Liberty is not a privilege, but a fundamental right guaranteed to all citizens under our Constitution. The High Courts and the Supreme Court are guardians of this right against State excesses. I have reviewed the functioning of the Jammu & Kashmir High Court vis-à-vis its adjudication of Habeas Corpus petitions filed before it in 2019. An evaluation of the data available on the High Court's website as on January 18, 2021, paints a rather regrettable picture of the performance of the highest court of the Union Territory of Jammu & Kashmir and the Union Territory of Ladakh as the sentinel of citizens' liberty.
The Writ of Habeas Corpus
Habeas Corpus literally means "produce the body". When a court issues a writ of Habeas Corpus, it is ordering the detainer to produce the detenu in court and provide valid reasons for the detention. The writ provides a swift and effective remedy against unlawful detentions, especially those purportedly made under preventive detention statutes. More often than not, the detentions under such statutes are conducted in gross violation of the procedure prescribed thereunder. The consequence of a successful challenge by way of a Habeas Corpus petition to an unlawful detention is immediate release of the detenu thereby enforcing the right of liberty and personal freedom.
The Jammu & Kashmir Public Safety Act, 1978
The importance of this writ cannot be underscored in the case of the Union Territories of Jammu & Kashmir and Ladakh where the Government's unbridled resort to the provisions of the Jammu and Kashmir Public Safety Act, 1978 has led to several thousands being detained. Under this Act, any person can be detained by the Government, if it is satisfied that a person is likely to act in any manner which is prejudicial, inter alia, to the security of the State or the maintenance of public order. Therefore, the detention of a person under this Act is a preventive measure. Since the immediate consequence of this Act is the denial of one's liberty, the Constitution under Article 22 and the Act itself provide a detailed procedure which is required to be followed to ensure that the detenu is not unfairly prejudiced and has an adequate opportunity to meet the case against him.
A detention order passed by the Government is required to be confirmed under Section 17 by the Advisory Board constituted under the Act. If the Advisory Board confirms the detention order, the order is valid for a period of three to six months and can be extended upto one to two years, depending on the ground on which the detention order is passed. The Act does not provide any legal remedy to the detenu and therefore, the only remedy available is by way of a Habeas Corpus petition before the High Court or the Supreme Court. This being the case, it is imperative that the High Court adjudicates upon these petitions with alacrity.
The Jammu & Kashmir High Court's adjudication of Habeas Corpus petitions
The Constitution along with all its safeguards (including Article 22 which deals with protection against arrest and detention in certain cases) became applicable to the Union Territories of Jammu & Kashmir and Ladakh (then the State of Jammu & Kashmir) from August 5, 2019. However, this was followed by a wide-scale use of the Public Safety Act, a draconian piece of legislation which was used viciously and routinely by the Government. Resultantly, several detention orders came to be challenged before the High Court in 2019. The numbers are bifurcated as follows;
Jammu Wing of the High Court
1. 80 Habeas Corpus petitions were filed.
2. 60 of these petitions were filed challenging orders made under the Jammu and Kashmir Public Safety Act, 1978.
3. 44 out of 60 petitions stood disposed of as on January 18, 2021.
i) out of 44 petitions, just in 1 petition, the detention order challenged was held to be legal and valid.
ii) 17 out of 44 petitions were allowed, i.e. the detention orders passed by the Government were held to be defective on one or more grounds and were quashed.
iii) 20 out of 44 petitions became infructuous, i.e. no cause of action survived since either the detention orders had expired on their own terms (the minimum term being three months) or the detention orders had been revoked or the petitions were not prosecuted (3 out of 20 petitions were dismissed for non-prosecution).
iv) 3 out of 44 petitions were withdrawn.
v) 3 out of 44 petitions were disposed of but the reasons for the same do not emanate from the publicly available information.
4. 16 petitions are pending adjudication.
On average, the High Court took approximately 211 days to decide a Habeas Corpus petition in which the detention order was finally quashed.
Srinagar Wing of the High Court
1. 681 Habeas Corpus petitions were filed.
2. 656 of these petitions were filed challenging orders made under the Jammu and Kashmir Public Safety Act, 1978.
3. 526 of the 656 petitions stood disposed of as on January 18, 2021.
i) out of 526 petitions, in 41 petitions, the detention orders challenged were held to be legal and valid.
ii) 144 out of 526 petitions were allowed, i.e. the detention orders passed by the Government were held to be defective on one or more grounds and were quashed.
iii) 212 out of 526 petitions became infructuous, i.e. no cause of action survived since either the detention orders had expired on their own terms or the detention orders had been revoked or the petitions were not prosecuted (2 out of 212 petitions were dismissed for non-prosecution).
iv) 10 out of 526 petitions were withdrawn.
v) 13 out of 526 petitions were finally heard and reserved for judgment.
vi) 106 out of 526 petitions were disposed of but the reasons for the same do not emanate from the publicly available information.
4. 130 petitions are pending adjudication.
On an average, the High Court took approximately 252.5 days to decide a Habeas Corpus petition in which the detention order was finally quashed.
In 2020, 48 Habeas Corpus petitions were filed before the Jammu Wing of the High Court and 24 of these petitions stood disposed on February 10, 2021. 203 Habeas Corpus petitions were filed before the Srinagar Wing of the High Court and 61 of these petitions were disposed of as on February 10, 2021 with 142 still pending. A detailed review of these is still underway.
Why the performance of the Jammu & Kashmir High Court is disconcerting
The need to adjudicate Habeas Corpus petitions expeditiously is a constitutional obligation. It is the only judicial remedy available to detenus under the Public Safety Act. No doubt, the High Court has come down heavily on the Government in its judgments quashing detention orders but the time (approx. 232 days) taken by the Court to decide these petitions is abominable.
A question of a person's liberty is a matter of grave urgency and petitions questioning the imprisonment / detention should be dealt with expeditiously, as has also been observed by the Supreme Court in no uncertain terms in its recent judgment in Arnab Manoranjan Goswami v. The State of Maharashtra. Unfortunately, the numbers reveal a completely different picture with 146 petitions filed in 2019 still pending adjudication.
Further, 227 petitions were rendered infructuous mainly due to the time period that elapsed between the filing of these petitions and their determination, by which time either the detention order would have expired on its own terms or the detention order may have been revoked or the detenu would have been released before the expiry of the detention order or revocation of the detention order.
The numbers also reveal the Government has grossly misused the Public Safety Act in as much as out of the 203 petitions decided on merits, only 42 petitions failed, i.e. only 42 detention orders passed by the Government withstood judicial scrutiny.
A detention order under the Public Safety Act is only required to withstand procedural review. That is, the challenge to the detention orders is only restricted to the decision-making procedure and not the substance of the decision on which the detention order may have been issued. Despite the limited grounds of review, almost all the detention orders were quashed for one or more of the following reasons: i) total non-application of mind; ii) failure to provide the detenu with the complete material which formed the basis of the detention order; iii) failure to inform the detenu about the right to make a representation under the Act; iv) failure to provide the detenu with material in the language which the detenu understands; and v) failure to explain to the detenu the reasons for detention in the language which the detenu understands. One can only imagine how many of the 227 petitions rendered infructuous were actually challenging detention orders which were more likely than not illegal.
Furthermore, the High Court failed to follow its own Rules while dealing with the Habeas Corpus petitions before it. In this regard, Rule 8 of the High Court Case Flow Management Rules, 2010 expressly states that a Habeas Corpus petition shall invariably be disposed of within a period of 15 days. While practically this may not be possible, the High Court appears to not even have endeavored to dispose off these petitions expeditiously.
It also appears that the High Court routinely indulged the Government's request for time to file counter affidavits and produce detention records in these petitions. In some cases more than three opportunities were provided to the Government to file a counter affidavit and / or produce the detention record. For instance, in HCP 128 / 2019 titled "Mohammad Yousuf Bhat v. State of J and K", the Government was granted seven opportunities to file a counter affidavit and three opportunities to produce the detention record. Consequently, this petition still remains pending adjudication with no apparent visibility as to when it will be next listed. Similarly, in W.P. (Crl.) 550 / 2019 titled "Javed Ahmad Sofi v. State of J and K", the Government was granted as many as seven opportunities to file its counter affidavit and yet it failed to do so. It also failed to produce the detention record on three occasions. As a result, this petition which was filed on October 3, 2019 is still pending adjudication and was last listed on February 10, 2021.
Yet another problem is that the roster of Habeas Corpus petitions is unevenly distributed between two or three judges. This roster is in addition to the other rosters assigned to these judges. Therefore, on multiple dates, petitions get listed but are not heard. A practical solution would be to divide the Habeas Corpus roster amongst all single judge benches. However, this suggestion made by the High Court Bar was not given any credence.
Other possible reasons for delay in adjudication of Habeas Corpus petitions
The Jammu & Kashmir High Court, like most other High Courts of our country, is not working at full capacity. The sanctioned strength of the Court is 17 judges (13 permanent and 4 additional judges). In 2019, the Court functioned with 53% of its sanctioned strength and in 2020, the Court functioned with 65% of its sanctioned strength. This too would have contributed to the large pendency of all cases including Habeas Corpus petitions. It is therefore imperative that the High Court, the Supreme Court and the Government work together to promptly make appointments to the Court.
Delay in disposal may also be attributed to the COVID-19 pandemic. While the High Court eventually held virtual hearings, the High Court faced additional difficulties on account on the 4G ban within its territories. While the Supreme Court's judgment in the case of 4G ban has been widely criticized, I do not intend to discuss it here. However, to the extent the criticism is valid, the Supreme Court has also indirectly contributed to the delay in disposal of cases by allowing the 4G ban to continue in the Union Territory of Jammu & Kashmir.
The Law and liberty
In view of this, if one were to ask whether the High Court performed its constitutional duty and succeeded in checking the contemptuous excesses of the Government – the answer would be an unequivocal "no". The lack of urgency in dealing with Habeas Corpus petitions by the High Court is a cause for concern not only for citizens residing in Jammu & Kashmir but for all citizens across the country. It is imperative that our constitutional courts stand up to blatant misuse of statutes like the Public Safety Act by the Government and do so with the zeal that befits the fundamental right of personal liberty. While there exists no law under which compensation can be provided in cases of illegal detention, the High Court in exercise of its jurisdiction under Article 226 has the power to award compensation. Undoubtedly, monetary compensation is not adequate recompense for unlawful curtailment of a person's liberty, but it should act as a deterrent to the rampant misuse of the law. One more way to check future misuse of draconian legislations like the Public Safety Act by the Government would be to impose costs in all cases where the detention is held to be illegal. This would ensure that the Government does not deal with the liberty of its citizens in a slipshod and apathetic manner. It can only be hoped that immediate changes are brought about in the working of the High Court vis-à-vis Habeas Corpus petitions.
(The author is grateful to Payal Chandra and Pramada Jagptap for their valuable inputs.Views are personal)
(Author is a Practicing Lawyer at Delhi)