20, Sep 2019 | CJP Team
The Supreme Court has directed the Juvenile Justice Committee of the Jammu and Kashmir High Court to look into the allegations of illegal detention of children in Jammu and Kashmir in the wake of abrogation of Article 370, and submit a report before it within a week.
There have been certain reports specific to the serious human rights violations against children in the erstwhile state of J and K, 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.
The directions were passed on petition filed by senior social activist, Enakshy Ganguly of Haq for Child Rights and senior activist, Shanta Sinha who is an anti-child labour activist of international reputation. She is the founder of Mamidipudi Venkatarangaiya Foundation, popularly known as MV Foundation, and is a Professor in the Department of Political science in Hyderabad Central University.
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The petition may be read here.
The petitioners had prayed for a regular status report from the government “detailing the current whereabouts, and the medical (both psychological and physical) status be provided on the specific children described in this petition, who have been detained or were detained and who have been beaten up in custody.:
Further they had also prayed for directions “ that all persons below the age of eighteen years who are detained in any police station, detention centre, jails, or any other confinement, by whatever name called in Jammu and Kashmir be identified through an age census conducted under the aegis of the Juvenile Justice Committee of the High Court of Jammu and Kashmir.
Petitioners had also asked for directions to the effect that “all children who are currently detained be produced before the Juvenile Justice Committee of the Hon’ble High Court and brought under their care and supervision, so that they may be provided with the necessary support” and that there would be “no detention of children be made without an Order in writing, stating legal provisions under which the detention order has been passed;” Also that the
“ whereabouts of such children as detained under written, legal orders be made available to their parents/guardians.” Finally the prayers included directions to the High Court to review, fortnightly, the individual care plans (which should include compensation, rehabilitation, education, health etc.) prepared by the JJ Committees for all such children, as mandated by the JJ Act and further review the action taken thereunder by the JJ Committee in pursuance of such individual care plans; and directions for an enquiry to be conducted by a court appointed investigation team into the specific cases of children who have been maimed or illegally detained, or have died in the erstwhile state of Jammu and Kashmir. Compensation should also be paid to all those “children who have been maimed or illegally detained and to families of children who have died.”
In their sharp and focussed intervention, the petitioners had detailed reports of serious human rights violations on children:
ü 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 through deliberate or accidental. The following specific cases are collated below:
A young boy as chased by the CRPF, while returning from a game of cricket. He somehow fell into the river and drowned while being chased. A copy of the report dated August 8, 2019; Indian Express reporting the drowning of a 16 years old boy. This report is annexed to the petition.
ü On August 9, 2019 night raids were conducted in Soura, Srinagar. A mother reported that the police knocked at her door at 2 AM demanding that her school-going son be handed over to them. When she refused to let them take the child away, they took her husband as ransom, telling her to bring the child to the police station the next morning if she wanted her husband back. A copy of the report of The Washington Post dated August 9, 2019 about the night raids conducted in Soura is also annexed.as also reports of the boy was admitted to the pellet injuries to his leg, which bystanders said were unprovoked . This report is annexed to the petition.
ü In one particular case of a 11-year-old boy from Pampore and has been widely reported, who was kept in detention without any formal records between August 5 and August 11, 2019. He has been quoted to say that there were boys even younger than him in custody from nearby villages. A copy of the newspaper article as reported in The Telegraph (14th August 2019) is also annexed.
ü A copy of the news report about how students were being forced to write to the Prime Minister as reported in Livewire is also annexed.
ü A copy of the Business Insider dated August 15, 2019 is also annexed
ü A team of civil society members visited Kashmir and released a report. The report of the civil society members was reported by Pheroze L Vincent dated August 15, 2019. A copy of the report of the Civil Society members was reported by Pheroze L Vincent dated August 15, 2019 is also annexed.
ü Caravan magazine carried a piece on the ground situation in Kashmir in its report dated August 16, 2019. A copy of the report dated August 16, 2019 reported in Caravan Magazine is also annexed.
ü One especially concerning narrative is the following: ‘while looking for them, we found a small five-year-old girl, Muneefa Nazir, with her right eye bandaged. She was lying on the bed and sleeping, with Eid mehendi on her hands, as more than ten family members sat around her looking shattered. She had been brought the previous day at 6.30 pm from Safakadal after a CRPF jawan hit her with a stone from his catapult. She was sitting on her uncle’s bike.“We were going to distribute the qurbani meat,” Farooq Ahmad Wani, the uncle said. “She sat in front, on the fuel tank. Two people sat behind me. As I tried to cross the road, one CRPF jawan asked me to take another way. As he was talking to me, another CRPF guy across the road hit us with the stone. Muneefa was injured and started bleeding a lot. When I tried to confront him and ask why he did it, he cocked his gun and said I will shoot you if you don’t leave. All the others who gathered to support me also ran away after that.” He added that everything was peaceful and their shift was also coming to an end, at 6 pm, when the incident happened.’
ü The Washington Post carried a piece on August 19, 2019 reporting that though the clampdown was slightly loosened the leaders were still detained. This report is annexed to the petition.
ü Two boys aged 14 and 16 years were picked up in a night raid from Mehjoor Nagar, Srinagar in the intervening night of August 19-20, 2019. Their father Ali Mohammad Rah had not been allowed to see them as of August 20, 2019.
ü Night raids were also conducted in the area of Nowshera during the night of August 19-20, and teenaged boys were illegally taken away. This report is annexed to the petition.
ü “Nights fill us with dread,” says Zainab* (name changed), a resident of Baramulla in north Kashmir. Zainab is in her late forties, and her children have grown up, but as many as three children have been “picked up” by security forces from her area, during raids conducted at night. One of them, Qasim*, is about 10-11 years old, and stayed barely a few blocks away from Zainab. “They (Qasim’s family) heard someone banging on their door a few days back. It was quite late. They (security personnel) told the family to call Qasim. They pleaded with the forces not to take the boy away but they roughed up the father and took Qasim under detention,” Zainab narrates. This is one of the several instances of minors being detained by security forces in the Valley after the government decided to scrap Jammu and Kashmir’s special status on 5 August. The number of children detained is said to be running into hundreds. This report is annexed to the petition.
ü Raids in south Kashmir are particularly severe. A large number of minors and youths have been picked up by security forces in places like Pampore, Awantipora, Khrew, Tral, and Pulwama, all of which are in the Pulwama district. A child was illegally taken away from Buchpora, Mehmoodabad at 1.40 am in the night of August 19-20, 2019.
ü On August 20, Mohammad Altaf, a government employee reported that his son, 17-year-old Sameer Ahmed, had been on his way to a hospital, bearing tea and food for a relative admitted there, when he was detained at the Soura bus stop. “My cousin’s son was passing by and saw him,” said Mohammad Altaf. “We have been waiting [outside the Soura Police station] all day. We went inside in the morning. They had beaten him with chains.” Once again, there is no FIR, according to the family. This report is annexed to the petition.
ü In the Eidgah area of Srinagar, a 12-year-old had been picked up on the afternoon of August 17, 2019 . He had been sent out to buy bread, his mother said, when stone pelting broke out. “I was inside the baker’s shop when there was a rush of people on the street,” said the 12-year-old. “They [security forces] came inside and took me out of the shop. The moment they caught me, they hit me with the butt of a gun and slapped me.” His mother, meanwhile, had heard a commotion on the streets and gone out to look for her son. A family which lives above the baker’s shop told her he had been taken by the police. She then took a lift on a passing bike and followed the police vehicles. At Ali Masjid, the old mosque near the Eidgah grounds, they found a police vehicle with a punctured tyre. They had her son but said they could not let him go, she recounted, he had to be presented at the police station. The boy was taken to the Safa Kadal police station, where he was kept in a lock up. “They asked me to write my name and details on a paper and sign it,” he said. “They also took my picture.” His family, meanwhile, waited all day near the police station. That day, reports had spread that an elderly man had died of suffocation from tear gas. It had led to more protests and tear gas shelling in downtown Srinagar, where the Eidgah is located. “We took refuge in a house near the station,” the mother said. At 9.30 pm, they let him go.
The boy was asked to report at the station the next morning. When he presented himself, they told him not to join protests again, slapped him and then let him go, his mother said.”
ü A resident of Srinagar’s Umarhair neighbourhood states that on August 18th 2019, the Indian paramilitary forces and police conducted a midnight raid and broke into their home. Without any explanation, they picked his two teenage sons, Both are high school students. tried to stop the police from making arrests, but he was hit by batons. “They locked the women in one room and then beat me up,” he said. According to local accounts, at least 10 teenage boys were detained in the neighbourhood on the same night. Three of them, including were released a few days later. The signs of anxiety and depression are visible on the face of He told TRT World that he was beaten up soon after the Indian paramilitary troops pushed him into the car. “They slapped and kicked me in the vehicle,” he said. While he and others who are still in detention, were kept in a small room with 35 other detainees and were picked up on August 5, 2019 and held in a cell with four others, with new detainees arriving and leaving each day. On the second day of their detention, he said, the two boys were asked to tell the police the whereabouts of another boy. When said he didn’t know the boy, an officer hit him with a wooden baton five times on his knuckles and palms, he recalled. , said she came to see her son every day and officers sometimes let her speak to him. “He would cry and ask me to take him home,” she said. “It was very difficult to see him like that.”
ü One person was awakened by a voice claiming to be a local cleric, asking him to open the gate to his home. Half a dozen armed policemen jumped over the wall and said they were looking for, he said. They whisked the boy away. Two days later Danish had still not returned. A copy of the report carried by Scroll dated August 28, 2019 is also annexed.
Finally, the submissions in the petition: the petitioners state that “admittedly, Jammu and Kashmir is passing through an ‘extraordinary situation’. It is most respectfully submitted that as a constitutional democracy, it is imperative, especially in these extraordinary circumstances that this Hon’ble Court ensures that no excesses take place against women and children, who are admittedly most vulnerable in such tense situations.
Further, in cases where teenage boys are picked up for fear of being ‘potential’ stone-pelters, it is imperative that the detention must be reported and monitored by a body such as the Juvenile Justice Committee of the High Court of Jammu and Kashmir, which has as its chairperson a retired judge of the High Court. Such a body already exists in the High Court of Jammu and Kashmir.
In WP(c) 8889/2011, the Delhi High Court had taken Suo Motu notice on the basis of reports that suggested that several times when children were arrested by Delhi police, they were lodged at Tihar jail, out of ‘sheer negligence’, ‘act of omissions’ or sometimes ‘deliberately’. The Hon’ble High Court held that “we are of the opinion that specific and detailed directions need to be issued to all the appropriate authorities for compliance so as to prevent the incarceration of children in conflict with law, in the jails or their subjection to the Adult Criminal Justice System.”
Accordingly it directed National Commission for Protection of Child Rights (NCPCR) to form teams to regularly visit jails and conduct age-based surveys of prisoners lodged therein to ensure that no minor is kept in incarceration in the jail. Such an action may also be mandated in the present case under the supervision of the existing Juvenile Justice Committee of the High Court.
Further, the petitioners state that while the authorities have stated that “things are improving and in fact schools have reopened from August 19, 2019”, however, mainstream newspapers report that classrooms were empty, as most parents did not feel that the children could be safely sent out. ‘On Monday, very few pupils arrived at any of the 190 schools that had opened in Srinagar. “It is a risk. I cannot risk my child’s life for some experiment,” a local police officer said. Communication blocks mean there is no way of contacting school staff in case of an emergency, he said.’ [ The Guardian (August 19, 2019)] Also, The Indian Express (August 19, 2019)]
In a strong and clear submission, the petitioners state that the situation in Kashmir today is urgent and disturbing from the perspective of children’s wellbeing. It would appear from the reports that the state is acting in violation of both specific laws with respect to children and also of constitutional principles and International Child rights commitments. With the abrogation of Article 370 and the consequent passing of the Jammu and Kashmir Reorganisation Act, 2019 the immediate safety and protection of Kashmiri children becomes the responsibility of the Union Government. It is in this context that the Petitioners pray that the Supreme Court act as parens
patriae to the children and direct the government to submit a status report on actual detentions, injuries and deaths of children between August 5th 2019 to the present day.
It is pertinent to note that these very serious allegations of excesses on children are not being made in a vacuum. The reports of illegal detention of children after August 5th 2019, although unverified at this stage, are not without precedence. The Report of the Office of the United Nations High Commissioner on Human Rights published on 14th June 2018 records the fact of arbitrary detention of children in Kashmir and also of maiming and injuring.
Additionally, the United Nations Working Group on Arbitrary Detention (2008) has also taken note of the arbitrary detentions of Children in Kashmir. Children in the Kashmir valley have been regularly detained under the Public Safety Act (PSA). Although the Act makes no reference to the ‘administrative detention’ of children, the security forces and police routinely detain children, especially boys between the ages of 16 and 18 years.
Similarly the Juvenile Justice Acts precludes detentions of children in the adult prison system, or without any formal record of detention. K) The Central Juvenile Justice (Care and Protection of Children) Act, 2015 in Section 2(12) and the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 in Section 2(m) both define “child” as a person who has not completed the age of 18 years. L) The statutes also define ‘child in need of care and protection’ as any child who is a victim of , or affected by an armed conflict, or civil unrest or a natural calamity [ Sections 2(14)(xi and Section 2(e)(x) respectively of theCentral and Jammu and Kashmir Act]. It is incumbent upon the state to provide such children necessary support and care. M) The UN Convention on the Rights of the Child (CRC), which India has ratified in 1992 states in Article 39: “States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflict. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.”
The state has a constitutional duty to protect the rights of the child as guaranteed under the Constitution of India. O) It is relevant to note that such extraordinary situations have a deep and everlasting impact on the psychological well-being of children and by ignoring the urgency of the situation we may ‘lose’ a generation of citizens to state excesses. Community Mental Health Journal 55(3), March had published the results of a survey assessing the mental health of a thousand children from 12 schools in Shopian district: one out of every three of these children had a clinically diagnosable mental disorder, most commonly in the form of mood, anxiety or behavioural disorders. The study was conducted before the current troubles and thus the situation is only likely to worsen. This view is supported by the statement issued by the Institute of Mental Health and Neuro Sciences (IMHANS), Srinagar.
*Feature Image: Pahari and Bakarwal children sit in front of a fallen tree for their photo. Lidderwat, Kashmir, India. Picture by Matt Brandon. (Representational Image)