The Blow to Kashmir's Frail Justice System
WHY YOU SHOULD CARE
Unlike the rest of the world, Kashmir's harsh internet restrictions mean courts haven't meaningfully shifted online, leaving a ballooning number of prisoners awaiting trial.
By Yashraj Sharma
- Even before COVID-19, Kashmiris had to battle what has often been a Kafkaesque criminal justice system, with little transparency.
- Since the pandemic started, the absence of reliable internet has forced courts to almost shut down operations.
- That’s led to a scenario today where 90 percent of prisoners in Kashmir’s jails have yet to see the start of a trial.
Shahida Jan had her family by her side, but she felt alone in the days before death came knocking on her door. She had been suffering from hypertension since her youngest son, Javed Khan, was detained by the Kashmir police in September 2019. “She would only ask about him all day,” says Jan’s other son, Amir. “She kept asking me, ‘When will Javed return home? I want to see him once.’”
She passed on a chilly morning in November 2020, her wish unfulfilled. Jan last saw Javed in the first week of March 2020, 10 days before a stringent coronavirus lockdown barred visitors at jails across India. Before the lockdown, Javed’s case had been listed for a final hearing. Like in other parts of India and the world, the pandemic forced courts online.
But harsh restrictions on internet access in Kashmir since India’s clampdown in the region in August 2019 have meant that the shift online has been harder for the legal system in this region than anywhere else in the country. India restored 4G connectivity only in February of this year. So COVID-19, a disease that has killed more than 2.5 million people worldwide, is also dealing a crippling blow to Kashmir’s already struggling criminal justice system.
Jammu and Kashmir, previously India’s only Muslim-majority state before it was stripped of its autonomy and statehood in 2019, has long battled human rights violations, its people victims of brutal clashes between security forces and militants. But after the change in Kashmir’s status in 2019, New Delhi locked up 7,357 persons under “preventive detention” provisions — in effect, before they had even committed an offense.
At least give us a chance at fair trial.
Amir Khan, brother of a prisoner awaiting trial in Kashmir
And with the COVID-19 lockdown effectively sending Kashmir’s courts into hibernation, the number of prisoners in the region’s jails who are still awaiting trial has ballooned by more than 20 percent, from 3,075 in 2019 to 3,735 now. In all, 90 percent of Kashmir’s prisoners still have to face trial, 20 percent higher than an already obscene national average. With no hope in sight, families like Javed’s are forced to hide the truth from one another — they are yet to inform Javed about his mother’s death.
“I’m afraid,” says Amir. “We have lost our mother; now if he takes tension, [then] I don’t want to lose him.”
Even before the pandemic, Javed’s case was emblematic of the Kafkaesque nature of Kashmir’s criminal justice system. In 2018, the police accused him of links with militants, but he was granted bail by a criminal court. Then, the police charged him with endangering public safety. A high court quashed those charges, accusing authorities of “not applying [their] minds properly.” But he was then slapped with the same charges again, this time in the aftermath of Kashmir’s changed status in 2019, ostensibly to prevent him from disrupting the “security of [the] state,” per his case files accessed by OZY.
Yet the pandemic and internet restrictions have set up a particularly bizarre situation, where even as New Delhi locks up more and more Kashmiris, the courts are convicting or acquitting fewer and fewer people. The result? The chances of a fair trial are slim, says Shafaqat Nazir, a human rights lawyer who practices at the Jammu and Kashmir High Court.
The problem runs deeper than the lack of internet access, he points out. Courts, especially in cases relating to militancy, demand that original, physical copies of all records be presented to them. But court premises have now been closed for almost a year because of the pandemic. “Since those [records] couldn’t be presented, my clients … sit in jail,” he says.
The shift in Kashmir’s power dynamics — it is now directly governed by New Delhi as a federally administered region — has also played a role in the attitude of the courts, says retired justice Hasnain Masoodi, currently a member of Parliament. “[The] judiciary is not a watertight compartment,” he says, adding that the “justice system has become insensitive now.” With courts barely functioning because of COVID-19, he says, the police in Kashmir are using laws to hand out “pretrial punishments.”
For lawyers like Nazir, this crisis undermines their very profession. “As a lawyer, I’m embarrassed to face my client,” he says. “I’ve not been able to give him a fair trial for more than a year.”
There’s some hope on the horizon, Nazir suggests, with the chief justice of the Jammu and Kashmir High Court ordering in February that physical hearings could restart at all courts across the region.
But not everyone is optimistic. Amir, Javed’s brother, has been running from pillar to post to secure his brother’s release — unsuccessfully. When his legal counsel ghosts him, possibly because he doesn’t have an explanation for the court delays, Amir reaches the lawyer’s residence to seek a response.
He speaks with Javed once a week. “Last time, he asked me, ‘What have you done about the case? What does the court say?’” Amir recalls. He lies to his brother that his release is imminent.
“What to do now? He is a young, educated person. Even if he committed a mistake, then he has served enough for that,” says Amir. “But for God’s sake, at least do justice with us now. At least give us a chance at fair trial.” It’s a far cry from the mood in the family home just two years ago. “We were prepared to get [Javed] married,” says Amir. “Now, everything is finished — we keep going to the court and come back [with nothing].”
- Yashraj Sharma, OZY Author Contact Yashraj Sharma