Habeas Corpus is a legal recourse by which one can question the legality and validity of one’s detention or arrest. The Indian judiciary, in numerous cases, has effectually employed the writ of Habeas Corpus to release a person from illegal detention. The Indian judiciary has relinquished with the traditional doctrine of locus standi (one’s standing in the matter) so that if a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. A Habeas Corpus is a writ petition filed under Article 32 of the Indian Constitution, through which the Supreme Court can order the authorities to produce people before it to test if the detainee has been detained as per the procedures established by the law. The scope of Habeas Corpus relief has expanded over many years by actions of the Indian judiciary.

In recent times, Indian Judiciary seems to be failing its duty to protect the fundamental rights of the citizens of this nation. It has now surfaced that 99% of Habeas Corpus Writs are pending in Jammu and Kashmir High Court since the revocation of Article 370 of the Indian Constitution. Most of these pleas have not even been heard by Jammu and Kashmir High Court. It can be said with utter confidence that the Union Territory has been under lockdown since the revocation i.e. 5th August 2019. Over 14,000 beings have been arrested and over 600 Habeas Corpus writs have been filed since. One of the most important aspects of the writs, especially Habeas Corpus, is the urgency that is attached to it because along with the right to life, right to liberty is considered the most precious of all fundamental rights. In a letter to Chief Justice of India, the J&K HC Bar Association’s executive committee revealed these stunning facts. In addition to that, it also said that lack of operation of 4G internet makes it very difficult for any person in that region to access the virtual court. The letter further revealed that the committee had taken the matter up with Chief Justice of Jammu and Kashmir High Court, J. Gita Mittal, but no concrete steps have been taken. In a bid of desperation, the committee seeks a meeting with CJI to discuss these issues.

What’s even more shocking is that in August last year; two such Habeas Corpus pleas from Kashmir were heard by a bench headed by Former CJI, Ranjan Gogoi. These pleas sought the detainees be produced before the Apex Court and the validity and legality of their detainment then be decided by the Hon’ble Court. Surprisingly, the bench passed an order wherein it allowed the Petitioners to see those detained but it did not mention anything about producing the detainees before the Court nor did it discuss the legality of their detention. Allowing the petitioners to meet their friends and families who have been detained in Kashmir does not in any way remedy the alleged violation of the right to liberty.

In-State of Maharashtra vs Bhaurao Punjabrao Gawande, the Supreme Court observed that Habeas Corpus is the ‘the first security of civil liberty’. It further noted that the principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner or detenu. But if this how the judiciary is going to deal with writs especially Habeas Corpus, then these could set back the Indian Judiciary by decades. It was in the matter of ADM, Jabalpur vs Shivkant Shukla, 1976 when the Supreme Court with a majority of 4:1 held that the no person could challenge their detention as the Government had barred it through a Presidential Order. It was the darkest day for Indian Judiciary as only Justice Khanna dissented and was of the view that Constitution does not confer the power upon any authority to suspend Court’s power to issue writs of Habeas Corpus at any time, including emergency. Justice Khanna had to pay the price for his opinion by not being promoted to the post of CJI by the Indira Gandhi led Government.

These too are dark days for the Jammu and Kashmir High Court which has not decided upon over 600 writs of Habeas Corpus for over many months now, and it has again fallen upon the Apex Court (‘the guardian of Constitution’) to protect the fundamental rights of the people, the integrity of Indian Judiciary and guard the Constitution of India.