“My silences had not protected me. Your silence will not protect you. But for every real word spoken, for every attempt I had ever made to speak those truths for which I am still seeking, I had made contact with other people while we examined the words to fit a world in which we all believed, bridging our differences.”
― Audre Lorde
My heart goes out to every person, those who are silenced by the authorities from speaking out for themselves because they don’t deserve this kind of treatment. We are all humans and therefore start off on the same pedestal when we are born but then how do we come to a point where we are all treated differently. All this is despite the fact that we all have the same rights as any citizen would have in our country, and also keeping in mind that ours is the world’s greatest democracy. Maybe human greed explains all this, or perhaps we all have a hidden/unseen birth defect, but whatever it is, it needs to stop. At least we all need to gain authority over it; otherwise, the grim situation of justice won’t improve in our country.
Since the middle of last year, we heard of several Habeus corpus cases being filed, especially after the Jammu and Kashmir Amendment Act, which bifurcated the state into two different U.Ts. The situations were grave but now, the coronavirus spoiled it even more and has virtually brought the whole situation to a standstill.
Let’s take a glimpse of the situation we have at our hands.
A GLIMMER OF HOPE?
Many of us may have the knowledge that the Police Authorities had detained Arnab Goswami on a case related to abetment to suicide, and then there was a Habeus Corpus petition filed in the court regarding the same. Now, here the story changes from most of the other cases, that the Supreme Court heard Arnab’s case within a matter of days, and then he received bail for the same.
Kudos to S.C. for that but if they can do this, I’m sure they can do a lot for a lot of other people whose cases have been rotting in files since last year. For a figure, of the 554 habeas corpus petitions filed after August 5, 2019, the J&K high court has only decided 29 cases, around 5% of habeas cases. That’s a shame for sure.
Former Chief Justice of India, Mr. J.S Khehar, said in a recent meet that Constitutional courts are obligated to protect people’s rights and liberties, and S.C. should hear cases involving custody of person on priority Covid-19 pandemic notwithstanding.
Custody is a harsh reality today, he said, adverting to the detention of protestors, political prisoners, students, and rivals in matters of religious faith and making out the case for prioritizing hearing of such issues. The impact of criminal law is so severe that a single day of incarceration or a longer-term in jail is devastating. If detention is mistaken, no one can return or compensate for that part of life. He also considered that it was legitimate to prioritize the case of these persons in custody.
In another case of Haryana Progressive Farmers’ Union v. the State of Haryana, the Farmers’ welfare advocacy group moved the Punjab and Haryana High Court protesting against the continued detention of their farmer brothers by the state authorities of Haryana in response to the inflammation of the farmer protests.
The group assailed the detention as an attack on their right to life, right to freedom, and right to having protection against arrest and detention. The groups claimed that the police arrested their leaders at midnight while they were sleeping in the comfort of their homes, and they did so without furnishing any reasons for the same and didn’t comment on what provoked the authorities to take such a step and without an offense being committed. They were treating them as ‘wanted’ criminals.
The petitioner argued that the police didn’t follow any of the D.K. Basu Guidelines (Guidelines for arrest and safeguards against arbitrary arrest) while they arrested the leaders at midnight. They termed these detentions as a ploy to sabotage the Delhi Chalo protests, which they had called for showcasing their agitations against the farmer laws. Also, the few arrests that the petitioners received information for were affected under Section 151. That allowed the police to arrest persons on the apprehension that they can commit a crime that was cognizable.
Now, if we take one more instance, The Allahabad High Court has ordered the Uttar Pradesh government to file an affidavit in response to the Public Interest Litigation (PIL) filed in the court which alleged illegal detention and torture of juveniles during the anti-CAA protests in the state of J&K in December last year. (Haq Centre For Child Rights vs. the State of U.P. and Another).
The plea has alleged that the actions of the UP police are in grave breach of the J.J. Act, the U.N. Convention on the Rights of the Child, U.N. Convention Against Torture and other Cruel, Inhuman and Degrading Treatment and Punishment, and the Constitutional rights guaranteed to children under Articles 14, 15, 19 and 21.
So, let’s wait and watch the outcomes for these as they have the power to change the course of where we are heading with the use of the most potent writ of the Indian Constitution.
RIGHT’S TELLING OUR WRONGS?
Let’s look at some internationally accepted rules and see where we are coming from to solve the mounting problems.
Article 9(4) of theInternational Covenant on Civil and Political Rights Covenant reads as follows: “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court so that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”
Article 7(6) of the American Convention reads: “Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, so that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that Anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court so that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person on his behalf is entitled to seek these remedies.”
Article 5(4) of the European Convention provides that“Everyone who is deprived of his liberty by arrest or detention shall Be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Insofar as article 9 of the Covenant is concerned, the Human Rights Committee has stated that “… if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e., it must not be arbitrary, and must be based on grounds and procedures established by law, information of the reasons must be given, and court control of the detention must be available as well as compensation in the case of a breach.
It is noteworthy that these necessary legal guarantees apply to all deprivations of liberty, whether in criminal or administrative cases.
It is self-evident that if there is no efficient guarantee that a person’s liberty and security would be protected by someone or some authority, then this causes a ripple-effect and makes other individual rights increasingly vulnerable and often illusory for the common man. But still, after all this, it is visible through the work of international organs, who monitor and manage data regarding these issues, that there is a continued neglect of how the procedure of arrests and detentions must be carried out and how a reasonable cause can be justified for the same.
The problem doesn’t end there as these unlawful and arbitrary deprivations of liberty further deprive the detainees of access to both lawyers and their own families. Furthermore, they are quite often ill-treated and are even subjected to torture. Therefore, it becomes essential that the mere existence of the internationally recognized legal rules, which exist for these kinds of issues, be applied more aptly and efficiently and should prevent the violations of human rights. What national judges and prosecutors hold must be implemented judiciously, and the lawyers should remain aware of the contents of their cases, which will enable them to act fast and effectively as soon as they get a date in the court to represent their clients.
Author(s) Name: Arnav Mathur (Dr. Ram Manohar Lohiya National Law University, Lucknow)