Despite amnesty for juveniles, more children are being tried and lodged with adults inside jails

Iftikhar Gilani
New Delhi

Despite official claims that no juvenile was under police custody in Jammu and Kashmir after Chief Minister Omar Abdullah declared amnesty for them two months ago, a human rights group has come out with a partial list of 51 children being tried in various courts.

In a fact-finding report based on the visit of its members to eight districts, the Asian Centre for Human Rights (ACHR) fears that many more juveniles are being tried and lodged with adults inside J&K jails.

The group blames a “rotten” juvenile justice system in the state under which girls are put in prisons and lock-ups because there is no juvenile home for them and several juveniles are detained without trial.

ACHR has demanded that it’s better to designate a government building as juvenile home for girls in the Kashmir valley and replace the 1997 J&K Juvenile Justice Act with 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.

“The J&K Police apply the PSA (Public Safety Act) and 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 Act, and the judiciary in Jammu and Kashmir is forced to intervene in every case to invoke the Act,” said ACHR Director Suhas Chakma.

Chakma cited the case of 25-year-old Fayaz Ahmad Bhat of Ganderbal in Srinagar, who is being held at the RS Pura Juvenile Home. He was arrested and charged with offences under Section 302 of the Ranbir Penal Code (murder) and Sections 7 and 27 of the Indian Arms Act after the FIR was registered in 1995. According to the ACHR report, there is no way out for Fayaz as the both the judiciary and the state are not interested in a fast trial of the case, registered 16 years ago. In fact, the report claimed that all inmates of the juvenile home complained that they had never been produced before a court.

The report adds that despite repeated reminders, the state government has not enacted appropriate juvenile laws. Even the Central government in a reminder in February 2010 had asked the state government “to take necessary action for carrying out amendments to the Jammu & Kashmir Juvenile Justice Act, 1997 to bring them on par with the Central Act before they commence implementation of Integrated Child Protection Scheme”.

FINDINGS OF THE REPORT:
• The government of Jammu & Kashmir has been illegally detaining minors under the Public Safety Act, 1978, which provides for up to 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.
• 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 juveniles must have separate trials.
• 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.
Across India, school certificates are used to determine the age of a juvenile. This 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, 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.
• Across India, school certificates are used to determine the age of a juvenile. This 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, 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.

Iftikhar Gilani is Special Correspondent with Tehelka.com
[email protected]

Source: Tehelka (http://www.tehelka.com/story_main50.asp?filename=Ws161111JUVENILE_INJUSTICE.asp) – 16/11/2011