In the wake of the gruesome rape of a young woman on 16th December 2012 in Delhi, a heated debate has been raging at national level with respect to lowering the age of juveniles to 16 years. On 27th February 2013, the Minister for Women and Child Development told the Rajya Sabha, “We are not changing the age of juvenile as defined in the juvenile justice act, as it may hurt the larger interests of children in the country. All those under 18 years of age are juvenile.” The Criminal Law (Amendment) Bill, 2013 passed in the Lok Sabha on 19 March 2013 retained the age of consent for sex to 18 years.
However, there are 197 districts in India which are officially notified as affected by internal armed conflicts and the edifice of the juvenile justice does not exist in these districts. Children, irrespective of their age, in these districts are treated as adult. They are routinely subjected to gross human rights violations including arbitrary arrest and detention, torture, extrajudicial executions and sexual assaults as part of the counterinsurgency operations. Juveniles in these districts are denied access to juvenile justice unlike their counterparts in rest of the country.
The 197 districts which have been notified as conflict affected include: 71 districts notified as “disturbed” under the Armed Forces Special Powers Act (AFSPA) in Assam, Arunachal Pradesh, Manipur, Meghalaya, Nagaland and Tripura in the north east India and 20 out of 22 districts in Jammu and Kashmir; and 106 districts declared as Left Wing Extremism (LWE) affected in nine states of Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Maharashtra, Orissa, Uttar Pradesh and West Bengal.
i. State of juvenile justice in conflict afflicted districts
Out of 197 conflict afflicted districts, 151 districts i.e. 76.64% of the total conflict afflicted districts do not have Observation Homes and Special Homes. This implies that juveniles who are taken into custody are kept in police lock up or camps of the army and para-military forces in clear violation of the Juvenile Justice (Care and Protection of Children) Act, 2000 [JJ(C&PC) Act] and the UN Convention on the Rights of the Child. This is despite the fact that Sub sections of (1) and (2) of Section 8 of the Juvenile Justice Act, 2000 provide for establishment of “Observation Homes”/ Certification of Fit Institutions in every district or a group of district “for the temporary reception of any juvenile in conflict with law during the pendency of any inquiry regarding them under this Act”.
Among these States, the worst are Jammu and Kashmir which has only two Observation Homes, and Manipur which has only one Observation Cum Special Home. This denies access to justice to many juveniles detained from other districts as they need to be produced before the respective Juvenile Justice Boards (JJB) or courts in the case of Jammu and Kashmir.
In conflict afflicted districts, the Juvenile Justice Boards (JJBs) exist on paper while their functioning remains deplorable. The Government of Manipur had submitted false information to the Ministry of Women and Child Development that nine JJBs had been operating in the State while in reality only one JJB was functioning. As the State government failed to establish the JJBs, the Project Approval Board (PAB) in its 35th Meeting under Integrated Child Protection Scheme (ICPS) held on 17 January 2012 had no other option but to decide not to grant further funds for the nine JJBs for the current Financial Year 2012- 2013 until a report on the functioning of JJBs with complete details of members, pendency, etc are submitted by the State Government. In Jharkhand, there were over 3,500 cases pending before various JJBs in the state as on 11 July 2012 while the Observation Home for Boys established in the LWE affected Palamau district was converted into a girl’s residential school – Kasturba Gandhi Balika Vidyalaya, and the juveniles were shifted to the Observation Home, Ranchi, which is about 165 km away. This requires travel arrangements to be made for the juveniles to come to Palamau district and be produced before the Juvenile Justice Board, which invariably delays justice. In Assam, replies received from JJBs under the Right to Information Act showed that not a single review of the pendency of cases before the JJBs has been conducted by the Chief Metropolitan Magistrate or Chief Judicial Magistrate in Kokrajhar district; Dibrugarh district; Darrang district; Lakhimpur district; Udalguri district; Dhubri district; Goalpara district; Barpeta district; Golaghat district; Morigaon district; Chirang district; Dhemaji district and Nagaon district from date of their constitution till 30th March 2012. Reviews were held only in Bongaigaon district (12 reviews); in Jorhat district (1 review on 23.03.2010); in Sonitpur district (2 reviews) while in case of Sivsagar district, RTI reply vaguely stated “reviewed and monitored time to time”.
ii. Violations of juveniles’ rights in conflict affected districts
Children in the conflict affected districts are subjected to arbitrary arrest and detention including under the national security laws, torture, extrajudicial executions and sexual violence. In many cases, the perpetrators got away by producing “No Objection Certificate” from villagers or victims stating that they had not committed any offence.
a. Arbitrary arrest, detention and torture
In this report, Asian Centre for Human Rights (ACHR) cited 15 cases of arbitrary arrest, detention and torture. Though crimes of arbitrary arrest, detention and torture are difficult to establish, ACHR has obtained compensation in at least three cases (two of which are highlighted below) to establish the patterns of violence against children.
Case 1: Illegal detention and torture of Soumen Mohanty, Orissa
On 17 November 2010, Soumen Mohanty (17 years), son of Mr. Sudhir Charan Mohanty of Netaji Nagar was arrested in connection with Madhupatana police station case No. 218 dated 17.11.2010 under Sections 506/34 of Indian Penal Code and Sections 3 & 5 of the Explosive Substances Act in Cuttack, Orissa. On 23 November 2010, ACHR filed a complaint with the NHRC which forwarded it to the Orissa Human Rights Commission (OHRC) for taking necessary action. The Police submitted misleading report and this was challenged by the ACHR. Thereafter, the OHRC asked its Director (Investigation) to conduct an independent inquiry and the inquiry report dated 6.11.2012 was submitted.
The Director (Investigation) of the OHRC found that “(i) Juvenile Soumen Mohanty was taken into detention at Madhupatana poolice station on 17.11.2010 between 7.30 pm to 8.30 pm and interrogated by the police in connection with Madhupatana Police Station case no. 218 of 2010; (ii) Soumen Mohanty was “tortured physically and mentally by ASI Satayanarayan Senapati in presence of Inspector Jayant Kumar Mohapatra and Sub-Inspector, S.B. Jena, (iii) It was ASI Satyanarayan Senapati who assaulted Soumen Mohanty for which he is liable to be prosecuted under sections 341/323 IPC; (iv) Inspector Jayant Kumar Mohapatra is liable for illegal detention of Soumen Mohanty for more than 40 hours under sections 342/341/323/109 IPC; and (v) Police records were manipulated showing that Soumen Mohanty was arrested on 18.11.2010 at 8.30 pm to cover up the illegal action of Inspector Jayant Kumar Mohapatra and ASI Satyanarayan Senapati which amounts to misconduct and dereliction of duty.”
The Orissa Human Rights Commission also found that when Soumen Mohanty was produced before the CJM-cum-Principal, Juvenile Justice Board (JJB), Cuttack on 19.11.2010, the JJB observed as follows: “Soumen Mohanty complaints of ill-treatment by police while in custody. He has shown his right hand where marks of assault are visible.” Therefore, the OHRC accepted the report of the Director Investigation on 23rd November 2012 and awarded compensation of Rs 50,000 /-(Rupees fifty thousand) to the victim. The Commission directed the authorities to decide about the action to be taken against the erring officials for having assaulted Soumen Mohanty and manipulated the records.
Case 2: Illegal detention and torture of a minor, Assam
On 16 August 2009, 12-year-old Dipak Saikia (name changed) of Sanitpur village was tortured by Manuj Boruah, Officer In-Charge at the Sungajan police station in Golaghat district, Assam. On 16 August 2009 at about 11 am, a group of about six police personnel entered the house of the victim and dragged him out without giving any reason. He was taken to the Sungajan police station and on reaching the police station, he was ordered to sit on the floor of the verandah. Mr Manuj Boruah, Officer In-Charge of the police station tied the minor’s hands on his back with a chain and tortured him. The victim was beaten up with a stick repeatedly on his body including in the thigh, knees, foots, sole, back, arms, elbows and ears. The Officer-In-Charge also asked the minor to keep his hand on his table and was beaten on the nails. He was again hit on the head, neck and nose until Dipak became unconscious. Pursuant to a complaint filed with the NHRC by ACHR, the Superintendent of Police, Golaghat district, vide communication dated 07.12.2010 submitted a report to the NHRC confirming that the accused Sub Inspector Manuj Baruah directed his subordinate police officials to pick up the victim from his home at 10.00 am, caned him and detained him in the police station. The report of the SP further stated that accused police officer willfully omitted to make necessary entries in the General Diary of the police station, pertaining to the whole episode including the picking up of the victim, his illegal detention and subsequent release. The report further stated that a Departmental Disciplinary Proceeding has been drawn up against the accused officer for criminal misconduct and dereliction of duty. The NHRC ordered the state government to provide a compensation of Rs. 50,000 to the victim. On 20 April 2012, the NHRC closed the case after the Joint Secretary to the Government of Assam, Political (A) Department vide communication dated 7.4.2012 informed that payment of compensation amounting to Rs. 50,000/- was paid through cheque to the victim.
Special focus: Arrests in J&K including under the Public Safety Act
Children continue to be arrested under the Public Safety Act (PSA) of Jammu and Kashmir which provides for preventive detention upto two years without trial in the name of public safety The six emblematic cases of detention of juveniles in J&K under the Public Safety Act are given below:
Case 1: On 7 February 2011, Faizan Rafeeq Hakeem was arrested for his alleged involvement in “stone-throwing.” He was 14 years, eight months and 11 days old at the time of his arrest. He was booked under the PSA and shifted to Kotbalwal Jail. Finally, Chief Minister Omar Abdullah ordered his release. Hakeem was released on 5 April 2011.
Case 2: In May 2011, Murtaza Manzoor, aged 17 years, was released from jail after the High Court intervened and found his imprisonment to be unlawful. He was locked up for more than three months in administrative detention under the PSA.
Case 3: On 17 June 2010, 15-year-old Sheikh Akram, son of Sheikh Zulfikar of Jogilanker Rainawari. Akram and a student of Class 8th was arrested under the Public Safety Act after allegedly attending the funeral procession of Tufail Mattoo. After his arrest, Akram was granted bail by the Principal District and Sessions Court but in order to foil the bail, on 3 July 2010, District Magistrate of Srinagar Meraj Ahmad Kakroo issued orders to book him under PSA and was sent to Kote Bhalwal jail.
Case 4: In November 2010, Harris Rasheed Langoo (15 years), a class 9th student, was arrested from his home at Malik Sahab Hawal for alleged involvement in stone pelting and detained under the PSA. Harris was granted bail twice by the court but continued to be detained. The first bail was granted almost a week after the arrest but police detained him on a new charge. The second bail was granted on 15 November 2010 but he was detained in a new charge.
Case 5: Omar Maqbool, aged 13 years, was detained on 27 October 2010 under the PSA and faced similar trauma of re-arrest like Harris Rasheed Langoo.
Case 6: Mushtaq Ahmad Sheikh, aged 14 years, was detained without evidence on 9 April 2010. He was granted bail after eight days, but was re-arrested on 21 April 2010. He was finally released on 10 February 2011.
b. Extrajudicial killings of children
Children are routinely picked up and extrajudicially killed including in alleged fake encounters. In this report, ACHR provided 15 cases of extrajudicial execution of children. In a number of cases, extrajudicial executions have been established by the National Human Rights Commission. Two emblematic cases are given below:
Case 1: Killing of Rakhal Gaur (13) by CRPF, Assam
On 8 December 2011 morning, Cobra commandoes of the Central Reserve Police Force reportedly shot dead 13-year-old Rakhal Gaur at his village, Malasi Namkhi Gaur village under Dolamara police station in Karbi Anglong district of Assam. On 9 December 2011, ACHR filed a complaint with the NHRC urging its immediate and appropriate intervention. NHRC registered the complaint (Case NO.348/3/8/2011-PF) and issued notice to Director General, CRPF, New Delhi and Superintendent of Police, Karbi Anglong district, Assam calling for reports within four weeks. The state government of Assam paid a compensation of Rs.300,000 (three lakhs) to the next of kin of the deceased from the Chief Minister’s Relief fund and in view of this, the NHRC closed the case.
Case 2: Killing of 15-year-old Jatan Reang by Assam Rifles, Assam
On the night of 14 May 2010, Jatan Reang (15 years) was killed in firing by the personnel of 14th Assam Rifles and arbitrarily arrested four other tribal villagers at Gudgudi village under Katli Chara Police Station in Hailakandi district, Assam. The five tribal villagers including the deceased (Jatan Reang) were returning from Boirabi bazaar when they were ambushed by the 14th Assam Rifles from North Tripura over a bridge at Gudgudi village at around 10 PM on 14 May 2010. The 14th Assam Rifles personnel opened fire indiscriminately without any provocation and killed Jatan Reang although they were unarmed and innocent. Following the killing of Jatan Reang, the Assam Rifles personnel arrested the four other Reang tribal villagers and handed them over to Katli Chara police station. On 23 July 2010 ACHR filed a complaint with the NHRC urging its immediate and appropriate intervention. The NHRC registered the complaint as Case No.170/3/21/2010-PF/UC and issued notice to the Secretary, Ministry of Home Affairs, Government of India. During the course of proceeding, the NHRC received the Magisterial Enquiry Report, Investigation Report of the Superintendent of Police, Hailakandi, and the Post-Mortem Report. The reports confirmed that the minor was fired at from point blank range by a jawan and injured his right thigh. But, the minor was not provided medical care and he died on account of excessive bleeding. The NHRC directed the Ministry of Home Affairs to pay a compensation of Rs. 500,000 to the next of kin of the deceased.
c. Sexual violence
Children especially the girls face sexual violence from the law enforcement personnel in the conflict affected areas. ACHR cites two cases below.
Case 1: On 23 February 2011, a 15-year-old minor tribal girl was raped by a personnel of Tripura State Rifles (TSR) identified as Tejendra Barui at Nandakumarpara village in Khowai subdivision in West Tripura district, Tripura. The accused was deployed in the Village Committee Election for the Tripura Tribal Areas Autonomous District Council. According to the family members, the accused TSR personnel dragged the victim to a nearby jungle forcefully when she was returning home from her relatives’ house and raped her. On 25 February 2011, ACHR filed a complaint with the NCPCR which was registered as Case No. TR-19023/21623/2010-11/COMP. Pursuant to NCPCRs intervention, the District Magistrate and Collector, West Tripura district vide letter dated 13 May 2011 informed the NCPCR that a compensation of Rs.40,000 was recommended to two victims under the Tripura Victim Compensation Fund Rules, 2007. On 21 June 2012, ACHR further intervened with the NCPCR to ensure that the compensation is enhanced.
Case 2: In April 2011, a 14-year-old mentally challenged girl was raped by a Central Reserve Police Force (CRPF) personnel near the CRPF camp in Warangal district, Andhra Pradesh. The victim was an inmate of a Shelter Home run by an NGO. The matter came to light only when the victim was admitted to a local hospital and gave birth to a premature baby on 5 November 2011.37 ACHR filed a complaint with the NHRC on 14 November 2011. The NHRC directed the Director General, CRPF, New Delhi and Superintendent of Police, Wrangal district to submit reports. In compliance, the Director General, CRPF submitted a report which stated that during investigation the Caretaker of the Home revealed that a CRPF Constable had raped the girl in the month of April 2011 as a result the victim might have become pregnant. An FIR No. 256/2011 dated 29.12.2011 was also registered under Section 376 IPC at Kakatya University Campus police station, Warangal against an unidentified CRPF personnel and Caretaker of the Home. The NHRC vide its proceedings dated 13 April 2012 directed the CRPF to submit a further report regarding the status of action taken.
iii. Nobody’s children
The Government of India denies existence of armed conflicts in India. In its first periodic report (2011) on the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict states, “Even though India does not face armed conflict, there are legislative provisions that prevent involvement of children in armed conflict and provide care and protection to children affected by armed conflict.” This statement of the Government of India is not true.
The Ministry of Women and Child Development launched Integrated Child Protection Scheme (ICPS) from 2009-10 aimed at building a protective environment for children in difficult circumstances. The Jammu and Kashmir government has astoundingly refused to avail the ICPS while the remaining States have not submitted any proposal to augment the juvenile justice system in the conflict affected districts. Under the ICPS, the Ministry of Women and Child Development supports activities placed by the State Governments which invariably ignore the conflict affected districts.
The National Commission for Protection of Child Rights, among others, at the request of the Asian Centre for Human Rights started a process for drafting “Standard Operating Procedure (SOP) for dealing with arrest, detention & death in custody and in encounter of children in Internal Security Situations” in June 2012 and a consultation was held on 29 July 2012. The NCPCR is yet to finalise the same and a mere statement of the legal procedures is unlikely to help.
The UNICEF’s Child Protection Programme in India focuses mainly on three areas of intervention: child labour, child trafficking, and children in difficult circumstances. Its website fails to provide any information as to the work undertaken in the conflict affected districts.
It is clear that juveniles in conflict affected districts do not seem to be anybody’s priority and they are being denied the equal access to juvenile justice as being provided to their counterparts in the rest of the country.
iv. Recommendations:
Asian Centre for Human Rights recommends the following:
- the Ministry of Women and Child Development and the State Governments must undertake initiative and allocate financial resources to establish all the institutions as provided under the Juveniles Justice (Care and Protection of Children) Act in all the 197 conflict affected districts;
- the National Commission for Protection of Child Rights must develop “Standard Operating Procedures” which shall specify the responsibility to the District Magistrate and the State Police, Central para-military officers and the army to submit the monthly report with respect to implementation of the Juveniles Justice (Care and Protection of Children) Act in case of arrest, detention, torture, rape, extrajudicial executions, etc;
- the UNICEF must include children from these 197 districts in its programme on children in difficult circumstances;
- the State Government of Jammu and Kashmir must issue an order prohibiting arrest of children under Public Safety Act; and
- the State Government of Jammu and Kashmir must sign the Memorandum of Understanding with the Ministry of Women and Child Development for implementation of the Integrated Child Protection Scheme.
