Manipur Government's water cannon and arrest of school students are illegal and go against Juvenile Justice Act 2015. Why?
- Part 3 -

Ningombam Bupenda Meitei *

Manipur Police using water cannon to disperse the protesting school students in Manipur on May 29 2016 :: Pix - Shankar Khangembam

(c) Arguments for 4 by using 4(a) and 4(b)

The arguments are as follows;

1. If the police arrest of two school students took place with an FIR being registered against the school students, declaring that the two school students had committed a criminal offence, then the crime committed by the two school students must have had attracted an imprisonment of more than seven years, or the offence must have been committed jointly with adults. If that is the crime committed, then according to the Draft Rules of the Act, that offence should be heinous offence, as serious offence or petty offence shall not ordinarily attract imprisonment of the juveniles – who are the two school students, here. A heinous offence, is a criminal offence which attracts a minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more. According to 86 (1) of the Act, where an offence under this Act is punishable with imprisonment for a term more than seven years, then, such offence shall be cognizable, non-bailable and triable by a Children's Court.

Now, the question is: if at all, an FIR was registered and because of which the two school students, who are supposedly – unless otherwise proved - to be juveniles, were arrested by the state police, then in order to arrest the two, the crime committed must have been "heinous crime" only and the trial of the "heinous crime", as per 86(1) of the Act, is to be conducted only in Children's Court, so, whether the two school students, who were arrested by the police, were tried in Children's Court or not is a valid question. Was the trial done in Children's Court in Imphal? Was the criminal offence committed by the two school students "heinous" in nature?

2. Was the Government of Manipur, through state police, honouring the principle of non-stigmatising semantics of the Act by not objecting to the adversarial or accusatory words which are often used by the police in the processes pertaining to a child, particularly in the case while handling school students of Manipur?

3. Should the Government of Manipur, through police records, ensure that all past records of any child under the Juvenile Justice system should be erased except in special circumstances so that the principle of fresh start, enshrined in the Act, becomes a possibility?

4. Did not the Government of Manipur, through police arrest and resorting to legal proceedings, neglect the principle of diversion of the Act – "measures for dealing with children in conflict with law without resorting to judicial proceedings" – which shall have been promoted unless it was in the best interest of the child or the society as a whole?

5. According to 9(1), 9(3) and 10(1) of the Act, the two school students should have been produced before the Juvenile Justice Board within a period of twenty-four hours of apprehending the child excluding the time necessary for the journey, from the place where such child was apprehended. Were the two school students produced before the Juvenile Justice Board in Imphal, and if so, were they produced within the said 24 hours?

6. According to 12(1) of the Act, the two school students should be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person, otherwise their non-release must be justified by the Juvenile Justice Board which shall record the reasons for denying the bail and circumstances that led to such a decision. It is in this regard that the fellow school students' demand for the release of their classmates – the two school students arrested – is very much in consonance with a legitimate demand of the young citizens of India for the effective implementation of Section 12 of the Act.

According to 12(2) and 12(3), even if the two school students are not released, then they are ought to be kept "only" in an observation home or a place of safety, and not in any other place. If the release of the two school students does not get materialised, then according to 12 (4) - when a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail – the two school students' bail conditions shall be modified by the Juvenile Justice Board. The point is that the duration of "within seven days" of the bail order must be taken note of. Therefore, the question – "Are the two school students to be produced before the Board for modification of the conditions of bail, if at all if they are not released within seven days of the bail order?" – becomes pertinent not only to release the arrested school students but also to uphold the Section 12(4) of the Act.

7. According to 74(1) of the Act, no report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law. And, if anyone contravenes Section 74(1) of the Act, then its Section 74(3) sanctions punishment with imprisonment for a term which may extend to six months or fine which may extend to two lakh rupees or both. What has the state Government of Manipur done to prohibit the disclosure of the identity of the arrested two school students? If either name or address or school of the two school students is already been disclosed, then what has the state Government of Manipur done to prosecute those elements which have attracted punishment under Sec. 74(3) of the Act?

8. When the Government of Manipur, through its state police, used water cannon to disperse the school students who were juveniles, then instead of the state police handling the situation which involved juveniles, Manipur Child Protection Society and Imphal West District Child Protection Unit, as sanctioned in Section 106 of the Act, and Child Welfare Police Officer and Special Juvenile Police Unit, as sanctioned in Section 107 of the Act, were expected to be present in such a situation to not only handle the juveniles but also to implement the Act in toto.

If the Government of Manipur has Child Welfare Police Officer of the nearest police station, under which the school students have gone to demonstrate their resentment in a democratic society, and Special Juvenile Police Unit of Imphal West, then were they – the child welfare police officer and Special Juvenile Police Unit of Imphal West – present in the site where Manipur Police used water cannon to disperse and control the school students? If they were present, then did they or Manipur Police used water cannon? What is the role of Manipur Police in dealing with juveniles demonstrating democratic resentment if Special Juvenile Police Unit of all the districts exist in Manipur?

9. According to Section 108 of the Act, the Central Government of India and state Government of Manipur shall take measures to ensure the general public, children and their parents or guardians to be aware of on the provisions of the Act, but what has the state Government of Manipur done so far to create such public awareness on the provisions of the Act in Manipur to uphold Section 108(a) of the Act? What steps have been taken up by the state Government of Manipur to impart periodic training, as per Section 108(b) of the Act, to its officers, including police officers, on the matters relating to the implementation of the provisions of this Act?

(5) Are children being used by adults? If so, then what can the state do?

(a) Section 83 of Juvenile Justice Act 2015

According to 83 of the Act, it states the following with regard to use of child by militant groups or other adults:

" 83 (1). Any non-State, self-styled militant group or outfit declared as such by the Central Government, if recruits or uses any child for any purpose, shall be liable for rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine of five lakh rupees.

83 (2). Any adult or an adult group uses children for illegal activities either individually or as a gang shall be liable for rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine of five lakh rupees."

(b) Is prosecution not using Section 83 of the Act a sign of non-involvement of adults in using children?

The argument that the school students are being used remotely by adults to pursue the ends that are planned and projected by the adults is also to be considered seriously. But, the point is whether the adults use the school students or not is to be, at the least, required to attract an allegation from the prosecution of such adults by the state of Manipur, which has not happened so far in Manipur. The prosecution, which is to be done by the state of Manipur, is free to invoke Section 83(1) and 83(2) of the Act to save the children from being used by the adult group or any adult or any non-State, self-styled militant group or outfit declared as such by the Central Government.

The onus of proving that the children are being used by the adults lies with the prosecution which is the state of Manipur. In the case of using 83(2) of the Act, the prosecution needs to establish not only the using of children but also the illegal activities being performed. What has stopped the prosecution from booking the adults as per Section 83(2)? What criminality is to be established is to be first presented by the prosecution? Why is the prosecution silent on the use of Section 83(1) and 83(2) of the Act, if the state of Manipur is in serious consideration that the children are being used as against the rule of law, enshrined in the Act? Is not using the power of Section 83 of the Act by the state of Manipur also a sign that the state of Manipur feels that the children are not at all used and therefore, the necessity to use Section 83 does not arise in the present scenario of Manipur?

(6) Conclusion: the future of Manipur lies in the state of being of the present school students of Manipur

The future of Manipur lies in the present state of mind, body and soul of the present students and children of Manipur. If the state police treats the school students in such an inhumane way in a full day publicly by using water cannon in a state's capital city, then what would one imagine on how the same state police behave with the adults of Manipur in a night? The blame shall also not be wholly on the state police but must fall on the state polity and administration. The silence of the political leadership of different political parties is explicitly expressing that hardly no political leader is so seriously concerned about the state of being of the school students of Manipur, at present.

Instead of blaming and attacking the school students, the state of Manipur seems to have even thought of not prosecuting the adults' using of the children, if at all the prosecution proves that the adults' use of children exists for illegal activities. While it appears that prosecuting school children becomes easier by nabbing them from the streets, the prosecution clearly fails to even raise the powers of Section 83 of the Act. The prosecution could also not be a failure in using Section 83 but it could also mean that the adults are not in any way using the school students, meaning that the school students have demonstrated their resentment willfully on their own without any coercion or favour.

The legality and implementation of Juvenile Justice Act 2015 along with its Draft Rules could save many more children from being harassed, discriminated and assaulted by both state and non-state actors or adult or adult groups, and therefore, the necessity to spread the rights of children, as enshrined in the Act, is the foremost presentation that I can offer at this critical juncture of human civilization in Manipur.

Concluded....