Synopsis in Writ of Habeas Corpus at Supreme Court of India
SYNOPSIS
The instant Writ Petition, praying inter alia for a writ of habeas corpus to be issued, is filed by the Petitioner, who is a citizen of India for the enforcement of fundamental rights inter alia under Article 14, 19, 21 and 22 of the Constitution of her mother who has been illegally and unconstitutionally detained under the Jammu & Kashmir Public Safety Act, 1978.
The detenu is the Petitioner’s mother Ms. Mehbooba Mufti (hereinafter, “Detenu”), the most recent chief minister of the State of Jammu and Kashmir. On 05.08.2019, the President of India issued a notification numbered C.O. 272 under Article 370(d) of the Constitution and later the same day, another notification numbered 370(3) of the Constitution, purportedly to abrogate Article 370 of the Constitution. Article 370 of the Constitution of India recognised the special status that the State of Jammu and Kashmir enjoyed under the Constitution. On the same day, the Detenu was detained around 6.30 PM, after being taken from her residence with the district magistrate also being present, under an Order of detention issued by the Executive Magistrate. The Detenu was instructed to pack some clothes and leave immediately accompanying the uniformed personnel who had come to the Petitioner’s home. The said detention is now described to be under Section 107 of Code of Criminal Procedure, 1973 (“CrPC), although at the time of detention, the same was not clear. The Order of detention also did not mention that the same was under Section 107, CrPC. The Detenuwas made to stayinside a single-storey guest-house/hutment at Chasmashahi at the foot of the Zabarwan Hills. Later, the Detenu was shifted to the Subsidiary Jail in T6, Tulsibagh, Srinagar on __________.
On February 5, 2020, an Order was hand-delivered on the Detenu at 9.30 PM, under Section 8(1) of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to as the “1978 Act”). Section 8(1) empowers the Respondent No.2 to preventively detain individuals who are a threat to the security of the state or for maintenance of public order.
The document served on the Detenu on 05.02.2020 contained the Detention Order under Section 8(1) of the 1978 Act signed by the District Magistrate Srinagar, (the Respondent No.3 herein) and included the grounds on which the powers under the 1978 Act were being involved, and the recommendation of the Senior Superintendent of Police (the Respondent No.4 herein)on which such grounds of detention were based; and a purported ‘dossier’ from the Respondent No.4 upon which such recommendation was made.
From the perusal of the Detention Order, the grounds, the recommendation of the Respondent No.4 and the dossier, it is clear that the Detention Order suffers from several counts of illegality and unconstitutionality.
Firstly, none of the grounds relate to any statement or act of the Detenu which have been made in the immediate past and almost all of them relate to alleged statements issued by the Detenu atleast six months earlier, and some of them as dated as April, 2019. This indicates that the Detention Order has been issued without due application of mind and is unsustainable in law for that reason alone. Now law, let alone a preventive detention law, can be construed to have such wide import to deprive a person of one’s fundamental rights and personal liberty on the basis of statements that have no proximate temporal connection with the likelihood of breach of public order.
Secondly, the Detention Order is wholly based on a dossier prepared by Respondent No.4 which reeks of political bias and perhaps also personal bias. For instance at one place, the dossier calls the Detenu “hard-headed and scheming mind,”. At another place, it calls the political party which the Detenu heads, i.e. Jammu and Kashmir People’s Democratic Party, as of “dubious nature” despite the fact that the JKPDP has formed popularly elected government twice in the State of Jammu and Kashmir. Furthermore, it goes on to describe the Detenu as “Daddy’s Girl” and to insult her as “Kota Rani” after a medieval queen who rose to power through dubious means such as poisoning her opponents. All of which were without any basis whatsoever.
Thirdly, the provisions of Section 8(3)(b) of the 1978 Act are wholly violated and none of the ingredients laid down therein are sufficient to bring the instant case within the purview of the expression “acting in a manner prejudicial to the maintenance of public order”.
Fourthly, nearly identical orders of detention have been issued by the Respondents over the last 7 months in a wholly mechanical manner to other political detinues, demonstrating that there has been a consistent and concerted effort to muzzle all political rivals without any application of mind.
Fifthly, in fact, a reference to all the public statements and messages posted by the Detenu during the period up to her first detention would reveal that she kept calling for peace.
Sixthly, several public statements by constitutional functionaries of the Respondent No.1 regarding the detention of the Detenu and the invocation of the 1978 Act against the Detenu indicate that the Respondent No.3 and 4 were acting under dictation from the functionaries of the Respondent No.1. The Detention Order, inasmuch as it is a result of acting under dictation, is wholly unsustainable in law.
Seventhly, one of the grounds on which the Detention Order is based is that the Detenu refused to sign an undertaking under Section 107 CrPC. In the instant case, it is brought to the notice that the undertaking, which the Detenu was repeatedly exhorted to sign in exchange for release from detention, included a promise “to not make any public comment …or participate in assembly related to recent events in the State of Jammu and Kashmir.” It is submitted that the said undertaking, amounting to asking the citizen to waive her fundamental rights is wholly unconstitutional. It is submitted that Section 107 CrPC, to the extent that it empowers the State to take from a citizen a waiver of her fundamental rights, is in violation of Articles 14, 19, 21 of the Constitution. The instant Petition also seeks a declaration to that effect.
Furthermore, the provisions of the Public Safety Act, 1978 are wholly unconstitutional for violations of Articles 14, 19, 21 and 22 of the Constitution for the following reasons and a declaration to that effect is also sought in this instant Petition :-
- The maximum period of detention, the circumstances of detention and the procedure to be adopted by the Advisory Board, may be prescribed only by Parliamentary legislation under Article 22(7) of the Constitution so long as C.O. 272 is in force. The 1978 Act, not being a parliamentary legislation is ultra vires Article 22(7). This submission is made without prejudice to the validity of C.O. 272, which the Petitioner is aware is separately under challenge and pending before this Hon’ble Court. The maximum period of detention which may extend upto one year in the instant case, is one of the core differentiating provisions of the 1978 Act, and as such is not severable from the rest of the Act. The invalidity of this provision makes the entire Act ultra vires Article 22 of the Constitution.
- Furthermore, the vague and overbroad grounds on which detention orders under Section 8 can be issued are a manifest violation of Article 14 of the Constitution and a violation of Article 19 and 21 of the Constitution causing a chilling effect on citizens’ fundamental rights to free speech and free assembly. From the Detention Order in the instant case, it is clear that the provisions of the 1978 Act are used so as to ‘punish’ political dissent and to cause a chilling effect in the minds of citizens, without having to resort to the rigours of the process of ordinary criminal law as opposed to a preventive detention law. Preventive Detention laws, because they do not involve the Detenu having committed any offence and do not involve proof beyond reasonable doubt as to the commission of offence by the Detenu, ought to be narrowly tailored in order to protect fundamental freedoms of the citizens. Failure on that count makes the law fall foul of the ‘Necessity’ and ‘Proportionality’ limbs of the test laid down by a catena of decisions of this Hon’ble Court to constitute “reasonableness” of restrictions (See for instance Justice (Retd.) Puttaswamy v. Union of India, (2017) 10 SCC 1).
- This Hon’ble Court has stated that, “Preventive detention is by nature, repugnant to democratic ideas and an anathema to the rule of law. Preventive detention is often described as a ‘Jurisdiction of suspicion’. The detaining authority passes the order of detention on subjective satisfaction. To prevent misuse of this potentially dangerous power, the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital” (See Rekha v. State of Tamil Nadu Criminal Appeal No. 755 of 2011). Contrary to the above, there detaining authority under the guise of the Act of 1978 acts in complete violation of Article 14 of the Constitution by failing to properly scrutinize and evaluate the information presented resulting in detention orders that are steeped in errors, vague and general allegations and contradictions.
Hence the present Writ Petition under Article 32 of the Constitution.