The presumption of innocence—a principle that one is considered innocent until proven guilty—is a basic legal right guaranteed to people in many countries. However, in the Kashmir region, there is altogether a different “law” in place, which stresses, “guilty even after proven innocent.”
This illegal “law” is operational especially for youngsters, whose future stands hostage to the Public Safety Act (PSA) or an FIR tag. Life suddenly changes, rather comes to a halt, for juveniles, against whom a criminal case is registered.
Many juveniles over the recent years have been slapped with PSAs. However, even after their PSA and detention orders were quashed, life became no better for them. Most of them still struggle to lead a normal life, as they are denied various essential facilities, like admissions, jobs, passport, visa, license, banking and other facilities.
Criminal record of an acquit is often being produced before the inquiry team during their verification process for a government job, passport and other services.
“I have seen many cases, wherein even after juveniles are acquitted, police prepare an adverse report against them that denies them of many rights including employment. They apply for a passport but they don’t get that as well,” laments Mir Urfi, an advocate at Lower Court, Srinagar.
Advocate Mir Shafkat Hussain, who has represented thousands of PSA detainees in J&K High Court since the early 1990s, says, when someone’s detention order is quashed, it means nothing was proved against him.
“In that case, the person is entitled to everything. However, in Kashmir, people get nothing after an FIR is registered against them, be it a job or an admission,” Hussain says, adding that juveniles and their parents suffer a lot even after the detention orders are quashed.
As per a Supreme Court ruling, an employee, who has been detained in preventive custody, may be considered on duty for the period of preventive confinement once his detention orders are quashed and his salary should be released for that period.
“Contrarily, it takes decades for a person to prove his innocence and a person hardly gets any benefit of the law,” says Hussain. Recently, the advocate continues, he came across a case, wherein a person, who has now got regularised in a government department, has been asked to clear some FIR that was registered against him way back in 1995 even though he was acquitted long back.
“Now he is being dragged from pillar to post for something that happened 23 years ago,” he says. “Such is the situation in Kashmir.”
Constant state surveillance is another torture for juveniles. Even after being given a clean chit, they are required to report in the concerned police station on regular—weekly, or fortnightly—basis. Besides, they are detained for several days on the eve of Republic and Independence days of India, any VIP visit in the Valley and whenever some untoward incident takes place.
“No matter for how many days or weeks they are detained, their food and other expenses have to be borne by their parents, which drains them emotionally as well as financially,” says Advocate Hussain.
This arbitrary detention of children in Kashmir violates Article 14(4) of the International Covenant on Civil and Political Rights (ICCPR), which requires that “all proceedings against juveniles shall take into account their age and the desirability of promoting their rehabilitation”. It also violates the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2013.
To understand the state’s wisdom behind such a prevalent practice, repeated calls were made to DG Police. The calls went unanswered. Even ADGP Law and Order, known for his ‘easy’ police talks skipped to respond. “I will get back to you on this,” he hung up.
Some low-rung police officers cited the official orders not to speak on record. On anonymity, however, most of them offered their own versions on the issue.
“Police is here for people, however those found taking law and order in their hand, will have to face the law,” says a young police officer posted in south Kashmir. Regarding the regular summons and repeated arrests, another officer says, “such steps are being taken in selective cases, keeping the security sensitivity in view.”
However, the rights activists and the legal experts term such approach problematic. “This vicious police cycle is never-ending even after the case is disposed off. It has a negative impact on the psyche of the children and it disrupts their social life,” says Advocate Urfi.
Such recurrent harassment is proving to be detrimental, especially for the career and education of the juveniles apart from affecting their social behaviour.
“I want to pursue my further studies from outside India, but how can I do that? It requires proper verification, which will only go against me. I cannot apply for the passport because of the FIR registered against me,” shares Taseer (name changed) of Lal Bazaar area of Srinagar city.
His younger brother, Haseeb (name changed), is keen to move to Dubai for his higher studies. Both the brothers, however, stand helpless. The duo was apprehended by local police in May 2016 from their home under stone pelting charges, which they claim to be false. Both of them were detained in Nowhatta Police Station. Taseer, who was barely 16 then, was later shifted to Central Jail, Kotbalwal Jammu, for two months, while his brother was released on bail.
“Even after our parents pleaded before them that we were minors and innocent, the police officials did not listen and detained us. In this process, our education suffered a great deal,” says Haseeb.
Another juvenile, Basit (name changed) of old Srinagar city, too has been struggling hard for his passport. He was apprehended by police a couple of years back under stone pelting charges and was released three months later after his detention orders were quashed.
“My family wants to send me outside for higher education, so that I can stay away from the distressing situation in Kashmir. But then non-issuance of the passport has become a hurdle in the way of my education,” says Basit, who claims to have been detained under false charges.
Experts deem that not being able to pursue education or get a job adds to the mental trauma of the juveniles. “Such situation is no doubt traumatic for the juveniles. Then there is a possibility that some of them may indulge in heinous crimes,” warns Advocate Hussain.
Muhammad Sharif Bhat, General Manager, Save the Children—a non-governmental organisation that promotes children’s rights—stresses that children want a peaceful life and wish to continue with their education.
“Life after detention becomes quite difficult and challenging. Someone who stays under detention, only they can explain what effect it has. There is a stigma from the society, as well as police, attached to it. Children suffer from a lot of trauma,” he says.
Officials at the Juvenile Justice Board (JJB), Srinagar, admit that there are still certain loopholes in the juvenile justice system “for it is still in infancy in the state.”
“This is true that police is illegally detaining juveniles in custody because they are not sensitized enough yet, despite that we often invite the juvenile police unit to our training programmes,” says Khairulnisa, member, JJB, Srinagar.
She maintains that the juveniles should report to the board about any hurdle they are facing. “At present, around 2,000 cases are pending before the JJBs in the state, of whom no child is facing PSA charges. However, the juveniles who are being constantly harassed by police even after their cases have been quashed should approach us so that we could help them out,” she stresses.
Justice (R) Hasnain Masoodi, Chairperson, Selection and Oversight Committee monitoring the implementation of the law in the state, explains that they can resolve the issues faced by someone only when they bring it to their notice.
“Even as some juveniles raised some issues, say trouble in getting jobs or admissions, they did not follow it up,” he says, adding that there is a need to conduct a survey as to how many juveniles had previously been booked under PSA so as to provide required assistance to them.
“In the first place, we need to identify juveniles who were placed under preventive detention and thereafter were released following judicial intervention. We need to see how it has impacted their studies and other aspects of life,” he says.
Under the Integrated Child Protection Scheme (ICPS), two statutory bodies, viz., Child Welfare Committee (CWC) and Juvenile Justice Board (JJB) are operating. CWC is meant for children who are in need of care and protection. JJB caters to only those cases that are registered through police.
“But then if we receive even an anonymous case, we still entertain them,” says Khairunisa, and adds, “So the children must approach us with their problems.”
Author is a media fellow with National Foundation for India (NFI)