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.
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.
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.”
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.