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This is a case which evolved from the tears of a father Prof: T.V. Eachara Warrier, who is the petitioner in this case. His son’s disappearance draws from him this eloquent, moving and remarkable statement on cruelty, courage and enduring hope. This case touches upon a story that took place in India but it is a story but it is the story of millions throughout Asia and many parts of the globe. The global human rights community must listen to this story. But unfortunately the much of these communities tries to avoid getting close to these realities faced by the overwhelming majority of the people of the world preferring instead to dwell in academic works on human rights which also on their parts avoid these realities. Professor Warier through filing this petition was on an unsuccessful attempt to get his son out of the temporary
Police camp to where he was taken one morning for no reason. Camps such as this exist in many other countries even now. These are places where the rules of life and death are very different to the rest of the world. They are places where relatively low ranked officers have absolute power to decide who to arrest, hw to arrest them, hoe to torture them, when to kill them, how to dispose of their dead bodies. Above them are other persons- senior police officers, politicians and bureaucrats- who must hide the truth from the families of victims and wider society. A bond of complicity thereby forms between the actual perpetrators and other authorities, a bond so strong that in this story it did not break even in cases where the father knew any of the government officials personally. This is not a story of some event in the history; it is the story of today’s India, today’s Asia. Across the region huge numbers of innocent people suffer from the cruellest forms of torture and death in custody, and thousands are forcibly disappeared. Most victims do not have a father as educated and as vocal as the petitioner in this case.
In India human rights abuse by the police are set to increase dramatically. A body known as the Malimath Committee has recently suggested reforms to the criminal justice system, which would create conditions, which are even worse than those that happened in this case. These reforms, if realised, will remove the basic legal defences available to an accused person. They will permit torture, custodial deaths and disappearance to occur anywhere anytime. Proper redress will no longer be available through the courts, which will themselves become places for bargaining, life with corruption. This case is a story for our times. It should be read carefully by anyone concerned about the real meaning of human rights. It should be on the reading list of every human rights and democracy education programme. This father deserves to be heard. We will all be better off if we learn something from his bitter and deeply moving experiences.
This case portrays the stories of the thousands of others whose pain and suffering have never been made public. In India, human rights abuses by the police are set to increase dramatically. This case holds a lot of relevance in this context and it brings about the various unique aspects of law, it shows the different possibilities of the writ of habeas corpus and how the court has issued it in the present case.
Facts in Issue
The petitioner in this case is the father of one Mr. P. Rajan who was a final year engineering student in the regional engineering college, Calicut during the academic year 1975- 76. The petitioner has been residing in Cochin after he retired as a Professor of Hindi in the Government Arts and Science College, Calicut. Rajan is said to have been a fairly bright student and he is said to have never indulged in any kind of political or objectionable activity. His only activity was a said to be in the field of music, drama and other arts. He had been the Secretary of the Arts Association in his college in1973-74. The petitioner complaints that his son Rajan was taken into police custody on 1.3.1976 when Rajan was staying in the college hostel and the police had not disclosed his whereabouts. The Principal of the college informed the petitioner by registered letter sent on the same day that his son had been arrested by the police.
This was at a time when the proclamation of emergency was in force. The petitioner has not seen his son thereafter nor has been able to get any definite information about him. The petitioner made enquiries to police officers, who he felt would be able to give him the details about his son’s arrest and also about his whereabouts. It was at this point of time that the petitioner came to know that Rajan was arrested according to the directions of the Deputy Inspector General of Police, Trivandrum who was the 3rd respondent in the petition and also that he was kept under the custody of the crime branch of the State Police. The petitioner then met the then home minister Sri.K.Karunakaran and made a complaint to him, which he promised to look into. But nothing turned out of it. Subsequently, the petitioner sent a petition to the Home Secretary to the Government of Kerala on 15.6.1976, another on 1.7.1976 and yet another on 6.8.1976. To all these there was not a reply or not even an acknowledgement to the petitioner.
The petitioner continued his efforts by sending similar representations to the President of India and Home minister to the Government of India with copies to all the Members of Parliament from Kerala. The President had made assurances and the petitioner had made representations to the Prime Minister of India. He had also made similar representations to two of the Parliament members from Kerala, Shri. A. K. Gopalan of the Lok Sabha and Shri. V. Vishwanatha Menon who informed him that they received intimation from the Prime Minister and the Home Minister of the Government of India respectively and that the matter was receiving their attention. But all these attempts made by the petitioner turned out to be yielding no purpose at all. There were many things happening at the ministerial level, which a layman like the petitioner failed to understand. Every incident, which followed, seemed to be very suspicious. Later on the petitioner received an acknowledgement letter, which was sent to Shri. Vishwanatha Menon from Shri. K. Karunakaran directing the release of Rajan and on the receipt of this the petitioner met several police officers and coming to know that some of the students who had been similarly arrested were detenus in the Cannanore Central Jails he vigorously searched in vain for his son in the three central jails and various other police camps and other places.
On the last occasion when the petitioner met the then Chief Minister Shri. Achutha Menon he expressed his helplessness in the matter and also said that the matter was not dealt by him but by Shri. K. Karunakaran the then Home Minister. It is also to be noted that Shri. K. Karunakaran who was a candidate in the oncoming elections had, in public meetings held at Kalpetta and Mala mentioned that Rajan was arrested and kept in detention, as he was involved in a murder case. But, if that be the case the petitioners son should have been produced with before a Magistrate under the provisions of the Code of Criminal Procedure in spite of the fact that the rights under Articles 21 and 22 remained suspended during the period of proclamation of emergency. The petitioner was disheartened by the response of the authorities and responsible officials who were in fact hindering the path of justice, which was to be made available to the petitioner and his son. Subsequently, the petitioner went for litigation in the Kerala High Court where the first writ was filed after the emergency period the case was Prof: T.V.Echara Warrier v. Secretary to the Ministry of Home Affairs and Others.
Case in the background of the emergency period in the India
In the history of India, the days from June 22, 1975 to March 21, 1977 were the black days of the Emergency. Many in the country are unaware of what the Emergency meant, and how it affected the lives of common people. A State of Emergency is declared under special circumstances. Emergencies have been in force in different countries to face foreign aggression, or deal with internal violence. When a State of Emergency is declared, it affects the whole populace of a country. In India, the Emergency was declared not to protect
the country from danger, but to protect the personal interests of a single leader, Mrs. Indira Gandhi, the then Prime Minister. She had been defeated in elections. She then filed an election petition, which she lost, and she appealed to the High Court and the Supreme Court. She lost her case everywhere. After that, to safeguard her own political position she declared the Emergency, thereby concentrating all powers in herself. Most of the country was in deep sleep when the Emergency was declared. India awoke in darkness. The emergency deeply affected the social life in Kerala. Even those who supported emergency strongly felt the absence of freedom. The was censor not only of the news papers but also limits on the freedom of expression among the people, who were scared to meet the talk among themselves, scared to criticize either Mrs. Indira Gandhi or Mr. K. Karunakaran. All sorts of human rights were taken away mercilessly. The Universal Declaration of Human Rights was declared in 1948. It encompasses the rights of people anywhere and everywhere in the world. To make sure that these rights are fully enjoyed by the common person, the Supreme Court of India had made certain suggestions. Justice V. R. Krishna Iyer compiled these into law. Of these, the most important ones are the right to life and the right to know. If these two rights are protected, all others will get protected along with them. The clause dealing with the right to life makes clear the rules applicable during arrest, and details of the rights of the person arrested. It clearly instructs that the person arrested should be brought before the court within 24 hours of arrest, and subjected to medical examination at least once within 48 hours of arrest. If the authorities had obeyed these rules, Rajan’s case and others like it would never have happened. The most inhuman aspect of the Emergency was that the two major human rights, the right to life and the right to know, were totally denied. The tragedy of my son was typical of this denial of rights. The Emergency was lifted over 25 years ago. The general public has forgotten those days almost completely. This is dangerous. The dark powers of the Emergency are still there. Like venomous snakes they are hiding in their holes. Given a
chance, they will raise their heads again, so people need to be constantly alert. There should be strong defences built to face these dark forces.
How such simple questions assumed so much of relevance?
The questions involved in this case were simple ones. The petitioner’s case is that he did not know why his son was arrested, that he made enquiries to police officers, who, he felt would be able to give him details about his son’s arrest and also about his whereabouts. The petitioner was a person who had very good relations with officials of the state as a last resort he had knocked the doors of many a number of responsible officials of the state as well as the centre whom he expected to give him some informations about Rajan. He even made representations to the President of India and the Home Minister to the Government of India with copies to all the Members of the Parliament from Kerala. The prayer that he made to all these responsible people were that at least the whereabouts of his son may be made known so that the sufferings of himself and his family may be alleviated. Instead of providing some information to the petitioner as to where his son was, surprisingly all these high officials made him wander from one place to the other with numerous letters and representations. The irony is that from all these places the petitioner received the same vague responses even the ones who were close to him had turned their faces when such an issue came up. Even the Chief Minister Mr. Achutha Menon made a remark that he was helpless and that the whole issue was dealt with by the Home Minster. Even the most powerful person of a state had said that he was helpless; we can in the abovementioned situations imagine the plight of common man of those periods. The court has also in its judgement made an observation that the respondents had not viewed the matter with the sense of responsibility expected of them at least when their attention was drawn to the serious situation. The court adds that the petitioner has posed here only three simple questions:-
(i)Whether Shri Rajan was taken into police custody on 1.3.1976?
(ii)Whether Rajan is in police custody at the moment?
(iii)What relief the court should grant in the circumstances of the case and against whom?
The solution to it would have been equally simple but, the solution has been rendered to be difficult due to the unhelpful attitude of the respondents. Also, if we observe the matter closely we can very well see that there has been a lot of ministerial interference in the matter which would not have taken place if it was some other case which had taken place at time where such an emergency was not in force in the country. Otherwise why should the Home Minister of a state bother to give explanations with respect to the arrest of a student and that too with supportive imaginary and cooked up stories in election campaigns in which he took part across the state known to be the ‘sampana rally’. Moreover the explanation that was given by Mr. K. Karunakaran who himself admitted the fact that Rajan had been detained, was insufficient and the court has itself pointed out in its judgement that the explanation was not meeting the point raised by the petitioner, for one would like a direct answer particularly in view of the seriousness of the averments as to whether the petitioner did meet Shri. K. Karunakaran on 10th March 1976, the answer to which was not provided. This is pointing fingers to the fact that there were enough and more ministerial interference in this case. The petitioner and also Professor Bahauddin, the principal of the regional engineering college had all made attempts to meet the investigating officers like Shri. Jayaram Padickal. But, the response that they received was shocking. Instead of information about Rajan what they got was insult and humiliation. All these weakened the feelings of the desperate father who had to surrender even his self- respect in front of officials like him. In the witness statements it mentioned that one Mr. Joseph Chali was also arrested along with Rajan on the same day and was taken in Police vans by police officers who were in mufti but, none of the witnesses gives any information with respect to the exact time at which both were arrested neither have they mentioned whether they had actually seen the boys being taken into the van and by which all officers. All these creates doubts in the mind of the court as to whether the witnesses are speaking the truth, whether they are fearing anyone which would probably be the reason why they are not speaking out what they saw. It has come out that repeated representation made to the Government of Kerala were not of any use to the petitioner. He was not even shown the courtesy of an acknowledgement. As mentioned already he had knocked the doors of many officials of the State Government. It could possibly be noted that the several representations received by the Home Secretary did not come to the notice of the Home Minister. But the representation sent along with the letter of Shri. Vishwanatha Menon did come to his notice. The respondents in this case had all filed counter affidavits but four of the respondents did not purport to speak on the issue before the Court from their personal knowledge. They were not in a position to say from first hand knowledge that Shri. Rajan was not taken into police custody. Also Shri. Lakshmana, the District Superintend of Police had not offered himself for cross- examination. What does all this show? It shows that there were certain things which are unknown to us and which have been cleverly tried curtained from the judiciary’s eyes in all possible ways by the Executive.
The writ of Habeas Corpus
The first writ filed at the High Court after the Emergency was lifted was Professor Eachara Warrier v. Secretary to the Ministry of Home Affairs. It was filed on February 25, 1977. The next day all the major newspapers in Kerala, and also outside the state, carried details of the writ. The news spread through Kerala like wild fire. There was such a huge crowd in the High Court on the day the writ was considered. Because of this crowd, the case was shifted to the most spacious hall in the High Court. Rajan’s case was being felt among the people. The Kerala State Assembly was boiling over after the heat of the Emergency. On February 26, one member raised Rajan’s case in the Assembly. Mr. Karunakaran jumped up from his seat and declared that Rajan had not even been arrested. Such was the hue and cry raised while the petitioner filed a writ petition for the issuance of a writ of habeas Corpus. The court found it very difficult to decide upon the remedy that was to be given to the petitioner. The court held that their object was not to impose any punitive action for the improper conduct of any official but invoke and exercise the authority placed on it to protect the citizen’s freedom solemnly remembering the obligation of the Higher Judiciary of the land to act as sentinals of human liberty whenever and wherever there is serious threat to it. It added that the petitioner’s grievance was genuine and as a distressed father he invoked the powers of the court to command whoever is in custody to direct production of his son so that he may be released. Relying on a R.J. Sharpe’s treatise on the Law of Habeas Corpus the court even held that the writ of habeas corpus might even be issued to several persons in order to know who has the actual custody of the person who has been detained unlawfully. It also held that in the normal course the writ of habeas corpus is issued to present the person who has been detained by a party before the court but in the present case it has been issue in order to know the truth as to whether Mr. Rajan had been actually taken into custody. In the circumstances of the case it would be difficult for any person seeking a writ of habeas corpus to pin point the officer who has arrested the person to police custody. When the fact was that officers using police powers of the state took persons into custody dealt with them as is custody was required for interrogation, it was not necessary that the petitioner had to show which officer had the custody of the person at the moment. To consider otherwise would have been limiting the scope of the writ of habeas corpus and deny the legitimate exercise of the function of the court. Thus the writ of habeas corpus was issued to numerous persons since there was a doubt as to who had the actual custody of Shri. Rajan. The object of the Court was similar to that of the petitioner i.e., to know whether Rajan was taken into custody or not if so, where he was?
Judiciary’s emphasis on the Human Rights perspectives involved: A Conclusion…
The court has throughout its judgement opined that the case is more a human problem than a legal one. In its words the case is all about “A heart broken father, with is wife mentally deranged, with his home made desolate after the disappearance of his only son, with his two daughters grief stricken after this tragedy, has, after approaching the high dignitaries of the State and the Centre taken refuge in this Court as a last resort requesting this Court to exercise its sacred duty to cause the production of his son who disappeared from 1.3.1976.” The Court has done the best it can do to protect the interest of a desperate family shattered in the lost of their beloved son and loving brother. The doubts that were created by the officials as well as the witnesses throughout the case became a black mark in the process of the trial. The reluctance shown by the witnesses to give truthful facts and clear evidences. The haphazard manner in which the investigation was carried out and moreover the extraordinary executive interference in the case all created doubts in the minds of the judiciary. The court had throughout its judgement given comments on the non- cooperation of the investigating officers who failed to give informations about the petitioners son. They did not even make remarks as to whether the petitioner’s son was in their custody or not. The absence in transparency throughout the case was enough for the Court to move into such a conclusion. The Court thus gave more weight age to the feelings of a grief stricken family, which is a representative of the society as a whole, rather than providing loopholes to the executive and its officials to escape from the clutches of the interests humanity. It has given an order, which is a walk towards the judiciary’s interest towards the protection of Human rights of the people who approach it with expectation, which has got the value of their own lives. As a conclusion a scene may be depicted in the words of the Rajan’s father Prof. T.V. Eachara Warrier:
That day even in the midst of her pain she handed over to me a handful of metal coins and said “I give this to you, because I only trust you…give this to our son Rajan when he comes back”
As she completed these words the cold hands of death had already touched her. She slept in the hope that her son would come back one day.
That plantain of rice was still kept open in the kitchen as if in the middle of the night……….. Wet in the heavy rains………. someone would come to eat it hungrily…………………that was his mother’s last wish……………
Memories of a Father, written by Rajan's Father is available here:
Prof. Leelakrishnan was heading the panel conducting course viva for the final year students of NUALS. He was very friendly and was asking me during the viva about my law school life and future plans. Casually I mentioned few things and in between I also said, I had worked for IDIA and explained to him about what IDIA was all about. Then he asked me a question, Have National Law Schools in India served their purpose? I answered it ‘No’. This is the inspiration behind writing this piece.
Section 4 of the National Law School of India Act, 1986 states the object of establishing the institute as follows:
"The Objects of the School shall be to advance and disseminate learning and knowledge of law and legal processes and their role in national development, to develop in the student and research scholar a sense of responsibility to serve society in the field of law by developing skills in regard to advocacy, legal services, legislation, law reforms and the like, to organise lectures, seminars, symposia and conferences to promote legal knowledge and to make law and legal processes efficient instruments of social development, to hold examinations and confer degrees and other academic distinctions and to do all such things as are incidental, necessary or conducive to the attainment of all or any of the objects of the School."
The following objectives need to be emphasised:
1. To advance and disseminate learning and knowledge of law and legal processes and their role in national development.
2. To develop in the student and research scholar a sense of responsibility to serve society in the field of law by developing skills in regard to advocacy, legal services, legislation, law reforms and the like.
3. To organise lectures, seminars, symposia and conferences to promote legal knowledge and to make law and legal processes efficient instruments of social development.
Whether the National Law Schools established in India have been able to serve the purposes highlighted above is worth contemplating at this juncture. How many National Law Schools or its graduates have become catalysts in national development? Have these law schools been able to instil in students the sense of responsibility to serve society as has been envisaged in the objects? Is there any national law school which has consistently endeavoured to make legal process an efficient instrument of social development? There are exceptions but the numbers are a staggering low considering the years that passed by.
Every top law school boasts of the annual placements and tie ups with foreign universities. But object of social purpose which was a driving force behind the birth of these law schools have long disappeared into the oblivion. The psyche of even a first semester student is to secure a corporate internship and participate in reputed moot court competitions. The mindset of a law student to diversify and lengthen one's curriculum vitae with the object of making to a law firm or a corporate company at the end of five years is the norm in a national law school.
The students alone cannot be held responsible for this. The system warrants the same. Vice- Chancellors and the administrative bodies are the brand ambassadors of these law schools at the law firms and corporate companies. Thus, it is not surprising that there is a mass flow of these graduates to corporate sectors.
The already slender percentage of students taking up law practice is thinning further and this is not a welcome trend. The Bar as well as the Bench have also contributed to this phenomenon. The meagre amount that a young law graduate gets while practising with a lawyer naturally drives him to better avenues. The Judiciary has failed to imbibe into itself the best of the national law school graduates. Poor human resource management in the judiciary has been a reason for the long pendency of cases. Had there been a direct recruitment of national law school graduates into the bench there would have been changes towards positive.
A single entity cannot be blamed for the failure of the national law schools. Everyone has contributed their bit. So a comprehensive plan is needed to reform the legal education mechanism in India. Some solid suggestions on this regard would be:
National judicial academy and other state judicial academies should recruit from national law schools directly to take the best of these law schools directly into the judiciary.
Even though the new generation law schools have attracted more students to law field, most of the law graduates end up choosing jobs in corporate sectors and law firms as they are more lucrative. The problem is that opting for practicing in a court does not fetch money. So, like every other profession, a method should be evolved so as to pay a fixed salary to practicing lawyers too so that it becomes a preferable field. Due to financial constraints, even those law graduates interested in social work prefer corporate sector solely due to the fact that the former is less lucrative.
Senior law students should be allowed to appear in Courts and argue cases.
I do very well acknowledge the fact that these suggestions are not comprehensive and my attempt here is only to start a good debate and invite more suggestions on this regard. I would highly appreciate any kind of constructive criticism on this regard. Please do post your comments so that we can come up with more meaningful and comprehensive suggestions. Views expressed in this write up are purely personal.
In the second part of this write up, i will be including various peoples opinion on this and also all the suggestions will be compiled.
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