A habeas corpus is a petition that is filed in either a high court or the Supreme Court to seek the production of a person who cannot be traced or one believed to be in wrongful custody of the State authorities or some other entity. It is the primary mechanism in our criminal justice system to ensure that personal liberty of individuals is not sacrificed without the authority of law. It is the effective application of this liberty that differentiates a despotic regime which is free to detain persons at will with one which is governed by rule of law.
Towards the latter part of 2019 and in 2020 there were quite a few habeas corpus petitions filed in the Supreme Court over the detention of several people in Jammu and Kashmir subsequent to the change in its constitutional status on August 5, 2019. The common thread in all these habeas corpus petitions is that in none of these petitions the Supreme Court actually determined the legality of the alleged detention. Given that the primary question in any habeas is the legality of the detention, it can only be seen as a conscious decision by different Supreme Court benches to not engage with the issue.
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The manner in which a judicial system deals with cases of habeas corpus indicates not just the approach of the judiciary towards personal liberty of individuals but also the overall health of the democracy. Historically, the case that is seen as the low point of our judiciary is the 1976 decision in the ADM Jabalpur v. Shivkant Shukla, also described as the Habeas Corpus Case where a Constitution Bench of the Supreme Court held by a majority that during the period when Emergency is in force, a detenue loses his right to challenge a detention order before the constitutional courts. The extinguishment of this remedy through judicial interpretation was considered as the blackest hour in the history of the Supreme Court.
The recent functioning of the Supreme Court in respect of habeas corpus cases has raised some of the same issues and criticisms that plagued the ADM Jabalpur decision. Questions have been posed on the court’s ability to perform its constitutionally mandated role of being a check on an overbearing executive. In newspaper articles and editorials, the court’s inability to even hear so many important habeas matters on merits has evoked much criticism, but it is not clear if that has had any positive impact on its functioning.
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There were two kinds of habeas cases that came before the Supreme Court from J&K. First, where the basis of detention was not known and the same was challenged. In this category falls the cases of Mohammed Yousuf Tarigami, a Kashmiri leader of CPI(M) and Saifuddin Soz, a Kashmiri leader of the Congress. In both these cases, the State employed the same strategy of denying in its counter-affidavit before the Supreme Court any detention, present or past, even though these persons were in de facto custody.
On July 30, 2020 a bench of the Supreme Court simply dismissed Soz’s habeas corpus relying on this averment in affidavit, without giving his counsels even an opportunity to rebut these false claims. Famously, the same day videos emerged of the 83-year-old veteran leader trying to speak over the wall of his house evidencing how he is being kept in custody by security personnel.
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In the case of M.Y. Tarigami, given his poor health, the Supreme Court allowed him to come to AIIMS in Delhi for treatment on more than one occasion and this facilitated his movement but on his return to Srinagar, he was again being kept in de facto house arrest. He had to move to Jammu in the winter of 2019-2020 in order not to be kept in house arrest. The claim on legality of his initial detention is still pending final adjudication before the Supreme Court.
In the second category of cases, there was a clear preventive detention order under the J&K Public Safety Act, 1978 which was challenged before the Supreme Court. Cases of Omar Abdullah, Mehbooba Mufti and J&K Bar President Mian Qayoom relate to this category. In each of these cases, while different Supreme Court benches cajoled the State to release the detenues as otherwise it would decide the habeas plea, it did not give even a prima-facie determination on the legality of the preventive detention orders.
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In Omar Abdullah’s plea, a notice was issued by the Supreme Court on February 14. On March 18, the Supreme Court cajoled the State and on March 24, Abdullah was released by the State making his plea infructuous. In the Mian Qayoom’s case, notice was issued on June 25. On July 23, the court asked the Solicitor General to get instructions on his release. On July 27, the SG reverted with instructions that the State will release him. In the case of Mehbooba Mufti, notice was issued by the SC on February 25. While the first petition was pending, the J&K government invoked PSA, which was challenged in a second petition filed in September 2020. On September 29, the Supreme Court raised some questions on her extended custody from the State and placed the matter for October 15. She was released by the State on October 13. In each of these cases, while the Supreme Court facilitated the release by informally pushing the State, it also consciously chose not to decide on the legality of the orders, which by all indications were legally very suspect.
The net effect of the approach of the Supreme Court has been that while the State detained people with impunity, sometimes even without an order and thus without any de jure basis for detentions, there was no legal scrutiny of the State’s actions. Such non-scrutiny encourages and potentially signals to the State authorities that the egregious nature of its actions will not be judicially called out, thus encouraging such actions in the future.
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A good case to contrast is the habeas corpus petition of Dr. Kafeel Khan, where the order of preventive detention under the National Security Act, 1980 was set aside by the Allahabad high court as not sustainable in law. An appeal against the high court judgment was recently dismissed by the Supreme Court. The judgment has the effect of clearly setting the legal limits of State action in the future.
The need for quick judicial decisions on legality of arbitrary detentions cannot be overstated. A democracy in which this remedy is not taken seriously is surely on an authoritarian path, where those in power can detain at will, unchecked by the judiciary. A proactive Supreme Court in this respect is absolutely essential, to assure to all citizens that they are safe, instead of compelling them to file a habeas corpus to keep alive the important remedy of habeas corpus.
(Views are personal)
Shadan Farasat is a Supreme Court advocate