Sentinel guarding our rights?

In two habeas corpus petitions, the SC failed to ask the questions it should have , and indeed seems to have rewritten the law

Supreme Court

Defining itself, the Supreme Court in 1952 asserted that it is “a sentinel on the qui vive” when it came to fundamental rights. Established on January 26, 1950, the Supreme Court is about to turn 70 in a few months. However, the question is whether the sentinel is truly alert in guarding our fundamental rights. A recent point of concern is the Supreme Court’s treatment of petitions concerning the Jammu & Kashmir issue, particularly the habeas corpus petitions where it seems to have rewritten the law altogether.

Courts are anti-majoritarian institutions guarding individuals against State actions, though such actions may have the support of the majority. The importance of the Supreme Court is highlighted by the fact that it was among the most discussed subjects in the Constituent Assembly. The right to move court under Article 32 for the enforcement of fundamental rights through writs is the most fundamental character of Indian constitutional democracy. Babasaheb Ambedkar has described this right as the heart and soul of the Constitution.

Meaning “to produce the body”, the writ of habeas corpus is one such writ that can be issued under Article 32. Described as the “great writ of liberty”, it provides protection against illegal detention. When the issuance of such a writ is under consideration of the court, the detaining authority is bound to produce the detenu before the court. On allegation of such detention, the Supreme Court is duty-bound to ask two questions to the State – first, whether there is detention as alleged; and second, whether such detention is made on legal grounds. If the first ground is satisfied and the detention is illegal, the court has to order the detaining authority for the release of the detenu.

However, something curious happened in recent habeas corpus petitions. One was a petition filed by the CPI(M)’s Sitaram Yechury challenging the detention of his party colleague, M Y Tarigami, a four-time MLA from Kulgam in the now-dissolved J&K Assembly. The second was a petition by Mohammad Aleem Syed, a law graduate in Delhi, seeking information on the whereabouts of his parents in Anantnag, who he apprehended to be under detention. In both these habeas corpus petitions, the top court failed to ask these questions. Neither did it issue notice to the Centre nor did it pose any question regarding the alleged detention.

However, it ‘permitted’ Yechury to travel to J&K. The court was quick to add that such travel should not be used for “political purpose”. In the case of Mohammad Aleem Syed, the court ‘allowed’ him to travel to J&K to meet his parents and “after ensuring their welfare, to report back to the court”.

In doing so, the apex court seems to have rewritten the law on habeas corpus, which is for ensuring the production of an individual rather than the petitioner himself ‘travelling’ to the detenu. This may be contrasted with the famous Hadiya case or the recent case of an LLM student who had gone missing from Uttar Pradesh after alleging harassment by former BJP MP Swami Chinmayananda. In both those cases, the Supreme Court ordered the production of these individuals in court.

The approach of the Supreme Court in the Kashmir-related cases is baffling and may well be considered “judicial abdication” of its responsibility. One may juxtapose this case with the infamous ADM Jabalpur case where the court ruled by majority that right to life and liberty under Article 21 remains suspended during Emergency. The famous dissent of Justice HR Khanna in that case finally became the standard when the Supreme Court declared the right to privacy as a fundamental right in 2017. However, it seems that burying the ghosts of ADM Jabalpur ten fathoms deep is not enough.

It has been a month since there has been a lockdown on communications in Kashmir and the Supreme Court has not even concerned itself with questioning the act of the government. It has relied upon the words of the Attorney General and the Solicitor General as gospel truths without even looking into the situation. In its August 23 edition, the New York Times reported that more than 2,000 Indian citizens in Kashmir have been detained without authority of law, and without recourse. Many have been unconstitutionally flown out in military aircraft and incarcerated without due process in Agra, Lucknow and Varanasi. Included among them are the president of the J&K High Court Bar Association, a leading businessman, an anti-corruption activist and journalists, university professors, Arabic scholars, and even children as young as 14 years.

The newspaper reiterated what has been reported in some independent Indian media -- that the entire Kashmir Valley’s 68 lakh people, and parts of Jammu’s 54 lakh people, had been under “lockdown” for almost three weeks since the midnight of August 5, with all mobile networks and even telephone landlines disabled, a complete curfew, and shutdown of schools and colleges.

The silence and inaction of the Supreme Court affects the very foundation of the strength of the judiciary: public trust. Legal scholar Nick Robinson had rightly remarked that Indian judiciary has gained so much power due to the public trust reposed in it. In fact, the judiciary has been able to justify many of its actions only because of public support. As per a survey, the Supreme Court is the most trusted institution in the country after the Indian Army. However, that trust is now under question as the court has itself given in to executive actions without even ascertaining the proportionality of the State’s measures. Judicial abdication of its responsibility by the Supreme Court has shaken the belief of people who see it as a revered institution of last recourse.

(The writer is a student of Delhi University)

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