1

Justice Vineet Saran Chairman Committee dealing with Juvenile Homes Pursuant to the committee's resolution dated 10.2.2011 wherein a decision was taken for committee members to visit different juvenile homes I visited the juvenile homes at Faizabad and Gorakhpur on 30.6.2011, the Juvenile Justice Board at Sultanpur and the District Jail, Sultanpur where a barrack had been created for lodging juveniles in conflict with the law on 2.7.2011. Justice Surendra Singh also voluntarily accompanied me on these visits.

On 30.6.11 after a preliminary meeting at the Circuit House Faizabad with the District Judge, Sri Dina Nath II, the CJM, Sri Kushwaha, J.M. Sri Abhay Prakash Narain (Judge Juvenile Justice Board), the A.P.O. and City S.P. and District Magistrate Sri A.P. Agarwal, we inspected the Observation Home which is situated in Ayodhya. Because of my decision to visit the Observation Home the D.M., and the D.J. Faizabad also visited the Observation Home for the first time. 65 children from districts Faizabad, Sultanpur and Barabanki were lodged in this Observation Home. Out of these there were 35 juveniles were from Sultanpur. The space was so inadequate that the children appeared packed tightly together in front of the T.V. like fish in a tin of sardines. Apart from that there was only one small court yard for the children to move about, which was too small to play in. When we asked the children to retire to their places during the inspection, the children hardly moved from the spot as there was no place for them to go. The three toilets were also giving out a very foul smell, as they had no ventilation or exhaust fan, though it may have been cleaned somewhat as information about the visit had been sent in advance. Hence the mattresses on which the children slept had even been tidied. We were informed that as the solitary Class IV peon was on leave the children had to cook their own food. There were two dormitories on the 2nd floor where all the children had to sleep huddled together on the mattresses placed there. The space was further reduced as the roof was leaking. We think that there could not have been more than 3 or 4 sq. ft. space per child, though Rule 40(5)(a) of the Juvenile Justice (Care and Protection of Children) Rules,

2 2007 (hereafter the Rules) provides for a minimum space of 40 foot per child in the dormitory. The D.M also agreed to my suggestion to look for a better accommodation for the children and to submit a report about the problems of such juveniles, where action would be needed at the State level.

In the Gorakhpur Home which we visited along with the District Judge, Sri Shashi Prakash, the CJM, Arvind Mishra, the JM (JJ Act), Arvind Yadav, and the non-official members of the Board we found 96 children housed there. 47 of these juveniles were from Gorakhpur. Most of the children were watching T.V. We also found some relatively grown up juveniles peering at us from a separate room, who did not even care to acknowledge us. They appeared to be the dadas of the place. As the home, which had better accommodation than Ayodhya, and better newly constructed toilets by an NGO, Sahara Foundation, however the problems of access to this place, because of the heavy traffic and the lack of space for the juveniles for play and physical exercise remained. In Sultanpur blissfully unaware of the provisions of the Act and Rules not to keep juveniles in Jail, the D.J. had got a barrack created for such children in the District Jail. But it appeared to be a well-intentioned step, because of the inhumanly crowded conditions in the Ayodhya home, where the children were housed. Here the 17 juveniles present were housed in a substantially larger barrack. There was even space for the juveniles to play in the court yard when the barrack was unlocked. There was a TV set in the barrack and a teacher used to come and teach there. He also immediately agreed to our suggestion to close down this barrack. All the district Judges, and JMs concerned agreed to act more proactively in these matters, and to see that bails are granted at least to juveniles who are facing inquiries in minor offences. They also agreed to act more proactively to take steps for tracing out the addresses of children who are involved in petty offences but are unable to disclose their home addresses, and to some how contact their parents or guardians for restoring them to their custody.

Problems:

1.Children lodged in observation homes for petty offences for long

3 periods of time. Not only were children who have been involved in major cases under sections 302, 304, 376, 307, 304 B or 377 IPC etc. lodged in the Observation Home, but there were also a large number of children who were incarcerated in the homes for petty offences under sections 379/411 for stealing mobiles or a water taps (toti) etc., ordinary marpit, molestation or trespass or criminal intimidation, or S.C./S.T. Act cases, and petty cases under the Railways Act. Thus one child Anil was in the Gorakhpur home since 4.7.09 for an offence u/s 145 of the Railways Act (nuisance and drunkenness, punishable with a maximum sentence of 6 months, even for adults). The ostensible reason, his address at Jhansi had not been traced. Rule 11(7) even restricts powers of apprehension of the juvenile by the concerned police officer if the offence is normally punishable with less than 7 years imprisonment. Rules 13(1)(a) and 13(2)(d) also provide that such incidents of trivial offences or where the allegations are unfounded the cases maybe disposed of even on the first day after a summary inquiry.

2.Problems of over-crowding in the Observation homes. Due to acute over-crowding in some homes (such as in Faizabad) there was no age-wise segregation of children in violation of the mandate of section 8(4) of the Juvenile Justice (Care and Protection) Act, 2000 (hereafter the JJ Act.), or Rule 12(2). In fact we found much more living room in the wrongly set up jail barrack for children in Sultanpur compared to the absence of even breathing space in the Observation Homes in Faizabad and to a lesser extent at Gorakhpur and the absence of any space to play an outdoor game. The routine mentioned in Rule 43 for a child to lead a regulated life, maintain personal hygiene, engage in physical exercise, yoga, educational classes, vocational training, organized recreation and games, moral education, prayer and community singing did not seem possible in this over-crowded setting. The only activity for the juvenile seemed to be to watch T.V. or to cook their own food, in the absence of Class IV staff. There seems to be only routine compliance by the State government with the words and spirit of the JJ Act and Rules, hence the shortage of homes and funds etc. 3.Arrangements for education non-functional So far as education was concerned in both the Gorakhpur and Ayodhya

4 homes the two teachers provided by the BSA were on leave due to summer vacations, and there was only a Nursery teacher provided by the Women and Child department. For a juvenile who spends less than 4 months in the home, it would mean a break for at least two months from his studies. At the ages of 10 plus the Nursery teacher could not have been particularly useful.

4.Reasons for long stays in the Home Children remain incarcerated in the homes because first the medical inquiry is delayed as the apprehending police officer (in the absence of appointment of special police units and designated police officers for child related matters mandated under section 63) fails to inform the parent to appear before the board in violation of section 13(a) of the JJ Act, in cases where the juvenile is apprehended from a place distant from his home and consequently in the parent's absence no application for bail is immediately made, nor is anyone available to stand surety for the child, in the event of his release. Again in the absence of pairvi by the concerned police officer, teachers from the concerned educational institutions do not appear on the dates fixed which hold up the age inquiry which is necessary for disposal of the bail application under section 12 of the JJ Act. As stated in section 49 of the JJ Act evidence has to be taken in the age related inquiry, which cannot be disposed of on affidavits. In the cases where medical examination for ascertaining the age is permissible under Rule 12(3)(b), the delay by the CMO's office in sending the age related report further delays proceedings, even though under Rule 12(1), age has to be determined within 30 date of submission of the bail application. Because of the delay in consideration of bail applications due to the need for inquiry relating to age, and for obtaining the report of the probation officer we learnt of a case in Faizabad, where the lawyer father of a minor child who had committed an offence under section 354 IPC was pleading with the CJM to treat the child as major, as then his child would immediately get bail under the bailable section, but he would need to remain in the home for a long time, before his bail could be considered by the Juvenile Board. Because of the long drawn procedure for hearing bails even in minor cases, some Railway Magistrates before whom a child travelling ticketless or who has committed some other petty Railway offences, is produced, treat the

5 child as major to prevent the child from being incarcerated for a long time in the home, if he were described as minor. In Railway offences which are usually committed by juveniles travelling without parents or who have run away from their natal homes, in the absence of parents or non-application for bail, they have to remain in an observation home for long periods of time.

5.Probation officer not contacted by the police and delays in submitting the social investigation report Where the Probation officer is not immediately contacted by the police officer who apprehends the juvenile to obtain information regarding the juvenile's antecedents and material circumstances under section 13(b) of the Act or the laxity of the Probation officer in sending the report also cause delay in consideration of the bail application and the eventual disposal of the inquiry, even though the proviso to section 14(1) of the JJ Act and Rule 13(6) mandates concluding the inquiry in 4 months after the first summary inquiry. This may be extended by two months after giving reasons in exceptional circumstances. Further Rule 13(7) provides that proceedings shall terminate after 4 to 6 months, except in cases of grave nature. Despite these legal restrictions we found that some children had been in jail for long periods of time from 9 months to two years even for petty offences, and even the inquiries on merits, (and sometimes even the initial age related inquiries) were pending.

6.Voluntary organizations absent in smaller towns Although in Gorakhpur, one or two voluntary organizations were associated with the home, in smaller places such as Ayodhya and Sultanpur there were usually no reliable voluntary organizations who could have run the observation or special homes (possible under ss. 8(1) and 9(1) of the Act, as the State was pleading difficulties in opening such homes in all districts. The voluntary organization could also furnish the social investigation report [vide S. 15(2)], giving some relief to the Probation officer, who is entrusted with multifarious duties.

7.Only one special home for juveniles found to have committed an offence As there is only a single Special Home in Etawah in the whole State, for

6 Juveniles who have been found involved in the commission of the offence in the inquiry, there appears to be inadequate compliance of Section 9 of the JJ Act which envisages Shelter homes in each or a group of districts for convicted juveniles.

8.Period of earlier stay in jail or another observation home, not set off We also came across cases where the juvenile has spent more than 3 years in the Home or earlier in Jail, or in another Observation Home because the earlier period has not been set off even though section 15(1)(g) restricts the stay of a juvenile in the home for a maximum period of 3 years.

9.Releases delayed because addresses of some juveniles missing Some children, especially those who were involved in railway offences, such as ticketless travel etc., who may have drifted from their homes could not disclose their addresses and consequently they were staying in the homes for long periods of time with little hope of being released and restored to their parents.

10.Insensitivity of lawyers and absence of legal aid There is an insensitive approach on part of lawyers. Thus the Gorakhpur JM Sri Arvind Yadav informed me that when a juvenile who apparently looked like a minor and was only involved in a petty offence under sections 323 and 325 IPC etc. was produced before him, he suggested to the lawyer that the juvenile may again appear on a subsequent date with or without interim bail, so that in the meanwhile he could obtain necessary information to determine the child's age. But the lawyer was insisting that the child be sent to the Observation Home, possibly to enhance his fee. The legal aid provisions in Section 14 are not being utilized. Especially painful is the case of daily wage earning parents, such as rickshaw pullers or other daily workers, who after they reach the board, on one date, are unable to come on future dates because of the harrassment by lawyers and the long drawn procedure for the age inquiry or for the regular inquiry, and the need for the Probation

officer's social investigation report etc. forcing the child to remain in the Observation home for long periods, (against the mandate of the law) as

7 their daily wage earning is necessary for the survival of the rest of the family.

11.Board looks like Court-not child friendly In Gorakhpur and Sultanpur the JJ Board was located in the Court and Collectorate, and the Magistrate sat on a child unfriendly place on a raised platform in violation of Rules 9(1) and 9(2).

12.No proximity of board to home The proximity rule requiring the sittings to be either at the Observation Homes or in proximity thereto in rule 9(1) was violated in each case, because the Observation Home in Faizabad was located at Ayodhya, 8 or 9 kms away. In Gorakhpur it was housed in a trust building near ghantaghar which was such a crowded locality that it was virtually impossible for the Magistrate's vehicle to reach it in the day time. We also had to wait till 9 p.m. to visit the home when the traffic was reduced. For the other districts, Deoria, Mahrajganj, Kushinagar who were served by the Observation Home in Gorakhpur and Sultanpur, Barabanki and Ambedkar Nagar who were served by the Faizabad Observation Home, the proximity principal is automatically violated. If the concerned Magistrate either sits or frequently visits the Home he would be automatically aware of the kind of cases for which the juveniles are lodged in the Observation home and the problems they face.

13.Children forced to cook their food and shortage of staff We found that both in Faizabad (Ayodhya Observation Home) and in Gorakhpur the children were forced to cook their own food. This was a fry cry from Rule 44 which speaks of providing 4 nutritious meals with special meals on holidays to the children. There was no cook or Class IV worker in the Faizabad home and short time workers who came in the morning and evening in the Gorakhpur home. Thus there was severe under staffing in violation of the staffing pattern mentioned in Rules 68(3) and 68(9).

14.Inadequate living expense payments of Rs. 40 per day for inmate The payment of Rs. 1200 per month per child (or Rs. 40 per day) was

8 clearly inadequate for meeting even the food needs of the juveniles looking to the inflationary conditions, and certainly inadequate to meet the minimum nutritional standards mentioned in Schedule II (Rule 44) of the JJ Rules. 15.Absence of Child Protection Units, Inspecting Committees and Advisory Boards The State and district level Child Protection Units mandated under section 62 A consisting of officers and employees of the State government, and the Inspection Committee consisting of State representatives and voluntary organizations under section 35, and State, district and City Advisory Boards envisaged under section 62 for advising the government on monitoring the homes and for mobilizing resources for running homes and for the education, training and rehabilitation of children and juveniles, and co-ordinating with official and voluntary agencies have also not been set up, hence there is no monitoring of the running of the homes.

16.Problems faced by Judicial Magistrates and poor infrastructure of the Boards The Senior Judicial Magistrates with their excess load of cases, which include miscellaneous civil work, bails in normal cases where same day orders have been passed by the High Court and the need to meet their quota, which is not available in JJ Act cases are unable to give 5 hours every working day for the JJ Act matters as required under Rule 9(3). Nor are they able to supervise the functioning of the Homes and other matters as required under Rules 10(c), 10(d) and 10(e). They also made complaints about the absence of lighting (Faizabad) and other lack of infrastructure, such as toilets (Sultanpur) near the board, and inadequate manpower support which adversely affects their

performance. Also there does not appear to be any effective programme of the JTRI to give special training to the Magistrates and the board members on the provisions of the JJ Act and Rules, much less is the requirement under Rule 5(3)(ii) to train them in Child Psychology and child welfare met. Looking to the small period of detention, if any, for minor and major offences contemplated under section 15, witnesses are not interested in giving evidence. There is also absence of police pairokars to ensure that witnesses appear. Thus there were a total of

9 1065 regular inquiries and 33 age related inquiries pending in Gorakhpur. In Sultanpur there were 425 inquiries and 45 age related inquiries were pending. In Faizabad there were 570 pending inquiries.

17.Non-official board members not getting statutory allowance There is non-cooperation by other non-official board members who are not getting the minimum allowance of Rs. 500 per sitting earmarked under Rule 8. 18.Mandatory bail in grave non-bailable offences negative feature A negative feature is the provision for mandatory bails in all nonbailable offences under s. 12 of the JJ Act, with the exception that the release may bring them in contact with known criminal or in immoral company, or if it defeats the ends of justice. Thus in many grave cases offences of rape and murder, or where juveniles over 16 years in age commit repeated crimes as members of gangs, they manage to secure bail in view of this provision. Once such a juvenile is released on bail, the inquiries against him usually does not proceed, as the complainant loses interest owing to the small penalty prescribed if the juvenile is found to have committed the offence, and there is no police pairokar for producing witnesses before the board, consequently the juvenile crosses the age of 20 or 21 years, and escapes any punishment whatsoever, and he has not even to spend the 3 year maximum period for which he could be sent to a special home under section 15(g). This provokes an angry societal backlash against the child himself, or other teen aged children who may be innocent, who may face counter-violence from society. It should be remembered that section 82 of the penal code gives complete immunity from a crime, and a child is presumed as devoid of mens rea only when he is under 7. Under s. 83 IPC upto 12 years it will need to be determined if the child is of such immature understanding that he does not understand the nature and consequences of his act. After this age there is no question of presuming absence of mens rea when the delinquent commits a crime.

19.No 'places of safety' established by State government for grave offences The proviso to s. 16(1) speaks of the State government having 'places of

10 safety' for keeping juveniles who are over 16 and are involved in a very serious offence. But in U.P. where there is only one special home for the convicted juvenile, there is no question of there being any 'place of safety' for juveniles who commit serious offences. Also once the place of safety is created by the State government it needs to be pondered whether it could authorize detaining the juvenile till the age limit of 21 years, if he commits the grave offence when he is just under 18 years, or whether it would be legal to keep the juvenile in a barrack in the jail for 18 to 21 year olds, once he crosses 18, subject to the maximum period of 3 years.

20.Rule 11(7) -No power of arrest in grave cases punishable with less than 7 years unreasonable Rule 11(7) states that a police officer or a juvenile welfare officer can only apprehend a juvenile if the offence carries a sentence of over 7 years. This non-obstante clause would therefore exclude powers of apprehension even in those cases under sections 379/411 IPC where the juvenile has been found involved in repeated cases of auto-lifting with a gang of auto-lifters, or where he is shown involved in thefts where sums as high as 5 lakhs may have been recovered from the juvenile or other gang members. (We did come across such a case in the Ayodhya home).

21.Exclusionary principal for age determination under Rule 12 unreasonable Rule 12 provides for an exclusionary principal for determining age of the juvenile. Thus only in the absence of a matriculation certificate, can evidence be led on a certificate from the school first attended, and in the absence of both the above, on a birth certificate issued by the municipal authority or panchayat. Only in the absence of all the three contingencies can medical evidence of age be taken. Section 49(2) makes the age determination by the competent authority the deemed true age of the applicant which cannot be challenged even where it is shown that the the earlier age given was wrong. Thus if a hardened criminal who is major concealing that he has earlier written the matriculation exam. again writes it, showing his age as minor on the date of incident, it will have to be accepted. Likewise if a person corruptly obtain a false age certificate from the school first attended or from the panchayat or municipal

11 authority, it cannot be questioned. The rule also excludes cross-checking by leading other kinds of evidence (say medical evidence) where the matriculation certificate or the certificate from the first school are produced.

Main Suggestions: a) Serious steps be immediately taken by the Principal Magistrates of the Juvenile Boards to release the juveniles in the observation homes who are wanted in offences carrying less than 7 years imprisonment, or other minor offences. b) Magistrates could consider releasing the Juvenile on interim bail when a juvenile who apparently looks a minor (as mentioned in s.12) and is wanted in a petty case is produced before the Magistrate. As observed by this Court in Sheoraj @ Chuttan v State of U.P. & ors., 2009(65) ACC 781, and the Apex Court in Lal Kamlendra Pratap Singh v State of U.P., (2009) 4 SCC 437 and in the Full Bench decision of this Court in Amrawati v State of U.P., 2005 Cri.L.J. 755, such a juvenile may be granted interim bail, pending his age related or regular inquiry, which may require evidence of the teachers of the institution he has first attended or the Probation Officer's social investigation report, about the background of the juvenile, which usually take a long time to procure. c) The government must take immediate steps for increasing the number of Observation and Special homes, and the endeavour should be to have homes in all the districts. In U.P. there are only 18 Observation Homes for boys and one Special Home for juveniles who are found to have committed offences . d) Increasing the amount of allowance per child, from Rs 1200 per month, to an amount sufficient to procure the essential foodstuffs and other items mentioned in the Rules to which a juvenile is entitled. e) Have the photographs of the juveniles whose addresses are not known or whose parents cannot be contacted put on the Police or voluntary organization (such as Don Boscoe's- Home link) Missing and Found Children's web site. The Photograph of the child should also be published in the news papers and shown on Doordarshan after obtaining permission from the competent authority under the proviso to s. 21(1) of the Act. The child should be shifted to an observation home near his home district. The police at the place of detention and the local police

12 and NGOs such as Childline should take effective steps for contacting the parents with photographs and also for taking the juvenile home if his parent is unable to visit the Observation Home for taking back his child. Superior police officers and officers of the Women and Child Development secretariat (or the State level Child Protection Units) be also involved for coordinating this inter-district (or inter-state) effort. f) Special Juvenile Police Unit with officers trained to sensitively handle juveniles be set up in all districts and juvenile or child welfare officers be appointed in the police stations as envisaged in section 63(2) and appropriately trained (s. 63(1), and the Special juvenile police units of such officers be set up in each district as provided in s. 63(3). Apart from producing the juvenile before the board and taking him to the Observation home, they could also ensure appearance of witnesses on the dates concerned for the age and regular inquiry against the juvenile, so that it can be expedited. g) Child Protection units as contemplated in s. 62A for implementing the provisions of the Act for coordinating with official and non-official agencies be established at the state and district levels. They are also mandated under the Integrated Child Protection Scheme, which has now been made applicable in the State of U.P. Inspecting Committees (under s. 35) and State and district or city advisory boards be also set up u/s 62. h) A programme for providing age appropriate bridge courses and options for eventually mainstreaming juveniles into age appropriate educational institutions who are detained in the Observation Home be explored and put in place, with the aid of good NGOs like 'Pratham.' i) It is necessary to create places of safety for minors between 16 to 18 years who are nearing majority and are involved in grave criminal offences, and it needs to be ensured that such juveniles who are found involved in heinous offences at least undergo the three year maximum period permissible for their incarceration under the proviso to section 16(2).

Other suggestions: j) There should not be routine arrests for offences punishable with less than 7 years sentence. Although, the U.P. government should consider bringing out an amendment to Rule 11(7) which restrains arrest in all such cases, even when the nature of the crime is grave, or where it is

13 apparent that the juvenile is a member of a gang habitually engaged in committing such crimes. k) Caution needs to be exercised in granting bails in murder or rape cases or other grave cases committed by a juvenile, as easy releases in such matters can be counter-productive as there may be retaliatory violence against the juvenile, hence it could defeat the ends of justice or expose the juvenile to bad company. l) Efforts should be made for associating more voluntary organizations and social workers who could help in preparing the social investigation reports or in running homes or perform other sundry tasks mentioned in the Act and Rules. m) In case the juvenile has undergone some period in jail or in another observation home earlier, the said period should be set off, to prevent the juvenile undergoing more than the maximum permissible 3 years period of detention in a home. n) Efforts should be made for locating the boards at or near the Observation homes, and the board should not look like a Court room and have a child friendly atmosphere. The Board should not sit on a raised platform. o) The conditions, infrastructure and manpower of the boards needs to be improved significantly to enhance their performance. The days when the Magistrate sits on the Board he should be exempted from giving his quota. p) The payment of Rs. 500 minimum allowance to board members per sitting must be ensured. q) The Presiding Magistrate and the two other board members should be given training, possibly at the JTRI, Lucknow regarding the provisions of the JJ Act and Rules, and they may also be coached in Child Psychology and welfare if possible. r) Rule 12 of the JJ Rules needs to be amended in U.P., so that the exclusionary principle of first determining the age on the basis of matriculation, thereafter on the basis of school first attended, then based on Municipal or Panchayat records, and in the absence of all three, on the basis of medical evidence. It is important to permit cross-checking the age related data from different angles for its accuracy. Rule 12 therefore needs to be suitably amended by the State government. Getting information of age from different sources also seems to be the import of

14 s. 7 A (1).

Justice Amar Saran 12.7.2011 Copy to:

Hon'ble Chief Justice