New Delhi: The latest in a line of cases involving the detention of children emerged from Haryana’s violence-wracked Nuh district, where Article 14 reported on 7 August 2023 how some parents in the village of Muradbas alleged their children were among many Muslim youth that the police had detained.
The youngest of 22 Muslims arrested was wheat farmer Sheru Mohammed’s 13-year-old son, sleeping, said the family, when the police raided the village, 3 km west of the attack on the procession.
“Our boys were not even allowed to wear clothes,” Mohammed, 50, told Article 14. “They looked at me and did not do anything, but then they saw my son sleeping. They came back and picked him up.”
Anecdotal instances of such unlawful detentions have emerged time and again across India.
In October 2021, a 15-year-old boy was detained in Etah, Uttar Pradesh, as he walked out to get pizza. The police said they found on him 500g of diazepam, a kind of psychotropic substance. The police allegedly beat and illegally detained the boy.
The teenager was released before the court as an adult and remanded to custody under the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985. He had to spend three months in jail before his parents secured bail, which the judge granted because the police had not filed a chargesheet.
Soon after the teenager returned home, his parents noticed a change in his behaviour. A few days later, he committed suicide because he could not, according to his parents, bear the torment of being in jail.
In another case from Punjab in 2018, a mentally challenged minor boy was tied to a tree, allegedly by upper castes, on suspicion of theft and tortured by electric shock. After the torture, police in the town of Muktsar arrested the boy, filed no case and kept him illegally detained for three days.
These are only a few reported cases of the thousands that go unreported. Unlawful detentions and custodial violence are common enough in India, but most of these cases involve adults. Yet, it is clear that children, too, are being illegally detained.
In reply to a right-to-information query filed by the author, the National Human Rights Commission (NHRC) said in May 2023 that it registered 79 cases of 'unlawful detention by police' between 2017 and 2022.
Of 79 cases, 61 cases were reported from Uttar Pradesh, followed by Bihar, Jharkhand, Haryana, Maharashtra, Odisha, and Delhi. These cases are reported to the NHRC, which recommends what State authorities should do. It is not clear, however, what becomes of these recommendations and the children involved in those cases. That will require further research.
‘A Flagrant Violation Of The Law’
The Supreme Court has previously called the detention of children by the police “a flagrant violation” of not only child rights in general but also of special laws, such as the Juvenile Justice (Care and Protection of Children) Act, 2015, meant to provide care for, support and protect children.
Section 10 of the juvenile justice act addresses how a child in conflict with the law must be treated, making it clear that in no case can such a child be held in a police lock-up or locked away in a jail.
Besides Indian law, the United Nations Convention on the Rights of the Child (UNCRC) is a historic international agreement on Child Rights to which India is a party.
Article 37(b) of UNCRC says that “no child shall be deprived of his or her liberty unlawfully or arbitrarily”. The arrest, detention or imprisonment of a child shall “conform with the law and be used only as a measure of last resort and for the shortest appropriate period".
The juvenile justice law contains legal safeguards, which include informing the child's parents or a probation officer when the police detain a child. Juvenile Justice Boards are responsible for protecting children's rights throughout the detention process, inquiry, aftercare and rehabilitation.
Despite these safeguards, the police continue to detain children.
Illegal Detention And The Law
In 2020, the issue of illegal detention and torture of minors in police stations of Uttar Pradesh and Delhi came to the attention of the Supreme Court. These detentions were part of the police crackdown on a protest march against the Citizenship Amendment Act.
In Delhi, 31 adults and eight minors were detained at the Daryganj police station, as the Caravan reported in December 2019. These minors were detained, and the lawyers and doctors were not allowed to meet detainees or provide first aid to the injured among them. It was then that the Supreme Court noted that the detention of minors in a police station was “a flagrant violation of the law”.
In another case from UP, the police detained and beat orphaned students aged about 14 to 21 years from an orphanage in Muzaffarnagar. The boys were denied access to the toilet at times, abused, beaten with sticks through the night, forced to kneel against the wall, deprived of sleep, starved and shackled. The students were illegally detained for about three days and released.
These cases are testimony to a broken juvenile justice system and unaccountability among stakeholders like the Police. When we look into the law, section 10 of the JJ Act 2015, read with rule 8 of the Juvenile Justice (Care and Protection of Children) Model Rules 2016, states the following responsibilities of a police officer detaining a child alleged to be in conflict with the law:
1. No First Information Report shall be registered except where a heinous offence is alleged to have been committed by the child or when such offence is alleged to have been committed jointly with adults.
2. The police shall inform the parents or guardian of the child that the child has been apprehended, along with the address of the Board where the child will be produced and the date and time when the parents or guardian need to be present before the Board;
3. The police shall not send the child to a police lock-up and not delay the child being transferred to the Child Welfare Police Officer from the nearest police station.
4. The police shall not hand-cuff, chain or otherwise fetter a child and shall not use any coercion or force on the child;
5. The police shall inform the child promptly and directly of the charges levelled against him through his parent or guardian, and if a First Information Report is registered, a copy of the same shall be made available to the child, or a copy of the police report shall be given to the parent or guardian;
6. The police shall provide appropriate medical assistance, the assistance of an interpreter or a special educator, or any other assistance which the child may require, as the case may be.
7. The police shall compel the child to confess his guilt or not ask any child to sign any statement.
8. Inform the District Legal Service Authority to provide legal aid to the child.
9. The Child welfare shall be in plain clothes and not in uniform.
Despite the important roles and responsibilities assigned to the police by the law, there have been many cases where they did not. One such case is Vishal Kumar vs State of Bihar (2021), where a juvenile was arrested by the police without proper age verification and presented before regular criminal courts instead of juvenile justice boards.
When the matter was brought to the Patna High Court, the judge said the investigating officer had not fulfilled his “statutory duty” by failing to obtain documents proving the petitioner's age and not verifying it before sending Vishal Kumar to judicial custody.
The Court also noted the district judge of Muzaffarpur and the chief judicial magistrate had not exercised “an independent judicious mind”.
“This Court understands that the age has been mentioned only in a casual manner without there being any basis of the same,” said the high court.
In 2012, the Delhi High Court examined the issue of child offenders being detained at Tihar Jail. On 11 May 2012, in the case "On Its Own Motion vs Dept. of Women And Child," the court declared that imprisoning juveniles was a violation of their fundamental rights, as guaranteed by Article 21 of the Constitution of India.
Such imprisonment also goes against the provisions of the juvenile justice law and has an adverse psychological impact on these children. The court ordered specific and comprehensive directions to be given to all appropriate authorities, from special police units to legal aid lawyers to station house officers, so that children in conflict with the law do not land up in jails or are subject to the adult criminal justice system.
It is not clear how effective these guidelines have been; that requires further research.
Juvenile Justice Boards Not Meant To ‘Silent Spectators’
The Supreme Court in 2020 said the detention of children was “a flagrant violation” of the juvenile justice law because “a child in conflict with the law” could not be “placed in a police lock-up or lodged in a jail”.
The court observed that all juvenile justice boards must follow “the letter and spirit” of the juvenile justice law. Juvenile justice boards were “not meant to be silent spectators and pass orders only when a matter comes before them,” said the Supreme Court.
“They can take note of the factual situation if it comes to the knowledge of the JJBs that a child has been detained in prison or Police lock,” said the Supreme Court. “It is the duty of the JJBs to ensure that the child is immediately granted bail or sent to an observation home or a place of safety. The Act cannot be shunned by anybody, least of all the Police.'"
To be sure, violence against children is not uncommon by police forces in developed and developing nations.
According to a May 2023 report called Harsh Reality for Children in Police Custody by researchers from Nottingham University in the UK, the majority of children interviewed viewed police custody as part of their punishment, which was also the view of some police officers, with a presumption of guilt rather than innocence.
“With children being left alone in a cell for many hours waiting to be interviewed, they experienced police custody as harsh and punitive,” said the study, “fostering resentment and undermining trust in the police and the wider youth justice system.”
A March 2023 report from Amnesty International, a global advocacy, narrated how many children were detained and tortured during protests that swept that country. The torture included beatings, flogging, electric shocks, rape and other sexual violence.
‘Child-Friendly’ Guidelines For Police Officers
As part of NCPCR's efforts to develop a pool of child-friendly police personnel and better compliance with laws relating to child rights and child protection, the NCPCR issued guidelines for “child-friendly” police stations in 2017.
Section 2(15) of the juvenile justice law defines the term “child friendly” as “any behaviour, conduct, practice, process, attitude, environment or treatment that is humane, considerate and in the best interest of the child”.
One of the objectives of these guidelines is to “develop the knowledge, understanding, attitudes, and skills of police officers so that every child who comes into contact with them is treated as they would want their own child to be treated”.
In every case of unlawful child detention, all stakeholders working for children's rights should question whether police stations are aware of these guidelines.
Every police officer needs to understand, sensitise and respect children's rights instead of having a juvenile or child welfare officer in every police station. It is apparent that guidelines will not help unless we ensure that the rights of every child are respected.
Uttar Pradesh, where the largest number of children were detained over five years to 2022, has only 20 “child-friendly” police stations and 20 “model special juvenile police units in 20 districts, according to the state police website.
The juvenile justice law requires special juvenile police units, child welfare police officers, social workers, probation officers, lawyers, and juvenile justice boards to ensure that a child has not been ill-treated.
The NHRC should investigate and take necessary measures concerning the illegal detention of children in police custody, which will create accountability and transparency in India’s law-enforcement system. It will send out a powerful message that the human rights body will not tolerate such illegal acts by the police.
(Krishna Sharma is a practicing lawyer in Delhi. He works on child rights and transparency law.)
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