New Delhi: When R* gets into bed and his thoughts drift to the 50 days he spent in the sprawling jail of Tihar here in India’s capital, sleep is hard to come by.

R, now 20, said he remembered cooking and cleaning for the adult convicts and undertrials amongst whom he was forced to live. He remembered how these adults took away the biscuits and food that his parents brought. He remembers sexual assaults on other children, and he remembers many being forced into drugs.

Even though the Supreme Court has called the detention of children “a flagrant violation of the law”—and various court judgement have emphasised the nature of these violations over 41 years—right-to-information data accessed by this writer and reported in August 2023 revealed at least 79 such detentions in police lock-ups nationwide, 61 from Uttar Pradesh alone over five years. 

That was clearly an under-estimate.

In 2022, according to a report submitted by the Delhi government to the Delhi High Courts, about 800 children in conflict with the law were detained in jails within the national capital’s Tihar jail system over the preceding five years.

The real number of children detained nationwide are estimated to be in the thousands, indicating endemic violations of the Juvenile Justice (Care and Protection of Children) Act, 2015, which clearly says no child “in conflict with the law” can be held in a police lock-up or jail. 

Concerned by such egregious violations of the law by its keepers, in January 2024, the National Legal Services Authority (NALSA) launched a nationwide campaign to identify children in prisons and give them legal assistance, a recognition that legal preventive measures had failed to keep children out of jail.

“Jitna hum kam bole utna acha hai (The less I say the better),” said R, a Muslim boy, of his time in jail. “Jail Alag hi duniya hai (Prison is a different world).” 

R’s life changed when he dropped out of the 5th standard in 2011 and migrated from his Uttar Pradesh (UP) village to Delhi with his family when times got rough. 

His father, a marginal farmer, could no longer make a living off the land.

R worked odd jobs as a labourer in the grimy northwest Delhi industrial area of Bawana. His life changed on a cold day on 24 December 2017, a policeman told him to come to the local police station. 

‘I Had Never Seen A Police Station Before’

When he reached the Narela police station, the police accused him of rape and other offences under the Protection of Children from Sexual Offences Act (POCSO) Act, 2012, and beat him, alleged R. 

“Sir, I had never seen a police station before,” he said, recalling the shock of being there. 

R was locked up in the police station overnight and produced in a court the next day. He was not allowed to meet his parents, he said, who waited outside the police station.

R’s detention was never reported. He was among hundreds of children in jail who are invisible to the criminal justice system. The latest detention of minors that came to public attention was in 2023, when communal riots erupted in Nuh, Haryana. 

A 17-year-old detained by police from the Rajasthan town of Bharatpur and accused of murder spent four days in police custody and 12 days in jail before the Nuh district court on 17 August confirmed that he was a juvenile. 

Neither was this an isolated event after the conflagration in Nuh—with many minors detained and wrongfully incarcerated by the police following the violence in Nuh, as Article 14 reported—nor are such arrests unusual. 

In 2020, during the Delhi riots, a minor aged 17 years was arrested in Delhi when he went out to pay bills for his family on 27 February 2020. He was accused of firing at the police and faced charges under the Indian Penal Code 1860 and Arms Act 1959. 

As happened with R, this alleged “child in conflict with the law”, to use the official term, was regarded as an adult and sent to Tihar jail. However in March 2020, his lawyer established that he was a minor, and the magistrate transferred him to an “observation home”, where such children are supposed to be lodged. 

‘I Lost Hope Of Getting Out Of Jail’

R should never have been detained at the police station, and he should never have been taken to the court, according to India’s Juvenile Justice (Care and Protection) Act, 2015.

On 25 December 2017 when R was brought before the judge, the police produced him as 22 years old and sought judicial custody for 14 days.

“I kept begging the police officers to let me talk to the judge,” said R. “But even the Hon’ble judge didn’t bother to talk to me.”

In the manner of undertrials often cast into jail and forgotten, R landed up in Tihar jail, where the days became weeks. 

“I lost hope of getting out of jail,” said R. “Sometimes, my parents used to visit me. Seeing my father, a heart patient, made me feel worse.” 

One day, a retired police official from the family’s village got in touch with one of us, who visited R in jail. We found the family had R’s school-leaving certificate, issued on 7 November 2011, which can be produced before a court as an age-proof document of R being a minor.

R’s date of birth, according to the certificate from a school in the town of Loni in UP’s Ghaziabad district, was 18 February 2002, which meant he was 15 when he was arrested. 

Neither parent knew the certificate would be useful in getting their son out of jail. Instead, they sold their 5 bighas (3.1 acres) of land and allegedly bribed police to bail their son out, which did not work, according to R.

Once R’s date of birth was established, the court on 13 February 2018 transferred his case to a juvenile justice board, before which it should have gone in the first place.  

There are two categories of children within the juvenile justice system: those in need of care and protection; and those in conflict with the law. 

The law has widened its scope to include treatment and social reintegration, prioritising the child's best interests, moving from retribution to reform since the juvenile justice law was passed more than a decade ago.

However, the incarceration of children in adult prisons is one of the issues evident in India’s juvenile justice system since its onset. The law, as we said, has been clear: “In no case, a child alleged to be in conflict with the law shall be placed in a police lockup or lodged in a jail.” 

That children are still incarcerated in adult prisons demonstrates the clear schism between law and its implementation.                                   

The issue of children in jails or other detention has plagued the criminal justice system for nearly a century. 

The Same Issue, Over & Over

The 1920 Indian Jail Committee Report suggested that children who committed crimes have limited knowledge and realisation of their actions and consequences. Young offenders, said the report, could benefit from proper training, which cannot be offered in prison but should be administered in a specially designed institution.

“Without adopting the extreme attitude of some of the American states, it will generally be admitted that a child·who commits a crime cannot have the same full knowledge and realization of the nature and consequences of his act as an adult,” said the report. 

“The cold-blooded character of the crimes sometimes committed by young children may generally be attributed to this lack of realisation and thoughtlessness,” said the report. 

“Moreover, it is undesirable to familiarise the young with the sights of prison life or to blunt the fear of prison, which is one of the most powerful deterrents from crime,” said the report. “For all these reasons, we consider that the imprisonment of children and young persons is clearly contrary to public policy.”

In 1983, the Supreme Court, in Sanjay Suri & anr. Vs Delhi Administration, Delhi and anr, addressed the issue of children being sent to jails, noting that children were sent to jail despite the prohibition in the Children  Act 1960.  

The Supreme Court noted children were kept in jail with habitual and adult offenders, who sexually assaulted them and made them cook and clean, as R described during his time in Tihar Jail. 

“Judicial mind must be applied in cases where there is doubt about the age—not necessarily by a trial—and every warrant must specify the age of the person to be detained,” said the Supreme Court. “We call upon the authorities in the jails throughout India not to accept any warrant of detention as a valid one unless the age of the detenu is shown therein”.

As a result of this judgement, a juvenile ward was also created in the Tihar Jail for prisoners whose ages were shown in police records as between 18 to 21. 

R was evidently not incarcerated there since the police claimed he was 22, a tactic we have observed the police to use to breach guidelines.

In 1983, the Hon’ble Supreme Court addressed a similar issue in Gopinath Ghosh vs State of West Bengal, ordering the magistrates that whenever an accused brought before them was 21 years old or younger, they must verify age before proceeding with a trial.

In 1986, in response to a writ petition filed by journalist Sheela Barse to free hundreds of unlawfully detained children in Indian jails, the Supreme Court observed that “it is elementary that a jail is hardly a place where a child should be kept”. 

“There can be no doubt that incarceration in jail would have the effect of dwarfing the development of the child, exposing him to baneful (sic) influences, coarsening his conscience and alienating him from society,” said the Supreme Court. “It is the atmosphere of the jail which has a highly injurious effect on the mind of the child, estranging him from society and breeding in him aversion bordering on hatred against a system which keeps him in jail.”

This landmark judgement helped in the enactment of uniform juvenile justice legislation in 1986. Yet, three decades later, children are still being kept in prisons. 

Clear 12-Year-Old Guidelines

In Court on its Own Motion vs. Dept. of Women and Child Development & Ors. (W.P. (C) No. 8889 of 2011), the Delhi High Court court issued guidelines to prevent the incarceration of children in conflict with the law and their exposure to the adult criminal justice system. 

Here are few of those guidelines:

- Investigating officers must determine the age of the accused during arrests and reflect it in the arrest memo. If the accused appears to be a juvenile, they should be produced before a juvenile justice board instead of criminal court.

- Magistrates must find out the age of young people detained or arrested, when a person appears below 18, or the arrest memo says he or she is 18-21 years. From our experience, magistrates generally rely on the arrest memo age without verifying age or considering physical appearance..

- Juvenile and child welfare officers can get a copy of the age determination done by a juvenile justice board or child welfare committee and forward it to a special juvenile police unit to certify and enter on record, sending a copy to the juvenile board or child welfare committee.

- To Tihar and Rohini Jails: Display a notice in Hindi, English and Urdu informing inmates that those below 18 when a crime was committed are entitled to stay in children's homes under juvenile justice law. The notice should explain the procedure and contacts for claiming juvenility. Jail and legal aid authorities must provide speedy legal aid for such claims.

- The court directed the National Commission for Protection of Child Rights to form a panel of 10 to visit Delhi jails and identify those who should be tried only under the juvenile justice law.

- The Court directed legal aid lawyers from the Delhi State Legal Services Authority (DSLSA) to visit jails and inform the secretaries of respective district legal services authorities of juvenile inmates.

- Government hospitals must form medical boards when courts order age examinations and provide a report within 15 days.

Legal Duties Are Ignored

After the Delhi High Court judgement, the NCPCR identified 4,459 probable juveniles during their visits to jails in Delhi between March 2012 and May 2022. On every visit, the NCPCR panels identified probable juveniles, indicating the ineffectiveness of the 2012 orders. 

The incarceration of children in jail is not limited to Delhi; similar practices have been found in other states, such as Rajasthan, Assam, and Uttar Pradesh.

One of the primary reasons why children end up in adult jails is the lack of proper identification of their age before being remanded to judicial custody. The police often neglect their legal duty, do not verify children’s ages, and directly send them to judicial custody after producing them before the Iaqua Magistrate.. 

The situation worsens when the magistrate, presented with a child, only relies, as we said, on the age mentioned in the forwarding memo by the investigating officer. 

The incarceration of children does not continue because the guardians of the law are unaware of the safeguards it contains.

We have often encountered police officials, magistrates and lawyers working with children who know of the process of age verification of a child provided by section 94 of the Juvenile Justice (Care and Protection) Act, 2015

Yet, there is no proper age inquiry, a process that tends to violate the spirit of the law, which speaks of providing care, protection and development to children and keeping their best interests at heart. The result: children land in jails.

‘I Am Grateful To God’

Recently, there have been cases where the Supreme Court released an accused for being a juvenile when a crime was committed. 

One of the infamous cases was of Niranaram Chetanram Chaudhary, who, as Article 14 reported in April 2023, spent 28 years in jail before the Supreme Court pointed out that he was 12 years old at the time of the crime. 

The maximum sentence Chaudhary should have served under juvenile law was three years. Instead, he was sentenced to death in 1998. He was released in March 2023.

These cases are testimony to the continuing incarceration of children in jail despite a system to protect them.

The juvenile justice law endeavours to save the child in conflict with the law from a path of self-destruction and being a menace to society, but sending these children to jail defeats the purpose of the Act. 

On 15 February 2018, after 50 days of wrongful imprisonment, R was released. He left Delhi and went back to his village, where he earns about Rs 500 a day as a labourer. In November 2023, a juvenile justice board acquitted R of all charges in the case against him.

“I am grateful to God that I could come out of jail,” said R. “But there are many who land in jail and stay there, without any help or guidance.”

(Ajay Verma is a practising lawyer in Delhi and the chairperson of International Bridges to Justice India. Krishna Sharma is a practising lawyer and independent legal researcher based in Delhi.)

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