Indira Gandhi’s Emergency

Supreme Court of India

habeas corpus

diabolic distortion

United Nations Human Rights Commissioners

Jammu and Kashmir

By InvitationJudiciary is the sentinel that guards the fortress of personal liberty against a rampaging government. They don’t ‘adjourn’ their duties and leave the fortress unguarded for ten days.In 1976, at the height of, theruled that the right tostood suspended during the course of the Emergency. Habeas corpus – which literally means ‘produce the body’ – authorises a court to order that a person detained by the State be brought before it, so that the lawfulness of his detention may be ascertained.A bulwark against governmental tyranny and as a charter of individual liberty, habeas corpus is often called the “sacred writ”. Its denial by the court in what became known as the “habeas corpus case” sent shockwaves throughout the world, and dealt a massive blow to court’s reputation as a protector of liberty.The court advanced a number of justifications for its ruling. Primary, among them, was another Latin phrase – ‘salus populi suprema lex’, or ‘public good is the supreme law’.Effectively, the court held that in the garb of securing public good, the government could do anything it wanted, and the judiciary would not interfere. Critics of Emergency excesses were charged with ‘’, the presumption in favour of liberty was held to be ‘too liberal’ a principle, the detention of a few innocent persons was justified for the greater good, and the court held that “crisis government meant strong and arbitrary government”.The habeas corpus case – and its endorsement of executive supremacy – is widely regarded as the Supreme Court’s hour of shame. In fact, more than 40 years after the judgment, in 2017, the court acknowledged that it had been wrong. One might have thought that the corollary would be obvious: that it is no longer permissible under our Constitution to justify severe infringements of civil rights simply by invoking ‘reasons of State’. At all times, the government must act under the Constitution, and it is the role of the courts to check it when it oversteps. The lessons of the Emergency – that unchecked power yields unchecked tyranny – are clear.But over the last ten days, one may be forgiven for thinking that we are still in 1976, and that the habeas corpus case was never overruled. In the ongoing Kashmir issue, two cases of personal liberty have reached the courts. The government has repeated precisely the arguments it used in 1976. And the judiciary’s response has been timorous.The first of these cases involved a challenge to the statewide communication blackout that accompanied the constitutional alterations to Article 370 (and which continues today). A communication blackout imposed upon an entire population is a serious infringement of civil rights: Not only does it erase the right to free speech and expression, but it affects a number of ancillary rights, and severely disrupts basic life.Furthermore, its indiscriminate character amounts to a form of collective punishment (a point made by fivethis week), where a large number of innocent people are punished for the crimes of a few (who may be using mobile networks to plan violence). When the challenge, however, reached the Supreme Court, the court refused to even examine its constitutionality. Instead, it said that the government needed to be “given more time”, and adjourned the case by two weeks.This is not how a constitutional court reasons. By refusing to even issue notice to the government and call upon it to justify an ongoing, statewide violation of rights, the court effectively took us right back to its 1976 logic of untrammeled executive supremacy. The Constitution does not recognise “give the government more time” as a valid justification for violating rights. What it does require is that restrictions upon rights be necessary and proportionate, and that the government proves that they are so before a court of law.The second example is even more unfortunate. Last week, Shah Faesal, founder of thePeople’s Movement, was arrested from New Delhi airport, and taken to Jammu and Kashmir (where he is reportedly under detention). It is unclear what law was used to arrest him in New Delhi, and under what law he is presently detained in J&K. A habeas corpus petition was moved before the Delhi High Court; on August 23, however, that Court adjourned the case for ten days, fixing September 3 as the next date of hearing.But an adjournment in a habeas corpus petition – where a person is under detention, and the very legality of that detention, is being questioned – makes an absolute mockery of the “sacred writ”. It ensures that the detention continues, handing victory to the government without even a judicial determination of its validity. I have, previously, referred to this as judicial evasion: by refusing to hear and decide cases involving violations of rights, courts effectively hold in favour of the government without explicitly having been seen to do so.The supine Supreme Court of 1976 is often contrasted with the judiciary as it should be: in the words of the court, “a sentinel on the qui vive.” The courts are the sentinels that guard the fortress of personal liberty against a rampaging government. However, good sentinels don’t “give the invaders more time”; they don’t “adjourn” their duties and leave the fortress unguarded for ten days. The present-day court appears less a sentinel, and more the guard who nods and winks while the drawbridge is battered down, the moat filled with soil, and the first burning torch thrown into the barn.