A year when courts failed to hear petitions and left jailed Kashmiris at the mercy of the government
Last year on August 5, recalls 27-year-old Faisal Aslam Mir, he had stepped out to buy medicines for his mother. Kashmir was already under a blanket of restrictions – all communication lines had been snapped, an undeclared curfew was in place, paramilitary troops had taken over the streets, Srinagar had disappeared in a haze of concertina wiring. Maisuma, the densely packed locality where Mir lives, is in the heart of the city. Mir decided to brave the restrictions.
“I was picked up by the police and taken to Maisuma police station,” said Mir, now back in his home in Maisuma. “Initially, I thought they would let me go by evening but then it struck me that August 15 is not away. I got a feeling that they would let me go after August 15.”
Mir did not yet know that the Centre had announced sweeping changes to Jammu and Kashmir that morning. The state was to be stripped of special status under Article 370. The government had repealed Article 35A, the law which empowered the state’s legislative assembly to define “permanent residents” of Jammu and Kashmir and reserve for them certain rights, such as the right to hold government jobs and own land in the state. The state of Jammu and Kashmir would cease to exist, the Centre decided. It would be split into two Union Territories – Ladakh, and Jammu and Kashmir.
Mir’s troubles did not end on August 15. A few days after being detained, he was transferred to Srinagar Central Jail. “On August 21, we were taken to a jail in Uttar Pradesh,” he said. That morning, Mir recalled, they were woken up early by the wardens at Srinagar Central Jail and brought to the Border Security Force headquarters near the Srinagar airport.
“After that, we were put in a Dakota plane along with policemen,” continued Mir. “We were a group of 30 prisoners. It took us about four hours to reach Lucknow, another five hours to reach the jail in Ambedkar Nagar.”
Mir would remain in the Ambedkar Nagar jail till July this year.
“I had no idea I had been booked under the Public Safety Act,” he said.
Surviving the Public Safety Act
The Jammu and Kashmir Public Safety Act is a preventive detention law where prisoners may be held without trial for up to a year if arrested on charges of threatening public order and for up to two years if deemed a threat to national security. The police need not reveal grounds for detention for up to 10 days after the prisoners are held. In some cases, they may withhold the reason altogether.
Mir said he was not informed for months. “On August 10, we were given a three-page document to sign,” he said. “The document mentioned that we were under preventive detention for 12 days. That’s it.”
In the dossier compiled by the police and seen by Mir months later, he is accused of being a threat to the maintenance of public order, an “anti-social element” involved in stone-pelting and enforcing strikes.
Life in jail was harrowing. “Nobody came to visit me in all the time I was detained,” he said. “My mother was all alone and couldn’t afford to come all the way to Uttar Pradesh. I only saw her face once during the time I was detained in Uttar Pradesh. That was on a video call they allowed seven months after I had been detained.”
He went into depression and developed back problems in jail, Mir said. “For six months, I was wearing the same kameez-salwar,” he recounted. “I used my arm as a pillow. When I was unable to sleep, I took sedatives.”
Mir’s family is his mother and a married sister; his father died over a decade ago. His mother and he lived on what he earned as a salesman and technician for a water purifier company. After August 5, that income dried up.
Back in Srinagar, his mother, Ateeqa Begum, fought a lonely battle to get her son released. She approached the Jammu and Kashmir High Court in the last week of August with a habeas corpus petition. At least 12 separate hearings were held. In the end, it was the government which relented.
“On June 7, Jammu and Kashmir home department had ordered the revocation of my detention order,” said Mir.
His counsel, Wajid Haseeb, said the court disposed off the matter in mid-July, after the government presented Mir’s detention revocation order before the court. “Since the detention order was revoked, the petition was rendered infructuous,” he added.
These days, Mir is a free man but he still feels shackled to the past. “I am taking rest because of my back problem but eventually I will have to work,” he said. “My worry is that nobody will give me a job because of my detention. Why would someone invite trouble by hiring me?”
When the courts failed
Mir’s case is part of a pattern where the high court failed to come to the rescue of individuals held under the preventive detention law, which the Supreme Court itself has called it a “lawless law”.
On June 25, Jammu and Kashmir High Court Bar Association wrote a detailed letter to the Chief Justice of India about the state of affairs in Srinagar-wing of Jammu and Kashmir High Court.
According to the letter, the members of the association, which represents over 1,500 lawyers in Jammu and Kashmir, had been compelled to go to the Supreme Court as the chief justice of the high court had failed to address their problems. One of these problems, the letter said, was the failure to hear the habeas corpus petitions challenging the detentions under the Public Safety Act.
“Since 6th of August, 2019, more than six hundred Habeas Corpus Petitions have been filed before the Hon’ble High Court of Union Territory of J&K at Srinagar and till date not even 1% of such cases have been decided by the J&K High Court,” said the letter.
Jammu and Kashmir home department officials estimate that, in the run up to and aftermath of August 5, more than 500 people were booked under the Public Safety Act in Jammu and Kashmir. That included stone-pelters, lawyers, separatist leaders of the Hurriyat as well as leaders of pro-India parties. In February 2020, Union Minister of State for Home G Kishan Reddy had informed Rajya Sabha that 444 people had been detained under the law since August 5. Reddy had claimed at the time that 389 were still under detention. Police officials, who did not want to identified since they are not authorised to speak to the press, said around 250 Kashmiri detainees are still lodged in jails outside the Union Territory.
According to the Jammu and Kashmir Coalition of Civil Society, a Srinagar-based human right group, 412 writ petitions had been filed by the families of detainees between August 5 and the end of 2019. The letter written by the bar association in June claimed that some petitions filed in August and September last year had still not been heard by the high court.
“The first problem which the lawyers who conduct these cases is that no direction has been given by Hon’ble The Chief Justice, asking the Registrar Judicial to list these HCPs [Habeas Corpus Petitions] before every Judge irrespective of their daily roster, so that the petitions are decided within 14 days as per the Rules formulated by the Hon’ble High Court with regard to the HCPs,” the letter states.
According to the Rule 8 of the Jammu and Kashmir High Court case flow management rules, the high court needs to issue a notice to the government within 48 hours of a habeas corpus petition being filed. The government must submit its response within three days of the notice.
“A Habeas Corpus petition has to be disposed off within a period of 15 days,” explained Shafqat Nazir, an advocate at the Jammu and Kashmir High Court. “It’s mandated by the case flow management rules prepared by the court itself. But that hardly happens with these petitions.”
GN Shaheen, a senior advocate at the high court, said the current delays in hearing habeas corpus petitions were unprecedented. “It’s the first time I am witnessing a total collapse of the system,” he said.
Before August 5, 2019, he said, the court would take five to six months to dispose of a habeas corpus petition. “But after August 5, they are not even hearing such matters – nobody listens,” he said.
Government proposes, government disposes
Nazir despairs of being able to help families seeking justice. “I have filed around 20 habeas corpus petitions for my clients after August 5 and I haven’t been able to get even a single one of them quashed by the court,” explained Nazir, one of the few advocates in the Srinagar high court who takes up Public Safety Act cases.
According to him, most of the releases post August 5 happened because the government had revoked the detention orders, not because the court came to their aid. “I have had a few cases where the government revoked the detention order on its own,” he said.
Haseeb, who represented Mir in court, has had a bit more luck. Since August 5, 2019, he has filed 120-130 habeas corpus petitions. Of these, the court has quashed around 15 detentions under the Public Safety Act.
But the government revoked many more such detention orders on its own. “Around 40-45 detentions were revoked by the government and some of the detentions expired on their own,” said Haseeb. “Currently, 30-40 petitions are still pending.”
According to Haseeb, the lockdown to contain the spread of the coronavirus pandemic, imposed in March, also added to the delay. “Around March, we had seen that PSAs were starting to get quashed by the court,” he said. “If there was no lockdown, we would have seen many more detainees walking free.”
Shaheen has had limited luck with petitions challenging Public Safety Act detentions. “After August 5, I filed around 40 habeas corpus applications out of which around eight were quashed,” he said. “Some three PSA detention orders against timber smugglers were revoked as well. Around 30 matters are still pending.”
Scroll.in could not independently verify the total number of Public Safety Act detentions quashed by the high court since August last year as the court is closed because of the Covid-19 lockdown.
A long way from home
Even if the high court quashes the detention order, home is still a long way for some prisoners.
On July 22, there was celebration at the Rather family home in North Kashmir’s Baramulla district. The high court had quashed the detention order of 60-year-old Abdul Majeed Rather, who was arrested from his home on August 3 last year and is still in a jail in Agra.
But the family is gearing up for another struggle: how to get him home. To get him released, someone would have to go to the Agra jail and produce the high court order in person. Then, there was the return journey.
“I last saw my father in a police station on August 3 last year,” said Danish Majeed Rather, his youngest son. “Since then, none of us have seen his face or met him. We are too poor to be able to afford a trip to Agra. That’s why we are worried now. We don’t know how to bring him home. It will cost Rs 50,000-60,000.”
Before he was detained, Rather cultivated the small plot of land he owned and sometimes did daily wage work. Now, the family depends on the meagre earnings of his two sons. “My elder brother has a private job and that’s what sustains us,” said Danish Rather. “There are no savings.”
The family challenged Rather’s detention in the Jammu and Kashmir HIgh Court in October last year. Bashir Ahmad Tak, his counsel, said the police had dubbed him a “stone-pelter” and a “Hurriyat activist” in the dossier explaining the grounds for detention.
“They had booked him in old FIRs dating back to 2016,” said Tak. “I argued that he’s just a poor farmer who’s too old to indulge in any such activity. Finally, after at least 10 hearings in the petition, the court quashed his detention order.”
At his home in Pattan area of Baramulla district, Rather’s family is worried about his health. “He had issues with his eyesight but during summers he gets a lot of skin allergy and his skin peels off on its own,” said Danish Rather. “We are happy that his PSA has been quashed but we are worried about when he will finally be home.”