Children in Kashmir and Access to Justice: Normal Law in Abnormal

Situations
A Law Reform Study of Children in Conflict

Farhana Latief

A dissertation submitted in partial fulfillment of the requirements for the

Degree of Master of Laws (LLM) in Access to Justice

School of Law, Rights and Constitutional Governance

Tata Institute of Social Sciences

Mumbai

2014
 DECLARATION

I, Farhana Latief, hereby declare that this dissertation titled ‘Children in Kashmir and Access to
Justice: Normal laws In Abnormal Situations. A Law Reform Study of Children in Conflict’ is
the outcome of my own research undertaken under the guidance of Professor Asha Bajpai, Dean
School Of Law, Rights and Constitutional Governance, Tata Institute of Social Sciences,
Mumbai. This dissertation is a creation of pure research of field realities and doctrinal analysis of
existing legislations I have duly acknowledged all the sources used by me while writing this
dissertation. It has not previously formed basis for the award of any degree, diploma or
certificate of this Institute or of any other institute or university.

Date: 6th August 2014 Farhana Latief

 CERTIFICATE

This is to certify that the dissertation titled 'Children in Kashmir and Access to Justice:
Normal Laws in Abnormal Situations, A Law Reform Study of Children in Conflict’ is the
record of original work done by Ms. Farhana Latief under my guidance and supervision.
The results of the research presented in this dissertation have not previously formed the
basis for the award of any degree, diploma, or certificate of this or any other in any
concerned institute or university.

Date: Professor Asha Bajpai

Dean,
School of Law, Rights and Constitutional Governance
 ACKNOWLEDGEMENT

I am grateful to the Tata Institute of Social Sciences for providing me a space to gain access to
rich human resource and exposing me to different veiled realities of the Indian society.

I am thankful to my guide and teacher Professor Asha Bajpai who encouraged me to explore
various dimensions of the study I carried out and was a constant support to channelize my ideas
correctly because of which this dissertation has been possible.

This dissertation would be incomplete without mentioning a sincere gratitude to the persons who
enriched my study from the very beginning of the research process

Professor Pushpendra, for guiding me through the possible exploration of my research topic; and
helping me in making it contextual to the place of research that is Kashmir

Dr. Farukh Faheem, for helping me brainstorming the important aspects of topic that needed to
be read and understood in context of Kashmir. And also listening to my naïve arguments with
patience and helping me to develop an understanding of various elements in the study.

Dr. Murali Karnam, for always being there to put my ideas in right perspective; inspiring me to
think and imagine beyond existential set up and being ready to give me a helping hand when
ever needed.

I would like to extend my Thanks to Ms. Bharti Ali, Co-Director HAQ Centre for Child Rights,
who facilitated the legal literature support to me for this dissertation.

I would like to thank my parents and my siblings who have always been a support in life.

I am extremely Thankful to my respondents without whom this research would not have been
possible.
Much Thanks to Advocate Shehzad Hamdani for being just a phone call away to reach out with
me to my respondents and their places.
I am thankful to Sheethal Menon for allowing me to depend on her completely throughout the
period of writing this dissertation, reminding me of deadlines and listening patiently to me
whenever I would face the writer’s block. Honestly without her presence, life in TISS would be
difficult.

Thanks to Pallavi Jha and Sheethal for being a nice company for each cup of tea during the
nights while writing this paper.

Immad Nazir and Absar Syed, Thank you for doing the last minute proof-reading of my
dissertation and being a good company while writing this dissertation

This acknowledgement would be incomplete as much as the degree would not have been
possible without Mr. Wasif Gilani for timely information about LLM course in TISS and Ms.
Dipannita Bhattacharjee for helping me through on the first day I landed in TISS campus.
~ Dedicated to the Brave Children of Kashmir ~
 CONTENTS

CHAPTERS NAMES PAGE No.

Chapter 1 Introduction 1- 7
1.1 Preface 1
1.2 Background 1
1.3 The Kashmir Context 3

Chapter 2 Methodology 8-11

Chapter 3 Principles of Child Rights and State’s Approach 12-24

In Kashmir—Literature Review
3.1 Introduction 12
3.2 International standards for Protection of Child Rights
12
3.2.1 Beijing Rules, 1985 13
3.2.2 UNCRC, 1989 14
3.3 Constitution of Jammu and Kashmir 15
3.4 Juvenile Justice Act: India and J&K 16
3.5 Court Rulings 18
3.6 Review of Books 19
3.7 Review of Reports on Children in Conflict 22

Chapter 4 Institutional Mechanism for Best Interests of Children: 25-39

Premise and Reality
4.1 Introduction 25
4.2 UNCRC: International framework for Principles of 25
Institutional Mechanism
 4.3 Institutional Mechanism under JJA and the Implementation 23-39
4.3.1 Creation and Working of the Juvenile Justice Board 23
4.3.2 Creation of Special Juvenile Police Units and Its Working 31
4.3.3 Child Protection Units 32
4.3.4 Creation of Observation Homes and Special homes 34
4.3.5 Management Committees 37

Chapter 5 Procedural Safeguards to Juveniles: Theory and Practice 40-53

5.1 Introduction 40
5.2 UNCRC: International Framework for Principles of 40
Procedural Deliverance
5.3 Procedural Mechanism under JJA and Implementation 43-53
5.3.1 Adjudication Process under the JJA 43
5.3.2 Claim of Juvenility and Determination of Age 50
5.3.3 Life in Observation Homes and Special Homes 51

Chapter 6 Public Safety Act and Juvenile Justice Act: Negation of 54-60
Principles And Undertaken Responsibilities
6.1 Introduction 54
6.2 Provisions of PSA and Scope of Misuse and Abuse 54
6.3 Case Study 58

Chapter 7 Recommendations for Legislative Reforms 61-66

Chapter 8 Nature of the State: Concluding Reflective Remarks 67-70

Bibliography 71-72
 ABBREVATIONS

AFSPA: Armed Forces Special Powers Act

CJM: Chief Judicial Magistrate
CRC: Convention on the Rights of Children
CrPC: Criminal Procedure Code
DCPU: District Child Protection Unit
JJA: Juvenile Justice Act
JJB: Juvenile Justice Board
J&K: Jammu and Kashmir
PSA: Public Safety Act
RPC: Ranbir Penal Code
SCPU: Special Child Protection Unit
SJPU: Special Juvenile Police Unit
SPU: Special Police Unit
UNCRC: United Nations Convention on the Rights Of Children
 CHAPTER 1

INTRODUCTION

1.1 Preface

This paper is intended to study the existing Legal framework of Juvenile Protection Law and
analyze the nature of State while dealing with the children in conflict with law through assessing
the implementation of the law in Srinagar, Capital city of the State of Jammu and Kashmir.

The objective of this dissertation is to study “The Jammu and Kashmir Juvenile Justice (Care and
Protection of Children) Act 2013” (JJA) in the existing conditions of conflict that has prevailed
in the place and has noticeable impacts on the children. Though the prime object of any juvenile
law is to protect and promote the rights of the children, this study will explore the ground reality
of whether the law enacted takes into note the special needs of the children in Kashmir and
whether the law that exists is implemented in its essence. This will be done by examining the
mechanism that the law provides for and the mechanism that has been established, if established
at all and the working of the established mechanism.

This study also looks into the existence of the Public Safety Act in the State of Jammu and
Kashmir and the use of this law against the children of Kashmir. And in situations of conflict,
what concerns State, Its obligation to respect and protect the best interest of children or to use
this law against children itself?

1.2 Background

The right to be a child is a basic Human Right. To ensure a childhood is well enjoyed and
passed through, the child welfare laws have evolved all along the evolution of legal
jurisprudence. The recent attempts to address the concerns of child rights at international level
are reflected in the United Nations Convention on the Rights of the Children (UNCRC). UNCRC
is a UN drafted set of standards and measures intended to protect and promote the well-being of
children in societies. This convention recognizes the exceptional vulnerability and susceptibility
of children and declares the children entitled to special care and treatment due to their tender age.
Since any Juvenile Justice system is mainly based on the concept that every child should be
treated differently than adults when he/she commits crime, age becomes a fundamental and key
issue in all debates related to Juvenile Justice.

As per the Article 1 of UNCRC, a child means every human being below the age of eighteen
years unless under the law applicable to the child, majority is attained earlier. One of the
important aspects of declaring a person below a certain age a child is to determine the age of
Criminal responsibility. That is to say that a child below age of 18 years if involved in
commission of an act that violates the penal laws of the state, cannot be held responsible in the
similar ways as an adult would be and hence his Criminal Responsibility is different.

The Principle of “Doli Incapax" is one old rule of Juvenile Justice, which lays that a person
incapable of forming a guilty mind, that is the adult guilty mind, cannot be treated as an adult
criminal is. Under ‘Section 82 of Indian Penal Code (IPC), “Nothing is an offence which is done
by a child under seven years of age.” Section 83 of IPC says that “Nothing is an offence which is
done by a child above seven years of age and under twelve, who has not attained sufficient
maturity of understanding to judge of the nature and consequences of this conduct on that
occasion.”’ The principle of Doli Incapax as introduced in the Indian law is now complimented
by the Juvenile Justice Act which creates a separate system for adjudicating the cases of child’s
involvement in delinquency. Hence children in conflict with law are referred to Juvenile Justice
System, which is reformatory and not punitive. This is to protect the autonomy of children. The
Juvenile Justice system is conceptualized as protective and rehabilitative, for the children who
come into conflict with law but do not enter the ordinary criminal justice system because they are
below the Minimum Age of Criminal responsibility and should not lose the opportunity for
change and improvement.

After the UNCRC was adopted by the nation states as an international standard to safeguard the
rights of children, it obligated the states to pass a corresponding legislation in their national
jurisdictions and as a result India framed and enacted the Juvenile Justice (Care and Protection
for Children) Act 2000, after repealing the previous Juvenile Justice Act of 1986 which was on
the lines of Bejing rules, 1985.

Although both the Juvenile Justice Acts’ were central legislations to establish a uniformity of
framework for juvenile justice in India, none of it did extend to the State of Jammu and Kashmir.
The reason being obvious, that is the distinctive constitutional relationship of State of Jammu
and Kashmir with the Union of India1. However, this status of distinctive relation between the
two does not impede the State of Jammu and Kashmir from exercising the power to pass any
beneficial legislation for its citizens, as the majority public opinion exists in India. In-fact, State
of Jammu and Kashmir enjoys enough of authority to enact laws with respect to the matters that
fall in its jurisdiction, and it is the will of the State that determines the performance of the its
obligations towards various sections in the society.

1.3 The Kashmir Context

Until the year 2013, the Juvenile Justice Act of 1997 was the law in the State to deal with
the delinquent Children in the Kashmir. This Act of 1997 corresponded to the Indian JJA of
1986. Even after India revised its Juvenile law in the year 2000, to be more responsible to honor
and secure the protection towards the rights of the children, the State of Jammu and Kashmir
lacked far behind in being conscientious to the children of Kashmir. The JJA 1997 was too
archaic to suit to the requirements of the children of Kashmir even in the year 1997 and post
1997. And this is not a flouncing statement but an assessment of ground reality given the nature
of the situations and circumstances prevalent in the State of Jammu and Kashmir post 1947 in
general and post 1990 in particular. However, the importance of the law like Juvenile Justice Act
was realized post 2008 situation in Kashmir, which saw mass detention of people irrespective of
age, for participation in the expression of dissent against the State. The year 2008 witnessed a
collective civil uprising in the Kashmir against the State which has its genesis in the conflict of
Kashmir.2

1
Constitution Of India, Article 370
2
S.C. Res. 47, U.N. SCOR, 3d Sess., Supp. for Apr. 1948, at 9–12, U.N. Doc. S/726 (1948)
The children in Kashmir have walked mostly under the dismal shadow of guns, whose life has
shaped through the noise of bullets and explosions, who have grown up running for their lives
and who witness funerals, killings, curfews and shutdowns on regular basis. And this in so sense
can be seen as normal and such constructed circumstances of conflict have made children
vulnerable in Kashmir that has impacted the mental and physical development of the children.

In such a situation of conflict, children must be treated with additional care and protection by the
State, which is duty-bound towards the children as per the commitments and obligations it has
undertaken through various legislations and International instruments that have been signed on
its behalf.

The year 2008 and the uprising in Kashmir is important in the context of protection of the rights
of the children who were and furthermore continue to face persecution in the hands of State
through various state agencies, for participating in the collective expression of remonstration
what State calls a threat to the State.

In such circumstances, where the State identifies itself in conflict with the acts that children take
part in, the children are left to no-one’s mercy but exposed to the wrath of the State, which State
displays through use of pellet guns3, tear gas shelling4, rubber bullets,5 live bullets6 and mass
detention against the children. The actions of the State are prejudicial to the rights of the children
in such state of affairs.

On one hand, State undertakes the responsibility of safeguarding the childhood of the children,
protecting the rights of the children by enacting the laws yet on the other hand is engaged in
infringement of the obligation under law. Even after passing the juvenile protection law in 1997,

3
Sheikh, Saaliq. "The Pellet stories! - The Vox Kashmir." The Vox Kashmir RSS.
http://www.thevoxkashmir.com/2013/03/10/the-pellet-stories/ (accessed August 5, 2014). Ashraf, Yasir. "SMHS
data on pellet gun injuries shocks Kashmir." Kashmir Reader. http://kashmirreader.com/smhs-data-on-pellet-gun-
injuries-shocks-kashmir-5800.. (accessed July 28, 2014).
4
Polgreen, Lydia. "A Youth's Death in Kashmir Renews a Familiar Pattern of Crisis." The New York Times.
http://www.nytimes.com/2010/07/12/world/asia/12kashmir.html?pagewanted=all&_r=1& (accessed July 26, 2014)
5
Nabi, Abid . "In Pictures: Protests, Clashes in North Kashmir." The Vox Kashmir RSS.
http://www.thevoxkashmir.com/2013/07/21/in-pictures-protests-clashes-in-north-kashmir/ (accessed July 20, 2014).
6
John, Strauss. "Photo Essay – Kashmir: Bullets for Stones." Ceasefire Magazine RSS.
http://ceasefiremagazine.co.uk/photo-essay-kashmir-bullets-for-stones/ (accessed July 20, 2014)
the State did not perform any responsibility assumed under the law. Instances like there was no
Juvenile Home until September 20117, there were no Juvenile Court as provided by the Act, etc.

On an RTI filed in the year 2012 by Advocate Babar Qadri, it was revealed that of the total 5504
detentions, almost 50% were juveniles under age of 16 years (Juvenile as defined by JJA 1997).
And these children were detained in the adult jails. The attitude of State towards children has
been no different than dealing with adults.8 This is in clear contravention of established standard
of civilized nations to deal with children.

After the continuous harassment and maltreatment of the children various International Human
Rights working organizations criticized the State of Jammu and Kashmir for its callous and
insensitive behavior towards the children. Organizations like Amnesty International, Human
Rights Watch, and Asian Centre for Human Rights came up with reports which gave detailed
accounts of the violation of the rights of children and vindictive treatment with the children by
the State to avenge the children for taking part in any protest against the State.

With those reports, the organizations demanded change in Juvenile Justice Act and establishing
the institutional mechanism for dealing with the Juvenile delinquents differently than adult
offenders. Consequent to a lot of effort and pressure, initially the Juvenile Justice Act, 1997 in
2012 was amended to increase the age of child from 16 years to 18 years later with continuous
efforts of the Human Rights organizations, Child Rights activists, and Civil Society members,
the new J&K Juvenile Justice (Care and Protection of Children) Act 2013 was passed by the
State of Jammu and Kashmir in March 2013.

Under the Act, it was provided that the State Government will frame and notify the rules at the
earliest possible. Yet the Rules were framed and notified after a year that too when a Public
Interest Litigation was filed within High Court by the organization “Voice of Rights”.9 And the
Division Bench of the State High Court directed the concerned department to notify the rules.
And subsequently in March 2014 the rules were notified.

7
Press Trust of India. "First juvenile home set up in J&K." http://zeenews.india.com/news/jammu-and-kashmir/first-
juvenile-home-set-up-in-jandamp-k_730467.html (accessed August 5, 2014).
8
Gurkoo, Mohammad Owais. ""More than 1000 minors booked under PSA in Kashmir" The Kashmir Walla RSS.
http://www.thekashmirwalla.com/2013/05/more-than-1000-minors-booked-under-psa-in-
kashmir/#sthash.0rwx4QKj.dpbs (accessed July 18, 2014).
9
"The Himalayan Mail." The Himalayan Mail. http://himalayanmail.com/newsdet.aspx?q=87236 (accessed April
30, 2014).
After so much of struggle, what is the plight of children in Kashmir and how they are treated
after committing any delinquent act, this study is intended to analyze it by examining the status
of implementation of the Juvenile Justice Act.
1.4 Rationale
The role of a State is to uphold and protect the rights of its citizens. And its responsibility
to safeguard the rights of vulnerable sections is double-fold. The obligations of a State towards
children are many and diverse. As UNCRC identifies that a State is responsible to ensure that the
best interest of the children is the guiding principle while dealing with the children. The UNCRC
calls children as active Subjects of the rights and calls States to respect the opinions of the
children and facilitate the participation of children in the matters concerning them and underlines
the Child’s status as individual with fundamental Human rights, and views and feelings of their
own. This recognition serves as a rejection of “charitable mentality and paternalistic approaches”
to children’s issues.

While India is a signatory to this convention, many State Governments within the Union of India
have been disregarding the obligation India has undertaken under the International instrument.
States do not merely disregard the obligations under the international instrument, but also violate
the Juvenile Justice Act which is central child protection legislation.

And in this, the State of Jammu and Kashmir is moving ahead in non-implementation of Juvenile
Law10. Why the State of Jammu and Kashmir has been unable to implement the Juvenile
protection law and what hinders it from the implementation needs to be examined in order to
contribute towards the wellbeing of the children in Kashmir who are more vulnerable than
children in ordinary circumstances.

This dissertation examines the opinion of the various stake holders in the Juvenile Justice
Delivery system, the delivery mechanism established under the JJA, the procedures followed in
adjudication of the cases against juvenile delinquents, and most importantly the nature of cases
against the juveniles in order to understand the nature of the State in dealing with the children.
This dissertation also tries to review the provisions of the JJA in context of Kashmir and see the
gaps in law and in implementation to suggest the Legislative Reforms.

10
ACHR Report http://timesofindia.indiatimes.com/india/Nobodys-children-Report-slams-the-state-of-juvenile-
justice-in-conflict-zones/articleshow/19162297.cms
 CHAPTER 2

METHODOLOGY

2.1 Introduction

This dissertation is based on field research conducted during the month of May and June of 2014
in Kashmir, District Srinagar and District Pulwama. This research looks on to explore the subject
in respect to the existing child protection laws and their implementation. A doctrinal Analysis of
the relevant laws is the core part of the research. This research has used the references of the
conversations done as part of the field work which helped in understanding the perspectives of
the respondents than merely suppositions in form of questionnaires. This research also has relied
on the legal documents and records of judicial proceedings compiled and maintained by the
lawyers, human rights activists and the juvenile Home.

2.2 Research Objectives

1. To assess the level of implementation of Juvenile Justice Act and rules (in relation with
children in conflict with law) and explain the institutional factors affecting its
implementation.

2. To examine the provisions of Juvenile Justice Act, in the backdrop of situations where
the State deals with children in conflict with the State.

3. To document cases of violation of Juvenile Justice Act in the study area.

4. To understand the approach of State in dealing with children with reference to Juvenile
Justice Act and PSA.

5. To develop a Legislative Reform to the juvenile justice act, rules and procedures in the
interest of justice to children.
2.3 Research Questions

1. Is the Infrastructure created under Juvenile Justice Act sufficient to deliver Justice?

2. Is the Budget allocation for the infrastructure sufficient for the working of Board?

3. Have the Special Police Units been created as provided under Juvenile Justice Act?

4. Is there any Juvenile Home or Special Homes been created? If not, why?

5. Does State presume a Child a minor or a major, after his arrest?

6. Does State give the child the right opportunity to prove his innocence as per the Juvenile
Justice Act?

7. Does State treat child as per the Constitutional provisions, Juvenile justice Act and other
child rights laws and harmonization with other international norms and standards
especially UNCRC after the guilt of child is proved?

8. Does State deal with a convicted child as a child or as an adult?

9. What are the amendments or law reform required in the Act, rules and procedures to
ensure justice to the child

10. How does state ensure rehabilitation of a child who is acquitted by court of charges
against him, if any?

2.4 Respondent Sampling

The respondents are from State Of Jammu and Kashmir, precisely from Kashmir as the nature of
my paper focuses on the child rights abuses in the valley. Interviews and discussions with 15
persons who were directly related to my research were done. It included:

 Lawyers, Human rights advocates, Academician

 Chief Judicial Magistrate, Police official, Public prosecutor, Incharge of Juvenile Home
  And Victim Children and their Family members

The respondent selection was done by understanding the nature of subject of the paper. And they
were contacted wither directly or through social contacts.

2.5 Data Collection Method

Techniques Involved:

1. Interviews: The structured as well as semi-structured interview method was used. The
method of interview varied from each respondent depending upon their understanding of
the issue and readiness to speak directly on the issue. Some of the respondents preferred
direct interview without agreeing to go deeper into the conversation or comment on
secondary issue and some of the respondents willingly talked about various related issues
out of which the child rights issues have raised out from.

2. Questionnaires: To do the case study of the children questionnaire method was adopted,
however wherever it was felt to be restricting, the questionnaire was expanded to
accommodate the replies to enlarge the scope of conversation.

3. Discussions: To reach to the basic understanding of the issue, an elaborative discussion

served the purpose of research. It helped in exploring the layered realities of the issue
with different perspectives and approaches towards the issue. It opened the issue to
various interpretations by different people who have equal concern towards the issue.

2.6 Doctrinal Research

There are fair numbers of central and state legislations involved, and few Court Judgments that
have been examined for the whole research. Parts of it has been included in the Literature
Review as part of the research and the analysis of the main legislations have been analyzed in the
latter part of the paper to check the implementation of the law.
This paper analyzes various provisions of Jammu and Kashmir Juvenile Justice (Care and
Protection of Children) Act 2013 which deal with the children in conflict with law.

The United Nations Convention on The Rights of Children has also been analyzed in this paper
to study its incorporation in the Jammu and Kashmir Juvenile Justice (Care and Protection of
Children) Act.

The Jammu and Kashmir Public Safety Act, 1978 has also been analyzed in the view of its
inconsistency with the Juvenile Justice Act, when imposed on the minors.

2.7 Data Analysis and Interpretation

The method of analysis of data is descriptive. It also involves the Reflective method of analysis
to write my analysis of the data collected. Both legislations and the data collected were analyzed
in the paper to fulfill the objectives of the study.

2.8 Limitations of the Study

Due to the ongoing Indian Parliamentary elections and its direct impact on the stability of the
working conditions in the Kashmir, it affected the conversations with the stake holders in the
study to some extent. The movement of researcher was also affected due to the continuous
curfews and shutdowns in the place of research.

2.9 Research Ethics

Name of few respondents has been withheld on their request for the security purpose. The names
revealed in the study have been given consent to by the respondents.
 CHAPTER 3

PRINCIPLES OF CHILD RIGHTS AND STATE’S APPROACH IN

KASHMIR --- LITERATURE REVIEW

3.1 Introduction

This part of the dissertation deals with the literature review done for the study. Literature review
is an imperative component of any research for dissertation subject as one begins to explore the
area concerned, given the pre-notions that a researcher carries. Reading of the literature related to
the research subject elucidates the various dynamics of the subject and helps in understanding the
historical, philosophical and political aspects of the subject. And understanding those
components of a subject is a part of doing justice to the research.

Appreciating the nature of topic of the dissertation, the literature review has been done of the
International Standards for protection of child Rights, the provisions of Indian Constitution, the
Indian national legislation that deals with the protection of Juvenile Delinquents, the Supreme
Court decisions on the cases involving the Juvenile Delinquents, a few books that talk of
philosophy of the protection of child rights and few reports of International Organizations who
have researched on the violation Of Child Rights In Kashmir.

3.2 International Standards for Protection of Child Rights

Beijing Rules 1985 and United Nations Convention on Rights of Children1989

The Beijing Rules and the UN convention on Child Rights all are classic standards to
deal with the children in ordinary and conflict situations of life with respect to families,
communities and the State. These standards are intended to direct State policies to be applied to
prevent juvenile delinquency, to establish a Juvenile Justice System for juveniles in conflict with
law, to safeguard fundamental rights and to establish methods for social re- integration of young
people who had suffered incarceration in prison or other corrective institutions. One of the other
principles which was sought to be reiterated and adopted was that a juvenile should be dealt with
for an offence in the manner which is different from an adult. The child should be focused on
and not the offence.

3.2.1 Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing
Rules): The Beijing rules of 1985 incorporate the broad fundamental perspectives of
comprehensive social policy of promotion of juvenile welfare to the greatest possible extent, in
order to minimize the intervention by juvenile justice system which would help in reducing the
harm that may affect any child. It maintains that the constructive social policy for juveniles will
be supportive in the prevention of Juvenile delinquency. And it calls for constant improvisation
of juvenile justice system as a progressive social policy for juveniles.11

The Beijing rules are devised to set the minimum standards for the handling of the Juvenile
Offenders under any definition of a juvenile, and stresses that the rules be applied impartially and
without discrimination on any basis for example, race, color, sex, language, religion, political or
other opinions etc.12 This becomes important in context of Kashmir where the children are
detained, and jailed on the basis of their participation in the expression of the political opinions
where State deals with such children as adult law breakers.

The Beijing Rules advocate for the basic institutional as well as procedural safeguards such as
special tribunals, separate detention homes for children, presumption of innocence, right to
presence of a parent or guardian and preference to non-institutional mechanism for adjudication
of the case.13

The recognition of need for special social policy for the children to protect their interests and the
significance of this protection has the philosophy of saving the childhood of children. This
protection under Beijing rules has more importance in the situations where children are exposed
to the conflict situations and grow in those conflict conditions like Kashmir. The rules give
legality to advocate for the rights of children in such situations where the domestic laws are

11
Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), Part 1 General Principles.
12
Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) Part 1 Scope of the Rules
and Definitions Used.
13
Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) Part1, Part 4, Part 5
either inadequate or are least respected. And help in securing some basic protection to the rights
of children who are prone to respond in conflict situations.

3.2.2 United Nations Convention On the Rights Of the Children 1989 (UNCRC): The UNCRC
is a human rights treaty which lays down the civil, political, economic, social, health and cultural
rights of the children. It is a sophisticated instrument which guarantees the minimum rights of the
children within the adult dominated world, which has taken liberty throughout the world history
to take decisions on behalf of the children and for the children. The adoption of UNCRC was an
important development within the International law for securing the rights of the children.

The UNCRC looks explicitly into the needs of the children and their entitlements. The prime
principle that UNCRC provisions are based on is the best interests of the child.14 The convention
recognizes the child’s right to express their opinions and to have these opinions heard, and to be
protected from any kind of exploitation. The Convention recognizes the vulnerability of children
and hence promotes the child friendly mechanisms within domestic jurisdictions of State parties.
Convention includes the principle of children’s right to participate in the processes of his own
development as well as development of the nation.15

This convention has provided a new idea of viewing children. While acknowledging that the
child is a vulnerable human being that requires the protection and assistance from the family, the
society and the State, the child is envisaged as a subject of rights, who is able to form and
express opinions, to participate in decision-making processes and influence solutions, to
intervene as a partner in the process of social change and in the building up of democracy.16

UNCRC calls for the institutional as well as procedural safeguards to the children who may be
apprehended for being in conflict with law.17 It lays that a separate mechanism should be
established for adjudication of the cases where children are involved in infringing the laws of the
state and the judicial procedure to deal with the cases of children should be the last resort. This is

14
UNCRC Article 3
15
Hodgkin, Rachel, and Peter Newell. "Article 12." In Implementation handbook for the Convention on the Rights of
the Child. Fully rev. 3rd ed. New York: UNICEF, 2007. 161
16
Hodgkin, Rachel, and Peter Newell. "Article 12." In Implementation handbook for the Convention on the Rights of
the Child. Fully rev. 3rd ed. New York: UNICEF, 2007. 162
17
UNCRC Article 4
based on the principle that family and home are the best institutions for the development of the
children.

The convention gives a standard age to declare the person a child to be dealt with by the penal
laws and other laws of the State.

The guiding principles of the UNCRC give the legitimacy to the Rights working groups who
advocate for the protection of child rights and help them in pressurizing the State parties to adopt
and enact the laws that are beneficial for the children. And such conventions become important
in the context of the places like Kashmir where the children lack any substantial securities from
the State and are exposed to harsh realities of conflict that Kashmir is undergoing for last 60 in
general and 25 years in particular which includes the armed struggle.

3.3 Constitution of Jammu and Kashmir

Constitution is the source of all liberties and rights to the people. The Constitution of
J&K guarantees basic rights to the residents of the state. These fundamental rights to the people
of J&K are promised in the constitution which refers to Part Three of the constitution Of India
through Section 10.18

Under various provisions of the Part III of constitution of India, the state guarantees minimum
safeguards to the people. By Article 14, constitution talks about Equality before Law, and equal
protection before law to the people. It follows the principle that unequals cannot be treated
equally and allows the differential treatment on the basis of the valid grounds. So this Article
aided by the Article 15(3) becomes important when the laws for children are made to ensure
protection for the benefits of the children. And also this article allows the differential treatment
in the special circumstances. And hence its importance for the place like Kashmir, which does
not have a peaceful environment, increases where the children are exposed to difficult realities
and need extra protection for safeguarding their rights.

18
Constitution of Jammu and Kashmir, Sec 10 Rights of the permanent residents “The permanent residents of the
State shall have all the rights guaranteed to them under the Constitution of India.”
Article 19 of the constitution of India guarantees the freedom of speech and expression; and
freedom to assemble peacefully. This freedom is an important aspect of the civil and political
rights of the person. And this Article does not differentiate between the persons on the basis of
age. And hence allows every person whether minor or an adult to express his views and
assemble. This article protects the freedom to participate in the developments in the society
through expression of one’s opinions and views. But when the opportunities of participation are
curtailed and the opinions are criminalized it is the violation of the fundamental right. This
becomes important in context of Kashmir where the expression of opinions is considered as
threat to the Security of State and Preventive Detention Laws are excessively used.

The Article 21 of the constitution of India guarantees right to life and lays done that no person
shall be deprived of his life or personal liberty except according to the procedure established by
law. The scope of this article has been widened to a great extent to include various basic
components to give meaning to the phrase right to life which is right to life is illusory without a
right to the protection of the means by which alone life can be lived. And, the right to life can
only be taken away or abridged by a procedure established by law, which has to be fair and
reasonable, not fanciful or arbitrary.19 The right to life does not merely mean right to exist but to
have a human life with dignity. And this shall be secured by the State. Where depriving a person
of his liberty becomes indispensable, it shall be done with due procedure of law.

The right of a child to live imposes an additional responsibility on the State to ensure a
conducive environment for the children to enjoy their childhood and be able to grow in a positive
atmosphere. And state has to safeguard the security of the children. And this obligation on State
becomes even more important when the place of living is under turmoil and the turmoil has a
direct impact on the upbringing and development of the children. State has to take affirmative
action to safeguard the entitlements of the children.

3.4 Juvenile Justice Act: India and Jammu & Kashmir

India in the year 1986 framed and enacted a law called Juvenile Justice Act which
incorporated the principles laid in UN Standard Minimum Rules for the Administration of
19
Olga Tellis vs Bombay Municipal Corporation [1986] (SC), p.180.
Juvenile Justice20 to protect and safeguard the rights of the children who are in conflict with law.
This law was passed to provide for the proper care, protection and treatment by catering to their
development needs, and by adopting a child-friendly approach in the adjudication and
disposition of matters in the best interest of children and for their ultimate ‘rehabilitation’ and
‘re-socialization’.21

And in the year 2000, India repealed the previous Juvenile Law and framed new Juvenile Justice
(Care and Protection of Children) Act to incorporate the provisions of UNUNCRC in its
domestic law to safeguard the rights of children. This Act provides for exceptional approach
towards the prevention and treatment of the Juvenile delinquency and further affords an
institutional and procedural framework for the protection, treatment and rehabilitation of the
children to cater to their developmental needs.22 It follows the principle of best interest of the
children in adjudication and disposition of matters which involve the juvenile delinquency.23

While the Juvenile law was enacted in India it did not extend to the state of J&K given its
specific constitutional relationship. However, State of J&K enacted its separate Juvenile Justice
Law which corresponded to the JJA in India though after a long gap. The JJA of India of the year
1986 was enacted by State of J&K in the year 1997 which continued to be followed in State of
J&K till the year 2013. The JJA which India passed in the year 2000 was passed by the State of
J&K in the year 2013. This gives an idea of the level of seriousness of the State of J&K in
securing the rights of children.

And at the implementation level of JJA of State of J&K, Instead of adopting the approach
of securing the rights of children, the State of Jammu and Kashmir imposes the penalties on the
children which exposes the children to harsh realities of conflict at tender ages and affects the
education, mental health and development of child. Day in and day out, children under the age of
18 years are detained and charged under the Public Safety Act, which authorizes State to detain
the person without any trial for 6 months on mere suspicion. And the accountability of State is
negligible and does not just exist at all as if there is no law or rule for State and its agencies to
follow.

20
Beijing Rules 1985
21
Objects of the JJA
22
Preamble of JJA
23
Preamble of JJA
3.5 Court Rulings

In the recent case of “Salil Bali vs Union Of India & Anr, [2013]”24: Supreme Court of
India held that the Juvenile Justice (Care and Protection of Children) Act, 2000, was enacted
after years of deliberation and in conformity with international standards as laid down in the
U.N. Convention on the Rights of the Child, 1989, the Beijing Rules, 1985, the Havana Rules
and other international instruments for securing the best interests of the child with the primary
object of social reintegration of child victims and children in conflict with law, without resorting
to conventional judicial proceedings which existed for adult criminals.

It cannot be questioned that children are amongst the most vulnerable sections in any society.
They represent almost one-third of the world’s population, and unless they are provided with
proper opportunities, the opportunity of making them grow into responsible citizens of tomorrow
will slip out of the hands of the present generation. The essence of the Juvenile Justice (Care and
Protection of Children) Act, 2000, and the Rules framed there under in 2007, is restorative and
not retributive, providing for rehabilitation and re- integration of children in conflict with law
into mainstream society.25

This is the progressive move by the Supreme Court of India towards securing the rights of
Children but there still remains indifference towards the children of Kashmir who do not have
access to those rights which the children in India are entitled to.

The Supreme Court of India has been dealing with issue of child rights since 1980’s and through
several orders and judgments, significant reforms and improvements have been introduced which
has influenced the evolution of juvenile law as it exists today. The present position of law has
been achieved after continuous struggle in the courts to recognize the vulnerability of the
children and to put extra efforts to safeguard their rights.

As early as year 1983, Supreme Court in the case of “Sanjay Suri vs Delhi Administration”26 had
looked into the issue of children being sent to adult jails and its impact on the children, as a result
of which a separate ward was created in Tihar Jail for the children.27

24
Salil Bali vs Union Of India, 7 SCC 705 (2013).
25
Ibid
26
Sanjay Suri vs Delhi Administration, 414, (SC 1983).
And in the year 1986, the Supreme Court’s observed in the case of “Sheela Barse vs Union Of
India”28 that “It’s an elementary requirement of any civilized society and it had been so provided
in various statutes concerning children that children should not be confined to jail because
incarceration in jail has a dehumanizing effect and it is harmful to the growth and development
of children. And this is why all the statutes dealing with children provide that child shall not be
kept in the jail. Even apart from this statutory prescription, it is elementary that a jail is hardly a
place where a child should be kept. There can be no doubt that incarceration in jail would have
the effect of dwarfing the development of the child, exposing him to baneful influences,
coarsening his conscience and alienating him from society.”29

After this case, certain improvements happened in the adjudication process of the matters
concerning children and now Courts have taken express positions with the help of beneficial
legislations in favor of going an extra mile to ensure protection of the rights of children.

3.6 Review of Books

Books have come up in volumes to discuss the rights of children, the need of those rights
and the ways to secure them. It includes the books on the children in various conflicts. However
least literature is recorded or discussed and hence available on the children in Kashmir that
would deal with the problem faced by children legally.

However enough of theory is available for the justification of securing and protecting the rights
of children in ordinary or extra-ordinary circumstances. Whether the child is a victim or a
delinquent, the progressive Child jurisprudence advocates the reformation and correction of the
child and rejects treating the child at par with adult offenders, what so ever be the nature of
crime. This world over view is being accepted and adopted in Indian Judicial system too but
always falls short to reach to the State of Jammu and Kashmir where the Children are more
vulnerable than average child of India.

27
Bharti Ali and Enakshi Ganguly, Juvenile Justice: Law And Practice (Haq Centre for Child Right, 2013).
28
Sheela Barse vs Union Of India, 3 SCC 596 (1986)
29
ibid
In the Book titled “How the Law Thinks about Children”, (Michael King & Christine Piper: 1995)
the concept of Welfare and justice to child is argued which needs to be achieved when a child
enters the criminal justice system, and hence an alternate system to address the special needs of
child victim or delinquent is advocated for.30 The book lays that child is a bearer of rights as well
as a bundle of needs at the same time and law needs to address the issues of children by
identifying the semantic constructs to make sense.31

The authors argue that instead of using law as a tool to transform complex issues into right and
wrong, or to identify right-transgressors and the rights-transgressed, it should be used to address
a larger question of human rights which would be more profound and much broader. And in this
sense, children’s rights may be defined as a claim of children to be regarded as people with
particular attributes, qualities, sensibilities and vulnerabilities which make them different from
adults.32

This is a better approach and response to deal with the special requirements of Child where the
child’s particular attributes are considered, in order to deal with the issues that need to be
addressed. The attempt is supposed to understand and respond to the differences between
children and adults in order to minimize the harm likely to be caused to a child to promote their
interests, as otherwise in regular criminal justice system.

This makes it relevant to understand the position of a child within the given legal system of
Kashmir, where the system needs to be responsive to the broad concept of children’s rights and it
needs to be looked at from outside of the legal system and requires to be seen in the context of
the conflict of Kashmir where the demands and necessities of children vary and need to be
addressed in their specific contextual requirements.

This concept of responsiveness from the law contributes to the natural justice system, and is of
importance when a sensitive approach is adopted to deal with special needs of a child. And a
reformative approach is more appreciable than a non-productive deterrent one.

30
Michael King and Christine Piper, How The Law Thinks About Children, 1st ed. (Aldershot, Hants, England:
Arena, 1995) p.123.
31
Ibid
32
Ibid , 130
The participation of the children in the environment they belong and live in, is unavoidable. The
environment affects the development of children and they can’t grow in isolation to the cultural,
economical, social and political developments that happen around the children. In present times,
the contribution of children into the events that happen around children is an important
development within the societies as more children get the opportunity to be a part of bigger circle
that affects their future.

The book Children, Welfare and The State (Goldson, Lavalette and McKechnie, 2002), describes
Children as “active subjects” capable of understanding and engaging with social world – a
contrast to previously dominant perspectives on children which treated them as Passive objects,
incapable of rational thought or active participation in Politics.33 It is clear that children and
young people do attempt to shape and change their world in various ways. 34 The role of children
in collective action emphasizes the participation of children actively in activism into the matters
which affect them, their development and future prospective. Children and young people operate
from a particularly disadvantaged position within a range of social locations-- the family, the
school, the community, and the State. The involvement of children in various movements which
demand challenging and questioning the State authority and the imposition of a range of
bourgeois norms and values is just and should be appreciated as children from the basic
foundation of better future of a society and the state. These challenges are heightened when more
children get conscious of their concerns and gain the confidence to join the upsurges for
demanding their rights and try to shape their futures. In such circumstances, role of state
increases in safeguarding the rights and coming up to the expectations of its citizens, how-so-
much young they may be.
The portrayal of involvement of children in the political activities as a law and order problem
and imposing stringent laws on them, is an attempt by state to undermine the rationale for the
children’s involvement into the collective actions, to dismiss the very notion that they could form
or articulate legitimate political demands. This is the issue that the people in authority and the
Government need to accept and address the reasons instead of symptoms or actions of children
through the laws and regulations through which adults are dealt with.

33
Barry Goldson, Michael Lavalette and Jim McKechnie, Children, Welfare And The State, 1st ed. (London: SAGE,
2002).
34
Ibid
 Response of the State is rather isolating and administering punishments to the children
who participate in the movements that challenge the State authority. Those acts of State however
have not been able to deter the more involvement of children into the movements in Kashmir,
instead have resulted in strengthening the resolve of children, to more frequently question the
actions of the State.

3.7 Review of Reports on Children in Conflict

Many surveys and International interventions have happened into the condition of
juveniles in Kashmir, as a conflict. Sometimes the interventions by Organizations like Amnesty,
Human Rights Watch and Asian Centre for Human Rights Watch worked in seeking release of
juveniles from the jails when they were booked for crimes like waging war against the State.

The responsibility of a State increases in the situations of conflict to respond to the special needs
of the vulnerable groups. From the childhood to adulthood, living conditions in a conflict
considerably affect the mental agency of the child. It affects the thought process, the mental
development and the actions of the child.

In such circumstances, the role of the stake-holders who impact the lives of children through
various ways is multiplied and becomes of the nature of more conscientious and responsibility.

However, what we see in practice is reverse of the obligations that are mandatory on the stake-
holders ethically, morally and legally.

As per the report of Asian Centre for Human Rights (2003), “The first periodic report by India to
UNCRC submitted in 2001 ignores many critical Concluding Observations of the UNCRC
Committee. It is entirely uninformative about the actual status of the children in India. It also
provides little information especially about the civil and political rights of children and the status
of children who require special measures of protection. This failure to provide accurate
information about the actual status of children should be construed as the lack of meaningful
cooperation from the government of India with the Committee on the Rights of the Child.” This
observation of ACHR comes from a study that ACHR conducted on the status of children in
India. This is common to the children all over India; the condition of children in conflict can be
understood through deductions.35

As per the report, a large number of State governments such as Punjab, Haryana, Jammu and
Kashmir, Assam etc are yet to set up the Juvenile Courts, Juvenile Boards or Juvenile Homes. In
a reply in the Rajya Sabha on 3 December 2001, Minister for Social Welfare stated that there are
no juvenile detainees in Jammu and Kashmir and Manipur. However, the Juvenile detainees of
Kashmir are being kept in District Jail of Jammu along with harden criminals.36

The report of Amnesty International on the Public Safety Act and Violation of Juvenile Justice
Act declared the PSA a lawless law. In its report Amnesty International gave a detailed report on
the Public Safety act and its abuse. The report had raised concerns that PSA causes a threat to
basic and fundamental rights of the people of J&K, the right to life and liberty, right to freedom
of speech and expression and right to free movement. The report further declares that the PSA
has a scope of inherent abuse and that poses a serious threat to the safety and security of the
populace of J&K.

Till 2012, any person could be detained under the PSA without any consideration of age. As a
result after the uprising of 2008, PSA was extensively used against the minors to prevent them
from participating in the protests. The report reveals that the PSA is used in the State of J&K to
detain people without any charge or trial. The report mentions the “Revolving Door detention”
used by the Government to continue the detention of a person even after his detention order
under PSA is quashed by the High Court.

As per the second report by Amnesty International on the PSA, it says that “even though the PSA
was amended to expressly bar detention of any person who is below the age of 18, the detention
of children continue to be the practice in total disregard of the Act itself and the Convention on
the Rights of a Child to which India is a signatory.”37 It provides us with the detailed proof
where children below the age of 18 are falsely mentioned as 18 or above 18. In fact, Amnesty
International found that in at least three cases authorities’ detained children by falsely recording

35
Asian Centre For Human Rights, The Status Of Children In India: A Submission To The UN Committee On The
Rights Of Children (ACHR, 2003).
36
Kashmir Times (Jammu), August 11, 2003
37
Amnesty International, STILL A 'LAWLESS LAW' (United Kingdom: Amnesty International Publications, 2012).
their age as being above 18. Both Mohammad Rafiq Sheikh and Murtaza Manzoor Panzoo were
detained when they were 17, but their grounds of detention stated that they were 19.38

The government of India provides impunity under Section 197 of the Criminal Procedure Code
and Government of J&K provides immunity under Section 22 Public Safety Act, 1978 to the
armed forces and Government authorities from prosecution. Under section 19 of the Human
Rights Protection Act, 1993, the armed forces are treated as “beyond the reach of the law” and
kept out of the purview of the National Human Rights Commission. The difference between the
law enforcement personnel and the law violating groups has become blurred. PSA violates every
norm of civilized society where it is primary responsibility of the State to protect the lives of the
people living within its geographical boundary. This law is abused in Kashmir against whosoever
dares to question the State and its authority and legality.

The state Govt. of Jammu and Kashmir has shied away as a responsible State. It doesn’t find
itself bound by any duty towards the children and in fact finds itself more in conflict with the
children. In the state of conflict, Government refuses the basic rights and safeguards to the
children of Kashmir.

Hence this study is aimed to understand the various dimensions of the State-Child relationship in
a conflict like Kashmir and also suggest a Legislative Reform which would entitle the children of
Jammu and Kashmir to safeguards, as recognized internationally for their age.

And in this situation, there is in dire need of a study which can establish the role of state and its
responsibilities towards the protection of children

38
Ibid
 CHAPTER 4

INSTITUTIONAL MECHANISM FOR BEST INTERESTS OF

CHILDREN: PREMISE AND REALITY

4.1 Introduction
This chapter examines the Principles laid down in the United Nations Convention on the Rights
of the Children for establishment of basic Institutional mechanism within the national
jurisdictions of the State Parties, to protect the rights of children and to deal with the juvenile
delinquents and the incorporation of those principles in the Jammu and Kashmir Juvenile Justice
(Care and Protection of Children) Act 2013 and the rules framed under this Act. This chapter
further assesses the implementation of the provisions of the Jammu and Kashmir juvenile Justice
(Care and Protection of Children) Act 2013 which provide for the establishment of the
institutions to adjudicate the cases of the Juvenile Delinquents.

This chapter also tries to reflect on the nature of the State of J&K through assessing the
willingness of the State and the efforts put by State to implement the JJA, in the concluding
comments.

4.2 UNCRC: International Framework for Principles of Institutional Mechanism

Creating an alternate system which can preserve the innocence and childhood of the
children and as well as help in their social reintegration after indulging in any delinquent act
which is prohibited by the laws of a country, is one of main aims of the UNCRC. UNCRC
emphasizes on the best interests of children to be considered in all circumstances especially in
the times which could be prejudicial to the rights of the children. This principle of “best interests
of children” which is expressed in the UNCRC in second part of the Article 40 talks about the
basic guarantees to the children who have been identified or recognized of having committed act
infringing any penal law.

The principle as laid down in UNCRC says, “To have the matter determined without delay by a
competent, independent and impartial authority or judicial body in a fair hearing according to
law, in the presence of legal or other appropriate assistance and, unless it is considered not to be
in the best interest of the child, in particular, taking into account his or her age or situation, his or
her parents or legal guardians”39 This principle requires an unhindered process to be followed to
determine the matter of involvement of child in any act against any law to avoid any kind of
delay which could have bad consequences on the child. Hence;

 A separate judicial body is to be formed to meet the requirements of protecting the child
from any exposure which could be detrimental to the interests of the child.
 A fair hearing is to be given to the child as per the law in presence of appropriate
assistance, to avoid any kind of threat or abuse of the child.
 Ordinarily children can be manipulated easily by the persons of influence and in order to
have reasonable hearing, assistance to the child is must by someone with whom child
feels a sense of confidence and security. This assistance will include helping child to
understand the process and procedure, to facilitate any kind of help in translation of the
language being used, if child doesn’t understand.

The UNCRC further lays, “If considered to have infringed the penal law, to have this decision
and any measures imposed in consequence should thereof be reviewed by a higher competent,

It also guides towards establishing such institutional mechanism which ensures the care,
guidance and supervision of the juveniles through variety of activities and actions which
would engage children for a better development and ensure the rehabilitation of the child
accused of infringing any law.
independent and impartial authority or judicial body according to law.”40

This leads to a simple conclusion that UNCRC recognizes the need of keeping children away
from any kind of severe punishments. If a juvenile commits any serious offence, the need to
address the rehabilitation and promotion of human values in the child ought to be a priority. The

39
UNCRC Article 40 2 (b)
40
UNCRC Article 40 2 (b) iii
child has his whole life ahead of him, which he should not be deprived of, but should be aided
and assisted to live with human values. Reintegration is the rule, punishment is not.

In the situations where depriving the liberty of child is the only option it should be exercised in
the best interest of the child, is the principle under laying the provisions of UNCRC. “Every child
deprived of liberty shall be treated with humanity and respect for the inherent dignity of the
human person, and in a manner which takes into account the needs of persons of his or her age.
In particular, every child deprived of liberty shall be separated from adults unless it is
considered in the child's best interest not to do so and shall have the right to maintain contact
with his or her family through correspondence and visits, save in exceptional circumstances.”41

The rule is that in the circumstances where the arrest, detention or imprisonment is
unavoidable it should be done with full respect to the human rights of the person giving due
consideration to the tender age of the child and also it should be done in such a systematic
way which takes care of the needs of the person of such an age.

The special consideration is given to the place of detention where the child is kept during the
period of detention or imprisonment. The UNCRC provision expressly lays that the child should
be kept separated from the adults, which means a separate place of detention should be facilitated
for detention of children and be kept away from adult jails and adult under-trials or convicts.

 This is to ensure that the innocence of the children is not impacted through the company
of adults which could be perilous for the positive development of the children.
 The principle also speaks of giving right to the child to maintain contact with the family
through visits and correspondence.
 The principle guarantees the access to legal assistance to the child who has been deprived
of the liberty. This is to ensure that the child is able to defend himself and his
fundamental right is preserved.

41
UNCRC Article 40 c
  This also requires as earlier mentioned an impartial and independent authority to ensure
that the decision to deprive child of liberty is not an arbitrary one and the judicial body
has to be prompt to respond to the action.

These are the main principles laid in the UNCRC to ensure and safeguard the rights of the
children and their position in the society given the disadvantaged conditions of the children.

After India ratified the UNCRC, it incorporated these basic principles and values in the
domestic law. However, it did not extend to the State of Jammu and Kashmir, as mentioned
earlier. The State of Jammu and Kashmir has enacted the Juvenile Justice Act in its present
form in the year 2013, after enormous efforts were put by the rights advocacy groups to
safeguard rights of children who have been living in a state of Conflict for more than two
decades now.

How Jammu and Kashmir tried to incorporate the principles of UNCRC into the state law is clear
through the law that was enacted, but what is interesting is how far this law is implemented and
followed. Through the data collected, I am analyzing the institutional mechanism that the
Juvenile Justice provides and what exists at present.

4.3 Institutional Mechanism under JJA and the Implementation

4.3.1 Creation and Working of the Juvenile Justice Board

To incorporate the principles laid under the UNCRC, alternate institutional mechanism has been
created under the Section 4 of the JJA that directs creation of the Juvenile Justice Board which
would comprise of a Judicial Magistrate of the First Class and Two Social Workers of whom one
has to be a woman. The Magistrate will be designated as Principal Magistrate. This bench of
Magistrate and social workers are conferred the powers under Criminal Procedure Code (CrPC)
Samvat 1989 of Jammu and Kashmir. The essential qualification of the Bench is to have special
knowledge or training in child psychology or child welfare and additional qualification of social
worker has to having been actively involved for seven years in health, education or welfare
activities pertaining to children.

The board has to conduct its sittings on all working days of week unless case pendency is less
and board has to send monthly information as a report to the District Child Protection Unit and
Quarterly information to the Chief Judicial Magistrate (CJM) regarding pendency of cases.42

Before the present JJA, which is a comprehensive law for rights of the children, previous JJA
Observation:
1997 also provided for alternate adjudicatory mechanism for the delinquent children, which
Kashmir lacks any such Juvenile Justice Board. Even though JJA was enacted in 2013, even
also never was adhered to. Under the previous Juvenile Justice Act (JJA 1997), for delinquent
after more than a year has passed, there has been no activity till now to create a JJB. And
children Juvenile courts were to be formed where a magistrate would be assisted by two social
apparently there seems to be no interest of Government in even creating the boards across the
workers for dealing with the cases of children. After 2013 law was framed and enacted, the
state.
power to adjudicate the cases of juveniles was given to Chief Judicial Magistrates of the
District courts for the lack of JJB.

On speaking to the Chief Judicial Magistrate of Srinagar Sadar Court, who has additional
charges under JJA to adjudicate the cases of Juveniles, on reiterating that no Juvenile Justice
Board exists in the State, he was of the opinion that it’s the lack of will power on part of State
that no JJB exists in the valley. The importance of having the JJA in Kashmir was realized after
the year 2008, when the State witnessed huge uprising of the people on the political grounds. As
mentioned earlier, the Police in order to counter the uprising used the detentions as a tactic to
pressurize people not to get involved in the dissent against the state. In this, children were made

Prior to 2008, Kashmir did not see direct involvement of youth or children in the dissent
against the State. But post 2008, children felt a sense of belonging to the collective expression
of dissent against the state. More and more youth took to the roads to assert their
disagreement against the political scenario of the state. And which resulted in extensive
detentions of the children as a consequence.
easy targets.

42
JJA Rule 10
On asking as to why no JJB has been created, the human rights activist, Mr. Khurram Parvez
says, “State has deliberately not taken any step to create the JJB. He calls it more a politically
motivated inactivity than anything else. When state sees children more through the prism of
mischief makers than as rights holders, it is not a surprise to not have a JJB/Juvenile Court even
after having a Juvenile Justice Law from last fifteen years.” Khurram has been active in
advocating the protection of children from targeting behavior of State. He says, the children of
1990s and beyond have seen violence all around them, how else do we expect children to
respond to the conditions that they have been brought up in.
And hence it is an extra duty of the State to ensure that the
vulnerability of children is reduced and they are allowed to Of the 182 children kept
express themselves instead of asking children to shut up.” in Juvenile Home, 110
are categorized as Stone
One advocate who fights the cases of children before the Pelters. (23-09-2011 to
CJM Srinagar and High Court, shares the opinion of 30-09-2013)
Khurram though in a separate interview.

Advocate Shafqat Hussain says that it is a fact that our State and its agencies are not children
friendly State at all. He says that the Government has chosen not to form JJBs. Adv. Shafqat
says, being a lawyer I see a specific pattern of cases registered against the children which are
more of the nature of alleging the involvement of children in the activities against the State. And
hence does not want to address the vulnerability of those children. This is also proved when I
accessed the data at the only Juvenile Home of Kashmir, where of total 182 juveniles admitted
from 23-09-2011 to 31-03-2013, 110 were facing the charges under the Ranbir Penal Code
(RPC) Sections 148 (Rioting) 149 (Unlawful Assembly) 152 (Obstructing Public Servant when
suppressing Riots) 307 (Attempt to Murder) 332 (Voluntary causing Hurt to deter Public Servant
from Duty) 336 (Endangering Life/ Public safety) 427 (Mischief causing damage). And all the
children facing those charges are put under a category of Stone Pelters.

This makes one to conclude that even if JJA exists as a special legislation to protect rights of
children, after much effort were put by the organizations and Civil Society of Kashmir, State
continues to shy away from the responsibility towards the minors in the State that it has
undertaken on its own. This affects the rights of children who deserve to be treated like
children no matter how they behave for the fact that they are just children.
4.3.2 Creation Of Special Juvenile Police Units and Its Working

In order to keep the process of Juvenile Justice exclusive of the ordinary Criminal Justice
System, the JJA provides for creation of the Special Police Units to deal with the apprehended
children against whom any complaint exists. This special Police Unit is established to enable the
police officers to prevent the juvenile crime and handling Juveniles. These police Units have to
be specially trained and instructed and sensitized towards the child rights and approach expected
towards children. This unit is to be created in every district of Jammu and Kashmir for
coordination and up-gradation of the police treatment of the juveniles.

 Each SJPU shall constitute of a Police Officer of the rank of Inspector and two paid
social workers, of whom one shall be a woman and another preferably having experience
of working in the field of child welfare.
 And in every Police Station atleast one officer not below rank of Sub-inspector has to be
trained with appropriate instruction and skills and properly oriented towards the juvenile
sensitivity and designated as “Juvenile Welfare Officer.”43

Though JJA may be considered an ideal piece of legislation for safeguarding the rights of the
children in conflict with law, in Kashmir the ground reality has something else to show. Even
if the Juvenile Justice Act as mentioned above talks of special Police Units to be created to
deal with the children in Conflict with Law, the Units do not exist in Kashmir. It’s the
ordinary Police that deal with the Children in conflict with law.

While trying to know more about this, the CJM Srinagar Sadar Court repeated what he had to say
about the JJBs in Kashmir. He says the State is not interested in taking any constructive step
towards securing the rights of children. In his court, it is the ordinary police that accompanied the
children. He agrees this has a bad impact on the children.

On speaking to another lawyer, Advocate Shehzad Hamdani on the issue of not having Special
Police Unit in the state he said, State does this deliberately. He says, if State wanted to take care
of children, they would have created the institutional mechanism which they have not. He

43
JJA Section 62
continues to say, so what does this imply? If state wanted to protect children from extreme
conditions of hostilities, would it not create mechanism to do so? State wants children to be
scared of getting engaged in any activity that State thinks is not in its favor and hence JJA is only
eyewash to show the world that state cares for children.

And while interacting with Deputy Superintendent Police Imran Farooq on the rights of children,
he was clear enough to say that JJA is not implemented. He says there is no Special Police to
deal with the children and ordinary police does not know how to deal with children. He says
State does not have willingness to implement the JJA. And what police does is follow ordinary
law.

The responses from the ground lead to the only conclusion that the creation of the mechanism
for implementation of JJA which is the responsibility of State, it has not fulfilled. And the
non-implementation is not a mere non-willingness but a preferred approach to deal with the
children. It is a deprivation of the protection that a child is entitled to, no matter which law he
breaks.

4.3.3 Child Protection Units

Under the Rule 79 of the JJA, Child Protection Units are to be established by the state to ensure
proper implementation of the Act at the State as well as at the District level. In order to achieve
performance, two level units would be created to carry out the functioning of the JJB. State Child
Protection Society and the District Child Protection Unit are the Supervisor and Monitoring body
under the Act to assess the working of the agencies and the institutions under the Act.

 SCPS also has to work in selection committee for appointment of the members of JJBs.
 It also has to network and coordinate the Government departments to build inter-
sectarian linkages on child protection issues which include Departments of Health,
Education, Social Welfare, Urban development, SC/ST, Backward Classes & Minorities,
Youth Services, Police, Judiciary, Labour, State AIDS Control Society, among others.
 It also has to work for networking and coordinating the civil society organizations
working for the effective implementation of the Act.
The SCPS is empowered to conduct training for the personals working under the Act and also do
capacity building trainings with them for effective implementation of the Act. It also has to
ensure the establishment of Quality Standards of Care and Protection and ensure its
implementation in all institutions.

SCPS also has to set up, support and monitor the DCPUs. It has to the make necessary funds
available for the working of the DCPUs to facilitate their setting up of required services for
implementation.44

District Child Protection Unit has to coordinate and implement all child rights and protection
activities at district level. It has to ensure the creation of adequate infrastructure in each district
and setting up of District, Block and Village level Child Program Committees for effective
implementation of the programs as well as discharge of its functions. And also the periodic and
regular mapping of all child related services at district for creating a resource directory and
making information available to JJBs.45

It also has to coordinate with District Legal Services Authorities for the purpose of ensuring
availability of the legal Aid to juveniles.

The situation in creation of Child Protection Unit is no different. Like the JJB and SPU, this
too does not exist and the reason is not much different. This makes the juveniles suffer, as no
one is to ensure that they are met with appropriate treatment after apprehension, arrest and the
stay in the Observation Home or Special Home. The only juvenile Home that exists in the
Kashmir is under the Social welfare Department of the State.

4.3.4 Creation of Observation Homes and Special Homes

44
JJA Rule 79 (1)
45
JJA Rule 79 (2)
Under the JJA, the observation homes are to be established and maintained in every district or
group of districts or each division of the State for temporary reception of any juvenile in conflict
with law during the pendency of any inquiry regarding them. The management of those
observation homes will be determined by the Government to maintain the standard of services
that are to be provided for the Rehabilitation and Social Integration of a juvenile.

The children in conflict with law will have separate Observation and Special Homes which
should also be accessible to persons with special needs. These homes will be separate for Boys
and Girls.46

The observatory home will have separate sections for the different age groups of the children
such as seven to twelve years, twelve to sixteen years and sixteen to eighteen years. Every
juvenile who is present in the Juvenile Home shall be kept with the suitable age group of
children with due care taken to the needs of the children giving due consideration to the physical
and mental status and degree of the offence committed.

Each home should have a Minimum standard of accommodation and set structure, which are
child-friendly, disabled-friendly as prescribed, which includes:47

(a) Room
(b) Dormitory
(c) Classroom
(d) Workshop
(e) Play ground
(f) Toilets
(g) Washrooms
JJA also provides for creating Special Homes for the reception of Children who have been
sentenced by the JJB and need to spend their time under that sentence. The Rehabilitation
program post sentence is mostly to be initiated in the Special Homes.48

46
JJA Rule 38
47
Ibid
48
JJA Sec 10
 Kashmir has one Juvenile Home which is functioning since September 2011. It hosts both
Children in conflict with law and the children in need of care and protection. It’s a Boys
Juvenile Home and no Juvenile home exists for girls. Either Government believes that only
boys have delinquent tendencies and hence a juvenile home for boys Or else Government is
not concerned about the welfare of the girls.

What is surprising is that even when the JJA differentiates between two categories of children,
Children in conflict with law and Children in Need of care and Protection, who need different
accommodation, they are kept in the same home. The juvenile Home that is working in Kashmir
can neither be called Observation Home neither Special Home.

The location of juvenile home is in proximity with the Police Station of the area called
Harwan. It’s a secluded place with High fortified walls, surrounded by the Barbed wires. The
doors and windows are made of window, which seems to be guarding criminals rather than
children. It’s guarded by the policemen who are stationed inside the premises of the Juvenile
Home Walls.

Institutional Organization of the Observation Home and Special Home 49

 Every observation Home or the Special Home has to have appointed staff to run it as per
the rules of the Act. The institutional set up has to be fixed in accordance with the size of
the home, the intake capacity, and work-load, distribution of functions and requirements
of the programs.
 Each Home shall consist of officer-in-charge, probation Officer and Child welfare
Officers, Counselors, Educator, Vocational Training Instructor, Medical Staff (Doctor
and Para-medical staff), Clerical staff, Care takers, store keeper, cook, helper, washer
men, Safaikaramchari, driver, security staff, and gardener as required.

49
JJA Rule 65
  It shall also include part-time staff like Psychiatrist, psychologist, Occupational therapist
and other professionals as required.
 The staff has to be on night duty on rotational basis out of Officer-in-charge

The Juvenile Home of Kashmir is run by the Superintendent of the Social Welfare
Department. There is no probation officer or any welfare officer.

(Superintendent) Probation Officer Child, Welfare Officer, and Case Worker.

On reaching the Juvenile Home, I could interact with a police person (Reyaz Ahmed) stationed
in the Juvenile Home who initially refused to speak on any information. After showing my
Research Authority document, he was ready to entertain my request of speaking to him for a
small span of time.

On enquiring about the various facilities available to children in the Juvenile Home he said
that there is no permanent Medical staff, Counsellor, Educator or Vocational Training
Instructor in the Home. And the medical check up is facilitated by Police, and not in Juvenile
Home.

The Juvenile Home does have a Recreation Room, but not much is done. This all has to show
that Child rights are not taken seriously by the Government. In fact it’s neglected by the
Government which has appalling impact on the children brought and kept in this Home.

On speaking to Advocate Shehzad Hamdani about this issue, he was of the opinion that the
Juvenile Home is no less than an ordinary Jail, except the fact that it does not host the Adult
jailed persons.

The register that maintains the details of the children living in the Juvenile Home calls the
children “Inmates” instead of using a child friendly language, which needs to be taken care of in
the best interest of the Children.
4.3.5 Management Committee

The management of the Homes is to be monitored by the management committee which shall
have two working councils. The governing council and the Executive Council which will keep
check on the progress of each juvenile in the Home. The progress report of every juvenile shall
be filed quarterly in a case file which would be sent to the District Child Protection Unit. The
Governing council will have one member from SCPU, a social worker, one juvenile
representative, one representative from J&K Legal Services Authority and One Non-
Governmental Organization Representative working on child rights. The directions given by the
governing council shall be executed by the Executive Council which would consist of Officer-In-
Charge, Probation Officer, Medical Officer, Psychologist, Instructor in Vocation and a teacher.50

The matters related to the working of the Homes will be monitored and reviewed by the
management which would include:

i. custodial care, housing, area of activity and type of supervision required;

ii. medical facilities and treatment;
iii. individual problems of juveniles and children, provision of legal aid services
and institutional adjustment, leading to the quarterly review of individual care
plans;
iv. vocational training and opportunities for employment;
v. education and awareness;
vi. social adjustment, recreation, group work activities, guidance and counselling;
vii. review of progress and adjusting institutional programmes to the needs of the
juveniles;
viii. planning post-release rehabilitation programme and follow up for a period of
two years in collaboration with aftercare services;
ix. pre-release preparation;
x. release;

50
JJA Rule 53
 xi. post release follow-up;
xii. food;
xiii. minimum standards of care, including infrastructure and services available;
xiv. daily routine;
xv. oversee that all registers as required under the Act and rules are maintained by
the institution, check and verify these registers, duly stamped and signed in the
monthly review meetings;

All the issues listed above that need to be taken care of as per the JJA and Rules hardly get an
attention in the Juvenile Home of Kashmir. There is no management committee yet formed as
required by the rules. What exists today in form of management exists since the Juvenile
Home has been created, and new law did not make any difference on ground. Children are
treated ordinarily without any special attention on individual basis. No rehabilitation policy
has been formed for any child till now nor do any post release follow ups exist. There are no
special classes or activities to engage the children in healthy environment.

The message that on ground situation conveys is simple and clear. A progressive law might have
been passed, but unless it’s implemented it is no better than the previous law that it preceded.
The purpose of framing and enacting law to secure the rights and protection of children is
defeated by the non implementation of the law. Creation of institutional mechanism is of prime
importance for the implementation of the law, and building of the mechanism is the
responsibility of the State which it should take up positively instead of avoiding the same. The
will power of the state is reflected through the initiatives that a state takes up in securing the
rights of vulnerable part of the society. The fact that State is unwilling to discharge its
responsibility is reflected through the inactivity of the State in creating the mechanism for
securing the entitlements. Mere entitling a child of rights does not secure the children of their
rights; an appropriate system has to function to deliver the obligations.

In the circumstances that the children of child have been situated in and continue to live in,
deserves a special attention of the Duty-bearer, the State. Depriving the children of an alternate
mechanism to be dealt with is depriving them of their childhood. And when understood in the
context of Kashmir, it is explicit that it is not mere negligence but planned approach to ensure
that children do not participate in the expression of dissent against the State. Was it not for the
pressure that State of Jammu and Kashmir faced; the new law would not have been even passed
by the State. And unwillingness is express by the fact that even after JJA of 1997; no mechanism
was created to ensure that children are treated as per Human Rights standards. Jammu and
Kashmir does not even have a Commission for the protection of child rights.

It defeats the constitutional as well as international human rights obligations undertaken by the
India to ensure protection of child rights.
 CHAPTER 5

PROCEDURAL SAFEGUARDS TO JUVENILES: THEORY AND

PRACTICE

5.1 Introduction
This Chapter deals with the Procedural safeguards that are guaranteed under the United Nations
Convention on the Rights of Children and the Jammu and Kashmir Juvenile Justice (Care and
Protection of the Children) Act, 2013 and Rules under the Act to the Juvenile delinquents. This
chapter assesses implementation of those procedural safeguards in Kashmir and the violation, if
any.

In the conclusion, this chapter goes into analyzing the nature of the State through reflecting upon
the reasons and motive of non-implementation of the procedures for adjudication of the cases
involving children.

5.2 UNCRC: International Framework for Principles of Procedural Deliverance

In order to facilitate an appropriate justice delivery system for children, the UNCRC has laid
down guidelines to be followed to enact rights based laws for the children who may have
infringed the law in order to safeguard children from any vulnerability. This includes framing of
laws, procedures, authorities and institutions which can assist in ensuring the best interest of the
children. And in order to attain this basic minimum age limit is to be followed by the States in
their laws for the presumption of incapacity to infringe any penal law by the child. And it has
also stressed on using the judicial procedure as last resort in order to adjudicate the case, yet not
prejudicial to the human rights or legal safe guards of any party to the matter.51

51
States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically
applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
i. The establishment of a minimum age below which children shall be presumed not to have the capacity to
infringe the penal law;
ii. Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial
proceedings, providing that human rights and legal safeguards are fully respected.
According to the principle, a child is presumed to be innocent until proven guilty under the law.
This means the presumption of innocence is to be maintained till the charges against the child are
proved beyond any doubt. This also follows by the duty on the authorities to inform the parents,
family or the guardian of the child of the accusations and the charges against the child, the
grounds on which the child has been accused or charged with of the offence. It will include
providing appropriate assistance to the child, parents or legal guardians to prepare for the
suitable defence for the child, in the due process of law.52

The rule also obligates the authorities to not force a child to give any testimony or confess the
guilt. It protects the child from participating in examination of adverse witnesses. In order to get
a decision imposed on the child, the decision needs to be reviewed by a higher competent,
independent and impartial authority or judicial body established. This all is done to protect the
child from being exposed to adverse process and procedures of law that are ordinarily followed
which can affect the childhood and positive development of the child.53

In the situations where depriving the liberty of child is the only option it should be exercised in
the best interest of the child, is the principle under laying the provisions of UNCRC. The rule is
that in the circumstances where the arrest, detention or imprisonment is unavoidable it should be
done with full respect to the human rights of the person giving due consideration to the tender
age of the child and also it should be done in such a systematic way which takes care of the
needs of the person of such an age.54

A variety of dispositions, such as care, guidance and supervision orders; counseling; probation; foster care;
education and vocational training programs and other alternatives to institutional care shall be available to ensure
that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances
and the offence.
52
Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
i. To be presumed innocent until proven guilty according to law;
ii. To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or
her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and
presentation of his or her defence;
53
Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to
obtain the participation and examination of witnesses
To have the free assistance of an interpreter if the child cannot understand or speak the language used;
To have his or her privacy fully respected at all stages of the proceedings.
54
UNCRC Article 37, States Parties shall ensure that:
The principles laid down in the UNCRC in the form of guidelines take care of the best interests
of the Children in any condition of being in conflict with law. This convention does not
differentiate between children breaking different kinds of laws and hence being treated
differently. The guiding principle of the convention is the protection of children in any
circumstances and ensuring respect to the childhood. This convention does not talk of the
rehabilitation of children only during the detention but post release as well. It entitles the
children to the special care for social reintegration. And it directs the State parties to the
convention to incorporate such rules and procedures which enable securing the rights of the
children. In the Juvenile Justice Act of the Jammu and Kashmir, I am analyzing those provisions
with reference to their implementation and what Role State plays in dealing with the children.

5.3 Procedural Mechanism under JJA and Implementation

5.3.1 Adjudication Process under the JJA

Any child alleged to be involved in infringement of any law can be apprehended by the Special
Police only, created under the JJA. After the apprehension of the juvenile by the Special Police
Unit, the charges will be filed by the police and the Juvenile Justice Board shall hold the inquiry
in accordance with the provisions of the Act.

The first requirement under the JJA for detaining any child is that the Special police shall deal
with children. On speaking to the CJM acting Magistrate to deal with Juvenile cases in Srinagar,
he said it is the ordinary regular police that deal with the children. Children are brought before
his court by the regular police in the Police uniform and transported in ordinary police vehicles.
The CJM says it is violation of the JJA and the creation of SPU is the Government responsibility
which has not been fulfilled till now. And on enquiring the possible reasons behind the same,
CJM opined that it was unwillingness on part of Government to create the mechanism and what

No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital
punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons
below eighteen years of age;
No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a
child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest
appropriate period of time
makes Government unwilling CJM blamed the political situation in the Kashmir and the
Misgovernance as reasons to not have appropriate implementation of the law.

Professor Bilal Noor, calls the JJA a cosmetic fraud. He says that JJA has been enacted as a
mere eye wash. According to him, after mass detentions of
youth subsequent to 2008 uprising, State was compelled to
Juvenile Justice Act is a
recognize the Juveniles as a separate entity, though state Cosmetic Fraud:
never was concerned about the welfare of the children. Professor Bilal Noor

The Act of 1997 was also not implemented until 2008

when Kashmir came in international light for violation of
human rights and as a reaction to the pressure from Rights working groups, CJMs in various
districts were given additional charge to deal with juveniles. And even after the new law, CJM
continues to preside over under the JJA and no other part of the JJA has been implemented.

Further, under the Juvenile Justice Act, when any juvenile is accused of any Bailable or Non-
Bailable offence, and is arrested or detained or is brought before a Board, such person shall be
released on bail with or without surety by the incharge Police Officer. But where it appears
under reasonable grounds that release of the juvenile is likely to expose him to any kind of
danger or wrong association and his release will defeat the ends of Justice, he may not be
released but be placed under the supervision of a probation officer or under the care of any fit
institution.

And consequently upon the non-release, the juvenile be kept in the observation home until
brought before the Board. And when the Juvenile has been arrested, the officer incharge of the
police Station has to inform the parent or guardian of the juvenile of such arrest and direct him
to be present before the Board when Juvenile will appear. The probation officer too has to be
made aware of such an arrest to enable him to obtain the information of the child for the
assistance to the Board for making enquiry.55

55
JJA Sec 13, Sec 14
 The obligation under the JJA is on the incharge Police officer to release the child on bail
whenever apprehended for any kind of offence. This is the rule and the exception is that if
release of juvenile will harm him in any way or its felt that it will more just to not release the
child, the child may be placed under supervision of the Probation officer and sent to the
observation Home. However what happens is otherwise.

After the children are detained, they are taken to the Police Stations, and kept there for days
together instead of sending them to the Observation Homes. The family members are hardly
informed about the detention formally by the police.

One of the children (Name Withheld), I interacted with, was put in detention for a week
almost without his family informed about the same. He says the purpose of police to do so
was to coerce him to name the children in his area who participate in the acts of stone-
pelting. This is a common story in Kashmir, which comes up in the newspapers very often,
yet Government condones the acts of its police and allows them to behave the way they want
to.

On speaking to Adv. Urfi, who also takes up the cases of the children booked for offences
against State, she says that children are denied bail by the police more often than being bailed
out. And she says, police is hardly aware of the law like JJA and hence all the more difficult to
secure the release of children. Adv. Urfi says that children are detained for days together and
parents are not informed of the same. It’s through the neighbors or friends that families come to
know about the detention of their children.

She says detention by the police is used as deterrent against children for getting involved in
expression of the dissent. And not creating the proper mechanism to deal with juvenile
delinquents is a deliberate attempt. She says the intentions of the State are manifest through its
inactivity of creating a mechanism under the JJA.

Under the JJA Rules, after the detention of the juvenile, juvenile has to be produced before the
JJB within twenty hours of such detention, which will review the information about the Juvenile.
 In the cases, whether Juvenile is apprehended or not, Police have to submit a detailed report to
the board containing social background of the juvenile and the circumstances of the alleged
offence along with documents like:56

i. Apprehension Memo
ii. Report of circumstances of apprehension
iii. Medical examination report
iv. Juvenile’s version of the incident

The situation on the ground is far different than what law prescribes. The Human Rights activist
Khurram Parvez says that children are kept in detention for days together and there is no inquiry
on the same. Khurram says, what does the State expect from the children of conflict? He says the
involvement of children in various acts which State claims to be against Law and Order is an
expression to the continuous injustice that happens in Kashmir. He says the present day children
are exposed to the whole of world affairs and back in Kashmir they feel suffocated in continuous
curfews that are imposed on the people of Kashmir for weeks together. Khurram says, the way
State conducts itself in Kashmir, the response to it is only a consequence of how it affects the
children. He says if state calls itself concerned with the wellbeing of the Children, State would
respond in a different way instead of incarcerating the children with adults in the jails.

The CJM says that the investigation is conducted by normal

police against the children and it affects the credibility of
the investigation. He says, ordinarily police is equipped and Participation of Children
in expression of dissent
trained to deal with the law breaking adults and dealing only a response to
with children requires a different set of the skills which the decades of Injustice:
Khurram Parvez
Police is not trained in. He says although the law is perfect,
its implementation by various agencies is not appropriate.

As per the JJA, Board will pass the orders on the basis of first summary enquiry which could be:

i. Disposing off the case if grounds for juvenile to be in conflict with law appear to be
unsubstantiated.

56
JJA Rule 12
ii. Releasing the juvenile in the supervision and custody of the parent or guardian or any fit
institution with the direction to present the juvenile for the inquiry on next date.
iii. Place the juvenile in the observatory home or place of safety pending the inquiry, but only in
those cases where the juvenile is involved in any serious crime.
iv. And where the juvenile is released but inquiry is pending, Board has to notify the next date
of hearing within 15 days of first summary inquiry and seek the Social Background Report
prepared by Police and Social Investigation report prepared by the concerned Probation
Officer.

While the process of adjudication of the matter is going on, the Board has to ensure that Child-
friendly, fair and speedy enquiry is going on. The board has to satisfy itself when the child is
produced before it that juvenile has not been subjected to any “Illegal detention, or torture or ill
treatment” by the Police or by any person. And if Board finds or has reasons to believe that it
has been done, Board shall pass appropriate orders in case of any such allegation/ill treatment
after recording complaint or statement of Juvenile in this regard. All the proceedings are to be
conducted in the simple possible manner in the child friendly atmosphere where child
understands the language.57

While the inquiry is initiated, the juvenile is to be informed of all his rights and procedures under
the Act. All possible assistance is to be granted to the child to enable him to call any person of
his choice over the phone or otherwise.

 The conversation with the juvenile for the investigation has to be child friendly. Only
trained Probation officers should interact and assess the juvenile.
 The police should wear civil clothes while apprehending or interacting with the
juveniles. The police should at all times have their identification proof with them which
shall be provided on demand.
 For the purposes of the assistance, the District Child Protection Unit may identify the
Voluntary organizations to associate with police and assist and aid them in counseling the
juveniles or preparing the report of the children.

57
JJA Rule 15 (1)
While interacting with the CJM, he said that once a juvenile is bought before him, he either
orders the release of child or sends the child to the Juvenile Home. However, he is not aware if
police brings all the detention cases before him. He also said that when the child is brought
before him, he does ask the child of the treatment met out to the child during detention.

However one of my respondent children (Name Withheld) has a different experience to

share. While he was arrested in November 2013, cases against him were registered in two
police stations of Zakura and Nigeen. He was detained with adults in the police station and
being unaware of a law like JJA, he did not contest the same. He says after his family was
harassed lot of times by coming to his home and threatening to detain his father, he
surrendered. After the arrest he was once taken to the S.P’s office where S.P was not present.
He was beaten there with the rod embedded with pointed nails. And he never revealed this to
the Court only because he was scared of the consequences it may have on his release.

On asking CJM, if ever his court has passed an order against any police person for misbehaving
or ill treating the child, he said that no such complaint has come to him during the hearing till
now. However, on the same day, of interviewing the CJM, I saw by myself in the court premises
that children in one of the court brought by police were handcuffed, which is absolutely against
the law. I even brought this to the notice of CJM, in our conversation, he said unless this is
brought in his notice, how will he act.

The fact that no complaint comes against any policeman for any ill treatment of child is because
the family and the child is under the belief that if they complaint it will complicate the case and
will have dire consequences on the case of the child. There are numerous occasions when the
police behavior with the children has come under criticism yet no formal complaint has been
made.

Since no JJB exists, so CJM performs almost all functions of the Board which it is capable of.
Ordinarily CJM has to deal with plenty of normal cases that come in his court and dealing with
juveniles is an additional duty. It over burdens the CJM court, given the fact that all courts are
already over loaded with the cases on daily basis.
JJA provides that every child bought before the Board is to be given a fair chance of being heard
by Board and shall be allowed to participate in all proceedings and the Board is duty-bound to
ensure that the child is represented by the lawyer of his choice or otherwise by a legal aid lawyer
and child be allowed to interact with the lawyer before the hearing is conducted by the board.

The child shall be explained the contents of the allegations against him and his detailed verbatim
response should be recorded and the Board shall make it sure that the Juvenile is not coerced or
influenced to plead guilty. In the cases where the punishment of offence is lea than 7 years for
adults, they may be disposed through summary proceedings or inquiry, however while the
offences entail punishment more than 7 years imprisonment for adults, the due process of inquiry
in detail may follow.58

On speaking to a child (Name Withheld) undergoing trial in CJM court, he said that the
atmosphere in the Courtroom is intimidating. When he enters the courtroom, police is already
present there and it becomes difficult to understand what is happening in the court. He said
that he is frightened to speak anything in the court. He says,” I do not feel trouble-free to
speak in the court. I am always conscious that anything I say may be used against me and it
will prolong my hearing.”

Since the hearing happens in an open court, it impacts the psychology of the child. In the
circumstances where police enjoys unaccountable power to deal with anyone, the outcome is
expected. Children are dealt very cruelly. The principle behind the JJA is to preserve the
childhood of the children and have a child centered Approach which results in holistic
development of the child. Yet it remains only a principle in the legislation than an approach in
implementation.

58
JJA Rule 15 (2)
 Another child (Name Withheld) had the same story to share on being asked whether he
speaks in the court room. And in addition to that the child said that even police had directed
him not to speak against any action of the police. He said that after detention just before we
would be taken to the court, police asks us to either keep quiet or accept the accusations and
police tells us it will make the case easier for us and our families. We are lined up in the
courtroom and made to feel ashamed as if we have committed any terrible immoral act. It
frustrates me how we are treated but I have no option but to do as asked. I am more
concerned about security of my family.

Further, the JJA provides that the investigation officer shall investigate the issue and submit the
report within 60 days in case the punishment for offence is less than 7 years. And where the
punishment is imprisonment of 7 years or more, the investigation report is to be submitted within
90 days from the date of apprehension.

Under section 15 of the Act, the inquiry is to be completed within 4 months from the date of
commencement.

While the law provides that the investigation against the child be completed within a given time
frame, it hardly happens that way. The cases initiated in the year 2013 still are under way
pending investigation reports.

The CJM says that police is already burdened with the

maintenance of Law and Order and ordinary criminal justice Police lacks the training
system and the investigation of cases of juveniles is add on and sensitivity to deal
work on them. They are not sensitive to the issues of with the children: Chief
children. They lack any kind of the training and hence it Judicial Magistrate,
reflects in their behavior towards the cases against Juveniles. Srinagar Sadar Court

And due to delayed investigations, the enquiry to be completed within 4 months does not
conclude within stipulated time. Hence the disposal of case is delayed.
5.3.2 Claim of Juvenility and Determination of Age

By the provisions of the JJA, if in any case, any accused claims to be juvenile before a court, or
court believes the person to be a juvenile, Court shall make an enquiry into the matter and take
relevant evidences as would be necessary to determine the same.59 The law says that the claim of
juvenility can be raised before any court and the same shall be recognized at any stage, even if
the case has been disposed of. It also extends this protection in the situations were Juvenile has
ceased to be a juvenile but was juvenile at the time of doing the act and even before the Act itself
was passed. And consequently the juvenile will be forwarded to the board for passing
appropriate order and the sentence in the matter and any order passed by court will be deemed to
have no effect.

The age of the juvenile produced before the Board shall be determined within a period of thirty
days from date of production. The juvenility will be determined on the basis of physical
appearance or the documents available. The documents include “birth certificate” issued by a
Corporation or Municipal Committee or any other notified authority, or the Matriculation or
equivalent certificate or a certificate issued by Medical Board.60

In the instances where the exact assessment of the age is not possible and cannot be done, the
benefit of doubt shall be given to the juvenile by considering his/her age on lower side within the
margin of one year.61

The whole application of JJA in any case depends on the age of the person apprehended. If the
child is below the age of 18 years at the time of commission of an act against the law, he/she
shall be dealt under the JJA. So the relevance of the JJA comes in scene just when the person
apprehended claims the Juvenility. As per the law, whenever any apprehended person claims to
be juvenile before the court or court believes the person to be Juvenile, the same shall be
enquired into.

59
JJA Section 8
60
JJA Rule 74
61
JJA Rule 74
But on speaking to the children and to the lawyers, this does not seem to be followed as a rule.

Police does not acknowledge that the person is child and does every possible act to prove the
person an adult. Advocate Shafqat Hussain says that children are not given the benefit of age
as afforded by the law. He adds that even after getting the valid documents to prove the age of
the minor, police persistently attempt to show that person is minor. In the police station even
after showing the documents establishing the minority of the child, police does not treat the
child as minor. Instead the child is detained with the adults.

This is done by police deliberately, says advocate Shehzad Hamdani. He says that police in order
to show results to the department of having acted against the protestors catch hold of the
children and it’s easier for police to intimidate and coerce the children than elder youth. As per
Advocate Shehzad, police tries tooth and nail to oppose the juvenility of the person before the
court. He says, it’s just recently that families have become assertive in maintaining the juvenility
of their children after the news reports have come up about the Juvenile Justice Law in the State
otherwise neither police nor the court would have any mention of JJA in the proceedings.

This only shows the prejudice of the police towards the children. And also demonstrates the
callousness of the State to deal with the children, where the interests of the children are always at
stake.

5.3.3 Life In Observation Homes and Special Homes

During the period when Juveniles are under the custody in Special Homes, the parents and
relatives of the Juvenile shall be allowed to visit their child once in a month, or in any special
circumstances the frequency of visits can be allowed to be more than one, at the discretion of the
Officer-in-charge as per visiting hours laid down by him. The duration of visit shall be of one
hour minimum and can be extended by the Officer-in-charge at his discretion.62

62
JJA Rule 55(1)
Juvenile may also have telephonic conversation with his parents, guardian or family members or
the counselor and lawyer, under the supervision of the Child Welfare Officer when requested by
the juvenile, to a maximum of two calls in a week. A record of those calls shall be maintained.63

Where the juvenile is required to take a leave from the observation Home or Special Home, the
juvenile or the parent or the guardian of the juvenile may submit an application to the Board
requesting for the release of the Juvenile on leave, stating the purpose and period clearly. And
while deciding on the application the Board shall hear the juvenile or parents or guardians of the
juvenile. The order of release may be passed if the Board finds it in the interest of the child. In
the order issued for release of the child, the period of leave is to be mentioned and conditions
should be attached to the order whose fulfillment is necessary for such leave.64

The juveniles put in the Juvenile Home of Kashmir have little scope of staying in touch with
their families. In the only Juvenile Home in Kashmir, the children from all the parts of
Kashmir are placed and it becomes difficult for families to meet their wards during that time
period.

Advocate Shehzad Hamdani says that children in Juvenile Home meet their families on the day
of hearing itself and hardly otherwise.

The child respondents of my research were all detained in the Police Stations and hence none
among them could speak about the life in the Juvenile Home. However, there were reports of ill
treatment of a minor in the Juvenile Home as reported by the local media65. It involved denying
food to the 12 year old child in addition to forcing the child to clean the toilets.

63
JJA Rule 55
64
JJA Rule 59
65
Hussain, Ashiq . "Kashmir juvenile home houses two-third ‘stone pelters’." Kashmir Latest News Breaking News
Photos and Features Free Press Kashmir. http://freepresskashmir.com/kashmir-juvenile-home-houses-two-third-
stone-pelters/ (accessed August 5, 2014).
5.3.4 Observations

The Juvenile Justice Act in theory may be believed to be a beneficial legislation which protects
and preserves the childhood of the children, yet when its implementation is checked on ground
one can conclude that it is one of the most violated laws in Kashmir. Not just newly enacted JJA
but also the JJA of 1997 stands unenforced and unimplemented, reasons best known to
Government. Yet we can come to the conclusion by the behavior of the agencies that there is no
willingness of the State to implement the law itself. The State is giving more importance to the
type of offence that a child may be involved in instead of the development of the child. The
guiding principle of the UNCRC and the JJA is that the child should be the priority and not the
offence that the child is involved in. The JJA is not merely a beneficial legislation, but a remedial
one and needs to be implemented in that spirit without any prejudice, discrimination and bias.

Through such a behavior of State it is apparent that State does not consider children as subjects
of rights but treats them as second class citizens and is not bothered of the welfare of children. It
instead is treating children as potential threat to itself and is trying to project children as danger
and hence incarcerating the children and depriving them of safeguards that they deserve.
 CHAPTER 6

PUBLIC SAFETY ACT AND JUVENILE JUSTICE ACT:

NEGATION OF PRINCIPLES AND UNDERTAKEN
RESPONSIBILITIES

6.1 Introduction

This chapter analyses the provisions of the Jammu and Kashmir Public Safety Act and the scope
of its misuse by the authorities at the helm of affairs particularly against the juveniles who are
alleged to have participated in the protests against the State to express their dissent over
injustices and suffocations they have been living in since their birth. This also includes two case
studies of juveniles who have suffered amongst thousands of others from preventive detentions
within various police stations and the adult jail, which is the blatant violation of the Juvenile
Justice Act in the State.

6.2 Provisions of PSA and Scope of Misuse and Abuse

Jammu And Kashmir Public Safety Act, 1978 was passed as a law necessary in the interest of the
security of the State and Public Order. While this is the rationale of this law, the PSA has been
widely used in the state of Jammu and Kashmir by the authority that has come under the
criticism mostly for being arbitrarily used against the minors in the state. The use of PSA against
minors makes it a matter of my study in the context of inconsistency between the rights based
legislation Juvenile Justice Act and the Public Safety Act.

A recent RTI application filed in the Kashmir reveals that 707 FIRs have been lodged against
Juveniles since 1988. And PSA has been imposed on 16329 persons since 1988 which includes a
large number of children. Until 2012 amendment of PSA, any person could be detained under
PSA which included minors. It was only after The Jammu and Kashmir Public Safety
(Amendment) Act, 2012 that persons under the age of 18 years were excluded from its scope, yet
the minors continue being detained and arrested under PSA where authorities reject the person
being a minor prime facie. A simple reading of the Act exposes the scope of arbitrary use of the
law.

The Act under the section 8 mandates the detention of any person where the Government is
satisfied that the person may act in any manner prejudicial to the security of the state or public
order. Nowhere does the Act define what the Security of state or the public order means. The
power under this Act is given to Divisional Commissioners and District Magistrates to issue the
orders. This section has enormous scope of being using capriciously, which has even been
bought to the notice by various reports while analyzing its implementation. Children become
target of Government when they participate in any kind of protest in the valley. To prevent the
further participation by the child, and coerce him, PSA is used by the Govt. Though the
Amendment in 2012 prohibited the detention of a minor under this law, there have already been
large number of detentions of minors under PSA and continues to be. The Government authority
shows the person to be above 18 years of age in its detention order and refuses to accept
otherwise. This has been proved by the reports and also by the High Court Orders that quash the
PSA orders against minors when a Habeas Corpus petition is filed before them.

The section 11 of the Act adds that an order will not be invalidated or inoperative merely
because it has been passed by any officer outside his territorial jurisdiction or the place of
detention is outside such territorial limits. This has been used by the Government to secretly
detain the minors without their family getting to know about the detention and hence being able
to secure the release of minor until Govt. gets to take any confession from the minor or force
minor in naming other children who might have been involved in any activity of protest.

The Act further allows the grounds of detention to be not disclosed to the detained person
immediately after detention till 10 days.66 Until those 10 days pass, the child already undergoes
fear-psychosis and torture that it affects his whole life to come. After the Amendment Act of
2012 the grounds shall be disclosed to the concerned persons within ten days in the language
which the person understands. In the case of the minor, it remains irrelevant to explain grounds
of detention when he cannot be represented by the legal practitioner. However, clause 2 of the
Section 13 mentions that Government may not disclose the grounds of detention where it finds

66
PSA Sec 13 (1)
that against the public interest. Here also what public interest means has not been explained or
defined. This allows the arbitrary use of the power.

And the section allows the person to make a representation against the order of Government. But
this representation is not compulsory for all detainees. And the representation is not allowed
before a judicial authority but an executive authority. 67

The section 15 of the Act directs the Government to place the detention order and grounds for
such detention before the advisory board within a period of four weeks after the detention and
also if any representation has been made by the detained person. Advisory body has to submit its
report within six weeks to the Government, which was eight weeks until the Amendment in
2012. Sec 16 Also if the board finds that the non-disclosure of the facts is not against the public
interest, on the representation made by the detained person, it will convey the same to the
Government which would be binding. And no detainee can be represented by any legal
practitioner while any representation.

Further where the Board finds that the detention does not have sufficient grounds, Government
shall revoke such detention order and the person so detained shall be released immediately.68

The PSA allows the detention without any trial for a period of three months where the person is
acting in a manner detrimental to the maintenance of public order, but is extendable to a period
of twelve months. And any person considered threat to the security of the state can be detained
for a period of six months, which can be extended to a period of two years. Before the
amendment of 2012, this was exclusive one year for a person considered harmful for the
maintenance of public order and two years for a person considered threat to the security of the
state.

Section 18 clause 2 allows the Government to modify the detention order at any time. And under
Section 19 allows the detention order to be revoked or modified by the Government. It also
allows the fresh order of detention against the person on the same facts as an earlier order of
detention which might have been cancelled on account of any technical defect.

67
PSA Sec 13
68
PSA Sec 17
The various clauses of PSA leave the huge scope for misuse and abuse of the Act. The
Government uses this section to override any institutional and procedural safeguards guaranteed
to the people by ordinary Criminal Justice System. This law allows the Government to book any
person merely on the grounds of suspicion and against whom no concrete proof of guilt exists.

This Act disallows people from any legal recourse. The law is misused by detaining persons at
unknown places while their families are not even informed about such detention. The Act allows
the person to be detained at any place and to be detained at any place. This jeopardizes the
security and life of the detainees while Kashmir has already seen Enforced disappearances of
more than 10,000 persons as claimed by organizations working on the disappearances. These
detentions are mostly done without any sound reasons and the Act also lays that no order shall be
deemed to be invalid or inoperative merely because one or some of the grounds is or are vague,
non-existent or non-relevant or not connected or not proximately connected with the persons or
invalid for any other reason.69

The families of the detained persons are not even allowed to meet the detained persons. This has
often resulted in the practice of torture and bad treatment towards the detainees. The Act lays
that No suit shall be initiated against any person for anything done in “good faith” in pursuance
of the provisions of this Act. The word good faith saves the faces of those who exploit this law
against the public spirit. This law is misused for “revolving door detentions” which is allowed
through section 19 of the Act. Whenever a detention order is quashed by the High court on writ
petition, the re-arrest of the person is done on new PSA order which may or may not have new
grounds. Having no other recourse, so many Habeas Corpus petitions are filed, that the Srinagar
High Court has fixed one day of the week reserved for the Habeas Corpus petitions.70

This all happens with the children in Kashmir, who are detained or arrested on the pretext of
disturbing public order. There are reports by Amnesty which gives detailed proof of children
below 18 years falsely mentioned as 18 or above 18. The authority rejects to accept the person a
child and keeps the child in detention for long continuous periods, unless the family files a
Habeas Corpus petition in the Srinagar High Court, and court quashes the PSA for the person

69
PSA Sec 10A inserted by Act IV of 1985
70
Amnesty International, A 'LAWLESS LAW' (United Kingdom: Amnesty International, 2011).
being a minor. This has happened while the previous Juvenile Justice Act which defined child
(boy) a minor under the age of 16 years and continues to happen even after new JJA has been
passed in the state and has enhanced the age of minor from 16 to 18 and has made JJA override
all other laws.

6.3 Case Studies

6.3.1 Case of Asif Majeed

In March 2013, Asif Majeed a minor, of Hazratbal Srinagar of Jammu and Kashmir was slapped
with Public Safety Act and detained in various police Stations across Srinagar starting from
Zakura Police Station, to Nigeen Police Station, Lal-Bazar Police Station and Soura Police
Station in turns and rotation, which he still does not understand why?

Asif Majeed, a 16 year old boy at the time of arrest, was the sole bread earner of the family. He
was detained by police on way to his employers’ shop where he was working to support his
family. The charges against Asif as per the detention order were “threat to the Peace and Law
and Order” as his detention order under public safety Act read, ignoring the juvenility of the
person and the qualifications under Section 8 of the PSA after Amendment in 2012.

While the Government authority refused to accept Asif as a juvenile when the issue was raised
by parents, the record in Government Boys Middle School Gulabagh, were Asif has been a
student showed his Date Of Birth as 30th April 1997 which was verified by Zonal Education
Officer of the Gulabagh (I have copy of the certificate issued).

Asif has many anecdotes of sufferings and pain to recount during his detention, which he has
gone through during detention. At one point of time, during detention at Lal-Bazar Police
Station, Asif was allowed to spend three hours with his family, which Asif says was a kind of
understanding and setting between family and Police persons in turn of some consideration paid
by parents of Asif. Asif was asked to reveal the names of children that participated in protest
against the State.
Asif’s family tried reaching to everyone in position they thought could help, yet to no help of
theirs. The list of FIRs that were filed against Asif seemed to be unending to his family, bailed
out once he would be rearrested outside the Court Premises on FIRs by different Police Stations.
This is why he was kept in custody by circulation between various Police Stations.

Asif remembers that Police would direct him to tell lesser number of days of detention before the
Court when asked by Court, assuring him of his release at earliest. Asif used to follow what
police would say, after all what can be expected from a child who remains within the custody of
police for a long time, other than following the direction of police.

Asif’s detention under PSA was quashed by the Srinagar High Court after a Habeas Corpus
petition was filed by his family.

6.3.2 Case of Waseem Ahmed Sofi

On May 3, 2014 Waseem Ahmed, a minor from District Pulwama of State of Jammu and
Kashmir was booked under Public Safety Act and was lodged in Sub District Jail Kathua
subsequently. Before the PSA order, police had registered FIR against him on various charges
under Ranbir Penal Code and was arrested from Hospital while Waseem was undergoing some
treatment.

Waseem, age 16 years as per School leaving certificate which shows 2-9-1998 his Date of Birth,
has been charged for being “Prejudicial to the maintenance of Public Order” while the grounds
of detention read “Preventing the detenue from acting in any manner prejudicial to security of
State”. Before the order was passed the minor was in custody of the police, so how could he
prove prejudicial to the security of State, argues his Lawyer at Srinagar High Court.

The lawyer also points towards the Section 8 of the Public Safety Act which provides for
prohibition of detention of persons below the age of 18 years, and argues that the detention order
is irregular and void. And more importantly, Waseem is a minor and under the Juvenile Justice
Act 2013 he cannot be detained in any adult jail, howsoever heinous crime he may be involved
in. the Government has lodged him in one of the most dreaded jails of Jammu and Kashmir,
almost 400 kms away from his Home.
His family has filed a petition for Habeas Corpus before the Srinagar High Court, to seek
produce the minor before the court, writ of Mandamus for release of the minor and an inquiry
against the State for misrepresentation of age of the minor.

On 20 May, 2014 the High Court directed the Government authority to shift the minor from
District Jail Kathua to Juvenile Home in Kashmir, which till July 15, 2014 did not happen
amounting to more than two months detention of the minor in the Adult Jail.

CONCLUSION
While World has grown tolerant and accommodative towards the children and their involvement
in any kind of delinquency, there still exist places like Kashmir where children are victimized
and persecuted for their opinions and expression of those opinions instead of being treated as
children entitled to a safe and healthy childhood. The laws like Public Safety Act which
international organizations have declared as Lawless Less71 being used against children takes no
rocket science to understand the intentions of the State and its nature.

The law like PSA is a law which allows State to deprive its citizens of liberty for months
together without any procedural safeguards and legal recourse to the courts. It even justifies
through its provisions detention merely on suspicion and provides security from any suit or
proceedings against the authority ordering detentions even if order is proved illegal. The
practices of revolving door detentions, Incommunicado detentions, Lack of information of
detention the families of detainee, Fabricated Grounds of detention and detention without legal
basis is the threat to the Right to Life of every person in the Kashmir and minors face danger
under this law even more given their additional vulnerability to the state of conflict in Kashmir.

71
Amnesty International, A 'LAWLESS LAW' (United Kingdom: Amnesty International, 2011).
 CHAPTER 7

RECOMMENDATIONS FOR LEGISLATIVE REFORM

7.1 Introduction

This chapter looks into the scope of proposing the Legislative Reforms in the JJA, JJA Rules,
and Procedures which could facilitate the implementation of the J&K Juvenile Justice Act.
Chapter 4 and Chapter 5 have already dealt with the analysis of the various provisions of the Act
separately at Institutional Level and at Procedural Level, and their status of implementation
respectively. And those chapters also include the cause of implementation challenges. This
chapter attempts to reflect on the understanding from the field experience to propose the
Legislative Reforms in the JJA and PSA.

The Legislative Reforms will be provided to cover the Reforms in Institutional Mechanism and
Reforms in Procedural Mechanism, and also few additional recommendations. As model
legislation, JJA is a finely framed legislation, but what makes difference is its implementation.

7.2 Recommendations

1. Inclusion of the provision for holding the Concerned Department of Social Welfare
responsible for lack of establishment of infrastructure. Fine can be imposed on the
Department for not creating the infrastructure.
Reason: Even after more than a year has passed, the appropriate mechanism as provided
under the JJA has not been created. The JJA Rules should be amended to make the
creation of Infrastructure compulsory within a period of next 3 months.

2. There should be a provision for recruiting Special Legal Aid Lawyers under JJA to assist
the juveniles.
Reason: Children are entitled to the free legal Services under the J&K Legal Services
Authorities Act. But it’s very rare, that they get those services. In order to be well
 represented Child protection Units should ensure that the Lawyers are recruited under the
Act for the services to give legal assistance to the children.

3. The registration of FIRs against the juveniles should be prohibited under the JJA. A
complaint against the child should be the only information maintained.
Reason: The filing of FIRs against the juveniles proves detrimental to their activity
records in life and hinders them from spending decent life while children are bothered by
the authorities even post acquittal. The record may be kept by the police where juveniles
are involved in the delinquent acts, but the practice of registering FIR should be stopped
in best interests of children.

4. A clear provision should be included in the JJA to assume the Juvenility of child unless
proved otherwise.
Reason: Whenever a child is apprehended by police, it is observed in the study, that the
child does not get benefit of juvenility unless claimed and proved by the child, parent or
anyone and more often police refuses to accept. The rule should be that once family
claims the person to be a juvenile, presumption should be that person is a child and
benefit to child be given, unless Police proves otherwise.

5. An express provision within JJA must be included to assume the innocence of Child
before Guilt is proved.
Reason: As observed in the study, children become soft targets by the police and
authorities. In order to ensure that children are not harassed and to make them less
vulnerable, presumption of the innocence of the child should be followed, as is in the best
interests of the child. Even innocent until proved is the important guiding principle of
Criminal Justice system, but the vulnerability of children is such that they do not get
benefit under this principle.
6. For the detention or arrest of a child, Police should get permission from Court or JJB to
apprehend and detain the child.
Reason: In order to keep a check on the misuse of the power against the child, no child
should be detained or arrested without a formal permission of the Court or JJB.
Whenever police has a reason to believe that any child is involved in any activity against
the law, police should prove enough of grounds of the same and Court or JJB should be
satisfied about the same beyond any doubt and then only a child should be detained. And
while the grounds for detention are being proved, child should be allowed to live at
home.

7. Provision to punish the police official, where it is proved that a child was detained and
arrested without any substantial grounds with malafide intentions, with fine and
imprisonment.
Reason: In order to keep a check on the misuse of authority, if a child is detained or
arrested without substantial reasons to believe his involvement in an act against law, the
person arresting or ordering the arrest must be punished for depriving the child of liberty
violating the right of liberty. This will help in keeping a check on the use of power
prejudicial to rights of a child.

8. The JJA should include the provision of granting adequate compensation to the children
as a matter of right, where the child is detained in adult jails, Police Lockups or detention
has been on wrong grounds.
Reason: This is important in order to compensate the child for depriving him of his
protection under the law, and can act as curb on the misuse of power against the interests
of the children.

9. The words ‘Police, Arrest, Detention, Charge-sheet’ should be omitted from the
legislation and a separate identity should be given to those words used.
Reason: For the benefit of the children, children may be exposed only to the people who
do not impact the psychology of children. When we even mention word police, it has its
 own implications on the children who perceive police not to be friendly. Taking note of
this, the word police can be omitted from legislation and can be named like “Welfare
Unit” or otherwise.

10. Minimum number for enrollment of Child Rights Organizations should be laid in the Act
for the participation of organizations in the rehabilitation practices of children.
Reason: This helps in engaging with children in a healthy manner where otherwise
children are not comfortable in interacting with the authorities who come on behalf of
State. This ensures a sense of trust in children to take active part in rehabilitation which
helps in their development.

11. The legislation should provide for Quarterly survey reports within criminal justice system
institutions in a year to ensure that no juvenile is detained in Adult jails with the
mandatory involvement of Child Rights Organizations.
Reason: Whatever kind of checks and balances may be formed to ensure proper
implementation of a law, there are always loopholes to escape the obligations. But it’s
equally essential to make sure that the law is implemented and steps should be taken to
secure the implementation. Through the various estimates, it is known that juvenile
continue to be detained in Jails and Lock-Ups, and it’s important to put an end to this
practice. By keeping a Caveat for the same and involving organizations can prove
supportive in protecting the rights of children.

12. The act of detaining any juvenile in jail or Lock Ups should be made punishable, if the
review reports find so.
Reason: If the Quarterly review report finds that juveniles are still detained in jails and
police Lockups, it would be deliberate violation of the law which cannot be allowed to go
ignored. This will prove productive in order to curb the arbitrary detentions of the
children, as acts of vengeance and target arrest practice as observed from the field study.

13. Where the Police defaults in informing the child of his rights under JJA and informing
the family of detention, it should be made a penal offence under the Act.
 Reason: The objective of the law of JJA is to provide care and protection to the child.
This includes every protection including the right to be informed of the rights and
information conveyed to family about detention. Whenever Police fails to deliver on this
right, the act of failure should be taken as default of the duty and should be made
punishable.

14. The Act should incorporate a Grievance Redressal Mechanism which would include the
Child Rights Organizations taking up the complaints and processing them.
Reason: After doing this field study, the children seem to have a trust deficit with the
State agencies. And in order to work towards implementation of the JJA, it’s important to
have impartial bodies being part of the delivery mechanism. Hence, involving the Child
Rights Organizations would be helpful in building up the rapport with the children and
bringing in notice the misuse of the power, if any.

15. The JJA Rules can incorporate the option of feedback mechanism from the children every
month on the terms of anonymity to improve on the services within the institutions
created under JJA.
Reason: Inclusiveness is important to get along the children and undertaking what
children feel is equally important while dealing with the Children. Children have every
right to express themselves, and this right needs to be protected through the process
anonymity. This right also needs to be respected, and hence children should be allowed to
participate in the decision making process that affects them. Engaging children will prove
productive in the rehabilitation of the children.

16. The provision for ensuring that the child is able to attend his School during the period of
Stay in Observation Home and Special Home.
Reason: Whenever a child is kept in the Observation Home or Special Home, if child is
School going, the chances are him missing to attend the school. And the JJA does not
address this problem. There should be a provision to ensure that even during the captive
period in Observation Home or Special Home; Child should not miss his school.
17. The provision to provide an alternate service of schooling where it’s not possible to
continue sending child to attend his school.
Reason: When it is felt impracticable to send a child to his previous school to continue
attending school, alternate arrangement to ensure his education is not impacted due to his
detention should be made. This should be done keeping in mind the Rehabilitation
purpose of the detention instead of being a punitive approach towards the child.

18. The provision for admission of children to vocational training schools where it is found
that the child is not undergoing formal education.
Reason: When a child is sent to the Observation Home or a Special Home and it’s found
that Child is either a school dropout or has not attended the school, arrangements should
be made to draft a plan for imparting basic elementary education while the child is in
Special Home.

19. The Child Protection Units should be mandated under the JJA to organize Periodical
Legal Literacy Camps within their Jurisdictions in the Schools.
Reason: To know that I have a right is equally important to being entitled to the right.
Unless a person knows of the entitlement, the right itself does not have much right. The
maximum number of children can be found in schools presuming that mostly children are
admitted in schools. So that can be a significant space to create the awareness of rights to
the children which can assist in claiming the right.

20. The Rules of JJA may be amended to include involvement of children living in
Observation Homes and Special Homes in the Community Service Practices.
Reason: One of the objectives of keeping Children in Special Homes is their social
integration and this can be made possible by involving children in the actions which
develops a social sense in the children and helps them in understanding the importance of
the social values.
21. The Rules of JJA may include establishing the Libraries with variety of services for the
perusal of the children to enrich them with the productive Information and Knowledge.
Reason: Reformation of children needs various techniques keeping in mind the nature of
reformation required. Education always has an important role to play. Equally important
is to expose children to outer world through various modus operandi and this can happen
through providing them resources. The time children spend in Special Homes and
Observation Homes should prove beneficial to their development.

22. Repeal of the J&K Public Safety Act which facilitates the arbitrary administrative
detentions in disregard of the right to liberty and protection under JJA to the children.
Reason: The PSA has been used arbitrarily more often than not. And its use to book
children has jeopardized the life and liberty of enormous number of children as provided
under the data in previous Chapter. An act that has been misused more often than any
beneficial use, and has the scope of shielding the defaulting authority has no justification
to exist in the progressive societies, whatsoever may be the level of conflict between
public opinion and the State.

23. Suit or proceedings should be allowed for an arbitrary action taken by an authority under
PSA.
Reason: PSA allows the administrative detentions without any trial or procedural
safeguards. This has proved fatal as found by the study to various lives in the Kashmir,
especially children whose life, career and future all are ruined under the blight of PSA
detention order. This all happens under “No apprehension to expect consequence” of
arbitrary detention order issued. Until the PSA is not repealed, this section within PSA
should be repealed in order to put atleast some checks on the authorities whose arbitrary
actions have life time consequences on the children’s lives.

24. Right to Education Act should be framed and enacted in the state of J&K to ensure that
elementary education is made available to all children.
Reason: Education is a backbone of the progress of any society and all children should
be able to access education without any social or economical barriers to it.
 CHAPTER 8

NATURE OF THE STATE: CONCLUDING REFLECTIVE

REMARKS

The key purpose of this study was to examine the steps taken by the State for implementation of
the Juvenile Justice Act and look at the gaps and other impediments that exist as barriers in the
implementation of law.

This study has tried to assess the implementation of the JJA, by examining the various factors
that have influence on the execution of a law. From the steps of enactment of law to notification
of rules, establishment of the institutional mechanism, specialization required etc determine
mainly the implementation status of the law. And for all these factors to exist, what plays an
important role is the attitude of State towards the implementation of law.

Knowing how much efforts were put in force to pressurize for enactment of the present JJA in
Jammu and Kashmir can give a starting idea about the willingness of the State to bring in this
law and safeguard the rights of the children who have been silent victims of the conflict in
Kashmir. In the backdrop of the conflict of Kashmir, the children have been core exposed section
of society amongst the other vulnerable groups of the
Kashmir. And in such a situation, what Role State has
played to protect the childhood and innocence of children Jammu and Kashmir is
declared “Disturbed
can to a great extent help in comprehending and knowing
Area” under Section 3 of
the nature of the State. the Armed Forces
Special Powers Act,
The state of Jammu and Kashmir is declared a disturbed 1990
area under the Armed Forces Special Powers Act, and has
the laws like AFSPA and PSA in force.

In such situations, the State is expected to maintain a balance between Law and Order situation
and the rights of people, without infringing the rights of its people especially those who are more
susceptible like children. Children are universally accepted to be entitled to the care and
protection from the risks they may be exposed to in everyday life. And in a situation of conflict,
extra prudence and security is needed to facilitate their positive development. This is what
Beijing Rules and UNCRC provides in its guiding principles for the nations to follow for
providing a constructive space to the children in all circumstances, be that a child offender or a
child victim.

The guiding principles of the UNCRC, the set of standards to provide for care, protection and
rehabilitation of the children, obligates its State parties to deal with children in the manner that
ensures that the best interest of the children are taken in consideration. These principles which
are based on the doctrine of best Interest of children include, Principle of Non-Discrimination,
The Right to Life, survival and Development, and The Children’s Right to Participate. This
approach envisages child as a “Subject of rights” who is able to form and express opinions, to
participate in decision-making processes and influence solutions, to intervene as a partner in the
process of social change and in the building up of democracy. This advancement is supposed to
change the approach of legal mechanism from punitive principle to the reformatory principle
towards children, in the best interest of children.

The important aspect of this advancement is that the children are recognized as vulnerable group,
are entitled to the safeguards, and are endowed with the right to participate actively in the
development of society for building up democracy.

While this is about the children all over world, what is the status of children in Kashmir was the
matter of study here. A situation where curfews and strikes is a routine and where children live
amidst of turmoil, children are more prone to respond in such circumstances. The forms of
responses vary and type of participation in such situations is again dependent on variety of
circumstances that a child lives in and the resources available to the child to respond. The
participation in any kind of expression of response also depends on the capacities of the children
frustrated with the situations, and so a child may respond through different forms of expression.
Kashmir has seen expression of discontent through paintings and Graffiti on the roads and walls
and also through participation of children in protests on the roads. This study has tried to analyze
the response of State when children engage in the form of protest that is in conflict with law.
After examining the implementation check list, like status of establishment of the Juvenile
Justice Board, Special Police Units, Child Protection Unit, Observation Homes, Special Homes
and the Management Committees, it’s distressing to have found that except a single Juvenile
Home, no other institution has been created to facilitate the adjudication of the cases of
Juveniles. And the reasons found out were out rightly pointing towards the non-willingness of
the State to create the institutional mechanism for the care and protection of Children. And what
makes State to adopt this behavior, is its prejudicial attitude towards the children. Of the total
242 children, called inmates, lodged in the observation home from 23-09-2011 to 30-09-2013,
140 children are categorized as Stone Pelters and they over number the children involved in
ordinary crimes.

The category of stone pelters is that category of children who are booked for offences which
state considers against the law and order and security of State. This makes state hostile towards
the children and what can be understood as act of vengeance, the State cares least to invest in the
institutions that would protect and nurture the childhood of children as per the requirements
under the JJA.

This is the blatant violation of the rights of the children under the Juvenile Justice Act which
entitles them to a safe and secure environment even if they are involved in any kind of
delinquent acts. This only shows the anxiety of the State that it even considers the children as
potential threat and is incapable of guaranteeing the protection to the children.

This does not end here. The State after having chosen not to create any institutional safeguard to
the children also appears to prefer contravening the procedural
protection assured to the children under law which does not
Of the total 242
require any investment but only readiness to comply with. children, called
inmates, lodged in the
On taking a note of procedural security available to the children observation home from
under JJA, what children suffer from is upsetting and appalling. 23-09-2011 to 30-09-
2013, 140 children are
Starting from rejection of bail to the child, apprehension by the categorized as Stone
police in uniform, information of detention to the family, Pelters

detention in police stations and jails, JJA stands manifestly

dishonored and violated by the State.
Under the JJA, except in the interest of the child, every child is entitled to the bail. But as
observed through data collected, this right is not slightest entertained. It continues to the point of
detaining children in the police stations for days, weeks and months together. Children witness
awful harassment in the hands of police. Police is least sensitive towards dealing with the
children. From insensitive remarks to physical beating, everything done in the premises of the
police lock ups goes unnoticed by the authorities who are obliged to respect the child rights.

The torture and the ill treatment met out to children in the places of detention; to take their
confessions or force them to name children participating in protests is reprehensible on the part
of the State. Instead of ensuring safety of children, state allows their abuse. During the study it
was also found that children are sexually harassed and exploited, sodomized inside the detention
centres and State has taken no action against the erring police. The right not to be put into an
adult jail is the basic right under the JJA yet the children are lodged in the jails with adults. The
authorities reject to accept the person to be a child instead misrepresents the child to be above the
age of 18 years and incarcerates the children. This too gets unnoticed even when Srinagar High
Court has quashed innumerable detention orders on the basis of juvenility.

While the children are detained in the police lock-ups,

families are not informed about the same until families
initiate searching the children. What does this speak of the
Children are detained
nature of the State? Nothing, but State’s indifference to the inside the Police Lock
Ups instead of being sent
duty it bears to the children of the welfare, safety,
to Juvenile Home which
development and progress. is in contravention to the
JJA.
It shows State’s apparent intention to daunt the children
from participating in any kind of expression of dissent.
Records only show that children are treated as hardcore criminals and State does not act towards
reforming the children but instills fear in them which they think will prevent children from
participating in protests. Was that the case, by the trend of detentions of the children, since 2008
till now children would have already given up, which is not the reality on ground.

Since the State of Jammu and Kashmir has undertaken the responsibility to follow the guiding
principles of UNCRC and enacted the JJA, it would do no harm to the State but only will add
feather to the cap of the State if it takes the undertaken obligation seriously and delivers atleast
on this front by honoring the rights of the children. The normal rule of the juvenile justice is that
development and empowerment of children, where not the offence committed by the child but
the best interests of the child is the focus. Treating a child as a devil is not fair, treating child as
an adult is not fair, the child should get his/her due fair.

To Every Child, a Childhood!

 BIBLIOGRAPHY

ARTICLES, NEWSREPORTS:

1. Ashraf, Yasir. "SMHS data on pellet gun injuries shocks Kashmir." Kashmir Reader.
http://kashmirreader.com/smhs-data-on-pellet-gun-injuries-shocks-kashmir-5800.. (accessed July 28,
2014).

2. Gurkoo, Mohammad Owais. ""More than 1000 minors booked under PSA in Kashmir"." The Kashmir
Walla RSS. http://www.thekashmirwalla.com/2013/05/more-than-1000-minors-booked-under-psa-in-
kashmir/#sthash.0rwx4QKj.dpbs (accessed July 18, 2014).

3. Hussain, Ashiq . "Kashmir juvenile home houses two-third ‘stone pelters’." Kashmir Latest News Breaking
News Photos and Features Free Press Kashmir.

4. John, Strauss. "Photo Essay – Kashmir: Bullets for Stones." Ceasefire Magazine RSS.
http://ceasefiremagazine.co.uk/photo-essay-kashmir-bullets-for-stones/ (accessed July 20, 2014).

5. Nabi, Abid . "In Pictures: Protests, Clashes in North Kashmir." The Vox Kashmir RSS.
http://www.thevoxkashmir.com/2013/07/21/in-pictures-protests-clashes-in-north-kashmir/ (accessed July
20, 2014).

6. Polgreen, Lydia. "A Youth's Death in Kashmir Renews a Familiar Pattern of Crisis." The New York Times.
http://www.nytimes.com/2010/07/12/world/asia/12kashmir.html?pagewanted=all&_r=1& (accessed July
26, 2014).

7. Press Trust of India. "First juvenile home set up in J&K." http://zeenews.india.com.

http://zeenews.india.com/news/jammu-and-kashmir/first-juvenile-home-set-up-in-jandamp-k_730467.html
(accessed August 5, 2014)

8. Sheikh, Saaliq. "The Pellet stories! - The Vox Kashmir." The Vox Kashmir RSS.
http://www.thevoxkashmir.com/2013/03/10/the-pellet-stories/ (accessed August 5, 2014).

9. "The Himalayan Mail." The Himalayan Mail. http://himalayanmail.com/newsdet.aspx?q=87236 (accessed

April 30, 2014).

RESEARCH REPORTS:

10. Ali, Bharti, and Enakshi Ganguly. “Juvenile Justice: Law And Practice.” Haq Centre for Child Right, 2013

11. Amnesty International, ‘A LAWLESS LAW'. United Kingdom: Amnesty International, 2011.

12. Amnesty International, “STILL A 'LAWLESS LAW'. United Kingdom: Amnesty International Publications,
2012.

13. Asian Centre For Human Rights, “The Status Of Children In India: A Submission To The UN Committee
On The Rights Of Children.” ACHR, 2003.
BOOKS:

14. Goldson, Barry, Michael Lavalette, and Jim McKechnie. “Children, Welfare and the State.” 1st ed. London:
SAGE, 2002.

15. King, Michael, and Christine Piper. “How The Law Thinks About Children.” 1st ed. Aldershot, Hants, England:
Arena, 1995.

CASES:

16. Salil Bali v Union Of India, 7 SCC 705 (2013).

17. Sanjay Suri V Delhi Administration, 414 (SC 1983)

18. Sheela Barse vs Union Of India, 3 SCC 596 (1986)

LEGISLATIONS:

19. The Constitution of Jammu and Kashmir

20. The Constitution of India

21. Juvenile Justice (Care and Protection of Children) Act, 2000

22. Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013

23. Jammu and Kashmir Public safety Act, 1978

24. The Armed Forces (Jammu and Kashmir) Special Power Act, 1990

25. United Nations Convention on the Rights of Children, 1989

26. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985
 CONFESSION OF THE RESEARCHER

In order to get a fair understanding of the implementation of law, I visited many places in Kashmir to
reach out to persons. One such visit proved fatal for me, when I visited the University of Kashmir to take
permission from the Head of the Law Department, in order to have access to the library for literature
relevant to my research. Same day Kashmir University was witnessing protests to mark remembrance of
2009 Double Rape and Murder case of Shopian. I was an on-looker of the protests for some 15 minutes
after which I continued to meet the HOD of Law Dept.

And when in evening around 5 o’clock I was on the gate to leave the University, I along with a friend
were stopped and questioned about the purpose of our presence in University by the Proctor team (Police
Wing of University). Next, we were detained by the university police without a sound ground except for
spotting us near the protest. Even though I tried each way of putting my genuine purpose of research as
reason of being in university, they continued to threaten me and my friend of the possibility of booking us
under Public Safety Act. I even mentioned being a law graduate and a lawyer which fell to their deaf ears.
It went to the extent of calling my father and putting facts distortedly in front of him under patriarchal set-
up attempting to malign my image by mentioning that in company of a boy I was found doubtfully in the
protests, and my release is possible only after a security bond to be signed on my behalf. Sopore, my
hometown is at a distance of 3 hours from the university and this person bothered my father at 5:30 in the
evening to seek my release or else I will continue to be under detention. My father, who apologized to the
officer on my behalf which I still regret, quickly directed to me to inform any of my close friends to seek
my release, in addition to telling me in a disgusted sound to spare him of such actions which land him and
me in trouble, without knowing what the situation was.

We were not allowed to use phone, until my sister managed to call the proctor and caution him of
consequences for restricting our movement and violating our right to liberty. Within some span of time, as
pressure started building up on proctor due to the continuous inquiries about our detention, he started
softening his stand and trying to put things in picture where he wanted to present our detention for our
safety and not for any other purpose. While my few friends reached, two of them signed the release bond
for me and my friend, proctor realized that he got hold of persons who were not right ones to fit in his
plan, and he was quick enough to shape the whole incident as an attempt to save us from police, which as
per him was waiting for us.
We were also made to write the undertaking that we were not harassed and no trouble was caused to us
due to the action of the university. While writing this undertaking I did make it sure that my choice of
words does express the abhorrence of being detained arbitrarily by the police.

I wonder why he would be bothered even if the police wanted to apprehend us when he tried every
possible trick to panic us with his threatening statements. And I know it, it was only an attempt to save his
face and avoid a bad name in media which he was by now sure to be highlighted. And while we left the
university in evening at 7:30 o’clock, with a group of friends, he tried his face by asking us to see if
possible to avoid this coming out in news next day.

Next day, the story did not come in newspapers. I decided to write it for myself, as part of this dissertation
because I think this experience forms an important part of this dissertation while I was researching for
others to stand up for the rights of people, only to understand How difficult it is to stand up for oneself.

This experience would be remembered.