A sullen crowd had gathered in the lawyer’s chambers of the high court in Srinagar, the capital of Indian administered Kashmir. Amid the chatter, a woman pushed her way through to reach a lawyer seated on a chair behind a desk stacked with folders that mostly contained habeas corpus petitions. One of those folders belonged to her son’s case.
The lawyer filed a habeas corpus petition for 21-year-old Ishfaq (name changed) in October, about a month after he was detained under the controversial Public Safety Act (PSA), which allows detentions up to a year without trial.
The dossier stated the grounds for Ishfaq’s detention: that he had been remanded to preventive custody but “there is every likelihood of your release from the said custody” and hence it was “necessary” to detain him under the PSA since “normal laws are not sufficient to deter you from anti-national activities.”
The family claims that Ishfaq had already been in police custody when he was formally booked, accused of “shouting slogans” and “instigating people of adjacent areas to take part in unlawful assemblies to the prejudice of maintenance of public order.”
A resident of south Kashmir, Ishfaq’s mother was afraid of being identified as having spoken to the press. “If the police finds out,” she said, “they will send my son [to a jail outside Kashmir]. I heard they recently sent three more boys outside.”
She had, like many others in Kashmir, been caught in the fear psychosis that has engulfed the Valley since August 5, 2019 when New Delhi suspended a constitutional provision that granted the portion of Jammu and Kashmir a nominal autonomy. Since then, thousands have been detained over apprehensions of their involvement in protests, and as a result hundreds of habeas corpus petitions have been filed in the region’s high court. According to a report by a Srinagar-based rights group, Jammu and Kashmir Coalition of Civil Society, 412 habeas corpus petitions were filed post August. Lawyers in Srinagar say the actual number of the detained may be more since many languished in jails as their families had not yet challenged their detentions.
As the Kashmir region, which is a small Himalayan Valley comprising of at least seven million natives watched over by hundreds of thousands of India’s soldiers and heavily armed police, was put under an unprecedented lockdown and their civil liberties suspended, families of the detained found themselves unable to reach the court or contact a lawyer amid a total communication embargo.
As the restrictions imposed by New Delhi were eased, the number of petitions filed picked up pace on a daily basis, according to lawyers in the high court. “The figures are dynamic since fresh petitions keep coming in,” said high court lawyer Shafqat Nazir, who is among the few that take up habeas corpus petitions in the region.
Since August, several Kashmiris have been detained on mere apprehension and many lodged in jails outside Kashmir. Those in jails were “soft targets” from “all sections of the society” and shared prison cells with “hardened criminals,” Nazir said, adding that the motive behind it all was to send a larger message: “so that no one raises their voice [of dissent].”
Officially, the Indian government put the number of arrests at 5,161, claiming that only 609 of them remain in detention. However, according to Nazir, the number could be much higher since many were in informal detentions in police stations.
For the detained, the habeas corpus is the only legal recourse available. There are more than 600 habeas corpus cases pending in the court at present, more than 400 of which were filed since August 5, Nazir said. However, filing of petitions to seek justice is like holding sand in one’s fist—it slips away even as they attempt to hold onto it.
Stuck in a Broken System
The number of habeas corpus petitions might be high but a majority of the lawyers in Kashmir are wary of it. “Once you take it up, it gets on your name and that worries lawyers who aspire to be in a government service eventually,” said a government lawyer, requesting anonymity. “Seniors keep warning us not to take cases of habeas corpus.”
Besides, the process of the habeas corpus itself has been complicated owing to a broken system. The habeas corpus petition is filed on the basis of detention documents but in many cases, Nazir said, the families were delayed in approaching the courts as the detained are first kept in illegal detentions and after their formal arrests, authorities do not hand in the papers on time.
However, even after receiving the detention documents and filing habeas corpus petitions, the second step to take such cases forward hinges on the authorities filing their replies. The region’s high court has given the government extended deadlines, flouting its own norms, as a result of which most petitions are stuck and possible unjust detentions are extended.
According to the Rule 8 of Case Flow Management Rules laid down by the high court, habeas corpus cases must be disposed within 15 days and assume “preference over and above the fast track cases.” This time around, Nazir said that the court itself was giving the government three weeks, to begin with, to respond to the petitions and later extended the same.
Nazir added that few PSA cases were quashed since August 5 and “most of them were cases from the months before August” since the authorities were not filing their responses to the petitions.
Over the years, as the contours of the conflict evolved, the region’s security apparatus has used alternative means to further strengthen its stranglehold. Part of the evolution is more and more civilians taking active part in opposing Indian rule in Kashmir, primarily in stone throwing confrontations on the streets,.
An Alternative Tool to the PSA
Authorities in Kashmir have now found a new route to prolonging detentions through India’s stringent anti-terrorism law and the Unlawful Activities Prevention Act (UAPA), which was recently amended by New Delhi to give more powers to the lower ranks of the police to book individuals under its provisions.
“It is an alternative tool to the PSA,” said Mir Urfi, a senior lawyer specialising in the UAPA. “The person is kept under custody for upto six months, as the law requires the court to give specific reasons for bail which is not possible without trial. How can the court, without investigation, say someone is not involved in a case?”
Until recently, the law was seldom used but now its use has picked up pace, said Urfi. “It is being used frequently since 2018, particularly in south Kashmir where people were being booked [in high numbers],” she said, adding that at present there are about 450 cases pending in the court under the UAPA, and that unlike the PSA, it had no safeguards against booking minors under its provisions.
Indian authorities in Kashmir, Urfi continued, were misusing the law as it has an inherent presumption that the person booked is guilty. “In a usual course, they are presumed to be innocent unless the guilt is proven, but in the UAPA the onus is on the accused to prove that he is innocent,” she said. “It should be used in rare cases where the police are sure that a person is involved, but the police has used it even on people who hurl stones.”
Substantiating her claims of the law’s misuse by authorities, Urfi pointed to two recent cases wherein four people were charged under section 13 of the act – punishment for “unlawful acts” by a fine and imprisonment upto seven years – for celebrating New Zealand’s victory over India in the cricket world cup in July.
Three have been granted bail but the fourth, Ashiq Hussain Rangraiz, remains detained and will complete 13 weeks in formal detention on Dec. 7. The family alleged that he was in detention prior to the date of detention given officially. For the past three months of his detention, Ashiq’s mother, wife and two kids have been making regular trips to the court. His brother is also in detention at the local police station for.
The only breadwinner of a family of six, Ashiq had been a staunch supporter of the separatist cause since he was a teen and contributed to the struggle like many other young Kashmiri civilians have: throwing stones at Indian security forces. But the family said his stone-throwing days were long over.
However, once on the radar of government forces, things rarely go back to how they were before. The school and private tuitions fees of his two children, aged five and 10, are pending and the two have since been studying at home. Rangraiz’s five-year-old Numa cries herself to sleep, longing for her father, said her grandmother Tota Begum.
Owing to the police’s failure in building cases against individuals that would stand in the court, authorities have resorted to the wanton use of the Public Safety Act, invoked on vague, sometimes unsubstantiated, accusations of disruption of public order, enabling the police to keep individuals believed to be instigators of violence “out of circulation,” some senior police officers admitted.
Urfi believes that it is, perhaps, “state policy to not convict and punish them through the trial phase which takes years to conclude, involving trips to court that mentally breaks them. It’s a form of mental harassment. During the trial period, they miss their dates if they coincide with VIP movements or functions and they are summoned to the police station [and detained for the day].”
In addition to the use of draconian laws against them, detained Kashmiris now find themselves jailed far from their homes which has made accessing the justice system even more difficult, say lawyers. Key to the August wave of detentions was the lodging of detainees in jails outside the Kashmir Valley.
A widespread belief in an exaggerated reports of detentions and the number of Kashmiris lodged in jails outside Kashmir has created a fear psychosis that has invariably helped Indian authorities in maintaining a fragile calm in Kashmir.
The idea was first suggested by the police to the government during the unrest in 2016. “We had suggested sending some [separatists] outside Kashmir. It would have ended the unrest in the first month,” the police officer said, adding that the same could not be done as the then chief minister of the then state of Jammu and Kashmir, Mehbooba Mufti, “did not allow us to do so and the cycle of killings went on and on.”
However, as evident from the slow proceedings in the court, and in the case of Khalida Shah, a unionist leader and sister of parliamentarian Farooq Abdullah, the court dismissed her petition for ending her house arrest citing that newspaper clippings could not be admitted to the court and that the police had disputed her claims of arrest.
“There is mere access to the justice system, the complications inside prevent petitioners from actually getting justice,” a retired judge of the high court said. “The state can’t be seen visibly stopping a person from accessing justice so they create hurdles: they don’t provide documents on time or don’t provide them at all. The state has expanded so much that you encounter it in every aspect of life. When such a state behaves in a way that those legally challenging its actions feel insecure despite provisions to access the justice system, you simply can’t fight it.”
According to a 2009 report by the Allard K. Lowenstein International Human Rights Clinic at the Yale Law School, “By failing to handle habeas petitions expeditiously, the Kashmiri judiciary has failed to guarantee the fair-trial rights of many individuals detained under India’s national security laws.”
Analysing the courts functioning with respect to the habeas corpus at a time when enforced disappearance of Kashmiris by Indian forces was common, the report observed that even then “most courts do not object to or challenge either the state’s failure to participate fully in proceedings or its delay tactics.”
Meanwhile, for the families of those detained, justice continues to be evasive. “In Kashmir, it is not just the man in jail who is serving an unjust prison sentence. His family serves it with him and the police makes sure it goes on for life,” Ishfaq’s mother had said before rushing out of the court.