Test of justice
It has come to light that from the abrogation of Article 370 on August 5 amidst a crackdown on communications and personal freedoms, 252 writs of habeas corpus have been filed in the courts of Jammu and Kashmir. On September 3, one petition was filed, on average, every hour, challenging the summary detention of citizens. Of the petitions, 147 suggest that orders of detention under the Public Safety Act (PSA) were passed by the administration in bad faith. Sixteen state that even the reason for detention was not communicated, rendering these arrests completely arbitrary.
But the judiciary comes off looking even worse than the administration and the political dispensation. The writ of habeas corpus exists because it is assumed that political and executive power can run amok. It is a weapon in the hands of the judiciary to rein it in, in the defence of the people. In the past, to improve India’s human rights record, judicial activism had focused on sharpening the courts’ response to writ petitions concerning fundamental rights. The writ of habeas corpus is the last line of defence against arbitrary attacks on these rights, requiring the accused to be produced immediately, instead of being held without charge, as has been done under the PSA. But tardiness in seeking due process of law is seen in the J&K High Court. In the 11 cases where orders have been passed and details put online, for instance, one was filed on August 23 and will be heard, following a delay, on October 9. In another matter where the court issued a notice to the government, it allowed four weeks for the latter to respond. This is the sort of time-lag that is expected in a trivial civil suit like a tenancy matter, not a case involving the possible suspension of human rights without cause being provided.
This state of affairs is particularly embarrassing for the judiciary because the Supreme Court was kept in the dark while hearing a clutch of petitions on the situation in J&K. On September 16, Chief Justice Ranjan Gogoi had called for a report from the chief justice of the J&K High Court about allegations of difficulties in accessing justice. All eyes will now be on the Supreme Court, which itself has become an affected party for lack of prior information. Its response will be read as evidence of its commitment to the people and their rights.