I knew nothing about the trial of Muzaffar Ahmed Rather of Kulgam district in West Bengal till newspapers in the third week of January 2017, carried a report about a Bengal Court having sentenced him to death. Except for his family, I strongly believe Kashmir society, in general, would be as informed about the ten-year long trial as I was until news about the judgment appeared in the newspapers. Let me at the outset admit my ignorance better-translated apathy. Despite, my claim of remaining updated as a Srinagar-based columnist on the Kashmir-related developments, in reality,
‘He had gone missing in 2002, at the age of 13, class eight student, leaving his parents clueless about his whereabouts till 2007 when a village head informed them about his arrest while allegedly crossing the India-Bangladesh border.’ The rude shock in this grim story is a young man walking to gallows for his family for their poverty failing to visit their loved one in the jail and engaging a lawyer for defending him in the court. It speaks about our failure as a society of having put up an elaborate mechanism for providing legal assistance for ensuring justice to scores of youth languishing in jails within Jammu and Kashmir and outside.
Sitting on my desk, weighing down under the guilt of ignorance about the case of Kulgam youth, on of the shelves of my study, I spotted an old paperback book, ‘Indian Political Trials’ written by A.G. Noorani. More than thirty-five years back, I had read this book on historical, political trials of the freedom struggle of India. The book also carries a chapter on a famous pre-1947 Kashmir trial- I had totally forgotten the book. The introduction of the book starts with these words:
“History bears witness that, whenever the ruling powers took up arms against freedom and right, the courtrooms were used as the most convenient and plausible weapons. The authority of courts is a force that can be used both for justice and injustice. In the hands of a just government, it becomes the best means of attaining right and justice, but for the repressive and tyrannical government, no other weapon is better fitted for vengeance and injustice than this. Next, to battlefields, it is in the courts that some the greatest acts of injustice in the history of the world have taken place.”
In more than one way the above quote befits our situation – it demands no explanation. Nonetheless, it calls for reassessing our role as a society in meeting the challenges that cases like of Muzaffar Ahmed have thrown up.
The Kulgam youth not affording a legal defense and getting death sentence reminded me of a quote of M.A. Jinnah in the Court of Justice Davar. Jinnah had moved a bail application for release of Bal Gangadhar Tilak and judge rejected it. On this Jinnah told the court, “The leading principle of jurisprudence was that a man was not to be presumed to be guilty until he had a fair trial and was found guilty.” Had the Kulgam youth been able to hire a good lawyer perhaps he would have walked free as he had informed his parents few days before the judgment. On Friday, people in Kashmir observed a strike in protest against the death sentence. Moreover, assurances for arranging legal defense for him have been pouring across the political divide. Without doubting the intentions of the political leadership, these outpourings will prove nothing but just politically motivated emotional effervesces unless concrete steps taken for putting up an elaborate arrangement for providing legal defense to youth incarcerated in various jails inside and outside the state.
True, after the funeral of the Jammu and Kashmir Plebiscite Front, no organization like the Legal Defence Committee, came into existence with the support of the resistance organizations in the vanguard during past 23 years. The committee with a battery of lawyers under the umbrella of the Front defended political activists demanding the right to self-determination and youth involved in cases like al-Fatah, Nawa Kadal, Islamia College or Uri Cases, etc. Nonetheless, it is undeniable that the Kashmir Bar Association largely filled this void. For past twenty-six years, this organization might have filled thousands of Habeas Corpus writ petition challenging detentions of the political activists and the commoners. It might have defended hundreds of youth with serious charges but scores others detained in the state and outside might have suffered without a proper legal defense as in a case in point. Despite claims made by various organizations of having their legal cells for defending youth incarcerated outside the state, the fact of the matter is that no organized legal defense arrangement is in a position. The affected people could approach for assistance. So far, we have seen some top lawyers outside the state engaging themselves only in the high profile cases. Nevertheless, it is not to suggest that in seeking justice for youth under detention or under-trial in courts outside the state such lawyers are discriminatory. The harsher reality is that the political leadership of the state- whatever camp they belong to failed to reach out to the legal fraternity outside the state.
For putting an end to “singing the elegies of injustices.” While there is a need for an elaborate arrangement outside the state for enabling men in black robes fighting coordinate legal battles for ensuring justice for incarcerated youth of the state, there is also need for involving the intellectuals for the cause of ensuring justice and fair play for them.
That reminds me of Gisèle Halimi lawyer of an Algerian FLN activists Djamila Boupacha. Through her activism, she ‘mobilized the support of intellectuals and artist such as Jean-Paul Sartre, Simone de Beauvoir, Henri Alleg, André Philip, and Pablo Picasso for saving her client from gallows. She not only saved Boupacha but also shaped public opinion in France that ultimately resulted in famous Évian Accords’.