New Delhi: Child rights activist Enakshi Ganguly has said that the Juvenile Justice Committee of the Jammu and Kashmir high court has neither applied its mind to filing the report on the alleged detention of minors since August 5 and nor does the report indicate that any judicial review took place.
In her rejoinder before the Supreme Court on Tuesday, Ganguly submitted:
“[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.”
On September 20, the apex court had directed the JJ Committee to undertake an exercise on the claims made in the writ petition and submit the report within a week.
Citing media reports in the writ petition, the petitioner had expressed concerns over possible instances of the illegal detention of children by security forces in Jammu and Kashmir. The petition was filed by Ganguly along with Shantha Sinha, former chairperson of the National Commission for Child Rights (NCPCR).
In its report, the JJ Committee, heavily relying on a report filled 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.
“It is respectfully submitted that on close reading it would appear that the Report of the Director General of Police does not ‘categorically’ refute the averments so much as it ‘rhetorically’ denies them, i.e. denies them repeatedly, with many a flourish, but with little substance. This is the reason that the matter would benefit immensely from independent application of mind,” reads the rejoinder filled by Ganguly.
“That it may arguably be said that no other stakeholder stepped forward to state a case before the JJ Committee. It is very humbly submitted that the Petitioners in the present Writ Petition had intended to do just that by reposing their trust in the JJ Committee of the High Court, as the body, which might independently verify the allegations with respect to excesses against children. They believe that the situation merits judicial intervention and supervision,” it reads further.
According to Ganguly, the habeas corpus judgments with respect to children themselves show that there have been illegal detentions of children, and that in some cases children have even been moved out to jails outside the state. Interestingly, a news report by India Today quoting the committee’s findings, stated that 144 minors were detained in Kashmir after Article 370 abrogation. The same number was given by the DGP in his report.
As per “the data attached to the report, 144 children under 18 years of age had were picked up by police between August 5 and September 23 this year.” However, the committee report also maintained that they were released from custody on the same day as their detention and no child was kept or taken into illegal detention by the police authorities as “strict adherence is placed on the provisions of the Juvenile Justice Act.”
Commenting on the report in her piece for The Wire, a former judge of the Patna high court and a senior advocate of the Supreme Court, Anjana Prakash had written:
“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.”
Appealing for the further investigation in to the matter, the rejoinder filled by Ganguly states that, the issue requires further investigation by the JJ Committee, with the involvement of all stakeholders.
“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,” it reads.