Negative experiences with the state’s judicial system have led many to lose faith in it and forced countless others to shy away from seeking legal recourse altogether.
Credit: Wikimedia Commons
Srinagar: Legally speaking, that ‘an accused is presumed to be innocent till their guilt is proved beyond doubt in a trial’ remains one of the cardinal principles of criminal jurisprudence inside India courtrooms. Outside of court, however, things don’t quite work that way.
Presenting evidence, providing testimonies, making arguments and finally pronouncing the decision is the modus operandi of court proceedings, a process that often takes years to conclude in Jammu and Kashmir. Even if things progress at a favourably quick pace, getting off the hook may not be easy. For the accused, an ongoing case means isolation from relatives and friends, rising expenses and a great amount of stress.
The delay in judgements arises from several factors. With a sanctioned strength of 17 and a working strength of eight, the Jammu and Kashmir high court is working at less than 50% of its sanctioned strength of judges. Although other courts in the state have met the sanctioned strength of judges, the numbers have not kept up with the pendency figures that have been going up for the last decade.
Guilty, unless proven otherwise
Both in their 20s, Owais* and Fareed* have strengthened their friendship during court visits over the last six years. It is not really where they want to go once or twice every month, but they have no choice.
In June 2010, a stone-pelting attack on a public bus in the Maisuma area of Srinagar left a passenger critically injured. Owais, a class 12 student then, had been at a tuition centre in the area, while Fareed claims to have been out of the city when the incident took place. Three days later, the injured died.
The bus driver and several others, including the duo, were booked by the police on charges of murder under section 302, and stonepelting and rioting under sections 148 and 149 of the Jammu and Kashmir State Ranbir Penal Code (RPC). After paying a bribe of Rs 1 lakh, they claim that the charges of attempt to murder were changed to culpable homicide.
Fareed evaded arrest until his brother and brother-in-law were detained by police six months later. Owais gave in without any resistance. However, before deciding to appear before the police, Fareed called his girlfriend, whom he was hoping to marry. “I wanted her to wait for my release so that we could marry,” says Fareed.
She didn’t. They split up.
The duo were lodged at Srinagar’s Central Jail and remember their stay in prison as “painful”. Owais says, “What happened after that is even more haunting.” The torture, he says, started just when he was leaving the jail on bail. “I was stopped by the police officers and asked to disclose the plan they believed I had made in jail with the militants,” he says.
The cold-shoulder treatment they have got from relatives and friends due to the trial is punishment in itself, they believe. During the trial, many of the relatives backed away from helping them monetarily and emotionally. Owais was unable to keep studying, and says his inability to pursue his education and get a respectable job distanced him from his relatives. He has not been able to face them ever since his case began. Fareed, on the other hand, was abandoned by his own brothers after the charges against him were filed.
“My neighbours used to tell those who came with marriage proposals that I am a militant,” says Fareed. Married for two years now, their families saw marriage as a way to keep them grounded.
With all that baggage, Fareed says he avoids any route where he spots a policeman. “Once your name is in police records, you become a suspect forever and for everything. Any untoward incident in the neighbourhood invites police queries regarding my whereabouts.”
Six years on, a conviction or acquittal isn’t any closer, he feels. The duo say that they can’t be sure that their case in court has made even 50% progress. “With 140 police witnesses against us, we are in the middle of nowhere,” they say.
Khurram Parvez, human rights activist and coordinator of the Jammu Kashmir Coalition of Civil Society (JKCCS), who was recently detained under the Public Safety Act, says that regardless of whether the charges are proved or not, the accused are humiliated right from the moment they step into jails and that can go on for the rest of their lifetime.
“Suppose the accused is found innocent, who is to be held accountable for the agony and suffering of the person and family? No one from the judiciary and executive is ready to answer that,” says Parvez.
Both Fareed and Owais make a living from doing small jobs. Every hearing costs them anything between Rs 400 and Rs 2,000, in addition to missing a day of work.
Pendencies and vacancies
On November 26, 2016, massive vacancies in high courts across the country forced then Chief Justice of India T.S. Thakur to accuse the central government of having a lackadaisical attitude towards filling vacancies and providing an adequate judicial infrastructure. Courts in Jammu and Kashmir too have encapsulated the characteristics of this.
According to the Supreme Court publication Court News, on December 31, 2006, a total of 41,499 cases were pending with the J&K high court, and 52,720 in the district and subordinate courts, leaving the total number of pending cases at 95,219. A decade later, in early 2016 the total pendency numbers were at 56,453 in the high court and 1,24,763 in other courts in the state. This has left the total percentage increase in the number of pending cases in high courts at 36.04% and in other courts at 136.65% over the last decade.
The percentage of overall increase in the number of pending cases in all J&K courts in last decade is 92.33%. And a little more calculation concedes that for district and other subordinate courts, with only 220 judges, the judge to case ratio is 1:567. In 2006 the ratio was 1:293.
For high courts, the picture regarding the ever increasing workload is largely intractable. In 2006, with eight working judges, 5187.3 cases were pending per high court judge, while in 2016, the judge to case ratio was 1:6272.55.
According to Abdul Rashid Malik, director of the Jammu and Kashmir State Judicial Academy, “Shortage of funds from the government coupled with the lack of will-power on all sides does not allow any progress on filling up the vacancies of judges.”
Malik feels that although filling vacancies may ease the pressure on the judges, having a greater number of judges is no proper solution if they, and lawyers, are not competent.
Some judges in the Srinagar district court see the delivery of justice as a combined function of the enforcing agencies and judiciary. Umi Kulsoom, city judge in the Srinagar district court and who was previously presiding over criminal cases, opines that the lack of manpower in the investigating agencies is greatly responsible for the number of cases adjourned during trial. “The police have to maintain law and order and investigate cases at the same time. It is unreasonable to expect them to attend to both adequately at the same time,” says Kulsoom.
Kulsoom believes that the advocates too are guilty of stretching a trial, at times due to their own sluggishness and other times due to the inability of the accused to pay their high fees.
Given the high volume of ongoing cases, Owais and Fareed see themselves among the lucky few for not being among the 182 other undertrials who by 2015 had, according to NCRB data, been in prison for over five years.
According to the NCRB, at 9.5%, J&K has the highest percentage of undertrials who have been in prison for more than five years. Nagaland comes next, with 6.4%.
| Pending cases (2006) | Number of judges (2006) | Number of cases per judge (2006) | Pending cases (2016) | Number of judges (2016) | Number of cases per judge (2016) | |
|---|---|---|---|---|---|---|
| High court | 41499 | 8 | 5187.37 | 56453 | 9 | 6272.55 |
| District and other courts | 52720 | 180 | 292.88 | 124763 | 220 | 567.1 |
Right to speedy trial
Although the constitution does not specifically mention the right to speedy trial, it is taken as an appendage to the Article 21 of the constitution, which declares that “no person shall be deprived of his life or personal liberty except in accordance to the procedure laid by the law.”
However, restrictions during a trial itself limits the liberty of the accused, says J&K high court advocate Wajid Haseeb. He agrees that sometimes the lengthy trial itself becomes a punishment. Haseeb says a 3-4 year period is a fair time in which the courts should pass a verdict in a case. But “sometimes in criminal cases, the number of witnesses is too many and prosecution takes time and delays the production of witnesses before the court, thereby delaying the trial,” says Wajid.
Wajid also mentioned certain cases where the accused are not allowed to even travel freely across the state and have been enduring this agony for years now.
In Moti Lal Saraf vs State Of Jammu & Kashmir & Another, on September 29, 2006, the Supreme Court pronounced that “There can be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.” (sic)
But the Supreme Court ruling did not have any impact on the manner in which trials are conducted in J&K.
With respect to the percentage of cases admitted to court in the January-March 2016 period, the J&K high court and other courts saw a 2.21% and 9.08% increase respectively in case pendencies.
Averting trials
In 2012, Ghulam Rasool Matoo had applied for the post with Rehbar-e-Taleem teachers in Kulgam. Despite meeting the requirements for the post, he was not appointed but several applicants less qualified than him were. His family suggested he file a litigation in the matter but instead he chose to let it go.
Matoo had never been to court but the experiences of others persuaded him against seeking legal recourse. Like him, many others too have decided to resolve their disputes without approaching the courts, given the experiences of others. Some have even opted for the option of amicable settlement.
The amicable settlement of disputes involves arbitration, mediation and conciliation by a third party, usually a judge, without getting into litigation process. The parties arrive at a solution through compromise rather than by law, saving them the effort of dealing with procedural law.
Presiding over the cases that opt for amicable settlement,
A district court judge in Srinagar (name withheld on request), who hears nearly 30 amicable dispute settlement cases per day says this is the preferred route of dispute settlement because “If they get into litigation, it takes years to end the case. Regular litigation involves procedural laws which create enough room for undue elongation by means of appeals.”
For Matoo, losing a work opportunity was the cost he paid for not fighting the case. Pursuing the case would have meant a prolonged period of suffering for all, he says.
No seeming end to crises
With the current strength, if every high court judge decides to hear ten cases a day, it will take nearly 700 continuous days to clear the backlog. To ease the burden of the judiciary, in 2014, on the high court’s recommendation, the state government announced the consideration of setting up of fast track courts in the state. But this never materialised due to the “lack of funds” and what Malik says is “government apathy”.
In the absence of fast track courts, the state judiciary has taken measure to address the crisis at some level by appointing administrative judges for every district to monitor the pendency. A progress report on pending cases is sought every month.
Factoring in the impact of time in the process of a trial, Malik recommends setting up fast track courts for all criminal cases. According to him, a quick judgement is not a way to measure the success of a judge. “Apart from delivering a verdict, justice should also seem to have been done as per the satisfaction of the parties involved. That satisfaction is realised when all parties are heard fully and assessed objectively,” says Malik.
In the long run, Khurram believes that the laws also need to be reformed, and thus far the framing and use of laws has been to the advantage of the government and the armed forces. “The laws are not made to protect the civilians,” he says. The aim of the jail authorities is seldom to reform and rehabilitate the accused but to “teach them a lesson for lifetime and to induce a lifelong fear in them,” says Khurram.
According to media reports, nearly 7000 people were arrested in Kashmir till October 2016, of which around 1500 are still in custody. For Owais and Fareed, the numbers are a downer. “There will be more young men like me whose lives will become hostage to a court case,” says Fareed.
Arshie Qureshi is a freelance journalist based in Kashmir.