The Hon'ble Supreme Court discuss the law of habeas corpus in this case and allowed the petitioner to visit the state of J&K to meet his party's leader. While allowing the application of the Petitioner to travel to J&K the court imposed condition that he should not carry out any political activities and directed the petitioner to submit a report on his return to the Court.
Here is the entire case study:
SITARAM YECHURY Vs. UNION OF INDIA
COURT: Supreme Court of India BENCH: Justice S. A. Bobde and Justice S. Abdul Nazeer DECIDED ON: 28-08-2020 CITATION: Writ Petition (Criminal) No. 229 of 2019
After the abrogation of Article 370 of the Constitution a state-wise ban on access to internet and communication services was imposed on the State of Jammu and Kashmir. Thereafter various political and non-political persons like Qazi Shibli, Jammu and Kashmir's former chief ministers Mehbooba Mufti and Omar Abdullah, MLA Mohammed Yousuf Tarigami and Engineer Rashid were among those placed under "preventive detention" by the security forces. Subsequently a virtual lockdown was imposed when the Centre passed the Jammu & Kashmir Reorganization Act, 2019 taking away the special status granted to the State. The objective of the government while enacting the Jammu & Kashmir Reorganization Bill, 2019 was to fulfil one nation one law policy and to integrate the state with the rest of India.
SUMMARY OF FACTS
Thee Petitioner, Sitaram Yechury, General Secretary of the Communist Party of India on 19th August, 2019 filed a Habeas Corpus petition under Article 32 of the constitution before the Supreme Court challenging the constitutional validity and illegality of the detention imposed on one of the leaders of his party, Mohammed Yousuf Tarigami.
Article 370 gives a certain amount of autonomy to the State of Jammu and Kashmir wherein it had its own Constitution, separate flag and freedom to make laws, whereas Foreign affairs, Defence and Communication remained under the preserve of the Central Government. The said provisions empower the state government to restrict domiciles of other state to purchase property or even settling in the state of J&K.
After the abrogation of the said provision the State now no longer have these privileges and is part of India and is entirely under the purview of Central Government.
WRIT OF HABEAS CORPUS
A PIL can be filed before Supreme Court and High Court under the Writ Jurisdiction under Article 32 and 226 respectively. One of which is a writ of “Habeas Corpus” which mean, “You may have the body”. Let’s say when a man who has been captured, can move the Court for the issue of writ of Habeas Corpus. Then the Court makes a request to the keeping authority to produce the captured individual before it with a goal to inspect whether the said individual has been kept legitimately or not. If the Court finds the arrest was made wrongly and the individual was kept illicitly then it can issue orders for his discharge. To approach under this writ, it can either be the individual in detainment or any other individual who is following up for his/her benefit to ensure his/her freedom.
The ambit of Preventive Detention Theory becomes wide with the idea of Habeas Corpus, which is a preventive action and not implied as a discipline. It is not the punishment for the past actions of an individual rather it is expected to pre-empt the individual from enjoying future actions that shall denied by the important statute and it is with a purpose to keep him from doing any hurt in future.
Article 22 oversees the strategy for preventive detainment. The one and only enquiry according to it should be adherence to pre-requisites law. To sanction a law of preventive confinement Parliament should consider the following reasons:
· Outside Issues
· Security of State
· Support of supplies and administration’s fundamental to the community
· Security of India
· Barrier- one who obstructs the rules of law
· Support of open request- trying or leaking any information against law
According to International Covenant on Civil and Political Rights, Art. 4 recognises the right to life and personal liberty to be a non-derogable right even during the times of emergency. The Supreme Court of India held that the writ of habeas corpus can be utilized even during the emergency as the same fall within the purview of Art. 20 & 21 and these rights cannot be taken away due to emergency.
ISSUES RAISED FOR CONSIDERATION OF THE COURT
1. Whether the virtual lockdown imposed by the Government is Constitutionally valid or not?
2. Why virtual lockdown was imposed in the State of J&K and arrests were made after an Act was passed abrogating Article 370 of the Constitution, taking away special status of the State?
ARGUMENTS ON BEHALF OF THE PETITIONER
The Petitioner argued that despite of his efforts, he was unable to enquire about the wellbeing of Md. Tarigami and his attempt to meet him in Kashmir personally was also failed, as his entry into the State has been refused. He further stated that the health of Mr. Tarigami was not in good shape and through the interim application, the petitioner seeks to transfer Md. Tarigami to All India Institute of Medical Sciences (A.I.I.M.S.) Delhi, for better medical facilities.
ARGUMENTS ON BEHALF OF THE RESPONDENT
The Respondents contended that the health of the detenu was fine and he is under the surveillance of a Z- category security which is why the visit of the petitioner was denied.
FINDINGS OF THE COURT
The fact that the detenu was under the surveillance of the Z- category of security does not have to do anything with his health. The court held that the reasoning of the Respondent is vague and insufficient for denial of the petitioner’s visit. The SC allowed the visit of the petitioner subject to certain conditions like he was not allowed to carry out any other political activities and to submit a report on his return to the Court. On submissions of such report, the court ordered the concerned authorities to transfer the detenu to AIIMS.
When a writ of habeas corpus is filed then the court rather than going into the issue of the alleged crime of the detenu, must involve in determination of whether a detention is legal and if due process has been followed. In the present case the Court failed to question the authorities the cause of detention. It is a settled law that even in an emergency situation the State cannot restrict people’s freedoms without following the due process of law.
In Chiranjit Lal Chowdhuri v. UOI, “The fundamental rights guaranteed by the Constitution are available not merely to individual citizens but to corporate bodies as well except where the language of the provision or the nature of the right compels the inference that they are applicable only to natural persons. An incorporated company, therefore, can come up to this court for enforcement of its fundamental rights. Under Article 32 conferring its power can issue directions or orders or writs like habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights”.
The normal process in a habeas corpus case to produce the detenu before the court and verify if the detention is legal and, if it is found that it is violative of the Constitution then quash the detention.
In Ram Manohar Lohia v. State of Bihar, a Constitution bench ruled that “the reason why it is said that the order is not in terms of the rule is that the rule does not justify the detention of a person to prevent him from acting in a manner prejudicial to the maintenance of law and order while the order directs detention for such purpose. It is admitted that the rule provides for an order of detention being made to prevent acts prejudicial to the maintenance of public order, but it is said that public order and law and order are not the same thing, and, therefore, though an order of detention to prevent acts prejudicial to public order might be justifiable, a similar order to prevent acts prejudicial to law and order would not be justified by the rule.”
In Rudal Shah v. State of Bihar, The Court held that the “right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield.”
 a local journalist and editor of news website The Kashmiriyat Walla, was arrested by the Jammu and Kashmir Police on 28 July 2019 on unspecified charges. "CPJ calls on India to ensure access to internet and communications services in Kashmir". Committee to Protect Journalists. 5 August 2019. Retrieved 8 August 2019.  Das, Shaswati (5 August 2019). "Mehbooba Mufti, Omar Abdullah arrested after scrapping of Article 370". Mint. Retrieved 9 August 2019.  "Jammu and Kashmir: A timeline of recent events". The Hindu. 5 August 2019. Retrieved 9 August 2019.  Maneka Gandhi Vs. Union of India; AIR 1978 SC 597  K. S. Puttaswamy Vs. Union of India; (2017) 10 SCC