Around midnight on August 8, 14-year-old Mohammed Aftab* got home after finishing work his bakery. Aftab lives in a village in South Kashmir’s Shopian district. He had been working late to finish a special order for the crisp, crumbly rounds of bread known as Kashmiri kulchas. They were to be delivered the next morning.
But Aftab could not supervise the delivery. Around 2 am that night, police and army personnel, according to his family, knocked on their door.
“They asked the men to come out and directed all the women to sit together in a separate room,” said his 17-year-old sister. “Aftab was still wearing his work clothes. He was too tired to change before sleeping. The police and army took him with them. We didn’t resist.”
They feared the security personnel would vandalise their house if they tried to resist, Aftab’s sister said.
In the morning, when the family went to Shopian police station to seek his release, they said, they found him in the police lock-up. “One of his front teeth was broken and there were swellings and bruises on his left shoulder. He was beaten in custody,” alleged Aftab’s sister.
The police did not release Aftab, his family said, but they were allowed to meet him and take him fresh clothes. “The last time we met him at Shopian police station was on August 11,” said another sister of Aftab. “After his arrest on August 9, we met him every day at the police station. On August 12, we were told that he has been booked under the Public Safety Act and shifted to Srinagar central jail.”
Minors under Public Safety Act
The Jammu and Kashmir Public Safety Act is a preventive detention law which allows the authorities to hold individuals without trial for up to a year, if they consider it necessary for the “maintenance of public order”, and for up to two years for “national security”.
The authorities are not required to provide grounds for detention for up to 10 days after the prisoner being held. In some cases, they may withhold the reason even after that if it is deemed “against the public interest to disclose”. Individuals are held under executive orders passed by the district magistrate or divisional commissioner.
In 2012, the Jammu and Kashmir assembly passed an amendment which made it illegal to hold minors under the Public Security Act. Those below the age of 18 are minors as per state law.
But, since August 5, when the Centre stripped Jammu and Kashmir of special status and split the state into two Union Territories, the families of at least four boys have approached the Srinagar bench of the Jammu and Kashmir High Court, asking for the quashing of detention orders under Public Safety Act on the grounds that the detainees are minors. In two cases, including Aftab’s, the High Court ordered a probe.
As on October 4, the Jammu and Kashmir government has informed the High Court that three of the four detainees have been released and handed over to their families.
Aftab, however, is believed to be in a jail in Varanasi. How has the government justified holding a 14-year-old under the Public Safety Act?
Minor or not?
On August 28, Aftab’s family filed a habeas corpus petition to challenge his detention, appending his school certificate which said his date of birth was March 16, 2005. They also put in an application asking for him to be transferred to a juvenile home.
The court took note of the family’s claim that Aftab was a minor that very same day. It directed the state counsel, Bashir Ahmad Dar, to file a response by September 4, an order issued by the court on August 28 said.
At the next hearing on September 25, the Shopian district magistrate sent a response through Dar: the “detenu was admitted in the school on 01 March, 2012 vide admission no. 823 in class 3rd and at the time of admission no certificate of birth was produced by the parents of applicant-detenu nor the school administration bothered to procure/demand the same from the concerned offices viz Chowkidar, Municipality or Hospital.”
According to the state counsel’s report, the certificate saying Aftab was born on March 16, 2005, was furnished by the school after his brother filed an affidavit saying that was the date of birth. The report calls into question the authenticity of this certificate. “The district magistrate’s response further indicates that many mutilations were notice in the recorded Date of Birth of many candidates from the admission registrar of the school (sic),” said a section of the counsel’s report cited by the court on September 25.
The counsel’s report was based on verification carried out by the office of Sandeep Choudhary, senior superintendent of police, Shopian. It goes on to say “the school administration without following due process admitted the petitioner in Class 3rd and put up arbitrary and hypothetical figure in the DOB of the petitioner.” According to Choudhary, the “actual date of birth of the subject may be determined by carrying medical test.”
A court order issued on September 25 directed the registrar judicial of the Srinagar high court wing to conduct an inquiry to “determine the age” of detainee within 10 days and submit a report in a sealed cover. The case is listed for hearing on October 14.
Aftab’s family has not seen him since August 12. They went to Srinagar Central Jail to meet him but failed. “We weren’t carrying our Aadhaar cards so the guards did not allow us inside,” said his sister, who had gone to Srinagar with her mother and a male relative on August 14.
Before the family could plan another trip to Srinagar, they got disturbing news. “A lot of boys from Shopian are lodged in a Varanasi jail,” said the sister. “One of the families who had gone to meet their son told us that my brother is also lodged with them there. We were shocked.”
The family has no means to go see him. Since 2009, they have been hit by misfortune. That year, Aftab’s father died of a brain tumour. He was survived by his wife and six children, including four-year-old Aftab.
“The death of our father meant the family responsibilities passed to my two brothers,” said his sister. “Initially, my elder brother used to earn for all of us because Aftab was too young.”
In 2014, the elder brother got married, which split up the household. Since money was tight, none of the girls could go to school. After the elder brother’s marriage, Aftab quit school to start earning as an apprentice at a local bakery, his sister said. He had studied only up to class five. He is the only breadwinner for his mother and two sisters, the other sister said.
They have given up hope of seeing Aftab anytime soon. “It costs around Rs 40,000 for travel and lodging in Uttar Pradesh,” said his sister. “We don’t have that kind of money. Since his arrest, we have been making a living by selling our cow’s milk. How can we go to Varanasi to meet him?”
‘Minor’ overground worker?
Another case in which the High Court has ordered a probe is that of 16-year-old Tariq Ahmad*.
In his case, the authorities seem to have conceded that they had detained a minor, although a police dossier claims he was an “OGW” or “overground worker” for the Jaish-e-Mohammad. An overground worker is the name given to non-combatant members of armed groups, usually tasked with logistics.
On the afternoon of August 3, before communication lines were officially shut down in the Valley, Ahmad’s uncle, an apple grower, received a call on his mobile phone from the local police station in Srigufwara, in South Kashmir’s Anantnag district. It was a summons from the local deputy superintendent of police. “He asked me to bring my nephew, Ahmad, along with me,” the uncle said.
Ahmad had been summoned to the police station a few days earlier as well, the apple grower said. “But that time they just took his mobile phone and let him go. I brought him home myself that day,” he said.
But on August 3, when Ahmad’s uncle presented him at the police station, he returned home alone. According to him, the police promised him that his nephew would be released in “two or three days”.
Instead, he was booked under the PSA. “On August 8, we tried to take some tea for Ahmad at the police station,” said his aunt. “There, we were told that he has been shifted to the joint interrogation centre at Khanabal in Anantnag [town]. Eventually, he was shifted to a jail in Bareilly, Uttar Pradesh.”
According to a date of birth certificate issued by the Jammu and Kashmir State Board of School Education, Ahmad was born on March 15, 2003. But in the police dossier, accessed by Scroll.in, Altaf Khan, senior superintendent of police, Anantnag, states that he is “22 years old” and a “class 12 dropout”.
“After the subject left his studies, he became a sympathizer of militant outfit JeM and begins to work for JeM as OGW,” the dossier reads. “The subject has developed extremist ideology and is sympathizer and supports unlawful activities of the said militant outfit.” It goes on to say that Ahmad “possesses a natural bent of mind towards secessionism.”
It claims that Ahmad has “colossal criminal records and is involved in number of cases”. One of the two cases mentioned in the dossier dates back to the mass protests of 2016, triggered by the killing of Hizbul Mujahideen commander Burhan Wani uprising. Among the many charges under which he was booked in these two cases include offences of unlawful assembly, attempt to murder, acts endangering life or personal safety of others and voluntarily causing hurt to deter public servant from his duty.
A rapid release
Ahmad’s family also filed a habeas corpus petition in the Jammu and Kashmir High Court on August 28, arguing that he was a minor and should be treated as a juvenile. As proof of age, they appended a marksheet, which also contained his date of birth.
On September 24, Justice Sanjeev Kumar issued a notice to government to “file a counter affidavit by next date of hearing” and also directed district magistrate Anantnag to “look into this aspect [of his age] specifically and revert to this court on the next date of hearing.” The case was listed for hearing on October 1, 2019.
A day after the court notice to the government, Ahmad’s family said, they were contacted by their local police station. A police party had set out to bring him back, the family said. “They brought him from Bareilly by road,” said his uncle. “He reached the police station at 6 pm and was handed over to us at 10 pm on September 29.”
But the written order from the Jammu and Kashmir government’s home department, saying that the detention order under the PSA was revoked with “immediate effect”, was dated September 20.
The family’s counsel, Wajid Haseeb, offered an explanation. “On August 28, when we submitted the habeas corpus application, the court had directed the government to consider Ahmad’s case on the basis of his school certificate,” he said. “The home department might have issued the quashing order on September 20 in compliance of that direction.”
Ahmad’s family believe his troubles are not over. “They have named him in two FIRs and we have been asked to take him to the police station again in some days. They told us that he needs to get bail in those two cases,” his uncle said.
The teenager is now back home in Hogam, Srigufwara. “He has grown weak and lost weight,” said his aunt. “You can imagine what happens to a grown up inside the jail so far from his home. We can only guess what effect will it have on a boy of his age. He has to focus on his studies. His Class 12 examinations are at the end of this year.”
Children under law
Mir Urfi, a Srinagar-based lawyer who has worked on numerous cases under the Public Safety Act, said minors had been detained under the law since the 1990s although it only got attention after the mass protests of 2008 and 2010.
According to Urfi, the authorities often misused the Public Safety Act because there is no provision under the law to ascertain the age of a detainee when he is held. “Unlike ordinary law, where a person arrested by the police has to be presented before the court in 24 hours, there’s no such provision under PSA,” she said. “It’s a purely administrative preventive detention.”
“It’s possible that if an individual is brought before the court at the time of his detention,” she said, “a magistrate can presume his age prima facie or order an inquiry to determine his age if he feels that the person is a minor.”
The Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013, raised the age of criminal liability for minors from 16 to 18. It mandated that children should be treated according to juvenile justice laws. The state is mandated to form juvenile justice boards to adjudicate cases involving children in conflict with the law.
On October 1, in submissions made to the Supreme Court, the state police admitted it had detained 144 children since August 5. It claimed most of them were released the same day. Of 46 children who had been sent to observation homes, 25 had been given bail, it said.
But lawyers say several cases of child detentions have gone unrecorded because the police does not acknowledge the detainees are minors.
“We came across many cases where minors were booked under PSA,” said Wajid Haseeb, the lawyer who represented Ahmad. “Usually, all the PSA cases involving minors rest on the establishment of a subject as minor. If it’s proven that the subject is a minor, PSA is quashed immediately.”
Until last year, those detained under the Public Safety Act could not be taken outside the state. But in August 2018, the state government, headed by Governor Satya Pal Malik, removed the provision which barred detainees from being lodged in jails outside Jammu and Kashmir.
*Names have been changed to protest the identities of the minors.