New Delhi: In her habeas corpus writ petition filed before the Supreme Court on June 1 challenging the “house arrest” of her husband, Professor Saifuddin Soz, Mumtazunnisa Soz, appears to have made an erroneous assumption that it was not necessary to mention the occasions when he was allowed to travel outside Jammu and Kashmir since his ‘detention without order’.
Saifuddin Soz made two visits to New Delhi for medical purposes, first on October 20, 2019 and again on December 15, 2019, and made two more visits to meet his ailing sister. Since he had to obtain government permission whenever he went out of his premises, Mumtazunnisa Soz probably felt it was not necessary to mention these visits, as they do not count as instances of his not being under detention.
But the Supreme Court bench of Justices Arun Mishra, Vineet Saran and M.R.Shah latched on to this omission on Wednesday when it accepted the claim of the Jammu and Kashmir administration that he had never been under detention, and therefore, the question of furnishing him the grounds of detention did not arise.
Fortunately, the bench didn’t consider the failure to mention Soz’s visits outside the Union territory as concealment. But in the light of his interviews to the media that he continued to be under “detention” and actual live footage of his being restrained by the police from leaving his premises, it is reasonable to ask whether the bench was correct in relying on her inadvertent omission in order to give the benefit of doubt to the government. Curiously, the bench’s order, delivered Wednesday, has not yet been uploaded on the Supreme Court’s website as of Saturday.
Whether Mumtazunnisa Soz may approach the Supreme Court again with a contempt petition to expose the “lies” of the government is not yet clear, but the experience of similar litigants who suffered “house arrest” without formal orders in pursuing legal redress for their wrongs has been very disappointing before and after the August 5, 2019 clampdown in Jammu and Kashmir.
In Muzaffar Ahmad Shah v State of Jammu and Kashmir, the petitioners approached the Jammu and Kashmir high court to secure freedom from their house arrest/detention. Justice Ali Mohammad Magrey, in his order dated November 5, 2019, accepted the claim of the senior superintendent of police, Srinagar that the petitioners were neither put under house arrest, nor was their liberty curbed/jeopardised.
The counsel for the petitioners sought the court’s permission to prove detention and produce evidence/witnesses in support of their case. The petitioners placed on record some paper cuttings in support of their contention that they were, in fact, under continued house arrest.
In their affidavits, the detainees stated that having been informed of the stand taken by the Union territory administration that they were not under house arrest, on October 24, 2019, they tried to move out of their house, but were stopped by a huge contingent of police, SHO, Kothi Bagh and few other officers at the gate. This, they stated, was witnessed by two sitting MPs, namely, Justice (Retd). Hasnain Masoodi and Mohammad Akbar Lone, who had come to meet them.
But Justice Magrey was unmoved, stating in his order: “In its extra ordinary writ jurisdiction under Article 226 of the constitution, a writ court is neither to hold an enquiry into the allegations made in a petition, nor take oral evidence. In writ proceedings, a fact is to be supported and proved by authentic documentary evidence. Press cuttings cannot be relied upon as authentic documentary evidence. Further, a writ court cannot hold enquiry into disputed facts. Once facts are disputed, the writ petition is rendered not maintainable. In such circumstances, the only option available to a writ court is to dismiss the writ petition, leaving the party concerned free to take recourse to appropriate remedy”.
Justice Magrey continued: “In the instant case, the respondents have clearly disputed the statement made in the writ petition about the house arrest of the alleged detainees. The petitioner asserts that he can prove the arrest by evidence. This court will not debar him from doing so, but that can be done only before the proper forum and in appropriate proceedings”.
In its reply to the Supreme Court in Soz case, the J&K administration accused Mrs Soz of not recording cogent reasons for failure to approach the J&K high court, which is fully functional despite the COVID-19 pandemic, for redressal of his grievances. What it ignored is that the outcome in the Muzaffar Ahmad Shah case might have influenced her decision to approach the Supreme Court directly to seek justice for her husband.
Merits of Soz’s pleas
Saifuddin Soz chose to approach the Supreme Court through his wife, after more than nine months of his “house arrest”. His disappointment with the Supreme Court’s dismissal of her plea to ensure his freedom made him describe the current dispensation as a “police state”.
Does the failure to approach the court for legal remedy immediately after his “house arrest” weaken his case? Although the J&K administration, by implication, so suggests in its reply affidavit, it is clear that Soz wanted to approach the Supreme Court as a last resort, to enforce his rights.
Saifuddin Soz is an octogenarian and a former member of parliament, who represented the Baramulla constituency in 1983. He has been re-elected numerous times, and has also served as a Union minister for environment and forests from 1997-99, and as the Union minister for water resources from 2006-2009. He has also been the president of the Jammu and Kashmir Pradesh Congress Committee. In her habeas corpus petition, his wife emphasises the fact that he is academically inclined, and is hardly a threat to public peace and tranquillity.
Soz claimed that he has been detained and put under house arrest since August 2019 and never informed of the reasons for detention and arrest, thereby making his detention not only illegal, malafide and unconstitutional, but also extremely appalling.
Article 22(5) of the constitution says that 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.
The government was accused of not adhering to any of the constitutional safeguards to the detenu’s fundamental right. The authority also refused to supply a copy of the order, despite repeated requests by Soz, failing which he was put under detention for a prolonged period without recourse under law.
The only law in Kashirr which allows extended preventive detention is the J&K Public Safety Act (PSA), but even then, the maximum period of detention as envisaged under the Act as laid down under Section 18, shall be three months in the first instance extendable upto 12 months when the person is acting in a manner prejudicial to the maintenance of public order; it is six months in the first instance extendable upto two years for persons acting in any manner prejudicial to the security of the State. Soz’s habeas corpus petition argued that since the state does not deny he is a law-abiding citizen, and since he has not committed any offence contemplated under the Act, particularly the offences mentioned, any detention order passed under the Act – if that is the basis of his house arrest – is liable to be set aside.
On May 15, 2020, Soz wrote a letter to the principal secretary for home affairs, J&K government, Shaleen Kabra, asking him to release him, as early as possible, because the system will never score any kind of advantage through his “house arrest” and, for that matter, by keeping all the mainstream leadership of Kashmir in jail or under house arrest.
He also narrated how a constable stopped him on August 5, 2019 from leaving his house to visit a friend in the neighbourhood, saying, “Sir, you cannot go out as you are under house arrest!’. It would be futile if I had asked him why I was put under house arrest and why he was being told of this development, verbally only.
“All these days, I pitied the Union of India for having gone totally wrong in its policy towards Kashmir. The moot question is why GOI harmed its own interest by having delivered a lethal blow to its constitutional relationship with Kashmir, so very unnecessarily. Not only me, but the entire mainstream leadership accept the Constitution of India and our grievances rest only with the Government of India”, he added.
In his communication to Kabra, Soz also referred to the advice he received from his friends in New Delhi to approach the Supreme Court to seek his freedom.
In its reply affidavit filed in the Supreme Court, the Union territory administration claimed that the question of providing the order of detention to Soz does not arise since no such order was passed by the answering respondent or any other authority in the UT of J&K, and that Soz was never under any detention as alleged in the petition. If it is so, it is not clear why Kabra did not reply to Soz, officially denying that he was under detention even if the government disagreed with his views on its Kashmir policy. After all, he is a categorised protectee, and the administration had an obligation to respond to his concerns on his own security and movements outside his residence.
“There is no restriction on the movement of Soz to any place, subject to security clearance which is contingent upon the law and order and security situation of the area”, says the J&K government’s affidavit, signed by the special secretary to the home department, Gh. Mohi-Ud-Din. The affidavit is silent on Soz’s communication to Kabra, and the response it didn’t elicit. Perhaps the government found his dissent as he expressed in that letter too difficult to tolerate, even as it had no answers to his legal contentions against his illegal detention.
Syed Ali Shah Geelani’s case
It is interesting to note that the Jammu and Kashmir high court had found similar restrictions on separatist leader, Syed Ali Shah Geelani without any legal basis in 2011. In a notable judgment delivered by Justice Hasnain Masoodi, the high court held thus: “The right to personal liberty is a core concept of our constitution. The framers, alive to the importance of right to personal liberty placed it alongside and on the same pedestal as the right to life. The right to personal liberty in reality, is an integral and inseparable part of right to life, as there would be no meaning to the right to life with personal liberty curtailed”.
As in Soz case, the then state government denied that Geelani was ever placed under house arrest, or that the state had restricted his movement or prevented visitors from meeting him. The state government claimed that Geelani is a categorised protectee.
In paragraph 11 of his judgment, Justice Massodi held: “The restrictions placed on movement of a person, not under arrest and his right to receive visitors thus are not permissible under Article 21 of the constitution unless the authority, ordering such restrictions justifies such restrictions on the basis of law, standing the test of justness, fairness and reasonableness.”
In 2009, Geelani had petitioned the high court against his “house arrest” and secured a favourable order, which was observed in breach by the government. The high court, while considering his contempt petition, appointed the registrar judicial of the high court as commissioner for spot inspection and report. The commissioner, on November 10, 2009 reported that Geelani was not “a free man”, implying thereby that the state government continued to impose restrictions on his movement.
The high court, in the contempt case, found that it had no material to opine whether the law pressed into service by the state to place restrictions on Geelani and the procedure adopted while placing such restrictions satisfy the requirements of substantive and procedural due process – that is, justness, fairness and reasonableness. “The respondents, however, lack authority to use the legal device, if any, available to put restrictions on the movement of persons with such a frequency as would virtually amount to arrest and detention of the person whose movement is restricted under such orders….”
But then, in J&K, the court’s strictures on the executive have long ceased to have any effect.
On July 30 last year, the high court dismissed Geelani’s pending contempt petition because “there are no details or particulars of any violation other than the submissions made in the contempt petition”. The high court advised Geelani thus: “In case the petitioner is still aggrieved by the acts on the part of the respondents, it shall be open for the petitioner to invoke the appropriate remedy in accordance with the law in respect thereof”.
In The Myth of Normalcy: Impunity and the Judiciary in Kashmir, a 2009 study by Allard K. Lowenstein of the International Human Rights Clinic, Yale Law School, it was noted that the habeas writ, a powerful form of protection for detainees, has been weakened by the failure of Kashmiri courts, including the J&K high court, to “give teeth” to their requirements by monitoring compliance with or enforcing their orders to release detainees. Judges can request status reports from the parties or use contempt orders to sanction parties who do not comply. However, the high court does not use these powers during pending habeas cases, the study had found.
The passage of a decade since the publication of that study has made no difference to its findings. Non-BJP parties in J&K may perhaps have to blame themselves for sustaining this culture of impunity over the years.