In New J&K, Adults Are Younger And Arrests Easier

27 Jun 2020 10 min read  Share

Extending India’s juvenile justice law to Jammu and Kashmir lowered the age of juveniles from 18 to 16, allowing the lawful detention of already vulnerable teenagers throwing stones and their incarceration in adult jails. In practice, illegal detentions abound

A street protest at downtown Srinagar/BILAL AHMAD

Srinagar: On the morning of 16 August–11 days after Prime Minister Narendra Modi’s government ended the special constitutional provision provided to Jammu and Kashmir–Javaid (name changed) and his friends joined raging street protests.

As his friends hurled stones, agitated by the government’s decision to abrogate Article 370 of the constitution and downgrade the state into a union territory, 17-year-old Javaid found himself bundled into an security vehicle and taken to a police station.

“We thought he was playing with his friends outside and would be home soon,” said Hanifa, Javaid’s grandmother. “We didn’t know that he had been taken by police and kept in the lock-up. It was only after two hours that Javaid’s friend informed us about his detention and we rushed to the police station.”

For six days, Hanifa recalled, Javaid was kept in the lock-up. “The police had beaten him at the police station, he told us. We pleaded with the station house officer to release Javaid as he is not well and has a history of neurological problems.”

They released him after six days, Hanifa said, “when he fell unconscious.”

Javaid was booked under sections 147 (rioting), 336 (endangering human life or personal safety of others), 332 (causing hurt to public servant on duty), 341 (wrongful restraint ) and 427 (mischief and causing damage Rs 50 and upwards) of the Ranbir Penal Code (RPC). Since 1932, the RPC was the criminal law applicable to the erstwhile state of Jammu and Kashmir, until its reduction to a union territory in 2019.

“Even after his release Javaid had to report to the police regularly for three months and spend his entire day there. Here no juvenile justice or other acts work” said Hanifa. “This is a police state.”

Then there’s 17-year-old Saleem (name changed), picked up during a night raid, a day after the abrogation of Article 370, and kept in illegal detention for more than a month.

Saleem’s mother, who requested anonymity for fear of retaliation, said the police barged into their house and on 6 August, woke up her son and took him away. “When we asked why he was being detained, they said come to the police station,” she said. “In the police vehicle there were six other minors.”

At the Batamaloo Police station in western Srinagar, Saleem’s mother said: “He was beaten, and after a few weeks there, he was moved to police station KaraNagar. After 37 days they released him.”

Like Javaid, Saleem was detained under sections 147, 336, 332, 341 and 427 of the RPC.

Extending The Central Juvenile Justice Act to J&K

Following the abrogation of Article 370, many central laws were extended to the erstwhile state of Jammu and Kashmir. Among these was the Central Juvenile Justice (Care and Protection of Children) Act, 2015, or JJ Act as we shall refer to it.

In 2015, after public outrage over the 16 December 2012 gang-rape and murder of a 23-year-old physiotherapy student in New Delhi, where one of the perpetrators was a minor aged 17, the law was amended to reduce the age of juveniles committing “heinous offences” from 18 to 16.

The fallout now is that boys in Jammu and Kashmir are being detained and kept in police lockups and prisons meant for adults for days before being produced before the states Juvenile Justice Board (JJB). A juvenile must be presented before the JJB within 24 hours of arrest.

Under the JJ Act, when a “child alleged to be in conflict with law is apprehended by the police, such child shall be placed under the charge of the special juvenile police unit or the designated child welfare police officer, who shall produce the child before the board without any loss of time but within a period of twenty-four hours of apprehending the child”. It states that “in no case, a child alleged to be in conflict with law shall be placed in a police lock-up or lodged in a jail”.

In Kashmir, the JJ Act is violated with impunity as children, even those below the age of 16, continue to be lodged in jails for more than 24 hours, said lawyer Mushtaq Ahmad Dar.

144 Children Arrested After 5 August

A look at FIRs filed against juveniles in 2018-2019 reveals that those caught for throwing stones were booked under Indian Penal Code (IPC) sections, such as 307 (attempt to murder), 147 (punishment for rioting), 148 (rioting, armed with deadly weapons) and 336 (endangering life and security of others).

Now with the extension of India’s JJ Act, juveniles above 16 can be prosecuted.

By the government’s own admission, as many as 144 children were detained in the aftermath of 5 August, 2019, the day the central government abrogated Article 370, which linked Jammu and Kashmir to India. The admission came in the course of a public interest litigation (PIL) filed by child rights activists in the Supreme Court in September 2019.

In their PIL, Enakshi Ganguly of the Haq Centre for Child Rights and Shanta Sinha, former head of the National Commission for Protection of Child Rights (NCPCR) cited media reports of abuse, ranging in “seriousness from potential loss of life and liberty to the child, to being emotionally and intellectually drawn into the conflict”.

The PIL talks of a 17-year-old boy who on 8 August 2019, the New Indian Express reported, drowned in the Jhelum river after he was chased by CRPF personnel while returning home from playing cricket with his friends.

The Telegraph reported that an 11-year-old boy was illegally detained between 5 August and 11August. Political and social activists who were in Jammu and Kashmir from 9 to 13 August told reporters in Delhi that there were boys even younger in detention.

The PIL wanted the Supreme Court to review the situation and enforce and monitor corrective action.

On 26 September 2019, the Jammu and Kashmir Juvenile Justice Committee, which included four Jammu and Kashmir High Court judges, reported to the Supreme Court that 144 children, including those as young as nine, were indeed arrested after the abrogation of Article 370. Some were released the same day as their arrest, while others were processed under provisions of the JJ Act. No child was under illegal detention, the report said.

The report relied entirely on information it received from the state’s director general of police (DGP). “It happens often that when minors/juveniles indulge in stone-pelting, they are momentarily held up on the spot and sent home,” the DGP was quoted as saying in the report. “Some of these incidents are exaggerated beyond proportion.”

Ganguly and Sinha challenged the findings of the report. Ganguly told the Supreme Court that the report did not indicate any “application of mind”. The state JJ Committee merely forwarded the comments of the DGP without “recording any findings of its own”. The Supreme Court bench headed by Justice N.V. Ramana asked the JJ committee to file a fresh report.

In December, when the Supreme Court heard the matter again, it said it was satisfied with the JJ Committee’s findings that no minors were illegally detained. It said that it “would not be proper” if it did not believe its own high court judges.

“If you cannot believe your own judges, then it is not done (sic),” said the Supreme Court. The PIL was dismissed.

Ganguly said she was “terribly let down” by the attitude of the judiciary. “I felt that the JJ Committee and the state High Court would have the best interests of the children and would uphold their rights,” she said.

No juvenile was in illegal custody, Senior Superintendent of Police, Srinagar, Haseeb Mughal told Article 14. Juveniles who had been detained in the aftermath of 5 August have either been sent to the juvenile observation or home or released within 24 hours of being detained, he said.

A History of Abuse

Reports of child-rights abuse in Jammu and Kashmir are not new.

In 2018, a report published by the J&K Coalition of Civil Society (JKCCS), documented several cases of abuse. In many cases, according to the report, boys who hurled stones were charged under the Public Security Act (PSA), a law that allows no access to a lawyer. In other cases where alleged offenders were under 18, the FIRs were “falsified” to show that they were adults, the report claimed.

On 16 September 2016, for instance, a 16-year-old from Delina, Baramulla, was arrested by police on charges of throwing stones at government forces and booked under the PSA two days later. “The PSA order stated that [the boy] was 18-year-old, which was incorrect according to his school records. The order was challenged by [the boy’s] family in High Court, and the family produced documents proving he was 16-years-old,” said the JKCCS report.

On 7 October 2016, the High Court said the boy must be treated as a juvenile under the JJ Act, as prima facie evidence suggested he was a minor who should be transferred to a juvenile observation home.

Despite this order, the boy spent his entire detention period of over four months, 360 km from his hometown at the Kot Bhalwal jail in Jammu before he was finally released in January 2017, according to the JKCCS report.

Even after the High Court quashed his PSA on 6 December, 2016, it took another three weeks for the boy to be released, said the report. First, he was taken to an interrogation centre in Jammu, where he was detained for “some days”, before he was sent to the Baramulla police station, where he was kept for “a few weeks” before release.

“Juveniles in Kashmir are arrested for minor offences like stone-throwing,” said Khuram Parvez, project coordinator at JKCCS. In the aftermath of 5 August, many juveniles were arrested and kept in custody but, “the police misrepresented the reality even though the report of the JJ Committee clearly mentioned that juveniles were arrested during the August sweep”, he said.

“The misuse of law is so rampant in Kashmir that even if you want to bring a change, it won’t have much effect because you have a history of disrespecting the law,” said Parvez.

The reduction of the age at which a child is considered capable of standing trial as an adult to 16, will make a host of young boys vulnerable to arrest under serious charges. “Things that were done illegally will now be legalized,” said Parvez. “The government couldn’t stop those illegal practices even earlier. It did nothing for the protection of children.”

There is too much “discretionary power” with the police to decide if the detention of a juvenile is in the juvenile’s interest, said a 2019 Indian Law Review study that analysed the Jammu and Kashmir Juvenile Justice Act. “All the points of contact and power given to the police visa-a- vis in conflict with the law veer towards re-criminalization of the young offender,” said the report.

Just As State Act Started, The State Ended

In 1997, the Jammu and Kashmir assembly passed a juvenile justice act, but it took a decade to specify rules to enforce it. Until then, successive state governments failed to set up juvenile justice boards and child welfare committees that would allow the law to be implemented.

When in 2017, these structures were finally in place, as many as 1,900 children were transferred from police custody to juvenile justice boards, according to the JJB report.

Just as the law began functioning as it was supposed to, the central government revoked the state juvenile law and extended the central Act to Jammu and Kashmir.

Under the central act, a “child” above 16 committing a “heinous offence” will be assessed by a board for “mental and physical” capacity to commit and understand the consequence of the offence.

The definition of a heinous act, said lawyer Wajid Mohammad Haseeb, “is contrary to the principals of the Constitution and the law, because one can understand if you categorise rape and murder as heinous offences, but generalizing it and saying that ‘heinous crimes’ will have a minimum punishment of seven years is something very vague”.

A comparison of Jammu and Kashmir’s 2013 juvenile law and the central juvenile law in the 2019 Indian Law Review report cited previously said: “ The most significant difference between the two is with respect to the age of juvenile.”

After the Delhi-gangrape case, the Indian parliament passed the Juvenile Justice (Care and Protection of Children Act) 2015. “This enactment creates a separate group of juveniles between 16-18 years of age involved in heinous offences,” said the study, which pointed to “two important aspects of this category”: age and heinous offence.

The central law says that a if a juvenile in this age group has committed a “heinous offence”, the Juvenile Justice Board can order the juvenile tried as an adult. “This selective age differentiation contradicts scientific conclusions based on several brain science studies which are reflected in the international standards set up for children,” said the study.

For Many Juveniles, A Dark Future

In 2018, there was considerable protest when the PDP-BJP government considered implementing the central juvenile law in Jammu and Kashmir. Legal experts said reducing the age of juveniles will make them vulnerable.

The then governor of Jammu and Kashmir, Satya Pal Malik appeared to have sensed the trouble the new law could bring and withheld assent. Now that the law has been implemented, experts foresee a dark future for juveniles.   

“The majority of juveniles who come to the observation home are booked under serious offences like murder and rioting. This is routine now,” said a juvenile officer who spoke on condition of anonymity because of the sensitivity of the issue. “The police call them habitual stone pelters and book them under murder charges.”

From 5 August 2019—when the Narendra Modi-government scrapped the special status of Jammu and Kashmir, imposed a curfew and detailed politicians, activists and common folk—until December last year, over 20 juveniles were brought to the observation home in Harwan in Srinagar. The Jammu and Kashmir High court acknowledged that juveniles were also detained by the police during the August clampdown.

But, said Wajid, “The JJ Act has not been framed for stone pelters. Stone pelting will be stone pelting, but juveniles won’t be treated the same way as they were being treated under the state Act, especially if they have committed heinous offences.”

Shareef Bhat, project head for Jammu and Kashmir and Ladakh of Save the Children, an advocacy, said he was troubled by the vagueness in defining “heinous”.

“Today, something can be a heinous offence for the government; tomorrow it can be something else,” said Bhat. “So, they have to be clear on this because in Kashmir, the majority of juveniles are booked for stone pelting. Will that be a heinous offence as well?”    

Even if juveniles are booked for heinous offences, they will not face regular trials, said Khair-un–Nisa, member of the Juvenile Justice Board. “The cases would come to the JJ Board and a committee will decide the case.”

Nisa, who researched the juvenile justice system in Kashmir, said, preliminary assessment is meant to assess physical and mental capacity of a child between 16 and 18 years accused of heinous offences. “In cases of heinous offence committed by the child above 16 years and below 18 years, the board shall conduct the preliminary assessment,” she said.

The board may take the assistance of psychologists, psycho-social workers and other experts for such an assessment, said Nisa. Once satisfied, the board can transfer the case to a children’s court. If the board decides to prosecute the child as an adult, then it must follow the procedure for trial under the criminal procedure code.

Also read:

Public Interest Litigation filed in 2019 in the Supreme Court

Enakshi Ganguly’s submission to the Supreme Court on 29 September 2019