Updated: December 7, 2018 7:20:40 am
TRIGGERING A fresh controversy, J&K Governor Satya Pal Malik is likely to bring in a new juvenile justice law after repealing the existing Act which was introduced in 2013 and implemented last year. The new law, for the first time, has a provision on adoption, which is seen as a “breach in J&K’s Permanent Resident Act”.
The Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Bill, 2018, that has been finalised by the Governor’s administration, will be placed before the State Administrative Council (SAC).
Justice (retd) Hasnain Masoodi, chairman of the state government’s selection-cum-oversight committee — an apex body for monitoring and evaluation of the Integrated Child Protection Scheme (ICPS) — said his committee was still in the process of conducting public deliberations with various stakeholders.
“We have already recommended that this (law) should be restricted to state subjects. This should not offend state subject law. There are two concerns. It should not erode or eclipse personal law. Our second concern is that it is likely to offend state subject law and change the demography… We recommended that it should be made subject to state subject law so all adoptions from the state should be of state subject and whosoever adopts should do so from state subject only,” he said.
Justice Masoodi said that “as a student of the Constitution, I think the Governor does not have competence to give concurrence (to this Bill) and issue an ordinance”.
“Maybe they are in a rush to do it. They (Governor’s administration) say it is in our powers, we can go for an ordinance, we can follow that route,” he said. “We asked them to put it in public domain so that there are deliberations on it. Then we organised a round-table conference in Srinagar. We invited academics, child rights activists and others. We were planning a similar conference in Jammu,” he said.
Justice Masoodi said he had also recommended that the age limit (of a juvenile) should not be brought down to 16 years. “They want to create a new category, and deny the benefits that are available to a juvenile in conflict with law… So we opposed that… In conflict zone, if we permit that, there will be a group between 16 and 18 years, and if they are alleged to have committed a heinous offence, then they should go to a court. Here, a heinous offence is defined as an offence that carries a sentence of seven years or more. So what happens if we do that, we give the legislature a handle to prescribe punishment for any offence. The moment they enhance it over seven years, a juvenile will, automatically, be outside the umbrella of this Act,” he said.
“In our state, most of the juveniles are accused of committing offences under the Unlawful Activities Prevention Act (UAPA), anything can come in the purview of UAPA, even saying something, words, spoken words, writings. Thus, most of the juveniles will be deprived of the protection of the Juvenile Justice Act,” he said.
Justice Masoodi said that “normally, when there are deliberations at such a level, that process must be respected. We had heads of departments from different universities, prominent child rights experts who have worked here, people who have been working on removing child vulnerability deliberating on this.”
When contacted, G A Sofi, mission director, ICPS, said “there was consultation (on the Bill) in Srinagar, where participants said that adoption should happen subject to personal law and state subject law”.
“We have submitted the report of that consultation in Srinagar… I don’t know what has happened at the secretariat level,” he said.
A senior functionary in the Governor’s administration who didn’t want to be named said the social welfare department and law department are of the view that the provision of adoption will be made “subject to permanent resident law as well as personal law”. He also said the age limit of a juvenile hasn’t been brought down to 16 years. “The final decision will be taken by the SAC which is meeting tomorrow,” he said.
The issue, meanwhile, has already become another political controversy in the state. National Conference leader and former Chief Minister Omar Abdullah said “these are decisions of far-reaching consequences and should be left to an elected government to decide”.
PDP leader and former CM Mehbooba Mufti said the “administration is only a caretaker arrangement till a new government is elected”. “They shouldn’t be making and changing laws. That is not their domain,” she said.
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