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| District court, Srinagar: File photo |
In a new report, “Imprisoned Resistance: 5th August and Its Aftermath”, a fact-finding team consisting of senior human rights lawyers, trade unionists, activists and researchers has suggested that the people of Kashmir have come to believe that access to justice has turned into a “mere mirage” following the Government of India clampdown on October 5.
Not only have communication blockade, non-functioning of transport services and intermittent curfew in different parts of the valley made courts inaccessible, the 162-page report claims, the view has gone strong that courts have turned into “instrument for the government and in turn justify acts of oppression against the people of Kashmir.”
The team, consisting of advocates Aarti Mundkur, Clifton D’ Rozario, Lara Jesani, Mihir Desai, Veena Gowda and Saranga Ugalmugle, trade unionist Gautam Mody, psychiatrist Amit Sen, activist Ramdas Rao, and independent researcher Swathi Seshadri, met lawyers and litigants both in the Jammu and Kashmir (J&K) High Court and district courts. It had an “off-the-record” interaction with High Court Chief Justice Gita Mittal.
Excerpts:
We had two very interesting interactions with the Public Prosecutors (PPs) during our visit to the Srinagar district court. While the team was observing the proceedings in the Terrorist and Disruptive Activities (Prevention) Act/ Unlawful Activities (Prevention) Act (TADA/UAPA) court, the special PP (dressed in civilian attire) called one of the team members and asked him what he was doing in the court.When the team member replied that he was part of a team that was visiting the valley to assess the situation, including access to justice, and in this regard they were observing the court proceedings, he was warned that we cannot sit in court and must leave. In a rather menacing tone he said: Leave now, and come only if you get the permission of the judge.
The team member replied that the court proceedings were open to public and in any case they were all lawyers, and hence had the right to sit in court, to which the special PP asked for the name of the team member and noted it down. When asked to give his name, he replied that he was the special PP, and that was sufficient.
A lawyer member of the team was accosted by a man in civilian attire just outside the court hall and asked why she was in the court, what was the purpose of her presence here and who was she looking for. On not receiving a reply, the man introduced himself as M Javed Ahmed and informed her that he was a state-appointed special PP for the fast track court.
The lady lawyer was then joined by another lady lawyer from our team. They told him the exact reason they were in court. Javed Ahmed then warned in an almost threatening tone to both the women lawyers from the team that they should be careful and not indulge in any “political” activity. He then said, if, however, we are interested in doing any apolitical or academic work, we could then contact him on his cellphone number which he gave us. When asked how his cellphone was working when all the phone services are off, he informed us that since he is a PP his phone services are functioning.
High Court
In the High Court at Srinagar we met several lawyers and the representatives of the Bar Association. They informed us that, while the entire judiciary had been rendered nonoperational due to communications blockade and movement restrictions, lawyers too have taken the decision to boycott the regular court proceedings over the abrogation of Article 370, communication blockade, systemic clampdown by the state and the arrest of lawyers and prominent members of the Bar Associations.In the High Court there were only a few advocates in robes appearing in some matters and there were not too many litigants. In our discussion with members of the bar we learnt that all the advocates endorsed the call made by the Bar Association to boycott regular court proceedings.
The Bar Association has identified and designated six lawyers to appear in urgent matters such as challenges to detention orders passed under the Public Security Act (PSA), habeas corpus petitions or applications for family members to visit those detained.
We were informed that prior to August 5, 2019 there were approximately 200 habeas corpus petitions pending, now there are more than 600. From August 5, 2019 more than 330 habeas corpus petitions had been filed till September 30, 2019. There are countless detentions that are unlawful, hence, no one except the state knows how many persons are illegally detained.
They said there are reports that more than 13,000 people have been unlawfully detained. The family members of those who are detained unlawfully are apprehensive that if they complain about the detention or were to approach the courts for habeas corpus or any other relief, then, as a counter, PSA would be slapped and it would become impossible to get them released. Hence, they rather bide their time and hope for release from illegal detention.
One of their primary concerns in the habeas corpus proceedings is the court, and the government’s reluctance to hear and proceed with these matters. There are delays at every stage, including at the registry, regarding service of notice etc. Most of these cases were stuck at the stage of service and reply and none were at the stage of hearing or orders. The lawyers, who appear for the government (government advocates) are appearing in the High Court, however, have been instructed not to accept service in habeas corpus petitions in court.
A government advocate is said to have submitted before the High Court that they had directions from the government not to accept service in court and it would have to be sent to the concerned departments. Given that the postal system is not working, advocates are forced to take out hand summons (dasti) and personally serve the summons in these cases.
This causes immense delay in the hearing of petitions. On being served, the state takes three weeks to file a reply/ objections to habeas corpus petitions. Advocates said that a habeas corpus petition typically takes 3 weeks for orders but now it takes 6-8 weeks.
Court complexes are all severely guarded by armed forces, barricaded, with concertina wires and high compound walls with barbed wires
This ensures that a person is held without effective hearing in their case for months. Habeas corpus matters are to be disposed of in 15 days, yet post August 5, 2019 there is not a single order passed or petition disposed. This in effect strikes at the heart of the very purpose of habeas corpus petitions, rendering it toothless.
Advocates spoke of the lock down of communications, resulting in litigants being forced to come in person to meet their advocates. They are unable to communicate with each other or with their clients, causing a great deal of difficulty and hampering their work.
Further, courts are also forcing litigants to ask their lawyers to appear despite the strike, thereby compelling the lawyers to break the strike. It is said that the Chief Justice herself went to the lawyers’ canteen and asked the lawyers to appear in their matters; however the strike continues.
Advocates spoke of the lock down of communications, resulting in litigants being forced to come in person to meet their advocates. They are unable to communicate with each other or with their clients, causing a great deal of difficulty and hampering their work.
Further, courts are also forcing litigants to ask their lawyers to appear despite the strike, thereby compelling the lawyers to break the strike. It is said that the Chief Justice herself went to the lawyers’ canteen and asked the lawyers to appear in their matters; however the strike continues.
Advocates told us that in the day and age when the entire judiciary is moving towards more and more digital platforms, in Kashmir today they are being pushed back in time to the extent that now they are dependent on printed cause lists and no access to the High Court website or any other legal website necessary for their practice.
Regarding detenues being transferred outside the state, lawyers said that it was intentionally done in order to prevent family members and lawyers appearing for those detained from having access to them. When the president of the Bar Association was arrested, he was transferred to Agra Jail within two days.
We were also informed that in one case, an order granting permission for family members to visit a detenue was passed. However, later the same day, seemingly under pressure, the judge modified the order stating that his earlier order granting access to family members be kept in abeyance, in effect nullifying his earlier order granting access. We were unable to access the orders online.
Further, we were told that sudden administrative changes were made regarding assignment of cases on account of certain orders being passed by judges. This has caused further concern amongst lawyers regarding the unbiased functioning of the High Court.
Under these circumstances the advocates who we spoke to unequivocally said that there is a systematic effort being made to spread fear among lawyers that those who are vocal and express any form of dissent shall be detained. Many referred to a “fear psychosis… It is like being stripped of your robes and made to walk in public naked”.
We were also informed that in one case, an order granting permission for family members to visit a detenue was passed. However, later the same day, seemingly under pressure, the judge modified the order stating that his earlier order granting access to family members be kept in abeyance, in effect nullifying his earlier order granting access. We were unable to access the orders online.
Further, we were told that sudden administrative changes were made regarding assignment of cases on account of certain orders being passed by judges. This has caused further concern amongst lawyers regarding the unbiased functioning of the High Court.
Under these circumstances the advocates who we spoke to unequivocally said that there is a systematic effort being made to spread fear among lawyers that those who are vocal and express any form of dissent shall be detained. Many referred to a “fear psychosis… It is like being stripped of your robes and made to walk in public naked”.
District courts
The first impression of the court complexes in Kashmir is that of alienation and intimidation. The court complexes are all severely guarded by armed forces, barricaded, with concertina wires and high compound walls with barbed wires.
The Shopian district court, for instance, has a very hostile environment with a huge jail-like gate, barbed wires and the presence of a military garrison. One notices at least 2 CRPF vans inside a very small court complex. The same was true when we visited the Kulgam district court.
As one enters the Srinagar district court, the court complex is barricaded. In spite of the seemingly “normal” functioning court, the courtrooms here too appeared to be missing lawyers clad in their black and white attire. The court complex is heavily barricaded with the presence of armed forces and the police.
On further enquiry we noticed that the courts were open, yet matters were not taken up except for bail matters, PSA/UAPA remand hearings and where the parties appeared party-in-person, and the lawyers were following the boycott call for regular hearings. We also saw that all the lawyers, including PPs, were clad in civilian clothing, which they informed us was due to security concern. A lawyer stated that it is the first time in his life that he is not wearing a black suit and tie in the court.
The court complex in Srinagar had a busy look while the district courts at Kulgam and Shopian bore a completely deserted look. In spite of the seemingly “normal” functioning court, there were no lawyers clad in their black and white attire in the district court complexes.
While there were some litigants in the Srinagar district court, there were hardly any litigants in any of the other district courts. Litigants and even Advocates are unable to attend court as there is no communication or transport and there are strict restrictions of movement around the Valley.
We learnt that the courts were open and “functioning”, yet matters were not taken up except for bail matters, UAPA remand hearings and where the parties appeared party-in-person. There are no other cases going on in courts. The court has been granting adjournment, recording that the matter is adjourned “due to prevailing circumstances (halaat)”.
As one enters the Srinagar district court, the court complex is barricaded. In spite of the seemingly “normal” functioning court, the courtrooms here too appeared to be missing lawyers clad in their black and white attire. The court complex is heavily barricaded with the presence of armed forces and the police.
On further enquiry we noticed that the courts were open, yet matters were not taken up except for bail matters, PSA/UAPA remand hearings and where the parties appeared party-in-person, and the lawyers were following the boycott call for regular hearings. We also saw that all the lawyers, including PPs, were clad in civilian clothing, which they informed us was due to security concern. A lawyer stated that it is the first time in his life that he is not wearing a black suit and tie in the court.
The court complex in Srinagar had a busy look while the district courts at Kulgam and Shopian bore a completely deserted look. In spite of the seemingly “normal” functioning court, there were no lawyers clad in their black and white attire in the district court complexes.
While there were some litigants in the Srinagar district court, there were hardly any litigants in any of the other district courts. Litigants and even Advocates are unable to attend court as there is no communication or transport and there are strict restrictions of movement around the Valley.
We learnt that the courts were open and “functioning”, yet matters were not taken up except for bail matters, UAPA remand hearings and where the parties appeared party-in-person. There are no other cases going on in courts. The court has been granting adjournment, recording that the matter is adjourned “due to prevailing circumstances (halaat)”.
Many lawyers referred to a fear psychosis. It is like being stripped of your robes and made to walk in public naked
As no one is appearing in cases post August 5, court sends the police to homes of the accused in pending charge-sheets/challans etc. to appear and dispose of cases. Traffic challans are being issued and people asked to appear in courts so as to show disposal.
Increased militarisation, checkpoints, checking, arbitrary clamping of curfew without any prior warning and restrictions on movement has meant that litigants and lawyers are unable to reach their offices. Circumstances are such that people are scared to venture out of their houses for any reason, let alone for court.
Lawyers informed that they are only advising clients in cases under UAPA, PSA and CrPC 107/151 and appearing in bail matters, while the general law practice is suspended on account of the hartal. One lawyer said that their income has been badly affected, but they intend to continue the hartal with each other’s support.
Lawyers said that as regards the work in trial courts, in the past, if litigants or lawyers were not present, trial court judges would observe on the order sheets “that due to prevailing circumstances, the case is adjourned”. However, the lower judiciary has been directed not to adjourn cases and pass orders even if no one appears in the cases. Advocates state that this is giving an impression of normalcy and functioning.
Advocates at Shopian district court informed us of how a few lawyers were grilled and tortured which had a chilling effect on them. The people too do not approach lawyers as they know that the judiciary is not in a position to help. The security and surveillance at the court premises are also increased and the advocates come under the state and armed forces scanner even more.
But now they are left with no choice, since more and more people in Kashmir have started perceiving Courts as just another institution of the legitimising gross violations of human rights. We were told that during protests sometimes stones fall on the court premises shattering window panes.
Lawyers shared that previously they used to get the windows repaired and broken panes replaced, but now they have stopped. Having witnessed how the integrity of the courts have been compromised, they understand the sentiments of people and stand in solidarity with them.
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Click HERE for full report
Increased militarisation, checkpoints, checking, arbitrary clamping of curfew without any prior warning and restrictions on movement has meant that litigants and lawyers are unable to reach their offices. Circumstances are such that people are scared to venture out of their houses for any reason, let alone for court.
Lawyers informed that they are only advising clients in cases under UAPA, PSA and CrPC 107/151 and appearing in bail matters, while the general law practice is suspended on account of the hartal. One lawyer said that their income has been badly affected, but they intend to continue the hartal with each other’s support.
Lawyers said that as regards the work in trial courts, in the past, if litigants or lawyers were not present, trial court judges would observe on the order sheets “that due to prevailing circumstances, the case is adjourned”. However, the lower judiciary has been directed not to adjourn cases and pass orders even if no one appears in the cases. Advocates state that this is giving an impression of normalcy and functioning.
Advocates at Shopian district court informed us of how a few lawyers were grilled and tortured which had a chilling effect on them. The people too do not approach lawyers as they know that the judiciary is not in a position to help. The security and surveillance at the court premises are also increased and the advocates come under the state and armed forces scanner even more.
But now they are left with no choice, since more and more people in Kashmir have started perceiving Courts as just another institution of the legitimising gross violations of human rights. We were told that during protests sometimes stones fall on the court premises shattering window panes.
Lawyers shared that previously they used to get the windows repaired and broken panes replaced, but now they have stopped. Having witnessed how the integrity of the courts have been compromised, they understand the sentiments of people and stand in solidarity with them.
---
Click HERE for full report
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