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No juvenile courts in J&K

Text & Photos: Dilnaz Boga

Minors in Jammu & Kashmir are arrested under the stringent Public Safety Act for offences such as stone-pelting and incarcerated in jails together with adults. With neither a functioning Juvenile Justice Act nor juvenile courts for young offenders as in other parts of the country, these children emerge from jail traumatised and radicalised

public safety act J&K
Children join a protest in Maisuma, Srinagar.

Being the only son and the youngest of three siblings, Rashid Mir (name changed), 17, is the apple of his father’s eye. But he has also given his father many sleepless nights. In June 2008, the police picked up Rashid for stone-pelting in Srinagar, the summer capital of the Indian state of Jammu & Kashmir, under the non-bailable Jammu & Kashmir Public Safety Act, 1978. Later, he was imprisoned in the District Jail in Poonch with adults as there are no juvenile courts or detention centres in the state. A charge under this draconian act entails imprisonment for two years and immediate re-arrest upon release. 

Recalling his days in prison, the soft-spoken doe-eyed teenager said: “I used to cry at night thinking I’d have to spend the next two years behind bars because of the Public Safety Act.”  

Rashid was one of the lucky few whose detention order was quashed by the high court after three-and-a-half months of being jailed far away from home.  

“Despite a court order to move him to the Central Jail in Srinagar, closer to home, the authorities didn’t oblige. I spent all my savings travelling to Poonch with his mother every week just to see him,” says his 58-year-old father Badshah Mir (name changed), a driver by profession. 

Rashid’s release is an exception. His lawyer Shafqat Hussain says there are many more children suffering in jails: “I have another 15-year-old client who has been jailed in Poonch for the last six months.”  

More than 160 children were charged under the PSA in two months last year, according to a journalist who didn’t want to be named. 

On paper, in Kashmir, the law states that the detention of minors should be corrective and not punitive, but what is observed in practice is exactly the opposite, alleges a human rights lawyer. 

Speaking from experience, social worker Yasir Zahgir says that jailed children are more prone to addiction and end up peddling drugs for money or sex. The feeling of being a social outcast and being reminded of the incarceration from friends and family adds to the stress and the child ends up committing bigger mistakes. “The child feels that he has fallen from grace in the eyes of his family and has nothing to lose. This is dangerous.” 

Implications of jailing minors 

Continuous human rights violations and the culture of impunity have taken a toll on the entire population of J&K. But being jailed during one’s teen years has a different set of implications.  

A doctor at the police’s drug de-addiction centre in Batamaloo assesses the impact of the experience in jail on a child’s psyche. “This has a devastating effect on a child. These kids end up turning deviant, and this is coupled with hyper-violence, substance abuse and a very high school drop-out rate. There’s a lot of anger after release. The children can be misused by certain groups – they can either turn the anger outwards or towards themselves. These children are often plagued with feelings of depression, social withdrawal, fear, anxiety and panic attacks, disinterest and worthlessness.” 

Not all imprisoned teenagers are as lucky as Rashid, who was let off by the court after being incarcerated for four months. In October, three teenagers among 11 arrested by the police on charges of stone-pelting have accused the police of forcing them to sodomise each other in custody, torturing them and filming the alleged sodomy. One of them, 14-year-old Saheem (name changed), told journalist Majid Maqbool of the local magazine Kashmir Life that the police beat them up in custody, stripped them naked and forced three minors, including him, to sodomise each other – all this while the policemen were drunk and filming on their cell phones. 

The counsel for the boys, Bashir Ahmad Siddiq, told the court that the boys were arrested for no reason, and tortured so severely in police custody that they were incapable of “normal movement”.  

“We were not in a position to walk as the treatment meted out to us was worse than Abu Ghraib,” the boys said in their application to the court filed through Siddiq. The minors who are out on bail were unavailable for comment for security reasons. 

public safety act
Teenagers in Shopian district block a road, demanding justice for two rape > and murder victims in Kashmir.

Irshad Ahmad Wani, a lawyer for Human Rights Law Network, explains that the government has been using the PSA to book minors since the separatist struggle began in the 1990s.  

“The thing about the PSA is that minors can be picked up immediately by the police upon release from jail. I have seen kids being detained five or six times back-to-back, under the same act, without any change in paperwork. And it takes seven to eight months to obtain an order to quash the PSA,” said Wani. 

Shockingly, the Juvenile Justice Act (JJA) is not implemented here the way it is in the rest of India. Wani has filed a public interest litigation for its implementation, serving a notice to the state, asking why the Act hasn’t been adhered to in Kashmir. 

In 1997, the state government passed its own Juvenile Justice Act, paving the way for juvenile courts. But the courts are not resorting to the Act and worse, there are no juvenile courts in the state. 

 “As a preventive act, PSA is not successful. Last year, a child who was 12 years old at the time, was detained under PSA. His elder brother started stone-pelting after this innocent child was incarcerated. This is the effect it has… The minor was released after seven months from Baramulla District Jail, but he was never the same again,” said Wani. 

Speaking from the Psychiatric Diseases Hospital in Rainawari, Dr Mudasir Firdosi explained what he has observed among his patients. “For a minor, this is the right age to get a good education and to develop vocational skills. But during these formative years he gets jailed. After their release these children turn to activism, which is sometimes violent. In jail, they are indoctrinated by anti-social elements and some even develop a drug problem. Finally, this takes an emotional and a financial toll on their families. The family, as a unit, gets destroyed.” 

Oppression and frustration push kids out on the street 

Growing up in the highest militarised region in the world is hard on children. Kashmir University student Yasin Khan (name changed) remembers an incident that propelled him onto the street to protest. 

“There was an army convoy passing and my friend and I were on a bike. The forces asked us to stop and we did. A trooper pulled the keys out of the bike and asked where we were heading. I told them we were going to a friend’s place. He then took us to an isolated place and interrogated us for over 20 minutes. Then he abused us and slapped us. We produced our college identity cards, but that wasn’t enough. He said he wanted to see an ID that stated we were Indian. Then he put a gun to my chest. That was hell.  

“This is an ugly part of where we are living. This anger comes out in the protests on the street. There’s a limit to fear, after that you are numb. For example, when you are a kid, you are afraid of being rebuked in a harsh tone, but after that happens you stop being afraid.”

Shakeel Bakshi, who runs the Islamic Students League, has been imprisoned several times over the last 25 years. He also documents human rights abuses in the Valley. He is extremely distressed that there’s no segregation for minors in jail in Srinagar. “There’s so much trauma and fear in a child at that point. He is forced to mould himself into the existing situation. This has a severe impact on him. He will always be targeted by the security agencies, and will be picked up frequently and his family will be harassed for money.” Later on, as an adult, this individual will find it impossible to find a job or even get a passport. 

Lawyer Baabar Qadri, who has fought several PSA cases, describes the effects of imprisonment on a child’s mind: “Jail radicalises them. Now they are not apologetic, they want to do more damage out of revenge. I met a boy who said, ‘now I won’t pelt stones, now I want to wear an explosive-laden jacket and blow myself up’. The implications of an arrest are emotional, physical and mental. The child is robbed of his dignity. Most times parents are unable to find their child for years after he is picked up. Legally, the authorities are supposed to inform the family but this doesn’t happen in Kashmir.” 

Role of the international community 

In order to “have a better understanding of the human rights issues”, a European Union delegation has been visiting the Valley and meeting separatist leaders every year, for the past decade. 

The EU team that visited the state in November 2009 was led by Sweden’s Ambassador to India Lars Olof Lindgren. When asked about the absence of juvenile courts and detention centres in Kashmir for the last 60 years, and the unrestrained use of the PSA on minors, Lindgren replied, “India has lots of human rights issues and we are looking into this aspect. In fact, we have met the human rights commissioner in the state.” 

The EU team also included Belgian Ambassador Jean Debouller, Spanish Ambassador Lon de la Riva, Second Secretary (Political Affairs) in the Swedish embassy Oscar Schlyter and EU Ambassador Danielle. Despite thorough documentation of the human rights situation in Kashmir, no international body has been able to pressurise the Indian state into toeing the line in the last two decades. 

What is the Public Safety Act, 1978? 

Legal luminaries and international human rights bodies have been demanding a review of the PSA, or Jammu & Kashmir Public Safety Act, 1978 to give it its full name. They say that the Act falls short of the recognised norms of justice such as equality before law, the right of the accused to appear before a magistrate within 24 hours of arrest, a fair trial in public, access to counsel, cross-examination of the witnesses, appeal against conviction, protection from being tried under retrospective application of the law and many other such provisions. 

The Act was amended in 1990 to extend its operation beyond the state, enabling the state machinery to keep detainees in Indian jails outside the state. Under the PSA, detainees are not informed of the reasons of their arrest and they are kept in custody for a much longer period of time than stipulated in the Act. 

Amnesty International reports say that PSA is a vaguely formulated act which allows detention for up to two years without charge or trial on the purported presumption that the accused may in the future commit acts harmful to the state. It adds that lawyers in Jammu and Kashmir have consistently challenged specific PSA cases in the courts, but the government has blatantly disregarded court orders quashing detention orders or granting bail. 

(Dilnaz Boga is a freelance journalist based in Mumbai)

Infochange News & Features, December 2009