As JKCCS’s Khurram Parvez faces NIA raid, a look at its latest report, Kashmir’s Internet Siege
On 28 October and 29 October, the National Investigation Agency conducted searches at several locations in Jammu and Kashmir in connection with a case related to the funding of “secessionist and separatist activities.” Among those subjected to the raids was Khurram Parvez, the programme coordinator of the civil-society group Jammu Kashmir Coalition of Civil Society.
Parvez has long been a vocal critic of the ruling government, and was arrested for two and a half months in 2016. Two days before his arrest, the Indian immigration authorities had refused to let Parvez board a flight to Geneva, where he was scheduled to address the United Nations Human Rights Council about India’s human-rights record. The Jammu and Kashmir High Court had quashed his detention as “illegal.”
The JKCCS has published several reports on human rights violations in Kashmir in the past. The following is an extract from its latest report, titled “Kashmir’s Internet Siege,” on mass detentions and the justice system amid internet restrictions post the abrogation of the erstwhile state’s special status on 5 August 2019.
In September 2019, an all-woman fact-finding team from India visited Kashmir and reported that in the run-up to 5 August, and in the weeks immediately after, an estimated 13,000 Kashmiris, many of them teenagers, were picked up from their homes and arbitrarily detained by police and armed forces, often in midnight raids. There was frequently no record of their arrest, and authorities remained tight-lipped about the numbers taken into custody as well as the legal basis for their detentions. J&K government spokesman Rohit Kansal could only confirm that more than hundred local politicians, activists and academics were detained in the first few days after the lockdown began and said there was “no centralised figure” for the total number of people detained. The detenus included three former chief ministers of J&K State: Farooq Abdullah, Omar Abdullah and Mehbooba Mufti. On 20 November 2019, Parliament was informed by the Government of India that “5,161 persons were detained since August 5th out of whom 609 were [still] under detention while rest were released.” There was no official statement on how many were booked under the Public Safety Act, 1978 (PSA) a widely criticised preventive detention law that permits imprisonment without charges or trial. Data obtained by JKCCS , showed that 662 fresh PSA detentions were registered in 2019, two-thirds of them after 5 August 2019.
“Most of the people arrested were from poor families and did not know what they had to do once their relative was arrested,” Habeel Iqbal, a lawyer practicing at the Shopian District Court told researchers from JKCCS about those arrested after 5 August 2019. “A key document for those detained under the PSA is the Detention Order containing the charges, and for it to be challenged in court, it has to first be accessed from the district commissioner’s office. Contacting a lawyer was impossible amidst the lockdown, especially for those living in rural areas, and in the absence of public transport so was going to Srinagar to find legal representation,” Iqbal added.
The mass incommunicado detentions of children and young adults, the absence of access to news and information about their names, locations or numbers, combined with the lack of means to contact lawyers or judicial or law enforcement officials, created widespread panic. In Kashmir, this has a particular edge given the decades-long history of systemic enforced disappearances, and torture and custodial killings. Despite the shutdown, accounts of ill treatment and torture of detainees circulated by word of mouth, further heightening fears and anxiety. A crucial safeguard against violations of prisoners’ rights, which are routinely flouted with impunity in Kashmir, are the rules regarding the physical production of under-trials and detainees before a Magistrate twenty-four hours after an arrest. Because of the restrictions on mobility, absence of court staff and court closures, these too were temporarily suspended, Kashmir Life reported.
In a report submitted to the Indian Supreme Court, which was hearing a constitutional petition on child rights, the Juvenile Justice Committee of the Jammu & Kashmir High Court submitted (on the basis of a police report) that as many as 144 children were taken into police custody, including 86 into “preventive” custody, in violation of juvenile justice and criminal procedure laws. Some of the children in question were as young as nine years old. Despite this admission, the police report questioned “why reports from foreign media and digital media networks carried stories of allegations of arrest and torture of children which were not there in local media.” The Juvenile Justice Committee was asked to file a fresh report by the Supreme Court. The petition was eventually dismissed by the Supreme Court, stating that they were satisfied that there were no instances of illegal detentions of minors.
With a blackout of independent media, and an absence of judicial remedies, those deprived of their liberty were held hostage by the state, with no means to effectively challenge their detentions or in some cases even send word to their families. Hearings for bail and for pending criminal trials were indefinitely delayed in the early weeks, thereby denying the right to habeas corpus, fair trial and due process.
Amongst the first people arrested after the lockdown were lawyers, including the President of J&K High Court Bar Association, Mian Abdul Qayoom, and its former president, Nazir Ahmad Ronga. Also booked under the PSA were Fayad Sodagar, president of Anantnag District Bar Association, and Abdul Salam Rather, president of the Baramulla District Bar Association, Scroll reported. Mian Abdul Qayoom, who handled innumerable PSA cases as a lawyer, was himself arrested on the night of 4 August 2019, booked under PSA, and spirited away to Agra Jail the next day. On 30 January 2020, Mian Qayoom suffered a cardiac arrest while in Agra jail, and after a short time in a local hospital, the 76-year-old was moved to Delhi’s Tihar jail.
The members of the High Court Bar Association went on a protest strike against the detentions of these prominent lawyers, Al Jazeera reported, though a specially appointed group of lawyers continued to appear in urgent matters concerning deprivation of liberty. The arrests of lawyers nonetheless had a chilling effect on the legal community’s ability to approach the courts, compounding the problems of those seeking legal redress. In November 2019, the Bar Council and Bar Human Rights Committee of England and Wales wrote a letter to Indian Prime Minister Narendra Modi, expressing concerns about the state of “near collapse” of the justice system in Kashmir in the context of widespread alleged rights violations—including the illegal detentions of senior lawyers of the Jammu and Kashmir bar. They urged the Indian state to allow independent investigators entry into Kashmir to ensure accountability for its actions under international law, and to take urgent steps to lift all restrictions, restore internet and communications, and publish the names of all individuals, including lawyers who have been detained.
Isolation of undertrials
After 5 August 2019, at least three hundred people were arrested under PSA. Most of these detenus were sent to jails across the northern Indian state of Uttar Pradesh (Agra, Bareilly) and some to Haryana, Hindustan Times reported. Meanwhile families who were aware of their arrest and imprisonment, were completely in the dark about where they were taken. Due to a complete communication shutdown, families could not make enquiries, and neither could the imprisoned call their families to inform them about where they were taken. Many could not meet their relatives in jails for months, Firstpost reported.
Undertrials are required to appear in court on each date of the hearing, but since many were taken to jails far away from the courts, they were simply not produced, leading to repeated deferments of hearings. Some judges started video conferencing to ensure the undertrial is virtually present in court. Although video-conferencing of cases has helped ensure speedier trials, judges cannot physically verify the wellbeing of the prisoner. Aside from this, families no longer have the opportunity to meet under-trials when they are brought to court. During the internet shutdown, even when video conferencing happened on the court’s own leased line, it was frequently ridden with technical difficulties. In a habeas corpus petition filed for Mian Qayoom, the High Court itself noted the difficulties in conducting hearings of complicated matters. Live Law reported: “We, while sitting at two different places through Video Conferencing, faced great difficulty in the process of hearing the matter via Video Conferencing. Despite that being the position, we were continuing to hear the parties, but Mr B. A. Dar, learned Senior Additional Advocate General, got disconnected on account of poor connectivity.” On another occasion, Chief Justice Gita Mittal too noted the unreliability of internet connectivity while appearing in a webinar: “I had to come to the court to make sure today’s webinar is delivered from my end as connection is a problem otherwise.”
The communication blockade also compromised the transparency and efficiency of the court process due to the reliance on private electronic communications between court registries and litigants/lawyers, rather than through the established public filing and electronic listing system. Asifa Shah, wife of Mubeen Shah, a civil society activist detained on 4 August 2019, filed a habeas corpus petition in the Supreme Court for his release. She was unaware, The Wire reported, that the Jammu and Kashmir High Court had already been approached by another relative—via e-mail. The Supreme Court dismissed her petition asking the high court to decide the case “expeditiously.” For two months the case was not heard, while Shah’s health continued to deteriorate. Finally, the relative withdrew the case pending in the high court, and Asifa Shah filed a fresh petition in the Supreme Court. Mubeen Shah was finally released in December 2019 after the government revoked his detention order, and just prior to his Supreme Court hearing, Indian Express reported.
Routine Court Procedure Tripped Up
Not all of the cases that found themselves in limbo were directly connected to the abrogation of Article 370, or the events flowing from it. As in any legal system, a large proportion of civil litigation in Kashmir is related to claims for spousal maintenance and child support payments. “Many of the women who file these cases are extremely poor and need the intervention of the court to receive their money,” lawyer Habeel Iqbal pointed out. With husbands and fathers frequently defaulting on their payments, and the court system paralysed, women and children dependent on monthly maintenance payments suffered.
With the snapping of internet and phone services it follows that lawyers and their clients lost communications. But it was more than that, for the court’s dependence on the internet has grown in recent years. Even at the level of the district courts, lawyers make substantial use of the e- courts platform. Once a case is filed, the application provides all the details, and an automated SMS intimates the plaintiff (as well as the lawyer). It also provides basic details of the case along with the next date of hearing. Although most of these processes came to a standstill with the communications lockdown, it is important to note that a few of the procedural parts of the court were made operational after only three weeks. “In Shopian, where I work, and which is considered a most volatile region, Judges did sit in court 20-25 days after 5th August,” Habeel Iqbal pointed out to JKCCS researchers, “mainly because police had made arrests and they had to report them in front of a judicial magistrate.”
The digital siege affected the Jammu and Kashmir High Court with equal severity. The website of every high court publishes a weekly and daily “Cause-list,” which provides a list of cases to be heard by the court on the following day or week. It informs the parties involved in a case (along with their lawyers) about the bench that will hear their case, the court in which it would be heard, and the order in which cases would proceed. After the internet shutdown in August 2019, the manner in which lawyers and litigants interacted with the courts was seriously disrupted. Multiple photocopies of the cause-list were printed, and simply placed on a desk in court for all lawyers to access. Supplementary matters, which were not listed in the cause-list, were made available on the notice board of the high court. The J&K High Court also has a virtual display board which provides a real time display of matters being heard in each court room. Post the internet shutdown even this critical function of the court became redundant. Orders and judgments passed by courts, which were previously uploaded regularly on the high court website, also stopped. The problem was made more acute by “the nearly dysfunctional postal service which the legal system relies on heavily” Al Jazeera reported. “In habeas corpus cases, we have to send notices to the state and jail authorities. How do we do that when the administration has shut down the post offices services in the Valley?” an advocate representing those arrested from Bandipora district told reporters.
Three weeks after the lockdown, the New Delhi-based Indian Express carried a startling analysis of the workings of the J&K courts. A scrutiny of orders in all cases heard between 5 August and 26 August, and accessed by their reporters from the e-court platform revealed a telling pattern. Of the 288 cases where orders were passed, petitioners were not present in 256 cases, and respondents were missing in 235 cases. In at least 38 cases, Chief Justice Gita Mittal and Justice Rashid Ali Dar could not even receive case files. The main explanation, the analysis revealed, was that “due to restrictions on the movement of traffic in the State, counsel for the parties were not available.” In only three cases did the appellant appear before the court, and in only one case did the petitioner manage to appear. Hearings were deferred in over 70 percent of the cases, to dates in either October or November 2019. Even as the state sought to establish the narrative of normalcy, the issue became highly contested. The high court had been disposing of cases daily, India Today reported, countering accounts by petitioners to the Supreme Court who maintained that the courts were dysfunctional and inaccessible. The chief justice of India, Ranjan Gogoi, eventually passed orders in September 2019, seeking clarity on whether courts were functional, Economic Times reported and the high court later filed a report which stated that the courts were hearing matters. (The full report was not made public.)
Despite these assertions by the state, reports from the situation on the ground continued to be dismal. In November 2019, Kashmir Life quoted court officials as stating that only 1,438 new cases were filed in the high court, Srinagar, from 5 August until 17 November 2019, including 1,069 civil cases and 369 habeas corpus petitions relating to illegal detentions. Detailing the immense problems faced by litigants, it mentioned that a “hot line” to the chief justice had been set up to deal with urgent issues, and that only four courts were fully functional. In June 2020, Newsclickreported, the Bar Association of Jammu & Kashmir at Srinagar made a representation to the chief justice of the High Court, apprising her of the continuing difficulties faced by lawyers and litigants after 5 August, and stating that 99 percent of habeas corpus petitions pertaining to the illegal detentions after that date remained pending due to the constant delays.
COVID-19 Lockdown
“The Covid pandemic and the ensuing highly militarised lockdown in Kashmir added a further layer of challenges to access to justice in Kashmir. All court complexes in Jammu, Kashmir and Ladakh were initially ordered to be closed for a 21 day period, and a circular asked the Principal District and Sessions Judges to make arrangements for hearing of any exceptionally urgent civil or criminal matter from the residence of designated judicial officers,” the Indian Express said. With regard to regular hearings of civil, criminal and appellate matters at both trial courts and high courts the circular stated that, “The hearings shall be on the virtual mode only.” Covid lockdown measures were eased gradually in May 2020 and thereafter reinstated in July 2020, but the full physical functioning of courts has still not resumed, leaving lawyers and litigants dependent on low speed internet to access the courts.
In the initial period, lawyers could file applications via WhatsApp message to the judicial registrar or in accordance with detailed guidelines for other modes of electronic filing. Once the application was sent in the requisite format, the registrar decided if the matter was urgent. If they were considered urgent, lawyers were called and told when their matter would be listed. “Any convenient mode is allowed to send petitions or arguments which includes SMS, e-mail, WhatsApp, video conference calls,” lawyer Habeel Iqbal told JKCCS researchers: “In order to argue the matter, lawyers can either call the judge and argue over the phone, or send an audio or video of their arguments. But this has certainly affected the adversarial form of justice.” Altaf Khan, a practicing lawyer in the J&K High court, told JKCCS researchers that despite a circular stating that urgent matters must be heard during the COVID-19 lockdown, the courts and registry were disinclined to list and hear urgent liberty related cases, citing the example of a bail plea from Budgam, which the court had declined to hear on the grounds it was not urgent.
The wide discretion given to the court registry to decide on matters of urgency, and the lack of internet access restricted the ability of lawyers to make representations. There was also the problem of presenting complex legal arguments and applications over a messaging service, with no opportunity for synchronous engagements with the opposite party, court or registry officials. As the Covid lockdown was eased, courts were partially re-opened, although with social distancing norms. The J&K High Court Bar Association wrote to the chief justice of the Supreme Court of India in June 2020, Newsclick reported, stating that “Because of restrictions of operation of 4G in J&K, it is very difficult to argue the matters through virtual mode, though an option is given to the counsel to appear before the Court. The lawyers whose cases are listed are allowed to enter the court premises but their clerks and juniors are not allowed disabling the lawyers to assist the courts properly.” This situation was further exacerbated by the frequent internet shutdowns in different parts of the valley.
Significantly, during the Covid lockdown the high court has itself expressed considerable difficulties in its functioning, and has intervened on the issue of the limited e-connectivity of courts. This is in contrast to its role during the post 5 August period, where it maintained that courts were functional. Chief Justice Gita Mittal and Justice Rajnesh Oswal in a hearing regarding non-availability of routers in Udhampur court observed that, “the availability of e-connectivity to the courts is an issue of ensuring access to justice to the citizens.” This report also noted that internet service provider BSNL had sent a letter to the department of justice in November 2019 on the need for VSAT facilities for 10 sites but had received no response. The court now directed BSNL to install the converter and router in the Udhampur court, and also asked for a fresh report from BSNL on the status of providing e-connectivity to courts in the union territories of Jammu & Kashmir and Ladakh.
The issue of low internet speed affecting access to justice was also taken up suo moto by the J&K High Court, The New Indian Express reported, when the chief justice summoned Home Secretary Shaleen Kabra to appear before a bench and apprise it of the impact of the restrictions on e-connectivity of courts. The court remarked that that “despite best efforts on the part of our IT experts, it has been impossible today to have even a bare semblance of a hearing.” The division bench noted that access to justice is a fundamental right “and cannot be impeded.”
This is an extract from the Jammu Kashmir Coalition of Civil Society’s report titled, “Kashmir’s Internet Siege,” published in August 2020.