Jammu And Kashmir Police Has Violated The JJ Act In Detaining Children

The Supreme Court last month called for a report from the Juvenile Justice Committee of the Jammu and Kashmir high court in respect to complaints that a number of children – described as juveniles in legal parlance – had been illegally detained in the state.

The four High Court judges who make up its Juvenile Justice Committee submitted their report, which is now in the public domain.

As a conscious citizen I know my limitations on commenting upon a matter which is sub judice and therefore shall restrict my observations only on the data provided in an annexure by the police in respect to juveniles detained/released/in custody, and the particulars of cases in respect to each of them. Since what I am to say may not make sense without knowing the relevant laws on the subject I will briefly go over the law and its development over the years, as I understand it.

The law

Conventionally, the sovereign was considered parens patriae (guardian of an incompetent, neglected person). In due time, the state became the guardian and then courts, as an instrumentality of the state replacing the king.

However most of us know of the horrendous conditions that the neglected, especially juveniles, have been confined in, despite the state or court acting as a guardian. It was also noticed that the due process principle was not applied in cases pertaining to juveniles because it was hitherto believed that a juvenile, being a minor, had no rights.

When things got out of hand, a thinking that this was not a correct approach emerged from the US courts in 1967 in the famous case of Gault where it held that due process of law could not be ignored in all cases pertaining to juveniles.

Probably from then on, the law in respect to juveniles started to change and veer towards recognition of the rights of a child as opposed to them being merely passive recipients.

In 1985 came the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") which clearly guaranteed procedural safeguards as a right, even on basic issues such as presumption of innocence, the right to remain silent, counsel, cross examination, amongst others – indicating that juveniles had probably been deprived of such rights earlier.

Importantly, it also spelt out that there was to be the least possible use of institutionalisation.

Incidentally, India being a signatory to this convention as well as the subsequent Convention on the Rights of the Child, has framed and reframed its Juvenile Justice Act, incorporating these safeguards.

The Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 ("JJ Act"), is also patterned likewise. There is a specific provision in Section 18 of the JJ Act, which says:

"Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, Samvat, 1989, no proceeding shall be instituted and no order shall be passed against the juvenile under Chapter VIII of the said code."

While the Code of Criminal Procedure applicable in the rest of India as well as the one applicable in J&K ("CrPC" or "code" in short) has kept executive interference out for the most part, an executive officer – be it a district magistrate or sub-divisional magistrate or executive magistrate – has been empowered to take action under Chapter VIII of the code in situations where control of law and order is concerned, as that is a function primarily of the executive.

Section 107 of Chapter VIII of the CrPC is one such section. It says that when an executive officer receives information that a person is likely to commit breach of peace or public tranquillity, he can issue show cause to explain the charge, issue summons, have him arrested, if conditions so require, hear him, ask him to execute a bond for a fixed period to maintain a good behaviour. This is purely a preventive measure to ensure law and order is maintained and which, as pointed out earlier, cannot be used against a juvenile in J&K or indeed any part of India.

Now let us look at the report of the ADGP (Cord.), PHQ, J&K Srinagar submitted to the four honourable judges of the J&K high court, and appended as an enclosure to 'Annexure E' to the report.

According to it, the SHO, Battamaloo PS arrested six juveniles, SHO, Karan Nagar PS arrested seven, SHO Shaheed Gunj PS five, SHO Sadder PS 21, SHO Rajbagh PS 10, SHO Soura PS seven, SHO Lal Bazaar five, SHO Nigen PS three, SHO Zakura, SHO Nishat and SHO Harwan PS one each, SHO Parimpora PS 14 juveniles – that is 75 children in all – under Section 107 contained in Chapter VIII of the Code.

Curiously, nine juveniles were arrested and some of them kept in observation homes for varying periods as a 'preventive measure'.

These figures demonstrate that either the police is ignorant of the ban on preventive detention contained in Section 18 of the JJ Act, or, despite it, have acted in violation of it. 

Similarly, I am unable to understand how the JJ Board – a Board constituted to deal with juveniles – and comprising judicial officers, directed nine juveniles to be kept in observation homes as a 'preventive measure' despite there being a specific provision that no preventive action can be taken against a juvenile.

Whatever, or, whoever the question is directed to, the answer can only sadly be, that the state is completely incompetent to act as a parens patriae, and in practical terms it is used only to glorify its power over the hapless citizen.

Ironically, even while the state or court feels no obligation or duty towards the disadvantaged, it undeservedly claims a venerated position in civil society. And while doing so, it zealously preserves its kingdom of paradise while the other side lives in hell.

I guess the basic instinct of preservation is reserved for the ones who are already preserved, and for such unworthy persons, the rest deserve to perish.

Probably this – as a youngster pointed out – is the clever and effective "drip method" of subjugation, where there is no major aberration, but a calibrated wringing, to scare people into submission.

(Author has been a judge of the Patna high court and a senior advocate of the Supreme Court)

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This Article was first published in The Wire. You can read the original Here