A lifetime of consequences for minors in the justice system

Long delays and low accountability make restorative justice a far reach for children in conflict with the law

Bengaluru: The dimly lit interiors of this room in Madiwala, Bengaluru, make for the very picture of the ordinary. It is in this nondescript, ordinary room that the lives of four children hang in the balance.

Seated at a distance, parents and relatives wait anxiously as lawyers make a case for the children before the Juvenile Justice Board (JJB). After being arrested last year for a heinous crime, it has taken close to 10 months for the case to reach this stage. “According to the Juvenile Justice Act 2016, every case is supposed to be disposed of within four months, with a provision to extend it to six months. It has taken this long to get to the hearing stage itself,” says Babu Reddy, an advocate who frequently represents children in conflict with the law (CCL). To date, he has represented children in 1,000 cases and has an active caseload of 300.

With over 50 witnesses to the crime, he estimates that this particular case will take about five to six years to reach the disposal stage. The children will then be sentenced and sent to a special home, be assigned community service or be placed on probation.

Such delays, though torturous for families and children, are unfortunately routine in the functioning of the juvenile justice system. “There are cases that have taken 10 years to be resolved. At the time of the crime, the accused was 16. At the time of disposal, he was 26,” adds Reddy.

Timely intervention for children in conflict with the law can make all the difference. Reddy is well-acquainted with this fact. Having been through the juvenile justice system and having received education and support from a special home, he has been able to make a living on his terms. “I know how interventions at the right time can reform you,” he says.

The Juvenile Justice Act (JJA) is a seminal piece of legislation in protecting the rights and ensuring the safety, security, dignity and well-being of children. The Act is instrumental in providing care and reforming minors who are in conflict with the law, as India grapples with poverty, unstable homes, substance abuse and familial violence — all factors that contribute to involvement in criminal activity.

In its design and at its core, the law places emphasis on the rehabilitation and re-integration of minors in conflict with the law into mainstream society.

In its implementation, lawyers, parents, experts and activists point out that the legislation has scarcely been able to achieve its purposes. In many cases, non-compliance has led to further criminalisation of children in conflict with the law.

For instance, to prevent stigmatisation and to protect the dignity of the child, the JJA mandates that FIRs are registered only when juveniles are apprehended for heinous crimes (having prescribed sentences of seven years or more). In actuality, many children come under the purview of the criminal justice system even though they have been arrested for petty crimes.

A cursory look at the Crime in India Report 2022 by the National Crime Records Bureau (NCRB) reveals that 865 cases were registered for rash driving (with a maximum sentence of six months), 202 for obscene acts songs and dance in public places (three months) and 220 for criminal trespass (three months).

“In contravention to the JJA, many police stations continue to register FIRs against minors for petty crimes. This increases children’s exposure to the police, involves extensive judicial consideration and can affect the mind of the child,” explains Dr Antony Sebastian, former chairperson of the Karnataka State Commission for Protection of Child Rights. Sebastian was a member of the central advisory board of the Ministry of Women and Child Development and has served on the Juvenile Justice Board for eight years.

In the national capital, the disposal rates of even petty offences are abysmal. In 2021, the Delhi Commission for Protection of Child Rights said before the Delhi High Court that about 1,903 cases of petty crimes were pending before six Juvenile Justice Boards in the city.

The high court terminated all petty offence cases involving juveniles which were pending for more than a year. It went on to hold the Delhi police accountable for not maintaining records of 400 juveniles who were not handed over to their parents. The court observed that for cases involving petty crimes, children may not be required to be sent to observation homes at all.

Though observation homes were instituted for the temporary rehabilitation of children accused of violating the law while an inquiry is ongoing, due to delays in processing cases, children may spend several months or even years here.

“Parents are not able to access the proceedings due to lack of knowledge, lack of proper data, prolonged period of preparing case reports and delay in filing chargesheets. This results in children spending longer time in observation homes,” says Kumar Nilendu, the general manager of Child Rights and You (CRY), an NGO based in Mumbai.

The lack of help desks at Juvenile Justice Boards also makes accessing legal aid difficult, he adds.

Due to these reasons, it is rare for a case in the juvenile justice system to be disposed of within a period of six months, says Babu Reddy. “A less serious case can take anywhere between one to three years to be disposed of. Heinous crimes take even longer, dragging on to six, seven years from when the child is arrested,” he explains.

Juvenile Justice Boards are also overburdened with tasks. Out of 766 districts in the country, only 701 have established JJBs, increasing caseloads. “In most states, the Principal Magistrates have multiple charges, juvenile justice being one of them. They are unable to devote the time required to carry out all the functions enlisted under the Act and the Rules. Not only are they required to expedite the proceedings, they are also expected to visit jails to see if any juvenile is languishing in a jail meant for adults,” adds Bharati Ali, a child rights activist based in Delhi.

There is so much to do. Unfortunately, the Boards, comprising three members, seldom work in coordination, Ali explains.

Flawed evaluations

In the case involving five children, the preliminary assessment, detailing the child’s mental and physical capacity to commit the offence, understanding the consequences of the offence, and the circumstances in which the offence was allegedly committed, was not filed in time.

Anand Krishna, an advocate who has represented juveniles in over 100 cases, explains that broken links between observation homes, psychologists who evaluate mental capacity to commit offence and police may also bear an impact on the disposal rates of cases within the juvenile justice system. “Even during social background checks, neighbours, and peers may avoid probation officers due to stigma and fear, making the inquiry process slower,” he adds.

Such social and psychological investigations are mandated by the JJA when children are alleged to be involved in heinous crimes, after an amendment in 2015. However, they violate the foundational principles of juvenile justice, say experts.

“No such assessments can take place at a time when even the police investigation is incomplete. Besides, psychological assessments are intrusive and no child is informed about the possible consequences of such assessments. Nor is their consent taken for such intrusive assessments. This too violates the principles of fair proceedings and natural justice,” says Ali.

These assessments may work to create a bias against the child during trial because they raise the presumption of guilt when a child is transferred to be tried as an adult. Even before trial, a child is presumed guilty, she adds.

The question of circumstance

Crucial also to the judicial process is understanding the socio-economic, educational and psychological state of the minor. The Act directs probationary officers to investigate the material circumstances of the child — including academic performance, interaction with peers and behaviour.

A 2016 study by NGO Butterflies examined what risk factors may contribute to a propensity towards illegal activities. The study examined the socio-economic backgrounds of 605 children in conflict with the law, in observation and special homes, across Delhi, Odisha, Tamil Nadu and Kerala. Approximately 52.9 per cent of the children interviewed had either never attended school or only had primary education. A large proportion of children (55.6 per cent) belonged to poor families, with an annual income capped at Rs 25,000.

NCRB data from 2022 suggests that such patterns persist, with 8 per cent of those apprehended being reported illiterate, 26 per cent having received education until primary level and 58 per cent having attended school at levels above primary to matriculation.

While such information provides important context to the crime, probationary officers, who are tasked to draw out these details, are not trained or do not give the exercise the importance it deserves, explains Sebastian.

“In my experience on the board, many probation officers were not proactive in investigating the material circumstances of the child. In fact, sometimes, the content of the reports would be the same, only the names would be changed,” he says.

As institutional care is the last resort, many children return to their socio-economic settings on probation, bail or having been tasked with community service. While on probation, rehabilitation is not a priority.

“Children are forced into a probation system designed for adults. Often, they are provided with the same probation officers who may not have the sensitivity to deal with children or have the will to connect them to counselling services or persuade them to continue education or to enrol in vocational courses,” explains Anant Kumar Asthana, a child rights lawyer and activist based in New Delhi, India. He is also a consultant on legal aid to children and compensation to child victims for the Delhi State Legal Services Authority.

Institutional care

Asthana recounts a case of a 14-year-old, picked up by police when he was 13, asked to speak up before a Juvenile Justice Board recently. The boy, residing at an observation home, was asked if his schooling was ongoing. “He said no. The JJB directed the observation home to enrol him under the National Institute of Open Schooling (NIOS) to continue his education,” he says.

However, Asthana presents a notable question — why was the child not provided means to continue his education in the first place? “Everybody is aware that a child under 14 must be enrolled in school. Under RTE Act, every child below 14 years of age has the right to education, but he was being denied this right in a government-run observation home itself ,” he adds.

Although observation homes (where CCLs are housed during trial) and special homes, (where children serve their sentences after conviction) are government-run, these institutions are crippled by staff inadequacies and infrastructural issues. As a result, even the most basic rights of children cannot be ensured.

For instance, a 2018 study by the National Commission for the Protection of Child Rights found that education was not a priority in observation homes. The study covered 50 observation homes with a total of 2,691 children. “A whopping majority of 42 homes did not have a separate budget or funds earmarked for the education of children living in these homes. The majority of homes are being run by the government,” the report said.

“Some children are enrolled under NIOS and are allowed to sit for exams. However, the vast majority are dropouts and require bridge courses. There is little facility for that in state-run juvenile homes,” says Ali.

Furthermore, the training programmes present in state-run homes are inconsistent and often incongruent with the job market today. “Some homes continue to offer irrelevant short-term courses like hair-styling and mobile repairing without paying heed to employment opportunities, there is a need to reformulate these,” she adds.

More recently, a 2024 report spearheaded by retired Justice K Chandru found the prevailing conditions of state-run homes for children in conflict with the law to be grossly inadequate. As per the report, children are consistently exposed to violence within the homes, endure unsanitary living conditions and cramped confinement and often lack adequate nutrition. Additionally, the report highlights the concerning absence of consistent access to counsellors.

Further, to provide adequate care to children in conflict with law, trained human resources in adequate numbers is paramount. “Firstly, we do not have enough observation homes in Assam. Secondly, recruitment is often delayed and so the standards of care and the assessment of a child’s needs is highly inadequate,” says Miguel Das, a child rights defender based in Guwahati.

Ultimately, contrary to rehabilitation, juvenile homes can lead to further criminalisation. A 2023 study by Madras University found that out of 173 respondents interviewed from Puzhal prison, 77 were placed previously in observation or special homes.

Reform

Timely and holistic intervention has proved effective in breaking the cycle. A case in point is Karnataka’s lone special home, Empowerment of Children and Human Rights Organisation (ECHO), situated in Summanahalli, Bengaluru. Today, it stands as one of the bright spots in the juvenile justice system. Functioning for more than a decade, within the annals of the home are many CCLs who have steady jobs, incomes and stable families. Some former inmates are in the IT sector, one is a chartered accountant and many have completed their PUC and undergraduate studies.

With a staff of 15 members and an occupancy of 30-35 CCLs, the home maps the aspirations of the child before the arrest and creates individualised care plans — mandated by the JJA. “We encourage children who have academic goals to pursue them. Those who are more job-oriented are redirected towards vocational courses like mushroom farming, poultry farming and cooking. We have these facilities in the premises and the children can try them out,” explains Biju Thomas, superintendent at the home.

While there are similar examples of good practices that require replication, at large, the juvenile justice system is in shambles. Inordinate delays in legal proceedings and poorly managed institutions are among the major causes. “The system needs to learn from itself. There is a need for accountability, against police who file FIRs in petty offences, for case workers and institutional administrators who fail to adequately maintain standards. There is no institutional memory of violations and system for fixing accountability within the system, that is the biggest problem,” says Asthana.