The author, Gautam Bhatia is a Delhi-based lawyer, he relates present Lockdown in J&K with Indira Gandhi’s emergency period (1976). By doing so, he questions the role of the Supreme Court as a guardian of fundamental rights. About the habeas corpus judgment 

  • The judgment was based upon the principle of ‘executive supremacy
  • This principle holds that in times of uncertainty, civil liberties must be subordinated to the interests of the state.
  • Further, the power to decide on questions such as
  • What are these ‘times of uncertainty?
  • Whose rights will be curtailed, and how?
  • When will freedom be restored?   are all left to the Government to decide.
The implication of arbitrary power: Absolute power corrupts absolutely Soon the falsity in the Supreme Court judgment surfaced. At the end of the Emergency, the government’s excesses committed under the cover of the habeas corpus judgment came to light. These included the torture and murder of rebels. The lessons learned
    • Our Constitution is based upon the system of checks and balances, where even the government are held accountable for its actions. When these actions infringe fundamental rights, accountability must be sought in a court of law. The habeas corpus judgment betrayed that principle.
    • It has been condemned as the darkest hour in the Supreme Court’s history.
  • The principle of proportionality
  The court erected the principle of proportionality to handle such instances. Based on the principle of proportionality, if the state wants to infringe on people's rights in service of a larger goal, then it must demonstrate that 
  • The measures it is adopting bear some rational relationship with the goal.
  • It must show that rights are being infringed to the minimum possible extent 
  • The constitutionality of the state’s actions is to be tested by the courts.
Present Case of J & K lockdown
  • From August 5, 2019, the State of Jammu and Kashmir (J&K) has been placed under a ‘communications lockdown’.
  • In addition, political leaders along with an unknown number of other individuals have been detained.
  • Both moves violate fundamental rights. 
  • A communications shutdown violates the freedom of speech and expression, prevents those outside the State from being in touch with their families, and provides cover for civil rights violations that cannot come to light.
  • Detention self-evidently violates personal liberty.
  • Also, the government supremacy to decide when to detain, whom to detain, and for how long to detain, based upon its assessment of when a region was ‘ready’ for democracy reiterates the principle of executive supremacy.
The Role of Court
  • Unlike the Emergency, the courts have not upheld the government’s actions so far. But they are resorting to other measures such as adjournment and evasion.
For example,
  • Political leader Shah Faesal’s petition challenging his detention has been twice adjourned by the Delhi High Court.
  • Petitions challenging the lockdown have also been repeatedly adjourned (the first time with the court remarked that the government should be ‘given some time’ — a striking echo of the habeas corpus case).
  • When petitions challenging detentions came up before the bench of the Chief Justice of India, the court instead of calling upon the government to justify itself, the bench has authorized the petitioners to go to Kashmir and meet the individuals who were under detention. Undercover of granting this ‘permission’, the court has refused to pronounce on the validity of the detentions themselves.
  • The constitutional requirement of proportionality has not been fulfilled either and the court remains silent on this too. 
Thus the courts have allowed the infringements of civil liberties to continue by not hearing the cases before it.  It has exempted the government from its constitutional obligation to explain and exempted itself from their obligation to hold the government accountable.  At the time at which the judiciary is most needed to defend civil liberties, it has simply vacated the field, absented itself, and chosen to walk away. And so, through this judicial evasion, the status quo continues. Source: