The outcome of the boy’s faith in the juvenile justice system which prompted him to surrender is that, a week on, the case has still not been presented before the Juvenile Justice Board in Muzzaffarnagar. The boy has been left with no access to free legal aid (which is every Juvenile in Conflict with Law’s right) as provided under Rule 14 of the JJ Act 2000, (Rules 2007).
In short, Kushan is all set to languish for months, maybe even years, in the observation home awaiting his turn to appear before the board or be granted bail just like many of his predecessors who have been sent to the children’s penitentiary before him. While he waits, in all probability, the abuse he faced at the hands of his step mother at home, may just continue at the hands of insensitive staff employed at the government homes for children!
While one might argue that the Observation and Special homes in Uttar Pradesh house many such children like Kushan, booked for the heinous crimes they might have committed, so why is his case any different? But what most people including the police, judiciary and the administration don’t understand is that what sets kushan’s case apart is the fact that his was not a premeditated crime by a habitual offender.
Kushan is not a criminal in the making nor is he a dysfunctional problem child in need of correctional measures, like some juveniles who are committed to observation homes owing to their possible involvement in felonious activities.
But Kushan, if nothing else is an emotionally traumatized child who allegedly having suffered abuse and neglect at the hands of step mother took the extreme step to protect not himself but his younger sibling who was also being tortured with him.
Predictably such cases, on the basis of a child’s own confession to have committed the crime should be taken up immediately and decided right away in order to prevent the child from getting exposed to the offensive environment within the Observation homes. But this is never done, at least not in Uttar Pradesh.
On the other hand taking into account the merits of such the cases in favor of the best interest of the child, even the Juvenile Justice (Care and Protection ) Act 2000, (Rules 2007) lays down that a humane approach must be taken in such cases.
Furthermore based on the attitude and nature of the juvenile he should be either set free or put into community service for the duration of his sentence awarded, thus giving him a chance to build a future for himself.
Then why is it that the case of Kushan has not been brought up for hearing before the JJ Board Muzzaffarnagar until now? Why is it that an open and shut case like this is yet to begin, a hearing or for that matter even have a legal aid counsel allotted to it to ensure that the stay of the child in a observation is as short as possible?
Informs Director Saaksham Foundation, an organization that works to address issues of child rights violations, “When we heard of the case of Kushan,we immediately got in touch with a Juvenile Justice Board Member at Muzzaffarnagar. The member was not even aware that such a child had been sent to the observation home there, in fact she was not even aware that the child as per law was entitled to free legal aid as per the JJ Act. We mentioned to the JJ Board member that the board must immediately provide legal aid to the child and not delay in such matters. But were shocked to learn, a week later when a follow up of the case was done, that the child has still not been presented before the board and no application for free legal aid had been moved for the child to the District Legal Aid Cell which is authorized to provide such legal assistance. This approach of the JJBs in Uttar Pradesh is indeed worrying as a number of children suffer for years in confinement because of a disinterested approach of the Juvenile boards.”
Twelve year old Shariff, can’t agree more. Says the young child who was accused of rape and slapped with Section 376 A, a section that is classified as a heinous crime, “I kept telling the police and the JJ Board Members here in Lucknow that I was innocent and I was being framed to put my family under pressure and agree to get me married to the girl who accused me of rape. But the members did not even listen to me. They rejected my bail plea and kept me at the Observation Home at Mohan, Lucknow for over four months. My father had to go to the sessions court and hire a lawyers to put in a bail plea for me and even though he could not afford the legal fee. Then we approached Saakaham Foundation, who helped us get free legal aid. Now I am out on bail and fighting my case with the help of a legal aid lawyer.”
But children like Kushan and Shariff are not alone, the number of such children languishing in jails are rising daily, and many are not as lucky to get out even after years in jail.
Monu, a 21-year old Juvenile who was arrested in Old Bhojpur, Dumroa Thana, Buxar, Bihar was arrested in December, 2003 for alleged heinous crimes committed both in UP and Bihar. Just 13 years old then he was arrested in Buxar and tried for the crimes under Section 307 CrPc and Gangster Act, Monu is still languishing in Observation home in Ara Bihar.
He was repatriated to Varanasi as he was wanted in crimes committedin Uttar Pradesh as well, as per the police investigation report. On being presented before JJ Board in Varanasi his bail was rejected and he was sentenced to imprisonment at the Model Jail Varanasi. Where he was housed for seven years from 2003-2010.
Recalls Monu, “I have been forced to spend over seven years in Varanasi jail despite the fact that I confessed to the crime I was accused of under pressure. I was asked to furnish bonds of Rs 40,000 each in installments of Rs 20,000. But coming from a poor family I was not able to afford the sum. As a result I was forced to remain in jail despite completing the jail term allotted to me. After spending seven years in Varanasi Jail which is the maximum sentence one can be made to serve, my release form was not signed by the Varanasi home Superintendent for over three years after I completed his term and I remained in jail till 2010. In 2012 on the behest of the Member of JJB Ara, who during a training workshop for JJBs organized by National Institute Public Cooperation and Child Development at Lucknow, brought this case to the notice of Director Saaksham Foundation Anjali Singh and Ms G Sreedevi, HJS and Secretary UPSLSA and I was finally released from Varanasi Jail.”
But Monu’s nightmare did not end there post his release he has now been sent to the Ara Jail to face inquiry of matters pending (as per police authorities) for a crime committed in Buxar.
What is surprising in this case is that the child has been forcibly detained in both Varanasi and Ara jails despite serving his full term for the crime. Lack of co-ordination between the homes has further delayed his release. At no point during the trail in JJ Board in Varanasi or Bihar was the child offered a chance to rebuild his life Under the “Principal Of A fresh Start” as provided in the Principles of JJ Act 2000 or provided with free legal aid.
And all this despite the fact that options for free legal aid, counseling and even compensation for children wrongly detained are mentioned in the JJ Act 2000. What is even more unfortunate is the fact that The constitution of India in Article 22 ensures "Protection Against arrest and detention in certain crimes."
But is it being implemented? Who is to ask?
(Names of children have been changed to protect their identity)
Anjali Singh - CNS