He was barely 14 when he was arrested from his home at Sheerpora Arwani at Frisal in district Kulgam on 28 August 2016. He spent 20 days in illegal custody at Bijbehara police station before being slapped with the Public Safety Act (PSA) on 19 September. In a shocking revelation, it was later found that his age was wrongly stated as 21.
Following his detention under the PSA, a young Tariq Ahmad Tantray was shifted to the Kathua jail in Jammu, some 250 kilometres away from his home district. Tariq hails from an underprivileged background, and since his family was illiterate, they were unable to spot the discrepancy in age.
“Earlier, we had no idea that he was a minor, since the documents provided by the Anantnag District Magistrate mentioned his age as 21, and his family was not educated enough to notice this discrepancy,” recalled advocate Wajid Muhammad Haseeb.
The petition filed in the Jammu and Kashmir High Court reads that the counsel asked the family to get Tariq’s date of birth certificate from his school. The certificate issued by the Alamdar Public School, Shirpora Kulgam, showed that he was just 14 years old.
“After we learnt that Tariq was a juvenile, we fought his case and his detention order was quashed in two to three months,” said Haseeb.
Tariq is not a lone case. Hundreds of children in Kashmir have been detained under the Public Safety Act, whose age has been mentioned as 18 and above.
The exact number of children being detained under the PSA in the Valley is not readily available, for age of the minor detainees is alleged to be “deliberately” kept above 18 on the dossier prepared by the police.
“Of course, the police do it deliberately. PSA or no PSA, they often state the age of the minors wrong,” observed advocate Mir Urfi, who deals with juvenile cases.
Numerous children and teenagers have been detained during the 2008 Amarnath land transfer row, the 2010 mass uprising in Kashmir, and the 2016 mass agitation following the killing of Hizbul Mujahideen commander Burhan Wani. Many of them have been detained under the PSA.
“In 2016, there was chaos everywhere. A number of minors were detained under the PSA and their age was wrongly mentioned as 18 or above. The District Magistrates of Kashmir, who received dossiers from Senior Superintendents of Police (SSP), signed them blindly without ascertaining the age of these children,” lamented advocate Mir Shafkat Hussain, who has represented thousands of PSA detainees in the High Court since the early 1990s.
A District Magistrate has the power under Section 8 of the Public Safety Act to detain people who violate law and order. “However, they never apply their own mind. They sign these detention orders at the behest of the senior police officials, who deliberately project these minors as adults,” Hussain alleged.
Not a Lone Case
In another instance, 16-year-old Rayees Ahmad Mir from Delina area of Baramulla district was arrested by the J&K police on 16 September 2016 under charges of throwing stones at the armed forces. After a couple of days, he was booked under the PSA. The PSA order stated that Rayees was 18 years old, which was challenged by his family in the Jammu and Kashmir High Court.
The family produced school records, a copy of which lies with this reporter, proving that Rayees was 16 years old. In fact, on 7 October 2016, the High Court ordered that he be transferred to a juvenile home under the Juvenile Justice Act, as prima facie evidence suggested he was a minor. However, Rayees spent his entire detention period, 360-kilometres away from his hometown, in the Kot Bhalwal jail in Jammu.
Rayees was released in January 2017, three weeks after the High Court quashed his PSA on 6 December 2016. Before being released, Rayees was taken to the Joint Interrogation Centre (JIC), Jammu, where he was detained for a few days. Later, he was sent to the Baramulla police station, where he was kept for a few weeks before being released.
Similarly, PSA charges were brought against 17-year-old Zubair Ahmad Shah on 19 September 2016, after he was arrested from his home at Kralgund, Kupwara, on 5 September. He was detained at the Kralgund police station, where he spent 14 days. In the PSA dossier prepared by the police, Zubair’s age was wrongly stated as 22.
“Police usually show the date of arrest as the same day when somebody is produced before the court of law. They conceal the fact that the person has already spent some days in illegal confinement,” revealed advocate Hussain, adding that “this is the kind of injustice being done to children in Kashmir.”
Pertinently, detention of minors under the PSA is a sheer violation of an amendment to the Act, which prohibits the police from detaining persons below the age of 18 years.
The amendment was made in April 2012 following strong criticism from local, national and international human rights organisations, besides the common masses.
Detaining minors under the PSA is a huge concern in the Valley, for the draconian law allows the police to arrest any suspect and keep them in jail for two years without trial. It goes without saying that it is a violation of the right to liberty, which India, the biggest democracy in the world, is obliged to respect under international human rights treaties.
Ironically, here a child is falsely projected as an adult.
Age Hidden Deliberately
As per the report titled ‘Terrorized: Impact of Violence on the Children of Jammu and Kashmir’ published by the J&K Coalition of Civil Society (JKCCS) in March 2018, the police and district administration “deliberately” not take into account the age of the detenue, especially children, and “routinely book them under false, arbitrary and punitive charges under the PSA.”
“Assigning wrong age on PSA dossiers, especially in the case of children, is done to prevent any possibility of staying their arrest. In some cases, these arrests are the beginning of the process of cultivating an ‘anti-state element,’ wherein police will routinely harass and arrest these young children whenever there is an anti-government protest in the area. The impact of the repeated harassment and arrests directly affects their education and impacts their social behaviour,” the report reads.
Noted human rights activist and JKCCS programme coordinator Khurram Parvez said it was a difficult and time-consuming process to determine one's age. “Till the time age is determined, the person has already served some months in custody. Therefore, the families don't find it feasible to contest age. They’d rather contest on the PSA itself and try to get their children out of detention,” he said.
Protection of minors is not the responsibility of the state alone, but of society overall, "so all of us need to be sensitised," he added.
Human rights organisation, Amnesty International, released a report ‘A Lawless Law: Detentions under the Jammu and Kashmir Public Safety Act’ in 2011, which reported that those detained under the PSA in Kashmir include children as well.
The Jammu and Kashmir High Court quashed the detention order of minors in December 2016, stating that a minor cannot be booked under the PSA. A bench of Justice Muhammad Yaqoob Mir made the observation while hearing a petition by a juvenile, Tanveer Ahmad Bhat, against his detention order under the Public Safety Act.
Tanveer’s counsel had pointed out that the detainee being below the age of 18 could not be detained in view of clear bar envisaged by Section 8(3)(f) of the Act. However, the law is still being violated regardless.
Even though a majority of the detention orders against minors have been quashed by the High Court, experts fear the law could be misused anytime.
“PSA has been misused badly since its inception. It has often been seen that even after the High Court quashes detention orders, people are rebooked under the PSA. It has been happening for the past three decades now. It is a never-ending process,” noted advocate Hussain.
Speaking to The Quint, Director General of Police (DGP) Shesh Paul Vaid said that in case wrong information is communicated in the court of law, the case is quashed. “The police is not the final authority. We don’t have any device to verify age. It is the judiciary that reviews the cases. If age of a person in such cases is found to be below 18, the court simply quashes the case,” he said.
(The author is a media fellow with National Foundation for India. She can be mailed at mrabianoor@yahoo.co.in. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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