One of the best chroniclers of the history of juvenile justice in India is undoubtedly Prof Ved Kumari. She is an undying believer in the capacity of the young offender to reform and the need to have a separate system for children who come in conflict with the law. I have attended her lectures, been on panel discussions with her in seminars and workshops, watched her trainings and even had the privilege of conducting a session with her.
She invariably takes the participants back to their childhood and asks them to recall if they have ever done anything which, had they been “caught,” would have constituted an offence. As is to be expected, there is seldom anyone who can say he or she never did any such thing. But what they describe never constitutes what is popularly called a “serious offence.” That’s when the narrative gets all garbled and muddy.
Talking about this, Ved Kumari says, “The tension becomes palpable when a plea of juvenility is raised by a defendant charged with serious offences. This situation can be viewed as an attempt to take advantage of the juvenile justice system, and not as the exercise of a recognised right of the child.”
Explaining this dilemma, she cites the example of Ajmal Kasab, who had been convicted and then hanged for his involvement in the terrorist attack on the Taj Hotel and other places in Mumbai, which killed hundreds of people. Ajmal Kasab had at one stage raised the defence of being a child on the date of offence. She says, “His plea was rejected, as he was not found to be a child. However, it did raise a crucial question: how many of us would have been comfortable if Kasab had indeed been a child on the date of the terrorist attack?”
Clearly, most of the country would have been deeply uncomfortable. They were much more comfortable at his being hanged, as they would have been if a similar fate had been meted out to the juvenile who was named as an accused in the Nirbhaya case. Even after the four adults were hanged, people felt that full justice had not been done as the “juvenile got away.”
Because most of us see the offence and not the offender, it becomes important to dedicate a chapter to all those people who do not give up on children, those who trust and believe that they can reform and make a fresh start, and are willing to work towards that. Although a minority, given the huge numbers who are on the other side, they do exist. And it is because they do that children get a chance.
Had Vasudha Dhagamwar, for example, not stood up for the four Pahadiya boys in 1980, their case would never have come up before the Supreme Court, and they might have still been languishing in prison. Had Advocate Anup Bhambhani (now judge in the Delhi High Court) not represented the minor and advocate Vrinda Grover the intervening organisations in Dr Subramanian Swamy and Ors vs Raju, we would not have got the landmark judgement that we did from the Supreme Court of India.
(There were several well-known lawyers who had refused to represent the minor in this case, and in fact even refused to be the advocate-on-record!)
There are many like them, spread across the country and around the globe. It wouldn’t be possible for me to include the stories of all of them here. I must therefore include only a few examples. These are academics, judicial officers, lawyers or have worked with or on juvenile justice, and have mentored many others like themselves. They are individuals who give us hope for the future.
Ved Kumari’s interest in juvenile justice dates back to before the start of her professional career – to 1978, when she was doing her LLM. When Professor Upendra Baxi, her guide, suggested that it was important to understand the context of the law, she decided to step out and acquaint herself with the workings of the juvenile justice system. Her interactions with children, who are the subject of this law, and also the subject of her dissertation, and the stories she heard helped her understand whether and how the law is being implemented. As she says, “I think once you interact with a child, it’s very difficult not to think about them after your official dissertation is over.”
Ved Kumari is one of the exceptions who went seeking to work with children who offend. For most, it suddenly “happens” for them. They either find themselves “appointed” for the job or meander into it unknowingly and never give up.
One such individual was Father Placido Fonseca, a Jesuit priest, and director of the orphanage Snehasadan in Mumbai since 1970, who passed away in 2021 at the age of 84. He always believed that the child is never wrong. As a result, he insisted on no background checks for any child coming or sent to Snehasadan. “We adults are wrong in the way we have communicated with him or her, hurting and upsetting the those who never give up on children child,” is what he would tell Sangeeta Punekar who worked with him since 1988 till he passed away. It was what he expected every social worker in his team to believe, she says.
Snehasadan is designed as an open facility. There has never been a lock and key there. It is designed to run on trust. If a child ran away, Father Placie, as he was better known, would send off his social workers to find them and bring them back. But he never judged them for what they may have done – although many found themselves on the wrong side of the law while living on the streets or on railway platforms.
Amin Sheikh describes his life and journey in Bombay, Mumbai. Life is life. I Am Because of You (2016). He grew up in Snehasadan. Reading his story, one cannot help but be astonished how many times he barely escaped being arrested. Had the team of Snehasadan not believed in him, given him the chance for a fresh start, he could have ended up among the countless nameless, faceless CICL of India.
Advocate Maharukh Adenwalla is passionate often to the point of being obdurate when it comes to issues around juvenile justice. But one cannot but love her for it. She will fight tooth and nail for “her boys” or “her girls” because she believes that each one of them needs another chance. Hasshe never felt let down by her “boys”? We ask her. “Of course, I have,” she responds. “But just because of that one, should I give up on the others? Nevvver,” she says in her distinct Parsi accent!
Excerpted with permission from Juvenile, Not Delinquent: Children in Conflict With The Law, Enakshi Ganguly, with Kalpana Purushothaman and Puneeta Roy, Speaking Tiger.