Photo: PTI
Photo: PTI

Opinion | Matters of personal liberty should not get short shrift

The Supreme Court ought to rethink its caseload and prioritize urgent habeas corpus writ petitions

Last week, in his 2020 Justice PD Desai Memorial Lecture, Justice D.Y. Chandrachud gave a thoughtful speech, titled “The Hues of India: From Plurality to Pluralism", about protecting India’s pluralism by protecting individual rights and liberty. He invoked the word “liberty" 16 times and “freedom" 14 times. Last week, after six months of detention, Omar Abdullah and Mehbooba Mufti, two former chief ministers of Jammu and Kashmir, were charged under its Public Safety Act (PSA), a law that allows detention without trial for up to two years. Worse still, hundreds of others are waiting for their day in court for the ruling on their detention. Justice D.Y. Chandrachud, who expressed enlightened ideas on liberty in his lecture, belongs to a court (with 32 other learned justices) that has not set aside the time to hear habeas corpus cases of hundreds of Indians detained in Kashmir. This apparent contradiction requires further examination.

Unlike other complicated questions faced by the court, habeas corpus is a simple matter. Its literal translation is “produce the body". In issuing a writ of habeas corpus, the court directs the state to produce a detained person and justify his or her arrest. Even those on different ends of the ideological spectrum agree that there should be limits to arbitrary state power when it comes to detention. After all, India’s present government has had student protesters of yesteryears who demanded habeas corpus protection during the Emergency. Habeas corpus is well established as a foundational right against state coercion in India. It dates back to 1775, when Sir Elijah Impey, chief justice of the Supreme Court in Calcutta, issued the writ to governor general Warren Hastings.

In the six months since the abrogation of Article 370, the Indian judiciary has not managed to hear all the habeas corpus cases emerging from Kashmir. When Rajya Sabha member Vaiko filed a habeas corpus petition on the detention of Farooq Abdullah on 11 September 2019, the court did not hear the matter immediately. A notice was issued to the government after six days, a very long delay for a habeas corpus case, during which the government charged Abdullah under PSA. The court’s delay in hearing the matter made it moot. This happened to a three-time chief minister and sitting parliamentarian, while the cases of most others detained in Kashmir were not even assigned to a bench.

After weeks of delay in hearing these petitions, the court sent them back to the high court in Srinagar. The high court was swamped with an impossible load, with only two judges available to hear urgent habeas corpus matters. It was so constrained because 9 of its 17 judgeships were vacant. The Supreme Court collegium did not appoint new judges to this high court. The Chief Justice of India leads the collegiums that handle appointments to the Supreme Court and various high courts. The collegium also handles transfers, but did not transfer qualified judges from other high courts to Srinagar, though the high workload and unexpected circumstances of the former state justified it.

Constitutional lawyer Gautam Bhatia has dubbed it an “absentee constitutional court" that has “dodged, ducked, evaded, and adjourned" the problem. More charitable explanations point to the Supreme Court’s caseload and pendency, which is a weak excuse—the onus of prioritizing cases rests on the leadership of the court. The Supreme Court decides what cases to hear and which ones to dismiss. According to a recent paper by Aparna Chandra, William H.J. Hubbard, and Sital Kalantry, from 2010 to 2015, 11.2% of the court’s cases were service matters (where government employees had disputes over salary, pensions, and transfers). Comparatively, constitutional matters comprised only 5.3% of all matters heard by the apex court. The Indian bureaucracy has captured more than one-tenth of the Supreme Court’s valuable time. The same paper reports that from 2010 to 2015, only 0.2% of cases were habeas corpus cases. Over the same period, the court heard more cases related to admissions and transfers to engineering and medical colleges (0.8% of cases) than habeas corpus matters. So, sending habeas corpus cases back to high courts, even with the current deluge, will not free up much of the court’s caseload.

The Supreme Court of India has had a poor record on habeas corpus. The 1976 ADM Jabalpur case, when it held that personal liberties were not guaranteed in a state of Emergency, is invoked and mourned as its lowest point. In 2017, the Supreme Court reversed itself on ADM Jabalpur. In a poignant moment, Justice D.Y. Chandrachud, while writing a minority opinion for the Puttaswamy case, parted judicial ways from his father Y.V. Chandrachud, who was part of the majority ruling that failed to check the power of the executive in ADM Jabalpur.

At the time, it felt, at least symbolically, that the Supreme Court had come of age on the issue of personal liberties and habeas corpus. However, structurally and procedurally, the court has not created the relevant judicial capacity to hear and dispose these cases speedily, nor prioritized them with what one might identify as urgency. In the process, thousands of Indians remain detained. It is unclear whether they are rightly or wrongfully detained, because the only institution that can tell us seems too busy with service matters and medical college admissions to hear cases or appoint a sufficient number of judges who could ask the state to “produce the body".

Shruti Rajagopalan is a senior research fellow with the Mercatus Center at George Mason University, US

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