Above: A protesting youth being arrested in Srinagar/Photo: UNI
The alleged detention of children under the Public Safety Act has become a major issue as there are conflicting views on how to deal with them—free them or treat them as anti-nationals
By Pushp Saraf
The focus in the Kashmir Valley is once again on juveniles in conflict with law. The challenge remains in diverting their attention to healthy pursuits in an environment of violence of thought and action.
On September 25, Justice Ali Mohammad Magrey of the Jammu & Kashmir High Court ordered an inquiry into a habeas corpus petition filed by Umer Bashir Naikoo, a detainee under the Public Safety Act (PSA) claiming that he was just 14 years of age and should be sent to a juvenile observation home. The probe will be conducted by the Registrar (Judicial) of the Srinagar wing of the Court to ascertain his age.
On September 24, Justice Sanjeev Kumar of the same Court directed the government to file a counter-affidavit in another habeas corpus petition in which the marks card of a detainee, Abrar Ahmad Ganaie, was produced to claim that he was only 16 and, therefore, “required to be treated as juvenile”.
In the first case, the detainee has sought the benefit of juvenility on the basis of his date of birth (March 16, 2005) as given by his school, Maktabia Islamia High School, in Shopian in the south of the Valley, a hotbed of militancy. A certificate issued by the principal mentions his age, as well as details such as him being enrolled from 2011 to 2014 and that he studied up to Class 5. In response to an earlier Court directive, the district magistrate of Shopian had said that the detainee was admitted in school on March 1, 2012 “and at the time of admission, no certificate of birth was produced by the parents of applicant-detenue nor the school administration bothered to procure/demand the same from the concerned offices viz Chowkidar, Municipality or Hospital”.
The Court noted: “The District Magistrate’s response further indicates that many mutilations were noticed in the recorded Date of Birth of many candidates from the Admission Registrar of the School.” The brother of the detainee filed an affidavit reiterating what the school principal had certified.
Justice Magrey recalled two Supreme Court observations in the “case of Abuzar Hussain v State of W.B. (2012) 10 SCC 489 and Shah Nawaz v State of UP (2011) 13 SCC 751”. The apex court had “recorded its satisfaction that the entry relating to the date of birth entered in the marks sheet is one of the valid proofs of evidence for determination of age of an accused person”. It had also remarked that the “certificate produced in this application in proof of the date of birth of the applicant-detenu is neither the original document nor attested by any person, much less an authorised person, therefore, cannot be taken as conclusively establishing the date of birth of the applicant-detenu”.
In the other matter referring to the marks card produced by the petitioner to claim March 15, 2003 as his date of birth, Justice Sanjeev Kumar directed the concerned district magistrate to “look into this aspect specifically and revert to this court”.
These two cases have come close on the heels of the Supreme Court directing the Juvenile Justice Committee of the Jammu & Kashmir High Court on September 20 to look into allegations of illegal detention of children in the state in the present situation. A three-judge bench headed by Chief Justice Ranjan Gogoi and comprising Justices SA Bobde and S Abdul Nazeer passed the order after turning down a plea by Solicitor General Tushar Mehta that the issuance of notice or mention in the order of the term “detention of children” be avoided. The solicitor general’s argument was that this would have wide repercussions. This development in the Supreme Court took place on the receipt of a report sought by it from Chief Justice Gita Mittal of the Jammu & Kashmir High Court on a statement made by senior advocate Huzefa Ahmadi, counsel for child rights activists Enakshi Ganguly and Shanta Sinha, that in the present situation in the Valley, it was not possible to access the High Court. (“The Healing Touch”, India Legal, September 30, 2019.)
The chief justice said the report filed by the chief justice of the High Court did not support Ahmadi’s contention. “But,” he observed, “we have conflicting reports too. However, since the issue is about the alleged detention of children, we will ask the HC’s Juvenile Justice Committee to inquire.”
According to the petitioners, “with regard to the situation in Jammu and Kashmir, there have been certain reports specific to children, which describe violations of very different kinds, ranging in seriousness from potential loss of life and liberty of the child to being emotionally and intellectually drawn into the conflict”. They stated: “The areas of concern as gleaned from reportage in mainstream newspapers are thus: the first pertains to illegal (if temporary) detention (and in some cases beatings) of young boys by security forces. The second concerns serious injuries and deaths of children, deliberate or accidental.”
The alleged detention of children in the Valley is a major issue inviting constant attention ever since their active participation in stone-pelting on security forces and installations was noticed. In 2016, about 200 of them were held for indulging in violence following the killing of Hizbul Mujahideen commander Burhan Wani who had effectively used social media to build his profile. There is a viewpoint that children should not be booked for any offence; instead, they should be set free after a warning or securing an undertaking from family elders about their good behaviour.
This argument is based on the reasoning that the exposure to jail would destroy their innocence. The other opinion is that as their actions are liable to be interpreted as anti-national, they deserve to be treated with an iron hand. The proponents of this view are looking forward to the application of the Juvenile Justice (Care and Protection of Children) Act 2015, which allows minors in the age-group of 16-18 to be tried as adults if they commit heinous crimes, to J&K after it formally becomes a Union Territory on October 31.
Another challenge in the Valley is that there is only one observation home —in Srinagar at Harwan—and detained children are at times accommodated in other places.
According to academician-journalist Kavita Suri, who is a member of the J&K State Commission for Protection of Women and Child Rights, the “protection of women and child rights is nobody’s priority”. Talking to India Legal from Jammu, she asserted on the basis of her extensive interactions with authorities, especially police officials, that they are handicapped, given their prime responsibility of tackling militancy and maintaining law and order. Her experience is that the phenomenon of child labour, which is the outcome of economic necessity, makes children vulnerable to separatist tendencies. She feels that the situation should improve now that the protection of child rights has been made part of the Women’s Commission.
This has been done under the Jammu and Kashmir State Commission for Women and Child Rights Act, 2018, which provides for the constitution of the J&K State Commission for Protection of Women and Child Rights and invests it with, among other things, “the powers to investigate, examine and review all matters relating to the safeguard provided for women and children rights under the constitution”. It should strengthen the grievances’ redressal mechanism.
Incidentally, Justice Magrey, who is also chairman of the Juvenile Justice Committee of the Jammu & Kashmir High Court which has Justices Dhiraj Singh Thakur and Rashid Ali Dar as members, visited the Harwan observation home on September 28 and interacted with juveniles. He said: “Our purpose should be to show right path to the detainees, rather than making them feel like criminals.” He added that the inmates should not feel as if they were in jail.
The situation in the observation home may have improved after 2017 when Justice Madan B Lokur of the Supreme Court, who was chief guest at a conference on the implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015, in Kashmir, called upon the stakeholders to work in tandem to set up Juvenile Justice Boards, Child Welfare Committees, Advisory Boards and Observation Homes. A health checkup of its inmates was soon conducted.
It was found that of the 27 children under detention, seven had “severe mental health” problems, one from Nepal needed “immediate treatment and admission to a psychiatric hospital” as he suffered from “severe depression with suicidal tendencies”, 13 had dental problems while others suffered from one disease or the other varying from jaundice to respiratory tract infection.
The ravages of these troubled times are being felt most by children.