In this case, also known as the Jammu and Kashmir Habeas Corpus case, Sitaram Yechury filed a writ petition in the Honourable Supreme Court requesting it to invoke the writ of Habeas Corpus against the detention of Mr. Tarigami. But despite ordering the authorities to produce Mr. Tarigami before the Court, it allowed Sitaram Yechury to go to Srinagar and meet Mr. Tarigami. This step taken by the Honourable Supreme Court has faced some criticism.
|In the Supreme Court of India|
|Name of the Case||Sitaram Yechury v. Union of India|
|Citations||Writ Petition (Criminal) 229/2019|
|Year of the Case||2019|
|Respondent||Union of India, The State of Jammu and Kashmir|
|Present Bench/Judges||Honorable Mr. Justice N.V Ramana, Honourable Mr. Justice Sanjiv Khanna, Honourable Mr. Justice Krishna Murari|
|Legislation Involved||The Constitution of India|
|Important Article||Article 32 of the Constitution of India|
The case comment highlights the important facts, related provisions, and the necessary court orders among other things.
After the abrogation of Article 370 of the Constitution of India, the special status of the State of Jammu and Kashmir was taken away. And to ensure that no protests take place, a lockdown was imposed in the area from 5th August 2019. Also, the communication lines were shut leading to a total communication blackout in the area. Moreover, the news regarding the detention of political and non-political people also went viral during that time.
So, Sitaram Yechury filed a writ petition in the Honourable Supreme Court, challenging the validity of Mr. Tarigami’s detention. It was a Habeas Corpus case in which usually the Court orders the authorities to produce the allegedly detained person before it. But in this case, the court ordered the petitioner to visit Mr. Tarigami instead.
It is among the famous cases of 2019 and is known as the Jammu and Kashmir Habeas Corpus Case.
Background of the Case
The case was filed on 19th August 2019 and registered on 21st August 2019. It is a Habeas Corpus Matter that was earlier with the Bench of Justice Ajay Rastogi and Justice N.V Ramana. But on 23rd August 2019, it was ordered to be placed before an appropriate bench. The case was later verified on 26th August 2019.
On 5th August 2019, the Parliament of India abrogated Article 370 of the Constitution, taking away the special constitutional status of the State of Jammu and Kashmir. Subsequently, the Presidential orders were passed and the Parliament divided the State into two Union Territories. Against this several petitions were filed, to get the orders and the Jammu and Kashmir Reorganisation Act declared unconstitutional.
To control and prevent the protests and violence in the newly formed Union Territories, the Government imposed a lockdown on the 5th of August. Also, a lot of troops were deployed in the area and the communication lines were cut. All this leading to the inability of people to exercise their freedom of speech and the detention of several people including political leaders.
Therefore, Sitaram Yechury on 19th August 2019, filed a petition in the Honourable Supreme Court of India to seek the production of the former MLA of the now-dissolved Jammu and Kashmir Assembly, Mr. Mohammad Yousuf Tarigami. Mr. Tarigami is the leader of the Communist Party of India (Marxist) and Sitaram Yechury is the General Secretary of the same party.
As per the petitioner, since the imposition of lockdown in the Union Territories he was unable to enquire about the health and welfare of Mr. Tarigami. He stated that his attempts to meet him by going there also failed twice. Firstly, when he and D Raja tried to visit him and secondly when the nine-member Opposition Team tried visiting the area. Both the times they were not allowed to move out of the airport citing security reasons.
He further stated that Mr. Tarigami was not in good health and requested the court to order, the bringing of Mr. Tarigami to the AIIMS, New Delhi hospital.
The main issue, in this case, is whether the alleged detention imposed on Mr. Tarigami is constitutionally valid or not. Considering that it is claimed to be without any authority of law and no order of detention was given to him.
In the given case, Mr. Tarigami was claimed to be under unlawful detention by the Centre and therefore the case was filed under Article 32 of the Constitution. Since it is a habeas corpus case, the relevant topic required to be discussed here is the writ of Habeas Corpus under Article 32.
The writ of Habeas Corpus aims at getting an unlawfully detained person, released. It is considered valuable as it empowers the determination of a person’s right to freedom immediately. The writ of Habeas Corpus works as a mechanism to keep a check on the actions of the Government restricting the liberty of its citizens. It is known as the first security of civil liberty and a great constitutional privilege. When a person is detained wrongfully, the writ proves as an effective remedy. As through it, the Court is empowered to order the authority which has wrongfully detained a person to produce such a person before the Court, to decide the validity and justification of such detention.
A detention may be unlawful or wrongful due to several reasons such as if it is not as per the law if there is no law to authorize the detention, if it violates a fundamental right if the procedure established is not followed etc. Even when an authority authorized to do so exceeds its power or uses it mala fide, the detention is considered unlawful.
To protect the Fundamental Rights guaranteed under the Constitution including the Right to Life and Liberty, a need was felt to question the illegal detention by an authority. Therefore the framers of the Constitution introduced the Writ of Habeas Corpus as a device to question detention by the authorities. The court attached a lot of value to personal liberty and therefore it has sought to reduce the procedural technicalities to the minimum in such cases. Also, due to Article 21, the detaining authority is under an obligation to prove that the detention is following the procedure established by law.
It is worth noticing that while dealing with a case of Habeas Corpus, the Court may examine the validity of such a detention, without even ordering the authority to produce the detained person before it.
While the writ is issued to the one having custody of such detained person, the Court may not issue the writ if it is satisfied that the person is not under unlawful detention. The issuance of the writ of Habeas Corpus may be requested by the person detained himself or any other person on his behalf.
The writ of Habeas Corpus can not be claimed by a person who enters the territory of India without permission and the detention will not be considered illegal. In a case, where a person was sentenced to imprisonment by the Court Martial, he filed a Writ of Habeas Corpus. It was held that the writ can not be used to question the correctness of the decision of a competent court. It is also worth noticing that Habeas Corpus can not only be claimed against authorities but a private person as well.
Similar to the present case was the case of Mohammad Aleem Syed v. Union of India. In this case, the petitioner was a law student from Jamia Milia Islamia University, New Delhi who was unable to contact his parents since the lockdown in the Union Territories was imposed on 4th August 2019. He also feared that they were detained. Therefore, he filed a case of Habeas Corpus through his advocate, Mrigank Prabhakar to meet his parents living in Anantnag. It was contended by him that information blackout and restrictions on the movement of people were a violation of fundamental rights ensured by the Constitution.
In the order dated 28th August 2019, the Honourable Supreme Court allowed Aleem to travel to Anantnag and ensure his parent’s welfare. He was required to report the events that transpired, immediately after his return.
Order dated 28th August 2019
The Court asked the Counsel for the petitioner if the petitioner would like to visit Mr. Tarigami and enquire about his well-being, health, and need for specialized medical treatment. On due consideration, the Court permitted Sitaram Yechury, the petitioner to go to Jammu and Kashmir. It also, directed the Senior Superintendent of Police, Security in the State; Mr. ImtiazHussain to help the petitioner in finding Mr. Tarigami’s location.
However, the Court stated that the petitioner should not indulge in any activity except for what he is allowed. Any violation of this term was to be considered a violation of the Order. The court also directed the petitioner to file a report related to the purpose of his visit, when he comes back.
Sitaram Yechury filed the report in the form of an affidavit before the Honourable Supreme Court, in line with the Order of the Court. He submitted a detailed report of his visit, explaining the situation and health condition of Mr. Tarigami.
As per Para 7 of the report, he inquired from Mr. Imtiaz, the charges and provisions of law under which Mr. Tarigami was held in his house. To which he denied any legal charges and detention of Mr. Tarigami. However, Mr. Tarigami informed him that his Z+ security vehicles were withdrawn and he nor his family members were allowed to move out of the house. They were in a de facto house arrest.
On the issue of Mr. Tarigami’s health condition, Sitaram stated that Mr. Tarigami had his last regular visit to the Hospital on 31-07-2019, wherein the doctor advised him to follow up investigations. However, due to his detention, he was unable to visit the hospital. It was on 19th August 2019 when doctors were allowed to make a home visit. They suggested several check-ups and therefore, on 24th August 2019 he was allowed to visit the Hospital. It is indicated in the report that Mr. Tarigami at that time was suffering from Numbness in the left hand, Chronic Obstructive Pulmonary Disease, Coronary Artery Disease, Bronchiectasis, and other heart problems.
Other problems as noticed by Sitaram Yechury were communication blackouts and shortage of money. On the ground of improper medical and emergency assistance, he requested the Court to shift Mr. Tarigami to AIIMS, New Delhi.
Based on the report submitted, the Court on 5th September 2019 ordered that Mr. Tarigami be shifted to AIIMS, New Delhi, and allowed him to be accompanied by one family member of his choice.
The Discharge report of Mr. Tarigami as issued by AIIMS; New Delhi was submitted before the Court. On 16th September 2019, the Court ordered that Mr. Tarigami was free to go back to Srinagar as when he deems fit to undertake the journey. Also, on the same order, the Court stated that the writ petition is kept open to give a decision regarding the alleged detention without any authority of law.
Later several orders were issued by the Court, allowing the parties to file additional or counter-affidavits. On 24th October 2019, it ordered the matter be posted along with the Constitutional Bench Matters. And on 28th January 2020, the registry was directed to list the matter before an appropriate bench.
A year has passed since the case was filed, however, it is still pending before the Honourable Supreme Court. The judgment on the issue of the validity of the alleged detention of Mr. Tarigami without any lawful authority remains undecided as of now.
In a case of Habeas Corpus filed under Article 32 of the Constitution, generally, the Court has the power to order the production of the detained person by the detaining authority, before it. To verify the validity and legality of the detention. However, in this case, the court in place of ordering the production before it ordered the petitioner to visit, the allegedly detained person.
The order dated 28th August 2019, received a mixed response. Wherein the stance of the Honourable Supreme Court, dismissing arguments of the Centre and allowing Sitaram Yechury to travel to Srinagar was welcomed by many. The way court handled the Habeas Corpus issue received a negative response. It is argued that allowing Sitaram to meet Mr. Tarigami in Kashmir was not a proper remedy against the violation of the right to liberty. Moreover, the delay by the Court in seeking an explanation by the Government is also questioned.
It has been a year since the case was filed but still, the case remains pending in the Court. Unlawful Detention directly affects the fundamental rights guaranteed under Article 21 of the Constitution. The right to liberty is sacrosanct and therefore such cases must be completed in a stipulated time frame.
The way the Honourable Supreme Court has dealt and is dealing with the case is criticized. Also, it is more bothersome because Courts across India follow the steps of the Honourable Supreme Court.
-  –, ‘Kashmir: Sitaram Yechury moves Supreme Court against detention of CPI(M) leader MY Tarigami’ (2019) The Leaflet, available at https://theleaflet.in/kashmir-sitaram-yechury-moves-supreme-court-against-detention-of-cpi-m-leader-my-tarigami/#
-  –, ‘Analysis: Supreme Court orders in Kashmir petitions undermine the petition of Habeas Corpus’ (2019) Scroll, available at https://scroll.in/article/935432/analysis-supreme-court-orders-in-kashmir-petitions-undermine-the-spirit-of-habeas-corpus
-  Mohammad Aleem Syed v. Union of India, Writ Petition (Criminal) 225/2019
-  Sitaram Yechury v. Union of India, Writ Petition (Criminal) 229/2019, Order dated 28-08-19, available at https://main.sci.gov.in/supremecourt/2019/29747/29747_2019_1_2_16420_Order_28-Aug-2019.pdf.
-  Id., Affidavit (Report), available at https://www.cpim.org/sites/default/files/affidavit_comrade_tarigami.pdf
-  Id., Order dated 05-09-19, available at https://main.sci.gov.in/supremecourt/2019/29747/29747_2019_1_302_16660_Order_05-Sep-2019.pdf
-  Id., Order dated 16-09-19, available at https://main.sci.gov.in/supremecourt/2019/29747/29747_2019_1_303_16826_Order_16-Sep-2019.pdf
-  Id., Order dated 24-10-19, available at https://main.sci.gov.in/supremecourt/2019/29747/29747_2019_3_302_17871_Order_24-Oct-2019.pdf
-  Id., Order dated 28-01-20, available at https://main.sci.gov.in/supremecourt/2019/29747/29747_2019_2_9_20034_Order_28-Jan-2020.pdf