CASE STUDY: SITARAM YECHURY VS.

UNION OF INDIA

INTRODUCTION
COURT: Supreme Court of India
After the abrogation of Article 370 of the
BENCH: Justice S. A. Bobde and Justice Constitution a state-wise ban on access to
S. Abdul Nazeer internet and communication services was
imposed on the State of Jammu and
DECIDED ON: 28-08-2020
Kashmir. Thereafter various political and
CITATION: Writ Petition (Criminal) No. non-political persons like Qazi Shibli1,
229 of 20191 Jammu and Kashmir's former chief
ministers Mehbooba Mufti and Omar
Abdullah, MLA Mohammed Yousuf Tarigami and Engineer Rashid were among those
placed under "preventive detention"2 by the security forces3. Subsequently a virtual
lockdown was imposed when the Centre passed the Jammu & Kashmir Reorganization Act,
2019 taking away the special status granted to the State. The objective of the government
while enacting the Jammu & Kashmir Reorganization Bill, 2019 was to fulfil one nation one
law policy and to integrate the state with the rest of India.

SUMMARY OF FACTS:

Thee Petitioner, Sitaram Yechury, General Secretary of the Communist Party of India on
19th August, 2019 filed a Habeas Corpus petition under Article 32 of the constitution before

1
a local journalist and editor of news website The Kashmiriyat Walla, was arrested by the Jammu and Kashmir
Police on 28 July 2019 on unspecified charges. "CPJ calls on India to ensure access to internet and communications
services in Kashmir". Committee to Protect Journalists. 5 August 2019. Retrieved 8 August 2019.
2
Das, Shaswati (5 August 2019). "Mehbooba Mufti, Omar Abdullah arrested after scrapping of Article 370". Mint.
Retrieved 9 August 2019.
3
"Jammu and Kashmir: A timeline of recent events". The Hindu. 5 August 2019. Retrieved 9 August 2019.

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the Supreme Court challenging the constitutional validity and illegality of the detention
imposed on one of the leaders of his party, Mohammed Yousuf Tarigami.

RELEVANT LAWS

ARTICLE 370

Article 370 gives a certain amount of autonomy to the State of Jammu and Kashmir wherein
it had its own Constitution, separate flag and freedom to make laws, whereas Foreign affairs,
Defence and Communication remained under the preserve of the Central Government. The
said provisions empower the state government to restrict domiciles of other state to
purchase property or even settling in the state of J&K.

After the abrogation of the said provision the State now no longer have these privileges and
is part of India and is entirely under the purview of Central Government.

WRIT OF HABEAS CORPUS

A PIL can be filed before Supreme Court and High Court under the Writ Jurisdiction under
Article 32 and 226 respectively. One of which is a writ of “Habeas Corpus” which mean,
“You may have the body”. Let’s say when a man who has been captured, can move the
Court for the issue of writ of Habeas Corpus. Then the Court makes a request to the
keeping authority to produce the captured individual before it with a goal to inspect whether
the said individual has been kept legitimately or not. If the Court finds the arrest was made
wrongly and the individual was kept illicitly then it can issue orders for his discharge. To
approach under this writ, it can either be the individual in detainment or any other individual
who is following up for his/her benefit to ensure his/her freedom.

PREVENTIVE DETENTION

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The ambit of Preventive Detention Theory becomes wide with the idea of Habeas Corpus,
which is a preventive action and not implied as a discipline. It is not the punishment for the
past actions of an individual rather it is expected to pre-empt the individual from enjoying
future actions that shall denied by the important statute and it is with a purpose to keep him
from doing any hurt in future4.

Article 22 oversees the strategy for preventive detainment. The one and only enquiry
according to it should be adherence to pre-requisites law. To sanction a law of preventive
confinement Parliament should consider the following reasons:

• Outside Issues
• Security of State
• Support of supplies and administration’s fundamental to the community
• Security of India
• Barrier- one who obstructs the rules of law
• Support of open request- trying or leaking any information against law

According to International Covenant on Civil and Political Rights, Art. 4 recognises the right
to life and personal liberty to be a non-derogable right even during the times of emergency.
The Supreme Court of India held that the writ of habeas corpus can be utilized even during
the emergency as the same fall within the purview of Art. 20 & 21 and these rights cannot be
taken away due to emergency5.

ISSUES RAISED FOR CONSIDERATION OF THE COURT

4
Maneka Gandhi Vs. Union of India; AIR 1978 SC 597
5
K. S. Puttaswamy Vs. Union of India; (2017) 10 SCC 1

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 1. Whether the virtual lockdown imposed by the Government is Constitutionally
valid or not?
2. Why virtual lockdown was imposed in the State of J&K and arrests were made
after an Act was passed abrogating Article 370 of the Constitution, taking away
special status of the State?

ARGUMENTS ON BEHALF OF THE PETITIONER

The Petitioner argued that despite of his efforts, he was unable to enquire about the
wellbeing of Md. Tarigami and his attempt to meet him in Kashmir personally was also
failed, as his entry into the State has been refused. He further stated that the health of Mr.
Tarigami was not in good shape and through the interim application, the petitioner seeks to
transfer Md. Tarigami to All India Institute of Medical Sciences (A.I.I.M.S.) Delhi, for better
medical facilities.

ARGUMENTS ON BEHALF OF THE RESPONDENT

The Respondents contended that the health of the detenu was fine and he is under the
surveillance of a Z- category security which is why the visit of the petitioner was denied.

FINDINGS OF THE COURT:

The fact that the detenu was under the surveillance of the Z- category of security does not
have to do anything with his health. The court held that the reasoning of the Respondent is
vague and insufficient for denial of the petitioner’s visit. The SC allowed the visit of the
petitioner subject to certain conditions like he was not allowed to carry out any other

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political activities and to submit a report on his return to the Court. On submissions of such
report, the court ordered the concerned authorities to transfer the detenu to AIIMS.6

OBSERVATION

When a writ of habeas corpus is filed then the court rather than going into the issue of the
alleged crime of the detenu, must involve in determination of whether a detention is legal
and if due process has been followed.7 In the present case the Court failed to question the
authorities the cause of detention. It is a settled law that even in an emergency situation the
State cannot restrict people’s freedoms without following the due process of law.8

In Chiranjit Lal Chowdhuri v. UOI9, “The fundamental rights guaranteed by the

Constitution are available not merely to individual citizens but to corporate bodies as well
except where the language of the provision or the nature of the right compels the inference
that they are applicable only to natural persons. An incorporated company, therefore, can
come up to this court for enforcement of its fundamental rights. Under Article 32 conferring
its power can issue directions or orders or writs like habeas corpus, mandamus, prohibition,
quo warranto and certiorari, whichever may be appropriate for the enforcement of any of
the rights”.

The normal process in a habeas corpus case to produce the detenu before the court and
verify if the detention is legal and, if it is found that it is violative of the Constitution then
quash the detention.10

6
https://indiankanoon.org/doc/83268785/
7
http://www.legalservicesindia.com/article/589/Position-of-Fundamental-Rights-during-Emergency.html
8
Ibid.
9
AIR 1951 SC 41.
10
Ibid.

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In Ram Manohar Lohia v. State of Bihar11, a Constitution bench ruled that “the reason
why it is said that the order is not in terms of the rule is that the rule does not justify the
detention of a person to prevent him from acting in a manner prejudicial to the maintenance
of law and order while the order directs detention for such purpose. It is admitted that the
rule provides for an order of detention being made to prevent acts prejudicial to the
maintenance of public order, but it is said that public order and law and order are not the
same thing, and, therefore, though an order of detention to prevent acts prejudicial to public
order might be justifiable, a similar order to prevent acts prejudicial to law and order would
not be justified by the rule.”

In Rudal Shah v. State of Bihar12, The Court held that the “right to compensation is some
palliative for the unlawful acts of instrumentalities which act in the name of public interest
and which present for their protection the powers of the State as a shield.”

11
(1964) 4 SCR 797.
12
(1983) 4 SCC 141.

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