Every third child in Shopian district, Jammu and Kashmir (J&K), has a clinically diagnosable mental disorder, said a survey published in the Community Mental Health Journal earlier this year. Around 1.8 million adults in Kashmir Valley — 45% of its population — showed symptoms of mental illness in 2015, according to Doctors Without Borders. Thus, even prior to the incidents of August 5, the disastrous results of a history of violence, illegal detentions and torture in the Valley were visible on the region’s children.
The horror has since continued and got magnified, as chronicled in many reports. Media has reported illegal detention of scores of children, many of them whisked away at midnight by law enforcement officers with no record of their arrests, making it difficult to trace them. A report by economist Jean Dreze in August detailed illegal detention and torture of boys. A recent report by the Indian Federation of Indian Women and other organisations gave a first-hand account of the haunting spectre of mothers standing at their doorsteps in the desperate hope of their children’s return, not knowing where they are. These disappearances are in clear breach of the Supreme Court’s directions in the D.K. Basu case, where the court said that the next of kin have to be informed of every such arrest and the reasons thereof.
Pawns in a political game
Kashmir’s children have become pawns in a political game where the government wants to punish those protesting against its authority. Between 1990 and 2005, a total of 46 schools were occupied by the armed forces and more than 400 schools gutted between 1990 and 2005, according to a 2006 report of the Public Commission on Human Rights. Such destruction of educational infrastructure, in addition to the unlawful detentions, leaves a lifelong impact on children, perpetuating a cycle of trauma, fear and bitterness.
A report by the UN High Commissioner for Human Rights earlier this year found that children in Kashmir, many of whose ages were wrongly recorded, were being detained and mistreated for several days in police lock-up, without any charge, mostly under the Public Safety Act (PSA), which allows preventive detention for up to two years without any trial. The report found that the Armed Forces Special Powers Act remained a key obstacle to accountability.
In 2018, the Jammu & Kashmir Coalition of Civil Society (JKCCS) found through Right to Information applications that hundreds of children had been detained under the PSA between 1990 and 2013. In many of these cases, the police/magistrates had no procedure to verify the age of the detainees and minors were kept in custody along with adult criminals and released only after judicial intervention. About 80% of these detentions were held illegal by courts.
Such treatment of children is undoubtedly in violation of multiple laws and conventions. To begin with, all of them violate Article 14(4) of the International Convention on Civil & Political rights which states that “all proceedings against juveniles shall take into account their age and the desirability of promoting their rehabilitation.” The UN Convention on the Rights of the Child, ratified by India, provides that the arrest/detention of a child shall be in conformity with the law and used only as a last resort and for the shortest appropriate period. The guidelines of the National Commission for Protection of Child Rights clearly state that a blanket characterisation of adolescent boys as security threats during civil unrest should be avoided and authorities should investigate and take action against personnel involved in arbitrary detentions, mistreatment or torture of children.
A sledgehammer treatment
In 2003, the Madras High Court in Prabhakaran v. State of Tamil Nadu held that the Juvenile Justice Act is a comprehensive law and overrides preventive detention laws enacted for national security. Earlier, in 1982, the Supreme Court had in the Jaya Mala case condemned the preventive detention of a student and observed that young people, even if their acts are misguided, cannot be punished with a sledgehammer.
However, none of these laws and directives seem to be followed in Kashmir. Parents are now too scared to send their children to school, lest they be picked up by authorities or get caught in a crossfire. When such disappearances take place in a conflict-torn region, who does the aggrieved party complain to? Courts seem to be the only forums offering some promise of redressal. However, state actions since August 5, when J&K’s special status was abrogated, have taken away even this limited option from Kashmiris. Following the arrest of presidents of the J&K High Court and District Bar Associations and senior lawyers under PSA, most of Kashmir’s 1,050 lawyers have been on strike. Over 200 habeas corpus petitions have been filed till now. However, since most post offices are closed, lawyers are unable to serve notices on the respondents.
On August 5, all 31 cases shown in the ‘orders list’ of the Srinagar Bench of the J&K High Court were adjourned “due to restrictions on movement of traffic” as advocates could not be present. Weeks later, on September 24, out of the 78 uploaded cases, advocates were present for both parties in just 11, none appeared in nine cases, petitioner’s counsel alone in nine cases and only the government counsel in 47 cases.
Anticipating such contingencies, our Constitution provided for the protection of the citizens’ fundamental rights by empowering them to approach the Supreme Court directly in case the rights were violated. The right to constitutional remedies is by itself a fundamental right. Quite conscious of its obligations to protect the right to life of Kashmiris, the apex court has thus taken upon itself the task of inquiring into the allegations of state violence against children.
The observations made by the Inter American Court of Human Rights had observed in a 2005 case, concerning Colombia’s Mapiripán Massacre, are instructive here: “One does not combat terror with terror, but rather within the framework of the law. Those who resort to the use of brute force brutalise themselves, creating a spiral of widespread violence that ends up turning the innocent, including children, into victims.”
Noting that the terror sown among the surviving inhabitants caused their forced displacement, the court observed that the omissions, tolerance and collaboration by the state and the general population amounted to aggravated human rights violations in the name of ‘war on terror’.
Caged and disturbed
Children in Kashmir grow up caged and under the shadow of a gun. As the parents of many of them go missing, they are also forced to assume the responsibility of caregivers for their siblings. The strain on social structures due to the loss of family environment, safe spaces and education and health facilities severely traumatises many of them and snatches their childhood away. Gowhar Geelani, in his recent book Kashmir Rage and Reason says children in Kashmir learn terms like “custody killing”; “catch and kill”; “torture”; “interrogation”; “detention”; and “disappearance” — internalising a vocabulary they should not be privy to otherwise.
What kind of world can such children look forward to if they have to live in constant fear of being picked up for an unknown crime and taken to an unknown destination? Surely, this is not the firdous (heaven) on earth that many visualise Kashmir to be?
No curbs on democratic rights on the promise of development can justify inhumane treatment of children. We need to speak out for the children of Kashmir or we will also be complicit in the ‘aggravated crime’ by the state apparatus. The preventive arrests should be stopped lest the children of Kashmir go missing forever.
R. Vaigai, Anna Mathew and Devika S. are advocates at Madras High Court