Law

Kashmir: State Government Seeks Dismissal of Petition on Juvenile Detentions

In an affidavit filed before the Supreme Court, the government said the petition is "based upon a falsehood".

New Delhi: An affidavit filed before the Supreme Court of India by the Jammu and Kashmir government in a matter concerning allegations of arrests of juveniles in the state says that the petition deserves to be dismissed on the ground of falsehood.

In an additional affidavit filed before the apex court on Wednesday, the state government, through its additional resident commissioner in New Delhi, alleges that, “As the bald assertions made before this Hon’able court on 16.09.2019 is patently false, the petition deserves to be dismissed only on this ground as no citizen can attempt to approach this Hon’ble Court directly based upon a falsehood and on a false assertion regarding the functioning of the State High Court itself.”

However, the affidavit does not point out or explain how the claims made in the petition and the subsequent rejoinder are false. Instead, it further alleges that the petitioners are “trying to find fault with the Committee of the High Court.” According to the affidavit, it “clearly reflects some undisclosed motive other than the welfare of juveniles.”

It claims that the allegations made by the petitioners “are not only false but has a serious potential to create a serious prejudice against the judicial system in the State within and outside the country.”

It can be noted that on September 15, a petition filed in the Supreme Court expressed concerns over possible instances of the illegal detention of children by security forces in Jammu and Kashmir. The petition was filed by Enakshi Ganguly and Shantha Sinha, the former chairperson of the National Commission for Child Rights (NCPCR). On September 20, the apex court directed the Juvenile Justice (JJ) Committee of the Jammu and Kashmir High Court to undertake an exercise on the claims made in the writ petition and submit the report within a week.

Also Read: Funeral Video Busts ‘No Deaths, No Kids in Jail’ Report J&K Police Sent Supreme Court

Passing order for an investigation into the matter, the apex court on September 20 noted, “We have perused the report sent to us by Hon’ble the Chief Justice of the Jammu & Kashmir High Court pursuant to our order dated 16th September, 2019. At this stage, we do not consider it appropriate to offer any comments on the said report.”

On September 26, the JJ Committee submitted a report denying allegations made in the petition. The committee, heavily relying on a report filed by the director general of police, stated that the committee had also obtained data on the bail applications or habeas corpus petitions from the courts subordinate to the Jammu and Kashmir high court, and the judicial registers of the two wings of the high court. The report admitted that 144 children under 18 years of age were picked up by police between August 5 and September 23. But many were let off on the same day, the report said.

A Kashmiri child looks from behind a fence in Srinagar, on August 16, 2019. Photo: Reuters/Danish Ismail

Countering the report, on October 15, a point-wise rejoinder was filed before the apex court by one of the petitioners, Enakshi Ganguly, arguing the committee has neither applied its mind to file the report on the alleged detention of minors since August 5 and nor does the report indicate that any judicial review took place.

Also Read: ‘JJ Committee Neither Applied Mind, Nor Reviewed Report on J&K Minors’ Detentions’

“[T]he ‘Report on the exercise undertaken by the Jammu and Kashmir Juvenile Justice Committee‘ dated 26.09.2019 does not indicate any ‘judicial review’ or indeed any application of mind or independent examination/ verification of the allegations and averments in the Writ Petition. The JJ Committee’s Report merely forwards the contents and conclusions of the Report submitted to it by the Director General of Police, without recording any findings of its own,” read the rejoinder.

The petitioner also demanded further investigation into the matter. “The JJ Committee was tasked with verifying the averments in the Writ Petition. It could not have delegated the whole exercise to the DGP, without giving its own independent findings. Thus, the mandate as given by this Hon’ble Court is not met and the JJ Committee has abdicated its jurisdiction,” appealed the petitioner.

No reply in additional affidavit

Notably, in the additional affidavit filed by the state government on Wednesday, there is no reply to the objections raised in the rejoinder. On the other hand, it submits that “this affidavit (is) for the limited purpose” and it is not “dealing with the averments in the petitions para-wise while empathetically submitting that the picture which is presented is false and clearly to be lacking bonafides (sic).”

Also Read: Jammu and Kashmir Police Has Violated the JJ Act in Detaining Children

The state government in its affidavit also submitted, “Under the circumstances, the Petitioner may not be permitted to sit in appeal over the said report as filling of [the] petition based upon this falsehood reflects an undisclosed motive other than what is ostensibly highlighted in the petition.”

Meanwhile, in another matter concerning the situation in Kashmir, the Supreme Court on Thursday asked the central government to inform the court how long restrictions will continue in J&K. According to a report by Business Standard, hearing the plea challenging the restrictions on movement and communication blockade imposed by the state administration in the Valley, a three-judge bench said even as authorities imposed restrictions, they must be reviewed from time to time.

“You have to come out with [a] clear reply. You have to find out other methods to deal with it. How long do you want these restrictions? You may impose restrictions for national interest but they have to be reviewed from time to time,” the three-judge bench headed by Justice N.V. Ramana said. The next hearing of the case will be on November 5.