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Supreme Court’s handling of Kashmir habeas corpus more worrisome than Modi govt’s clampdown

By putting conditions on Sitaram Yechury’s visit to meet his ailing CPI(M) colleague in Kashmir, wasn’t the Supreme Court breaching its mandate?

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A new and somewhat questionable kind of jurisprudence is being set by the Supreme Court of India for some time. The court of the last resort should be brazenly upholding citizens’ fundamental rights and protecting them from unconstitutional actions of the state. But of late, the Supreme Court has been found wanting in its response. Not only has it opened itself to the charge of acting as an arm of the government, but it is also unwittingly sending out a wrong message to the lower judiciary.

The latest example of this is the manner in which the Supreme Court has heard writs of habeas corpus concerning the detention of political and non-political persons in Kashmir after Prime Minister Narendra Modi’s government abrogated Article 370 that granted special status to J&K.

In dealing with the Communist Party of India (Marxist) general secretary Sitaram Yechury’s habeas corpus petition challenging the illegal and unconstitutional detention of his party’s J&K leader Mohammed Yousuf Tarigami, the Supreme Court bench headed by Chief Justice Ranjan Gogoi imposed conditions even while allowing the leader to visit Kashmir and meet his ailing colleague.

According to the order passed on 28 August, Yechury could only meet Tarigami and not indulge in any political activity. The court also asked Yechury to file a report on his return.

“We make it clear that if the petitioner is found to be indulging in any other act, omission or commission save and except what has been indicated above i.e. to meet his friend and colleague party member and to enquire about his welfare and health condition, it will be construed to be a violation of this Court’s order,” the bench, also comprising Justices S.A. Bobde and S. Abdul Nazeer, ordered.

Why not? Yechury heads an important, mainstream political party in the country and, unless the government shows cause that his intended actions could lead to law and order problems, there shouldn’t be any condition on what he can or can’t do.

Also read: Why an SC judge’s dissent 43 years ago is relevant to Kashmir clampdown today

This petition was earlier with the bench of Justices N.V. Ramana and Ajay Rastogi, which ordered on 23 August that the case be listed “before an appropriate Bench, as per roster”.

It should be a cause for worry if the Supreme Court, which is often criticised for spending too much time on frivolous cases that don’t necessarily involve a constitutional issue, takes five days to hear a writ of habeas corpus. And that too one, which involves the important question of citizens’ life and liberty. What can be more important and urgent for the Supreme Court in a democracy than deciding whether a citizen’s fundamental right to life and liberty as granted under Article 21 of the Constitution has been violated or not by the state? Even during an emergency-like situation, the state can’t restrict people’s freedoms without following the due process of law.

But even if the court were to be given the benefit of doubt with the usual riders like the security situation in Kashmir and sovereignty, the court should have assumed its constitutionally-mandated role as the protector and defender of the citizen’s fundamental rights rather than leaving it to others. Failure to do so amounts to the court abdicating its duty under the Constitution.

A writ of habeas corpus involves determination of whether a detention is legal and if due process has been followed. The court isn’t expected to go into the issue of the alleged crime of the detenue.

Thankfully, the Supreme Court didn’t ask Yechury and others to prove their locus in filing the habeas corpus.

Also read: Beyond Article 370, we must ask if the J&K bifurcation was constitutional

When freedom is conditional

In 1950, a Constitution bench hearing the case of Chiranjit Lal Chowdhuri versus Union of India and Others expanded the scope of who could approach the Supreme Court if somebody’s rights were violated. The court held that not just individual citizens or groups but corporate entities too could do so. The bench also ruled that the Supreme Court, drawing its powers from Article 32, can issue directions or orders or writs like habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by this part.

The normal process in a habeas corpus case is for the court to order the production of the detenue, verify for itself if the detention is legal and, if found violative of the Constitution, quash the detention.

By asking Yechury to travel to Kashmir, meet his colleague but not indulge in any political activity and then return and file a report, wasn’t the Supreme Court breaching its mandate?

Here’s a hypothetical situation for the court to examine or ask itself: what if, in its report, Yechury had claimed that Tarigami was being tortured in detention? What would the court have done then?

More importantly, now that Yechury has purportedly informed the court that the situation in Kashmir is “contrary to (the Narendra Modi) govt’s claims”, what will the court’s next course of action be?

In Ram Manohar Lohia vs State of Bihar, a Constitution bench ruled that even in a situation where an emergency may have been imposed or where law and order is cited to detain a person, detention orders can be challenged through a writ of habeas corpus – if the detention order was passed in a mala fide manner or was otherwise invalid.

In 1983, the Supreme Court noted in the case of Rudul Sah vs State of Bihar, while awarding compensation to an illegally detained citizen: “In the circumstances of the instant case the refusal to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated.”

Also read: Freedom of press supreme, but can’t be one-way traffic, Supreme Court observes

Setting another bad example

These are the examples that the Supreme Court bench led by CJI Gogoi should have followed and, if it deemed fit, expanded on as it heard Yechury’s petition. Instead, the court chose to follow the case of Additional District Magistrate, Jabalpur vs S.S. Shukla.

The case is regarded as a blot on the Supreme Court of India’s judicial history. The majority on the Constitution bench allowed itself to be completely swayed by the specious arguments of then-Indira Gandhi government in curtailing the liberty of citizens during the Emergency. Forty-three years later, another bench allowed itself to be convinced with the imperfect logic behind the state’s actions to not side with the victims.

And the Supreme Court’s treatment of the habeas corpus last week is certainly more worrisome than the Indian state’s actions, because it sets the tone for the rest of the judiciary across the country.

The author is a senior journalist. Views are personal.

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  1. The Supreme Court acted as blind when Hindus and Sikhs were killed and raped and driven out of Kashmir. It always is on the side of terrorists and stone pelting mobs. Never uttered a word when civilians ,not to speak of the security forces personals are murdered. Any how, everybody is afraid of the guns of terrorists. Judges are no exception.

  2. Why only for protest and photo opportunity they must do these jobs for ever to compensate bthe sins their fore father’s have committed.We have seen the meritocracy of their IAS,IPS and HCjudges one latest D.M of balia Another negating Darwin’s theory.but don’t explain how cow gives birth to human being,and the judge peacocks don’t enjoy sex their tears are enough to procreate .This is enough reason for them to continue the service of safai abhiyan to serve the nation for ever.

  3. WoW! The Communist party still got 1 card holding member in Kashmir. That’s great results to show after 1oo years tireless toil for downtrodden.

  4. Also look at how the court is handling the petition of Kashmir Times. In this case, the violation of press freedom has been going on uninterrupted for almost a month now but the court is proceeding at a leisurely pace.

    • All These persons who comment or sit on judgements on others should introspect and show common sense and logical ,reasonable assessment of them selves and their contribution to the society and nation, not to have a negative anti establishent idealogy

  5. Nonsense. In the face of threat to the national integrity, curtailing the freedoms of a few known criminals and anti-nationals is an acceptable trade-off.

  6. ADM Jabalpur. A day of shame in the annals of the judiciary. Ordered to be buried ten fathoms deep by a recent judgment, where the son overruled the father. Now risen back to periscope depth.

  7. Paper Tigers in this country make a living simply by poking holes. They have no practical experience, in running organisations that require complex man-management. The issue of 370 &35A was passed by the parliament of this country by two thirds majority in the presence of representatives of all shades. Now the responsibility of maintaining the law and order is that of the administration, the decision has been taken and it has to be enforced. Trouble makers will have to be controlled and not allowed to resort to or instigate violence. The ones who oppose the decision must to do so democratically by convincing a majority to reverse the decision in parliament or go the courts.
    Today there there is no violence on the streets and that has to be ensured no matter how long it takes, if necessary by keeping the instigators away, they are not in Kala Pani. There seems to be no more than a few thousand of them who are kept away, leave them free and they will start fomenting trouble even with the help from across the border. Is the country going to be allowed to be held hostage by this lot. Law is for the guidance of the of the wise and adherence of the intellectuals.

  8. The govt of today changed the “Status Quo” of Kashmir……there is more hue and cry over it probably more than the Kashmiris themselves. For some reason, the Kashmiri Sunnis got the airwaves and rolls of news print dedicated for them and the other population of Kashmir becomes the “silent majority” with their views and opinions not important at all, doesn’t matter they are a majority, they are simply not freaking glamorous in terms of click baiting or TRP ratings. Now, come an another perspective on SC “handling” of this Kashmir issue. Tell you what, we talk about these things because we are ” civilized” ? Says who, that Indian has “rights”, or for that matter any country ? Rights “God Given” or “Constitution Driven”, as George Carlin would say, are temporary privileges thrown to us by the State only to be taken away if the situation demands it. Rather look what’s going on: Kashmir became an UT of India, Article 370 gone: no more privileges from Govt Of India, because of clamp down human lives have been saved till now. Not happy with the situation with these facts as it affects your “values”? Try changing country: no use to live where you do not share your values.
    My regards,
    Keep it real always !

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