Issues

Juvenile rights violated in J&K: ACHR

New Delhi: In a report published on 16 November 2011, Hong Kong-based Asian Centre for Human Rights (ACHR) said that in Jammu & Kashmir juveniles are detained without trial, girls compulsorily sent to prisons and police lock ups. ACHR demanded immediate designation of suitable government building as Juvenile Home for Girls in Kashmir.
While releasing its fact-finding report, “Juveniles of Jammu and Kashmir: Unequal before the Law & Denied Justice in Custody”, compiled after field visits to Srinagar, Budgam, Shopian, Pulwama, Islamabad, Kulgam, Ganderbal and Jammu districts from May to July 2010 followed up by updates, found that juvenile justice system is rotten in Jammu and Kashmir. The juveniles at R S Pura Juvenile Home are being detained without trial as they are not produced before courts, while juvenile girls must be compulsorily sent to police lock ups or prisons as the State does not have a single Juvenile Home for Girls.
While the arrests of dozens of juveniles during the mass uprising in the Kashmir valley from June to September 2010 brought the abuse of the Public Safety Act against the children in conflict with the law into focus, Asian Centre for Human Rights stated that juveniles have been consistently arrested under the Public Safety Act, detained with adults in police lock up and prisons, and tried with and as adults in normal courts.
“The J&K Police has been fond of applying the PSA and they seldom invoke the Jammu and Kashmir Juvenile Justice Act, 1997. Consequently, juveniles are denied access to justice and benefits of the special protection provided under the 1997 JJA. The judiciary in Jammu and Kashmir is forced to intervene in every case to invoke the JJA”, stated Suhas Chakma, Director of Asian Centre for Human Rights.
To expose the rotten juvenile justice in J&K, the ACHR report cited the case of Fayaz Ahmad Bhat, who is a 25 years old adult now and was being held at the R S Pura Juvenile Home. Fayaz, son of Ghulam Hassan Bhat, resident of Gooripora, Palpora, Ganderbal, Srinagar was arrested and charged with offences under sections 302 of the Ranbir Penal Code (murder) and Sections 7 and 27 of the Indian Arms Act pursuant to the FIR no. 42/1995 registered at the Safakadal Police Station. He was arrested sometime in 2007 and was detained with adult prisoners for about three years at Sringar Central Jail. The Police contended that Fayaz was an adult. However, in its order dated 12 March 2009, the Court of First Additional District and Session Judge, Srinagar declared that Fayaz was a juvenile on the date of commission of alleged offence. The court ruled that the certificate of Fayaz issued by Shanti Public School in which Fayaz’s date of birth was recorded as 9 December 1984 was correct. The court further rejected alleged certificate issued by Government Boys High School, Dub Ganderbal in which his date of birth was mentioned as 25 February 1976.
On 6 August 2009, the Court noted that police failed to produce the delinquent on the last five dates of hearing. The Court therefore directed the Director General of Police of Jammu and Kashmir to ensure presence of the delinquent on the next date of hearing and cautioned about initiating contempt proceedings against all concerned police officials in case of failure to produce the delinquent.

While in the rest of India, the flawed 1986 Juvenile Justice Act was replaced with the Juvenile Justice (Care and Protection of Children) Act, 2000, Jammu and Kashmir, which has been quick to enact draconian laws like the Armed Forces Special Powers Act, showed scant regard for juvenile justice. The Jammu and Kashmir Juvenile Justice Act was enacted in 1997 one decade after India enacted the flawed 1997 JJA. It took another decade for the State Government to adopt the Rules in 1997 meaning that the Act remained unimplemented.
 
The findings of the fact finding mission are:
  • The State government of Jammu & Kashmir has been illegally detaining minors under the Public Safety Act (PSA) of 1978 that provides for upto two years of preventive detention. A large, yet unknown, number of children have been detained under the PSA. The detention of these minors is illegal as the Supreme Court of India in numerous judgements held that the Juvenile Justice Act has supremacy over all other Acts while trying offences committed by children in conflict with the law;
  • Prisons in J&K currently have large number of juvenile prisoners and/or prisoners who have been arrested as minors but who have subsequently attained adulthood during their detention and are charged as adults in contravention with India’s national laws and international obligations;
  • There is no Juvenile Justice Board and Child Welfare Committee in Jammu and Kashmir and minors are tried in normal courts, sometimes as adults, in contravention with India’s national laws and international obligations;
  • There is no juvenile home for girls in Jammu and Kashmir in violation of 1997 J&K Juvenile Justice Act and all the girls taken into custody by the law enforcement personnel are placed in jails or police lock ups in the absence of a Juvenile Home for Girls;
  • Juveniles detained at the R S Pura Juvenile Home at Jammu are not being produced before the Courts and hence being denied justice in contravention with India’s national laws and international obligations;
  • Children in conflict with the law in J&K do not get the benefit of the Central law i. e. Juvenile Justice (Care and Protection of Children) Act, 2000;
  • 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;
  • Across India, school certificates are used to determine the age of a juvenile. That is not the practice in J&K. The J&K Police in all cases argue that those detained are adults. Until their age is medically assessed or ruled by the judge, the juveniles are assumed to be adults and are detained in adult detention facilities;
  • Even if age can be determined, the lack of juvenile facilities such as juvenile homes means that detained delinquents are routinely detained in police lock ups or in prisons with adults;
  • The juveniles detained in the R S Pura Juvenile Home in Jammu suffer from the lack of basic facilities such as drinking water, electricity, educational and recreational facilities; and
  • Juveniles of Jammu and Kashmir are not covered under the programmes launched by the Government of India such as Integrated Child Protection Scheme.
The full report is available here: http://www.achrweb.org/reports/india/JJ-J&K-2011.pdf

This article appeared in The Milli Gazette print issue of 1-15 December 2011 on page no. 12

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