Mar 24, 2013, 09.08AM IST TNN[ Manash Pratim Gohain ]
These and many more disturbing details had been revealed by the first ever report on the state of juvenile justice in conflict afflicted districts of India, “Nobody’s children: Juveniles of Conflict Affected Districts of India“, by the Asian Centre for Human Rights (ACHR). Juveniles in these districts are denied access to juvenile justice unlike their counterparts in rest of the country, even as a heated debate has been raging at the national level with respect to lowering the age of juveniles in the wake of the gruesome rape of a young woman on December 16, 2012 in Delhi.
The 197 districts which have been notified as conflict affected include 71 districts notified as “disturbed” under the AFSPA in Assam, Arunachal Pradesh, Manipur, Nagaland, Tripura and Jammu and Kashmir; and 106 districts declared as LWE affected in nine states of Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Maharashtra, Orissa, Uttar Pradesh and West Bengal.
“The report highlights 15 cases of arbitrary detention and torture and six cases of detention under the Public Safety Act of Jammu and Kashmir, 15 cases of extra-judicial executions and five cases of sexual assault such as rape by the security forces. In a number of cases of these blatant violations, the National Human Rights Commission has already awarded compensation and the orders of the NHRC establish the truth beyond any reasonable doubt,” said, Suhas Chakma, director, ACHR.
As per the report on the state of juvenile justice in conflict afflicted districts, in 151 districts out of 197 conflict afflicted districts across 16 states, i.e. 76.64% of the total conflict afflicted districts do not have observation homes (OH) and special homes (SH) implying that juveniles who are taken into custody are kept in police lock up and camps of the army and para-military forces in violation of the Juvenile Justice (Care and Protection of Children) Act, 2000 [JJ(C&PC) Act] and the UN Convention on the Rights of the Child.
The worst cases are Manipur which has only one OH cum SH and Jammu and Kashmir which has only two OH. This denies access to justice to many juveniles detained from other districts as they need to be produced before the respective Juvenile Justice Boards (JJB) or courts in the case of Jammu and Kashmir.
The report further brought to light that in the conflict afflicted districts, the JJBs exist on paper while their functioning remains deplorable. The Government of Manipur had submitted false information to the Ministry of Women and Child Development that nine JJBs had been operating in the State while in reality only one JJB was functioning. As the state government failed to establish the JJBs, the Project Approval Board (PAB) in its 35th Meeting under Integrated Child Protection Scheme (ICPS) held on January 17, 2012 had no other option but to decide not to sanction further grants for the nine JJBs for the current Financial Year 2012- 2013 until a report on the functioning of JJBs with complete details of members, case pendency, among others are submitted by the state government.
In Jharkhand, there were over 3,500 cases pending before various JJBs in the state as on July 11, 2012 while the OH for Boys established in the LWE affected Palamau district was converted into a girl’s residential school – Kasturba Gandhi Balika Vidyalaya, and the juveniles were shifted to the OH, Ranchi, which is about 165 km away. This requires travel arrangements to be made for the juveniles to come to Palamau district and be produced before the JJB, which invariably delays justice.
In Assam, replies received from JJBs under the Right to Information Act showed that not a single review of the pendency of cases before the JJBs has been conducted by the Chief Metropolitan Magistrate or Chief Judicial Magistrate in the districts of Kokrajhar, Dibrugarh, Darrang, Lakhimpur, Udalguri, Dhubri, Goalpara, Barpeta, Golaghat, Morigaon, Chirang, Dhemaji and Nagaon from date of their constitution till March 30, 2012.
The report goes on to cite violations of juveniles’ rights in conflict affected districts. The report claimed that children in the conflict affected districts are subjected to arbitrary arrest and detention including under the national security laws, torture, extra-judicial executions and sexual violence. In many cases, the perpetrators got away by producing “No Objection Certificate” or statements obtained under duress from villagers or victims stating that they had not committed any offence.
The report cited 15 cases of arbitrary arrest, detention and torture. The report stated that “though crimes of arbitrary arrest, detention and torture are difficult to establish, ACHR has been successful to obtain compensation in at least three cases (two of which are highlighted in the report) to establish the patterns of violence against children.
The first case was that of the “illegal detention and torture of 17-year-old Soumen Mohanty, Orissa on November 17, 2010. Mohanty of Netaji Nagar was arrested in connection with Madhupatana police station case No. 218 dated November 17, 2010 under Sections 506/34 of Indian Penal Code and Sections 3 and 5 of the Explosive Substances Act in Cuttack, Orissa.
On November 23, 2010, ACHR filed a complaint with the NHRC which forwarded it to the Orissa Human Rights Commission for taking necessary action. The Police submitted misleading report and this was challenged by the ACHR. Thereafter, the OHRC asked its director (investigation) to conduct an independent inquiry and the inquiry report.
The inquiry revealed that Mohanty was taken into detention at Madhupatana police station on November 17, 2010 between 7.30 pm to 8.30 pm and interrogated by the police. Mohanty was tortured physically and mentally by ASI Satayanarayan Senapati in presence of inspector Jayant Kumar Mohapatra and sub-inspector, S B Jena. Senapati who assaulted Soumen Mohanty for which he is liable to be prosecuted under sections 341/323 IPC and Mohapatra is liable for illegal detention of Mohanty for more than 40 hours under sections 342/ 341/ 323/ 109 IPC. Police records were manipulated showing that Mohanty was arrested on November 18, 2010 at 8.30 pm to cover up the illegal action of Mohapatra and Senapati which amounts to misconduct and dereliction of duty.”
The OHRC also found that when Mohanty was produced before the CJM-cum-Principal, JJB, Cuttack on November 19, 2010, the JJB observed, “Soumen Mohanty complaints of ill-treatment by police while in custody. He has shown his right hand where marks of assault are visible. “The OHRC accepted the report of the director investigation on November 23, 2012 and awarded compensation of Rs 50,000 to the victim. The Commission directed the authorities to decide about the action to be taken against the erring officials for having assaulted Mohanty and manipulated the records.
The second case is about the illegal detention and torture of a 12-year-old minor in Assam, Dipak Saikia (name changed) of Sanitpur village who was tortured by Manuj Boruah, Officer In-Charge at the Sungajan police station in Golaghat district, Assam. On August 16, 2009 at about 11am, a group of about six police personnel entered the house of the victim and dragged him out without giving any reason. He was taken to the Sungajan police station and on reaching the police station, he was ordered to sit on the floor of the verandah. Boruah allegedly tied the minor’s hands on his back with a chain and tortured him. The victim was beaten up with a stick repeatedly on his body including in the thigh, knees, foots, sole, back, arms, elbows and ears. The Officer-In-Charge also asked the minor to keep his hand on his table and was beaten on the nails. He was again hit on the head, neck and nose until Dipak became unconscious.
Pursuant to a complaint filed with the NHRC by ACHR, the Superintendent of Police, Golaghat district, vide communication dated December 7, 2010 submitted a report to the NHRC confirming that the accused Boruah directed his subordinate police officials to pick up the victim from his home at 10.00 am, caned him and detained him in the police station. The report of the SP further stated that accused police officer willfully omitted to make necessary entries in the General Diary of the police station, pertaining to the whole episode including the picking up of the victim, his illegal detention and subsequent release. The report further stated that a Departmental Disciplinary Proceeding has been drawn up against the accused officer for criminal misconduct and dereliction of duty.
The NHRC ordered the state government to provide a compensation of Rs 50,000 to the victim. On April 20, 2012, the NHRC closed the case after the joint secretary to the Government of Assam, Political (A) Department informed that payment of compensation amounting to Rs 50,000 was paid through cheque to the victim.
The special focus of the report has been on the arrests under the Public Safety Act (PSA) in Jammu and Kashmir. Children continue to be arrested under the PSA which provides for preventive detention upto two years without trial in the name of public safety. The report cited the case of one Faizan Rafeeq Hakeem who was arrested for his alleged involvement in “stone-throwing” incident on February 7, 2011 when he was all of 14 years eight months 11 days old. He was booked under the PSA and shifted to Kotbalwal Jail. Finally, Chief Minister Omar Abdullah ordered his release. Hakeem was released on April 5, 2011.
Another case of administrative detention under PSA was that of 17-year-old Murtaza Manzoor. He was released from jail after the High Court intervened and found his imprisonment to be unlawful. He was locked up for more than three months.
The report also claimed that children are routinely picked up and extra-judicially killed including in alleged fake encounters. In this report, ACHR provided 15 cases of extra-judicial execution of children. In a number of cases, extra-judicial executions have been established by the National Human Rights Commission.
Two emblematic cases are killings of 13-year-old Rakhal Gaur by CRPF, Assam and 15-year-old Jatan Reang by Assam Rifles, Assam.
“On December 8, 2011 morning, Cobra commandos of the CRPF reportedly shot dead Gaur at his village, Malasi Namkhi Gaur village under Dolamara police station in Karbi Anglong district of Assam. On December 9, 2011, ACHR filed a complaint with the NHRC urging its immediate and appropriate intervention. NHRC registered the complaint (Case NO.348/3/8/2011-PF) and issued notice to Director General, CRPF, New Delhi and Superintendent of Police, Karbi Anglong district, Assam calling for reports within four weeks. The state government of Assam paid a compensation of Rs 3,00,000 to the next of kin of the deceased from the Chief Minister’s Relief fund and in view of this, the NHRC closed the case.
Meanwhile, Reang was killed in firing by the personnel of 14th Assam Rifles and arbitrarily arrested four other tribal villagers at Gudgudi village under Katli Chara police station in Hailakandi district, Assam. The five tribal villagers including the deceased were returning from Boirabi bazaar when they were ambushed by the 14th Assam Rifles from North Tripura over a bridge at Gudgudi village at around 10 pm on May 14, 2010. The 14th Assam Rifles personnel opened fire indiscriminately without any provocation and killed Reang although they were unarmed. Following the killing of Reang, the Assam Rifles personnel arrested the four other Reang tribal villagers and handed them over to Katli Chara police station.
On July 23, 2010 ACHR filed a complaint with the NHRC urging its immediate and appropriate intervention. The NHRC registered the complaint as Case No.170/3/21/2010-PF/UC and issued notice to the Secretary, Ministry of Home Affairs, Government of India. During the course of proceeding, the NHRC received the Magisterial Enquiry Report, Investigation Report of the Superintendent of Police, Hailakandi, and the Post-Mortem Report. The reports confirmed that the minor was fired at from point blank range by a jawan and injured his right thigh. But, the minor was not provided medical care and he died on account of excessive bleeding. The NHRC directed the Ministry of Home Affairs to pay a compensation of Rs 5,00,000 to the next of kin of the deceased.
The ACHR also cited examples of sexual violence children, especially the girls, face sexual violence from the law enforcement personnel in the conflict affected areas. One of the case cited is that of a 15-year-old tribal girl raped by a personnel of Tripura State Rifles on February 23, 2011 at Nandakumarpara village in Khowai subdivision in West Tripura district. The accused Tejendra Barui was deployed in the Village Committee Election for the Tripura Tribal Areas Autonomous District Council.
According to the family members, the accused TSR personnel dragged the victim to a nearby jungle forcefully when she was returning home from her relatives house and raped her. On February 25, 2011, ACHR filed a complaint with the NCPCR which was registered as Case No. TR-19023/21623/2010-11/COMP. Pursuant to NCPCR’s intervention, the District Magistrate and Collector, West Tripura district vide letter dated May 13, 2011 informed the NCPCR that a compensation of Rs 40,000 was recommended to two victims under the Tripura Victim Compensation Fund Rules, 2007.
On June 21, 2012, ACHR further intervened with the NCPCR to ensure that the compensation is enhanced.
Another case of sexual violence cited was that of a 14-year-old mentally challenged girl being raped by a Central Reserve Police Force (CRPF) personnel near the CRPF camp in Warangal district, Andhra Pradesh in April 2011. The victim was an inmate of a Shelter Home run by an NGO. The matter came to light only when the victim was admitted to a local hospital and gave birth to a premature baby on November 5, 2011. ACHR filed a complaint with the NHRC on November 14, 2011. The NHRC directed the Director General, CRPF, New Delhi and Superintendent of Police, Wrangal district to submit reports.
In compliance, the Director General, CRPF submitted a report which stated that during investigation the caretaker of the Home revealed that a CRPF Constable had raped the girl in the month of April 2011 as a result the victim might have become pregnant. An FIR was also registered under Section 376 IPC at Kakatya University Campus police station, Warangal against an unidentified CRPF personnel and Caretaker of the Home. The NHRC vide its proceedings dated April 13, 2012 directed the CRPF to submit a further report regarding the status of action taken.
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