No person shall be deprived of his life or personal liberty except according to procedure established by law.
These words come from Article 21 of the Constitution of India, which guarantees all persons in India – regardless of citizenship – are not at the mercy of an arbitrary, whimsical state and, cannot be arrested or detained without the authorities completing all relevant formalities.
This fundamental right is sacrosanct and cannot be ignored even during an Emergency. And it’s a vague and idyllic concept; there is a clear and simple mechanism to enforce it if the government tries to detain you illegally: the writ of habeas corpus.
Which is why the decision of the Delhi High Court to adjourn Shah Faesal’s habeas corpus petition till 3 September – despite the government’s failure to provide any reasons for the same till now even though it is supposed to provide the reasons today (23 August) – is a denial of justice.
The ‘Most Important’ Writ
‘Writs’ are basically the legal mechanisms provided by the Constitution for people in the country which ensure that their fundamental rights are not violated.
When any of your fundamental rights under the Constitution are violated, you can approach the high courts (under Article 226) or the Supreme Court (under Article 32) and ask them to issue an appropriate ‘writ’ to enforce your rights.
However, the most important of these, by far, is the slightly macabre-sounding writ of habeas corpus – Latin for “ you shall have the body”.
It is not about dredging up corpses but instead, a direction to the authorities to bring a person who has been detained to the court and explain why they have been detained. The person doesn’t have to necessarily be produced in court at the outset, especially if they’re in a different location, but if the court then finds that the detention is illegal, they will order the person’s release.
During the Constituent Assembly debates, this was recognised by members as the “most important” of the writs that the courts would need to issue, and to ensure that this was absolutely clear, the draft clauses which eventually became Articles 32 and 226 specifically mentioned habeas corpus as one of the types of writs which can be issued.
Habeas corpus was recently in the news after the arrests of BJP youth wing leader Priyanka Sharma in West Bengal and journalist Prashant Kanojia in Uttar Pradesh.
Both of them filed habeas corpus petitions in the Supreme Court, which proceeded to order their immediate release.
The alacrity with which both cases were heard and the detained persons (from opposite ends of the political spectrum) released was heartening and gave rise to a hope that the higher judiciary was finally putting personal liberty on the pedestal it was always supposed to occupy.
Unfortunately, it looks like even though Article 370 no longer exists, the law doesn’t apply in quite the same way to the people of Kashmir.
Shah Faesal and the Kashmiri Detention Epidemic
On 14 August, Shah Faesal – a former IAS officer who founded the Jammu & Kashmir People’s Movement Party earlier this year – was stopped from flying out of India at the Delhi airport. He was sent to Srinagar, where he was detained, reportedly under the J&K Public Safety Act (PSA), placed under house arrest, and subsequently sent to a detention centre.
Thousands of people have been detained in Jammu and Kashmir since 4 August, when former chief ministers Omar Abdullah and Mehbooba Mufti were placed under house arrest in anticipation of the Modi government’s move to abrogate Article 370 and reorganise the state into two Union Territories.
Following the presidential orders and the Parliamentary Act of 5 and 6 August, not just politicians, even business leaders, lawyers and journalists have been detained in the region without them having committed any offence, while an information blackout and restrictions on movement continue to remain in place.
The government has not provided any information about the basis for these detentions, and have informed only some media sources that people are being detained under the PSA. The PSA allows for the preventive detention of those who can pose a risk to public order or the security of the state for up to two years without trial.
A ‘next friend’ filed a writ petition on Faesal’s behalf in the Delhi High Court on 19 August, in which it was argued that his detention is illegal as it is baseless, and procedural requirements for his detention and transfer to Srinagar (such as a transit remand order) had not been fulfilled.
The Delhi High Court asked the Centre to respond to Faesal’s petition by Thursday, 22 August, and listed the matter for hearing a day later, on 23 August.
One might argue that a four-day response time isn’t ideal when we’re dealing with someone’s freedom, but this was not unreasonable and gave the Centre enough time to put down a proper response, including the grounds for Faesal’s detention.
However, when the matter finally came up for hearing on Friday, it turned out that the government had failed to submit its response in time. Justices Manmohan and Sangita Dhingra Sehgal then proceeded to adjourn the matter till 3 September – another ten days away.
Interestingly, the Centre has been instructed to ensure that its response is filed on 23 August. Which means, presumably, the judges will have had a chance to read it by the end of Monday or even Tuesday, and should have some clue as to whether or not the detention is legitimate.
Despite this, they not only decided to hear the matter on 3 September, but also justified the delay by saying (according to PTI):
“A week or ten days will not matter.”
Justice Delayed is Justice Denied
Let that sink in.
The Judiciary, which is supposed to safeguard the Constitution: the guardian of your liberties, and is supposed to protect you from the the excesses of the executive branch of government, doesn’t find anything wrong with the denial of a person’s liberty on unspecified grounds of unknown legitimacy.
This view is unlikely to be shared by those who concern themselves with liberties under the Constitution.
Apar Gupta, advocate and Executive Director of the Internet Freedom Foundation, says,
“An adjournment in a habeas corpus petition effectively extends the detention without determining its legality. The most sacred of writs is defeated.”
Advocate and constitutional law expert Gautam Bhatia observes that adjourning a habeas corpus petition renders it “quite meaningless”, a view echoed by Chennai-based advocate Suhrith Parthasarthy, who said that with adjournments like this, “the very essence of habeas corpus is lost.”
“Delaying the hearing of a habeas corpus petition invariably renders it nugatory,” Parthasarthy told The Quint.
The bottom line is that the point and purpose of a habeas corpus petition is to stop people from being illegally detained and therefore, deprived of their liberty, whether at home or in jail. Time is paramount in such cases, whether the detention is wrong because it is unjustified or because the procedure was not followed.
Nobody should be stopped from going about their lives when they’re not breaking the law, and courts are not supposed to allow otherwise.
- Now yes, the government may as well be able to justify that Faesal needed to be detained, and they may even be able to show that they followed all the relevant procedures and complied with the law.
- Or, it could well be that Faesal’s detention is entirely illegal, that none of the required paperwork has been done, that he’s been detained on the basis of whim or even malice.
The problem is, neither we nor the courts know which of these scenarios is right. That can only be decided after the court reviews their response, and to it, any counter-arguments that Faesal’s lawyers have. While a week to a ten-day delay is fine in the first scenario, it most certainly is not in the second.
A Familiar Injustice
This may be the first time that Shah Faesal is having to deal with a dubious detention and a questionable delay in the protection of his fundamental rights, but this is certainly not an uncommon experience for the people in Kashmir.
The Quint spoke to lawyers who have worked on detentions in Kashmir, who said that they are usually extremely arbitrary and fail to even comply with the requirements of the PSA, which include:
- Failure to inform detainees of the grounds for detention within the specified five days, or even ten days (the outer limit which is allowed in exceptional circumstances)
- Failure to prepare dossiers explaining why the detainees are a threat to public order or security
- Failure to obtain signed orders from the district magistrates authorising the detentions
- Failure to have the detentions sent to an Advisory Board for review within four weeks
- When matters are sent to the Advisory Board, it mechanically approves the detention orders without much thought
In most cases, people languish in detention for weeks, even months at a time unless their families are able to challenge the detention orders in courts. As the orders are often not prepared in time, the police try to use ‘open FIRs’ to justify the detention, then hurriedly prepare a stock detention order and the PSA dossier.
The PSA has been used to keep people in jail for years, with a ‘revolving door’ policy used to extend the detention beyond its two-year limit. An example is pro-independence activist Masrat Alam, who has spent the better part of the last nine years in detention under the PSA, with a fresh detention order slapped on him the moment the previous one lapses or gets quashed by the courts – he is on his 37th order now, and is yet to be convicted of any offence.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) has criticised the arbitrary detentions in Jammu and Kashmir in several reports, with its July 2019 report drawing attention to the fact that while the PSA Advisory Boards confirmed almost 99 percent of detention orders, 81 percent of these orders were reversed by the J&K High Court.
Amnesty International India’s 2019 briefing on the PSA notes how it has been used against minors and how the Advisory Boards approve detention orders despite the dossiers having exactly the same accusations as others. They also note that a failure to provide detainees and their families with the grounds for detention is the most common reason for quashing of the detention order by the high court.
The current spate of detentions in J&K – 4,000 is the conservative estimate at present – will surely not be bucking these trends. In such times, the high courts and the Supreme Court should be extra vigilant to protect the rights of detainees and ensure that illegal detentions are not allowed to become a fait accompli.
Unfortunately, as we can see in Faesal’s case, there seems to be little interest in ensuring the same. And it’s not only the Delhi High Court – the Supreme Court has also failed to list a habeas corpus petition filed by Kashmiri law graduate Mohammad Aleem Syed, which had been verified and registered by the court on 16 August.
But of course, it doesn’t matter, does it?