The writ of Habeas Corpus is considered as one of the most basic protections a citizen is guaranteed under the Constitution against unchecked state power of taking people into custody without charging them. And the High Courts in the country are specially empowered to issue orders related to this writ, act swiftly — and order the
government to produce the detainee before the court and ensure due process of law.
However, between August 16, when the second most senior judge of Supreme Court Justice S A Bobde said that he had a telephonic conversation with the Chief Justice of Jammu and Kashmir High Court Gita Mittal, where he said that “BSNL lines were working well”, and September 16, when Chief Justice of India Ranjan Gogoi asked for a report from Justice Mittal on allegations about restrictions accessing the High Court — an unprecedented situation was unfolding in the Sringar bench of the High Court.
In the last four weeks, a staggering 250 habeas corpus petitions have been filed in the Valley — almost six a day — by individuals challenging their detention by the government under the draconian Public Safety Act.
This crucial information has been kept under wraps when the top court was hearing a clutch of petitions on the situation in the Valley.
Records accessed by The Indian Express reveal that since August 5, when the government abrogated the state’s special status and split it in two UTs and until Thursday, 252 habeas corpus petitions have been moved before the Srinagar wing of Jammu and Kashmir High Court challenging the prevention detention orders passed by District Magistrates under the PSA.
An analysis of the records shows:
* Little urgency has been shown by the High Court — each case is either in the stage of admission or has been listed for orders: 147 petitions are in the stage of admission and 85 are listed for orders. In 20 cases, the stage of case, is still unknown.
* The first petition was filed on August 5 by the Jammu and Kashmir High Court Bar Association — under Section 491 of the CrPC, which deals with the power of the High Court to issue directions of the nature of habeas corpus. However, the stage of the case is unknown. The second petition was filed on August 20. All petitions filed since August 20 challenged detention under the PSA. The maximum petitions (24) filed on a single day was September 3.
In how many cases have notices been issued to the government, in how many has the government responded — answers to these questions are not clear yet.
* However, in 11 cases where orders passed by the Single Bench of the High Court have been uploaded online, what’s clear is that there seems no tearing hurry. For instance, a petition that was filed on August 23 – was last listed “for orders” on September 16, 2019. And on September 16, the order noted that the Additional Advocate General has sought four more weeks to file a counter affidavit and the same was granted by the court and the court will now hear the matter October 9.
And in a case that’s pending admission, the court took up the petition — filed on September 7 — on September 13. It issued notices to the government and gave it four weeks. The court listed the matter for October 14 as the next date of hearing.
* Most of the petitions (147) challenged the detention and Section 22 of the PSA. Section 22 states that “No suit, prosecution or any other legal proceeding shall be against any person for anything done or intended to be done in good faith in pursuance of the provisions of this Act.” Which effectively means that petitioners have challenged the detention order on the grounds that order was not passed in good faith. Out of the 147 petitions, 53 have been listed for orders and 90 are still in admission stage.
* It further reveals that 83 petitions have moved before the High Court and have challenged section 8 of the Act. The section states that “the Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the state or the maintenance of public order.” Which effectively means that the petitioners have challenged the detentions order on the grounds that their activity is not a threat to security of the state. Out of 83 petitions, 18 have listed for orders and 53 are still in the stage of admission.
* Sixteen petitions have challenged the detention under Section 13 of the Act that states that grounds of order of detention needs to be disclosed to persons affected by the order. “When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, ( but ordinarily not later than five days and in exception circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention) communicate to him grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government,” Section 13 states.
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