Updated: Sep 26, 2020
New Delhi: Detained in the aftermath of the abrogation of Jammu and Kashmir’s special constitutional status under Article 370, Sheeraz Ahmad Sheikh spent the 72nd anniversary of Indian Independence in jail.
That he also spent the 73rd anniversary in jail is telling.
No one knows the exact number of detainees, but they run in thousands. In March this year, G. Kishan Reddy, the Minister of State for Home Affairs, informed Parliament’s upper house, the Rajya Sabha, that 7,357 people were detained in Kashmir since 5 August, 2019.
While the abrogation of section 370—the constitutional provision that granted the erstwhile kingdom special status within India since 1950—means that the Constitution of India fully applies to what is now the union territory of Jammu and Kashmir, the constitutional safeguards against arbitrary preventative detention belie thousands, such as Sheeraz, in the region.
Where these detentions were challenged through the most fundamental constitutional protection—a habeas corpus writ petition, the higher judiciary, led by the Supreme Court of India, has been negligent in delaying the adjudication of these petitions.
Consequently, like Sheikh, Ghulam Dar, Sheeraz Naikoo, Ghulam Wagay, Uzair Malik, Towseef Dar, Jahangir Hareesa, Amir Bhat and many more, who were detained in August 2019, have been languishing in jail for more than a year. All that we know of them, based on accessible records, are their names, when their habeas corpus petitions were filed, and cursory details of the court hearings.
We do not know who they are, why they were detained, whether correct procedure was followed or if they have been charged under any law and if they have been jailed in Kashmir or elsewhere. This is because neither have their detention records been filed in court by the government nor have any details about them been made available in public domain and media.
One only hears of the most high-profile cases—such as the six-month-long detention with no habeas corpus hearings of two former chief ministers of Jammu and Kashmir (J&K), Omar Abdullah and Mehbooba Mufti. The government charged them after six months of detention, under its Public Safety Act, 1978. Worse is the case of Saifuddin Soz, a former minister of the government of India.
On 29 July 2020, the Supreme Court dismissed the habeas corpus petition filed by Soz’s wife on the government’s word that Soz was never detained or charged. A video emerged soon after, showing Soz unwillingly detained under house arrest.
Tushar Mehta, the Solicitor General of India had perjured himself before the Supreme Court of India, with no consequences.
Protection against such state coercion is only available if the judicial system effectively hears and disposes habeas corpus petitions. While Indians remain polarized on the correctness of the “integration of Kashmir” and the methods deployed by the Modi-government, no one denies that the Constitution of India now fully applies to J&K and that such protections must be made available to those detained.
But the plight of hundreds of habeas corpus petitions—250 of which were filed before the J&K High Court within seven weeks of 5 August, 2019 and of the hundreds that were filed thereafter—show that these constitutional protections belie ordinary citizens in the region.
The neglect and delay by the courts lies at the heart of this constitutional failure.
Habeas Corpus In The J&K High Court
Habeas corpus, which means “produce the body” in Latin, is a well-established right in India to protect individuals from state coercion in the form of illegal and preventative detention.
It predates the Indian Republic, going back to 1775, when Sir Elijah Impey, chief justice of the Supreme Court in Calcutta, issued the writ to governor-general Warren Hastings. Under the Constitution, it can be invoked either before the Supreme Court or any state high court.
When a habeas corpus writ petition is filed, the matter is usually straightforward: The court directs the state to produce a detained person, justify his or her arrest, and ensure that the correct procedure under law was followed. Procedurally simple as it may be, the implications it has on the detainee’s right to life and liberty are profound.
The judiciary in J&K is no stranger to illegal and preventive detentions. To deal with this problem, the J&K High Court stipulated in its Case Flow Management Rules of 2010 that habeas corpus petitions must be disposed (or resolved) within 15 days and would be prioritized “over and above the fast track cases”. The High Court understood both the principle and the timeliness of adjudication.
But of the 554 habeas corpus petitions filed since 5 August 2019, the High Court only passed judgment in about 5% of all the habeas corpus petitions (29 cases). In two, the detention was upheld under the Public Safety Act, and in another two, the house arrests were not proved. The remaining 25 were dismissed as wrongful detentions upon hearing.
The remaining cases that are listed as disposed—just over 30% of the total habeas corpus petitions filed—have no judgments or orders mostly because they were infructuous due to judicial delay. The government had released the detainee by the time their petition was heard in court. A staggering 64% of these habeas corpus petitions still remain pending. In many cases, the detainees have spent over a year waiting for a habeas corpus judgment.
During the COVID-caused lockdown period from March to June 2020, the J&K High Court had adopted an urgent hearing mechanism via video. Judgments were pronounced in 126 cases categorized as “extremely urgent.” Only 22 of these were habeas corpus writ petitions.
Pending habeas corpus petitions were not given precedence over other seemingly “urgent” matters, which included compensation under the Motor Vehicles Act, mining leases, challenges to government tenders, and even an appeal on a seven-year-old order in a paternity suit. The detainees, since the abrogation, have no priority even in urgent matters of a resource-constrained court, despite its 15-day rule.
The Government Is Favoured As A Litigant
The Supreme Court believes that very few things are more important than protecting an individual’s life and liberty.
Yet, requests and pleas of the government are shown considerable deference by the courts, which invariably protracts any litigation. And habeas corpus is a protection where delays automatically amounts to denial of justice.
The state and union governments are the biggest litigants before the judiciary in India, and over 70% of cases have the government as one of the parties. Because of the repeated interaction across a range of matters, the government is usually given a wide berth and deference by the judiciary. It is routine to give extensions to the government and accommodate governmental delays by granting adjournments.
In the habeas corpus petitions, the J&K High Court has allowed adjournments of one to four weeks, each time the government asked, in cases filed since 5 August, 2019. In most cases, adjournments were granted where the State counsel failed to file the counter-affidavit or/and the detention record despite several “final opportunit(ies).”
For instance, in Sheeraz Ahmad Sheikh’s case, the High Court granted three opportunities over ten months to the government counsel to file a counter affidavit. Overall, giving eight chances, including four “final” opportunities, with the latest on 10 August, 2020, to produce the detention record. This order comes more than a year after he was detained, making the writ of habeas corpus moot. The Court has still not looked at the records that provide the basis for Sheikh’s detention.
Sheikh’s court delay is not unique.
Another habeas corpus petition, for Jahangir Ahmad Hareesa, was filed within the first two weeks of the abrogation of article 370, and his petition has been listed five times since last year. The High Court, in its 20 July order, recorded that the government had filed the counter-affidavit but without the detention record. It gave the government a fourth and last opportunity to comply, failing which it would hear the case without record.
On the next hearing date, the Court adjourned to honor the demise of a sitting judge. Hareesa’s habeas corpus petition was scheduled for 9 September, 2020, clocking 13 months since his detention. Just before the hearing, Hareesa was released, and his habeas corpus petition was dismissed as infructuous. The government never produced a detention record over 13 months of detention.
This is unsurprising, given that the government detains young men in Kashmir for the flimsiest reasons. Recently, nine young cricketers were detained under the Unlawful Activities Prevention Act (UAPA), 1967, for wearing jerseys with the name of a slain militant, Syed Ruban who was a cricket enthusiast, and offering prayers at his grave after a cricket match in the village.
Judicial Delay And Capacity Constraints
Aside from judicial neglect, there are three reasons for the pendency: overwhelming caseload, judicial vacancies, and constraints during COVID, which limit the capacity of the J&K High Court.
A quick look at the cause lists of the High Court since it reconvened in July 2020 indicates that, on average, the Court lists about 70-odd habeas corpus petitions per week, distributed unevenly across two to three single-judge benches.
They are placed at the top of the list as per the Case Management Rules, but a single judge bench hears anywhere between 185 to 200 matters for admission or for dealing with procedural notices like fixing dates of hearing, etc., after which regular hearing matters are separately allotted to the bench. This is considerably higher than the national average of 70 hearings per High Court judge per day in India, leaving little time for habeas corpus proceedings.
A caseload is even more overwhelming when there aren’t enough judges to hear them. Until April 2020, the J&K High Court was operating at half its total bench strength. Of the 17 sanctioned judge positions in the J&K High Court, 8-9 had remained vacant and unfilled for over a year, according to data released by the Department of Justice.
The deluge of cases since 5 August, 2019 only exacerbated the situation. While case management is within the purview of the High Court, the blame for capacity problems caused by unfilled vacancies squarely falls on the Supreme Court of India, because it manages all judicial appointments and transfers.
Since 1993, appointments to the high courts and the Supreme Court have been made by the judicial collegium with no external influence from the legislature or the executive. The Indian appellate judiciary is the first of its kind in this self-appointing construct. The last attempt to appoint judges with both the executive and the judiciary engaged jointly in the appointments process was struck down by the Supreme Court as unconstitutional in 2015.
Since 2015, appointments of judges to the Supreme Court and high courts are made as per memoranda jointly created by the executive and the judiciary. Under these memoranda, the judiciary enjoys primacy over the appointments, even though the executive is included in the consultations.
However, all consultations remain in a black box, proceedings are not recorded and if recorded, not made public. So, one has no idea why appointments were not made to fill the vacancies in the J&K bench on a timely basis.
There are constant rumours about the executive delaying judicial appointments across high courts and the Supreme Court. Even assuming that the executive did not cooperate with the judiciary to fill vacancies in the J&K bench, the Chief Justice of India still has tremendous transfer powers at his disposal to help the J&K High Court.
The Constitution empowers him to transfer judges from another High Court to the J&K High Court to address this problem of bench strength. Alternatively, because it is a matter of such urgency and public importance, the Chief Justice of India could transfer all habeas corpus cases to the Supreme Court. Instead, the Supreme Court has sent all habeas corpus petitions filed before it back to an understaffed Srinagar bench.
The Covid-19 pandemic and the communications lockdown in Kashmir have made the situation worse. With the outbreak of the pandemic, the Indian judiciary, including the J&K High Court, adopted virtual/video court hearings.
However, internet services in Kashmir had been suspended since August 2019 to enforce a communications blackout; 2G internet service was restored in January 2020. A petition seeking the restoration of 4G services was filed before the Supreme Court in May 2020. But the apex court passed on the matter to a special committee, to be set up to take stock of the situation and determine if communication restrictions should remain. This remains in limbo. In the meantime, the J&K High Court continues to hold hearings with limited connectivity impacting its efficiency.
Another reason for the delay, peculiar to J&K, is the Darbar Move—a 148-year-old monarchical tradition of shifting the capital between Jammu and Srinagar, originally adopted to cope with weather, but now costs the government 2 billion rupees (200 crore) annually with immeasurable governance and efficiency costs. As part of moving the capital, the High Court shifts between Srinagar (where summer months from May to October are spent) and Jammu (from November to April).
At any given time, at least two benches function at both locations to cope with emergencies. However, habeas corpus petitions or other criminal writ petitions are only heard at the Srinagar bench of the Court. And the cost and time taken in shifting manpower affects the way the bench functions.
This year, the High Court reopened in Srinagar, on 6 July, 2020 on account of the Covid lockdown. With reduced restrictions and renewed manpower in its functional bench, it disposed of about 40% of the total disposed cases in less than two months, indicating that at least part of the pendency problem is capacity constraints.
The Supreme Court’s Poor Track Record
The Supreme Court has admonished all the High Courts “that in a matter of this nature affecting the personal liberty of a citizen, it is the duty of the courts to take all endeavours and efforts for an early decision”.
But the apex court is a poor role model on habeas corpus and virtually every other kind of matter is higher on the priority list. 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 Supreme Court matters. And only 0.2% of cases were habeas corpus cases. Over the same period, the Court heard more cases related to admissions and tuition in private engineering and medical colleges (0.8% of cases) than habeas corpus matters. This is not because there were very few-to-none habeas corpus petitions, or that they were all disposed so swiftly that the court went on to hear less important matters.
A recent study by Shrutanjaya Bhardwaj analysed all 63 of the reported habeas corpus judgments in the Supreme Court from 2000-2019, relating only to preventative detention. The average time taken until the final disposal of these cases was 953 days, just over 2 years and 7 months. In 63.5% of cases, the total time taken exceeded a year. In the 20 “successful” habeas corpus petitions where the Supreme Court granted relief, the relief was close to futile on account of delays in 17 of the cases. Given that the maximum period of detention is one year under most preventive detention laws, the relief given by the Supreme Court in habeas corpus cases was often moot.
But the apex court can mobilize quickly when it wants to. In a recent and stark comparison, the Supreme Court took only 24 days to convict senior counsel Prashant Bhushan of contempt of court for tweeting. “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”
But truth is not a defense in this instance.
A Vacuum In Vigilance
Judicial failure in habeas corpus petitions goes unchecked because of a wider institutional failure. The Indian legislature was asleep at the wheel in representing the basic rights and liberties of their constituents.
In the three sessions of the Parliament in 2019-2020, only seven of the 1,296 questions addressed to the Home Affairs Ministry across both Houses of Parliament were about the number of detainees in J&K. Eight of the nine Members of Parliament representing J&K (& Ladakh), who were not detained and attended the session, did not ask the government any of these questions, according to our analysis of the data available with the Lok Sabha and Rajya Sabha.
Mohammed Akbar Lone (Opposition MP from Baramulla, of the National Conference Party) asked the lone, but vague question on whether detention of non- political detainees should be reviewed and released on priority, and received a piecemeal response from the government. While the detentions of political heavyweights were sparingly referenced during the debates that took place in the sessions, the ordinary detainee’s plight has remained unaddressed.
The Indian executive also makes no mention of this issue in its schemes for improving court infrastructure. There is no alacrity shown in allocating adequate budgets, filling vacancies, or improving the speed of the criminal-justice system. The executive has in fact profited from judicial pendency and delays because it can detain political opposition for weeks without a habeas corpus hearing.
One core issue is that with habeas corpus and more generally civil liberties, there is also no systematic lobby or special interest before the court or government. Service matters clog up the court, because of the powerful lobby of top civil servants with their service and pensions at stake. Even matters relating to college tuition are greater in volume and urgency, because of the private and minority educational institutions lobby. Habeas corpus petitions, on the other hand, rarely receive urgent consideration in court, or in the media.
Habeas corpus affects every Indian. Yet, no one notices until they face illegal detention. When adjudicated expeditiously, this writ is an effective safeguard against unchecked infringement on personal liberty. In the absence of strong collective action for its effective enforcement, the disenfranchised and political opposition remain imprisoned for years on end without trial.
The only hope for the detainees is that India’s judiciary finds its constitutional soul.
(Shreyas Narla is an independent legal researcher in New Delhi and recently completed his term as a law clerk at the Supreme Court of India. Shruti Rajagopalan is a senior research fellow at the Mercatus Center at George Mason University and a fellow at the Classical Liberal Institute at the NYU Law School.)