Photograph by Sanna Irshad Mattoo
Inside the well-maintained premises of Srinagar wing of Jammu and Kashmir High Court, 62-year-old Mohammad Ashraf Sofi is sitting outside the court number 2 – despondently. “How can I fight this case on my own?” he wonders. “The lawyers, and the whole judiciary system, are flawed. They push the hearing dates and extract money from me.”
On 12 October 2019, Mr. Sofi had appeared in the court room – stepped in front of the judge himself and had pleaded himself, “I need to get my daughter married. I need money for it – please get done with my case.”
Since 5 August, when the central government revoked the special status of Jammu and Kashmir (J-K) and had imposed a lockdown, it also made a few thousand detentions across Valley “to prevent law and order situation.” Among those detainees were the premiers of High Court Bar Association (HCBA), including the president and the general secretary.
Astonished association moved against the order, not only in court, but also – in the backdrop of an executive-members meeting – announced a “non-official” strike “against the abrogation of the article 370, arrests of Bar members, and on-going human rights violation in Kashmir.”
In a collective decision, the lawyers refused to turn up in any hearing.
Hence, forcing all the petitioners of civil and service cases to fight on their own. But, it is not supposed to be this way.
The general procedure says that a petitioner would reach out to a lawyer with an issue, and the lawyer would bear the torch for the rest of the case, defending his client in the court room, in front of a judicial bench, arguing the public prosecutor.
“What happened with Kashmir wasn’t supposed to happen either,” says Musaib Syed, 29-year-old lawyer, and an executive member in HCBA. “Lawyers are a part of the chain – if they don’t appear, the justice is withheld.”
Another Anantnag based lawyer, Mukhtar Ahmed Makroo, 31, agreed that though the strike has “withheld the justice to petitioners”, but following the ethics of his profession – “the most we can do is to help the petitioner behind the curtains, and we have been doing it.”
The HCBA members say that the strike is indefinite – at least until the release of HCBA members.
However, in the court room, in front of the judge – seeking justice – it is people like Mr. Sofi who has to stand on their own; left alone to argue with the public prosecutor. “Lawyers know how to argue – I don’t,” Mr. Sofi says. “I rely on the experience of my life.”
Mr. Sofi had retired from the State Forest Corporation (SFC) in 2012 as a Block Manager. His application in the court, the copy of which lies with The Kashmir Walla, says, “I was entitled to pensioner benefits… but, unfortunately no benefits [were] given to me as mentioned: Leave salary and gratuity amount, incentive promotion, and the 6th pay commission arrears, COLA arrears, and DA arrears.”
Mr. Sofi – whose family of five, depends on his pension – estimates the due amount to somewhere between 5 to 8 lacs. His two sons, Owais and Osam, 23 and 20-year-old respectively, are pursuing higher education right now – while his daughter, Asra Ashraf, 26, is getting married on 27 October 2019.
“Money is everything,” Mr. Sofi says. “I want money for my daughter’s marriage and my sons’ education.”
Though, Mr. Sofi too holds the issue of J-K’s special status close to his heart, he says that the strike by lawyers is not justified. “The judiciary should be kept aside,” he adds.
He has been fighting this case for the past three years. As per National Judicial Data Grid (NJDG), by 13 October 2019, the total number of pending cases in J-K were 1,72,915 – out of which, 73,023 were pending civil cases and 99,892 were pending criminal cases.
On 16 September 2019, Chief Justice of India (CJI), Ranjan Gogoi, while reacting to the allegations that people were finding it difficult to approach Srinagar Wing of HC, CJI Gogoi had called the matter “very very serious”.
However, while the strike has paralyzed the functioning of private lawyers, and their petitioners, the government lawyers and the cases has largely remained unaffected. A 30-year-old government counsel in HC, whose identity is withheld for her safety, says that “the system hasn’t been fair to petitioners.”
Talking from what she calls a rational point-of-view, while being aware of not getting overheard, she adds, “The judiciary is flawed from roots. Lawyers have a responsibility towards the petitioners – and since 5 August, they aren’t doing justice to petitioners and themselves.”
Although, keeping the situation in the Valley in mind, the controversial Public Safety Act (PSA) and detention cases were exempted from the HCBA strike. One such case if of Ashraf Khan, a 23-year-old shopkeeper, and resident, of Shampora area of Srinagar’s downtown, whose identity has been changed.
On 15 October, as his lawyer, Shah Faesal, stands in front of the HC judge, his voice cracks, and his tongue slips. He is requesting to the judge for the temporary release of Mr. Khan on the health grounds.
He flares a paper in his right hand, bows his head down, pleading to “Honourable my lord,” states that the medical report of Mr. Khan, examined by J-K Police Hospital Srinagar, dated 12 September, advised a surgery for “removal of appendix” within 4 to 6 weeks.
The judge wonders “if he or the advocate can do anything in this.” Mr. Faesal’s voice cracks again, and he continues, “We didn’t get a reply from the Principal Secretary, Home Department or the office of District Magistrate, Srinagar.”
The judge asks the government to file a reply within 10 days and dismisses the hearing. Mr. Faesal collects his gown, and paper-files, and steps back – to move out of the court room.
A young – and calm – man, stood from the third-row from the front, wearing a red t-shirt and walked out in silence with Mr. Faesal. “What happened inside?” he asked Mr. Faesal, curiously.
As he turned out to be the younger brother of Mr. Khan, and the petitioner in the case, he heard calmly, and asked a few queries. The base cases of Mr. Khan’s PSA dossier, which lie with The Kashmir Walla, are the four FIRs of 2016 – wherein he had been accused of “disturbing the maintenance of public order by stone pelting.”
Mr. Khan’s younger brother, standing inside the premises of the HC, guarded by government forces at multiple checkpoints, fears that his brother’s health will deteriorate more inside the Central Jail, Srinagar. “We don’t know what does he eat or drink there,” he said. “They [jail authorities] don’t allow outside food there.”
As the sun gets sharper, Mr. Faesal asked him to get a photocopy. The concerned shop was closed inside the Court, hence – he had to walk outside the premises, and get a photocopy back. “More than a month has passed since the doctors asked for his surgery,” he says, walking on the footpath outside the court. “I just want him to get better.”
Meanwhile, Mr. Sofi, back in the court, reads a pink file in his hands again – and again. He wants himself to be prepared for the next hearing; which is at very crucial point for him. When he will take on the public prosecutor, and testify as well as fight his case, in front of the judge again on 21 October – six days before the marriage of his daughter on 27 October – he will make sure that he returns home with money.
He is his last hope.
This story originally appeared in the 21-27 October 2019 print edition of The Kashmir Walla.