National security cannot bar adjudication of fundamental rights: Former SC judge Madan Lokur

Sonu Mehta / Hindustan Times / Getty Images
29 November, 2019

On his third working day after assuming the office of chief justice of India, Sharad Arvind Bobde was burdened with a heavy responsibility: restoring the credibility and stature of the Supreme Court. The burden was placed upon him by his former colleague, the retired Supreme Court judge Madan Lokur, through an article published in the Hindustan Times on 20 November. “Unless this concern is urgently addressed,” Lokur wrote, “the cascading effect will be the death knell of the independence of the judiciary.”

Although he avoided specifying any case or judge, Lokur did not mince his words. “A few recent judicial verdicts and administrative decisions seem to suggest that some of our judges need to show some backbone and spine, particularly in dealing with issues of personal liberty—no one can be thrown in jail without any effective remedy,” he wrote. The veiled reference seemed to point to the questionable manner in which the Supreme Court had dealt with two habeas-corpus petitions, in August, accusing the Indian government of illegal preventive detentions during its crackdown in Kashmir. Among other departures from the norm, the court did not issue a notice to the centre in either case, did not ask for the detainees to be produced before the court and did not hear one of the cases for 18 days after it was filed.

In early November, Arshu John, an assistant editor at The Caravan, spoke to Lokur about the writ of habeas corpus and how the Supreme Court should normally deal with such writs. Lokur was unambiguous in denouncing the procedures adopted by the court while hearing the petitions. “Habeas-corpus writs should be taken up on priority, and any exception should be treated as an aberration,” he said.

Arshu John: Could you explain what the writ of habeas corpus is, and when it is filed?
Madan Lokur: A writ of habeas corpus is asked for when there is an allegation of illegal preventive detention. It can be asked by anyone, and it is mainly and primarily asked against the state and rarely an individual. For example, if a boy is alleged to have illegally run away with a girl and preventively detained her, the parents of the girl might file for a writ of habeas corpus against the state and the boy seeking the production of the girl. When the writ is filed only against the state, it must justify the preventive detention. The detention must be justified not on merits, but on procedural grounds, since the court does not examine the subjective satisfaction of the detaining authority.

AJ: What sort of urgency are these writs usually dealt with?
ML: They ought to be taken up on priority. There is no doubt that it. The Supreme Court rules do not specify any time frame, but as far as I remember, the Delhi High Court rules state that the detention must be justified within one week. There were a large number of preventive detentions in the 1980s and 1990s under the COFEPOSA [The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, passed by the Indira Gandhi government in 1974], and the general feeling at the time was that the persons in preventive detention were engaged in smuggling. There were cases that were not decided for six, seven, eight months. This was not correct. Habeas-corpus writs should be taken up on priority, and any exception should be treated as an aberration. It must be appreciated that a person in preventive detention has not been found guilty of any offence, but has been detained for preventing him or her from committing a grave offence, based on the subjective satisfaction of the detaining authority.

AJ: Could you comment on the manner in which the Supreme Court dealt with the habeas-corpus writ petitions accusing the state of illegal detentions in Kashmir?
ML: The option of coming before the Supreme Court under Article 32 of the Constitution is the exercise of a fundamental right. The Supreme Court should entertain the petitions, particularly filed on behalf of children, and should not ask the petitioners to go to the high court in these cases. It is only under exceptional circumstances that the Supreme Court should require the petitioner to approach the high court.

AJ: In the two cases that came before the Supreme Court, it did not issue a notice to the centre. Is there any presumption of legality of the preventive detention?
ML: If there is an allegation of illegal detention, then the court should issue notice. But there are other aspects also that the court has to consider. For instance, if the writ petition is filed by a third party who is not a family member or a next-friend, then how does the court determine whether the detainee has authorised the petition if it is not supported by an appropriate affidavit? For example, a political detainee might not want to file a petition at a particular point of time for political reasons. The court cannot entertain a petition on behalf of the detainee if he or she has not authorised it. Another thing for the court to consider is that every person has a right to make a representation challenging the preventive-detention order. This representation can be made to the detaining authority or to the state or central government. The preventive detention is illegal if the detainee cannot make this representation expeditiously.

AJ: There were several peculiarities about the Supreme Court’s orders in the habeas-corpus writs. For instance, the court asked the petitioners to travel to Kashmir instead of producing the individual before the court. What provision of law allows for this?
ML: Under the Supreme Court Rules of 2013, the detainee has to be produced before the court. If the court was satisfied on the bona fides of the habeas-corpus petition, the detainees should have been produced. Upon producing them, the court could have passed appropriate orders.

AJ: The Supreme Court also stated in its order that the petitioners should not engage in any other activity and directed them to file an affidavit before the court of their visit upon their return. Does any law allow for this procedure?
ML: I do not know under what provision this has been done.

AJ:The court appears to have relied on the concern of national security to justify the manner in which it dealt with the petitions. How does the judiciary normally balance concerns of national security in cases of habeas-corpus writ petitions?
ML: The Constitution has to be followed. National security cannot be a total bar to expeditious adjudication of constitutional and fundamental rights. The Supreme Court must deal with the habeas-corpus petition expeditiously and decide whether the preventive detention is justified or not.

AJ: In September, the Indian Express reported that there were 252 habeas-corpus petitions pending before the Jammu and Kashmir High Court.
ML: They have to be dealt with expeditiously. Those cases also include writs filed by parents of minors. This is more serious, since the minors cannot challenge the preventive detention themselves. The parents cannot be denied the right to challenge it on their behalf. These cases present a serious challenge to the rule of law and constitutional rights.

This interview has been edited and condensed.