In Kashmir, the Justice System Is in Limbo

Even two months after the decision to dilute Article 370, Kashmiris are finding it hard to access courts.

A few days after repressive measures were imposed in Kashmir in the wake of the dilution of Article 370, a distraught woman banged on the doors of the home of Shopian-based lawyer Habeel Iqbal. She had just learnt her young son – detained in a police station – had been whisked away to a prison outside the state. In the absence of basic communication facilities – even landlines were not functioning – and severe restrictions on movement, it was not possible to help her access justice on that day.

Iqbal could only attend the Shopian district and sessions court 20 days after August 5 and found scarcely any activity there. He learnt that among the hundreds held in detention was someone from the legal fraternity in Shopian. Advocate Zubair Ahmad Bhatt and his father, a former MLA from the People’s Democratic Party, had been detained.

In September, child rights activists – alarmed by mass arrests, many of whom were underage – filed a petition in the Supreme Court expressing concern over the rights of Kashmiris to access the justice system. Hearing the petition, Chief Justice Ranjan Gogoi declared he was ready, if necessary, to go to Srinagar to ascertain the situation.

On October 3, nearly two months after the restrictions were imposed, I accompanied Iqbal to the J&K high court to try and gauge the impact of the lockdown on the judicial system and the consequent effect on people’s lives.

In the court’s complex, Rehana, a woman from Shopian, recognised Iqbal and approached him in visible distress. Despite the lack of public transport system, she had travelled to Srinagar to seek an update on the case slapped on her son Faisal Mir. He had been charged under the Public Safety Act (PSA) a year-and-half ago and she had learnt that his lawyer, Mian Abdul Qayoom, had himself been put behind bars.

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Ironically, Qayoom, the longest serving president of the Bar Association of Kashmir, along with Nazir Ahmed Ronga, former president of the Bar and Abdul Salam Rather of Baramulla, District Bar Association, have all been charged under this same draconian PSA, labelled by Amnesty as “the lawless law”.

Nazir Ahmed Ronga. Photo: Facebook

The PSA permits the custody of a person for a period up to two years to prevent him or her from acting in any manner that is prejudicial to the security of the state or the maintenance of public order. Not only has the PSA been applied for decades with reckless abandon by the police, serial detention is also a common phenomenon in Kashmir. This means slapping fresh PSAs on a person almost immediately after a PSA order is quashed under a habeas corpus plea.

Faisal’s mother would now need to engage another lawyer to continue her struggle for his release. The process was trickier than usual because most members of the 1,050 strong Bar Association are on unofficial strike against the arrests of their office bearers. A notice on the board appealed to them to “abstain from work.” The Bar Association has, however, designated around seven lawyers of the high court to take up pending bail and PSA cases whenever victims’ families come to the court and also to take up and advise families of the additional 300-odd PSA detenues since August 5.

A lawyer, speaking on condition of anonymity, said many lawyers were now hesitant to handle “too many” PSA cases because they feared the state’s iron hand and vendetta politics. Many were also outraged at how Qayoom and others were treated. The state had tried to move an application staying an order that would allow Qayoom’s family members from meeting him in Agra jail. It is believed that the judge who had allowed this order to visit was removed from the roster and not given any further habeas corpus cases. (Eventually, the family was allowed to visit him.)

The hartal or unofficial strike has added to the logjam in the hearing of PSA cases. There is also a severe shortage of judges and only two have been hearing these cases. An estimated 500 habeas corpus cases are pending for 2019. Around 300 of them were filed after August 5.

Lawyer Shah Faisal, who has been assigned six PSA cases after August 5, says that one of the detenues is from Pampore. He owns a pharmacy and has been allegedly accused of selling drugs but that no First Information Reports (FIR) were filed under the Narcotics Drug and Psychotropic Substance Act or other sections of the Criminal Code. Instead, the police resorted to charging him under the PSA.

In another case, a youth from Nowhatta, Srinagar, has his age in the dossier shown as 26- years-old. But the detention order states: “You have a long history of having affiliated with various activities which are prejudicial to the maintenance of Public Order. In early nineties you remained affiliated with various subversive activities……(sic)”

Order of detention for a 26-year-old claiming he has been in subversive activities since the nineties. Photo: Freny Manecksha

Detention orders have to pass scrutiny by the district magistrate or divisional commissioner and such a glaring discrepancy only buttresses the suspicion that it has not undergone proper examination. A lawyer from Shopian says he wonders if district magistrates were even going to the courts.

Another advocate from Handwara, who stays just outside the main town, says that the heavy restrictions on movement for the first 20 days after the dilution of Article 370 would not have made it possible for people to leave their houses. He doubts if magistrates were in their proper stations and if remands were taken in the days after August 5.

Besides PSA and arrests, another significant case brought to the court after August 5 was that of a 32-year-old woman named Fehmeeda from Behmina who died on August 9 en route to Sher-e-Kashmir Institute of Medical Sciences. She had been cooking in her own home whilst clashes occurred in the neighbourhood. The heavy use of tear gas shells and pepper bombs caused a build-up of toxic gas that she inhaled. She died before she received medical treatment. Her medical certificate states she developed an allergy to toxic gas inhalation which was then followed by cardio-pulmonary arrest.

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The state denied civilian protests and killings and the police refused to file an FIR. After her husband approached the courts, it is believed that the CJM then issued notices against the chief prosecution officer to file objections and to confirm the status of the case and whether an FIR was then lodged.

Detention of minors

Tracking down Mir Urfi, a criminal lawyer, who has been handling PSAs and many of the juvenile detention cases for some years, without a functioning mobile phone, was something of a challenge. But, at the entrance to the sessions and district court, helpful lawyers told me to simply head for a particular sofa in the corridor. She and other lawyers designated to help would, at some stage appear, to meet with clients’ families and others.

When she did appear a half-hour later, Urfi, who works in the office of noted PSA lawyer Mir Shafakat Hussain, said that in at least four cases after August 5, the state revoked the PSA after the family made an intervention through the court, stating the person was a minor.

Nusrat Sidiq of the Kashmir Reader reported how the detention order of a boy from Shopian district was revoked after an inquiry by the registrar judicial of the high court revealed that he was around 14 years old. The court of Justice Sanjeev Kumar had given the state one day to explain its position regarding the detention.

The family had sought intervention, through lawyer Mir Shafakat Hussain, charging police with illegal detention of the boy on August 9. He had been shifted to Srinagar’s Central Jail.

The dossier related to this case accused the 14-year-old of being a “hardcore Over Ground Worker” of the Hizbul militant organisation. It added that he harbours “deep hatred for the Indian union and law enforcement agencies.”

Section 107 deployed for preventive detention

Mir Urfi added that a new trend in the post-August 5 arrests was the increasing numbers being detained under Section 107 of the Criminal Procedure Code. This bit of legislation is a colonial hand-down often used to detain habitual offenders. It allows for preventive detention on the grounds of an executive magistrate receiving information that any person “is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of peace or disturb the public tranquillity.”

Proceedings under this section require the person to be taken before the executive magistrate or concerned tehsildar who will ask why show cause should not be ordered to execute a bond with or without sureties for keeping the peace for such period, not exceeding one year, as the magistrate thinks fit.

But, in many of the recent arrests, said Mir Urfi, the procedures requiring the person to be brought before the tehsildar or executive magistrate are omitted and the person remains in custody for as long as the police wish. Families are warned that if they insist on a bond, a PSA with its more stringent measures could be slapped on the person concerned.

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Many people I spoke with in Habak, Srinagar and many parts of South Kashmir complained that such lawless practices furthered opportunities for extortion and corruption. One youth from Habak claimed that before Friday and its attendant protests, four or five youths would be picked up from the neighbourhood, asked to give names of some more youths and then released. The cost of each release, he alleged, was Rs 20,000. He referred to these arrests and releases as police gaining more customers.

Lawyers have revealed that in many cases the police have simply done no paperwork, making it difficult for the families and lawyers to access the court. Also, families were reluctant to go to lawyers over illegal detentions because of the fear psychosis. Threats have been issued that detenues will be sent away to faraway jails with the name of the Andaman Islands being thrown in, should families approach the law.

Jammu and Kashmir high court. Photo: PTI

Routine functioning disrupted

The restrictions on movement and phone and internet ban along with the lawyers’ hartal had seriously affected even the most routine functions of the court. In the early days, hardly anyone came to court. The few lawyers who did had to bring water and food from home. One lawyer in the high court joked, “I can’t even offer you a cup of tea unless I holler really loud from my window for a canteen staff to hear me.”

When cases started being heard, there were not sufficient police and staff to bring the under trials to court. Police who issue summons had been deployed elsewhere. Trials have been held up for over two months.

A lawyer in the high court explained how routine proceedings like serving notices were hampered because the postal services have been totally disrupted. Notices could not be served until the court passed an order saying delivery by hand was permissible. Another lawyer pointed out that there was no way of knowing whether he had missed a date as he could not even check online.

Initially, cases were adjourned but, a disturbing trend currently is the way many PSA cases were being dismissed on grounds of non-production of petitioners or lawyers.

One of the court orders in Urdu saying there could be no proceedings because of the halaat (condition) was later contested with the declaration that one could not say the halaat was not good!

Advocate Aquib Javaid from Shopian, who handles many Unlawful Activites (Prevention) Act (UAPA) cases found that five bail applications under TADA, POTA and UAPA had been dismissed on the day he did manage to get to court. The cases had lingered for so many years and are now further stymied he added.

Significantly, UAPA is increasingly being deployed in Kashmir. The manner in which unlawful activities are being defined is chilling. Javaid said in one case, the owner of an orchard where an encounter had raged in the winter months was accused of harbouring terrorists. He lives far away from the orchard and would not have known who was there when it was covered so deep in snow that nobody ventures out.

Mir Urfi also spoke of how boys had been arrested recently for celebrating the win of New Zealand over India in the cricket world cup. What message, she wondered, does that send out? That cheering for a match is “illegal”?

The paralysis of the court has seen many crucial issues pushed to the back burner. One of them is the usage of pellet guns and the Bar Association’s plea to ban it, dating back to 2016. The J&K high court rejected it through an interim order, saying the Centre had already constituted a committee of experts. The Bar then approached the Supreme Court, which on July 22 asked the J&K high court to decide within six weeks.

But with everything in limbo, there has been no progress and the pellet guns are being deployed with lethal intent as before. Many lawyers confided on condition of anonymity that with the dilution of Article 370, it was now a very difficult time to believe and practice the law.

One of them who did speak out was advocate Parvez Imroz, president of the Jammu and Kashmir Coalition of Civil Society, who has been in the human rights field for thirty years. He said it was one of the most trying periods for Kashmiris since 1931, the year when Kashmiris had risen in revolt against the Dogras.

Imroz said that whilst there had been turmoil in 2008, 2010 and 2016, it was different this time because the state did not even wait for people to respond to its action. It was a pre-emptive siege, planned and well executed. Intense fear psychosis was created by the huge number of armed troops and the institutionalised manner in which it was caused. Whilst a small section of Indian civil society had lent their voices to the Kashmiris and dared to speak the truth, the state was keeping up a façade that everything was stable. But there was simmering discontent and one cannot say what shape it will take.

This government, he added, had quoted the Newtonian law in defence of the Gujarat violence but seemed to be convinced that in Kashmir, they can change the law of physics. However, there is bound to be a Bastille Day in Kashmir in the days to come, Imroz said.

Freny Manecksha is an independent journalist from Mumbai who is interested in human rights and development issues.