‘Law Restores, Rehabilitates the Child, Not Punishes Him’

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Director Jammu and Kashmir State Judicial Academy of J&K High Court, Abdul Rashid Malik is also the Secretary of Juvenile Justice Committee of Jammu and Kashmir. After joining the Judicial Service in December 1997, as Munsiff, he has risen the ranks to become the Principal District and Sessions Judge. He talked to Umar Mukhtar about the juvenile justice system in the state

KASHMIR LIFE (KL): Who are the inmates of the Juveniles Home and what are their crime?

ABDUL RASHID MALIK (ARM): Juvenile Homes are meant for children below 18 years of age who are alleged to have committed offence or are in conflict with the law.We have two Homes in the state, one each at Harwan (Srinagar) and R S Pura (Jammu) with 10 to 12 children lodged in each home.

KL: Cases pertaining to juveniles are supposed to be seen by the Board but in J&K they are addressed through conventional courts?

ARM: As per Juvenile Justice (Care and Protection) Act 2013 and Rules 2015, the government is required to establish Juvenile Justice Boards in each district to hear the cases of juveniles. The Board is supposed to be headed by the Principal Magistrate and two social workers but at present, there is no such board. The powers of the boards are vested in the Chief Judicial Magistrates.

 Efforts are on to ensure the Boards are set up in every district. The High Court is hearing the public interest litigation on the implementation of Juvenile Justice system in the state and several directions have been issued to the state government to set up the Boards and Child Welfare Committees as early as possible. The ordinary courts cannot do justice to the child. He requires reformation, restoration and rehabilitation. He requires love and affection and the parental treatment. If a child mixes with the adult criminals, he can suffer an irreparable damage. Judiciary is committed to ensuring that children in conflict with the law are not punished but are provided with a congenial atmosphere for their growth and development. Juvenile Justice Act nowhere prescribes any punishment for a juvenile but stresses upon rehabilitation and restoration.

KL: How do you see the recent amendment in the Juvenile Act where it was stated that the minors who are 16 plus, if found indulging in any heinous crime like rape or murder, will be tried as adults?

ARM: The amendment is not applicable to Jammu and Kashmir. We have a Juvenile Justice Care and Protection of Children Act 2013, where the age of juvenility is less than 18 years.

KL: Is one Home sufficient for Kashmir which has more than seven million people?

ARM: Home is required to be set up in every district irrespective of the number of children as a child needs personal care and treatment. It is expected that the state government, in order to ensure implementation of the Juvenile Justice Act in letter and spirit, may set up Homes in every district. This is the need of the hour.

KL: What facilities are required to be there at Home? Do we have all the facilities?

ARM: In the light of the standards set forth under the Juvenile Justice (care and protection of children) Rules 2014, the Observation Home or Children’s Homes are required to have an adequate physical infrastructure, facilities for clothing and bedding, sanitation and hygiene daily routine,  adequate provision for nutrition and diet, medical care, mental health, education, vocational training, recreational facilities, maintenance of case files, rewards and benefits for maintaining good behaviour, communication with juveniles and all other facilities essential for the development of the child.

The Juvenile Justice Committee of the High Court conducted the inspection at Harwan Home and an inspection report was prepared by the Secretary Juvenile Justice Committee High Court highlighting the deficiencies found in the home. The copy of the report was submitted to the High Court for appropriate action and remedial measures. High Court has given directions to the Social Welfare Department to upgrade the Homes as per the standards laid down under the law.

KL: Parents of boys held in the Home complain it faces a dearth of staff, non-availability of an ambulance and there is no playground.

ARM: After the inspection by Chief Justice High Court and Hon’ble Chairman Juvenile Justice Committee and their interaction with the children lodged there, the conditions have improved. The medicare facilities and food provided to the children are being taken care of by the Social Welfare Department in a better way, now. Immediately after the inspection, the children lodged there were provided proper medical treatment. Justice Madan B. Lokur, Judge Supreme Court of India, who is also the chairman of Juvenile Justice Committee of the Supreme Court, also visited the Home on September 9, 2017, on the sidelines of first ever State Round Table Conference on Juvenile Justice.

KL: There are also allegations that minors are being locked up in the police stations for months and tortured.

ARM: In J&K, it was for the first time that the State Level Round Table Conference on the implementation of Juvenile Justice Act was organized by the High Court. It was presided over by Justice Madan B Lokur, Chief Justice of J&K High Court. Judges of the High Court, state Chief Secretary, Director General of Police, Judicial Officers, Police Officers, Officers of Social Welfare Department and Officers of Law Department were amongst the audience. All the stakeholders were sensitized about their duties towards the children in light of the law. A child is to be treated with love and affection. He can never be subjected to torture and ill-treatment. A child cannot be kept in the police lockup. In every district, a child protection unit of police is required to be set up to deal with the child. The police officers have to behave with the child like a parent behaves with his own child. The punishment or detention of the child is nowhere envisaged under the law. If anybody ill-treats a child, he is violating the Constitutional duties and is liable to punishment.

KL: Are the juvenile kept together in the Home irrespective of the allegations against them?

ARM: A child is a child irrespective of the crime he has committed. Therefore, only under exceptional circumstances, he can be lodged in the Juvenile Home otherwise he is required to be released on bail and handed over to his family. The family atmosphere is essential for the growth of the child that is why Juvenile Justice Act has made provision for bail of the child and in case there is a threat to his life outside, he can be lodged in the Home.

Law suggests separate Homes for male and female children, with provisions for their education, vocational training, and recreational facilities. A grown-up child and a tender age are required to be classified so that the child of tender age is not harassed in the Home. All children must feel relaxed and not disappointed, depressed and harassed. All these aspects have been taken care of in the inspection report.

KL: Can minors be retained in Homes indefinitely?

ARM: The case of the juvenile is required to be decided within four months of the inquiry against him has to be completed within this time. The law envisages a fast-track mechanism for dealing with the cases against juveniles. Once the Act along with rules is implemented in the state in letter and spirit, you will never find a child even at Home beyond four months.

KL: So the Home is not the lock-up?

ARM: Juvenile Home is meant for care and protection of the children. The child should feel relaxed in the home. His disappointment, guilt, and depression shall fade away. The Home is meant for his rehabilitation, restoration, and development. The Observation Homes and Children Homes are meant to reassure the happy childhood of the child in conflict with law or in need of care and protection as envisaged under section 21 of the Constitution of J&K.

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