The Supreme Court on Tuesday, 5 November, asked the 4-member juvenile justice committee of the Jammu and Kashmir High Court to examine afresh the allegations of detention of minors by security forces in the state after the abrogation of provisions of Article 370.
A bench headed by Justice NV Ramana asked the committee to place its report as expeditiously as possible and posted the hearing for 3 December.
The bench, also comprising Justices R Subhash Reddy and BR Gavai, said there is a need for examining the allegations afresh as the earlier report of the committee was not in accordance with the apex court order due to time constraints.
The top court was hearing a petition which has raised the issue of alleged illegal detention of minors in Kashmir.
After hearing arguments of counsel for child rights activists and Jammu and Kashmir administration, the bench noted that "the exercise entrusted to the committee was not carried out in letter and spirit of the order of the apex court due to time constraints".
The bench observed that the order passed by the apex court on 20 September had reached the committee on 23 September and after two days, the Jammu and Kashmir DGP filed a report on 25 September in which he categorically refuted the assertions and allegations made in the media and the petition.
The Committee’s report also contained the findings of the Additional DGP denying allegations of illegal detention of juveniles in Kashmir.
It had told the Supreme Court that 144 juveniles were detained in the state after the Centre abrogated provisions of Article 370 of the Constitution, but 142 minors were later released.
The committee, in its report filed in the apex court, had said the remaining two were sent to juvenile homes.
When the matter came up for the hearing on 1 October, senior advocate Huzefa Ahmadi, appearing for child rights activists Enakshi Ganguly and Shanta Sinha, had said that he would like to file reply to the report in which the averments regarding alleged detention of minors have been denied.
While the senior lawyer was making submission on Tuesday, the bench pointed out to him that in his reply there have been use of some objectionable words relating to the members of the committee which have to be withdrawn.
Ahmadi agreed to the suggestion and said he will file an affidavit and withdraw the word "abdicated" which was written in his reply in with the report of the committee. The bench said the four members of the committee are judges of the High Court and such word cannot be accepted.
It said the committee has some limitations and perhaps the members had time constraint.
The bench reminded the senior advocate that when the matter had first come to the apex court, the petitioners had even claimed that there was no access to justice in the High Court and the Chief Justice of India had sought report from the Chief Justice of the High Court.
The High Court Chief Justice had conveyed to the CJI that the claim was false and the High Court was functioning normally from day one.
Attorney General KK Venugopal, present during the hearing, was asked by the bench about the report of the Juvenile Justice Committee.
He said the Centre is also a respondent in the matter along with the Jammu and Kashmir administration and its stand is same as that of the administration.
Solicitor General Tushar Mehta sought adjournment of the matter but the bench said an important matter like this cannot be delayed.
Mehta said the petitioners were abusing the process of law and instead of the apex court the petition would have been filed in the High Court.
The law officer submitted that the Juvenile Justice Committee is a statutory committee comprising judges and "can the petitioner be allowed to sit in appeal over the report".
He said the petitioner had earlier made a false assertion to the Supreme Court that High court was not functioning.
"This petition should not be kept pending as there is a remedy before High Court and a functional Juvenile Justice Committee," he submitted.
However, Ahmadi said: "This is an Article 32 petition which is itself a fundamental right. This Court has heard petitions of other persons on similar issues from Kashmir. So why not this petition which affects fundamental rights of children." The bench also took note that another Bench had taken note of the report of Chief Justice of High Court and yet passed orders in the matter subsequently calling for report from Juvenile Justice Committee.
On 20 September, the apex court had asked the committee to undertake an exercise with regard to the facts stated in a petition filed by the two child right activists, who have alleged that minors were illegally detained in Jammu and Kashmir after the Centre scrapped the special status of the state under Article 370.
The four-member Juvenile Justice Committee of the Jammu and Kashmir High Court is headed by Justice Ali Mohammad Magrey.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)