Habeas Corpus: How citizens’ rights suffered a body blow

Perhaps not intended to be so but Tamil filmmaker TJ Gnanavel’s heart-rending cinematic interpretation in Jai Bhim of a tribal woman’s real-life legal battle to trace her husband – illegally detained and later killed under custodial torture by the police — is a sad reminder of how far our judiciary has drifted from being the ultimate guardian of citizens’ personal liberty.

Gnanavel’s powerful courtroom drama avoids getting trapped and lost in complicated legal jargon but not before giving viewers a fleeting introduction to the habeas corpus petition that the protagonist Suriya, as advocate Chandru, moves in the Madras High Court to seek directions to the police for disclosing the whereabouts of the illegally detained Rajakannu.

Simply put, a writ of habeas corpus (literally means to have the body; commonly explained as ‘produce the body’) is a legal instrument that allows any individual to seek judicial intervention against apparent wrongful detention of a person. But this remedy, available in the Indian law for over two centuries — even predating India’s independence or most other British-era laws that continue to be in force today – is much more than the mere literal translation of these two words from medieval Latin.

The venerable AG Noorani, India’s foremost commentator on law, says habeas corpus was first introduced in India by the British colonisers way back in 1773 when three separate supreme courts were established for the presidencies of Bengal, Bombay and Madras. Its first application in India came just two years later, in 1775, by Sir Elijah Impey, Chief Justice of the Supreme Court at Calcutta against no less than the then Governor General of Bengal, Warren Hastings.

Some 248 years later, though the writ remains the strongest legal instrument for a common man to challenge wrongful detention or arrest, its soul has arguably been gradually hollowed out by a muscular, vindictive state and its so-called law enforcement agencies. The record of the Indian courts, including the apex judiciary, has been chequered in upholding the basic principle of a habeas corpus writ, which is that personal liberty must always be sacrosanct and not hostage to statutes or even the Constitution.

How it started

It is no secret that the biggest assault on the writ of habeas corpus in post-independent India had, in fact, come from the Supreme Court itself during the dark days of the Emergency imposed in 1975.

On June 25, 1975, acting on the advice of then Prime Minister Indira Gandhi, then President of India Fakhruddin Ali Ahmed issued the Proclamation of National Emergency, using his powers under Article 352, Clause 1. Two days later, the President exercised his powers under Article 359 to suspend the rights of citizens to move “any court” for the enforcement of their fundamental rights, including the right to life and personal liberty as enshrined in Article 21.

What followed, as has been widely documented, was the wanton detention and arrest of thousands of political leaders, activists and common citizens under various laws, most prominently, the draconian Maintenance of Internal Security Act (MISA).

Several high courts across the country rejected the contention of the state that with Article 359 in force, judicial redressal against curbs on right to personal liberty could not be sought. However, in what is widely condemned as the darkest chapter in the history of the Supreme Court, a five-judge constitution bench — headed by Chief Justice of India, AN Ray, appointed by the government after superseding four senior judges — ruled, on April 28, 1976, that fundamental rights, including even the right to life, could be suspended during the Emergency.

The majority verdict by four of the five judges on the bench in ADM Jabalpur versus Shivakant Sharma, also called the Habeas Corpus case, was authored by none less than Justice PN Bhagwati, who had openly supported Indira Gandhi and the Emergency. Though, in subsequent years, Justice Bhagwati came to be praised for his judicial activism, his role as a Supreme Court judge during the Emergency-era continued to attract considerable criticism.

Later, the majority verdict in ADM Jabalpur case, which rendered habeas corpus during the Emergency a dead letter in law, was acknowledged by leading jurists and legal commentators as a judicial pronouncement that must be avoided at all cost by judges and courts for all times to come. Indeed, Justices Bhagwati and YV Chandrachud — two of the four judges who gave the majority opinion in the Habeas Corpus case, the other two being CJI Ray and Justice H Beg — admitted in later years that they had erred and apologised for being “cowards”.

It is, however, pertinent to recall here that apart from the inherent injustice in the Habeas Corpus judgment, the case also stood out for the daring dissenting opinion given by the fifth judge on the bench — Justice HR Khanna. Disagreeing with the majority verdict, Justice Khanna held that suspension of the court’s right to enforce Article 21 would mean taking away the one remedy citizens had against deprivation of their right to life and liberty by the state, even when such exercise of power by the state is “without authority of the law or even in flagrant violation of the provisions of law”.

Justice Khanna also noted that “without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning” and that a citizens’ right to life and liberty was “not the creation of the Constitution” and so could not be suspended by the state.

Despite widespread condemnation of the ADM Jabalpur verdict over decades and the apology from Justice Bhagwati, the Supreme Court did not overrule the majority judgment. Then, over four decades later, on August 24, 2017, in what could be described best as a sweet irony, a nine-judge constitution bench, while unanimously declaring an individual’s right to privacy as a constitutionally guaranteed fundamental right in its judgment in Justice KS Puttaswamy versus Union of India, overruled ADM Jabalpur. What came as a bonus was that the judgment overruling ADM Jabalpur was authored by Justice DY Chandrachud, son of Justice YV Chandrachud, who was among the authors of the Habeas Corpus verdict.

Justice DY Chandrachud’s judgment in Puttaswamy merits reproduction. The judgment noted: “No civilised state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right.”

Further, Justice Chandrachud wrote: “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.”

What was, but should never have been. In an ideal world, the Privacy judgment should have settled the legal position on habeas corpus and the right to life and personal liberty once and for all. The applause for Justice DY Chandrachud had been universal and many legal eagles were quick to put him on the same pedestal as Justice HR Khanna.

But then, as the adage goes, the more things change, the more they remain the same. And so, despite an unambiguous verdict from a nine-judge bench of the apex court, the assaults on the remedy of habeas corpus, and by extension on Article 21, have continued. However, the courts have been wise to learn from their mistakes, though unfortunately, to the dismay of legal commentators and common citizens.

Instead of passing orders that revive the overruled ADM Jabalpur case, the past few years have seen a general judicial apathy towards habeas corpus at the preliminary stage itself. Again, a frequent defaulter has been the Supreme Court.

How it’s going

The most obvious reminder of how the ADM Jabalpur case may be technically dead as a precedent but continues to live in spirit came in the days and months following the abrogation of Article 370 by Prime Minister Narendra Modi’s government.

Three former chief ministers of Jammu & Kashmir (Farooq Abdullah, Omar Abdullah and Mehbooba Mufti), prominent political leaders like former Union minister Saifuddin Soz, MLA MY Tarigami and scores of political workers, activists and commoners were detained after the abrogation.

The crackdown on Kashmiris, predictably, led to several habeas corpus pleas being moved in the Supreme Court. What transpired in the court, arguably, was worse than the judgment in ADM Jabalpur. The court chose to, for reasons best known to the then Chief Justice and current Rajya Sabha MP Ranjan Gogoi, set new precedents in dealing with habeas corpus cases — precedents which effectively rendered the writ entirely ineffective in ensuring personal liberty, or without a Proclamation of National Emergency.

Gogoi’s flippant remarks to petitioners aside — for instance, he asked Mehbooba Mufti’s daughter Iltija why she wanted to go to meet her mother despite the biting cold in Srinagar, or how he claimed he would personally check with the Chief Justice of the J&K High Court why petitioners were complaining of lack of judicial accessibility — his orders too broke new ground on how habeas corpus cases should not be dealt with.

Advocate Shadan Farasat, who has appeared for petitioners in several habeas corpus cases, says what was common to all such writs filed with regard to detention of Kashmiris in the aftermath of the abrogation of Article 370 was that the apex court “refused to determine the legality of the alleged detention in each such case”. Farasat says, “the primary question in any habeas is the legality of the detention” but the court, for reasons best known to the presiding judges, simply refused to do so.

Mehmood Pracha, another advocate who has fought several habeas corpus cases, says the judicial convention has always been that a writ of habeas corpus must be given primacy over “every other case because Article 21, as recorded in several SC judgments, is sacrosanct and is the very heart of a democracy”.

However, in the “Kashmir cases and several other cases of wanton arrests by agencies in the name of national security that we have seen in the past two years, the courts, including the SC, have broken from convention and allowed the state to get away with blatantly illegal detentions and arrests”.

This trend has been seen in the arrests of public intellectuals in the Bhima Koregaon case, arrests of student activists in the February 2020 North East Delhi riots cases or even the arrest of journalist Siddique Kappan.

What has made matters worse, argues a recently retired Supreme Court judge, on condition of anonymity, is the “increasing proclivity of the state to bring draconian laws that undermine Article 21, the eagerness of law enforcement agencies to use such laws for justifying prolonged detentions and arrests and the inability of the courts to condemn and overrule these draconian measures”.

The former judge also points out that the excessive use of draconian laws such as Unlawful Activities (Prevention) Act, National Security Act and sedition has been coupled with widespread laxity in probe agencies to investigate “complaints of people of a certain minority community or ideological leaning being targeted, going missing, etc., and the courts accepting arguments by the lawyers of such probe agencies that they can’t trace the whereabouts of such missing persons”.

This was visible in the case of JNU student Najeeb Ahmed, who went missing from the university campus in October 2015 after an alleged scuffle with a group of students who were members of the Akhil Bharatiya Vishwa Parishad.

Ahmed’s mother Fatima moved a habeas corpus plea in the Delhi High Court seeking directions for the Delhi Police to trace the whereabouts of her son. Over five years and a CBI probe later, Najeeb’s whereabouts are still not known — not unlike the outcome of the Rajan case referred to in Jai Bhim. Despite repeated directions from the Delhi High Court to the Delhi Police and later the CBI, for a thorough probe and search for Najeeb and Fatima’s perseverance, nothing has happened. The CBI filed its closure report in the case two years ago claiming Najeeb could not be found.

The Najeeb habeas corpus is as good as dead now though Fatima insists her search is not over. “I have not lost hope… I am waiting for him to come back,” she says.

Evidently, the case for upholding the remedy of habeas corpus and destroying what remains of the ghost of ADM Jabalpur case was never starker. It’s up to the higher judiciary to either write a requiem for habeas corpus, or entertain a habeas corpus for habeas corpus.