"The habeas corpus is the single advantage which our government has over the other countries."

--Dr Samuel Johnson to James Boswell

(The Life of Samuel Johnson, page 162)

In India, habeas corpus arrived with British rule. The first writ of habeas corpus was issued as far back as in July 1775 by Sir Elijah Impey, Chief Justice of the Supreme Court in Calcutta, to Governor General Warren Hastings, the very highest official in British India (Rex vs Warren Hastings, 1775 Morton’s Reports, page 26).

In 1828, Sir John Peter Grant, Chief Justice of the Supreme Court of Bombay, locked up the court and suspended its work because Governor Sir John Malcolm would not enforce a writ of habeas corpus issued by the court (12 English Reports (Privy Council); Knapp (Privy Council) 1).

It was a glorious tradition in which the Federal Court and the High Courts excelled during British rule while the Privy Council in London did its own work. Recent Judgments in India is a collection of judgments delivered in 1942-43 in the wake of the Quit India Movement (The Hindustan Times, Volume 1, 1943). M.C. Setalvad’s characterisation of the Privy Council’s rulings as ones “based on constitutions of policy” was apt (War and Civil Liberties, 1946, page 66).

During the Emergency (1975-77), the High Courts kept up the tradition, while the Supreme Court of India failed miserably in its duty, most notably in the infamous habeas corpus case (ADM Jabalpur vs Shrikant Shukla (1976) 2 SCC 521). This prompted Jayaprakash Narayan (JP) to say that the Supreme Court had been packed by Indira Gandhi with servile judges. This writer’s quotation of JP’s opinion prompted Chief Justice M.H. Beg to issue a notice of contempt of court against the editor of Indian Express, S. Mulgaokar. Barring Chief Justice of India Beg, all the other judges discharged the notice (In re: S. Mulgaokar AIR (1978) S.C. 746).

There is, however, one other consideration that prompts judges to support the government and let down the citizen. That is precisely when the highest court of the land must step in to protect the citizen, as Justice Oliver Wendell Holmes sharply pointed out in Moore vs Dempsey ((1923) 261 U.S. 86). He said: “If the case is that the whole proceeding is a mask—that counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion—and that the State courts failed to correct the wrong, neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this court from securing to the petitioners their constitutional rights. …”

ADM Jabalpur moment

But what if the highest court itself abdicates its duty as in the recent habeas corpus cases relating to Kashmir. One of the ablest and most upright members of the Supreme Court Bar rightly wrote in an article in The Indian Express of August 28, 2019, that the Supreme Court’s recent performance recalls the “ADM Jabalpur moment”. His co-author was Chander Uday Singh, a senior advocate in the Supreme Court.

In 1976, the majority on the bench headed by Chief Justice A.N. Ray had the excuse that an emergency had been declared, which it knew to be a bogus one, and that fundamental rights had been suspended. What reasons could have prompted the court headed by the present Chief Justice Ranjan Gogoi to adopt a course reminiscent of ADM Jabalpur? In its aftermath, Justice Y.V. Chandrachud admitted at the Press Club in New Delhi that the judges were cowards. But they are virtually irremovable. Who and what instilled fear in their minds?

The Gogoi court has absolutely no reason for its failure to do its duty. In 1976, it was only freedom that was denied. In 2019, it is livelihood as Yusuf Jameel describes in his report in The Asian Age (September 29, 2019). “Notwithstanding the rosy picture of the state portrayed by the authorities, common people go through a nightmarish existence because of frequent clampdowns and shutdowns. The situation, particularly in the towns of Srinagar, Anantnag, Pulwama, Shopian, Kulgam, Baramulla, Ganderbal and Sopore, is grim.

“Yet the daily-wagers, vendors, non-skilled labourers and those others existing on ‘hand-to-mouth’ arrangement have suffered enormously due to the stalemate. The restrictions have deepened economic woes and affected every aspect of life in the Valley. With no tourists arriving, those associated with the industry such as houseboat owners, shikarawallas, taxi operators and hoteliers have lost their living completely.” Is this a State of the Union of India or its colony?

Crisis by design

The crisis was created calculatedly by the Narendra Modi regime for its own end. The court’s approach is best evaluated in the context of the pre-August 5 moves, the August 5 coup, the situation in Kashmir, the law on habeas corpus and the Gogoi court’s utter failure to discharge its duty.

On July 20, Defence Minister Rajnath Singh ominously declared: “Kashmir samasya ka hal hone wala hai [The Kashmir issue will be resolved soon]. I am assuring this with full responsibility… we know how to find a solution” (Hindustan Times, July 21). Nistula Hebbar reported immediately thereafter that the Centre was banking on the 4,000 sarpanchs “elected” recently. Remember Ayub Khan’s plans for “basic democracy”? One confirmed to the base. It wanted to remove the present political class “and put in place different actors on the political chessboard” (The Hindu, July 22). Constitutional skulduggery was aimed at political engineering.

Since no accord either with Pakistan or the Kashmiri was in sight, it clearly was a unilateral forced solution he had in mind. Governor Satya Pal Malik was in the know. On July 21, he asked militants to kill politicians he dubbed as corrupt (The Asian Age, July 22). Even as thousands of troops were being moved in, he said on July 30: “Everything is fine and everything is normal” (The Hindu, July 31).

This was just a week before the frauds of August 5. It is crucially important; for the Supreme Court harped repeatedly on the absence of normalcy. The Centre aborted the Amarnath Yatra and expelled tourists and pumped in a million troops in the Valley by August 17. Worse, it has politicised the Army, which put up posters in the Valley defending the attempted abrogation of Article 370 (The Indian Express, September 9). Its Chief, the ever valuable General Bipin Rawat, certified on May 26: “We have been able to ensure that the insurgency has been brought under control” (Greater Kashmir, May 27). Major General Subhash Sharan said that the Gita “is a military manual” (The Times of India, June 22). Heard this ever before? President’s Rule was imposed in Jammu and Kashmir on June 20, 2018.

The legislations on August 5 did not disturb normalcy. The Director General of Police of the State Police, Dilbagh Singh, made a fine distinction: “The situation was not normal but peaceful” (The Hindu, September 24). It was peaceful thanks to a million troops; precisely for this reason it was not “normal”. But to Governor Malik “everything is fine, everything is normal”, as he said on July 30. Who disturbed the normalcy? Not the people nor the politicians but the Centre’s moves on August 5. On July 31, he went so far as to declare publicly: “I assure you that there is no plan at any level to abrogate Article 35A this time; all that you are hearing are rumours being spread by some people with vested interests. All I can say is that there is no truth in their claims about abrogation of the special status” (Greater Kashmir, August 1). This was not Shakespeare’s fat Falstaff exaggerating. It was a Governor lying through his teeth.

Surely, nothing happened in Kashmir between July 31 and August 5 to disturb its “normalcy”. As we shall see, the real, unspoken cause was revealed in the Supreme Court on September 16 by the Government of India itself.

August 13: The Supreme Court of India first heard cases on Kashmir post August 5 in a petition filed by the activist Tehseen Poonawalla. He sought restoration of essential services such as hospitals and schools. The bench comprising Justices Arun Mishra, M.R. Shah and Ajay Rastogi said: “Nobody can take even a 1 per cent chance [sic].” This is reminiscent of Dick Cheney’s doctrine on “One Percent Risk”. In the past, Justice J.S. Verma, who proved himself to be in a bad temper, forbade the press to name the judge specifically but attribute his remarks to “the bench”. The press has complied, largely. Asked by the petitioner to order restoration of essential services, “the court” retorted “who will be blamed if something happens?” It said also that the government needed “reasonable time” (Krishnadas Rajagopal, The Hindu, August 14). Yusuf Jameel reported in The Asian Age that “the judges” said also “let the situation improve” and “the government has to be believed”. The case was adjourned for two weeks. If Amit Shah had made those remarks, he would have invited disgust. Their Lordships invite sadness.

August 16: A bench comprising Chief Justice Ranjan Gogoi and Justices S.A. Bobde and S. Abdul Nazeer heard a petition filed by the fearless Anuradha Bhasin, Executive Editor of Kashmir Times, which she rightly said could not be published from Srinagar; only the Jammu edition could be published. Justice Bobde revealed that he had spoken to the Chief Justice of the Jammu and Kashmir High Court who, not surprisingly, was not affected. The bench called for patience: “We would like to give it a little time,” Chief Justice Gogoi said. By this time, there were massive arrests of the entire political class in the Valley. Iltija Javed Shah, Mehbooba Mufti’s articulate daughter, was subjected to repression after she spoke up for her mother. The case was put off for a fortnight but not before Justice Bobde confidently certified: “A terrible state of affairs.… There are formidable reasons [for the lockdown]. These are security matters” (The Hindu, September 17). On what material did he base his statement?

Chief Justice Gogoi made two astonishing and utterly unprecedented remarks. Regarding a threat to an advocate, Huzefa Ahmadi: “If required, I will go personally and check.… I will speak to the Chief Justice of J&K’s High Court.” It is no function of a judge to seek personal knowledge beyond the record before him. Such extravagance has no place in the apex court, still less his threat to counsel who speak, as they must, only on instructions not personal knowledge. The Chief Justice said: “If it is not correct, be ready to bear the consequences” (The Indian Express, September 17). The bench’s order has to be read to be believed: “The State of Jammu & Kashmir, keeping in mind the national interest and internal security, shall make all endeavour to ensure that normal life is restored in Kashmir, people have access to health care facilities and schools, colleges and educational institutions and public transport functions and operates normally.”

The court added: “All forms of communications, subject to the overriding consideration of national security, shall be normalised, if required on a selective basis, particularly for health care facilities.”

Farooq Abdullah’s detention

Has anyone ever read an order of a higher court like this with its perfervid exhortation on “the national interest”, “internal security” and “national security”. This explains a lot. There was no reference at all of the denial of citizens’ liberty. That very day, hours before Marumalarchi Dravida Munnetra Kazhagam (MDMK) leader Vaiko’s habeas corpus for the release of Farooq Abdullah was to come up before this very court, the latter was slapped with an order of detention under Jammu and Kashmir’s draconian Public Safety Act (PSA), 1978.

However, during the hearings the true reason for the clampdown, unknown even during British rule, emerged from the mouths of the government’s law officers: “It was clear that the persons who had been in power over long number of years in the state as well as the separatists whose very commanding position would be jeopardised …they would not hesitate to attempt to ensure that the law and order situation deteriorates” (The Indian Express, September 17).

This was false. None of them had a record of lawbreaking. The true reason was that the Government of India realised that they would strongly oppose its despicable attempts to destroy the State of Jammu and Kashmir, its autonomy and even its culture, and their opposition would find support from the long-suffering populace.

The Gupkar Declaration of August 4 is a historic document. Never before had Kashmir’s political class spoken with one voice as it did that day on the lawns of Farooq Abdullah’s residence at Gupkar Road in Srinagar (see box).

The detention order said that Farooq Abdullah “has tremendous potential for creating an environment within the district (Srinagar) and other parts of the Valley” (Greater Kashmir, September 20). Compare this to the grounds for detention listed in Volume 1 of D.D. Basu’s Shorter Constitution of India in the commentary on Article 22, and the similarity becomes glaringly obvious. A person is detained because his PAST conduct, not potential, leads the State to believe on the facts that he is likely to disturb public order.

September 20: A Malaysia-based businessman’s wife challenged his detention by a writ of habeas corpus and asked for his production before the court. The response of Chief Justice Gogoi and Justices Bobde and Nazeer: “Issue notice, returnable within two weeks.” Mubeen Ahmed Shah was detained in Srinagar and taken to the Agra Central Jail on an order under the PSA. He is a qualified doctor and a leading non-resident Indian businessman. A similar order was passed on five other petitions (Greater Kashmir, September 21).

September 30: Chief Justice Gogoi dismissed Vaiko’s petition since Farooq Abdullah had been detained thereafter under the PSA. “Nothing survives in this case,” he said. This is palpably wrong, especially because of the circumstances in which the PSA was slapped on him hours before the court hearing. The proper course would have been to let Vaiko amend his petition to bring the facts up to date. Chief Justice Gogoi announced that all other Kashmir cases—by Sitaram Yechury on M.Y. Tarigami, Ghulam Nabi Azad and Anuradha Bhasin—would be heard by a three-member bench headed by Justice N.V. Ramana, who would also head another bench of five judges on the case relating to the abrogation of Articles 35A and 370 (The Asian Age). The Hindu’s correspondent Krishnadas Rajagopal remarked: “The prolonged lockdown has seen many habeas corpus petitions filed in the Supreme Court. These include those from a petition by a young lawyer, Mohammed Aleem Syed, worried about his aged parents in Kashmir to one by Sitaram Yechury, general secretary of the Communist Party of India (Marxist), to see his party colleague M.Y. Tarigami and by Iltija Mufti to see her mother and former J&K Chief Minister Mehbooba Mufti. The court, instead of making the authorities liable to prove their well-being, had allowed the petitioners permission to travel to J&K and meet them under certain conditions.… On this, the court has so far adopted a wait-and-watch approach, expecting the situation to clear up enough for restoration of communications in the Valley.”

Thus, the Gogoi court has, at reckless speed, run a coach and four through the centuries-old established law on habeas corpus. A.V. Dicey’s classic on constitutional law summarises the law precisely.

‘Have his body’

The standard form of the writ commands the jailor to produce the “the body” of the detainee “together with… the cause of his being taken and detained”. Justice P.N. Bhagwati whittled this down. Production was not required immediately as it would delay the return showing cause. This drew protests. In our age of air travel, production in court is indispensable. Habeas corpus means to “have his body”. Dicey cites cases of evasion of duty by judges.

A writ of habeas corpus has priority over all other business of the court. Lord Denning describes how a barrister had only to mention that he was applying for a writ for the judge to cast aside all other work. “Habeas corpus applications have priority over all other business,” S.A. De Smith wrote in his classic Constitutional and Administrative Law in the chapter on personal freedom.

R vs Home Secretary exp Chetak ((1991) 2 A.E.R. 319 at 322) upheld this proposition. A fortnight’s adjournment is an evasion of duty and a travesty of justice. Yet on October 1, a bench sought the Centre’s response to Ghulam Nabi Azad’s habeas corpus petition for Tarigami after a fortnight’s adjournment. Justice B.R. Gavai said: “Personal liberty will have to be balanced against requirement of national security” (Hindustan Times, October 1). The reality of denial of liberty has been consistently sacrificed to the phantom of national security.

The duty to examine the cause of detention is not any less in a case of preventive detention. In Khudiram Das’ case ((1975) 2 SCC 81 on page 96), the Supreme Court held: “Where the liberty of the subject is involved, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the subject is not deprived of his personal liberty otherwise than in accordance with law.… It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weigh with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which could have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it.” This was not done in the Kashmir cases.

Consider the emotive language used in the Kashmir cases by Chief Justice Gogoi and Justice Bobde. What national interest is involved? The Government of India decided on an extreme measure. It pulled out all the stops, anticipating the people’s protest. Not they, but it is the government that upset normalcy. The Supreme Court, disregarding people’s rights, went out of its way to ardently endorse the government’s pleas on the “national interest”.

This too shall pass. But, like the 1976 case, this episode will ever remain a stain on the Supreme Court’s reputation. The people of Kashmir will never, never forgive it. The court overlooked the basic principle that “once the Plaintiff establishes the imprisonment, the burden of proving justification lies with the Defendant”. As Lord Atkin said: “Every imprisonment is prima facie unlawful and it is for the person directing the imprisonment to justify his act” (R.J. Sharpe, The Law of Habeas Corpus, 1976, page 87). The Supreme Court flouted the settled law on habeas corpus.

Global censure

Kashmir has drawn international attention and censure. China has revived its references to the United Nations resolutions that it had dropped two decades ago. Here are some samples of some critical references from the European Union (E.U.) Parliament’s debate on September 18:

Finnish Minister for European Affairs Tytti Tuppurainen, on behalf of the Vice President: Significant number of troops in Kashmir; arrests and detention of political leaders, students and human rights defenders; encourage India and Pakistan to seek solution respectful of Kashmiri population; concerns over situation on ground specifically in relation to fundamental freedoms.

Traian Basescu, Group of the European People’s Party (Christian Democrats), Romania: Situation is alarming and unacceptable; constant trampling of human rights and two nuclear powers head to head in conflict is concerning.

Maria Arena, Group of the Progressive Alliance of Socialists and Democrats in the European Parliament, Belgium: Recalled Article 370; most militarised region in the world; U.N. reports confirm serious human rights violations; call for international inquiry; E.U. should weigh in heavily; U.N. must help to re-establish dialogue between the two countries.

Shaffaq Mohammed, Renew Europe Group, United Kingdom: E.U. must stand with the people of Kashmir; implement the recommendation of U.N. High Commissioners’ reports; it is the people who should determine their fate and future, respect for self-determination; E.U. can be a natural facilitator in the talks between the two countries.

Gina Dowding, Group of the Greens/European Free Alliance, U.K.: Raids, arrests and crackdowns in Kashmir are truly appalling; human rights violations must immediately stop, not only in Kashmir but also against Kashmiris everywhere; restrictions on communication; demands India to restore basic freedom.

Richard Corbett, Group of the Progressive Alliance of Socialists and Democrats in the European Parliament, U.K.: India’s recent actions in Kashmir inflamed the already volatile conflict situation and will cost India a fortune; this is a stain on India’s international reputation; only one long-lasting solution: self-determination; time to implement the U.N. resolution; E.U. should use tools like trade to press for that outcome.

Phil Bennion, Renew Europe Group, U.K.: Urge that curfew is lifted, Kashmir government is reinstalled, political prisoners are released, access to U.N. observers and agree for independent mediation.

Klaus Buchner, Group of the Greens/European Free Alliance, Germany: The only way to resolve is to implement the resolution; to prevent war and human rights violations; U.N. needs to step in and if need be send peace mission in agreement with both sides.

Nosheena Mobarik, European Conservatives and Reformists Group, U.K.: Ashamed on lack of resolution on Kashmir; India alone is responsible for the current situation in Kashmir; right to self-determination denied in Kashmir for 70 years. How long will the E.U. be quiet?

Anthea Mcintyre, European Conservatives and Reformists Group, U.K.: Violations of human rights in Kashmir; spoke about use of pellet guns against civilians and the person who died; there can never be any excuse for killing and blinding people; no rationale for India’s action; India aspires to be a permanent member of the Security Council and events in the last month are not the actions of a probable candidate.

Chris Davies, Renew Europe Group, U.K.: Kashmir is a disputed territory; human rights violations in Kashmir; because we are friends of India, we have to ask questions if it’s the right course of action and what are possible benefits; ask the Minister, words so far have been good but what are the possible actions?

Tytti Tuppurainen, on behalf of the Vice President: E.U. will continue to monitor the situation closely; India and Pakistan must make efforts for de-escalation of conflict.

Even on September 16, the Supreme Court said: “We are not issuing any directive. We have said that the restoration will be on selective basis keeping in mind the national interest” (Greater Kashmir, September 17). It is the same story repeatedly retold.

U.N. Secretary-General Antonio Guterres has voiced his concern repeatedly, as has United States President Donald Trump and Assistant Secretary of State Alice Wells. Pakistan Prime Minister Imran Khan’s speech at the U.N. General Assembly on September 27 stirred Kashmiris (The Asian Age, September 29).

Within India, protests and disclosures of wrongs have mounted. Women’s organisations have been foremost in their protests. After a visit to Kashmir, one group reported “harassment by Army personnel” of women (The Hindu, September 25). Over 50 Indian scientists and scholars urged Modi to revoke the measures of August 5, lift the curbs on communications and release the detained persons (The Telegraph and The Hindu, September 22). A report entitled “Kashmir Caged”, authored by the celebrated economist Jean Dreze, Maimoona Mollah and Kavita Krishnan, secretary of the All India Progressive Women’s Association, exposed the arrests and torture of minor boys. They visited Kashmir from August 9-13 and spoke to the media at the Press Club of India in New Delhi as Pheroze L. Vincent of The Telegraph reported. Kavita Krishnan gave a detailed expose to the media in Kolkata on September 7. It was “a military dictatorship”.

The laws of August 5 go into force on October 31. The excesses will continue. As it is, maulvis are given sermons to read from the pulpit at mosques, Iqbal Ahmed Wani told the media in New Delhi in August. The New York Times correspondents Jeffrey Gettleman, Kai Schultz Sameer Yasir and Suhasini Raj reported that “local officials say that at least 2,000 Kashmiris”, including students as young as 14, the anti-corruption crusader and right to information activist Raja Muzaffar Bhat had been detained (The Telegraph, August 24).

Of what avail is the constitutional guarantee of the writ of habeas corpus and its prime enforcer, the Supreme Court, to them? Or to Farooq Abdullah, who is alleged to have propagated secessionist ideology. The 21-page dossier against him has quotes from three years ago (Naveed Iqbal, The Indian Express, September, 24). As in 1975-76, so in 2019. What we have is a manufactured crisis. Talk of national security is irrelevant, worse, still talk of the “national interest”.

Ex parte Milligan (4 Wallace 2 (1866)) was decided during the American Civil War by the U.S. Supreme Court. Lambdin Milligan had been sentenced to death by a military commission on charges of disloyalty. Justice David Davis, a personal friend of President Abraham Lincoln, pronounced the trial by military commission of a citizen to be illegal, accepted Milligan’s petition for habeas corpus and ordered his release.

Justice Davis’ opinion

A passage in Justice Davis’ opinion deserves to rank with the great classics of legal pronouncements: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.…”

It is unlikely that this sagacious advice will be heeded here. The sordid schemes of August 5 come into force on October 31. Protests will mount in Kashmir and are certain to find an echo in the country and in the world at the large. The Modi regime has betrayed Unionists and provided fodder to separatists. Alienated from India for decades, the people of Kashmir are now virtually lost to us. Only armed force keeps them within the Union. This is an inevitable result when conciliation and statesmanship are discarded in favour of recourse to unilateral measures imposed by force.