Opinion Maker

By Dilnaz Boga

59-year-old Badshah Mir (name changed) cannot let his only son and youngest of three children, Rashid (name changed) out of his sight even for a minute.

In June 2008, the police picked up Rashid, who was 16-years-old then, for pelting stones at a police party in Srinagar, the summer capital of Indian state of Jammu and Kashmir, under the non-bailable Public Safety Act, 1978 (PSA).

A charge under this Act entails imprisonment for two years and an immediate re-arrest upon release. In the last month, in Kashmir, almost 1,400 persons, mostly minors, have been picked up, say separatist leaders from the Hurriyat Conference (G).

Rashid was not sent to a children’s rehabilitation centre, but was made to share the cell with hardened criminals in the District Jail, Pooch. Reason: There are no juvenile courts or detention centres in the state.

“I used to cry at night thinking I’d have to spend the next two years behind bars,” recalls the soft-spoken doe-eyed teenager.

Rashid was lucky, says his lawyer Shafqat Hussain. His detention order was quashed by the High Court after three-and-a-half months of being jailed far away from home.

“Despite a court order to move him to the Central Jail in Srinagar closer home, the authorities didn’t oblige. I spent all my savings travelling with his mother to Pooch — 588 km away — every week to see him,” laments Badshah, a driver by profession.

On paper, the law states that the detention for minors should be corrective, not punitive. But in practice, it is exactly the opposite, complains a human rights lawyer.

Lawyer Fasiha Qadri states that with regards to the Juvenile Justice Act, “Supreme Court judgements are being flouted with total disregard. The Court does not have the powers to implement its own decision [in Kashmir]. The police has assumed powers and thinks it is above the law.”

One example of such cases is that of Younis Parra, a 16-year-old student in the eighth grade, who left home on 23 June to appear in an exam at the school in Rainawari. There, he was picked up by police while in an examination hall. Parra’s lawyer, Rafiq Bazaz says, “Younis was picked up from his school without a warrant … We don’t know why he’s been picked up, and under which sections he’s been charged under. The court has directed the police to produce their report on him but no deadline has been given.”

How imprisonment affects minors

“I won’t pelt stones, now I want to wear an explosive-laden jacket and blow myself up.” This is what a teenager told advocate Baabar Qadri, who has appeared in many PSA cases. “Jail radicalises them. Now they are not apologetic, they want to do more damage out of revenge.”

Dr Mudasir Firdosi, a psychiatric who has counseled children, explains: “These children turn to activism… sometimes violent… after release. In jail, they are indoctrinated by anti-social elements and some even develop a drug problem. Finally, this takes an emotional and a financial toll on their families.”

Social worker Yasir Zahgeer says such children are more prone to addiction and end up peddling drugs for money or sex. The feeling of being a social outcast and being constantly reminded of the incarceration by family and friends adds to the stress. “The child feels he has fallen from grace in the eyes of his family and he has nothing to lose. This is dangerous.”

Why kids join protest rallies

Growing up in the highest militarised region in the world hits children the hardest, especially boys.

The India government should avoid excessive use of force while dealing with demonstrators in the Kashmir valley, officials from international NGOs like Human Rights Watch and Amnesty International said this week. Since January 2010, the Jammu and Kashmir Police and the Central Reserve Police Force (CRPF) have killed 27 civilians.

At least 18 people, many of them teenagers, were allegedly killed during a crackdown on protests that began on 11 June 2010. The non-stop carnage, the culture of impunity and a stoic state have managed to push the people, including children, out of their homes, and on the streets to raise their voices against the killing of unarmed civilians.

This, coupled with the stresses of living in a conflict zone, motivates people to vent their frustration with the system by demonstrating on the streets.

Kashmir University student Mukhtar Dar (name changed) clearly remembers the incident that forced him to take to the streets to protest.

“My friend and I were on a bike when an Army convoy passing by asked us to stop. A trooper took our keys and asked where we were heading. I told them we were going to a friend’s place. He then took us to an isolated place and interrogated us for over 20 minutes. He abused us and slapped us. We showed him our college identity cards, but that wasn’t enough, he said he wanted to see an ID that proved we were Indians. He then put a gun to my chest. This is an ugly part of where we are living.”

Shakeel Bakshi, who runs the Islamic Students League, has been imprisoned several times over the last 25 years.

“For minors, their priority in jail is not to get out, but their security inside the prison. He is traumatised and fearful. He is forced to mold himself into the existing situation,” says Bakshi. “The child will always be targeted by the security agencies, and will be picked up frequently and his family will be harassed for money.”

As an adult, he will find it impossible to find a job — even a passport.

PSA… not a preventive Act

Human Rights Law Network’s Advocate Irshad Ahmad Wani says the government has been using PSA to book minors since the freedom struggle began in the Nineties.

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

To make matters worse, the Juvenile Justice Act is not implemented here the way it is in the rest of India. Wani has filed a public interest litigation for its implementation; serving a notice to the State, asking them why the Act hasn’t been adhered to in Kashmir.

All Parties Hurriyat (Freedom) Conference chairman Mirwaiz Umer Farooq feels its is important to improve the ground situation before starting any dialogue with the Centre.

“The human rights situation has to be addressed. Laws like the Armed Forces Special Powers Act and PSA need to be repealed. Demilitarisation has to take place and the government needs to revive trade between India and Pakistan. Only then can we take the peace process forward,” he suggests.

Amnesty International has repeatedly called on the Government of Jammu and Kashmir to “immediately and unconditionally release the all political prisoners held under PSA”.

PSA: A draconian Act

Legal luminaries and international human rights bodies have been demanding a review of PSA. They say the Act falls short of the recognised norms of justice, such as the right of the accused of appearance before a magistrate within 24 hours of arrest, a fair trial, and access to counsel.

Legal experts maintain that the Jammu and Kashmir Public Safety Act, 1978 was amended in 1990 which made it possible for the state machinery to keep detainees in the jails of India, outside the state.

Amnesty International reports say PSA is a vaguely formulated Act, which allows detention for up to two years without charge or trial on the purported presumption that they may in the future commit acts harmful to the state.

It adds that lawyers in J-K have consistently challenged specific PSA cases in the courts, but the state has blatantly disregarded court orders quashing detention orders or granting bail.

No implementation of Juvenile Justice Act in Kashmir

When social activist Abdul Rashid Hanjura filed a Public Interest Litigation (PIL) in Srinagar High Court for the thorough implementation of the Juvenile Justice Act 1997, little did he know that his appeal would be favourably accepted by the very court that has brazenly ignored the Act for years.

The HC has asked the government to swing into action immediately and fully implement the Juvenile Justice Act. The implementation of the act pertains to the establishment of juvenile homes, juvenile courts and relate to the care, protection, treatment, development and rehabilitation of delinquent minors. This, in Kashmir, is unheard of.

Despite decades of conflict and involvement of minors in street demonstrations, the authorities have conveniently swept aside laws that protect them.

The petitioner also blames the government for “the utter disregard of its constitutional obligations and in violation of the mandate of law”. The act came into force in Jammu and Kashmir in 1998 and applies to individuals below the age of 18. In the judgment, the court also blamed the state for its disregard of the Act.

The petitioner also states the repercussions of the negative effects of non-implementation of the Act, “The state government has failed to set-up homes and courts. Non-implementation of the act and conduct of proceedings at regular courts results in dwarfing of the development of the child, while exposing him to baneful influences, coarsening his conscience and alienating him from society.”

Hanjura also moved court to procure details of the number of cases pending against juvenile offenders, including details of the juveniles lodged in different jails of the state and provide compensation to children whose cases have not been decided within the stipulated period of three months from the date of filing of the complaint or lodging of the First Information Report (FIR).

In a landmark judgement, the Supreme Court in 1986, outlined that “a juvenile offender cannot be imprisoned for over seven years, and if the investigation is not completed within the stipulated period, then the case against the minor must be treated as closed”.

The Act further goes on to state that, “And if in three months, a chargesheet is filed, the case must be tried and disposed off in a further period of six months, inclusive of the time taken up in committal proceedings.”

In an effort to protect its most vulnerable population, Section 18 of the Act states that whether the juvenile commits a bailable or non-bailable offence, the child “shall be released on bail with or without surety”.

Moreover, the detention of the minor can only be in an observation home and not in a prison or police station. But in Kashmir, juveniles booked under the draconian Public Safety Act (PSA) are lodged in jails, along with other hardened criminals.

The state government, through its Social Welfare Department, in April 2009, had constituted district-wise Juvenile Welfare Boards and Child Welfare Committees.

A Compliance Report was submitted to the Law Department around the same period for constitution of separate Juvenile Justice Courts. But after over a year, the Law Department has failed to convey the approval date yet.

In October 2009, the Social Welfare Department had requested the Revenue Department to allot 30 kanals of land in Jammu and Kashmir for the construction of juvenile homes and observation homes for boys and girls (15 canals in Kashmir). Both Divisional Commissioners of Jammu and Kashmir were asked to identify the plots. But so far, no progress has been made on the matter.

The state has also remained complacent and has not initiated the formation of Juvenile Welfare Boards. Section 4 of the Act, requires the government to set up one or more Boards for a district or a group of districts, comprising a Metropolitan Magistrate or a Judicial Magistrate of the first class and two social workers, of whom at least one is to be a woman.

In addition, the Chief Secretary of the state has been instructed to comply with the High Court order in three months by the judges.

With no improvement at the grassroots-level, and a steady bout of unrestrained use of force on unarmed civilians, the people of Kashmir feel compelled to free themselves of the shackles of violence imposed on them by the occupational Indian forces. Little wonder, then, that on any given day the streets of Srinagar continue to be filled with shouts of ‘Hum kya chahtey hain? Azadi! Chheen ke laingey. Azadi! Shaheedowali azadi’ – What do we want? Freedom. We will snatch it. Freedom. Martyrs’ freedom.

Dilnaz Boga is a journalist from Mumbai. She is working as a journalist for Kashmir Monitor in Srinagar. She has also worked for Hindustan Times as Chief Copy Editor in Mumbai and in Mumbai Mirror as a senior copy-editor. Previously, she has also worked for a city-based newspaper, writing on issues like health, women’s and children’s issues, human interest, civic, education and crime. She has also covered conflicts in Kashmir, the North-East, Chhattisgarh and Maharashtra for several publications. She completed her BA in English and Psychology from Sophia College, Mumbai University and her MA in English Literature from Mumbai University. In July 2004, she completed her MA in Peace and Conflict Studies with a distinction on her dissertation ‘Cycles of violence: The impact of human rights violations on the children in Kashmir’ from the University of Sydney in Australia. The following year she shot a documentary in Kashmir on the same subject titled, Invisible Kashmir: The other side of jannat (Heaven), which was screened at film festivals all over the world.

This is her special report for Opinion Maker.