I F Justice Dhananjai Chandrachud imagined that the ornate, florid prose in his judgment in Arnab Goswami’s case (November 11) would win him plaudits, the flurry of editorials criticising it must have disillusioned him, especially the criticism that followed another case which came soon after, exposing double standards. The contrast between the two cases is as glaring as it is revealing.
Siddique Kappan is a journalist who works for a Malayalam website, Azhimukham. On October 5, he was arrested in Mathura in Uttar Pradesh while he was on his way to Hathras, where a 19-year-old Dalit woman had been assaulted and gang-raped in mid September. The victim died in a Delhi hospital two weeks after the assault. Horror of horrors, in Chief Minister Yogi Adityanath’s own laboratory of Hindutva, the State of Uttar Pradesh, a Muslim journalist joins others to expose what most felt to be a monstrous wrong on a Dalit woman. Yogi has bought whole pages of expensive advertisements in leading English dailies to burnish his credentials.
The very next day, on October 6, the Kerala Union of Working Journalists (KUWJ), to its great credit, filed a habeas corpus petition in the Supreme Court seeking Siddique Kappan’s speedy release. The Uttar Pradesh Police alleged that Siddique Kappan and three others were part of a “conspiracy” to “inflame” communal feelings and charged them with offences under the Unlawful Activities (Prevention) Act (UAPA), 1967, which bids fair to replace the Indian Penal Code (IPC).
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According to an Indian Express report by Shaju Philip and Manish Shahu from Thiruvananthapuram and Lucknow (November 16), Arnab Goswami won his release seven days after his arrest, thanks to the Supreme Court. The report quotes Siddique Kappan’s wife: “‘After hearing that Arnab Goswami was granted bail, l am forced to think that my husband was denied due justice. Since the arrest, the court and jail authorities have not allowed us to even meet him. We haven’t heard anything about him, this is terrible. We have approached the judiciary and the government at various levels, but justice is yet to come our way. Are we not citizens of this country?’ asks Raihana, 37, wife of Siddique Kappan...
‘I feel that even the judiciary has abandoned us. There is no equitable distribution of justice. Justice is not for all, only for some. How did things move so fast in the case of Arnab Goswami?’ says Raihana.”
The couple have three children aged 17, 12 and seven. Kappan moved to Delhi nine years ago and is the only breadwinner in his family. He is the secretary of the KUWJ’s Delhi unit.
A case was registered in Mathura against Siddique Kappan and the three other journalists travelling with him on October 5 under the IPC and UAPA. Kappan’s petition for habeas corpus, filed on October 6, came up before the Supreme Court on November 17. The State of Uttar Pradesh filed an affidavit before the Supreme Court explaining why in its view Siddique could not be released from custody. (The apex court had sought responses from the Centre and the State government on the KUWJ petition seeking Siddique Kappan’s release.) The case has dragged on.
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Details were leaked to the press (see The Indian Express , November 21). The charges of the Uttar Pradesh government were that journalism was but a cover for Siddique Kappan’s real intention of disturbing the peace and creating a “caste divide”. The “person in judicial custody” should have approached the Allahabad High Court, added the affidavit, a familiar snub in such cases.
History of habeas corpus
In India, the writ of habeas corpus is as old as British rule. Fighters for India’s freedom were well versed in British constitutional history. They used the writ freely and successfully.
The writ of habeas corpus was first introduced in India in 1773 when Supreme Courts were established for each of the Presidencies of Bengal, Bombay and Madras. Sir Elijah Impey, Chief Justice of the Supreme Court at Calcutta, was the first to issue it in 1775, against the Governor General Warren Hastings ( Rex vs Warren Hastings (1775) Morton’s Reports, page 206).
In the Great Wahabi case (Ameer Khan (1870) 6 Bengal Law Reports 392), the brothers Ameer Khan and Hashmabad Khan applied for a writ of haebus corpus (see “ The Habeus Corpus case, 1870 ”, Frontline , May 11, 2018, by the writer). Their counsel, T.C. Anstey, a scholar, told the court:
“If your Lordship be unable, I will not say unwilling, to contribute to this end then it will now be decided that there is no law in this country. It behoves us in that case to look well to our words; to fear the caprices of the despot of the hour to whom the Ministers of the Crown on the other side of the world have unconsciously committed the destinies of 200,000,000 of souls. If then, your Lordship’s decision be against us, I say it with grief, there will be no other remedy left to any man of spirit, whatever be his race, creed or colour except immediate departure, or open rebellion.”
Independent India has retained in its Constitution the power to detain, in the form of Article 22; it turned its back on India’s history.
“The habeas corpus is the single advantage which our government has over that of other countries,” Samuel Johnson told his friend James Boswell in 1769 ( The Life of Samuel Johnson, LLD by James Boswell, W.M Nimmo, Hay & Mitchell, page 162). The writ is far wider than that. Henry II, who instigated the murder of Thomas Beckett, the Archbishop of Canterbury, issued a document in 1164 called the Constitution of Clarendon. It had the fundamentals of the writ and this famous line: “To no one will we sell, to no one shall we deny or delay right or justice” ( Democracy: 1,000 years in Pursuit of British Liberty by Peter Kellner, 2009, pages 42-47).
The writ of habeas corpus is not a product of a statute which Parliament or the government can take away. It is a product of the English common law, rooted in history, a product of clashes of power between the Crown and the people. It runs in the blood of the people. (Common law is the part of English law that is derived from custom and judicial precedent rather than statutes.)
As Lord Chancellor, Lord Birkenhead explained its genesis in a judgment in the House of Lords in Secretary of State vs O’Brien : “We are dealing with a writ antecedent to statute, and throwing its root deep into the genius of our common law. The writ with which we are concerned today was more fully known as habeas corpus ad. subjiciendum. This writ, however, was one of many. Thus, there was a writ of ad respondendum, ad satisfaciendum, ad prosequendum, ad testificandum, and ad deliberandum. All these writs exhibited many features in common; but the most characteristic element of all was their peremptoriness. Today the substitution of more modern remedies has left the writ ad subjiciendum, more shortly known as the writ habeas corpus, in almost exclusive possession of the field. It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. It has through the ages been jealously maintained by courts of law as a check upon the illegal usurpation of power by the Executive at the cost of the liege” ( Secretary of State vs O’Brien (1923) AC. 603). Edward I reigned from 1272 to 1307.
The so-called Habeas Corpus Acts of 1640, 1679, 1816 were designed to remove defects in procedure. In 1836, all prerogative writs were abolished but habeas corpus was retained.
The celebrated jurist A.V. Dicey explained its history and significance at length. He set out the text of the writ:
“To J. K., Keeper of our Gaol of Jersey, in the Island of Jersey, and to J. C. Viscount of said Island, greeting. We command you that you have the body of C.C.W. detained in our prison under your custody, as it is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called or known, in our Court before us, at Westminster, on the 18th day of January next, to undergo and receive all and singular such matters and things which our said Court shall then and there consider of him in this behalf; and have there then this Writ.”
Lord Denman was the Lord Chief Justice.
The writ of habeas corpus is a command by the court to jailers. It could be anybody who has the custody of the person, including the husband or father of a woman who detains her against her will. The order is peremptory: produce the detainee bodily, show cause for his detention; the court will decide the matter “then and there”. The settled practice was to lay aside all other cases and try such a case as a matter of priority. As we can see, the framers of India’s Constitution added all these elements. Hence, the word “guaranteed” in the Article 32 of the Constitution.
The fundamental principle underlying this law is stated in the maxim “there is no right without a remedy”. The right to freedom is meaningless unless the citizen can get an order for his release from unlawful detention peremptorily and speedily.
The right to habeas corpus “determines the whole relation of the judicial body to the executive”, which is why the judges of the day ruled as they did in the habeas corpus case in 1976 during the Emergency in India. One of the four judges, Justice Y.V. Chandrachud, frankly told the Press Club in Delhi: “We were cowards.” In truth, they were worse. The government could not have inflicted any harm on them apart from denying them their post-retirement benefits, which they ardently coveted.
Habeas corpus requires for its efficacy judges who are competent, honest and fearless. The writ “has often been put forth, and this too in matters of the gravest consequence”.
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Lord Denning recalled: “In 1627 when the executive government cast Sir Thomas Darnel and four other knights into prison because they would not subscribe money for the King, the Court of King’s Bench, to its disgrace, held that if a man were committed by command of the King he was not to be delivered by habeas corpus. Those were the evil days when the judges took their orders from the executive. But the people of England overthrew the government which so assailed their liberties and passed statutes which gave the writ its present power. Never thereafter have the judges taken their orders from anyone” (Denning, Landmarks in the Law , page 213).
The House of Lords agreed with Denning’s opinion in R vs Pentonville Prison (ex parte Azam (1874) Appeal Cases 18 at 1 page 32). He had said: “If a man can make a prima facie case that he is not an illegal entrant, he is entitled to a writ of habeas corpus as of right: see Greene vs. Home Secretary  AC 284, 302 by Lord Wright. The court has no discretion to refuse it. Unlike certiorari or mandamus, a writ of habeas corpus is of right to every man who is unlawfully detained. If a prima facie case is shown that a man is unlawfully detained, it is for the one who detains him to make a return justifying it.”
It suggests explicitly that (a) if prima facie the detention is unlawful the court has “no discretion to refuse it” (the writ), and (b) the burden of proof rests on the state, not its prisoner. It is this rich tradition which India’s lawyers, judges and politicians, who were mostly lawyers, inherited. The speeches and documents before Independence confirm that; especially the Nehru Report and the proceedings of the Round Table Conferences in London.
During the Second World War, High Courts and the Federal Court in India freely issued the writ of habeas corpus. The Privy Council as regularly overruled the courts. The Hindustan Times published an instructive compilation of those judgments with a Foreword by Dr Kailash Nath Katju ( Recent Judgments in India , Volume One, Rs.2).
In England, no appeal lay against an order of release. India’s rulers circumvent this by making a fresh order of detention.
In Cox vs Hakes (1890) 15 A.C. 522, none other than the Lord Chancellor said:
“It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination upon that question may only be arrived at by the last court of appeal.”
Federal Court’s approach
Before Independence, India’s High Courts derived the power to issue the writ from Section 491 of the Code of Criminal Procedure 1873. It was repealed by the revised Code of 1973 because the writ is now a constitutional right—supposedly.
The Federal Court’s approach was far better than that of the Supreme Court. It said in Keshav Talpade’s case:
“We approach the consideration of these questions with the anxiety which a court of justice must always feel where the liberty of the subject is concerned.... Though it is well to remember that courts of law ought to abstain from harsh and ungenerous criticism of acts done in good faith by those who bear the burden and responsibility of government, especially in times of danger and crisis, we are not on that account relieved from the duty of seeing that the executive government does not seek to exercise powers in excess of those which the legislature has thought to confer upon it, however drastic and far-reaching those powers may be and however great the emergency they are designed to meet.
“We recognise that our decision may be a cause of inconvenience, and possibly of embarrassment, even though temporarily, to the executive authority. We regret that this should be so, especially in these difficult times, but we venture to express an earnest hope that greater care may be taken hereafter to secure that powers of this extraordinary kind which may affect, and indeed have affected, the liberty of so many if the King’s subjects in India, may be defined with greater precision and exactitude, so as to reduce to as small a compass as possible the risk that persons may find themselves apprehended and detained without legal warrant.”
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M.C. Setalvad claimed that “colonial” writers on constitutional law have on occasions characterised judgements of the Privy Council as having been influenced by considerations of policy. It is not surprising, therefore, that he should have made similar comments in regard to the view taken by the Privy Council in Benoari Lal Sharma’s case: “Whatever the true legal view, the stand taken by the Federal Court has proved to be a valuable aid in the preservation of the fundamental right of the Indian people to have recourse to the ordinary courts of the country” ( War and Civil Liberties , 1946, page 67). Article 32 of India’s Constitution could have been worded more emphatically: “The rights to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred or conferred by this Part is guaranteed.” Part III of the Indian Constitution embodies the fundamental rights (Articles 12 to 35). Article 32 is itself a fundamental right.
Denial of a fundamental right
The practice (habit?) which the Supreme Court has followed in referring the petitioner to the High Court is a callous denial and brazen violation of a fundamental right. It makes a mockery of the word “guaranteed”. That word is no flourish. It was consciously adopted by the Constitution. The Constituent Assembly was set up under the Cabinet Mission’s Plan of May 16, 1946, which promised to set up on January 21, 1947, an Advisory Committee on Fundamental Rights and Minorities. It was headed by Vallabhbhai Patel. It set up one Sub-Committee on Fundamental Rights and another on Minorities.
The Framing of India’s Constitution edited by Shiva Rao has the minutes of both bodies in Volume 2. At one stage, the expression “due process of law” used in the U.S. Constitution was adopted (page 301). The word “guaranteed” in Article 32 (then Article 22) was adopted at that stage and was used thereafter at every stage right until the adoption of the Constitution. Finally, the Sub-Committee Report dated April 16, 1947, used the word “guaranteed” (page175).
Replying to the debate as Chairman of the Drafting Committee, Dr B.R. Ambedkar said: “While the powers of the Supreme Court to issue orders and directions are there, the draft Constitution has thought it desirable to mention these particular writs. Now the necessity for mentioning and making reference to those particular writs is obvious. These writs have been in existence in Great Britain for a number of years. Their nature and the remedies that they provided are known to every lawyer. It was hardly possible to improve upon the writs which have been in existence for probably thousands of years and which have given complete satisfaction to every Englishman with regard to the protection of his freedom. We therefore thought that a situation such as the one which existed in the English jurisprudence which contained these writs and which, if I may say so, have been found to be knave-proof and fool-proof ought to be mentioned by their name in the Constitution” (Constituent Assembly Debates, Volume 7, pages 952-3).
“Now, Sir, I am very glad that the majority of those who spoke on this Article have realised the importance and the significance of this article. If I was asked to name any particular article in this Constitution as the most important—an article without which this Constitution would be a nullity—I would not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance,” Amdebkar said on what is now Article 32. It was debated in the Constituent Assembly on December 9, 1948 (as Article 25 in the Draft Constitution).
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This is why Chief Justice P.B. Gajendragadkar said: “The fundamental right to move this court can, therefore, be appropriately described as the cornerstone of the democratic edifice raised by the Constitution. That is why it is natural that this court should, in the words of Patanjali Sastri J., regard itself ‘as the protector and guarantor of fundamental rights’, and should declare that ‘it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights. (Vide Romesh Thappar v. State of Madras.) In discharging the duties assigned to it, the court has to play the role ‘of a sentinel on the qui vive’ (Vide State of Madras v. V.G. Row), and it must always regard it as its solemn duty to protect the said fundamental rights zealously and vigilantly (Vide Daryao v. State of U.P.).”
In this the court has failed miserably. The Supreme Court of India at its whim sets naught a solemn guarantee by banging the door in the face of the petitioner who seeks habeas corpus and directs him to move the High Court instead. What is the worth of a guarantee if an authority appointed to enforce it passes the buck, and passes it selectively, too? The country’s Constitution is flouted. Its Supreme Court is shorn of the prestige it once had. Siddique Kappan’s case drags on. What is left of a “summary” procedure” and a “guarantee”?
The Supreme Court has treated the writ jurisdiction of the High Courts under Article 226 of the Constitution as an acceptable alternative, overlooking the fact that Article 32 imposes on the Supreme Court itself the duty to enforce what is a solemn “guarantee”. This is altogether wrong. The Supreme Court has no right to virtually ignore Article 32 and send the petitioner to the High Court, abnegating its own responsibility. It has done something equally bad. The writ of habeas corpus is a summary remedy not to be treated as a subject of elaborate litigation. In England counsel has only to utter the word “habeas corpus” whereupon the judges put aside all other business and attend to the petition. In India, very sadly, the writ has been badly mauled by the Supreme Court.