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The concept of writ essentially originated
in England & to issue appropriate writ was always considered to be a prerogative
of the crown. One of such important prerogative writs originated in England is
known as the writ of habeas corpus.
The writ of habeas corpus has always been
looked upon as an effective means to ensure release of the detained person from
the prison. It must be emphasized that the primary purpose of the writ is & was
to inquire into the legality of the detention .However, even when writ of habeas
corpus is issued, it does not automatically exonerate the detained person from
liability. It merely ensures his release from the prison & it does not have any
bearing on his guilt or otherwise.
This writ has been frequently used in a
number of cases by various courts. For instance, in Sommersetts case 2, writ of
habeas corpus was issued to secure the release of slaves from an illegal
detention. In Ex.P. Daisy Hopkins3, writ of habeas corpus was used
to release a
young lady who had been detained by the Vice Chancellor of Cambridge University
to a local prison known as the Spinning House for walking in the streets with a
member of the University. Therefore writ of habeas corpus goes a long way in
providing an effective remedy in case of unjustified detention by the
detaining
authority.
The Indian judiciary in a catena of cases
has effectively resorted to the writ of habeas corpus mainly in order to secure
release of a person from illegal detention. Personal liberty has always been
considered a cherished value in India & the writ of habeas corpus protects that
personal liberty in case of illegal arrest or detention. As personal liberty is
so important, the judiciary has dispensed with the traditional doctrine of locus standi. Hence if a detained person is not in a position to file a petition, it
can be moved on his behalf by any other person. The judiciary while going one
step further, has also dispensed with strict rules of pleadings. The increasing
scope of writ of habeas corpus may be explained with the help of following cases
decided by the Indian judiciary.
In Kanu Sanyal v. District Magistrate4,
while enunciating the real scope of writ of habeas corpus, the Supreme Court
opined that while dealing with a petition for writ of habeas corpus,
the court
may examine the legality of the detention without requiring the person detained
to be produced before it.
In Sheela Barse v. State of Maharashtra5,
while relaxing the traditional doctrine of locus standi, the apex court held
that if the detained person is unable to pray for the writ of habeas corpus, someone else
may pray for such writ on his behalf.
In Nilabati Behera v. State of Orissa6, the Orissa police took away the son of the petitioner for the purposes of
interrogation & he could not be traced. During the pendency of the petition, his
dead body was found on railway track The petitioner was awarded compensation of Rs. 1, 50, 000.
In Malkiat Singh v. State of U.P 7, the son
of a person was allegedly kept in illegal custody by the police officers. It was
established that the son was killed in an encounter with the police. The court
awarded Rs. 5,00,000 as compensation to the petitioner.
Conclusion: In this manner, writ of habeas
corpus has been used effectively by the judiciary for protecting personal
liberty by securing the release of a person from illegal custody
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End Notes:
1.R.F.V.Heuston, Essays In Constitutional Law, Universal, 2nd Edn. (1999), p.108
2 (1772) 20 St.Tr.1
3 (1891) 61 L.J.Q.B. 240
4 AIR 1973 SC 2684.
5 AIR 1983 SC 378
6 AIR 1993 SC 1960
7 AIR 1999 SC 1522
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author can be reached at:
vijayoak@legalserviceindia.com
