Habeas Corpus Plea of Prof. Soz

This paper deal with the habeas corpus petition that has been filed against the supreme court by the wife of Congress leader and former union minister of  J&K Prof.Soz, seeking the response from the government of India in the light of Jammu and Kashmir administration challenging his ‘house arrest’ or “unlawful detention” which was later disposed of after the J&K administration submitted its affidavit to the Supreme Court.

Introduction

A habeas corpus petition has been filed in the supreme court against the J&K detention order of the former union minister and octogenarian Congress leader Prof. Saifuddin Soz who has been under house arrest since the 5th August  2019, after the abrogation of Article 370. A plea filed by Prof. Soz’s wife, Mumtazunnisa  Soz challenging the house arrest and alleged that no reason for his detention has been informed to them, it makes the detention illegal and unconstitutional under Article 21 and 22. The bench headed by Justice Arun Mishra issued notice to the center and the administration of J & K seeking the government response against the plea which was then dismissed by the supreme court because of the J&K home department’s affidavit which claims that prof.soz had never been detained in the first place.

Background

After the stripping off the special status of Jammu and Kashmir (Article 370), many well-known politicians such as Omar Abdullah, MY Tarigami, Mehbooba Mufti, Farooq Abdullah, Sajjad Lone,  and Saifuddin Soz among others were detained and /or placed under house arrest as per the provisions of the J&K Public Safety Act, 1978.  There -were many petitions filed, challenging the detention, seeking the restoration of habeas corpus plea against detentions under the J&K Public Safety Act (PSA).

Apart from the other challenges of Article 370, habeas corpus plea was kept in limbo until the executive itself decided to revoke the detention on their own. The most recent case. where the Court closed habeas corpus plea of Senior Congress leader Saifuddin Soz at the mere ipse dixit of the Government that he is not under detention testify a pattern of the judiciary that is undoubtedly accepting the claim of the executive without any authentication.

A Habeas Corpus plea of the octogenarian Congress leader and former Union Minister Prof. Saifuddin Soz who has been under house arrest after the center had abrogated certain provisions of Article 370 of the Constitution granting special status Jammu and Kashmir.

The plea has been filed in the Supreme Court against the Government of Jammu and Kashmir’s detention order. The petition has been filed by Advocate Sunil Fernandes on behalf of Prof. Soz’s wife, Mumtazunnisa  Soz.

 A Bench headed by Justices Arun Mishra, Vineet Saran, and M R 0Shah. In her -7plea, soz’s wife stated that the ground of his detention has not been supplied to them even after ten months of his detention and they were unable to challenge the arrest under PSA which deprived his fundamental right. This makes “his detention not only illegal, mala fide and unconstitutional, but also extremely appalling”, she said. The plea further contended that the detention is wholly contrary and perverse to the constitutional safeguards laid down under Article 21 and 22 of the Indian constitution.

Merits of Soz’s plea

It has been stated in the plea that there are shrewd violations which surrounded the illegal detention of the detenu:

  1. The ground of detention has not been conveyed to the detenu by the authority passing the detention order and no copy of the order has been given despite numerous requests This makes his detention not only illegal, mala fide, and unconstitutional, but also extremely appalling. This is a grave violation of Article 22(5) of the Constitution of India.

Article 22(5) of the constitution says; when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest possible opportunity of making representation against the order.

  • Furthermore, the maximum period of detention under Section 18 of the PSA act, is three months in the first instance and is extendable up to 12 months if the person is acting in a manner prejudicial to the maintenance of public order. It is six months in the first instance which is extendable up to two years for persons acting in any manner prejudicial to the security of the state.
  • In violation of constitutional guidelines as well as the statutory scheme of the PSA Act, the detenu has been denied the right to make a representation against the order(s) of detention. 
  • The plea asserts that it has been ten months since the detenu was placed on house arrest and, he has not been able to make any representation against the order due to the non-furnishing of grounds of detention as well as non-supply of the copy of the order. This violates Article 22(5) of the constitution as well as Section 13 of the PSA Act. The plea referred to the case of Ibrahim Ahmad Batti v. State of Gujarat (1982)[1] to drive home this point.
  • Indefinite and prolonged detention leads to the violation of the constitutional safeguards enshrined under Article 21 (right to life )and Article 22(right to know the reason of arrest ), as well as the law on preventive detention. The plea refers to the case of the State of Maharashtra & Ors. V. Bhaurao Punjabrao Gawande (2008) to demonstrate the primacy of Article 21, even in preventive detention cases.
  • Conduct of the detenu manifest that there is no criminal antecedent and has no indulgence in any communication that could be interpreted as the commitment of an offense under the PSA Act.

Section 8 of the PSA Act stipulates the powers to make orders for detention. It states that the Government may direct for the detention of the person if it satisfied that any person is acting in any manner prejudicial to the security of the State, or the maintenance of the public order.

  • The plea “in this regard” stated that it may be appreciated that the detenu is a senior citizen and an octogenarian. He is a law-abiding and peaceful Indian citizen who never committed any breach of peace and represented the Baramulla Constituency.
  • Furthermore, it averted that the detenu is a man of letters and is of an academic bent. He has been re-elected numerous times for the Lok Sabha and always advocated for the Union of India and consistently upheld the constitutional principles. He respects the nation and vehemently opposed and separatist or anti-India voices in J&K. His conduct, both before and post the revocation of the status of the State of Jammu and Kashmir, has been peaceable. He has never in the past committed any offense and any criminal antecedent has recorded against him. He therefore cannot be considered to be a threat to public safety.

In the light of above points, the petition of habeas corpus has been filed.

  • Supreme Court’s observation to Habeas Corpus Pleas of  Prof. Soz :
    • In denial of the contentions placed in the habeas corpus plea, the J&K Home Department filed a Counter Affidavit, claiming that the Petitioner had never been detained, nor put any house arrest. It is further stated that there was no question of the provision of detention order has been passed in the first place.
  • The Supreme Court bench of Justices Arun Mishra, Vineet Saran, and M.R.Shah accepted the claim of the Jammu and Kashmir administration as said that the former union minister was never under any kind of restraint and that he was always free to move.
    • The affidavit further stated that there was a general restriction on movement of people on August 5, 2019, in the wake of abrogation of Article 370 but Soz was never detained or his movements were restricted bypassing of any order.

“There is no restriction on movement of Prof Saifuddin Soz to any place, subject to security clearance which is contingent upon law and order and security situation of that area… Prof Soz has never been placed under any detention, as alleged,” the affidavit by Special Secretary, Home has stated in the court.”

  • The affidavit said Soz is a “categorized protectee”, who has been provided with round the personal security officers and clock security guards, who escort him wherever he goes and follows the security protocol.
  • The authority in J& k further added that no such question arises of giving the copy of detention order or reasons to Soz and his family when no such order has been passed.
  • Therefore the bench chose to dispose of the plea based on an affidavit filed by J& k administration denying the detention, declaring that the submissions in the plea were “false, frivolous and baseless” and shall not be entertained further.

Judicial abdication of habeas petitions in Jammu & Kashmir

Disappointing examples :

  1. A similar contempt for the urgency that must accompany a habeas corpus plea was evidence during the hearing of Omar Abdullah’s plea, filed by his sister Sara Abdullah Pilot. While the counsels for the Petitioner pressed on the importance of habeas corpus, Justice Arun Mishra  adjourned the plea continually
  2. Syed Ali Shah Geelani’s case [2] :
    1. It is interesting to note that the Jammu and Kashmir high court had found similar restrictions on the separatist leader, Syed Ali Shah Geelani without any legal basis in 2011. The notable judgment delivered by Justice Hasnain Masoodi, the high court held
    1. “The right to personal liberty (art 21) is a core concept of our constitution. In reality, it is an integral and inseparable part of the right to life, as there would be no meaning to the right to life with personal liberty curtailed”.
    1. Similarly as Soz case, in this case, the then state government denied that Geelani was ever placed under house arrest, and claimed that he is a “categorized protectee”.
  3. In Muzaffar Ahmad Shah v State of Jammu and Kashmir[3] , the petitioners approached the Jammu and Kashmir high court to secure freedom from their house arrest/detention. Justice Ali Mohammad Magrey, in his order, accepted the claim of the senior superintendent of police, Srinagar that the petitioners were neither put under house arrest.
  4. In an appeal filed on behalf of Mian Abdul Qayoom, the Central Government itself granted the release of Qayoom, merely a week before his year-long detention period expired. Therefore, there was not only the decision of the court of the illegality of the detention under the provision of public and safety acts but also problematic judgments provided by the Jammu &Kashmir court.

The most pertinent question that arises is whether the Supreme court has responded to these issues with the alacrity they deserve ?

The Supreme Court, without ascertaining the veracity of the submission of the Centre that no detention order had been passed against Soz, closed habeas corpus plea of him at the mere ipse dixit of the Government shows a pattern of the judiciary that unexpectedly accepts the claim of the executive without any authentication. A few hours post the hearing, a report emerges the claim that Soz was still under detention, contrary to the claims of the administration. Speaking to the news agency, he said, “Let Supreme Court see how I am being detained”.  Even the media raises the strong question mark over the claims of administration regarding Prof.Soz, the Supreme Court has not taken any effort to seek accountability from the executive in the matter.

Conclusion

It has been noted that the habeas writ, a powerful form of protection for detainees, weakened by the failure of Kashmiri courts, including the J&K high court. The petition of Soz challenges the constitution of India provided under Article 21 and Article 22 and questions the accountability of the supreme court decision. It can be concluded that the Soz’s failure to secure freedom from house arrest has become a point of concern for a nation.

FAQs

  1. What are the grounds under which the petition of Prof? Soz has been filed?
  2. Have the Supreme Court in Prof.Soz judgment given complete validation to its constitutionally assigned role of a fundamental right?
  3. Why the soz;’s failure to secure freedom from house arrest/detention should be the area of concern to all?

References


  • [1] 1982 AIR 1500, 1983 SCR (1) 540
  • [2] LQ 2011 HC 29867 Syed Ali Shah Geelani v. State & Others
  • [3] (2015) 2 JKJ 677 MUZAFFAR AHMAD SHAH AND OTHERS v. STATE OF JAMMU AND KASHMIR AND OTHERS

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