India: Implement Juvenile Justice Laws in Kashmir
|Publisher||Human Rights Watch|
|Publication Date||21 July 2010|
|Cite as||Human Rights Watch, India: Implement Juvenile Justice Laws in Kashmir, 21 July 2010, available at: http://www.refworld.org/docid/4c480a361a.html [accessed 24 April 2014]|
(New York) - The Jammu and Kashmir state government should carry out a high court order to ensure due process rights and protections for children detained for allegedly participating in violent street protests, Human Rights Watch said today. Hundreds of these children, locally known as the "stone pelters," are at risk of arbitrary detention and abuse as authorities struggle to identify the often-masked culprits and contain the protests.
At least 17 people, many of them children, have died in street violence during protest marches called by various separatist or political groups in Jammu and Kashmir over the past two months. Teenagers have thrown stones at security forces and destroyed public and private property. To contain the rioters, the police have sometimes used excessive force, causing deaths and injuries with live bullets, rubber bullets, and teargas canisters. Each death leads to a fresh round of demonstrations and further violence. The police have detained hundreds of people, many of them children, for rioting or endangering the life or personal safety of others, offenses that can lead to imprisonment for up to two years.
"Violent protesters and the people inciting them are breaking the law and should be punished," said Meenakshi Ganguly, South Asia director at Human Rights Watch. "But the Jammu and Kashmir government needs to comply with Indian and international law for detention and prosecution, and give special attention to the requirements for children."In June, 2010, the Jammu and Kashmir High Court directed the government to set up juvenile courts and observation homes after hearing public interest litigation that the authorities illegally detained children in police lockups or jailed them with adults under the Public Safety Act, which allows up to two years of preventive detention. So far the Jammu and Kashmir government has taken no steps to implement those court orders.
India's Juvenile Justice (Care and Protection) Act provides an important framework for protecting and rehabilitating children in conflict, Human Rights Watch said. The act requires authorities to produce anyone who is under age 18 before special juvenile courts, where the bail provisions are more flexible than those for adults. In cases where the court agrees that an accused child must remain in custody, that child has to be kept in a special "observation home," not in prison, and separated from detained adults. The Convention on the Rights of the Child, to which India is a party, permits the prosecution of children for criminal offenses but requires authorities to arrest or detain a child only as a matter of last resort and for the shortest appropriate time. Every detained child has the right to prompt access to legal and other appropriate assistance."The authorities believe that greed and misplaced anger motivates these children to commit violence," Ganguly said. "But leaving children vulnerable to abuse in detention, without proper access to justice, will only fuel the unrest."
The protesters as well as the security forces have been responsible for casualties during the protest marches. Protesters have often used threats to enforce strikes, damaging private vehicles and demanding that businesses remain shut. A number of security personnel have been severely injured in the stoning. The state government summoned the Indian army to contain violence in Srinagar city on July 7, 2010, and a curfew was imposed in several parts of the state. After the curfew was lifted, on July 19, a funeral procession for 13-year-old Faizan Ahmad Buhroo, who apparently drowned while fleeing arrest, turned violent. Fayaz Ahmad Khanday, 25, was allegedly killed when police fired live ammunition to contain the protesters.
Indian human rights activists have long called on police and paramilitary forces operating in Jammu and Kashmir to adopt effective but nonlethal crowd control measures. Jammu and Kashmir authorities should abide by the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which provide that all security forces shall, as far as possible, apply nonviolent means before resorting to the use of force and firearms. Whenever the lawful use of force and firearms is unavoidable, the authorities must use restraint and act in proportion to the seriousness of the offense. Lethal force may only be used when strictly unavoidable to protect life. The Basic Principles also call for an effective reporting and review process, especially in cases of death and serious injury.