Jammu & Kashmir: Juveniles detained without trial,
girls compulsorily sent to prisons and police lock ups


- ACHR demands for immediate designation of a suitable government
building as Juvenile Home for Girls in Kashmir -

New Delhi: Asian Centre for Human Rights while releasing its fact finding report, “Juveniles of Jammu and Kashmir: Unequal before the Law & Denied Justice in Custody after field visits to Srinagar, Budgam, Shopian, Pulwama, Islamabad, Kulgam, Ganderbal and Jammu districts from May to July 2010 followed up by updates stated that juvenile justice system is rotten in Jammu and Kashmir. The juveniles at R S Pura Juvenile Home are being detained without trial as they are not produced before courts, while juvenile girls must be compulsorily sent to police lock ups or prisons as the State does not have a single Juvenile Home for Girls.

While the arrests of dozens of juveniles during the mass uprising in the Kashmir valley from June to September 2010 brought the abuse of the Public Safety Act against the children in conflict with the law into focus, Asian Centre for Human Rights stated that juveniles have been consistently arrested under the Public Safety Act, detained with adults in police lock up and prisons, and tried with and as adults in normal courts.

“The J&K Police has been fond of applying the PSA and they seldom invoke the Jammu and Kashmir Juvenile Justice Act, 1997. Consequently, juveniles are denied access to justice and benefits of the special protection provided under the 1997 JJA. The judiciary in Jammu and Kashmir is forced to intervene in every case to invoke the JJA”. – stated Mr Suhas Chakma, Director of Asian Centre for Human Rights.

Rotten justice: the case of Fayaz Ahmad Bhat

Asian Centre for Human Rights cited the case of Fayaz Ahmad Bhat, who is a 25 years old adult now and being held at the R S Pura Juvenile Home, to expose the rotten juvenile justice in J&K. Fayaz, son of Ghulam Hassan Bhat, resident of Goori-pora, Palpora, Ganderbal, Srinagar was arrested and charged with offences under sections 302 of the Ranbir Penal Code (murder) and Sections 7 and 27 of the Indian Arms Act pursuant to the FIR no. 42/1995 registered at the Safakadal Police Station. He was arrested sometime in 2007 and was detained with adult prisoners for about three years at Sringar Central Jail.
The Police contended that Fayaz was an adult. However, in its order dated 12 March 2009 the Court of First Additional District and Session Judge, Srinagar declared that Fayaz was a juvenile on the date of commission of alleged offence. The court ruled that certificate of Fayaz issued by Shanti Public School in which Fayaz’s date of birth was recorded as 9 December 1984 was correct. The court further rejected alleged certificate issued by Government Boys High School, Dub Ganderbal in which his date of birth was mentioned as 25 February 1976.

On 4 April 2009 the Chief Judicial Magistrate directed that Fayaz who was detained at Central Jail, Srinagar be shifted and lodged at Juvenile/Observation Home, R S Pura, Jammu. On 10 April 2009, the Superintendent of the Central Jail Srinagar shifted him to Juvenile Observation Home, R S Pura with a police escort team. But, the Superintendent of Juvenile Observation Home, R S Pura Jammu refused to admit him and returned him through the same police escort team on the ground that the delinquent was above 16 years. On further directions from the Court, he was admitted in the RS Pura Juvenile Home. On 23 May 2009, he was denied bail by the Court.

On 6 August 2009, the Court noted that police failed to produce the delinquent on the last 5 dates of hearing. The Court therefore directed the Director General of Police of Jammu and Kashmir to ensure presence of the delinquent on the next date of hearing and cautioned about initiating contempt proceedings against all concerned police officials in case of failure to produce the delinquent.

When ACHR researcher met Fayaz at the R S Pura Juvenile Home on 3 July 2010, he alleged that he was not produced even once before the trial court since the denial of bail. There is no doubt that Fayaz’s detention without trial violates universally accepted human rights laws that provides for “the most expeditious processing to ensure the shortest possible duration of detention”.

Fayaz is an adult of 25 years now and has been variedly described by the media as a “dreaded terrorist” charged with murder and Arms Act. It is forgotten that when the FIR was filed 16 years ago in 1995, he was only nine years old. His contention that he is not the person being charged but a victim of mistaken identity has not been investigated even after the certificate issued by the Shanti Public School has been held as genuine by the Court. No inquiry has been conducted as to whose certificate the police produced from the Government Boys High School, Dub Ganderbal to show that he was an adult.

He is condemned to stay in the R S Pura Juvenile Home as the both the judiciary and the State have no interest to ensure expeditious trial of his case registered 16 years ago.

In fact, all the juveniles being lodged at the R S Pura Juvenile Home as mentioned in the report complained that they have not been produced before the Courts for trial and therefore, they are condemned to stay there.

J&K: Always a decade late to apply national standards on juvenile justice

While in the rest of India, the flawed 1986 Juvenile Justice Act was replaced with the Juvenile Justice (Care and Protection of Children) Act, 2000, Jammu and Kashmir, which has been quick to enact draconian laws like the Armed Forces Special Powers Act, showed scant regard for juvenile justice. The Jammu and Kashmir Juvenile Justice Act was enacted in 1997 one decade after India enacted the flawed 1997 JJA. It took another decade for the State Government to adopt the Rules in 1997 meaning that the Act remained unimplemented. Even through the rules were framed in 2007, the State government took no action to set up juvenile homes, observation homes and Juvenile Justice Boards as required by the Act. In June 2010, the J&K High Court directed the state government to implement the Juvenile Justice Act in three months but little has been done to comply with the said order.  In February 2010, India’s Ministry of Women and Child Development recommended the State of Jammu and Kashmir “to take necessary action for carrying out amendments to the Jammu & Kashmir Juvenile Justice Act, 1997 and Rules, 2007, to bring them at par with the Central Act before they commence implementation of Integrated Child Protection Scheme”. No action has been taken until today.

The findings of the fact finding mission are:

• The State government of Jammu & Kashmir has been illegally detaining minors under the Public Safety Act (PSA) of 1978 that provides for upto two years of preventive detention. A large, yet unknown, number of children have been detained under the PSA. The detention of these minors is illegal as the Supreme Court of India in numerous judgements held that the Juvenile Justice Act has supremacy over all other Acts while trying offences committed by children in conflict with the law;

• Prisons in J&K currently have large number of juvenile prisoners and/or prisoners who have been arrested as minors but who have subsequently attained adulthood during their detention and are charged as adults in contravention with India’s national laws and international obligations;

• There is no Juvenile Justice Board and Child Welfare Committee in Jammu and Kashmir and minors are tried in normal courts, sometimes as adults, in contravention with India’s national laws and international obligations. Further, juveniles are specifically tried with adults if charged in the same offence in contravention of India’s national laws and international obligations which provide that trials must be separate for juveniles;

• There is no juvenile home for girls in Jammu and Kashmir in violation of 1997 J&K Juvenile Justice Act and all the girls taken into custody by the law enforcement personnel are placed in jails or police lock ups in the absence of a Juvenile Home for Girls. Out of the 51 cases of juvenile justice cited in this report, 9 cases relate to girls including two girls who are categorised as “in need of care”;

• Juveniles detained at the R S Pura Juvenile Home at Jammu are not being produced before the Courts and hence being denied justice in contravention with India’s national laws and international obligations;

• Children in conflict with the law in J&K do not get the benefit of the Central law i.e. Juvenile Justice (Care and Protection of Children) Act, 2000. Under the 1997 J&K Juvenile Justice Act, those who are over 16 years are not regarded as juveniles;

• Minors in pre-trial detention are assumed to be adults and are routinely detained with adult criminals, placing them at very high risk of abuse, in clear violation of national laws and international human rights standards;

• Across India, school certificates are used to determine the age of a juvenile. That is not the practice in J&K. The J&K Police in all cases argue that those detained are adults. Until their age is medically assessed or ruled by the judge, the juveniles are assumed to be adults and are detained in adult detention facilities, placing them at very high risk of abuse, in clear violation of national laws and international human rights standards;

• Even if age can be determined, the lack of juvenile facilities such as juvenile homes means that detained delinquents are routinely detained in police lock ups or in prisons with adults;

• The juveniles detained in the R S Pura Juvenile Home in Jammu suffer from the lack of basic facilities such as drinking water, electricity, educational and recreational facilities; and

• Juveniles of Jammu and Kashmir are not covered under the programmes launched by the Government of India such as Integrated Child Protection Scheme.
4
Recommendations: immediately assign a government building as Juvenile Home for Girls in Srinagar

Since the field study conducted by Asian Centre for Human Rights, Jammu and Kashmir State government has started construction of a Juvenile Home at Harwan, Srinagar and the State Cabinet also approved Jammu and Kashmir Public Safety Act (Amendment) Ordinance 2011 to, among others, prohibit detention of a person below 18 years under the PSA.

“Both the measures are too little too late. The State Government must immediately assign a suitable government building in Srinagar as the “Juvenile Girls Home” to house the juvenile delinquent girls and provide all the facilities as provided under the Juvenile Justice Act considering that all the juvenile delinquent girls are being held in prisons in the absence of a Juvenile Home for Girls. ” – stated Mr Chakma.

The Asian Centre for Human Rights further recommended the State Government of Jammu and Kashmir to:

• Repeal the 1997 J&K Juvenile Justice Act, and enact a new law in conformity with the Juvenile Justice (Care and Protection of Children) Act, 2000 and the United Nations Convention on the Rights of the Child and the Rules for the same Act must be adopted immediately. Further, it must provide for separate homes/facilities for those juveniles who attain the age of 18 years during the pendency of their trial and the under trial detainees should be separated from convicted juveniles.

• Issue an order to ensure that henceforth all pending cases against juveniles including the 51 cases cited in this report shall be tried by the Juvenile Justice Boards to be established under the new Act and not under the normal courts presently being conducted;

• Direct the authorities of all the prisons in the State to conduct a survey to verify the status of the under-trial detainees as to whether at the time of alleged offence they were minors, and if they were minors, order to try them under the Juvenile Justice Act even if they have attained adulthood during their detention;

• Direct the authorities of all the prisons in the State to conduct a survey of the female juvenile detainees and immediately transfer them to the Juvenile Girls Home even if they have attained adulthood during their detention;

• Provide access to water, electricity, educational and recreational facilities to juveniles detained at the R S Pura Juvenile Home in Jammu;

• Ensure that juveniles detained at the R S Pura Juvenile Home are provided expeditious trial and regularly produced before the Courts; and

• Take measures for implementation of the Integrated Child Protection Scheme of the Government of India including (i) setting up of dedicated service delivery structures, i.e. State Child Protection Society, District Child Protection Society in each district, State Project Support Unit and State Adoption Resource Agency, to manage and monitor the implementation of the scheme; (ii) appointment of the Child Welfare Committees and Juvenile Justice Boards in every district and Juvenile Police Units in every police station; (iii) conducting a survey of the various types of Homes, authentic data and take effective measures for their improvement; and (iv) assessing the demand for upgradation of existing Juvenile Home at R S Pura, Jammu. [Ends]

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