Abstract
Legal services for children in the juvenile justice system are presently confined to assigning them with legal representation, without any additional support. This chapter attempts to present the gap between the legal framework and the effectiveness of the existing legal services available to children in conflict with the law. It also demonstrates that application of the principles embodied in the Indian legal framework—such as best interest of the child and child participation—requires that the scope of legal services must evolve to encompass a host of responsibilities that include coordinating with the child’s family, advocating with the state agencies for progressive interpretation of the law, among others. While the existing application of legal aid to children in the system undermines these aspects as being merely tangential or auxiliary to legal representation, often even obscuring them, these ‘supporting services’ must be recognized at par with legal representation, and hence, institutionalized. This chapter emerges from a qualitative study conducted by Centre for Child and the Law, National Law School of India University (CCL-NLSIU), Bengaluru. In the process of enabling access to justice for children in the Juvenile Justice System, a team of lawyers navigate the complexities and assess the role of different actors including legal services providers—government-appointed lawyers, pro bono and child rights lawyers, and private lawyers, as well other actors including the Juvenile Justice Board, guardians and family. A close reading of the system has been carried out to detail the role of the lawyer that is attentive to both, the dual vulnerability of these children and the distinct nature of their legal inquiry. The site of inquiry is one of the 16 Observation Homes (OH) situated in a southern Indian state. The OH selected for this study is only for boys, and is occupied by boys apprehended in the district where the OH is situated, as well as those from neighboring districts. Various stages of the process: apprehension, first production and so on have been revisited to reflect on the challenges; and issues such as gaps in the working of legal service providers, role of the guardian(s) and family, child participation, non-appearance of children and pleading guilty, etc. have been discussed in detail. The chapter also explores the theoretical framework for the role of the lawyer in the juvenile justice system.
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Notes
- 1.
Press Trust of India (2022).
- 2.
Juvenile Justice (Care and Protection) Act, 2015, § 2(40), No. 2 Acts of Parliament 2016 (India). Available at https://cara.nic.in/PDF/JJ%20act%202015.pdf (last visited on February 10, 2023).
- 3.
Patel (2015).
- 4.
The Juvenile Justice Act, 1986, No. 53 Acts of Parliament 1986 (India). Available at https://cara.nic.in/PDF/JJ%20act%202015.pdf (last visited on February 10, 2023).
- 5.
Children who have allegedly committed an offense and their inquiry is pending before the board, and children who have been found to have committed the alleged offense. See Juvenile Justice (Care and Protection of Children) Act, 2015, § 2(13), No. 2 Act of Parliament 2016 (India).
- 6.
Children who are homeless; victims of abuse and neglect by their guardians; mentally ill with no family support, etc. under Juvenile Justice (Care and Protection of Children) Act, 2015, § 2(14), No. 2 Act of Parliament 2016 (India).
- 7.
Children between the ages of 16 and 18 are tried as adults if they are accused of a heinous offense, i.e., one with a minimum sentence of seven years or more, and if the Juvenile Justice Board and the Children’s Court determine that the child had the physical and mental capacity to commit the offense and understood the long-term consequences of the offense. See Juvenile Justice (Care and Protection of Children) Act, 2015, § 15(1), No. 2 Act of Parliament 2016 (India).
- 8.
Legal support includes a range of supporting activities which are instrumental to ensuring that the child has access to holistic care as envisaged in the Act.
- 9.
The selection of children was intended to be as diverse as possible and was informed by the type of legal representation they were availing at the time of the study, the Board before which their proceedings were ongoing, their religious or linguistic identity, and the seriousness of the charges against them.
- 10.
Skivene and Sørsdal (2018).
- 11.
Juvenile Justice (Care and Protection) Act, 2015, § 2(9), No. 2 Act of Parliament 2016 (India); Juvenile Justice (Care and Protection) Act, 2015, § 3 No. 2 Act of Parliament 2016 (India).
- 12.
Juvenile Justice (Care and Protection) Act, 2015, § 2(17), No. 2 Act of Parliament 2016 (India).
- 13.
Juvenile Justice (Care and Protection) Act, 2015, § 10(1), No. 2 Act of Parliament 2016 (India); Juvenile Justice (Care and Protection) Model Rules, 2016, Rule 8(3).
- 14.
Juvenile Justice (Care and Protection) Model Rules, 2016, Rule 8(2).
- 15.
Juvenile Justice (Care and Protection) Model Rules, 2016, Rule 8(3).
- 16.
Juvenile Justice (Care and Protection) Model Rules, 2016, Rule 9(1).
- 17.
D.K. Basu v. State of West Bengal, 1997 (1) SCC 416 (Supreme Court of India).
- 18.
Free legal aid is a statutory right in India for those disadvantaged along the lines of caste, gender, economic background, disability, etc., and is governed by the Legal Services Authority Act, 1987.
- 19.
The SBR is prepared at the stage of initial inquiry at the police station and provides a preliminary insight into the background and any issues faced by the child. See the Juvenile Justice (Care and Protection) Model Rules, 2016, Rule 2(xvi).
- 20.
The SIR is prepared after the first production of the child within two weeks as per the Act. It is intended to provide more detailed information on the psychological, social and economic circumstances of the child. See the Juvenile Justice (Care and Protection) Model Rules, 2016, Rule 2(xvii).
- 21.
In 2016, post a heinous and well-publicized case of sexual violence by a juvenile, the present Act was passed specifically to include provisions for the conditional transfer of children to the adult criminal system. A transfer can be made if a heinous offense (i.e., punishable by 7 or more years) has been committed by a child between the ages of 16 and 18. The PAR is used as the basis for such transfer, to ascertain if the child has the capacity to be tried as an adult.
- 22.
The ICP is typically prepared by the Probation Officer at the stage of the disposal, to look at the case history and specific needs of the child and enable their reintegration into mainstream society. Though intended to be prepared by the Probation Officer, it is sometimes delegated to external organizations or social workers.
- 23.
The Legal Services Act, 1987, § 2(c), No. 39, Acts of Parliament 1987 (India).
- 24.
The National Legal Services Authority (Free and Competent Legal Services) Regulations 2010, Regulation 8(1).
- 25.
The Indian Penal Code, 1860, § 302, No. 45, Acts of Parliament 1860 (India); The Indian Penal Code, 1860, § 376, No. 45, Acts of Parliament 1860 (India).
- 26.
Juvenile Justice (Care and Protection) Model Rules, 2016, Rule 8(3) (India).
- 27.
Indicating the rank of the officer.
- 28.
Indicating they held the rank of Police Sub-Inspector—the officer who was most likely in charge of the investigation.
- 29.
Agrawal (2019).
- 30.
Police Constable, Investigation Officer, Police Sub-Inspector—various ranks of the police officers who are involved in the investigation.
- 31.
The Juvenile Justice (Care and Protection of Children) Act, 2015, § 2(33) No. 2 Act of Parliament 2016 (India); read with the Code of Criminal Procedure, 1973, § 50A, No. 2, Acts of Parliament, 1974 (India).
- 32.
The term of the NJMs has been completed more than two years prior, and the reappointment process has not yet been initiated.
- 33.
A heinous offense is one where the prescribed minimum punishment is imprisonment for seven years or more see the Juvenile Justice (Care and Protection of Children) Act, 2015, § 2(33) No. 2 Act of Parliament 2016 (India) in contrast with a serious offense as one where the minimum punishment is three years and the maximum punishment is seven years, see the Juvenile Justice (Care and Protection of Children) Act, 2015, § 2(54) No. 2 Act of Parliament 2016 (India), such categorisation of offences leaves ambiguity for offenses where there is no prescribed minimum punishment, but the maximum punishment exceeds seven years.
- 34.
Shilpa Mittal v. Union of India, AIR 2020 SC 405 (Supreme Court of India), where it was held that offenses with no prescribed minimum punishment but with a maximum punishment exceeding seven years would be treated as serious and not heinous offenses to give the child the benefit of the law.
- 35.
Johari (2018).
- 36.
Kincaid and Sullivan (2019).
- 37.
The lawyers interviewed stated that the remuneration from legal aid was insufficient to cover these.
- 38.
Mann (2020).
- 39.
Juvenile Justice (Care and Protection) Model Rules, 2016, Rule 74(15).
- 40.
Juvenile Justice (Care and Protection of Children) Model Rules, 2016, Rule 29(1)(i)(b).
- 41.
Juvenile Justice (Care and Protection of Children) Act, 2015, § 53, No. 2 Act of Parliament 2016 (India).
- 42.
The guardian of a CINCP may either be absent (deceased, missing) or unfit in some way (abusive, exploiting the child for gain, incapacitated, or unwilling or unable to care for the child). Other vulnerabilities of a child: homelessness, substance abuse, physical and mental disability, circumstances such as armed conflict, civil unrest or natural calamity—also qualify them as a CINCP (Ref. section 2(14)). A CICL may also be recognized as a CINCP (Ref. section 8(3)(g)), in which case the case can also be transferred to the Child Welfare Committee—the relevant body governing CINCPs.
- 43.
Juvenile Justice (Care and Protection of Children) Act, 2015, § 2(45) No. 2 Act of Parliament 2016 (India).
- 44.
Juvenile Justice (Care and Protection of Children) Act, 2015, § 3(iii) No. 2 Act of Parliament 2016 (India).
- 45.
Bueren (1995).
- 46.
De Bondt and Lauwereys (2020).
- 47.
Forde (2018).
- 48.
S.C. v. the United Kingdom, (2005) 40 EHRR 10 (European Court of Human Rights).
- 49.
The Juvenile Justice (Care and Protection of Children) Act, 2015, § 2(15) No. 2 Act of Parliament 2016 (India).
- 50.
The Juvenile Justice (Care and Protection of Children) Act, 2015, § 3 No. 2 Act of Parliament 2016 (India).
- 51.
Juvenile Justice (Care and Protection of Children) Act, 2015, § 7(1) No. 2 Act of Parliament 2016 (India).
- 52.
This is done by strictly instructing the children to button their attire, unroll their sleeves, and even trim their hair.
- 53.
Dobbie et al. (2018).
- 54.
Juvenile Justice (Care and Protection of Children) Act, 2015, § 12(1), No. 2 Act of Parliament 2016 (India).
- 55.
This is a requirement for bail for adults provided. See The Code of Criminal Procedure, 1973, § 204(1)(a), No. 2, Acts of Parliament, 1973 (India).
- 56.
An application moved by the lawyer requesting the Board to exempt the child’s presence for the hearing. See The Juvenile Justice (Care and Protection of Children) Act, 2015, § 91(1) No. 2 Act of Parliament 2016 (India).
- 57.
Juvenile Justice (Care and Protection of Children) Rules, 2016, Rule 10(3).
- 58.
The Code of Criminal Procedure, 1973, § 204(1)(a), No. 2, Acts of Parliament, 1973 (India).
- 59.
The Juvenile Justice (Care and Protection of Children) Act, 2015, § 18 No. 2 Act of Parliament 2016 (India).
- 60.
Cases are classified into ‘summary’, ‘summons’ and ‘warrant’ cases depending on the severity of the offense. Summons cases under Section 2(w) include all cases with a prescribed punishment of less than two years. See the Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1973 (India).
- 61.
The Code of Criminal Procedure, 1973, § 251, No. 2, Acts of Parliament, 1974 (India).
- 62.
Petty offenses are to be tried as summary cases, while serious and heinous offenses are to be tried as summons cases. See Juvenile Justice (Care and Protection of Children) Act, 2015, § 14(5)(d), No. 2 Act of Parliament 2016 (India).
- 63.
Helm (2019).
- 64.
Sekhri (2019).
- 65.
Within two months, or when the inquiry remains inconclusive for 6 months.
- 66.
Juvenile Justice (Care and Protection of Children) Act, 2015, § 3(ix) No. 2 Act of Parliament 2016 (India).
- 67.
The Code of Criminal Procedure Code 1973, § 265 A to L, Acts of Parliament, 1974 (India).
- 68.
Juvenile Justice (Care and Protection of Children) Act, 2015, § 24(2) No. 2 Act of Parliament 2016 (India).
- 69.
Juvenile Justice (Care and Protection of Children) Act, 2015, § 17, No. 2 Act of Parliament 2016 (India).
- 70.
Juvenile Justice (Care and Protection of Children) Act, 2015, § 18 No. 2 Act of Parliament 2016 (India).
- 71.
Shepherd (2008).
- 72.
Forde (2018).
- 73.
Miranda v. Arizona, 384 U.S. 436 (Supreme Court of the United States).
- 74.
Ritter (1968).
- 75.
Minor Son of Moolchand Through His Natural Guardian Grandfather Ved Prakash v. State of UP and Another, Criminal Revision No. 2126 of 2021 (Allahabad High Court, 2022).
- 76.
Silva (2013).
- 77.
Conward (1998).
- 78.
Coppins et al. (2011).
- 79.
For example, a child whose family has been traced can still be placed in a government children’s home, if it is not in the best interest for the child to live with their family.
For example, under Section 37(1)(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015.
- 80.
Irrespective of whether the offense committed by the child is a bailable or non-bailable offense, they shall be released on bail with or without surety or be placed under the supervision of a probation officer or a fit person. A child may however, not be released if there appear to be reasonable grounds for non-release such as defeating the ends of justice, exposure to danger, etc. See The Juvenile Justice (Care and Protection of Children) Act, 2015, § 12(1) No. 2 Act of Parliament 2016 (India).
- 81.
National Crime Records Bureau (2015).
- 82.
Ferrara and Ferrara (2005).
- 83.
Sampurna Behrua v. Union of India, (2018) 4 SCC 433 (Supreme Court of India).
- 84.
Kay and Segal (1972).
- 85.
Amani et al. (2018).
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Legal Materials
Code of Criminal Procedure 1973 (Central Act, India).
D. K. Basu v. State of West Bengal, (1997) 1 SCC 416 (Supreme Court of India).
Juvenile Justice (Care and Protection of Children) Act 2015 (Central Act, India).
Juvenile Justice (Care and Protection of Children) Model Rules 2016 (FCentral Act, India).
Legal Services Authorities Act 1987 (Central Act, India).
Minor Son of Moolchand Through His Natural Guardian Grandfather Ved Prakash v. State of UP and Another, (2022) Criminal Revision No. 2126 of 2021 (Allahabad High Court).
Miranda v. Arizona, 384 U.S. 436 (Supreme Court of the United States).
National Legal Services Authority (Free and Competent Legal Services) Regulations 2010 (Central Rules, India).
Sampurna Behrua v. Association of India, (2018) 4 SCC 433 (Supreme Court of India).
S.C. v. the United Kingdom, (2005) 40 EHRR 10 (European Court of Human Rights).
The Juvenile Justice Act, 1986, No. 53 Acts of Parliament 1986 (Central Act, India).
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Natesan, A., Devaraj, A., Dsouza, R., Sharma, V. (2023). ‘Not This Week, Maybe Next’—Understanding the Working of Legal Services Provided to Children in Conflict with the Law. In: Bajpai, A., Tushaus, D.W., Prasad, M.R.K. (eds) Human Rights and Legal Services for Children and Youth. Springer, Singapore. https://doi.org/10.1007/978-981-99-5551-0_3
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