In 2017, delivering a judgement recognising privacy as a fundamental right, the Supreme Court decided to legally bury the biggest embarrassment in its history. The court expressly overruled its decision in a matter scholars call the “habeas corpus case”. In 1976, the Supreme Court had ruled that habeas corpus, a writ directing the authorities to produce a person before the court, stood suspended in times of Emergency. This decision ensured that thousands of people who had been illegally detained by the Indira Gandhi regime remained in jail.

Why was it so important to formally overrule a decision that had already lost its credibility over the last four decades? The Supreme Court often reminds the executive and the public at large that it is the last resort for people whose fundamental rights have been violated. The court has consistently maintained that it cannot remain a spectator when fundamental rights are trampled by a government’s arbitrary actions.

Yet, over the last two weeks, the Supreme Court and the Delhi High Court have done exactly this.

Shah Faesal, a civil servant-turned-politician moved the court with a habeas corpus petition
after being stopped from boarding an international flight at Delhi airport on August 14, taken back to Srinagar and detained by the authorities. Under normal circumstances, the courts consider such petitions with urgency since they involve the most important of all rights – liberty. However, the Delhi High Court decided to adjourn the matter to September 3.

Ever since the Centre decided to hollow out Article 370 of the Indian Constitution on August 5 and abrogate the special status accorded to Jammu and Kashmir, the erstwhile state, now divided into two Union Territories, has been under a lock down with all communication services suspended. There are heavy-handed restrictions on movement. These curbs have prevented journalists in the Valley from doing their job freely and accurately echoing the voices and opinions of the region’s people. This prompted Kashmir Times executive editor Anuradha Bhasin to file a petition on August 16 asking for the communications blockade to be lifted. However, the Supreme Court decided to give the government some more time to review the situation, after the authorities said that the restrictions would be eased soon.

While a promulgation by the president is required to impose Emergency and suspend the fundamental rights of Indians, it does not take a formal declaration to enforce a situation with similarly repressive characteristics. The most important marker of an Emergency-like atmosphere is the restriction of fundamental rights, as the government has done in Kashmir. Both liberty and the right to free speech have been severely limited. Even Opposition leaders have been prevented from travelling to the Valley.

It is one thing for the courts to delay taking up petitions challenging the constitutional validity of the Bharatiya Janata Party government’s actions with regards to Article 370. Such a petition would require a Constitution bench to analyse several aspects of law in-depth. But there is no justification for the Supreme Court or the Delhi High Court to adjourn matters that involve a person’s liberty.

It seems that a situation similar to 1976 has reemerged, where the courts are allowing the government to violate fundamental rights in the name of national security, even if it is only for a few weeks.