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Courts must intervene to address violations of children’s rights in UP, J&K

We need to develop an accountability jurisprudence. The establishment must be as (if not more) accountable as protestors who destroy public property.

Written by Madan B Lokur | Updated: March 10, 2020 9:15:23 am
Jammu and Kashmir bifurcation, Jammu and Kashmir children detained, children detained in Jammu and Kashmir, Jammu and Kashmir crisis, Express Opinion, Indian Express Security personnel in Jammu and Kashmir after the abrogation of Article 370. (File Photo)

Nelson Mandela said that there can be no keener revelation of a society’s soul than the way in which it treats its children. How is our society treating our children today?

The treatment of children detained in Kashmir and the reaction to serious allegations of illegal detention made in a public interest litigation (PIL) are simply stupefying. The Chief Justice of the High Court was asked by the Supreme Court to report on the allegations, which she did. The contents of the report were not disclosed and it was discarded. A committee of judges of the High Court then forwarded a report given by the police, which admitted the illegal detention of many children. The contents of this report were made public but not acted upon. A third report was requisitioned. The contents of this report were not disclosed but it was accepted by the SC and the PIL thrown out. Was it with or without our society’s soul?

The SC recently reiterated the law as it has always been: Even if bail is not granted to a child in conflict with the law, that child cannot be kept in jail or police lock-up and has to be kept in an observation home or place of safety. The Court made it clear that Juvenile Justice Boards (JJBs) can take note of the factual situation if it comes to their knowledge that a child has been detained in prison or a police lock-up. JJBs are not meant to be silent spectators and pass orders only when the matter comes before them.

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The SC again has occasion to consider the rights of children across the country, particularly in Uttar Pradesh. A sensational report titled “Brutalising Innocence” prepared by three civil society organisations on the treatment of minors by the police in UP has been released. It makes for some tragic reading and particularly painful is the clear victimisation of many children, the so-called future of our country.

The report is the result of investigations conducted last month. While it deals with cases in several districts, Bijnor and Muzaffarnagar deserve special mention. There is testimonial evidence of children (or their parents) being subjected to physical violence, intimidation and humiliation. A mother whose child had been picked up by the Nagina police station could not meet her son for two days. Another child complained of severe beatings at the same police station and was not given any reason for the arrest and detention. A journalist met two children who testified to abuse in the same station. But such is the fear generated by police excesses that a young girl wanted to know the consequence of her brother’s statement being recorded. She had heard that if any child talks about the treatment meted out, the police would follow up with further harassment.

The report also mentions two children receiving bullet injuries in Lucknow, two others detained in Firozabad and the death of an eight-year-old in a stampede caused by the use of excessive force against protesters in Varanasi. The child’s burial in Varanasi was carried out in great secrecy and under police surveillance. While his soul will rest in eternal peace, what about our society’s soul?

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We need to develop an accountability jurisprudence. The establishment must be as (if not more) accountable as protestors who destroy public property. If police excesses are not checked, we will witness incidents like the arrest and detention of the mother of an 11-year schoolgirl and her teacher for a play that someone found objectionable. Even a week in jail for a crime not committed is traumatic. Being sorry is no recompense.

Our constitutional courts (not just JJBs) need to stand up and be counted as protectors of child rights. The “Brutalising Innocence” report and others like it should be made actionable and the establishment made accountable. Voiceless children cannot be illegally detained with no one being accountable, otherwise such incidents will multiply, including in a mutated form as in Bidar, with a new grammar of injustice for our society’s soul to ponder over. Failure to act by the sentinels on the qui vive would amount to rejecting the understanding of the law interpreted by the Supreme Court, apart from failure to provide constitutional justice to voiceless children.

Malala Yousafzai wrote that “we realise the importance of our voices only when we are silenced”. And our society’s soul?

This article first appeared in the print edition on March 10, 2020 under the title ‘Justice for the voiceless’. The writer is a retired justice of the Supreme Court of India.

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