Crackdown on lawyers narrows road to justice in Kashmir

Bandipora/Srinagar – For nearly a month, Shafia Ganai, a softly-spoken 19-year-old undergraduate student of sociology in northern Kashmir’s Bandipora, has visited the police station every day.

“The security forces took my brother Mohsin, a quarry worker, in a raid on our neighbourhood on August 16,” she said. “When I go to the station, the police ask me to come the next day, that they will release him in one or two days. But 27 days have gone past like this.

“I checked many times with the duty officer, who records the daily entries in the station. He says there is no first information report (police complaint) registered against my brother,” she told Al Jazeera.

The absence of any order for his detention makes it impossible for the family to pursue a legal case against the police or to secure Mohsin’s freedom, she said.

Police in Indian-administered Kashmir have detained more than 3,000 people and arrested over 300 after the government led by Hindu nationalist party, the Bharatiya Janata Party, stripped the region of its relative autonomy on August 5.

Those arrested include senior lawyers, making people’s legal fights difficult.

Among the first arrested after the government lockdown in the Kashmir Valley were senior functionaries of the High Court Bar Association of Jammu and Kashmir, a professional association of lawyers based in Srinagar, the main city of the Muslim-majority region.

The police arrested its president, Mian Abdul Qayoom, and its former president, Nazir Ahmad Ronga. Both are being held in prisons in the state of Uttar Pradesh, 1,000km (620 miles) away.

They were booked under the Jammu and Kashmir Public Safety Act (or PSA), under which people can be jailed for up to two years without trial.

Mir Urfi, a young female criminal lawyer who practises in the district court in Srinagar, said the government had no valid grounds to arrest Qayoom, the association’s president.

“In grounds of arrest, the police wrote: ‘We apprehend that you (referring to Qayoom) will motivate people to agitate against abrogation of Article 370’,” she said.

The police also booked the presidents of the bar associations of Baramulla district court, advocate Abdul Salam Rather, and of Anantnag district, Fayad Sodagar, under the law, which the Amnesty termed “repressive” and “draconian”.

Lawyers based in Srinagar said Sodagar was on the run and Rather had been arrested and was being held in a prison in the northern state of Uttar Pradesh.

Objecting to the arrest of their colleagues, and to support the larger protests in the region against the government’s actions, the 1,050-member lawyers’ association has gone on strike.

It has, however, requested seven lawyers to file habeas corpus (unlawful detention) applications to help the families of those detained across Kashmir.

Decades of unrest

Dilbag Singh, the Director General of Police, said arrests of lawyers were based on their “past credentials”.

“We have to look at what they have done earlier, if they fuelled militancy. Over a thousand lawyers practise at the bar, but we have detained only a few,” he said at the police headquarters in Srinagar.

Responding to allegations of preventive detention without any formal criminal complaints, Singh said no one was detained unlawfully in the state.

The bar association prides itself in providing pro-bono services for victims of human rights violations and other prisoners. Mian Qayoom himself was representing many of those imprisoned under PSA, lawyers said.

“The bar has an identity here,” said senior human rights lawyer Mir Shafaqat Hussain referring to the readiness of the bar to take up habeas corpus cases. “But we relied on the law and the constitution to fight for justice. How can a lawyer’s work be deemed a threat to public safety?”

Mohammed Ashraf Bhati, Secretary of the bar association said the association had gone on strike previously during the decades of unrest. “But now, we cannot talk freely even in court,” he said.

Many lawyers did not want to talk on record fearing arrest. A lawyer from the town of Handwara in Kupwara district in north Kashmir told Al Jazeera that he was not allowed to meet the family of a client who had alleged torture at the hands of security forces. He declined to be named. “I do not want to be unnecessarily booked under PSA,” he told Al Jazeera. 

On September 16, the Supreme Court in Delhi said that it was “very serious” if people were unable to approach the Srinagar Bench of the High Court, and sought a reply from the High Court authorities.

The Jammu and Kashmir government spokesperson, however, claimed, among other things, that the administration had ensured access to courts. “High Court and lower courts are also functioning normally in Kashmir, Jammu and Ladakh,” the government said in a statement in court.

A member of the high court bar association said the number of orders and cases being heard has drastically gone down.

“Earlier, it would be routine for 2,000-3,000 orders to be issued in the high court in one month, now it is not even a third of that,” he said, declining to be named. “Now, the government is going around arresting people, little other work is on, so only habeas corpus petitions are being filed.”

The court staff said that 200 habeas corpus petitions had been filed between August 5 and September 11. Orders passed by the court in August available on its website showed that litigants and their lawyers could not be present “on account of restrictions on movement of traffic in the state”.

For the relatives of those detained, even reaching the court is an ordeal. Security restrictions as well as a civil curfew to protest against the August 5 announcements have kept public transport off the streets.

Since the abrogation of article 370, the government has blocked internet services and mobile phone connectivity in the region of about 7 million people. This has made it harder for people to communicate with their lawyers.

On September 11 and 12, the court hall was empty with few lawyers, most of them in plain clothes owing to the strike, and few litigants. Just outside the court walls, bulletproof vehicles kept watch near the entrance.

One of the few litigants in court on September 12 was Lateef Dar who came from Sopore town in north Kashmir, 70km (43 miles) away, to find out the status of the habeas corpus petition of his 25-year-old brother-in-law, Shahnawaz Dar, who had been arrested under PSA on August 20.

“For 10 days we did not know which police station he was being held in,” said Dar. “My brother-in-law is a daily wage worker with a six-month baby,” he said.

Exacerbating the problem is the nearly dysfunctional postal service which the legal system relies on heavily, especially to issue notices to the parties. “In habeas corpus cases, we have to send notices to the state and jail authorities. How do we do that when the administration has shut down the post offices services in the Valley?” said advocate BA Tak, who is representing those arrested from the Bandipora district.

Some lawyers in the High Court said that they were disappointed after the court refused to allow two of its members to meet the lawyers’ association head Qayoom in the Uttar Pradesh prison.

“Meeting in prison is a statutory right of all prisoners,” said senior human rights lawyer Parvez Imroz. “But we are not able to get simple orders related to visits by relatives, specific medical treatment, or diet.”

A 2009 report, The Myth of Normalcy: Impunity and the Judiciary in Kashmir, published by Yale Law School, spoke about the “culture of impunity” reinforced by the Kashmiri judiciary by way of inordinate delays and substantive leniency to the government, especially while adjudicating human rights violations.

Urfi, the young woman lawyer from Srinagar, said despite having fought cases successfully and freeing her clients, she felt disillusioned. Two of her clients from Soura area of Srinagar, who were detained during protests, were released on bail. But they were immediately arrested again under PSA.

“The cycle of torture is activated against the client even after they are freed,” she said.

“They are detained before any major event such as this one. The first police report becomes a turning point in their lives. Despite freeing clients, I never feel justice is done.”