowledge and foster a culture of sensitivity.

• Disseminating information through posters in prisons, police stations, and courtrooms about laws prohibiting the imprisonment of children can also prevent wrongful admissions.

• Moreover, medical examinations in prisons by Chief Medical Officers can help identify juveniles, and the establishment of observation homes and places of safety across the country is crucial to prevent the incarceration of children.

For detailed information please read the Report:

Source:

INCARCERATION OF CHILDRENI N PRISONS

IN INDIA

By I Pro Bono

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