“Children are like buds in garden and should be carefully and lovingly nurtured, as they are the nation and the citizens of tomorrow” — Jawaharlal Nehru

The number of juveniles being arrested for heinous crimes such as murder, rape, and enforcing preventive laws such as UAPA is on the rise, and law enforcement agencies and the civil administration are unconcerned about the issue other than incarcerating these young children in “Juvenile Homes,” as provided by the Juvenile Justice Act.

One possible reason why many juveniles end up committing serious crimes, according to counsellors working in the field and other experts, is the change in the family system in Kashmir, wherein grandparents used to keep vigil on the children while both parents were away at work. But now we are moving towards the culture of nuclear families, which leaves an open environment for children to get into bad company and also lets them wander without the presence of parental vigilance. Further, the busy schedule of parents results in negligence of their children. Experts have no solution to this or don’t want to engage in the debate of why more children are being booked for anti-national actions, particularly UAPA. This project report aims to examine the current situation at the lone Observation Home in Kashmir at Harwan-Hazratbal Srinagar, where juveniles are held in order to reform and rehabilitate them, along with measures implemented to ensure their wellbeing.

The rate of juvenile crime in Kashmir is at an all-time high. A juvenile is a child who has not reached the age at which they may be held accountable for their criminal activities in the way that an adult can. When referring to a young criminal offender, the term juvenile is used. Thus, a juvenile is a child who is accused of certain acts or omissions that are illegal and have been classified as such by penal laws. Juveniles have recently been proven to be involved in the most terrible crimes, such as murder and gang rape. Although the causes of criminal conduct in children are complicated, delinquency is fairly foreseeable early in the lives of certain youngsters. The law dealing with the reformation, rehabilitation, and adjudication of juveniles is not being executed in its letter and spirit, defeating the Act’s original objective. The Observation Home, which should be well-equipped with facilities and other manpower to genuinely achieve the goal of reformation and rehabilitation, lacks the necessary and fundamental facilities. The same can be said about the Juvenile Justice Board, which is similarly beset with indifference and a scarcity of necessary manpower to complete inquiries quickly and reintegrate juveniles into society.

Research Methodology

The current study is based on primary data sources. The researchers interviewed juveniles who are apprehended and kept in Observation Home at Harwan, as well as Juvenile Justice Board members and OH supporting personnel. The study’s key findings are given and discussed below.

How does the law deal with juvenile crime?

In India, child crime is classified as a juvenile crime. That is, delinquent acts committed by children under a specified age are classified as child crimes. However, the question of who should be referred to as a child emerges. Is there a minimum or maximum age requirement for this? Children of various ages have been labelled as child criminals in India. In India, for example, a child must be 14 years old to be declared a criminal, with the maximum age of the same being 18 years. As a result, no general assumptions about the minimum and maximum ages of juvenile offenders exist. Child crime is clearly defined as a crime committed by minors under a certain age. “Child in conflict with law” has been defined under Section 2 (l3) of the Juvenile Justice (Care & Protection of Children) Act, 2015 as a child who is alleged or found to have committed an offence and has not completed eighteen years of age on the date of commission of such offence.

In these circumstances, the law requires that a juvenile be housed in an Observation Home during the course of the investigation, and that the home have all of the necessary facilities and manpower to aid in the rehabilitation and reformation of the juvenile criminal – as the ultimate purpose of having these facilities is to rehabilitate a delinquent into a responsible and good citizen.

Observation Home in Kashmir

At Observation Home Harwan Srinagar, eight extensive case studies were conducted as part of this research. Almost all of the juveniles in the facility have been charged with major crimes such as IPC Sections 302, 307, 380, 376, UAPA, NDPS, and the Arms Act.

An Observation Home is a child-care facility that is “for the temporary reception, care, and rehabilitation of any kid who acts in conflict with the law, while an inquiry is pending”. As per Section 47 of the JJ Act 2015, the State Government shall create and operate Observation Homes in each district or set of districts, either independently or through voluntary organizations or non-governmental organizations (NGOs). The JJMR, 2016, Rule 29(1)(i) states that separate OHs for boys and girls, as well as age-based segregation, should be implemented, taking into account physical and mental health, as well as the severity of the offence committed.

During the pendency of any investigation, these homes will be constructed in every district or for a group of districts for the temporary reception, care, and rehabilitation of any child believed to violate the law. Rule 9 of the JJMR 2016 states that if a child cannot be brought before the Juvenile Justice Board (JJB) or a single member due to odd hours or distance, the Child Wellbeing and Protection Officer (CWPO) should hold the child in the OH or suitable facility and produce the child before the JJB within 24 hours after arrest. If a child is denied bail, he or she may be placed in an OH.

For the ten districts of Kashmir, there is just one Observation Home in Harwan Srinagar. The rising trend of juvenile crime and conflict necessitates that each district have its own OH, as we have observed that the majority of the children lodged in OH who are from districts other than Srinagar are actually involved in rioting and stone pelting, making it extremely difficult for their families, particularly poor and lone bread earners, and their legal counsels to reach the OH. The OH’s location is beyond of reach for children from far-flung locations such as Karnah (District Kupwara) and other remote areas. A child from Karnah described his hardship, saying that his family only saw him once during his two months of detention because a single visit to Srinagar costs roughly 2-3 thousand rupees, which his family cannot afford because they are already poor. This is a severe problem that affects low-income households and families with a single earner.

The erstwhile J&K state administration ignored the Kashmir division’s conflict-ridden ground situation, which sees frequent stone-pelting incidents in all districts, and thus each area should have had its own OH to house these juveniles. In the absence of stone pelting occurrences, establishing a single OH in the Jammu division may meet the need. However, this was insufficient for Kashmir, resulting in complications that undermined the purpose of the Juvenile Justice Act 2015. Due to unavailability of OH in other districts, juveniles have been subjected to torture while being held at police stations before being shifted to OH. Despite the fact that these acts are not documented, every juvenile’s eyes well up with tears as they recount the physical and mental suffering they endured at police stations.

Though flanked by a lovely backdrop, the lone OH is overshadowed by a Harwan police station directly across the street. Having a police station close to OH gives the impression of being in a jail, which is heavily guarded by security forces. According to our findings, every child believes they have never been in any institution other than a regular jail because they all saw the police cavalcades and security forces holding assault rifles.

The Harwan OH’s premises are high-walled with razor wire, and the windows are grilled with iron bars, much like a real jail. The location has the appearance of a typical jail. How can a child in such environment enjoy tranquil days in OH and show signs of reformation? And in Kashmir, terrifying jail stories are frequent in every home; with those stories fresh in their minds, they would always be disturbed with fearful thoughts.

Further, the lack of Skill Programs in OH is a serious worry that impacts not only life inside the OH in terms of reformation, but also life outside the OH when a juvenile emerges with the determination to integrate into society and live a regular life.

Furthermore, there is no distinct OH for female juveniles, nor is there any segregation based on their age or maturity. As the older a child becomes, the more he will encourage other children via his own daring acts. Apart from that, the majority of the juvenile delinquents are students, yet there is no ample manpower available to assist them in continuing their education.

Suggestions:

• The provisions of the Juvenile Justice (care and protection of children) Act, 2015 should be strictly implemented in an appropriate manner, so that the children conflict with law and children in need and protection may be helped in care, protection, treatment, development and rehabilitation.
• The UT administration should take immediate steps for establishing new OH if not in every district but a separate OH for whole North Kashmir and South Kashmir.
• Skill programs should be started as early as possible for best interest of the detained juveniles.
• Observation Homes should shun away the appearance of regular jails.
• Observation Homes must be away from police stations.
• Educating the family members to understand the needs and problems of their children. It is the responsibility of the parents to provide proper care and attention to their children so that they keep away from delinquent acts. The family members should provide a healthy environment which will help in improving the family relationship.

In the light of this instant research work it has become mandatory for the civil administration as well for the judiciary to take immediate and necessary measures that will ensure child-friendly system for juveniles in conflict with law and children in need of care and protection. The Observation Home has to be the place for changing attitudes and behaviour of the inmates. It has a major role to play in rehabilitating the delinquent children, by changing their mindset towards become a worthy citizen. Children living in Observation Homes should be provided a better social environment for their growth in the absence of parental care and affection.

The writers are final-year Law students at School of Law, University of Kashmir. They can be reached at [email protected] & [email protected]

Aabid Mushtaq & Tajamul Islam