When I arrived in Kashmir, every person had a story about the last three months of conflict. Regardless of whom I spoke to, they had either been directly affected by the violence or knew someone who had.
There is a general state of inevitability among the people, of helplessness. Human rights organizations, including bigger ones like the APDP that have received global attention, have largely suspended their work. The first external fact-finding mission only landed towards the end of my trip. I turned to the only group of people I expected would be working over-time to alleviate a spiralling human rights crisis in such a situation: lawyers.
Only to find that they have been on strike since the revolution began on July 8, when Burhan Wani was killed.
Over the course of the month, I questioned every lawyer I met, including the entire Executive Committee of the Bar Association to find out the reasons behind the strike and the considerations that are driving it.
Why are they on strike?
Since the curfew was lifted, the Hurriyat Conference has called a strike in order to force the government to enter a dialogue about Kashmir’s right to self-determination. The Jammu and Kashmir High Court Bar Association has been endorsing the application of the strike to lawyers. Consequently, lawyers in the valley have not been appearing before the High Court as well as subordinate courts since July 8.
As a law student, a lot of my questions revolved around the legal responses to the human rights violations. I was taken aback to find lawyers sitting around, twiddling their thumbs, while everyday newspapers listed human rights abuses as long as a laundry list. The only coverage this fact has gotten is a mere line in a number of articles stating that they have extended such support.
I was taken aback to find lawyers sitting around, twiddling their thumbs, while everyday newspapers listed human rights abuses as long as a laundry list.
However, it deserves a lot more attention, given the large number of arrests and arbitrary detentions that have been executed in the course of these 100 days. Greater Kashmir, the leading daily in the valley, estimates that over 9,000 have been arrested and another 5,500 are still wanted. Moreover, about 550 preventive detention orders under the Public Safety Act (PSA) have been slapped on leaders of the revolution and common protesters alike.
In other words, they can be detained for three to six months, without trial. In the midst of such arbitrary exercise of executive action resulting in scores of human rights violations, lawyers, who are the only people who can take concrete action to address the same, are on strike.
Mian Qayoom, the President of the Bar Association justified the decision saying that lawyers are a part of the society and while the rest of Kashmiri society protests, they cannot be the only ones working. Till the time shops and business establishments are shut, they cannot be the only ones at work. He reasoned that the abuses are the state’s response to the protests and any long-term solution lies in resolving the underlying dispute.
However, in the here and now, it is shocking to see lawyers refuse to appear before courts even in human rights cases. In the process of trying to unravel the reasons behind the strike, I learned that, in fact, lawyers are appearing for bail and are drafting habeas corpus petitions to quash PSAs. Moreover, a number of junior lawyers have broken the strike on occasion without any repercussions. The Bar Association has had to arrive at the peculiar compromise in order to balance various, inter-related, and often contradictory, moral and financial considerations at stake.
Liberty: the Moral Question
The Bar Association has appointed a team of lawyers before the district court to work on bail matters. Similarly, lawyers are permitted to draft briefs in habeas corpus petitions for PSA detainees, though they may not appear before the court. So the lawyers draft the petitions and the family members of the detainee appear before the judge to plead the case.
However, this system is far from effective.
Though the judge could speak Kashmiri, on appearing before him, she froze with fear, unable to utter a single word.
In a PSA petition last week, the mother of a detainee appeared before the judge. The detainee was a minor and thus, could not be detained under the terms of the Act. The lawyers instructed her to merely place this fact before the judge and assured her he would do the rest. The petitioner was an illiterate woman from Kulgam district and could not even speak Urdu. Though the judge could speak Kashmiri, on appearing before him, she froze with fear, unable to utter a single word. The judge, assuming it to be a ‘routine’ PSA matter, gave the other side four weeks’ notice. Coming out of the courtroom, the woman burst out in tears.
In the past when there have been similar strikes, in 2008 and 2010, specific lawyers have been exempted to deal with matters pertaining to liberty, i.e. bails and PSA quashing petitions. However, the same exemption has not been made this time around (lawyers are permitted to appear in bail cases, though none have been specifically exempted).
Mr. Bashir Siddiq, the General Secretary of the Bar Association explained the Bar’s decisions saying that the atrocities have been far graver this year. Never before had the young been blinded, and never have so many been killed. The protests across the valley have been consequently been far more intense, and it was a conscious decision to not make any exemptions.
Mian Qayoom said that it is also a more practical arrangement because it is impossible to ensure that exempted lawyers do not appear in other matters once they are present before the court. Furthermore, once the lawyer is already present before the court and other matters in which he is listed are being heard, he is not in a position to refuse to argue.
Moreover, it is arguable that lawyers should not be appearing even in cases of liberty. Even in cases where the court quashes the detention order, the police refuse to release the detainee. Either another detention order is passed or his detention is continued illegally.
Mir Shafqat Hussain, a lawyer who has had over 6,000 orders quashed over the past 25 years, says that this is true for over 95% of cases. They are only released at the pleasure of the senior police or the local politicians. Consequently, Mr. Hussain believes that no exemption should be made for such matters either, so that lawyers are not complicit in feeding the corrupt system.
Mian Qayoom, goes a step futher in making the same case.
“I don’t even think liberty matters constitute a separate class of cases. Everyone in the valley is a prisoner. These 10,000 in prisons, others in their houses. In fact, they might be safer in there given that no one can just shoot them.
The only reason we have exempted bail petitions is that when you’re in there, all you’re thinking of is that someone will get you out. They might not release them anyway, but I don’t want to take away hope and add to the trauma.”
If you walk down a road in Srinagar today, practically every single shop is shut, except for days on which there’s a relaxation. On the contrary, the High Court appears to have a decent amount of activity. The waiting area in the main building has the appearance and hum of a building that is functioning.
If you walk down a road in Srinagar today, practically every single shop is shut, except for days on which there’s a relaxation. On the contrary, the High Court appears to have a decent amount of activity.
However, this does not explain why an exemption has been made for bail cases; PSAs and bails are being treated differently though there is no perceptible difference. Both Mian Qayoom and Mr. Siddiq clearly agree that lawyers should ideally not be performing any function whatsoever, in order for the strike to be truly effective. But there are several lawyers who believe that it is essential that they intervene at least in matters of personal liberty.
Consequently, to prevent rifts within the Bar, the current arrangement has been made to strike a balance and permit them to draft applications and argue bail petitions. A line has been drawn where none exists and now efforts are being made to provide a principled justification for what is in fact a political compromise.
The strike has now gone past one hundred days. Several junior lawyers rely on the days earnings to survive, and cannot sustain such a long strike. Their savings are thin to begin with, and cannot sustain such a prolonged period off from work.
A small number of junior lawyers have consequently broken the strike on a few occasions. Some lawyers have been charging clients for drafting bail petitions and PSA quashing petitions, though this is supposed to be done free of cost. This is done in the knowledge that the Bar shall not take serious action against them. Lawyers here acknowledge that this is a by and large peaceful Bar and, unlike elsewhere, there have been no attempts to enforce the strike through violence. If any action will be taken, it is by means of show-cause notices issued by the Bar Association.
However, Mian Qayoom admits that even this action is not possible in this regard. In case the names of lawyers who are show-caused become public knowledge, they might face ostracism in their local communities for betraying the struggle. Moreover, they recognize the financial constraints affecting these junior lawyers. This has, in fact, led to the unfortunate situation where young lawyers, especially women, are being approached by seniors to appear on their behalf, knowing that their transgressions will be overlooked by the Bar.
Allowing lawyers to appear in liberty issues as well as overlooking transgressions by juniors has certainly undercut the effectiveness of the strike. The High Court premises do not appear to be under lock-down to the extent that the rest of the valley does. However, given the nature of work undertaken by these lawyers, the Bar has certainly done a commendable job in striking a compromise and keeping the lawyers united.
The author is a fourth year student of National Law School of India University, Bangalore.
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