Judicial Adventurism is real manifestation of Judicial Abdication

'Habeas Corpus' is Latin for. you (should) have, the body (person). A Writ of 'Habeas Corpus' [which literally means to "produce the body"] is a Court Order demanding that a Public Official (such as a Warden) deliver an imprisoned individual to the Court and show a valid reason for that person's detention.

'Habeas Corpus', an ancient common-law writ, issued by a Court or Judge directing one who holds another in custody to produce the person before the Court for some specified purpose. Although there have been and are many varieties of the Writs, the most important is that used to correct violations of personal liberty by directing judicial inquiry into the legality of a detention. The 'Habeas Corpus' remedy is recognized in the countries of the Anglo-American legal system but is generally not found in civil-law countries, although some of the latter have adopted comparable procedures.

The origins of the writ cannot be stated with certainty. Before the Magna Carta (1215) a variety of writs performed some of the functions of 'Habeas Corpus'. During the Middle Ages 'Habeas Corpus' was employed to bring cases from inferior tribunals into the King’s Courts. The modern history of the writ as a device for the protection of personal liberty against Official Authority may be said to date from the reign of Henry VII (1485–1509), when efforts were made to employ it on behalf of persons imprisoned by the Privy Council. By the reign of Charles I, in the 17th century, the writ was fully established as the appropriate process for checking the illegal imprisonment of people by inferior Courts or Public Officials.

Many of the procedures that made for effective assertion of these rights were provided by the Habeas Corpus Act of 1679, which authorized Judges to issue the writ when Courts were on vacation and provided severe penalties for any Judge who refused to comply with it. Its use was expanded during the 19th century to cover those held under private authority. In 1960 legislation was enacted limiting the instances in which 'Habeas Corpus' could be denied and establishing new lines of appeal.

In the British colonies in North America, by the time of the American Revolution, the rights to 'Habeas Corpus' were popularly regarded as among the basic protections of individual liberty. The U. S. Constitution guarantees that the privilege “shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it” (Article I, Section 9, Paragraph 2). In England such suspension had occurred during the wars with France at the time of the French Revolution. In the United States of America, President Abraham Lincoln suspended the writ by executive proclamation at the outbreak of the Civil War in 1861. The Presidential act was challenged by Chief Justice Roger Taney who, in the case of Ex parte Merryman, vigorously contended that the power of suspension resided only in Congress. Lincoln ignored the Order of the Court, but the weight of modern opinion appears to support Taney’s view.

Origin of Habeas Corpus in India

In India, the history of this great writ can be studied from 1774 onwards. Habeas Corpus was introduced in Calcutta by the English colonizers. The power to issue the writ to the Petitioner came from the English to the select Supreme Court Judges and they would then proceed with it. This power was not granted to the entire Court. Therefore, later it was decided that not just the few select Judges of the Supreme Court but the entire Court is empowered to issue the writ of Habeas Corpus. After 1774, the writ was sent from the Supreme Court to even the Mofussil towns. This wide expansion of the court’s authority led to a conflict between the Government and the Court. It was decided that the Court could expand its powers to the Mofussils however the right was limited to subjects of British origin. In 1862, High Courts were ordered to be established. Three Presidency Courts were established at Fort William in Bengal, Bombay and Madras and inherited the power to issue the writ of Habeas Corpus. It was initially incorporated in the Code of Criminal Procedure, 1872.

Indian Constitution and Habeas Corpus

The Constitution of India clearly provides that no person shall be deprived of his life and personal liberty except according to the procedure established by Law . It can be invoked through Article. 32 i.e. Constitutional Remedies for any violation of rights granted under Part III of the Indian Constitution . The Supreme Court has to decide the relief regarding enforcement of the infringed Fundamental Right only when it is against the State and not against a private body. To move the Supreme Court in case of Violation of Fundamental Rights is a right in itself. If any act takes away the privilege of applying for Habeas Corpus or any writ for that matter, then that act would be void. However, in the case of an emergency, this right can be taken away as was stated in 'ADM, Jabalpur Vs. Shukla', AIR 1975 SC 1207 wherein it was forbidden to issue a Writ Petition in a National Emergency.

Evolution of Habeas Corpus

The writ of Habeas Corpus has seen a lot of trends since its inception in India. From being largely narrow at the very beginning, its scope as times have passed has broadened and magnified due to various kinds of writ petitions and a subsequent variety of Judgments. The Supreme Court has interpreted this writ to safeguard the liberty of persons under all types of situations. The technical aspect of law has been subsided by the spirit of law.

Today, it is not the mere production of the body that is the concern of Habeas Corpus. It is the ensurance of life and liberty that is becoming its crux. The Habeas Corpus writ is known as the 'great writ of liberty', as it seeks the immediate protection of personal liberty from the excesses of State power.

But the orders passed by the     Hon'ble Supreme Court of India on August 27, 2019 in two Habeas Corpus Petitions concerning detentions in Kashmir do not reflect the spirit of the spirit of this glorious writ.

One was a Petition filed by Sitaram Yechury , General Secretary of CPI (M), challenging detention of his party colleague M. Y. Tarigami , a four time MLA from Kulgam in the now dissolved J&K Assembly. The second was a Petition by Mohammad Aleem Syed, a law graduate in Delhi, seeking information regarding whereabouts of his parents in  Anantnag, whom he apprehended to be under detention.

In both these Petitions, the Hon'ble Supreme Court 'permitted' the Petitioners to travel to Kashmir on Government assistance to meet the detained persons. These orders have been welcomed with a sigh of relief by proponents of civil liberties. But one should not get carried away by such small offerings of liberty to fail to ask the larger question – has the Hon'ble Supreme Court in these cases done complete justice to its constitutionally assigned role of protector of fundamental rights?

The prime purpose of this writ is to obtain the production of an individual who is alleged to be in illegal detention (Habeas corpus literally means 'produce the body'). It is meant to provide an expeditious and effective remedy against illegal detention. So, when a writ of Habeas Corpus is sought, it is imperative that the Court asks the State if there is detention as alleged, and if yes, whether the detention is made on legal grounds.

Curiously, in both these petitions, the Hon'ble Supreme Court has not cared to ask the Government these pertinent questions. There was not even a single query regarding detention and its grounds. The Court did not even issue notice to the Central Government in the cases. At the same time, as if to maintain the veneer of a constitutional Court, the Court 'allowed' the Petitioners to travel to Kashmir to visit the detenus.

In Writ Petition (Criminal) No. 229/2019 titled 'Sitaram Yechury Vs Union of India & Anr.", the Hon'ble Supreme Court passed following directions:

"On due consideration, we permit the petitioner to travel to Jammu & Kashmir for the aforesaid purpose and for no other purpose."

This permission was conditional on Yechury undertaking not to make the visit 'political'. The Order further added:

"We make it clear that if the petitioner is found to be indulging in any other act, omission or commission save and except what has been indicated above i.e. to meet his friend and colleague party member and to enquire about his welfare and health condition, it will be construed to be a violation of this Court's order."

It is baffling how the Court could impose restrictions on Yechury's fundamental right to travel by saying that it could be 'for no other purpose'.

In Writ Petition (Criminal) No. 225/2019 titled 'Mohammad Aleem Syed Vs Union of India', the Hon'ble Supreme Court held:

"The petitioner shall be allowed to travel to Jammu & Kashmir; go to Anantnag; meet his parents and after ensuring their welfare, to report back to the Court on the next date fixed."

Thus, in a bizarre turnaround, the Petitioners were sent to the detenus and asked to report to the Court. By making the exercise of rights conditional on the 'permission' from the Court, these orders have rewritten the meaning of 'fundamental' rights. Instead of seeking an affidavit from the Government, the Hon'ble Supreme Court has chosen to task the Petitioners with the duty of submitting to the Court reports regarding their visit, a procedure completely unknown in Habeas Corpus Writ.

As observed by the Hon'ble Supreme Court in "Kanu Sanyal Vs District Magistrate, Darjeling", 1973 AIR 2684, the most characteristic element of the habeas corpus writ is its peremptoriness and "the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom and his release, if the detention is found to be unlawful."

The whole object of proceedings for a writ of Habeas Corpus is to make them expeditious, to keep them as free from technicality as possible and to keep them as simple as possible. The essential purpose of this writ is to swiftly determine if a person's detention is legal. To ascertain and ensure the well-being of the detenu is not its sole purpose. It is distressing to watch that the Apex Court going against the well-established principles of Habeas Corpus writ.

India’s tryst with destiny inaugurated a new dawn, with vibrant values wiping out colonial denial of human rights to the masses. This transformation had to be reflected in the justice process. To obliterate procedural twists and turns, to broaden the idea of locus standi to enable the penurious many to exercise their right of access to judicial justice, to abolish expensive nuances and chaos of interpretation and to establish free legal aid and public interest litigation — these were forensic urgencies and jural necessities if the democracy of judicial remedies were to reach the indigent, illiterate and alienated Indians.

The constitutional revolution, which was the vision of the Founding Fathers, was entrusted to the judiciary, giving it vast powers to enforce, through ‘writ power’, the socio-economic liberation implicit in the Fundamental Rights and other avant-garde provisions of Constitution of India.

The call of the Preamble, with the militant resolve to secure social justice in its broader dimensions to every Indian, could not be denied or defied too long, since the antyajas and neglected gender claimed the Constitution of India as their title deed. These pressures from the proletariat eventually found response and midwifed what has now become familiar forensic thought in the shape of judicial activism, public interest litigation and egalitarian jurisprudence.

Judicial activism is the oxygen of the Rule of Law and the Rule of Life. It is obscurantist retreat from constitutional obligation for a Court to blink or wink at social justice issues brought to its notice by any citizen, be he the humblest or the highest, basing his title to rights conferred by the Constitution of India, but deprived by the executive.

Judicial activism comes in for criticism at the time on the ground that judicial populism is leading the Judges to usurp the power, which legitimately belonged to Parliament. It is true the Judges do not legislate but their judgements serve to give meaning and content to the fundamental rights enshrined in our Constitution. It remains the sacred duty of the Courts to secure the fundamental liberties of the citizens against arbitrary exercise of power but Judges must know their jurisdictional limits and activism should not mean invading the exclusive legislative and executive domains.  “judicial activism does not become judicial adventurism”.

Writ of Habeas Corpus is the fundamental instrument for safeguarding individual freedom against the arbitrary and lawless State actions. As is rightly quoted by Pascal in Pensees "Justice without force is impotent force without justice is tyranny."

Has the Hon'ble Supreme Court in these cases done complete justice to its constitutionally assigned role of protector of fundamental rights? It needs to be said that in these cases the Hon'ble Supreme Court failed in its role as the 'sentinel on the qui vive' of civil liberties.

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