India: Criminal procedure; information concerning constitutional and statutory provisions intended to protect rights of due process, particularly the right of habeas corpus; effectiveness of these provisions in practice
| Publisher | Canada: Immigration and Refugee Board of Canada |
| Author | Research Directorate, Immigration and Refugee Board, Canada |
| Publication Date | 4 August 2000 |
| Citation / Document Symbol | IND34879.E |
| Reference | 1 |
| Cite as | Canada: Immigration and Refugee Board of Canada, India: Criminal procedure; information concerning constitutional and statutory provisions intended to protect rights of due process, particularly the right of habeas corpus; effectiveness of these provisions in practice, 4 August 2000, IND34879.E, available at: https://www.refworld.org/docid/3ae6ad6168.html [accessed 3 November 2019] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
There are a number of constitutional and statutory provisions that provide for the right of habeas corpus in Indian law. Article 32 of the Indian Constitution states that the Indian Supreme Court is empowered "to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate" for the enforcement of any of the rights conferred by Part III of the Constitution, which deals with fundamental rights (26 Nov. 1949). Article 226 of the Indian Constitution extends the same powers to the Indian High Courts. According to Article 226(1):
Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (ibid.).
According to Amnesty International, these constitutional provisions are in addition to section 57 of the Criminal Procedure Code, which provides "that all arrested persons be brought before a magistrate within 24 hours of arrest" (July 1997). This information is corroborated in the India entry in the World Factbook of Criminal Justice Systems, which states
An individual could be arrested by the Police on a specific complaint or on suspicion of having committed a cognizable offence. In all such cases, the arrestee has to be brought before the nearest Magistrate within 24 hours of the arrest. Any detention beyond 24 hours is allowed only with the orders of a Magistrate. The Magistrate has the authority under the Criminal Procedure Code to either release the individual on bail or lodge him in a sub-jail for pre-trial detainees and those under investigation. In certain cases, to facilitate investigation, the Magistrate may permit an arrestee to be retained in police custody for a short period (n.d.).
The existence of these safeguards is pointed out in India's "Third Periodic Report to the United Nations Human Rights Committee under the International Convention on Civil and Political Rights (ICCPR)":
Both the Supreme Court and the High Courts are empowered to issue any direction, order or writ including writ in the nature of habeas corpus, mandamus, certiorari, etc. to enforce an individual's fundamental human rights, and they can do so on the basis of even letters addressed to them. The superior courts of the country, namely the Supreme Court of India and the High Courts in the States, are independent of the executive and the legislative organs of the Government. The independence of judges is guaranteed in the Constitution through the manner of their appointment, the security of their tenure and the stringent provisions for their removal (UN 17 June 1996).
However, in its comments on India's Report, the Human Rights Committee stated:
The Committee expresses concern at allegations that police and other security forces do not always respect the rule of law and that, in particular, court orders for habeas corpus are not always complied with, particularly in disturbed areas (ibid. 4 Aug. 1997).
An Alternate Report and Commentary on India's report to the Human Rights Committee, prepared by the South Asia Human Rights Documentation Centre (SAHRDC), stated that SAHRDC "was aware of numerous cases where the Supreme Court of India refused to entertain habeas corpus petitions" and also stated that in Jammu and Kashmir the State government and military authorities had refused to respond to writs issued by the High Court (July 1997). The Alternate Report, which contains extensive information regarding illegal detention in India, particularly in the discussion of Article 9 of the ICCPR, is available in Regional Documentation Centres.
Concern over the availability in practice of the remedy of habeas corpus in India was also expressed in a 1997 report of the United Nations Special Rapporteur on Torture:
The security forces were reported rarely to produce detainees before a magistrate, despite their being required by law to do so within 24 hours of detention. It was reported that since 1990 over 15,000 habeas corpus petitions had been filed to reveal the whereabouts of detainees and the charges against them, but that in the vast majority of these cases the authorities had not responded to the petitions (10 Jan. 1997).
A 1998 Indian Express report expresses concern regarding the availability in practice of habeas corpus in Delhi, criticizing procedures which make it necessary for persons seeking writs to approach the "lowest court of their district" causing delays that make "mockery of the habeas corpus remedy" (25 Nov. 1998).
Several sources expressed concern regarding the ineffectiveness of habeas corpus petitions in Jammu and Kashmir (HRW July 1999; AI January 1999; ibid. May 2000). According to Amnesty International:
The higher judiciary in Jammu and Kashmir appears in many ways unable or unwilling to provide justice to the "disappeared" and to their families. The Jammu and Kashmir High Court has two benches, one at Srinagar and one at Jammu. At present between 200 and 400 habeas corpus petitions - different information is given by different sources - are reportedly pending in the Srinagar bench and it is foreseeable that it will take years to clear the backlog of petitions - even given the full cooperation of the respondents. This number includes over 60 cases of "disappearance" filed in 1991 by H.N. Wanchoo, a lawyer active in the People's Union for Civil Liberties. Following his killing in 1992, none of the cases were heard in the court and lawyers attempting to get the cases listed reportedly found that many of the files of these cases were missing in the High Court premises.
Habeas corpus petition are heard only by one or two judges, on one day per week, Tuesdays, leading to lengthy delays. Given the unresponsiveness of the respondents and the long adjournments granted by judges, this schedule of hearings on a single fixed day per week contributes to long delays.
Security of tenure of judges, an essential requirement for the independence of the judiciary, appears not adequately provided for in the Jammu and Kashmir High Court as there is a large proportion of unconfirmed judges. Their unsecured tenure makes them open to government pressure as they may risk not being confirmed if they pass judgments not appreciated by the authorities. Advocates practicing in Jammu and Kashmir have also pointed out that judges, some of whom have been transferred after making observations critical of the government, are hesitant when a case reaches the final stage and have repeatedly adjourned it, apparently to avoid having to make a judgment or pass an order.
Filing habeas corpus petitions, the most essential remedy for families whose relatives have "disappeared", is a time consuming and expensive process which affected families may not always know and trust and which more often than not does not lead to the recovery of the person.
The right to a prompt and effective judicial remedy as a means of determining the whereabouts or state of health of persons deprived of their liberty and/or identifying the authority ordering or carrying out the deprivation of liberty is required to prevent enforced "disappearance"s under all circumstances, including those referred to in article 7. (Article 9, Para 1, UNDPPD)
Practicing advocates in Jammu and Kashmir have told Amnesty International that in the vast majority of cases, High Court judges do not admit habeas corpus petitions right away despite the urgency of finding the "disappeared" person who may be at risk of losing his life and physical integrity. Instead, the court asks the respondents to explain why the petition should not be admitted against them. Whereas the court usually gives four weeks notice for this stage, in practice, the process may take several months as the state frequently fails to file objections to the admission of a petition. If the state fails to respond the court usually gives the respondents more time to file objections.
Once a habeas corpus petition is admitted, hearings may stretch over several years. Petitions are placed before whichever judge is available so that the same petition may repeatedly be placed before a judge who is not familiar with the case. The lack of continuity of hearing which is to the detriment of the victim, could easily be overcome, advocates hold, by structuring the working of the court differently (Feb. 1999).
A May 2000 Amnesty International report, citing the Jammu and Kashmir High Court Bar Association, provides additional information, stating that only 2,000 of 19,000 habeas corpus petitions filed "in the past few years" had been heard, with the rest having become irrelevant with the expiration of the detention period.
In March and April 2000 a delegation of the Danish Immigration Service (DIS) undertook a fact-finding mission to Punjab which included interviews with human rights lawyers, members of non-governmental organizations and government officials. Although the report of the fact-finding mission does not make specific reference to habeas corpus, there is some discussion of unlawful detention in Punjab:
There was no consensus among those questioned as to the length of time persons unlawfully arrested were detained. Times of a few hours or days up to several years were given. Human rights lawyer [Ranjan] Lakhanpal claimed to have examples of persons being detained for threee and a half years with no legal basis. [Human rights activist] Jaspal Singh Dhillon, on the other hand, said that the situation had changed considerably and that people were generally brought before a judge after three or four days of unlawful detention (May 2000).
The July 1997 Amnesty International report refers to a 1996 case in which a writ of habeas corpus was successful in obtaining the release of several illegal detainees after two weeks in Karnataka. For other reports referring to the use of habeas corpus writs to obtain the release of detained persons in India, specifically in Punjab, please refer to IND30788.E of 23 December 1998 and IND27112.EX of 4 June 1997.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.
Amnesty International (AI). May 2000. ASA 20/10/00. Punitive Use of Preventive Detention Legislation in Jammu and Kashmir.
_____. February 1999. ASA 20/02/99. 'If They Are Dead, Tell Us' - 'Disappearances' in Jammu and Kashmir.
_____. July 1997. Submission to the Human Rights Committee Concerning Implementation of Articles of the International Covenant on Civil and Political Rights.
Danish Immigration Service (DIS). May 2000. Report of Fact-Finding Mission to Punjab. Translated by the Translation Bureau, Multilingual Translation Directorate, Public Works and Government Services Canada, 25 July 2000.
Human Rights Watch (HRW). July 1999. Behind the Kashmir Conflict: Abuses by Indian Security Forces and Militant Groups Continue.
India. 26 November 1949. The Constitution of India. (REFLEG).
Indian Express. 25 November 1998. Krishan Mahajan. "It's the Silence of the Lambs."
South Asia Human Rights and Documentation Centre (SAHRDC). July 1997. Alternate Report and Commentary.
United Nations (UN). 4 August 1997. CCPR/C/79/Add.1. "Concluding Observations of the Human Rights Committee: India."
_____. 10 January 1997. E/CN.4/1997/7. "Question of the Human Rights of All Persons Subjected to any Form of Detention or Imprisonment, in Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment."
_____. 17 June 1996. CCPR/C/76/Add.6. "Human Rights Committee. Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant. Third Periodic Report of States Parties Due in 1992. Addendum. India."
World Factbook of Criminal Justice Systems. n.d. R.K. Raghavan. "India."
