Child Abuse

With minors in adult prisons in Kashmir, is the new juvenile justice draft a travesty of existing Act?

Photo Credit: Showkat Shafi.

Governor Satya Pal Malik recently courted another controversy when he decided to introduce the new Juvenile Justice Act draft in ‘special status’ Jammu and Kashmir. With the non-implementation of the previous act, does creating a new draft make sense?

Jameela and Afzal were still dreamy teenagers when they had their coup de foudre (love at first sight) moment. One mutual friend even describes the lovebirds as “rebels”, who wanted to ‘throw caution to the wind’. But while that mindset appeared ‘quixotic’, their strong emotional relationship soon shocked everyone. 

They were yet to write their class 10 papers when they decided to marry.

As expected, the decision was firmly opposed by their families. But the fresh-faced teenagers were unrelenting. They soon showed up in a court and met a lawyer there. “We want to go for court marriage,” they told him.  

The lawyer could make out from their faces that both were too young for marriage. “I tried to counsel and suggest them to rethink about their decision, but as they say love is blind,” says the lawyer, sitting in his cubicle in Srinagar’s Lower Court. “They were stubborn to change their decision.”

To dodge the eager-to-get-married juveniles, the lawyer asked them to get their certificates and prove their age.

When they expressed their inability of possessing any legal document, the lawyer told them, with a straight face: “Get the documents first. Otherwise, it’s not happening!”

The lawyer knew they had documents because both were studying in the same school.

“As the original documents would’ve proved that they were juveniles,” the lawyer says, “I thought they wouldn’t come back. But I was wrong.” Some days later, the young, wannabe couple returned, with Aadhaar cards, showing their doctored ages.

Jameela, the lawyer recalls, was too excited. “She put up a forthright face and vowed in an unwavering voice: ‘Marungi bhi toh issi ke sath, Jiyun gi bhi toh issi ke saath’ (I’ll live and die only with him [Afzal].)

While the lawyer has no clue about the ‘premature lovers’ now, but he laments over the prevailing law and order system in the state, where a juvenile could easily get an Aadhaar card with fake age. And once the documents are being procured illegally, the legal practitioner says, the system is forced to accept them as valid proof.

Such travesty itself acts as a small window for the larger plight of juvenile justice system in Kashmir. Even the successive government has played Nero over it.

Interestingly, since the implementation of the Integrated Child Protection Scheme (ICPS) in 2013, the state of Jammu and Kashmir could not secure any funds for the scheme. While many Indian states raised the bar of their juvenile justice system, JK remains indifferent.

In fact, in August 2014, Indian Union Minister for Women and Child Development Maneka Gandhi informed Rajya Sabha that no proposal had been received from Jammu and Kashmir for the release of grants under the ICPS in the last six years. Given its lukewarm response, JK only received Rs.1.56 crore during 2015 and 2016, the lowest fund granted to any state under the said scheme.

Such a non-serious approach is an open violation to the Juvenile Justice Act, 2013, which provides a detailed roadmap for the protection and rights of vulnerable children. 

“It often upsets me when I witness how the non-implementation of Juvenile Justice Act fails Kashmiri kids,” the lawyer says.

The Juvenile Justice Act was first passed in 1986 across India and was later amended in 2000 and 2006. In 2013, the amended Jammu and Kashmir Juvenile Justice (Care and Protection of Children), was launched in line with the Central Act.

The Act includes the creation of observation and special homes in each district and mentions that any apprehension of a juvenile in the conflict of law should be produced before the juvenile justice board within a period of twenty-four hours.

Advocate Jahangir, who works as an independent lawyer in district Islamabad, says that juveniles are the worst victims and being in conflict zones adds to their miseries. “The lack of implementation of the act makes juveniles suffer and exposes them to more violence at the hands of police,” he says.

The Act explains Juvenile as any child who is in need of shelter, begs on street, or involved in narcotics and psychotropic substance. The Act ensures that if a Juvenile is booked under non-bailable offence, he should in no circumstance be sent to a lock-up or jail. 

But in the case of Aamir, the juvenile who landed in police lockup for his street dissent in 2016, such an Act never proved helpful. After multiple jail stints, the minor is now seen as an “outcast”.

He first came to public notice when his video from a police lockup, where he is shown roped with two other boys, went viral on social media. The minor Aamir can be seen shouting “Bharat mata ki jai!” slogans on insistence of the livid paramilitary men. In case he fumbles, he receives physical abuse in the form of punches and blows. 

“Today, Aamir is no longer that confident boy we once knew,” says Showkat, who lives in Aamir’s neighbourhood. “It’s not only about him. There are many like him who used to be at the forefront of the protests in old city, but after landing in prisons, many of them come out as changed persons. As young and impressionable, they underwent a change in lockups.” 

As a person, Aamir is indifferent and a reluctant schoolboy now. While his neighbours and friends blame the prison-time for his transformation, the unimplemented Juvenile Justice Act clearly emphasises on the setting up of special Juvenile police units. The Act even says that a police officer should be in plainclothes when dealing with a juvenile, who should not be handcuffed.

But the irony is that all this remains on papers and nothing much has been done on the ground. No proper district courts and juvenile centres were formed.

However, unlike Aamir, when Ahmad landed in a police lockup as a juvenile, he was sent to the only juvenile home of Kashmir at Harwan.

While police claimed to recover weapons from his custody, the investigation report of his case states: “Ahmad was taught about jihad at the madrassa which motivated him to take this extreme step.” At a very young age, Ahmad who lives in Budgam was sent to a seminary in Lucknow. 

Being a minor, he was later released and charges against him were withdrawn.

Ahmad was in need of proper counselling and guidance but the juvenile home and the lack of implementation of the Act failed to provide him anything. The only benefit that the Act had on him was that he was dealt ‘softly’ and given a chance to reframe his life.

But while the state has failed to implement the old Juvenile Act, Governor Satya Pal Malik came up with the new Act and courted another controversy for fiddling with the laws in JK. 

The new draft has two major changes; one is to bring down the age limit, implying that anyone below the age of 16 is a juvenile.

Chairman, Selection-cum-Oversight Committee, Justice (Retd.) Hasnain Masoodi, says that Juvenile Justice Advisory Committee (JJAC) is an “evolving concept”.

Incidents like Nirbhaya rape case in Delhi and gang-rape of a minor in Kathua have pushed the authorities to make changes with regard to the age of criminals, he says: “In Nirbaya’s case, the Juvenile was a few weeks away from turning 18 but he was considered 18 and punished.”

The other addition in the new draft, is adoption and foster care. 

The draft states that the child should be declared legally free for adoption by the set committee. A child line service and specialized adoption agency have also been mentioned in the draft.

Advocate Jahangir also stresses on the fact that delay in the establishment of special courts and homes at the district level is creating a psychological impact on juveniles as ‘they are logged and present in the same court as adults.’

“Lack of proper counselling sessions and mishandling by police like detaining a juvenile despite knowing the fact (that he is a minor) also make them volatile and vulnerable,” the advocate says.

While other states have made a lot of progress over the years, Jammu and Kashmir hasn’t achieved much on the fostering front. The adoption law in the state works as per Shariah as of now. 

Heinous offences have also been included in the draft where the minimum punishment will be given as per Ranbir Penal Code. But the term heinous remains ambiguous in the new draft.

“We divide juveniles into 2 groups,” continues justice Masoodi, while defining the term heinous crimes, “Below 16 and between the age of 16-18 years.” Likewise, he says, offences are divided into heinous offences and other offences. “Heinous offences are punishable with a sentence of more than 7 years.”

Justice (Retd.) Hasnain Masoodi (right) with Governor Malik.

The Act also emphasises on sponsorship which will be provided by the government at different levels, like individual, group or community level. The criteria for the sponsorship includes a mother, who’s a widow, divorcee or abandoned by her family. 

“But the special status of the state does not allow the implementation of such laws in the state,” says advocate Jahangir.

However, based on his extensive legal experience, Jahangir feels that the state of juveniles is pathetic in the state. And instead of bringing a new law which will take another 5-6 years in implementation, he says, it’s necessary that “we focus on the present Juvenile Justice Act and bring some relief to the victims”. 

But from the developments and lessons learnt since 2013, argues Justice Masoodi, the Act needs to be changed. 

“After Nirbhaya, the juveniles at an advanced age from 16-18 years cannot be treated at par with the juveniles below the age of 16 years. At least, not when it comes to heinous crimes,” he says. “When it comes to the juveniles of age 16, we don’t intend on treating them like adults. But we don’t intend to treat them like minors either. They will be tried in special courts called the court of sessions.”

While juvenile offenders cannot be overlooked, the justice says, there is always an element of misuse in any Act “but you have to look at the larger good”. Good thing, however, is that it’s still a draft, he says, and the committee is looking at what should be in the draft and what not. “Child rights activities and academicians are being taken on board for the new draft.”

Also in the last meeting, he says, the age categorization was disagreed upon and even the new adoption chapter has also been debated upon. It has been decided that as of now only ‘within state adoption’ will take place, justice Masoodi says: “The new draft will undergo many more brain storming sessions till we reach to a point where this draft becomes perfect and in the best interest of the Juveniles.”

 

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