How Functional Are J&K Courts Post Art 370? Here’s a Reality Check

Habeas corpus petitions aside, most non-political matters in J&K HC & the subordinate judiciary have gone unheard.

Image used for representational purposes.

(Photo: Kamran Akhter / The Quint)

As many as 253 habeas corpus petitions, according to Registrar General at J&K High Court, Sanjay Dhar, have been filed in the Srinagar wing of the Jammu and Kashmir High Court — between 5 August and 19 September — by political leaders, activists and civilians, who had been detained by the J&K government under the Public Safety Act (PSA) and other laws, since 5 August. Dhar said that the defence counsels and the government advocates had appeared in the hearings for these cases.

This (the 253 odd habeas corpus petitions) is in addition to half-a-dozen writ petitions filed by the friends and family members of the detainees seeking permission to meet or provide them with medicines at different detention centres. Lawyers and government advocates have appeared in most, if not all, detention matters of politicians and separatists.

However, most of the non-political matters in J&K High Court and the subordinate judiciary in the Valley have gone unheard, as very few of the private advocates have appeared in the last 46 days.

Many Litigants Themselves Have Appeared at J&K High Court

In a number of cases, which do not involve technical and legal complexities, litigants themselves have appeared at the High Court, as well as in subordinate courts.

Judges have disposed of many of such matters with different orders.

Coming back to the habeas corpus petitions, while the State has been represented by Advocate General (AG) DC Raina and his team, the petitioners have been represented by private counsels including senior members of the High Court Bar Association (HCBA), as all the cases related to militants, separatists and political detainees have been exempted from the boycott. Officials, as well as lawyers, insisted that HCBA has not formally issued a call for boycott to the courts.

“This is an extemporaneous boycott, like the continued shutdown of traders and transporters, for which nobody has issued a call,” said a High Court official, Altaf Ahmad. “All the judges, staff and the government advocates attend their duties. Around a dozen of the private lawyers too appear in certain cases, but the lawyers’ boycott is almost complete.”

‘How Can You Draft a Petition Without a Lawyer?’

Fearing trouble from both the lawyers’ fraternity as well as the government, a senior advocate spoke to The Quint on the condition of anonymity. “The High Court, as well the subordinate courts, are very much accessible and functional, as far as the judges and government advocates are concerned. But the question is how can you draft a petition without a lawyer, and who will pursue a matter before a judge? What can I do at my chamber when my stenographer doesn’t turn up?”

“Three of the top office-bearers of HCBA have been detained. Nobody knows how and when the boycott would end,” said the lone advocate at his chamber in Rajbagh, which has not opened in the last 46 days.

HCBA members, including senior advocate Zaffar Qureshi, Manzoor Ahmad Dar and Mufti Meraj-ud-din, have appeared in a number of petitions filed by different separatist leaders and activists. Advocate Ghulam Nabi Shaheen has been appearing in the habeas corpus petitions filed by the former HCBA President, advocate Nazir Ahmad Ronga. Initially, senior advocate Zaffar Ahmad Shah is said to have appeared in some detention matters, but currently he is reported to be outside Jammu and Kashmir.

Former AG Mohammad Ishaq Qadri has appeared in a petition filed by Farooq Abdullah’s daughter and son-in-law. The High Court ordered and facilitated the petitioners’ meeting with the former chief minister.

Two Interesting Cases Being Heard

Also, advocate Shabnam Lone has appeared in a writ petition that has been filed on behalf of her mother, seeking a meeting with her detained son and former Minister Sajjad Gani Lone. The petition has been disposed of as the J&K High Court ordered the facilitation of the petitioner’s meeting with her son at Centaur Hotel, near Sher-e-Kashmir International Conference Centre, which has been designated as a makeshift ‘jail’ post 5 August.

But the most interesting legal fight has been between the prominent separatist leader and senior advocate Mian Abdul Qayoom, President of HCBA, and the State.

Qayoom has been reportedly lodged in a jail in Agra. While Qayoom is being represented by the HCBA team comprising Zaffar Qureshi, Manzoor Ahmad Dar and Mufti Meraj, none other than his own son-in-law and the Government’s Senior Additional Advocate General (Sr AAG) — Javed Iqbal Wani — is contesting the case against him on behalf of the State.

Functioning of J&K Courts: What Pre-5 Aug & Post-5 Aug Data Reveals

The Quint learned from well-placed authoritative sources that, following a communication from the Supreme Court and Chief Justice Ranjan Gogoi’s remarks during the hearing of a petition filed by human rights activist Enakshi Ganguly, the J&K High Court has videographed several proceedings and activities, establishing that the functioning of the courts had not come to a complete halt.

According to the official data accessed by The Quint, as many as 8,302 cases have been listed and heard by the Single Benches of Justice Rashid Ali Dar, Justice Sanjiv Shukla and Justice Ali Mohammad Magray from 5 August to 16 September, in Srinagar.

The cases disposed of during the period include 352 main suits.

The Division Bench, comprising Chief Justice Gita Mittal and Justice Rashid Ali Dar, has listed and disposed of 487 cases. Twelve main cases and 20 miscellaneous matters are among the cases disposed of by the DB.

In all, 352 fresh cases —106 civil and 246 criminal — have been instituted in the Srinagar wing of the J&K High Court during the same period. Of them, 251 cases have been disposed of.

In contrast, 1282 fresh cases had been instituted and 1,594 cases disposed of in Srinagar wing of J&K High Court in August, 2018. The number of cases instituted and disposed of in September 2018, was 916 and 1,127 respectively.

In July 2019, as many as 1,010 fresh cases had been instituted, and 896 cases disposed of. Even during the month of June 2019, when J&K High Court was closed due to vacations for about 20 days, 373 fresh cases had been instituted and 401 cases disposed of.

Cases Instituted & Disposed Of in J&K Districts from 5 Aug to 16 Sept

GFX Courtesy: Kamran Akhter / The Quint)(Data: Sourced by Ahmed Ali Fayyaz)

‘Almost All Courts in Kashmir Have Been Affected’

In all, as many as 4,400 cases have been instituted, and 17,629 cases listed and disposed of in the 22 district courts across Jammu and Kashmir from 5 August to 16 September.

In addition, 589 old cases — that had been going on for 5 years or more — have also been heard and disposed of.

Besides, 4,757 documents have been registered in the same courts in the 43 days since 5 August.

“This is a little below the progress of the normal days, but it’s wrong to say that the courts have not been accessible/functional and the counsels have not been available,” said an official at J&K High Court. He admitted that the work in almost all the courts in Kashmir had remained “affected to some extent” as the lawyers have been barred by their association from appearing in cases other than those related to militants, separatists and politicians’ detention.

Subordinate Courts Have Suffered Due to ‘Boycott’

In the institution of fresh cases in Kashmir, Shopian (13), Ganderbal (24), Bandipora (27) and Budgam (39) do figure at the tail end — even as 207 cases have been filed in Srinagar district. As regards the disposal of cases, Kupwara (46), Shopian (65), Bandipora (98) and Ganderbal (125) are the worst-affected. On the other hand, Srinagar (738), Baramulla (417), Budgam (270) and Kulgam (196) have performed relatively better in Kashmir.

(The writer is a Srinagar-based journalist. He can be reached @ahmedalifayyaz. )