Can my 5 or 6 year old child be seen as a criminal in the eyes of the law?

Children under 7 years are completely excluded from being prosecuted under criminal law, and children between ages 7 to 12 are excluded if the courts thought that they did not understand the consequence of their actions. The term used in such cases is ‘doli incapax’ which means a child is incapable of understanding the consequences of a crime.

What jail are minors sent to?

While the inquiry is going on, minors can only be detained in Observation Homes or a Place of Safety. The Board has to tell them how long you will be detained in the order. To know which institution is denoted an ‘Observation Home’ or a ‘Place of Safety’, information can be obtained from the relevant State Government website.

How does the Board decide when to detain me?

The Board has the power to detain you, though in most cases you get bail. If the Board decides to allow for your release on bail, your parents or guardians are supposed to submit an undertaking in a certain form. If you are unable to satisfy the bail conditions for a week, then the Board is required to modify these to help you. The Board may decide to deny bail if this is against your interests. For instance, if this would bring you into contact with criminals or expose you to moral, physical or psychological danger.

Can the police arrest me without telling my parents?

The police have a duty to tell your parents or guardians why you have been arrested. They can ask the police for the charges under which you have been arrested.

If the police have registered an FIR (or first information report), they have a duty to give your parents or guardians a copy of this FIR. An FIR is the document prepared by the police when they get any information about a crime that has occurred.

How long can the police hold a child in jail?

A child can never be kept in a police lockup or regular jail. The police must bring you before the Board within 24 hours of apprehending/detaining you. If the police do not release you immediately on bail, you can only be kept in an Observation Home until you are taken to the Board (within 24 hours). The police are also supposed to inform a child welfare officer who is supposed to accompany you to the Board for the first hearing.

Can children be arrested?

Yes, the police can arrest children if they believe they have committed a crime. Typically, police stations will have a child welfare protection officer and in each district and city, there will be at least one special juvenile police unit. When the police arrest a child on suspicion of committing a crime, this should normally be done by a Special Juvenile Police Unit. If a regular police officer arrests the child, then the child should immediately be placed under the care of the Juvenile Police Unit, or a designated Child Welfare Police Officer.

The police can also arrest children who have run away from an institution where they were placed under the Juvenile Justice Act, such as an Observation Home, Special Home or Place of Safety.

In certain circumstances (for example, with respect to habitual thieves), the Magistrate can order that adults be detained in prison if they do not execute a bond for good behaviour or peace. Even though arrests of children are allowed, the Magistrate cannot order a similar detention with respect to children.

What are the guidelines to arrest a minor?

India’s legal framework gives special treatment and protection to children below the age of 18 who are in conflict with the law or who commit crimes. Every district has one special juvenile police unit (SJPU) and regular police stations have a Child Welfare Protection Officer (CWPO). Usually, the SJPU has the power of arresting juveniles. In case, A normal police officer arrests the child, the child shall be immediately placed under the protection of the SJPU or the CWPO.1 The child shall continue to remain under the protection of CWPO, who shall be responsible for the child just as a parent/guardian, before the child is brought to the Juvenile Justice Board (JJB) within 24 hours of his/her arrest. In case, the child cannot be produced before the Board due to the child being arrested during odd hours or distance, the child shall be kept by the CWPO in the Observation Home or in a fit facility.

After the arrest is made, the following guidelines are to be followed by the officers to ensure the welfare of Juveniles.

  1. No FIR shall be registered except in cases of heinous offences or where a crime is alleged to have been committed jointly with adults. In all other cases, the alleged offence shall be recorded in the officer’s daily diary.
  2. The arresting officer shall be in plain clothes and not in uniform while arresting the child.
  3. The officer arresting the child shall not place him or her in handcuffs, chain or use force on the child.
  4. The child shall be informed about the reason for the child’s arrest.
  5. The child shall not be placed in a police lock-up or lodged in the jail.
  6. The child shall not be asked to sign any statement.
  7. The CWPO or the SPJU shall inform the parent or guardian of such a child about the child’s arrest and provide them with the address of the JJB before which the child is to be produced  and direct them to be present before the JJB.
  8. A child shall not be forced to confess and shall be interviewed only at the SJPU or at a child friendly premises or a child friendly corner in the police station which does not give the feel of a police station.

The child should be provided with proper medical assistance, assistance of an interpreter or a special educator or any other assistance that the child may require.2

  1. The Juvenile Justice (Care And Protection Of Children) Act, 2015 NO. 2 OF 2016.[]
  2. Ministry Of Women And Child Development Notification, Ministry of Women and Child Development, (2016) available at http://cara.nic.in/PDF/english%20model%20rule.pdf.[]

Guide on Applying for Legal Aid

How can the guide help you?

The Nyaaya Guide on Applying for Legal Aid helps citizens understand how to obtain legal services free-of-cost from Legal Services Authorities in India. This includes information on online and offline application for legal aid along with eligibility criteria to request legal aid. It is important for the citizens to understand how to apply for legal aid so as to ensure that the opportunities for securing justice are not denied to any citizen by reason of economic or other disability.

 

What are the laws discussed in the guide?

The Nyaaya Guide on Application for Legal Aid discusses the law on legal aid outlined in the Constitution of India1, 1950, Code of Criminal Procedure, 19732, Code of Civil Procedure, 19083 and Legal Services Authorities Act, 1987.

Checklists

  1. Check whether the applicant is eligible for free legal aid.
  2. Ensure the applicant has all the relevant documents required for seeking legal aid.
  3. Decide the mode in which application should be filed – online or offline.
  4. Look for the nearest Legal Services Authority if the offline mode is chosen.
  5. Approach the front office of the concerned Legal Services Authority to get the legal aid application form, to seek legal advice, to know status of the case and for any further legal assistance.

 

Sources of Information

  1. Claiming Free Legal Aid / Application Procedure, National Legal Services Authority, available at https://nalsa.gov.in/services/legal-aid/claiming-free-legal-aid-application-procedure
  2. Getting Started Guide, National Legal Services Authority, available at https://nalsa.gov.in/lsams/pdf/NALSA-Getting_Started_Guide_0.1.pdf
  3. Websites of State Legal Services Authorities, National Legal Services Authority, available at https://nalsa.gov.in/home
  4. Front Office Guidelines, National Legal Services Authority, available at https://nalsa.gov.in/acts-rules/guidelines/front-office-guidelines
  5. Legal Aid, Nyaaya, available at https://nyaaya.org/topic/legal-aid/
  6. FAQs, National Legal Services Authority, available at https://nalsa.gov.in/faqs
  7. The National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010 available at https://nalsa.gov.in/acts-rules/regulations/national-legal-services-authority-f ree-and-competent-legal-services-regulations-2010

Juvenile Justice Board

The Juvenile Justice Board is the body that deals with children who have been accused of committing a crime. They are expected to help the child who has committed the crime by:

  • Dealing with the child in the least intimidating and most child-friendly manner possible
  • Ensuring that the child is fully informed so that they can participate in the legal process
  • Ensuring access to legal aid for the child
  • Providing a translator/interpreter if the proceedings are happening in a language that the child does not understand
  • Providing care to the child who has committed the crime by involving the Child Welfare Committee in the matter