UPSC MAINS 2020: Habeas corpus in Jammu & Kashmir

Topic : Habeas corpus in Jammu & Kashmir

Topic in Syllabus: General Studies Paper 2: Indian Polity

Context:

  • Amid the revocation of Article 370, since August 5, 2019, the Jammu and Kashmir (J&K) has been placed under a ‘communications lockdown’ by suspending mobile internet services.
  • In addition, political leaders along with an unknown number of other individuals have been detained without any legal charges.

 

Background:

 

  • The Indian Constitution empowers the Supreme Court to issue writs for enforcement of any of the fundamental rights conferred by Part III of Indian Constitution under Article 32.
  • Thus the power to issue writs is primarily a provision made to make available the ‘Right to Constitutional Remedies’ to every citizen.
  • These writs are i) Habeas corpus, ii) Mandamus, iii) Prohibition, iv) Certiorari and v) Quo warranto.

 

What is Habeas Corpus?

  • Habeas Corpus is a Latin term which literally means “you may have the body.”
  • The writ is issued to call a person who has been detained, whether in prison or in private custody, before a court and to release him if such detention is found illegal.

 

What was the Habeas Corpus Case of 1975?

  • In June 1975, former prime minister Indira Gandhi was convicted of having indulged in wrong practices and declared her election void,that means she couldn’t contest any election or hold her office for the period of next six years.
  • She appealed to the supreme court and the supreme court only granted her a conditional stay. Due to restraining her political power by the Supreme court, she requested the President to declare an emergency under the Article 352which he did on June 26, 1975.
  • The power of right to approach the court to enforce Article 14 (right to equality), Article 21 and Article 22 (prevention against detention in certain cases) were suspended for the period of Emergency.
  • Many leaders from opposition were arrested under MISA (Maintenance of Internal Security Act).
  • These people then filed petitions in various High Court challenging the detainment. Most of the high court gave their judgement in favour of these petitions which compelled Indira Gandhi Government to approach Supreme Court for this issue and which became Additional District Magistrate Jabalpur V. Shivkant Shukla case.
  • This case is also called the Habeas Corpus Case.

 

Habeas corpus in Jammu & Kashmir

 

 How does it violate fundamental rights?

  • A communications shutdown violates the freedom of speech and expression, prevents those outside the State from being in touch with their families and damages an entire infrastructure of health, food, and transport.
  • On the other hand, detention violates personal liberty.

 

Criticism

  • Recently, Human right experts from the United Nations had called the communication lockdown a form of ‘collective punishment’, where an entire population’s rights were taken away for the actions of a few.
  • Others pointed out that if the mere threat of terrorism is the reason for cutting off communication, then the communication lockdown have to be extended to the entire country.
  • Unlike the Emergency, the courts have not upheld the government’s actions on Jammu & Kashmir so far. Petitions challenging the communication lockdown have been repeatedly adjourned by the Supreme court. Thus, by not ruling upon the cases before it, the courts have allowed the infringements of civil liberties to continue.

 

Recent habeas corpus petitions over J&K

 

  • A total of 14 PILs over various aspects of the current situation in Kashmir came up for hearing before Supreme court. Out of 14, two were of Habeas Corpus cases.
  • A petition filed by a member of J&K’s political party challenged the detention of his party colleague who was a four-time MLA in the now-dissolved J&K Assembly.
  • In another petition, a law graduate in Delhi, seek information on his parents, who he apprehended to be under detention in J&K.
  • In both these habeas corpus petitions, the supreme court failed to ask questions to government such as whether there is detention as alleged and whether such detention is made on legal grounds. Neither did it issue notice to the Centre nor did it pose any question regarding the alleged detention.

 

Way Forward:

  • There is need to adopt the principle of proportionality. If any state wants to suspend peoples’ rights in service of a larger goal, then it must show that the measures it is adopting have some rational relationship with the goal.
  • More importantly, states must show that rights are being suspended to the minimum possible extent and the constitutionality of the state’s actions must to be tested by the courts.

 

Conclusion:

  • In the backdrop of suspending basic right in J&K, it is not suggested that the security of the nation can be compromised; nor can one argue that law and order ought not to control. However, preservation of both is the duty of a country.
  • Legal scholar Nick Robinson said that Indian judiciary has gained so much power due to the public trust reposed in it. 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.

 

Sample Question:

What do you understand by the writ of Habeas Corpus. Discuss its importance with reference to State of Jammu and Kashmir ongoing issue.(250 words)