Juvenile Justice Act ‘violated with impunity’ in Kashmir

  • SHAFAQ SHAH
  • Publish Date: Feb 3 2019 10:50AM
  • |
  • Updated Date: Feb 3 2019 10:50AM
Juvenile Justice Act ‘violated with impunity’ in KashmirRepresentational Pic

Juveniles in Kashmir continue to be jailed in violation of the Juvenile Justice Act, experts say, raising questions over the standard operating procedures (SOPs) being followed by the police while implementing the legislation.

On January 7 this year, a 14-year-old boy from southern Traltownship was detained by the police and charged under the provisions of the Arms Act, Unlawful Activities (Prevention) Act and attempt to murder. Days later, another juvenile from Awantiporatownship in southern Kashmir was detained by the police and taken to Kathua “for questioning”.

On January 13, a juvenile, who the police alleged was a militant, was apprehended by the police from southern Shopian district.

In December 2018, six boys from Srinagar’s Batamaloo area were detained by the police and on October 29 of the year, a class 12 student from Shopian was picked up by personnel of police station Imam-Saheb allegedly in place of his brother and detained for two days, preventing the boy from writing his board examination.  An analysis of these cases clearly shows how that the Juvenile Justice Act is violated with impunity in Kashmir, experts say.

Justice (R) HasnainMasoodi, chairperson of selection-cum-oversight-committee (SCOC), an apex body for monitoring and evaluation of the Juvenile Justice Act, said: “Preventive detention of a juvenile on the face of it is illegal. It is prohibited under section 8 of the J&K public safety Act, 1978; there is no ambiguity about it”.

How the police pass detention orders against juveniles, Justice Masoodi says, “The senior superintendents of police in their dossiers don’t show juveniles as juveniles and once they show them as adults, the concerned district magistrates (the detaining authority under law) slap detention orders without making an enquiry about the age.”

“And till the time the concerned juvenile rushes to court and questions his detention order on the grounds that he is a juvenile and argues that the detention is prohibited under section 8 and the court sustains that objection, he happens to have already been in jail for a couple of months. By being secretive about his actual age, the purpose of the detention is actually served because the juvenile is still detained”.

Justice Masoodi, who has been continuously writing to the government to desist from detaining juveniles, further said: “Whenever I get to know that a juvenile has been detained, I inform the government and ask them to revoke the detention order. I keep reminding them to issue instructions to all superintendents of police to desist from using Public Safety Act (PSA) against juveniles.”

A “juvenile” or a “child” means a person who has not completed 18th year of his age and a “juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed 18th year of age as on the date of the commission of such offence.

The Juvenile Justice System is designed to respond to the needs of these juveniles and children who are in need of care and protection. At the Central level, this Act was implemented in 1986 and since then many changes were suggested and finally a new juvenile Justice Act was passed in 2000 to make it an effective law.

In 1997, the Jammu and Kashmir Assembly passed the Juvenile Justice (Care and Protection of Children) Act and a decade later laid down the rules to enforce it.  After delay of many years, in 2013, the legislature finally cleared the updated Juvenile Justice Act and approved its rules the following year.

Despite having a juvenile law, children continue to be detained, raising questions on the Standard Operation Procedure followed by the police while detaining a juvenile and keeping him in lock-up for days together.

According to the Juvenile Justice (Care and Protection of Children) Act 2013, a juvenile in conflict with law cannot be prosecuted as an adult criminal in the court of law.

The Act states: “As soon as a juvenile in conflict with law is apprehended by police, he shall be placed under the charge of the special juvenile police unit or the designated police officer, who shall produce the juvenile before the board without any loss of time but within a period of twenty-four hours of his apprehension excluding the time necessary for the journey, from the place where the juvenile was apprehended.”

The law prohibits the police from locking up a juvenile or lodging a child in jail. But on ground, the provisions of the Act are allegedly flouted with impunity.

As per a report titled “Terrorised: Impact of violence of children of J&K”, published by the J&K coalition of civil society (JKCCS) on 16 September 2016, 16-year-old Rayees Ahmad Mir from Delina, Baramulla, was arrested by the police under charges of throwing stones at government forces. Two days later, he was booked under PSA.

“The PSA order stated that Rayees was 18-year-old, which was incorrect according to his school records. The order was challenged by Rayees’ family in the high court, and the family produced documents proving he was 16 years old,” the report said.

The high court on 7 October 2016 stated that Rayees be treated as a juvenile under Juvenile Justice Act, as prima-facie evidence suggested that he was a minor and he should be transferred to a juvenile observation home.

However, Rayees spent his entire detention period 360 kilometres away from his hometown in KotBhalwal jail in Jammu before he was released in January 2017.

Rayees was released three weeks after the high court quashed his PSA on 6 December 2016. Before being released, Rayees was taken to Joint Interrogation Centre Jammu where he was detained for some days before he was sent to Baramulla police station where he was kept for a few weeks more before being released, according to his family.

In one more case of juvenile detention, a 14-year-old Tariq Ahmad Tantray was arrested by the police from his home at Frisal in Kulgam district on 28th August, 2016.  Tariq spent 20 days in alleged illegal detention at a police station in Bijbehara before he was booked under PSA, despite being a minor.

His age was allegedly wrongly written as 21 by district magistrate Anantnag. Tariq was taken to Kathua jail in Jammu, some 250 kilometres away from his home district of Kulgam, the report of the JKCCS stated.

In another case of detention, 17-year-old Zubair Ahmad Shah was arrested from his home at Kralgund, Handwara on 5 September 2016 and detained at police station Kralgund.

Zubair spent 14 days in alleged illegal custody before PSA charges were brought against him on 19 September 2016. In the PSA dossier prepared by police, Zubair’s age was reportedly wrongly stated as 22.