Juvenile Justice: A Critique

A report based on the first-hand study suggests the Jammu and Kashmir’s criminal justice system is utterly inadequate in addressing the alienation of Kashmir’s youth while failing to respect the commitments of juvenile rights, reports Durdana Bhat

Mohsin Alam Bhat Suroor Mander
Mohsin Alam Bhat                                                                                 Suroor Mander

During 2008 and 2018, prolonged protests had provided Kashmir’s ‘children of conflict’ a platform for the expression of discontent. The photographs of the girls and boys in uniform confronting police personnel and participating in the protests were widely circulated over social media. The state security set up responded using force including shot-guns, and arrests.

Some boys in their school uniforms would attend court hearings. These court cases linked to their future and fate. A worried one even gave up his examinations to attend the court hearing, a routine he would religiously follow every month.

Yet another boy, who had just finished his class 12, was trying to get a permanent exemption from the appearance from the court. He failed to get an exemption and now he has to give up his seat in an engineering college in Punjab.

These are some outlines documented in the book named Purgatory in Kashmir: Violation of Juvenile Justice in the Indian Jammu and Kashmir by Mohsin Alam Bhat and Suroor Mander, published in 2018, on basis of research they did in June 2017. The study was conducted under the Centre for Equity Studies, New Delhi with the focus to study the legal system’s behaviour towards the state’s juveniles. The research was done in Srinagar.

The study has documented how children are treated by the state’s criminal justice system while failing to respect the commitments of juvenile rights. Most of the interviews were conducted in the Srinagar district court while observing the proceedings in relation to juveniles, interaction with the lawyers, activists, journalists, children and their families in conflict with the criminal justice system.

The book says there is barely any justice in the institutional responses to juvenile issues. Though these children are supposed not to suffer from stigmatization and victimization, the book insists that handling of these children is inclined towards their criminalization rather than rehabilitation.

The state Jammu and Kashmir Juvenile Justice (care and protection of children)  Act, 2013  (hereafter, 2013 Act) and the rules formulated under it seek to institutionalize practices including separate procedures for juveniles, juvenile homes in place of incarceration and juvenile justice board for adjudication for the children below the age of 18. But the survey documentation states there is barely any legal regime working that is in conformity with the state’s legislative commitment to juvenile justice and violates its ethical and legal standards.

Numerous international instruments like the convention on the rights of the child (1989), the Beijing Rules (1985) and UN Rules for Juveniles Deprived of their Liberty (1990) recognize that all children have the rights of protection, participation and basic material provision. It guarantees the children should have the rights of non-discrimination, protection from cruel, degradation treatment abuse and exploitation, protection during armed conflict.

The establishment of the juvenile justice regime in the state of Jammu and Kashmir was not easy, the book says. The state had its own antonymous character under the Indian constitution which could create a separate legal regime dealing with juveniles. The J&K Juvenile Justice Act was enacted in 2013, the objects and the purpose section under this act doesn’t explicitly invoke the international juvenile justice a paradigm or the Indian constitutional standards- while the state doesn’t implement these laws on the ground, even the security apparatus doesn’t take these concerns seriously, it adds.

The documentation details how many children were arrested and picked up by the police; how their homes were raided with cops carrying guns and even handcuffed them during the arrest and during the transportation to the police station.

The law states that the purpose of the Act is to further the ‘best interest of children’ and their ‘ultimate rehabilitation’ but the absence of a juvenile justice mechanism, the law-and-order apparatus failed to differentiate between children and adult, the government failed to rehabilitate and steer them back into mainstream society.

For example, the book reports that under Rule 15 (2) (e) the children caught in the criminal justice system will allow them to end the agony of prolonged and delayed trails. It also envisages the planning of rehabilitative service for a juvenile from the beginning of the trail. The law says that the circumstances of the apprehension, medical examination, and the juvenile’s version of the incident must be documented by the police in the presence of a social worker or a family member and produced before the Magistrate within 24 hours of apprehension.

The book has quoted cases in which the children were neither medically examined nor their version was recorded by the police. A child even said he was ruthlessly investigated, his arm was broken by the police and later they did not place any record or evidence nor did the magistrate order a medical examination.

These cases, the book insists indicates lack of implementation of the Act and the Rules and the system failing to meet its own laws on juvenile justice. It proves the politico-judicial mess, militarization, surveillance and alienation by the state of Kashmir’s children.

Under international law, Indian law and the 2013 J&K Juvenile Justice Act, there are separate institutions and procedures for juveniles and adults. The children, lawyers and human rights told the authors that the state actors make no attempt to work within the juvenile justice paradigm. Most of the children were picked by the police; there is no Special Juvenile Police Unit (SJPU) created by the state whose core purpose was to ensure that a child-friendly and trained police team would be available in the districts to deal with any legal issues associated with children.  This deficit has led to illegal detention, arrests and torture during detention.

One case mentioned in the book was detained in a night raid by the Special Task Force from his home. During the arrest, he had alleged, cops broke household items, hit the adults and also assaulted the women. Post-arrest, he was kept in the police station for a few days. When he was produced before the magistrate, the police showed his arrest only 24 hours before his appearance in the court.

In certain cases, the children reported they were kept in the police station without separating them from the adults.  The book claims there are no Juvenile Justice Boards or Child Welfare Committees in Jammu and Kashmir as mandated by the law. Almost a total of 230 cases were against the minors pending before the Chief Judicial Magistrate as of May 2010 and over 180 were stone-pelting cases filed by the police against the children.

Offering an idea about how the defence lawyers and defendants are fraught with steep challenges, the book suggests that the lawyers raise the juvenility before the judge only if the physical appearance of the child could easily help determine that he was a juvenile. Also, the judge seeks verification of official document such as tenth class marks sheet by seeking records from the primary school or an age determination test is required to prove it. This process takes at least three months (violating the limit of 30 days under the rules). The Rules place the onus on the police to provide proof of age within seven days of filing an FIR.

The book flags another issue related to the inability of lawyers to raise police abuse in front of a judge. This is because by insisting on the violation of the rights or resorting to torture by police leads to further incrimination of the juvenile. The institutional procedures, the book maintains, does not recognize the fact that the children injured by pellets must be given state protection and support.

The book details the conditions of sheltering place for juveniles. It is important to maintain separation between juveniles and adults, to protect the children from police brutality and create the possibility of providing psychosocial support and rehabilitation to juveniles. The government, the book insists has not invested in the implementation of the Act as a result of which there is severe lack of homes across the state.

In Srinagar city periphery, one home for the children of conflict operates from Harwan. Since 2011, a total of 1153 juveniles were lodged there. There, the book suggests, the children were not subjected to direct physical violence. These Homes are supposed to be operated separately from prisons by a different staff (SJPU) or by voluntary organizations.  Many districts do not have any designated home for children.

Discussing securitization, the arbitrariness of the security forces, the state of surveillance and the disciplining of the Kashmiri youth, the book has quoted activists and lawyers insisting that all police stations in Srinagar have ‘open FIRs’.  Such FIRs tend to use terms such as ‘large mobs’ and ‘unidentified mob’, allowing the police to book practically anyone in those cases.

In one such case, the book mentions a juvenile who was booked under an omnibus FIR that mentioned an unidentified crowd of 50 children. Cops often book a number of juveniles under one single FIR from different part of the city to the extent that the boys don’t know each other. These omnibus and open FIRs give police a dangerous amount of power over the juveniles and their families and on the other end despite the best efforts of the juvenile and their parents put to get out of the maze, the police do not really incline to conclude any of these cases, the book claims.

Besides, the book claims that there are cases where the local politicians have arrangements with the police when the police book or arrest a juvenile; the parents are forced to approach the politicians and offer both money and loyalty.  Some journalists quoted in the book have pointed out how it has become common for the police to enter the school premises, many schools have now obliged the police personnel by providing them with the information about the student involved in the protest.


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