Forced to go virtual, the courts in Kashmir found the going tough during the lock-down in 2020, reports Saima Bhat
In July 2020, Mohammad Sultan, 56, was waiting outside the gates of Saddar court complex at Batmaloo in Srinagar. Having a hard time sitting under the hot sun, Sultan wanted to take shelter in the courtroom. But the person manning the gate didn’t let him.
“Why don’t you understand, there is a court order saying nobody should be allowed inside the court premises,” the gatekeeper pleaded. “You should contact your lawyer.”
But the disappointed Sultan knew no lawyer and left without getting his seized vehicle released. His vehicle was seized in May for lack of some requisite documents.
Following day, he came again so that he could find any lawyer, who could help him get his vehicle released. Luckily he did. After completing all the formalities with the lawyer, he managed to file his case online. The clerk gave him a date for hearing after four days. Sultan was hopeful that after four days his lawyer will be able to release his vehicle in one hearing.
“My truck is the only source of my livelihood. I have a family of 10 members and we are all dependant on it,” Sultan said. “There are different reasons why the police officials keep seizing the vehicles. But after submitting the fine amount they are released in a day or two”.
Sultan, however, did not know that this time the proceedings in court had changed. Everything had gone online in the wake of the Coronavirus. On April 6 2020, the Supreme Court issued fresh guidelines for holding hearings. The physical courtrooms changed into virtual ones.
Finally, as soon as Sultan’s lawyer, advocate Muheet, started arguing the case online before the concerned judge, his internet connection slowed and he often got disconnected.
“When I entered the virtual courtroom again, I was confused about what the judge was talking about and what the other lawyer was saying. I heard them keenly and then I came to know that they were discussing some other case,” Sultan said.
Muheet said he later confirmed from the clerk that his case could not proceed in his absence so the judge gave them a date in the following month.
“I am in this profession for the last three years only. Being a beginner I cannot afford to have high-speed internet,” he said. “I was desperately trying to release Sultan’s vehicle from the court because it was the matter of his livelihood. But due to poor internet, his case was adjourned repeatedly and finally, it was in September that his vehicle was finally released.”
In Jammu and Kashmir, when the administration decided to implement lockdown, all courts were also closed. A few days later, the High Court came up with an order for district courts to continue their work virtually. No lawyers or litigants were allowed to enter the court premises. There was a proper roster for judges and the lawyers were informed through messages about the cause lists.
All the cases were pleaded through JITSI app. According to the lawyers an order by the High Court that mandated that the fresh cases will be heard on priority with preference given to guardianship and maintenance cases. The court also said there will be no adverse orders, which meant if a culprit did not respond to the orders of the court, no arrest warrants were to be issued. And for the already registered cases, mostly extensions were given.
Subsequently, there were more notifications: The district courts could function both ways, physically as well as virtually. But as of date, no physical hearings are held in the High Court.
“It is not a problem for people only but the lawyers are also affected. We work like daily wagers, who earn only if people come to the court,” said a junior lawyer, who used to earn around Rs 20000 a month. But after pandemic hit world he was not able to earn a single penny up to November. “After seeing the condition of junior lawyers throughout the country, the BAR Council of India decided some funds should be given to us. The lawyers with less than five years of experience were given Rs 6000 on Eid in two instalments. Wasn’t it a sort of humiliation?”
Not only in Kashmir, but the situation of lawyers is also the same elsewhere as well. A senior member of Supreme Court Bar council, PS Narasimha while taking part in the court proceedings said: “Bar councils were ready to stand guarantee for government loans of upto Rs 3 lakh to struggling lawyers.”
Advocate Ahmad, who wished to use his second name only, is in the profession for the last two decades. From April 2020 till December 31, 2020, he said he used to sit in his chamber wearing his uniform at 9 am.
“In High Courts, we have to file cases after the lower courts issue their order. But when there were no such final orders it automatically affected the work of higher courts,” advocate Ahmad said, adding it was necessary to start the courts otherwise the already burdened courts would have got buried under the pending cases.
“Initially there was no load and these days as well there are mostly fresh cases which are entertained. There are fewer hearings but something is better than nothing”.
He said the fresh cases are filed via email in the office of the registrar and then they are heard in two days. Presently the court fees are also exempted but the lawyers have to give in writing that after the normal courts are resumed, fees, as well as the case files, will be submitted in the courts within two weeks.
Ahmad said by December ending the courts had resumed 50 per cent of their work. “The work of a lawyer depends on the chamber experience. There are lawyers who manage to get a good number of cases and then there are some, including seniors, who couldn’t dispose of even 10 per cent of work. Such lawyers had courts as their meeting point and they used to work from 10 am to 4 pm only.”
For Ahmad himself, he was happy with the work he got during the pandemic. “I have a high-speed internet connection at home so filling a case or appearing in the case was not a problem for me. But my petitioners who used to get their files to my home, I used to keep these files outside for five days and only then my assistant used to get them inside. Or I used to ask the petitioners to send me the files by mail and then I used to take the printout”.
At the same time, however, these virtual courtrooms also proved beneficial for some. Advocate Ahmad said he had to go to Jammu and Delhi at least twice or thrice a month for his cases but these days he manages to attend all his cases while sitting at home.
Recently, a case related to Cricket Association was to be heard but a division bench in Srinagar High Court was disabled so a bench was available from Jammu and the case was heard.
Despite its benefits, Ahmad said nothing can replace the aura of a physical court.
“In physical courts, you will notice a great flow of arguments, and then you quote different laws from books and the judges too carry the same books. Both the parties come prepared but in the virtual platform, it becomes difficult. Everything is digital. Sometimes you don’t know which digital page you have to read,” said Advocate Ahmad. “Another problem with virtual courts is that your voice echoes.”
Jailed And Isolated
The closure of court premises for the public has added to the costs of many families in a place like Kashmir, where the pendency of cases in courts is huge.
Mohammad (name changed), is under trial for the last one year. He was arrested and charged with militancy related activities. A resident of district Shopian, he has been kept in Kotbalwal jail.
Back home, Mohammad is survived by his elderly parents, wife and two minor children. Before pandemic hit this part of the globe, his family used to come to Saddar Court in Srinagar to spend a day with him. But now it has been nine months since he saw any of his family members.
“He calls sometimes, which is the only way for us to check his wellbeing. This has been facilitated by the jail authorities in view of the present situation,” said Mohammad’s wife who is working and earning a meagre amount. “We would wait for his hearing so that his kids and aged parents could see him. Travelling to Srinagar is also expensive but it costs less compared to Jammu. But now meetings have also been stopped in jails”.
After the lockdown, the cases of most undertrials were adjourned.
According to the Director-General of Police (DGP), Prisons Department, around 4131 people were lodged in different jails of Jammu and Kashmir as on December 6, 2020. Among them, 90 per cent are under trials. And less than two per cent of them were arrested in militancy-related cases.
But as on date, no meetings are allowed between these prisoners and their families. Lawyers said they receive around three applications every day from the families asking for permission from the court to meet these prisoners.
Additional special judge, TADA, POTA, Srinagar has directed the director-general of prisons not to send relatives of prisoners to the court to seek permission to visit the prisoners in various jails. The court has said there is no need to seek directions from the court regarding such meetings if the Covid-19 Standard Operating Procedures (SOPs) issued by the government permits such meetings.
“It is generally brought to the notice of the court the jail authorities are permitting the relatives to meet the detenues, under-trials if directions be given by the court and not otherwise,” the court observed.
Even though the maintenance and guardianship cases have been prioritized by the courts, Shazia’s (name changed) case was due for disposal in March when pandemic forced restrictions.
Mother of a minor child, Shazia had filed a case for maintenance against her former husband. “It has been nine months now but I am not getting the date of hearing. It is always deferred,” she said. Living alone in a single room, given to her by her late father, Shazia had no source of income till the court decides her case.
“In March I and my daughter lived on some saving but as those savings started drying up, I decided to do something. Finally, I got an opportunity to work as domestic help. I had no other option,” she said.
Advocate Shefan Jehan, who is practising law for the last 10 years said: “Since August 5, 2019, the worst sufferers were the litigants. The cases are getting adjourned only. I have a case for which I have been given date for June 2021. Prosecution of cases has suffered. The concept of the right to speedy justice doesn’t exist anywhere now.”
Besides these cases, advocate Shefan said many of her civil cases could not be heard.
At the same time, advocate Shefan believed other than the litigants, lawyers themselves have been badly hit. “I know many of my colleagues who changed their profession in these tough times. Some travelled abroad and are planning to settle there, some have started their business and in the recently held DDC elections, many lawyers contested elections and many of them won as well. The time has changed. It is not the same profession as it used to be before August 5,” she said. “You remember one DDC candidate who said mereychehrey ko vote dou, she too was a lawyer.”
While hearing a suo motu case to provide financial aid to young lawyers struggling to make ends meet during the pandemic, the three-judge bench led by the CJI Sharad A Bobde disagreed with the idea of resuming physical hearing in the Supreme court, saying the court did not want to be the cause of fatalities due to the spread of Covid-19. However, CJI said the Bar and affluent lawyers should contribute more than what they had already done. The court asked the Solicitor General to convene a meeting to discuss the proposal of Bar association for the Centre to arrange financial aid for the lawyers who couldn’t practice due to lockdown.