‘Ultimately, the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom.’ It was with these words that the Supreme Court held that the fundamental rights to life and liberty stood suspended during Indira Gandhi’s Emergency. The court’s verdict — popularly known as the habeas corpus judgment — was based upon the principle of ‘executive supremacy’. This principle holds that in ‘times of peril’, civil liberties must be subordinated to the interests of the state. What are these ‘times of peril’? The government will decide. Whose rights will be curtailed, and how? The government will decide. When will freedoms be restored? The government will decide. The judiciary, held the Supreme Court, was to ‘act on the presumption that powers [of preventive detention] are not being abused’.
The hollowness of the Supreme Court’s position was soon revealed. After the end of the Emergency, the government’s excesses — committed under cover of the habeas corpus judgment — came to light. These included the torture and murder of dissidents. The episode was a stark reminder of one basic principle: absolute power corrupts absolutely. Our republican Constitution is, therefore, based upon a system of checks and balances, where even the government must always be held accountable for its actions. When these actions infringe fundamental rights, accountability must be sought in a court of law.
The habeas corpus judgment betrayed that principle. It has been condemned as the darkest hour in the Supreme Court’s history. In 2017, a chastened court formally overruled it, stating that it should be ‘buried ten fathom deep with no chance of resurrection’. In its place, the court erected the principle of proportionality: if the state wants to infringe peoples’ rights in service of a larger goal, then it must demonstrate that the measures it is adopting bear some rational relationship with the goal. More importantly, it must show that rights are being infringed to the minimum possible extent. And the constitutionality of the state’s actions is to be tested by the courts, keeping in mind Justice H.R. Khanna’s famous dissenting opinion in the habeas corpus case: that the ‘greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law’.
Habeas corpus in 2019
From August 5, 2019, the State of Jammu and Kashmir (J&K) has been placed under a ‘communications lockdown’. In addition, political leaders along with an unknown number of other individuals have been detained. These moves followed the Centre’s decision to downgrade J&K’s ‘special status’ under Article 370 of the Constitution, and eventually convert it into two separate Union Territories.
Both moves violate crucial fundamental rights. A communications shutdown violates the freedom of speech and expression, prevents those outside the State from being in touch with their families, provides cover for civil rights violations that cannot come to light, and finally, in this day and age, damages an entire infrastructure, of health, food, and transport, causing real suffering. Detention self-evidently violates personal liberty. And over the last 37 days, government officials have justified both moves. In Brussels, External Affairs Minister S. Jaishankar asked: ‘How do I cut off communication between the terrorists and their masters on the one hand, but keep the Internet open for other people?’ More recently, National Security Adviser Ajit Doval said that political leaders would remain in custody until ‘the environment is created for democracy to function’, and refused to say how long this would last.
Mr. Jaishankar’s argument was vehemently opposed. A few days earlier, rights experts from the United Nations had called the communication lockdown a form of “collective punishment”, where, under the guise of ‘prevention’, an entire population’s rights were taken away for the actions of a few. Collective punishment is an inherently disproportionate infringement of fundamental rights. Others pointed at the irrationality of the justification: if the mere threat of terrorism or violence is the ground for cutting off communication, then the lockdown ought to be extended to the entire country.
Additionally, recent scholarship has shown that there is no evidence that communication lockdowns contain violence; if anything, the available evidence points the other way. And Mr. Doval’s argument was nothing but a reiteration of the principle of executive supremacy — that the government would decide when to detain, whom to detain, and for how long to detain, based upon its assessment of when a region was ‘ready’ for democracy.
The silence of the courts
If Mr. Jaishankar and Mr. Doval’s arguments are taken as the official justifications for the lockdown and the detentions, then it should be clear that there are some serious doubts about whether the constitutional requirement of proportionality is fulfilled. But even as the argument has raged in the public sphere — in newspapers, through interviews, and in the halls of the United Nations (the criticism by UN High Commissioner for Human Rights Michelle Bachelet being the latest) — there is one place where it has been conspicuously absent: the courts.
Unlike the Emergency, the courts have not upheld the government’s actions — so far. What they have done is dodged, ducked, evaded, and adjourned. Political leader Shah Faesal’s petition challenging his detention has been twice adjourned by the Delhi High Court (one time because the government lawyer was not present). At the time of writing, it has been over two weeks since the petition was filed.
Meanwhile, things have not fared any better at the Supreme Court. Petitions challenging the lockdown have also been repeatedly adjourned (the first time with the court remarking that the government should be ‘given some time’ — a striking echo of the habeas corpus case). By the next date of hearing (September 16), the lockdown would have been in place for more than 40 days. But perhaps, most grotesquely, the court has engaged in a bizarre perversion of the right to habeas corpus: when petitions challenging detentions came up before the bench of the Chief Justice of India, and hearings take place, instead of calling upon the government to justify itself, the bench has ‘authorised’ the petitioners to go to Kashmir and ‘meet’ the individuals who were (allegedly) under detention.
But under our constitutional scheme, no citizen needs a certificate of permission from a court to travel through the country. And under cover of granting this ‘permission’, the court has refused to pronounce on the validity of the detentions themselves: it has sought to fashion ad hoc compromises in individual cases, without discharging its constitutional obligation to adjudicate the legality of the lockdown and the detentions. And so, through this judicial evasion, the status quo continues.
Unchallenged executive writ
Thus, by not ruling upon the cases before it, in effect, the courts have allowed the infringements of civil liberties to continue. And they have done so in a particularly insidious manner: by exempting the government from its constitutional obligation to explain itself, and by exempting themselves from their obligation to hold the government to account. This is nothing other than executive supremacy by stealth: at the time at which the judiciary is most needed to defend civil liberties, it has simply vacated the field, absented itself, and chosen to walk away.
In the 19th century, the Russian playwright Alexander Pushkin wrote ‘Boris Godunov’, a timeless tragedy about power and tyranny. Its last line is a stage direction, upon the investiture of a new tsar before the public: “The people are silent.” This is in stark contrast with lines uttered by Lord Atkin, a great English judge: “Amid the clash of arms, the laws are not silent.” In India, in 2019, the people of Jammu and Kashmir have been silenced. But the Supreme Court has elected to silence itself. Amid the clash of arms, that is a tragedy in its own right.
Gautam Bhatia is a Delhi-based lawyer