On an afternoon in Sambhal in Uttar Pradesh, Riyaz and his mother sat in their bare minimum living room. Riyaz* is wearing a bright pink shirt, his first moustache making a subtle appearance and with a rolled up notebook in his hand, he said “The police were so kind to us. They said ‘Aap humare mehmaan ho. Yeh aapna ghar samjo’” (You are our guest. Consider this(jail) your home).
This statement was made by 16 year old Riyaz who was detained for close to 48 days. He was kept in a jail where he claims to have been beaten, made to witness police torture on adults, handcuffed and verbally abused for being a Muslim.
What Happened During The Protests?
On 12 December 2019, after the Citizenship (Amendment) Act, 2019 was signed into law, protests broke out across the country, including in Sambhal. Riyaz is not the only child to have been picked up during the protests.
43 people including six minor boys from Sambhal were detained for close to two months. Although none of them concretely find their names on the FIR, the police justified their arrests on the basis of FIR containing sections against ‘unknown’ rioters.
The FIR pressed charges that were of a ‘serious’ nature and had provisions of imprisonment up to a period of three-years – Rioting (Sec. 147 IPC), Unlawful Assembly (Sec.149 IPC), Hurt to deter public servant from carrying out duty (Sec. 332 IPC), Causing damage to Public Property (Sec. 3 & 5 of Public Property Destruction Act, 1984) – and also charges that were ‘heinous’ in nature translating into a provision of imprisonment of ten-years or even life-imprisonment – Attempt to Murder (Sec.307 IPC).
On 20 December things took a dark turn. Salman, a 24 year old student in Delhi, was at his hometown in Sambhal, returning from Friday prayers when protests broke out at 3 pm.
As soon as lathi charge began, Salman along with thirteen others, including five children, took shelter in a house nearby. They decided to wait until the protests subsided.
At around 5:15 pm, close to half an hour after the protests had subsided, Salman claims that the police barged into the house, broke the gates and dragged him and his friends and young boys out.
“They beat us all up outside the gate saying ‘Tumhe Aazadi chahiye? Mein doonga tumhe Aazadi’” (You want freedom? I’m going to give you your freedom). After the violence, the police took them to Dhanari jail in UP.
“We were beaten up so badly, even the children, that we could not lift our hands to our mouths when the food was served,” Salman said.
Riyaz’s mother who was waiting for her son to return from tuition that evening said, “When Riyaz didn’t come home by dusk after tuition, I started to get worried. I thought he got caught in the protests. I started worrying if he was in jail or if he was hurt. It was a cold December night and I was wearing just a thin shawl and some of us women started going from police station to station to look for our sons but the police were turning us away saying we are ‘stone pelting women’”.
Did Police Hide That Some Detainees Were Minors?
In total, 6 minors were detained on 20 December 2019. They were later released on bail after more than 40 days of detention.
Advocate Qamar Pasha, who was among the team of advocates formed to secure the release of people detained after the protests of 19-20 December 2019, said that, all the detained minors had gone missing after the protests on 20 December, and no police station in Sambhal was willing to share details of their whereabouts with either the parents or the lawyers.
They were all presented before the magistrate on 21 December without any legal representation. All 43 detainees, including the minors, were sent to 14 days judicial custody. This custody was later extended to another 14 days.
Under chapter four, section 10 of the Juvenile Justice Act, 2015, it is elaborated that if a child is apprehended, the Child Welfare Police Officer/Special Juvenile Police Unit is responsible for producing the child before the Juvenile Justice Board within a period of 24 hours. The Act also states that as soon as a child is apprehended, his or her family must be contacted immediately.
In a report called ‘Brutalizing Innocence: Detention, Torture and Criminalization of Minors by UP Police to Quell Anti-CAA protests’ collated by Haq Centre for Child Rights, Citizens Against Hate and Quill Foundation, it has been recorded that of the 41 children who were detained in Uttar Pradesh across five districts of Bijnor, Muzaffarnagar, Firozabad, Varanasi and Lucknow, not a single child was produced before the Magistrate in time.
For example, the report says that in Muzaffarnagar a few children were detained and tortured for close to 12 days and then let off without any due process being followed. In Bijnor, the mother of a child spoke of how her son was illegally detained, initially at the police station and then at a farmhouse, only to be released three days later with bruises, injuries, crushed toes and emotionally battered.
In Sambhal, the children said that the lawyers themselves told them to write down their age as above 18 years of age, making no effort to contend that minors should be dealt with under the provisions of the Juvenile Justice Act.
A local lawyer who preferred not to be named said that this was done because there was a fear that the process of age determination under the JJ Act and production before the board would cause too many delays. Moreover, he said, the designated court for dealing with Juvenile Justice matters sits only for one day a week in Sambhal, and the government officers responsible for various functions in the age determination process have either not been designated or are too overburdened to complete it quickly.
Therefore, they decided to conceal the fact that these are minors and tried to secure bail through the regular process. This proved counterproductive because after all, the children ended up spending close to two months in jail.
According to Asim*, 17, when they were all produced before the District Judge, the Judge acknowledged that the police had picked up children.
“He (the judge) was asking the police why they had picked up the children. When the police said we were rioting, he asked for proof. How will the police produce any proof when they don’t have any?” said Asim.
What Does The Law Say?
According to the Juvenile Justice Act, 2015, if a judge is able to recognize that a person before him is a minor, then it lies within his powers to ensure an age determination test is conducted and that the child is immediately sent to a Juvenile Home.
According to the JJ Act, under no circumstances, should a child be placed in a police lockup or lodged in a jail. In Sambhal for instance, all the children who were detained by the police claim that they were not only held in adult police lock ups without a special officer, they were also tortured and made to witness torture on adults. The boys testified that they were beaten up by other inmates as well as made to watch how Salman, the older boy, being beaten and tortured.
According to Riyaz, the detainees, including the children were handcuffed in Dhanari jail.
My hands were very small, so the handcuffs kept slipping out of my hands and finally I returned them to the police. We were handcuffed when we were taken for a medical check up and then our handcuffs were removed when we were produced before the Magistrate.Riyaz, detainee
It has been time and again repeated even in the Supreme Court that restraining freedom of movement, which even a detainee is entitled to under Article 19 of the constitution, cannot be done by application of handcuffs.
In 1995 the Supreme Court in ‘Citizens for Democracy Vs State of Assam’ passed the directions that “police and jail authorities on their own have no authority to direct handcuffing of any inmate of a jail or during transit from one jail to another or from jail to court and back”. In the case of minors, the JJ Act leaves no room of doubt that handcuffing minors is in complete violation of its law and principles.
The irony is that, despite all of this, Riyaz and his mother say that the police have been kind to them. “What has happened has happened. I’m just grateful that my son has returned home alive. Now we just want to get on with our lives,” she said.
When the author contacted Superintendent of Police (SP) Sambhal, Yamuna Prasad, he expressed surprise at the question of minors being detained. After explaining our findings, he said "All these claims are false. None of this is true".
*Names of all children have been changed to ensure confidentiality
(Nidhi Suresh is a programme officer at Quill Foundation, a human rights research and advocacy organization in New Delhi. She also works as a freelance journalist, covering stories on human rights. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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