Dr Rabia Noor
When his name was called for the inquiry, he wasted no time in standing up before the members of the Juvenile Justice Board. On being asked to produce his school certificates, he blushed and smiled at his marks.
“Your performance should improve next time,” one of the members advised Ziyaan (name changed). To this, he assured that he would do his best and smiled again.
This is a scene from the Juvenile Justice Board (JJB), Bemina, Srinagar, which doesn’t look like a regular court by any means. There are no elevated daises, no black-robed lawyers and no harsh legalese spoken that would otherwise haunt the juveniles in the adult courts.
“This has institutionalized the whole concept of juvenile justice. While courts are victim-centric, JJBs are juvenile-centric,” observes Parvaiz Iqbal, Principal Magistrate, JJB Srinagar.
Earlier juvenile cases in Jammu and Kashmir used to be referred to adult courts, where these would mingle with general cases. “However, now the ambience surrounding these children has been changed for good. We don’t take them to courtrooms anymore, so that they don’t get an impression that they are rubbing their shoulders with accused or culprits,” says Justice (R) HasnainMasoodi, Chairperson, Selection and Oversight Committee monitoring implementation of the law in the state.
JJBs are aimed at rehabilitating the children in conflict with the law. “In regular courts, we adopt a stringent approach towards offenders, but here we adopt a reformative and restorative approach so as to make the juveniles better individuals. We counsel them and try to make them understand the difference between right and wrong,” he says.
JJB Bemina caters to the juvenile cases from Srinagar city. This JJB is one among the 22 boards that have been set up in 22 districts of the state. The staff for the JJBs was appointed in January this year, whereas the boards began functioning on August 24 due to what JJB officials cite as “financial constraints”.
Prior to setting up of JJBs, the concerned Chief Judicial Magistrates (CJM) in each district were empowered to deal with the cases of children in need of care and protection.
In eight of the districts of the state, viz., Srinagar, Anantnag, Baramulla, Jammu, Doda, Rajouri, Leh and Kargil, Principal Magistrates have been appointed for the JJBs. “In rest of the 14 districts, CJMs have been given the additional charge of Principal Magistrates, who visit their respective JJBs to deal with juvenile cases,” says Justice Masoodi, adding that the 14 posts of the Principal Magistrates in these JJBs are also expected to be sanctioned in near future.
Now that JJBs are in place in each district, the juvenile cases have been transferred from the CJMs to the concerned boards. “In Srinagar, 300 cases have been transferred from CJM to JJB, of which 10 cases have been disposed off. Besides, we have received fresh 10 cases,” says Khairulnisa, member, JJB, Srinagar. “We are supposed to dispose off any case within four months of inquiry. In case some case is not disposed off within the stipulated time, it shall be terminated by default,” she adds.
According to the data gathered from JJB Srinagar, overall 1631 cases are currently pending before the JJBs across the state, whereas the National Crime Records Bureau (NCRB) report mentions only 198 cases. “Now see the variation. Our mapping says the number is much higher. And we are now in the process of resolving these cases,” says Khairulnisa, adding that Srinagar has the highest number of cases, which is 300, followed by Baramullah with 210 cases.
JJB Srinagar is composed of a Principle Magistrate and two members (social workers) in accordance with the Juvenile Justice Act besides clerical staff and workers. “We still need probationary officers and some other workers. The recruitment process shall be completed within sometime,” says Iqbal.
Principal Magistrate visits the board twice a week for sittings on Tuesdays and Saturdays, whereas the members are available on all days except for Sundays. Once a juvenile is apprehended by the police, he has to be produced before the board. If the board is not sitting, he can be produced before an individual member of the board.
The JJB receives all kinds of cases, be it related to stone-pelting, murder, robbery and so on. On an average 30 to 75 cases are heard in a day.
Earlier JJB Srinagar was situated at Harwan area for sometime, where Juvenile Observation Home is located. “However, since it would be inconvenient for children and their parents as well as lawyers to reach there, it was shifted to Bemina,” says Khairulnisa.
The Juvenile Justice Act 1997 was amended in 2013. The amended rules laid out the formation of JJBs in each district of J&K with the purpose of protecting the rights of children in conflict with the law. However, the absence of JJBs till only sometime back would prevent the juveniles from getting justice. Consequently, they had to appear in the regular courts, which would have a negative impact on their psyche.
“Visiting a court was quite challenging. I used to visit there four to five times a month, which would drain me physically, mentally as well as financially,” says Aasim (name changed), from Srinagar old city, who had earlier been facing the trial in Lower Court, Srinagar, for past more than one year. “Since adult offenders too could be there in a regular court, I always felt that I am a criminal. At JJB, however, we are not treated like adults,” he shares.
Like many other juveniles who are facing the charges of rioting under Section 147 of Ranbir Penal Code (RPC), Aasim was arrested in 2016 for allegedly pelting stones at armed forces during clashes over the killing of HizbulMujahideen commander, BurhanWani.
Barely 16 then, Aasim was shifted to the Central Jail Kote-Balwal Jammu. Even though he was later released on bail, his trouble did not end. He has been pleading his case ever since then.
Another juveniles, Saamin (name changed) of BotaKadal, Lal Bazaar, is facing the charges of stone-pelting since September 13, 2015, when clashes broke out at Hazratbal area of Srinagar during Kashmir International Half Marathon. He was detained in Nigeen police station for seven days before being released on bail. “Since then I am pleading my case at Lower Court, where I had to come across adult accused every other day,” says Saamin.
“This is my first time at JJB Bemina and I already feel the difference,” he adds.
There is altogether a different set of rules for juveniles to be followed everywhere. As per the Juvenile Justice Act, it has to be presumed that a minor is not aware of the consequences of his actions or might have been exploited by somebody else, say in case of drug peddling. Even the official terminology used for juveniles is different. For instance, trial becomes inquiry, arrest becomes apprehension and charge-sheet becomes inquiry report for juveniles.
“While investigating the juvenile cases, we are not supposed to use the terminology that is used for adults, like accused, offender, arrest, remand, etc., for it can hurt their innocence. There is a different terminology for juveniles, even though the procedure of investigation remains the same,” says Iqbal.
He adds that the JJBs abide by the principle of parenspatriae, which says, the political authority carries with it the responsibility of protection. “Here we have a child-friendly atmosphere. The juveniles do not get the feel of a courtroom. So, our purpose has been achieved to some extent,” he says, and adds, “This is definitely one of the most important steps towards achieving the target of UN protocol and constitutional mandate. With the passage of time, things shall only improve.”
There have been further amendments in the Juvenile Justice Act, 2013, and the new legislation is likely to come within a few months.
“The basic essence of the Juvenile Justice Act is that a child should not be exposed to an environment, which is not suitable for him given his age. This essence was, however, lost when a child was taken to the court,” says Iqbal.
After an offence is registered, the police have to first determine the age of the offender. “If it is found to be below 18 years, he cannot be placed in police custody as per Juvenile Justice Act. We have to immediately produce him before the JJB in a private vehicle, wherein nobody is in police uniform,” says MirzaZahidKhaleel, Prosecuting Officer.
“If the juvenile is found guilty, the board cannot punish him with death sentence, life imprisonment or other sentences. He is rather sent to Observation Home for a reformative period of up to three years, during which he receives counselling and treatment, if required, from doctors and other experts,” he says, adding that the children are also given skills-based training in the Observation Home so as to rehabilitate them.
The officials admit that the JJBs should have been set up at least a decade back, “but nevertheless, even if it has happened today, it is a positive gesture, for which all the stakeholders have made a huge contribution, especially J&K High Court.”
Author is a media fellow with National Foundation for India