Justice delayed is often described as justice denied. Few places illustrate this dilemma more starkly than Kashmir, where the slow pace of judicial processes in politically sensitive cases increasingly raises difficult questions about the rule of law.
It has taken nearly eight years for a trial court to reach a stage where it can consider the fate of Kashmiri political activist Asiya Andrabi. During roughly the same period, the judicial system also took years to decide on bail for another prominent Kashmiri political figure, Shabir Ahmad Shah.
Together, these cases illustrate a troubling pattern in which prolonged detention and delayed trials have become defining features of the legal landscape surrounding political cases from Jammu and Kashmir.
Andrabi, founder of the women’s organisation Dukhtaran-e-Millat and a long-time political activist, was arrested in April 2018 and transferred more than 800 kilometres away from her home to Tihar Jail, one of India’s most high-security prisons.
Now, nearly eight years later, prosecutors are seeking life imprisonment under India’s Unlawful Activities (Prevention) Act, after the court acquitted her of committing any terrorist act, of financing terrorism, and of being a member of a terrorist organisation, yet convicted her on conspiracy and support-related charges largely based on her speeches, interviews, and social media activity.
Human rights organisations have repeatedly warned that the law’s expansive definitions and stringent bail provisions make it possible to keep individuals in custody for extended periods even before their trials conclude.
In Andrabi’s case, the pre-trial detention alone has stretched close to a decade.
Such prolonged detention inevitably raises concerns under international human rights standards. The International Covenant on Civil and Political Rights, to which India is a party, recognises the right of individuals to be tried within a reasonable time or released pending trial.
Prolonged pre-trial detention is widely regarded as an exceptional measure rather than a routine feature of criminal justice.
Yet prosecutors have asked the court to sentence her to life imprisonment, invoking the notion of society’s “collective conscience”.
This doctrine occupies a controversial place in Indian criminal jurisprudence. It became widely known in the case of Mohammad Afzal Guru, who was executed in 2013 after being convicted for his role in the 2001 attack on the Indian Parliament.
In that judgment, the Supreme Court argued that the death penalty was necessary to satisfy the “collective conscience of society”. The phrase quickly became one of the most debated aspects of the ruling.
Legal scholars and human rights advocates questioned whether criminal punishment should be shaped by perceived public sentiment rather than strictly by evidence and proportionality.
The invocation of the same doctrine in Andrabi’s case, therefore, carries particular resonance.
When courts rely on the notion of collective conscience in politically sensitive prosecutions, the boundary between justice and the demands of public mood can become blurred. In regions marked by long-standing political conflict, such perceptions carry even greater consequences.
The case also reflects a broader pattern affecting many Kashmiri political detainees. Numerous individuals from Jammu and Kashmir have spent years in detention under national security laws while their trials proceed slowly through the legal system. In several instances, the period spent in custody has exceeded or approached the maximum punishment applicable to the offences charged.
The prolonged detention of Kashmiri political leader Shabir Ahmad Shah, who recently secured bail after years of incarceration, illustrates the wider concerns surrounding extended pre-trial detention and delayed judicial processes.
These patterns raise a fundamental question: when detention itself begins to resemble punishment before conviction, does the criminal justice system risk undermining its own legitimacy?
The legal questions surrounding these cases are inseparable from the broader political context in which they unfold. Over the past decade, the region has also witnessed increasing reliance on security legislation to address political dissent.
Reports issued by the Office of the United Nations High Commissioner for Human Rights in 2018 and 2019 documented restrictions on civil liberties and raised concerns about the application of counter-terror laws in the region.
Against this backdrop, cases such as Andrabi’s are not simply about the fate of individual defendants. They illustrate a broader tension between national security frameworks and the protection of political freedoms in a region whose political future remains unresolved.
There are also humanitarian dimensions that cannot be ignored.
Now 64 years old, Andrabi reportedly suffers from several chronic health conditions, including diabetes and respiratory ailments. Extended incarceration far from her family and home region adds another layer of hardship to an already lengthy legal ordeal.
None of this suggests that states do not have the right to prosecute genuine security threats. Governments everywhere face the difficult task of balancing security imperatives with civil liberties.
But the credibility of any legal system ultimately rests on its ability to demonstrate that extraordinary laws are applied with restraint, fairness, and proportionality.
When trials take nearly a decade to reach decisive stages and bail decisions take years to materialise, the pace of justice itself becomes part of the debate about the rule of law.
For India, which often presents itself as the world’s largest democracy and a defender of a rules-based international order, such cases resonate far beyond domestic politics.
They shape how the international community evaluates the country’s commitment to civil liberties, particularly in regions marked by prolonged political conflict.
The fate of one or two prisoners may not determine the future of Kashmir. But the speed, fairness, and credibility of the justice system will say much about the principles guiding governance in the region.
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