In November, 2011, the Asian Centre for Human Rights released a report titled “Juveniles of Jammu and Kashmir: Unequal Before the Law & Denied Justice in Custody” that describes how internationally accepted human rights norms are violated while dealing with juveniles in conflict with the law (JCLs) in Jammu & Kashmir. Minors in pre-trial detention are assumed to be adults and are routinely detained with adult criminals, placing them at very high risk of abuse. While school certificates are used to determine the age of a minor in the rest of India, police in J&K in all cases argue that those detained are adults. There are no juvenile courts and no child welfare committees; there is no juvenile home for girls and lack of juvenile homes means that children are often detained alongside adults.
According to the inconsequential Jammu & Kashmir Juvenile Justice Act of 1997, a boy aged 16 years or above can be imprisoned for life, given corporal punishment and even capital punishment. The demand for raising the cut-off age to 18, as in the rest of India, has fallen on deaf ears. Proxy arrests, wherein the parents of the juvenile accused are detained instead, are not unheard of!
Amendment As A Solution?
While we have been crying hoarse, asking for an amendment, even the existing provisions of the 1997 Act are not adhered to. Furthermore, the Public Safety Act (PSA) is the easy way out for police. Lazy law enforcement techniques such as arbitrary ‘preventive’ detentions under PSA are used to bypass rules and standard operating procedures. Often, such measures have nothing to do with ‘law enforcement’ but are only used to extract money from the parents of these poor kids. Even if an amendment comes through, it will take decades to implement. The rules under the 1997 Act, for example, were notified only in 2007 and even those are flouted brazenly.
No Rule of Law
The real problem in J&K is complete disregard for the rule of law. Anything is justified in the name of “law and order”. An amendment is only the first step; the demand should be not only for a sound law but also for a sound juvenile justice system and a legal environment where the rule of law is upheld. Even amidst raging public anger against the juvenile accused in the recent Delhi gang rape case, he was treated in accordance with the provisions of the existing law and his identity was completely safeguarded.
Room for Excuses
Amidst hue and cry over the Delhi gang rape, the demand for reviewing the juvenile age looms large. The distinguished Justice Verma committee upheld the current age of 18 as the cut-off. It is laughable how enthusiastic Omar Abdullah is about implementing the committee’s recommendations in the J&K state while he has been completely indifferent to the demand for raising the juvenile age to 18 in his own state, as upheld by Verma committee. The extension of AFSPA to the state was absolutely smooth but financial hurdles, among other things, are cited when the demand for a proper juvenile justice system is made. Now that the Supreme Court is re-examining the constitutional validity of the definition of ‘juvenile’, I won’t be surprised if the state uses this opportunity to buy time even in the upcoming assembly session, despite the finance department’s nod to the amendment bill.
Shehla Rashid Shora is a Kashmiri, a woman and a researcher/writer in that order. She can be contacted at www.shehlarashid.com