WP(C) 1482/2008 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR HON’BLE MR JUSTICE B.P. KATAKEY Madan B. Lokur, CJ This writ petition, filed by the mother of a 16 year old juvenile (since deceased) alleged to be in conflict with law is an unfortunate case of chargeab le callousness, infuriating insensitivity and annoying apathy on the part of all concerned in the care of a juvenile in conflict with law. It is under these cir cumstances that the petitioner has prayed for compensation for the custodial dea th of the juvenile and, in our opinion, she is entitled to compensation to the e xtent of Rs.1,50,000/-. The facts: 2. An allegation was made of a burglary in the residence of one Bimal Kr Bh atera on 10-2-2007. A case under Section 457/380 of the Indian Penal Code was re gistered and ASI Gautam Das was asked to investigate the case. 3. During the course of investigation, the investigating officer arrested A B, aged about 15 years and the juvenile, aged about 16 years on 10-10-2007. 4. Both the juveniles were produced before the Sub Divisional Judicial Magi strate (also doubling up as the Principal Magistrate of the Juvenile Justice Boa rd) who soon remanded them to an Observation Home in Boko, Bamunigaon establishe d under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short the Act ). 5. Thereafter, on 12-10-2007, the juvenile’s father moved an application fo r bailing him out but that was rejected by the Principal Magistrate of the Juven ile Justice Board. Two more applications for bail were subsequently filed but bo th were rejected. 6. Eventually, the matter traveled upto the High Court and in BA No.4478/07 a learned Single Judge passed an order on 28-11-2007 directing the release of b oth the juveniles on furnishing bail bonds of Rs.10,000/- with two sureties of t he like amount subject to the satisfaction of the Principal Magistrate of the Ju venile Justice Board. 7. After the grant of bail by the High Court, bail bonds were submitted by the juvenile’s father on more than two occasions but the Principal Magistrate re jected them on the ground that the sureties were not suitable. 8. Eventually, on 11-1-2008 the juvenile’s father moved an application befo re the Principal Magistrate to the effect that the juvenile is suffering from tu berculosis and he may die if his case is not disposed of quickly. On this applic ation the Principal Magistrate directed the investigating officer to immediately submit a report. 9. It appears that before the matter could be taken up again, the Superinte ndent of the Observation Home at Boko, Bamunigaon informed the Principal Magistr ate by a letter dated 26-1-2008 that the juvenile had expired on 25-1-2008 at ab out 10.30 PM. 10. These facts, though not stated in the writ petition, have come on record through a report filed pursuant to an order dated 26-5-2009 passed by this Cour t. On her part, the petitioner generally brought out the custodial death of the juvenile and sought a direction that the respondents should pay her compensation of Rs.10,00,000/- for his custodial death at the Observation Home at Boko, Bamu nigaon. 11. In the writ petition it is stated that the doctor who conducted the post mortem examination of the juvenile opined that that his death was due to exhaus tion and chronic bilateral pulmonary tuberculosis. The petitioner says that the juvenile was the only earning member of the family and he worked as an embroider y tailor earning Rs.7,500/- per month. It is also alleged that the authorities i n the Observation Home intentionally neglected in providing him medical care and treatment and did not even bother to take him to a specialist TB Hospital in vi olation of the provisions of Section 48 of the Act. 12. The Superintendent of the Observation Home at Boko, Bamunigaon denied th e allegations made in the writ petition. It is stated on affidavit that the peti tioner visited the deceased only once before her son’s illness as did the father of the juvenile but only after he received information about the ailment of the juvenile. It is not clear what is sought to be insinuated by this averment. Be that as it may, the affidavit goes on to state that when the petitioner visited the juvenile, she did not mention anything about his illness. On the other hand, when the authorities in the Observation Home came to know about his suffering f rom fever towards the end of December, 2007 and early January, 2008 he was treat ed at the Bamunigaon Mini Public Health Centre and he recovered after the treatm ent. Subsequently, he again fell ill with fever and vomiting with patches of blo od. He was immediately taken to the Boko Public Health Centre where investigatio ns were carried out and the juvenile’s family was informed about his illness. It is stated that all care was taken to ensure that proper medical treatment was g iven to the juvenile but unfortunately he died before any substantive steps coul d be taken. 13. In view of the conflicting reports, this Court passed an order on 26-5-2 009 directing the Chief Judicial Magistrate, Kamrup, Guwahati to file a detailed report indicating the events that transpired between 10-10-2007, the date of cu stody of the juvenile, till 15-5-2009. Pursuant to this order, the Chief Judicia l Magistrate submitted a report on 15-6-2009 giving the facts of the case and th e relevant details, which we have mentioned above. Issue of compensation 14. Learned Amicus drew our attention to a few decisions of the Supreme Cour t. Reference was made to paragraph 6 of D. Bhuvan Mohan Patnaik v. State of A.P. , (1975) 3 SCC 185 wherein it was observed: [E]ven a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty e xcept according to procedure established by law. 15. Reference was then made to paragraph 10 of Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 wherein it was held: It is the fundamental right of everyone in this country, assured under the inte rpretation given to Article 21 by this Court in Francis Mullin case [Francis Cor alie Mullin v. Administrator, (1981) 1 SCC 608] to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 2 1 derives its life breath from the Directive Principles of State Policy and part icularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the lea st, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities a nd facilities for children to develop in a healthy manner and in conditions of f reedom and dignity, educational facilities, just and humane conditions of work a nd maternity relief. These are the minimum requirements which must exist in orde r to enable a person to live with human dignity and no State - neither the Centr al Government nor any State Government - has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Dire ctive Principles of State policy contained in clauses (e) and (f) of Article 39, Articles 41 and 42 are not enforceable in a Court of law, it may not be possibl e to compel the State through the judicial process to make provision by statutor y enactment or executive fiat for ensuring these basic essentials which go to ma ke up a life of human dignity but where legislation is already enacted by the St ate providing these basic requirements to the workmen and thus investing their r ight to live with basic human dignity, with concrete reality and content, the St ate can certainly be obligated to ensure observance of such legislation for inac tion on the part of the State in securing implementation of such legislation wou ld amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Article 256 which provides that the executive pow er of every State shall be so exercised as to ensure compliance with the laws ma de by Parliament and any existing laws which apply in that State. 16. More recently, in a case of custodial death, the Supreme Court relying u pon D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 held the State of Uttar Pradesh responsible in public law to compensate for the death of the victim. [Se e Ajab Singh v. State of U.P., (2000) 3 SCC 521]. 17. Even more recently, the Supreme Court laid down the law on the subject a fter exhaustively dealing with a large number of precedents. It was held in Sube Singh v. State of Haryana, (2006) 3 SCC 178 (paragraphs 45 and 46 of the Report ): 45. Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compare d to cases where such violation is doubtful or not established. Where there is n o independent evidence of custodial torture and where there is neither medical e vidence about any injury or disability, resulting from custodial torture, nor an y mark/scar, it may not be prudent to accept claims of human rights violation, b y persons having criminal records in a routine manner for awarding compensation. That may open the floodgates for false claims, either to mulct money from the S tate or as to prevent or thwart further investigation. The courts should, theref ore, while zealously protecting the fundamental rights of those who are illegall y detained or subjected to custodial violence, should also stand guard against f alse, motivated and frivolous claims in the interests of the society and to enab le the police to discharge their duties fearlessly and effectively. While custod ial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture. 46. In cases where custodial death or custodial torture or other vio lation of the rights guaranteed under Article 21 is established, the courts may award compensation in a proceeding under Article 32 or 226. However, before awar ding compensation, the Court will have to pose to itself the following questions : (a) whether the violation of Article 21 is patent and incontrovertible, (b) wh ether the violation is gross and of a magnitude to shock the conscience of the c ourt, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or d isability. Where there is no evidence of custodial torture of a person except hi s own statement, and where such allegation is not supported by any medical repor t or other corroborative evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, the courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the a ggrieved party to the traditional remedies by way of appropriate civil/criminal action. 18. While it is true that the Supreme Court was dealing with a case of custo dial torture, we are of the opinion that the principles laid down are equally ap plicable in a case of custodial death due to neglect in providing adequate medic al treatment - more particularly to a juvenile who is unable to otherwise even f end for himself. Therefore, even if there is no physical violence, but the cause of custodial death is attributable to carelessness, wanton or otherwise, on the part of State functionaries, the State is responsible in public law to compensa te for the death. Starvation or deprivation of food or water is an example of ca using custodial death without any violence. So also would a case like the presen t fall in the same genre - causing death by denying timely medical treatment. 19. In terms of the decision of the Supreme Court, the questions that we are required to answer are: (a) Whether the violation of Article 21 is patent and incontrovertible? In our o pinion, the answer to this must be in the affirmative. That the juvenile was in custody is undeniable. That the juvenile was unable to avail of the bail granted to him by this Court is also undeniable. That the juvenile’s father was unable to get him released on bail due to poverty is also undeniable - the fact that th e juvenile remained in custody for almost sixty (60) days after bail was granted by this Court confirms his poverty. Therefore, even though in a sense the custo dy of the juvenile was unobjectionable (the custody having been ordered by the J uvenile Justice Board) yet its continuance was constitutionally invalid because the juvenile remained incarcerated despite a bail order in his favour only becau se of his poverty. And he remained so until his unfortunate death. Under these c ircumstances, we have no doubt that there was a patent and incontrovertible viol ation of Article 21 of the Constitution. (b) Whether the violation is gross and of a magnitude to shock the conscience of the Court? The answer to this question must also be in the affirmative. That a custodial death occurred is bad enough but what certainly makes it gross is that the death was of a juvenile, who was accused not of a heinous crime, but of bur glary. What shocks the conscience of this Court, in this case, is that the juven ile died of callous neglect - failure to be treated for TB, a disease that is no t latent in the terminal stages. What makes it worse is that even according to the affidavit filed by the Superintendent of the Observation Home, the father of the juvenile had visited him when he was ailing. It is soon thereafter that he moved another application for bail alleging that the juvenile is suffering from tuberculosis and he may die if his case is not disposed of quickly. Notwithstand ing this, neither the police nor the authorities in the Observation Home (who sh ould have been aware of the illness) took any substantive steps to have the juve nile treated for TB. It is this that ultimately cut short his life. To us, the e ntire sequence of events is rather shocking and telling. (c) Whether the custodial torture alleged has resulted in death or whether custo dial torture is supported by a medical report or visible marks or scars or disab ility? That the avoidable custody of the juvenile contributed to his early demis e is undeniable. Whether violence was the cause of death is not relevant, as we have already held earlier. Public law remedy 20. The facts of the case having satisfied the parameters set out by the Sup reme Court, we have now to decide whether the public law remedy of awarding comp ensation should be exercised in this case or not. 21. As the Supreme Court noted in Bandhua Mukti Morcha everyone has a right to live with dignity - indeed this is the essence of Article 21 of the Constitut ion. It is of no consequence that the person is a convict or an under-trial pris oner or a juvenile resident of an Observation Home who is in conflict with law o r a free person. On the facts of this case, we have been shown no reason to deny to the petitioner the public law remedy of claiming compensation for the custod ial death of her son. Indeed, given the poverty of the petitioner, immediate suc cour is necessary and this can only be provided by giving her access to a public law remedy rather than to relegate her to the traditional remedies by way of a ppropriate civil/criminal action . 22. Additionally, we find that there are a series of violations or misinterp retations of the provisions of the Act which can be noticed only in a public law action. We propose to describe some of them. 23. First and foremost it is necessary to draw attention to Section 12 of th e Act which deals with bail to a juvenile. This Section reads as follows:- 12. Bail of juvenile.- (1) When any person accused of a bailable or non-bailabl e offence, and apparently a juvenile, is arrested or detained or appears or is b rought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the tim e being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the release i s likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the end s of justice. (2) When such person having been arrested is not released on bail under sub-sect ion (1) by the officer in charge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he ca n brought before a Board. (3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an o bservation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order. 24. A reading of Section 12(1) of the Act makes it clear that notwithstandin g anything contained in the Code of Criminal Procedure or in any other law, a ju venile is entitled to be released on bail with or without a surety. However, the juvenile will not be released if there appear to be reasonable grounds for beli eving:- (i) that the release is likely to bring him into association with any known criminal; (ii) that the release is likely to expose him to moral, physical or psycholog ical danger; (iii) that the release would defeat the ends of justice. 25. Unlike the usual cases where bail is applied for by an accused and he ha s to make out a case for grant of bail, the position is the reverse in the case of a bail for a juvenile in conflict with law. Here, it is not for the juvenile to make out a case why he should be granted bail but it is for the arresting aut hority to satisfy the Juvenile Justice Board that the juvenile should not be rel eased on bail because of the existence of any one of the three circumstances men tioned above. The first and second circumstances are clearly intended to ensure the safety of the juvenile while the third circumstance is to prevent a defeat o f the ends of justice. The onus therefore is a reverse onus and is more akin to the prosecution asking for a remand of an accused into custody rather than a pra yer by the accused for being released from custody. The language used in Section 12(1) of the Act is rather interesting in this context, and shorn of unnecessar y verbiage, the Section would read: such (a juvenile) shall be released on bail , but he shall not be so released if there appear reasonable grounds for believi ng that the release is likely to &. . Refusal to bail out a juvenile is, therefo re, more in the nature of protective custody rather than penal custody. 26. This interpretation of Section 12(1) of the Act is in consonance with th e Convention on the Rights of the Children (CRC), the United Nations Standard Mi nimum Rules for Administration of Juvenile Justice, 1985 (the Beijing Rules) and the United Nations Rules for the Protection of Juveniles Deprived of their Libe rty. For example, Article 37 of the CRC provides, inter alia, Article 37. States Parties shall ensure that: (a) xxx xxx xxx (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest app ropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect f or the inherent dignity of the human person, and in a manner which takes into ac count the needs of persons of his or her age. In particular, every child deprive d of liberty shall be separated from adults unless it is considered in the child ’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circums tances; (d) xxx xxx xxx 27. Similarly, Article 10 of the Beijing Rules provides: 10. Initial contact 10.1 Upon the apprehension of a juvenile, her or his parents or guardian shall b e immediately notified of such apprehension, and, where such immediate notificat ion is not possible, the parents or guardian shall be notified within the shorte st possible time thereafter. 10.2 A judge or other competent official or body shall, without delay, consider the issue of release. 10.3 Contacts between the law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promot e the well-being of the juvenile and avoid harm to her or him, with due regard t o the circumstances of the case. 28. Finally, the United Nations Rules for the Protection of Juveniles Depriv ed of their Liberty provides as follows, in paragraphs 1 and 2 of the Fundamenta l Perspectives: 1. The juvenile justice system should uphold the rights and safety and promot e the physical and mental well-being of juveniles. Imprisonment should be used as a last resort. 2. Juveniles should only be deprived of their liberty in accordance with the p rinciples and procedures set forth in these Rules and in the United Nations Stan dard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules ). Deprivation of the liberty of a juvenile should be a disposition of last res ort and for the minimum necessary period and should be limited to exceptional ca ses. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release. 29. The main principle invoked in this regard is the presumption of innocenc e, namely that everyone, including a juvenile, is presumed to be innocent until proven guilty. It is to uphold the principle that the detention of a juvenile sh ould be for the minimum period of time and keeping in mind the presumption of in nocence, the prosecution must show to the Juvenile Justice Board that it would b e in the best interest of the juvenile if he is kept in custody (rather than not released from custody). 30. In view of the failure of the Juvenile Justice Board to observe this pri nciple, we direct all the Juvenile Justice Boards falling within the jurisdictio n of this Court to take note of the interpretation that we have given to Section 12(1) of the Act and adhere to it. 31. The second disturbing aspect of the case is that it appears the Juvenile Justice Board constituted under Section 4 of the Act did not actually sit or as semble