Justice Delayed

With the protesting Kashmir Bar Association permitting a limited number of its members to plead the emergency cases, the courts are mostly dealing the heabus corpus petitions, reports Saima Bhat

High Court, Srinagar – KL Image by Bilal Bahadur

In Kashmir’s new normal, courtrooms witness more litigants than lawyers these days. The trend is the outcome of the August 5, decision that devoured Jammu and Kashmir’s special status in anticipation of which many lawyers were jailed. Angry, the Kashmir Bar Association (KBA) boycotted the courts.

A senior High Court official said the High Court has been functioning normally despite over three month old crises but accepted the disposal of cases was affected due to the bar strike.

New Cases

The data that the officials share with this reporter suggest that 1438 new cases were filed in the High Court Srinagar since August 5 till November 17, 2019, including 1069 civil cases and 369 habeas corpus petitions. The official, however, could not provide the breakup of cases attended by the litigants themselves and  by the lawyers.

“Cases are being listed, pleas are being filed and government lawyers are attending the courts,” the officer, who wants to remain anonymous, said. “But the lawyers associated with the Bar are abstaining from routine work.” Another official, also speaking anonymously, said people suffering the most are those whose litigations were already pending. Presently, four courts are working normally, and before the annual durbar move, six courts were functional.

The Jammu and Kashmir Bar Association in Srinagar, a body with 1600 members, continues with its boycott for more than 100 days now. Their main issue is the continued arrest of their president, Mian Abdul Qayoom, who is being held in an Uttar Pradesh prison.

Habeas Corpus Only

The main ground floor hall that would remain crowded is almost deserted now. At times, even staircases would be filled to the brim. Nobody uses the red-printed sofas and the number of benches anymore.

There are quite a few lawyers, exempted by the Bar Association from boycott, who take care of the urgent cases, like the Habeas Corpus petitions. The August 5 decision led to a number of arrests, in which, a major number pertains to the Public Safety Act, one of the laws that the central government retained after abrogating Article 370.

Habeas corpus, a Latin word meaning “you may have the body” is a writ that traditionally requires a person detained by authorities to be brought to a court of law so that the legality of the detention may be examined.

The High Court official said around 610 petitions stands filed in 2019, of which around 369 were filed since August 5. Interestingly, more than 50 per cent of these were filed by a senior lawyer Mir Shafaqat Hussain, who says his clients visited his residence and requested to represent their detained family members.

“Normally, the court has to issue a notice within 48 hours of a habeas corpus petition being filed and the State has to respond before the case is listed on the fourth day,” Shafaqat said. “The case then has to be decided within 15 days. But presently, the judges have to give at least four weeks time to the state to file their response which gets further extended.” He also alleged that almost his entire clientele stand booked for “old” cases.

Minor Student

Waseem Ahmad, a ninth class student from Shopian was arrested on August 5. His brother regrets his decision of seeking help from the state police.

“Early this year, Waseem’s phone was taken by the army officials of a local camp who had told him to present himself later in the camp,” Waseem’s elder brother, who is following his case in the court, said. “I accompanied him to the camp but the army officials asked me to go home and leave Waseem there. He was released only after I complained with the local police station but when he returned home he was brutally tortured for no reason.”

On August 5, he alleged the soldiers came to their home to arrest Waseem again but luckily he was not home.

“Next day we went to the local police station and informed them about the happening so that I could save my brother but to my surprise they took my brother and placed him inside lockup,” the young man said. “Initially he was kept there for 15 days and then shifted to central jail Srinagar for another 15 days before shifting him to a distant jail outside Kashmir, in Lucknow border area. He has never been involved in any incident of stone pelting but still he has been booked under some previous false charges.”

As he walks away to attend Waseem’s hearing, Sajad Ahmad, a resident of Kulgam continues the tale of his nephew Nadeem Ahmad Wani, a bachelors student of government degree college Kulgam.

Sajad was present for Nadeem’s hearing (on November 13) who is presently lodged in a jail of Uttar Pradesh. Incidentally Nadeem had to write one of his annual papers’ today. He was arrested from his home during the intervening night of August 5-6. While presenting his dossier in the court, the State has informed that he was booked under unlawful activity, which he was accused of in 2014. Advocate Shafaqat said Nadeem has been booked under the law when, as per the dossier, he was a minor.

His uncle Sajad follows his court proceedings. In absence of the lawyers, it was Sajad himself who filed habeas corpus petition, personally.

Slow Mode Processes

Since August 5, Shafaqat says only a few PSAs have been quashed because of the rare sensitivities of the cases, but rest of the cases are still pending. “The government lawyers don’t file their counters in time and sometimes they don’t file them at all. It has happened in only a few cases when they were compelled by the judges to file the response,” the lawyer alleged.

“There are no new accusations in these PSA orders,” one of Shafaqat’s associates said. “The dossiers have been drafted using the clause of apprehensions.” Incidentally, the same ‘apprehension’ clause has been invoked in the case file of the BAR president who, according to his colleagues, had undergone angioplasty just two months before his arrest.

“He (Qayoom) is a lawyer and how can he be a threat to the State?” asks Mian Tufail, his colleague and relative. “Yes, he could have fought the government’s decision legally but detaining an ailing 71-years-old man and keeping him thousands of kilometers away from his home is inhumane.” Tufail said the detention law also suggests the detained should be kept near his home.

Interestingly, Jammu newspaper Kashmir Times has reported in August that “the state had tried to move an application staying an order that would allow his family to meet 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.”

“An application was filed on August 10 to allow a team of BAR to visit the detainees lodged in different jails outside Jammu and Kashmir,” one lawyer, who talked anonymously said. “We have received many complaints that the health condition of many detainees is getting bad but the concerned judge stayed the order.”

Communication blockade

When Mohammad Ayub Palla’s son Parvez Ahmad was arrested during a mid night raid on August 5 from his residence at Matibug Yaripora in Kulgam district, he had no means to contact his lawyer in Srinagar.

Desperate Ayub was informed that his son has been lodged in Central Jail Srinagar, which compelled him to reach out to his son at least to provide him the life saving medicines. Parvez, a father of two kids, was operated for cancer a few years ago.

On August 7, Ayub got a lift in a district hospital and reached Srinagar and met the lawyers. In November, Palla’s habeas corpus is still going on as his family is pleading to release him on humanitarian grounds as his condition is getting bad in the UP jail. For every hearing, Ayub has to reach out to his lawyer in Srinagar as he is not having a post-paid phone.

Due to the communication blockade, the lawyers serving the courts across Kashmir say their work was affected because they can neither speak to their clients nor they are able to read the latest judgments online.

“There is only one hot-line connection for the chief justice and now it has been extended to some employees of the high court as well,” another lawyer, also not willing to give his name said. “People fighting legal battles are struggling.” Besides, the Bar library is also closed since August 5.

5161 Arrested

Details tabled by the MHA in the parliament suggest around 5161 people were detained in the wake of August 5 decision. The list of detainees included around 144 minors, whose list was drafted on the express directions of the Supreme Court. But due to the absence of lawyers, it had become difficult for the families to file habeas corpus petition as most of the people were booked under PSA.

However, G N Shaheen, the former general secretary of the Bar association believes the figure of arrested people must be more than the people who have approached courts.

“Part of the rush that you see in the main hall of the court are cops who frequently come to check the happenings,” Shaheen alleged. He also said many lawyers are hesitant to handle too many PSA cases because of the “fear psychosis”.

“Courts are practically closed. Court doesn’t mean a judge only. It means a lawyer, state lawyer and the litigant as well.”

Section 107

In Srinagar’s district Court, Mir Urfi, a senior advocate, is receiving more cases under Section 107 of the Criminal Procedure Code post-August 5. Under this section, Urfi said the person is required 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.

An outer view of District Court Complex, Srinagar – KL Image by Bilal Bahadur

In many of the recent arrests, Urfi said 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 state wishes. “In a way they say the detainees did not give the bond when the reality is they were not even presented before the magistrates,” he alleged.

Urfi’s work in the special court, designated under TADA, was also hampered after August 5 as all of the public prosecutors were disengaged and their staff was posted on special law and order duties.. “Everything was defunct here when I joined on August 7,” she said. “Under trails were not presented in the court, and without they being produced in the court, their trails can’t be proceeded; their rights of the speedy trails got affected. Very recently, however, on October 20, the police officials joined back in the court.”

Unlawful Activities

Urfi terms the detention under unlawful activities harsher in comparison to TADA and POTA Acts. “The Act of unlawful activities gives the state to complete the investigation within 90 days but then its  clause 43 D helps them to get the extension of 90 days more. In most of the cases, we have seen they are not allowed to avail bail even after six months as they are then booked under PSA which means they can be kept for additional two years. It means legally detaining a person for more than two years.”

Recalling the early days of August, Urfi said she received around 100 phone calls from her clients in south Kashmir who informed her that the police was asking them to present themselves before the police stations. “Initially, I thought there must be any VIP occasion like it happens on January 26, August 15 or October 27 when they are kept in police lockups for a day or two and then allowed to go home,” she said. “But it was unfortunate that they were kept in lockups for some days and then booked under 107 CrPc and sent outside Jammu and Kashmir jails.”

The state of affairs in the Srinagar High Court was raised in the Supreme Court on September 16, when the then chief justice Ranjan Gogoi announced that he would visit Srinagar to see for himself if the situation was as bad as reported and he sought a reply from the High Court authorities.

After August 5, other than habeas corpus and civil cases, only one petition was filed challenging the decision of revoking the Article 370 and 35 A but that was dismissed as the Supreme Court is hearing more than a dozen odd cases.

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