Juveniles Denied Justice In Jammu & Kashmir9 November 2011
Srinagar: The startling political unrest in the Kashmir Valley in the summer of 2010 had prompted the Union Government to appoint a team of interlocutors to prepare a broad roadmap for the State. For over a year since their appointment in October 2010, the three members, journalist Dileep Padgaonkar, academician Radha Kumar and Information Commission MM Ansari, have attracted much attention with their extensive interactions, culminating in their report that was submitted to the Union Government last month. A lesser known step towards improving the situation, also taken during the long months of agitation, was a direction by the High Court to the Jammu & Kashmir State Government in June 2010 concerning the detention of youngsters involved in the agitation, including the stone-pelters. The Juvenile Justice Care and Protection Act passed by the State in 1997 has provisions for the setting up of juvenile courts and observation homes. Entangled in ‘official intricacies’ since, the provisions of this Act are yet to be implemented. As a result, children continue to be imprisoned with adults under the Jammu & Kashmir Public Safety Act 1978, which permits up to two years of preventive detention. Social activists in Srinagar say it is unfortunate that the State has not implemented the JJCPA. “There is no Juvenile Court to hear the cases of the children and even after 14 years of propagation, the Act still has not been implemented,” points out advocate and social activist Abdul Rashid Hanjoora. “In April 2009, I filed a Public Interest Litigation in the High Court. In 2010, the Division Bench directed the State Government to implement the JJCPA Act in letter and spirit in three months’ time. Till date, the Government has failed to do so.” He paused, before adding, “Due to the unrest, I couldn’t file a contempt case; I plan to do so shortly.” Though the rules are framed and approved by the State Legislature, young boys are still being booked under PSA and even normal offences are charged under the Ranbir Panel Code; applying the same procedures to children’s cases as they apply to adult offenders. “After arresting delinquent children, police treat them at par with adults. They are kept with other prisoners and forced to undergo the same court procedure as other criminals. The experience rattles them,” said Mr Hanjoora. During the unrest in 2010, many youth below the age of 18 were lodged in Central Jail, violating not just the provisions of JJCPA but also those of the UN Convention on the Rights of the Child, to which India became a signatory in 1992. “If established, Juvenile Courts could give proper hearing to the children who commit crime. If they are detained with adult criminals, they can inherit the same traits,” warns Mr Hanjoora. Juvenile courts would also strive for rehabilitation of such children. “They would be given special care so that their thinking changes. Their needs are fulfilled and their criminal tendencies minimised,” he explained. The purpose of the legislation was to protect children from exposure to criminal culture and to rehabilitate them, which is often forgotten in the discussion. Unemployment has led to increase in crime rates among children, he believes. As per the provisions of the JJCPA Act, special homes are required to be built. Child Welfare Committees in each district must be constituted and children tried in special Juvenile Justice Courts. These courts should have three members: One Presiding Officer who should be a Judicial Magistrate and two other members who are social workers, with one necessarily being a woman. There is not a single juvenile court in the State today. Citing an example, Mr Hanjoora shared that he has data to show that nearly 56 cases of juvenile dequilency under different laws are presently recorded in Baramulla District alone. “The numbers may well have gone up since,” he mused. Even if implemented, the JJCPA Act has inherent flaws that need to be corrected. The Act covers bail, custody and inquiry (trial) of juveniles suspected of committing an offence, but is silent on administrative detention. Worse, it defines juveniles as boys under the age of 16 and girls under the age of 18. This is in sharp contrast to the national Juvenile Justice Act, 2000, which defines a juvenile as anyone below the age of 18. The issue of minors’ detention under Public Safety Act and then putting them in lock-ups instead of juvenile homes here since 2008 has evoked sharp criticism from the national and the international rights groups. The right to life as enshrined by the Constitution makes the State responsible for ensuring that all the needs of children are met. The right to fair trial and, more recently, the right to free and compulsory primary education for children below the age of 14 are some of the rights of children violated due to the non-implementation of the JJCPA Act. While the interlocutors are believed to have recommended the withdrawal of the Armed Forces Special Powers Act and the Disturbed Areas Act in their report, it is likely to have little bearing on the teenaged youth trapped by inadequate legislation. Over a year after the High Court directive, the State Law Department cleared the draft for framing the new legislation on juvenile justice in Jammu and Kashmir in September 2011. The draft recommends a change in the definition of juvenile from the present 16 years to 18 years. It also incorporates the obligations of the State towards protecting child rights as mandated by the Central Juvenile Justice Act 2000 and the UN Child Rights Convention.