Age is no bar for long and harsh detentions in Kashmir, even if there the state falters on facilities for underage detainees required under Juvenile Justice Act. With no juvenile homes, boards or special courts detained Kashmiri children rub shoulders with masters of crime. Ibrahim Wani reports.
On October 27, 2010, eleven boys most of them aged below 16 years were arrested by police from Maharaj Gunj station, on charges of stone pelting. They told the district judge that the police inflicted a severe torture on them. Taking off their clothes, they showed the violence marks on their bodies. Three of the “minors” also stated that they were forced to sodomise each other in police custody, while the guards had enjoyed watching them and filmed all of it too. The police denies the incident took place.
The Juvenile Justice Act of 1997 defines juveniles as boys up to 16 years of age and girls up to 18 years of age and prohibits their detention in a police lock-up. They have to be taken to a Juvenile Detention Centre, or Juvenile home. Kashmir has none.
According to the act of 1997, anyone below 16 years of age cannot be tried under the same criminal procedure code that is applied to adults. The law provides for juvenile homes, and juvenile boards and courts to try the accused juveniles.
The act further states that a Juvenile home is one which is not a jail and “shall not only provide the juvenile with accommodation, maintenance and facilities for education, vocational training and rehabilitation, but also provide him with facilities for the development of his character and abilities, and give him necessary training for protecting himself against moral danger or exploitation and shall also perform such other functions as may be prescribed to ensure all round growth and development of his personality.”
In addition to this, the law also lays down that the Juvenile board must have one female member, and the juvenile court must have a panel of two honorary social workers.
Interestingly the law also states, “Notwithstanding anything as contained in any other law for the time being in force, no delinquent juvenile shall be sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing security.”
When Saleem was picked up by police in the summer of 2008, he hardly knew the trauma that awaited him. He was swiftly booked under the Public Safety Act. He was imprisoned in district jail in Poonch.
“Every day would be a torture for me. I would weep and cry. I could not bear the thought that I had to spend two years in jail,” he says.
His father says that he spent all his savings reaching Poonch to meet his son “Despite a court order to move him to the Central Jail in Srinagar, closer to home, the authorities didn’t oblige.”
Fortunately, for Saleem, his detention was quashed by the state High Court after three and a half months of release.
Saleem was one of the lucky few whose detention order was quashed by the High Court after three-and-a-half months of being jailed far away from home.
Similar was the case with Omar Maqbool, 13 years of age at the time of arrest. He had to spend two months in prison before the High Court ordered his release. His lawyer, Muhammad Ashraf, says that his condition was horrible according to his family members. “You can well imagine yourself the condition of a boy, who instead of being in school is lodged in a jail,” he says.
Advocate Irshad Ahmad Wani says the government has been using PSA to book minors since the early nineties.
“The thing about PSA is that the minors can be picked up immediately upon release. I have seen kids being detained five or six times back-to-back, under the same Act, without any change in paperwork. And it takes four to five months to obtain an order to quash PSA,” says Wani.
Mens rea stands for guilty intent. A juvenile below 12 cannot have Mens rea. It may be present in the age group of 12-18, but it is not mature. So anyone who is below 18 years of age internationally cannot be held accountable for a criminal act. That is the reason for separate laws for juveniles,” says Dr Sheikh Showkat who teaches Law at the Kashmir University. “Thus, in case of a child, you cannot punish, but go in for a correctional approach.”
But the case in Kashmir is not so. While as the Juvenile Justice Act for the state was passed in 1997, it is yet to be implemented.
Abdul Rashid Hanjura, a social activist filed a Public Interest Litigation (PIL) in 2009 in Srinagar High Court seeking implementation of the JJ Act. The petitioner also blamed the government for “the utter disregard of its constitutional obligations and violation of the mandate of law.” The petition stated that, “The state government has failed to set-up homes and courts. Non-implementation of the act and conduct of proceedings at regular courts results in dwarfing of the development of the child, while exposing him to baneful influences, coarsening his conscience and alienating him from society.”
His case was pleaded by Human Rights Law Network, a legal rights NGO. The petition was accepted favorably by the court, and a direction was issued to the government on June 5, 2010 to implement the law.
The court asked the government to implement the JJA “immediately and fully”. The Chief Secretary of the state was instructed to comply with the High Court order in three months by the judges. It has been around nine months since the order was passed. No action has been taken by the government.
The petitioner, A R Hanjura, is now planning to file a contempt petition in the court.
“Before filing a petition, a lawyer in Kashmir has to write a contempt petition,” says Babar Qadri, who has pleaded cases of juveniles booked under PSA. “We already know that even when a judgment favouring the petition in cases of this sort is issued there will be no implementation,” he adds.
Babar adds that the security apparatus in the state has blatant disregard for the judiciary. “How can an army chief of India, point fingers towards the honorable High Court of J&K, by saying that we know that who they are. This is nothing but contempt.”
“In Kashmir there is no rule of law, there is only national interest. Through laws like PSA, we have an alternate justice system, where all other laws including JJA are ignored,” says Babar.
He informs that justices Mahajan and Mukherjee observed on preventive detention laws like PSA, that they ought not to be for peace time, but for times of war.
“Preventive detention laws are repugnant to democratic constitutions, and they can not be found to be existing in any of the democratic countries of the world.” Justice Mahajan observed in A K Goplan vs state of Madras case.
“When it is applied to a place like Kashmir, it encroaches upon democratic rights of people,” Babar says, “Imprisoning juveniles in jails cannot be a quality of civilized nations. It speaks of a black age, a stone age we live in.”
Often laws like PSA are misused and abused by the security apparatus, say legal experts. Babar cites the case of a juvenile who was booked because his father denied free cigarettes to a policeman. “The policeman had been taking cigarettes according to his own whims from a shopkeeper in the downtown area of Srinagar. And he would not pay. One day when the shop owner denied giving the same to the policeman, he abused him there, and then the next day came with a contingent and arrested his son,” says the lawyer. The juvenile son, 14 years of age at that time, was booked under PSA.
Even the lawyers who take up cases of the sort are often targeted, says advocate Babar, who got PSA orders of three “juveniles” quashed from court. “Once I was attacked by police in Ganderbal, then one day they broke the windscreens of my car, and then one more time my cousin was arrested while he was driving my car. The policemen from the Safa Kadal police station told me that if I would not come to the police station they would kill my cousin in custody. It was only when other people from the legal fraternity got involved that I and my cousin were saved from harm,” he says.
“The targeting of lawyers baffles us,” says another lawyer who did not wish to be named for the fear of reprisal. “We are just doing our professional laws, and pleading cases only according to law.”
Coming back to the JJA and its non-implementation in the state, Babar says that there may have been around 2000 cases when juveniles were arrested and kept in jails. “Most of them may have been released but the impact is huge. After being booked, their education and career is gone. They will be proclaimed as infamous offenders.
Instead of rehabilitating they are creating hardcore guerillas,” he says. “After going to jail, a juvenile who may or may not have pelted a stone, sees what he is up against and he comes out with more conviction, which may not manifest itself immediately, but over the long run,” he says.
In many cases the effect is immediate. A 9-year-old who spent three days in prison is mentioned in a case study conducted by Srinagar’s Psychiatry Hospital. Over the two years of protest he has fractured a limb and has had a serious eye injury. Despite that he continues with the violence. His mother cannot handle him. His family is fed up because he lies, steals, burns pets, and bothers the neighbours. Doctors say the child feels no pain or remorse. He has been diagnosed of Conduct Disorder, with features of Hyperactive Disorder.
“If a person takes 20 years to develop negative tendencies in free environment, he can attain the same attitude in a matter of days when confined in a company of criminals or indoctrinated people,” says a clinical psychologist working in the hospital.
The Convention on the Rights of the Child, to which India is a party, permits the prosecution of children for criminal offenses but requires authorities to arrest or detain a child only as a matter of last resort and for the shortest appropriate time. Every detained child has the right to prompt access to legal and other appropriate assistance. Internationally anyone below the age of 18 years of age is a juvenile. In Kashmir it is 16 years only.
“The JJA of the centre has been updated in accordance with the international covenant on the Rights of Child. Our legislators are a bit lethargic or outdated not to update the legislation,” says Dr Sheikh Showkat “But it may also be a deliberate attempt.”
“If you do not expect a person of 16 years of age to be mature enough to vote, how can you hold him responsible to a crime,” questions the professor.
The case of one juvenile which Babar pleaded was particularly peculiar. “Hailing from Saida Kadal, he was 14 years at the time of his arrest. Remember that time when the government asked students to attend school on a day on which they had said there would be no curfew. Taking cue from that he was going to school, when a CRPF party had pounced on him, beat him up and handed him over to the police, who had speedily imposed a PSA on him, and transferred him to the Central Jail,” says the lawyer. The 14 year old was in the central jail for five months till his order was quashed. “Just imagine the situation he must have been in the jail,” adds Babar.
Juveniles inside jails are susceptible to harm. There are three issues which many lawyers list as being the most inhuman to children. “First they are highly susceptible to sexual assault,” says Advocate Qadri. “In addition to this when they are in the police lock-up, the families are charged for whatever food is served. This happens nowhere else in the world,” he says. “Another important thing which has often been ignored is that the Jail Manual followed in Kashmir was last changed in 1957. It recommends only a daily allowance of 27 rupees per day per head, and this includes all the expenses including food.”
Faizan Hakeem of Anantnag, booked under PSA was incarcerated in Kot Balwal jail. His school certificate shows his date of birth to be May 18, 1996. Going according to that he is 14 years of age, a juvenile even according to the JJA of the state. The government, even the chief minister, doubted the age certificate issued by the school. They say he is close to 18 years of age.
A medical test was sought by the government to verify his age. Amnesty International issued an Urgent Action notice for his release, the case made it to almost all newspapers. Finally the chief minister intervened in the case and he was released on April 5.
This is common to a lot of cases. “They fabricate the age of the arrested. For example, a boy of 14 is shown as a boy of 18, and till he actually goes on to prove that he was not 18 and was 14 at the time of the arrest, he continues being in the jail. This period may be anything from 3 to 4 months to years,” says Dr Showkat.
“And even if JJA tends to give a cover to juvenile which is often not the case, you cannot see this one legislation in isolation. It is cumulative effect of ruthlessness of a legal framework, along with ruthlessness of those who execute it,” says Dr Showkat.
“Even if someone at some point is rescued by a law like JJA, he may end up dead soon. This has happened many a time,” says the professor. “Even parents at times are caught between the devil and the deep sea. At times they may even prefer to keep the child behind the bars, then to see him end up dead”.
Human Rights Watch (HRW), an international human rights group on July 22, 2010 issued a statement expressing concern over the absence of juvenile courts and homes in Kashmir. The watchdog asked government to carry out a High Court order to ensure “due process, rights and protections for children detained for allegedly participating in violent street protests.”
On 13th March, 2011, the group of interlocutors appointed by the centre, on their sixth visit to the Kashmir stated, “The laws for protection of juveniles in India do not exist here, and the Legislative Assembly could consider whether similar legislation is required in J&K, along with amendments to restrict the use of the Public Safety Act.”
