IT is sad to think of the lives and liberties of human beings figuring as an enduring item on the agenda of talks between India and Pakistan; unresolved and virtually neglected. Some have been languishing in prisons as under-trials; some, after conviction; and some because they were caught in ‘suspicious’ circumstances. Consular access is not granted always.

In particular, the fate of two prisoners Dr Khalil Chishty in India and Sarabjit Singh in Pakistan has been the subject of sharp criticism by civil libertarians in both countries.

There are two ways of resolving such matters — diplomatic and legal. For instance, on Feb 26, Pakistani Interior Minister Rehman Malik and his UAE counterpart Sheikh Saif Bin Zayed Al Nayhan signed an agreement on the transfer of prisoners. Even in the worst days of the Cold War the United States and the Soviet Union swapped spies. Doubtless, some members of the second oldest profession also figure on the lists of prisoners held by both sides. They are of no use either to their hosts or their minders.

If prisoners are exchanged, convicts can well serve out their sentence in their own country and the rest can live what remains of their lives in freedom. One item on the agenda of the talks will be erased. Evidently the sensible course does not commend itself to the parties. But the courts and the citizens are not powerless. In both countries, lay citizens, civil liberties activists and lawyers committed to the espousal of human rights have raised their voice in defence of such prisoners; very many of whom are in prison for no apparent reason. Since diplomatic avenues are clogged, they can knock at the doors of their respective courts which are increasingly sensitive to human rights and to the plight of prisoners.

Article 199 (1) (b) (i) of the Pakistani constitution empowers the high courts to issue writs of habeas corpus. So can the Supreme Court, under Article 184 (3), “if it considers that a question of public importance” is involved. It indubitably is in the case of these prisoners. Articles 32 and 226 of the Indian constitution empower, respectively, the Supreme Court and the high courts to issue writs of habeas corpus.

The potency of this ancient remedy is little realised, despite its historic achievements. It arrived in India in 1773 in the Supreme Court at Calcutta and was first issued in 1775 by the chief justice, Sir Elijah Impey, against Governor-General Warren Hastings.

When the governor of Bombay refused to enforce writs for the production of two Indian prisoners, the chief justice of the Supreme Court of Bombay, Sir Peter Grant, declared, on April 1, 1829, that the court had ceased to function and its doors would be closed. They were opened only after the Privy Council ruled in favour of the governor. Throughout British rule counsel of eminence moved the high courts against victims of the Raj.

After Independence, the record of courts in both countries has been an uneven one. Both drew on some English rulings which had ceased to be good law even in the country of their origin.

Particularly baleful was the impact of the ruling by a majority of the House of Lords in the historic case of Liversidge vs. Anderson in 1942. Shorn of legalese the issue turned on the words, if the detaining authority “has reasonable cause to believe” that a person or his conduct is such as to warrant his detention. Does this imply that a reasonable cause in fact exists, or that the detaining authority believes that it exists? Is the test an objective or a subjective one? The majority ruled it was a subjective one. The ruling, known as the House of Lords’ contribution to the war effort is discredited in the UK.

Lord Atkin alone dissented and did so in language which earned him immortal fame. He attacked his brother judges as well as the attorney general. “I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive-minded than the executive….

“In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

“In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I. I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.”

Atkin ruled that it is “one of the pillars of liberty” in law that “every imprisonment is prima facie unlawful and that it is for the person directing the imprisonment to justify his act”. This is of crucial importance. The onus of proof of legality of the imprisonment is entirely on the state.

The European Court of Human Rights, whose rulings are cited in our courts, held that to the state’s reply the detainee can challenge not merely the legality of the detention, but also the merits of the grounds of detention; on facts as well as on law. In 1983 in a case concerning a person of South Asian origin, Lord Scarman rejected the view that habeas corpus was not available to foreigners. “Every person within the jurisdiction enjoys the equal protection of our laws.”

Lawyers have their task cut before them — move their respective supreme courts in a petition filed in the public interest for a writ of habeas corpus calling upon the governments of India and Pakistan to show cause why the detainees from their neighbouring country should not be set free and, relatedly, for the details concerning their status and situation, individually. The public has a right to know.

The writer is an author and a lawyer based in Mumbai.