Habeas corpus is considered the most important writ power of a court. If someone has been illegally detained, whether by the state or by other parties, the court can order them to be produced within a specific period.
Habeas corpus helps the court to protect two of the most fundamental of rights guaranteed by a democracy: the right to life and the right to liberty. If someone has been detained illegally, their right to liberty has immediately been curtained. But an illegal detention could also put a person’s life in jeopardy. Hence the urgency that courts show when a habeas corpus petition is moved.
With regards to Kashmir, though, habeas corpus has become a merely cosmetic instrument. This reflects the abrogation of all democratic norms in the region ever since its special status under Article 370 of the Constitution was cancelled on August 5 last year and the state of Jammu and Kashmir was split into two Union Territories.
Before the Centre dismantled Kashmir’s constitutional status, it detained hundreds of people. They included prominent politicians, three former chief ministers among them: Farooq Abdullah, Omar Abdullah and Mehbooba Mufti. While the two Abdullahs were released in March, Mufti remains under official detention under the Public Security Act.
But what is even more egregious are the detentions without formal orders.
On Wednesday, a Supreme Court bench led by Justice Arun Mishra disposed a habeas corpus petition moved by Mumtazunnisa Soz, the wife of former Union Minister Saifuddin Soz, after the Centre told the court that he had never been put under detention.
Hours after the petition was disposed, television channels carried dramatic visuals showing Soz shouting to reporters from inside his compound in Srinagar that the police were not allowing him to leave the premises. With the cameras rolling, policemen stopped him from giving interviews.
Following the controversy, the Jammu and Kashmir administration reiterated its claim that Soz was not under detention and he could move around with his security detail –- though the television footage belied this.
NDTV reported police officials as saying that Soz had been confined to his home because of the Covid-19 situation. The administration claimed that more than 50 security personnel deployed for Soz’s protection had been infected and 500 others had been quarantined. In such a situation, it would not be possible to provide him security to leave.
Soz’s case is not unique. Former Chief Minister Omar Abdullah tweeted on Wednesday that at least 15 members of his Jammu and Kashmir National Conference party have been detained in a similar manner.
Such misleading statements have been made even in Parliament. In August, Union Home Minister told Parliament that Farooq Abdullah had not been detained even though the former chief minister had been confined to his home. Later in September, a day before the Supreme Court was to hear a habeas corpus petition filed on his behalf, the Jammu and Kashmir administration invoked the Public Security Act against him. When the Opposition questioned the Speaker Om Birla about Shah’s initial comments, he said the statement had been factual at that time.
The Hindu reported on Wednesday that Mufti is the only major political leader who is under detention officially. Others like People’s Democratic Party’s Waheed Para, Jammu and Kashmir People’s Movement chief Shah Faesal and Congress leader Saifuddin Soz are under “house arrest”.
In other circumstances, the courts would have charged the officers who misled it with contempt. After all, it has taken even less for the court to invoke contempt. For instance, earlier this week, a bench headed by Justice Arun Mishra threatened to initiate contempt proceedings against IIT Bombay for reneging on its promise to help set up anti-smog towers in New Delhi.
The Kashmir cases highlight a clear pattern. Worried by the fact that a formal detention could invoke scrutiny from the courts, the government seems to have resorted to unofficial detentions to escape the duty of justification that the detention is necessary and reasonable.
While the governments often try to trample on fundamental rights surreptitiously, the duty of the courts is to see through the game played by the state and protect citizens.
In these cases, the higher judiciary has failed. When the administration told the Supreme Court that Soz had not been under detention over the past year, an atrocious lie given that he has not been allowed freely move around for 12 months, the court disposed of his wife’s petition without an investigation. The Supreme Court took the government’s submissions on face value.
This is the same attitude the courts have shown in many cases involving Kashmir, including those related to prohibitory orders being abused and citizens being denied basic services such as 4G internet. When the entire country has turned to digital options to sustain themselves during the Covid-19 pandemic, the people of Kashmir have been expected to work on 2G internet speeds. Despite stating that the conduct of trade over the internet is a fundamental right, the Supreme Court earlier this year left the decision on restoring internet facilities to the government.
What is at stake is not only the relationship between Kashmiris and the Indian state, but also trust in the higher judiciary as the final arbiter of fundamental rights. The longer the extraordinary situation in Kashmir is allowed to be sustained, the more the judiciary’s credibility will be eroded.