ARBITRARY ARRESTS AND ATROCITIES : AN INSIGHT INTO THE ILLEGAL DETENTION OF THE INNOCENCE OF OUR STREET CHILDREN
Name: Tanisha Choudhary & Kinjal Trivedi
College: SVKM’s Pravin Gandhi College Of Law
“No one shall be subjected to arbitrary arrest, detention or exile”
(Universal Declaration of Human Rights, article 9)
The Universal Declaration of human rights is an instrument that bestows to each and every person certain rights, and the recognition of these inalienable rights of all the humans forms the basis of justice and peace in the world. Hence, every time an individual’s rights get violated the justice and peace in the society gets disrupted. Individuals have various rights like the right to freedom of religion, right to life and liberty and the right to nationality. Once such right is the right to protection from arbitrary arrest, detention or exile.
‘Arbitrary’ means based on random choice or personal whim, rather than any reason or system. Detention is defined as the condition of any person deprived of his personal liberty, except as a result of a conviction for an offense . Detention in itself is not a violation of human rights, but when it becomes arbitrary, and not on grounds in accordance with the law, it can prove to be a threat to the liberty of a person. Deprivation of liberty becomes arbitrary when it is not possible to give a legal justification, as in the case of a person who is kept in detention even after the completion of his sentence. It is also arbitrary when it arises as a result of the exercise of some other fundamental rights and freedoms. Another ground for detention being arbitrary is when there is non-compliance with the international and state laws related to the right to a fair trial. When the deprivation of liberty results in discrimination on the basis of race, nationality, gender or sexual orientation, it is considered willful. Basically, when a person is alienated from his right to liberty on grounds not justified by any national or international laws, but rather on the despotic and discretionary exercise of the authority of those in power, it becomes arbitrary.
It is pertinent to note that various instruments have different nomenclatures to describe the term “deprivation of liberty”, such as “arrest”, “apprehension” “detention”, “incarceration”, “prison”, “reclusion”, “custody”, “remand”, etc, but they all imply the same concept. The practice of arbitrarily detaining citizens and noncitizens is prevalent in every country, and this practice knows no boundaries. No person is immune from being arrested and locked up in a cell. There are various types of detentions for various different grounds, namely administrative detention for counter-terrorism, national security purposes, detention of persons with a mental illness , disabilities, military detention, police detention (particularly in crowd-control situations or following arrest without warrant), preventive detention (particularly in cases of apprehension of threat) , etc. The refugee crisis has naturally increased the detention of asylum seekers and immigrants too, and it has a serious impact on individuals and families. Perhaps the most grievous part is that not even young children are protected from the clutches of this grave violation of their human rights. This paper aims at analyzing the arbitrary detention of street children, especially the street children of India, and the subsequent violations of their human rights.
Due to a lack of record keeping, the number of children that have detained is difficult to arrive at, but UNICEF has estimated that approximately 1 million children are behind bars. They are held in demeaning, heart-wrenching conditions.
Article 37 of the Convention of Child Rights explicitly states that
“(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age;
(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 appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived 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 circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”
In addition to this, the International Covenant on Civil and Political Rights, in its Article 9 confirms that “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”
The Beijing Rules also provide certain rights for juveniles. Rules 7.1 provides for “Basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings”
Rule 13 talks about detention pending and explain that it shall be used only as a measure of last resort and for the shortest possible period of time. Rule 13.2 states that “Whenever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home.”
All these rights, rules and regulations have been provided for the better administration of justice among minors. They have in their ambit the protection of children who are being captured and detained and ironically, children aren’t even aware of them. Things are very different in real life. De jure and de facto, the circumstances and situations are poles apart. Ideally, every child deserves freedom and a life of dignity, but a vast majority of them are deprived of the bare minimum, even their basic human rights are being violated.
Many children or adults who were tried as children have been held, imprisoned and been given punishments, quite disproportionately. In fact, some of the children have been held for frivolous reasons, like skipping schools, running away from home, or even having sex or getting an abortion. In a study conducted by the Texas Public Policy Foundation it has been found out that in 2010, over 6000 kids were being detained on grounds like curfew violations, truancy, and underage drinking. There are various other reasons, that are completely unjustified and in contravention of the international rules but are used by local law enforcement authorities around the world to keep children in detention. Children with disabilities are kept under observance in the name of protection. Migrants and asylum seekers are being detained as a measure of security, safety and to enforce migration laws, and with them, their children are also being kept in custody. This is an example of a completely unjust and arbitrary detention because there are no lawful grounds for their detention. Another instance is seen in countries like Laos and Vietnam, where children are sent to drug detention centers in the guise of treatment and rehabilitation but are treated in inhumane ways. Some of them were locked in a room, chained to their beds and beaten up by soldiers. Children all around the world are being subjected to brutal, often deadly conditions, abuse by the police and military officials and even abuse in various forms by the adult inmates of the cells in which they are kept. The worst state is that of the street child, whose various rights were already being infringed, and who has to endure even more torture at the hands of the detaining authorities.
An analysis in Burundi, Africa revealed that children were treated as adults in courtrooms and prison. There is no separate system for juveniles and they are given the same punishments as their major counterparts. It was noted that in 2006, 75% of these illegally arrested juveniles were awaiting trials in cells. In addition to that, there were no provisions in Burundian law for access to legal aid. In the prisons, where the children awaited trials, interviews revealed that children were vulnerable to sexual abuse. Sometimes they were forced to provide sexual services in exchange for food.
In the Philippines, street children were being detained just to make the streets appear “clean”, prior to the visit of the Pope. ‘Street cleaning campaigns’ have been carried out in other countries too, and just putting someone in jail for that purpose is by nature arbitrary. In Hanoi, there were the roundup campaigns, whose purpose was to reunite street children with their families, but in actual practice, rarely these children were allowed to communicate with their families. 
A report from Bangladesh likewise reveals the injustice and abuse of so-called ‘protective’ or ‘safe custody’ provisions which have the effect of criminalizing children in need of care and protection: “Hungry children were picked up by the police with the temptation of food (which was not at all forthcoming in the detention cells). There has been at least one case where the rape victim herself was detained while the assailant (incidentally a policeman himself) was left untouched”.
There are so many instances when asked the kids about their treatment in the detention Centre’s they are perplexing. For instance, a Bangladeshi boy’s comment about his detention experience was disturbing ‘Newcomers are pestered and searched by the prisoners and drug addicts for money. We are beaten if we don’t have money. Sometimes the police take all our money. At times we are detained for four days … without being taken to court. These are never recorded in the books (police records)’.
Apart from children being put in jails, there are children that are involuntarily being put in remand homes too. The condition of children in detention centers is much worse than even imagined as per the findings, prior to the government reforms in the detention centers in Andhra Pradesh, a particular place in Vishakhapatnam where children have been raided by an NGO, they described the condition of children to be appalling. They had limited access to the education provided by the state, there was no revelation of the state budget when asked which was for the development for the betterment of the children. There was no proper sanitization, no required amount of clothes, no proper bedding for them. In such horrendous conditions, children’s were forced to survive, just under the pretext of state’s welfare scheme for the homeless and street children.
According to 1994, UNICEF estimated that there were 11 million street children in India. This number is said to be a drastic under-estimation. The Indian embassy estimated 314,700 street children in cities like Bombay, Calcutta, Madras, Kanpur, Bangalore and Hyderabad and around 100,000 street children in India.
In the Constitution of India, Articles 14, 15, 15(3), 19(1)(a), 21, 21(a), 23(1), 24, 39(e), 39(f) and 45 have direct impact on the welfare and development of the nations child. Subsequently, the right of a child to food, right to education and right to life and personal liberty, and dignity are getting violated to an extent we cannot even imagine. Sexual abuse, battery, assault, use of inappropriate language, treating children without the slightest hint of humanity had adverse effects on them.
Keeping the plight of street children in mind, there is a dire need for a legislation that aims towards the protection of these innocent lives and shields them from the long-lasting, often scarring physical and psychological impacts of being put into jail. They face a lot of atrocities both inside and outside prisons, and the best solution would be to give them the childhood they deserve; one where they receive an education and become better humans, and not where they have to beg for a living, live in constant fear of arrest by the police, get beaten and sexually abused by the police and prisoners alike, and are overall living a life far from dignity. In this view, the suggestion of a legislation, solely for the prevention of the arbitrary detention of street children in India, is proposed. This legislation would be in concurrence with the Juvenile Justice Act. The formation of a Central Board at the national level and a District Board in each district, that looks after the welfare of these children should be incorporated into the Act. Serious punishments should be inflicted upon those who subject these children to arbitrary detention and abuse of any form. The District Board should keep a close check on the functioning of police stations in their respective districts. Apart from this, the Central Board should look after the social integration and provision of basic rights to the children. Psychological aid, shelter, and proper food, according to appropriate nutritional must be provided to these children. Education, recreational activities and other forms of learning should be made available to the shelters where these children reside so that it facilitates their all around, holistic development. They should be provided with identification. All inquiries in these matters would be directed towards these Boards and annual reports should be submitted to them. After all, the problem of injustice to street children will take time to vanish, but with regulations, we can protect our innocent. They are the future of India, and steps need to be taken to shield their human rights so that it aids in the all-around development of our country.
 Preamble of the Universal Declaration of Human Rights , http://www.un.org/en/universal-declaration-human-rights/ , Last accessed : 30/9/2017
 Article 18 of the Universal Declaration of Human Rights , http://www.un.org/en/universal-declaration-human-rights/ , Last accessed : 30/9/2017
 Article 3 of the Universal Declaration of Human Rights , http://www.un.org/en/universal-declaration-human-rights/ , Last accessed : 30/9/2017
 Article 15 of the Universal Declaration of Human Rights , http://www.un.org/en/universal-declaration-human-rights/ , Last accessed : 30/9/2017
 Article 9 of the Universal Declaration of Human Rights , http://www.un.org/en/universal-declaration-human-rights/ , Last accessed : 30/9/2017
 Definition from the Oxford dictionary. https://en.oxforddictionaries.com/definition/arbitrary. Last accessed :28/09/17.
Fact Sheet No. 26, The Working Group on Arbitrary Detention, http://www.ohchr.org/Documents/Publications/FactSheet26en.pdf, Last accessed : 30/9/2017
 The deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.
Opinions adopted by the Working Group on Arbitary Detention at its seventy fourth session, 30th November- 4th December, 2015, http://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Issues/Detention/A.HRC.WGAD.2015.docx&action=default&DefaultItemOpen=1, Last accessed : 30/9/2017
 Ibid 8
 Ibid 10
 Ibid 10
 Ibid 10
 Ibid 10
 REMEDIES AND PROCEDURES ON THE RIGHT OF ANYONE DEPRIVED OF HIS OR HER LIBERTY BY ARREST OR DETENTION TO BRING PROCEEDINGS BEFORE A COURT , University of Oxford, Faculty of Law, http://ohrh.law.ox.ac.uk/wordpress/wp-content/uploads/2014/05/2014.6-Arbitrary-Detention-Project.pdf
 A street child has been defined in three categories : 1. Children on the Street : “Forming the largest category, these are children who have homes; most return to their families at the end of the day.”
- Children of the Street: These children are a group who have chosen the street as their home and it is there that they seek shelter, livelihood, and companionship. They have occasional contacts with their families.
- Abandoned Children: These children have severed all ties with their families. They are entirely on their own, not only for material survival but also psychologically.
 "child" in Article One of the United Nations Convention on the Rights of the Child which states: "For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier."
 Human Rights Watch : Children Behind Bars, Michael Garcia Bochenek, https://www.hrw.org/world-report/2016/children-behind-bars, Last accessed : 30/9/2017
 Ibid 20
 http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf, Last accessed : 30/9/2017
 http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx, Last accessed : 30/9/2017
 United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules"), http://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf,
 Ibid 20
 Ibid 20
 Ibid 20
 Ibid 20
 Ibid 20
 Ibid 20
A juvenile is every person under the age of 18. The age limit below which it should not be permitted to deprive a child of his or her liberty should be determined by law.
 Human Rights Watch, Paying The Price, https://www.hrw.org/report/2007/03/15/paying-price/violations-rights-children-detention-burundi, Last accessed : 30/9/2017.
 Human Rights Watch, Children of the Dust ,https://www.hrw.org/report/2006/11/12/children-dust/abuse-hanoi-street-children-detention, Last accessed : 30/9/2017.
 ChildlineIndia Foundation. Street Children. http://childlineindia.org.in/street-children-india.htm 30/09/17.
 Ibid 32
 Article 1 of the Universal Declaration of Human Rights , http://www.un.org/en/universal-declaration-human-rights/ , Last accessed : 30/9/2017
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