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

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

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.

Arshu John is an assistant editor (web) at The Caravan. He was previously an advocate practicing criminal law in Delhi.

Keywords: Kashmir National security Supreme Court of India Fundamental Rights judiciary
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