|Rauf Ahmed Wagay, Zubair Ahmad Shah|
The Amnesty International India’s report “Tyranny of a ‘Lawless Law’: Detention without Charge or Trial Under the J&K Public Safety Act”, released after the top international NGO was refused permission to hold a media conference in Srinagar, hasn’t just confined itself to analyzing 210 case studies, reportedly about the plight of the people who had been detained under PSA between 2012 and 2018. It also documents how the Act is “misused” to detain minors.
“In some cases, detainees have been detained multiple times under different detention orders, most of which have been challenged and quashed by courts”, Amnesty states, adding, this is being done despite the fact, in 2014, the United Nations Committee on the Rights of the Child, which monitors the implementation of the Convention on the Rights of the Child (to which India is a state party) urged the government to review security-related laws with a view to prohibit administrative proceedings against persons under the age of 18.
The “abuse” of minors is also taking place, insists Amnesty, even though in 2013 the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act was promulgated, providing for children “to be treated according to the juvenile justice laws”, with Section 4(1) of the Act mandating the constitution of Juvenile Justice Boards (JJBs), which are specialized institutions to adjudicate cases involving children in conflict with the law.
While JJBs have been set up in all districts in J&K, Amnesy says, the instances it has recorded suggest that “executive authorities have ordered the detention of minors, even when presented with evidence of their true age”, underlining, “In no case did the authorities appear to try to determine the age of the detainee.”
On September 16, 2016, Rayees Ahmad Mir, then 16 years old, was arrested in Baramulla under ordinary criminal procedure for allegedly throwing stones at security forces. Two days later, he was ordered to be detained under the PSA, and transferred to Kot Balwal Jail, where he was held with adult prisoners. The detention order stated that he was 18 years old, and that he was being detained as “there is every likelihood of [Mir] being admitted to bail”.
Rayees Mir’s family challenged the order before the J&K High Court, producing a school certificate to show that he was 16. In October 2016, the Court stated that Rayees Mir should be treated according to juvenile justice rules, as there was prima face evidence that he was a minor, and ordered his transfer to a juvenile home.
In December 2016, the High Court quashed the order, stating:
“How learned District Magistrate has exercised powers in itself clear (sic) means that he has not perhaps gone through above referred provision otherwise he would not have ordered detention of a minor.” Mohammad Ibrahim Dar was only 14 when he was detained under the PSA in May 2017. The detaining authority recorded his age as 22. The High Court quashed the order in October 2017, after examining his school certificate. In other cases, too, authorities appear to have not taken minors’ age into account when passing detention orders.
Danish Hassan Dar was ordered to be detained in March 2017, and again in April 2017, under the PSA. His birth certificate and school certificates indicate that he was 16 years of age at the time, but the detention orders declared that he was 20 years old.
Amnesty International India was unable to find any procedure laid down for the police or the district magistrates to determine a person’s age before detaining them. A former District Magistrate who served in J&K between 2008 and 2012 said that executive officials depend entirely on the dossiers given to them by the police.
On condition of anonymity, he told Amnesty International India:
“The District Magistrate relies on the police machinery…Once they are making a recommendation, the District Magistrate will obviously ordinarily go by that, unless somebody has already given an input that the age mentioned in a particular dossier is not correct…A District Magistrate is not equipped, and in fact he is not expected also looking into the questions that are questions for judicial determination.”
Rauf Ahmed Wagay
When the J&K police arrived at Rauf Ahmed Wagay’s home in Kulgam in early May 2017, the 17-year-old was asleep in his room. “I was beaten and taken to the local police station,” Wagay said. “When I was being taken away from my home, in the middle of the night, I was emotionally broken. I could see my family helplessly watching and pleading before the police.”
Wagay said he spent the night at the police station and was taken the next morning to a police camp where, over five days, he was beaten and given electric shocks. He said he was then shifted to a Joint Interrogation Centre in Anantnag where he was detained for another 15 days. While Wagay was in police custody, his father showed evidence of his age to the police to prove that he was a minor. But, Wagay said, “The police categorically avoided taking any such document or proof as they were adamant to send me to jail.”
On May 29, the Anantnag District Magistrate passed a detention order against Wagay under the PSA, stating that he had been involved in an attack on paramilitary personnel in April 2017. He was then moved to Kathua district jail in Jammu, about 250 km from his house, where he was held for four and a half months. His family filed a petition in the J&K High Court seeking his release on the ground that he was a minor.
The District Magistrate, in his response to the Court, questioned Wagay’s age, saying: “The detenue is a major and the certificate annexed with the petition cannot be relied upon as in the earlier times, in villages the admission were being granted to the children without giving any documentary proof.” However, the District Magistrate did not offer any evidence himself about why he believed that Wagay was over 18. On 12 October 2017, the High Court quashed Wagay’s detention.
“After my arrest and detention my father could not properly work and support the family, as he had to run around – visit government offices, police stations, courts and jails…My family is now more concerned about my safety and security… The police still visits me occasionally, and usually checks my cell phone.”
Zubair Ahmad Shah
In September 2016, 17-year-old Zubair Ahmad Shah was arrested near his home by the police. “I had left my house to buy vegetables. The policemen caught me and started beating me severely. They caught a few other boys as well. They stripped us and kept us naked…It was embarrassing… They wanted to show what they can do.”
Shah was taken to two police stations where, he says, he was detained for the next 15 days and tortured. “I was beaten in police custody and it hurt me physically for many days. I was thinking about my family all the time – what they will be going though and how much worried they will be.” “When I was asked about my age, I told them I was 17 and even showed them my identity card,” Shah said.
Instead of being released, however, he was detained under the PSA on 19 September for allegedly being “a regular stone-pelter”. The grounds of detention were virtually identical to the police dossier, which said that Shah was 22 years old. He was then moved to Udhampur District Jail in Jammu, where he was detained for over a month. His family filed a petition before the High Court, providing his school-leaving certificate to show that he was only 17 years old.
The petition also added:
“Further the mother of the juvenile detenue expired few days back due to the shock and depression she suffered due to the detention of the juvenile and the family was not in a position to break the news to juvenile as he is lodged far away and may not be able to withstand the shock given his tender age and the circumstances he is in.”
The High Court ordered that Shah be moved to a juvenile home on November 9, 2016, and he was released soon after. He said that his mother’s death during his detention was the “biggest tragedy… I could not see her as a free soul. This will always hurt me in my life.” Shah said:
“The PSA detention is a blot on my life forever now. You need police verification for many jobs and services which is very difficult for me to obtain now.” He now runs a canteen in the school he studied at before his detention. “When booked under the PSA,” he said, “books are bound to slip away from your hands.