A Non Judicial Juvenile Justice System with Judicial Attitude: Scope for Participation in the Juvenile Justice Board

1. A Non Judicial Juvenile Justice System with Judicial Attitude: Scope for Participation in the Juvenile Justice Board Jaya Ghosh PhD Student, School of Law, Lancaster University

2. Implementation of global policies at local level The acceptance of the United Nations Child Rights Convention almost universally has given rise to many debates and discussions regarding its proper implementation at a domestic level. Given the contemporary debates and discourses around child rights in global platforms as well as in India, this presentation explores the right to participation of children in the Juvenile Justice System (JJS) specifically in the Juvenile Justice Board (JJB) at the district level in Bihar, India

3. The Juvenile Justice in India • In India similar to the UK, separate trials for Juveniles started with The Code of Criminal Procedure of 1861 followed by Reformatory Schools Act of 1876. • The Madras Children’s Act in 1920 by the Madras Presidency exclusive provisions were first made for a separate judicial system for children followed by Bengal Presidency and Bombay Presidency. • The State Children Act 1974, The Juvenile Justice Act 1986. • The Juvenile Justice (Care & Protection)Act 2000, Amended 2006 and 2010. An uniform Act for children based on United Nations Child Rights Convention. • Children(Boys and Girls): up to 18yrs • Involvement of voluntary organisations in the JJS

4. Under the Juvenile Justice (Care and Protection) Act 2000, the Indian state divides children in two categories: • Children in Need of Care and Protection: Child Welfare Committee • Children in Conflict with the Law: Juvenile Justice Board The Juvenile Justice System

5. About the Study • My study concentrates on the voices of children to develop an understanding of their experiences within the institutional environment and their own frames of reference about different aspects of the Juvenile Justice Systemincluding their experiences with the police, the JJB(Judiciary) and the institution(Observation Home). • The study was conducted in the Observation Home at Patna in the state of Bihar in India using qualitative methods. I did 35 in-depth interviews and 2 focus group discussions. My samples came mainly from two age groups, 7-14 years and 15–18 years during the course of their case – inquiries . • Ten stakeholders were also interviewed from different agencies working for the JJS in Patna (Police , Judiciary, Social Welfare Dept. and NGO).

6. Patna, Bihar, India

7. Children in conflict with the law The infamous case of the Delhi gang rape in December 2012 and involvement of a juvenile in the case have stirred up debates on the ways young offenders should be handled by the Juvenile Justice System (JJS) across India. This case have created a moral panic like situation, depicting young offenders as monsters and a threat to societal values and interests (Cohen, 1987) not very different from the James Bulger case (Thomas, 1993). Labelling the current JJS as lenient for such children, demands to review the Juvenile Justice (Care & Protection) Act 2006 were made through many written petitions filed in various courts in India. This is not an uncommon trend as globally youth justice is turning more punitive towards children against the widely held commitment to act within the guidelines established by various children’s rights conventions (Muncie, 2008).

8. Participation of the children in a judicial environment • Article 12, para 2(UNCRC) specifies that children have the “right to be heard in any judicial or administrative proceedings affecting [them]” • Provisions in the Indian legal framework: The Indian Constitution in Article 19 (1) & Article 14; The procedural laws like Code of Criminal Procedure and Code of Civil Procedure in various sections make provision for children. Indian Evidence Act, Section 118 provides that all persons shall be competent to testify. • A separate system for children in conflict with law which comes under the Juvenile Justice Care and Protection of Children Act 2000.

9. “The Principal Magistrate, who is a member of the judicial service and is used to the provisions of the Code, has to undergo a complete mental metamorphosis and attitudinal transformation while discharging his or her duties under the 2000 Act.” (Justice Altamas Kabir, The former Chief Justice of India, 2008) The Juvenile Justice Board, which is empowered to deal with the children in conflict with the law consists of a Principal Magistrate and two members . The Judiciary: The Juvenile Justice Board

10. Views of the stakeholders from the Judiciary on the JJS “We from judiciary are doing our work but the social welfare department has more responsibility towards these children and its their job to implement the JJS properly.” Principle Magistrate, JJJB, Patna, 2011 “The JJS in Bihar is still in an experimental process. The people working in the system are still not clear about their roles and responsibilities for example the Police are still working as they used to work before we had this Act. We need more training on this Act in Bihar.” Member, JJB, Patna, 2011 “The JJB is not a court but it is still running as a court. The whole concept of best interest of child is lost in legal complications e.g. Age determination, bail, etc.” Lawyer practicing at the JJB, Patna, 2011

11. The Right to be Heard: First step towards participation in the JJB • Depriving children from hearing their voices defeat the end of justice and makes the right lifeless, absurd, stultifying and self-defeating. The right to have a say in both pre and post decisional remedial hearing is important for participation. Do children have this right in the JJB? • Ground realities: • Are the stakeholders from the judiciary able to detach themselves from the judicial practices and act in a child friendly manner? • Are these children treated differently by these actors depending on age, severity of offence and their socio-economic background?

12. What is stopping the children’s participation ? • The ‘Juvenile Board’ is acting as a court. • Power Equation in the Board • Intolerance and criminalisation faced by children accused of serious offences • Lack of adequate information, support and legal aid

13. The ‘Juvenile Board’ or ‘Baccha (Child) Court’? “You tell me? How could you call it a board when you have to hire lawyers who argue for us ? I was transferred to this ‘baccha court’ from there (adult court). How this ‘board’ is different from that court? The system here is exactly same as that court. Everything is same except its here(OH). They(Lawyers) take dates for us and we have to spend money. This is a court Didi (Sister)!” Vikram, 16yrs • Children identified the JJB as a court • Physical set up and court like appearance • Police and Lawyers in uniform • No designated space for children • Fear of facing the JJB

14. Power Equation within the members of the JJB “There is something wrong with the system. One person is more powerful than the others. I think they should have equal power. We know ‘Judge Sahib’ don’t let the ‘Member Sahib’ take decision. If that is not the case then they can give us bail single handed which they don’t.” Akash,16 years • An undisputed power imbalance between the members of the JJB due to the hierarchy of position between them in and outside the JJB. • The conflict between judicial and non judicial members in decision making process as major decisions like declaring juvenile status, granting bail and final disposal of cases are mostly taken up by the PM. • More emphasis on legal knowledge rather the skills of working with children as members are selected on basis of their work experience with children.

15. Intolerance and criminalisation faced by children accused of serious offences “The judge sahib just looks at the section not the child and if it is serious he just pass it on. If it is an offence like murder or kidnapping they don’t even read the case file and just reject it. No questions. No chance for bail. Many times we are told by older boys that it’s better to get rejected from here so you can file for bail in the higher court. Some of the boys did that too. It is just waste of money and time here.” Naitik, 17years • Twenty three children were accused of serious offences and 17 out of that were in the OH for more than 4 months (stipulated time for inquiry). • Fifteen had already had their bail application rejected by the JJB; 12 of them were about to file for a bail application; 6 had applied, but their bail applications were pending; and 2 had got bail but unable to go out. • Some of the boys booked for serious offences like ‘Kidnapping and Rape’ are actually ‘Love Cases’.

16. Lack of adequate information, support and legal aid “We think they should have someone who tell us about the system. ‘Bhaiya log’ (older children) tell us about it. We also don’t know what is going on inside the board only that something is going on. This is very important that someone who tells us what we need to do. What is the progress of our cases? No one gives us such information. The court people don’t tell us anything. They just say ‘go upstairs and don’t come down. Just keep quiet’.” Amit, 12 years • Lack of adequate information about the system and their rights under it • No provision for any kind of orientation regarding the proceedings of the JJB • Dependence on peer, lawyers (if they have )for information

17. What stops participation in the Inquiry ? “Judge Sahib never talks. Everyone is very scared of him. He doesn’t even look at the file and rejects bail. But Member sahib talks to us. Once when he was alone in the boards he did not let the lawyers say anything and said that only children will speak.” Mukesh, 14 years • Unfriendly approach and minimal interaction with children by the Principal Magistratebut the Member was friendly with the children. • Certain body language create fear that the PM might get angry and reject their bail plea.

18. Participation in the Inquiry “I feel they should allow us to talk. We do not have that right. Sometimes children do not even know if their case has come up. Wakil (Lawyer) Sahib says that I should keep my head down and do not say anything unless asked. But Judge Sahib never asks us if we have done anything or not? What do you do or why you are here. They just look at some children’s faces and declare juvenile. They do not even ask questions. There is no scope of anyone talking to you.” Rajesh, 13 years • Children are encouraged to keep quite during the appearance by their lawyers, peer and other officials like staff in the JJB and the Home • Lack of communication with the children. Not to be treated like a criminal and the board should hear about the case not just name and age.

19. "Every cloud has a silver lining" • Witnessed a good practice which enabled a few children to participate in the JJB in a different way. • Three children helped the JJB staff with the paper work, filing and keeping case records. They used to manage the paper records very efficiently under the supervision of the staff. This was a relief for them due to a large number of cases. • These boys also helped other inmates by explaining the process or updating them about their trial. • However, besides this there was not much involvement or participation from the children in the JJB.

20. Conclusion: Scope for improvement “I think a few children should also sit in the board. There are some older boys who help in managing the JJB here for some time. Children should get feedback from them peer and that will give us some power. They could be the best judge as they know everything about us which even ‘judge sahib doesn’t know.” Nirmal, 15 year • Involvement of children in the process and include them in the board. • The system especially the JJBs needs to detach from the regular judicial setting to create a child- friendly and non judicial environment. • The present sad status of the JJS is quite contradictory to the promised child friendly system while ratifying the UNCRC. However, by creating a conducive environment for participation, the judiciary could help in implementing the JJS.

21. Thank You Contact details: Jaya Ghosh C 16, Bowland North, Lancaster University j.ghosh@lancaster.ac.uk 07766450643