The word habeas corpus
literally means to have a body. A writ of habeas
corpus is in the nature of an order upon the person who has detained another to
produce the latter before the court, in order to let the court know on what
ground he has been confined and set him free if there is no legal justification
for the imprisonment.
The writ was regarded in England as a foundation of human freedom and British
citizen insisted upon this privilege wherever he went whether for business or
colonization. This is how it founded a place in the constitution of the United
States when the British colonies in America won their independence and
established a new state under the U.S. Constitution. In India the power to issue
a writ of habeas corpus is vested only in the Supreme Court and the High Court.
Habeas corpus is the writ which was visualized as an effective means to
provide a quick remedy to a person who has lost his personal liberty without any
legal justification. Therefore, it cannot be used for complaining against past
illegal detention. But the Supreme Court in India has expanded its dimension and
compensation is being paid not only for past illegal detention but also for loss
of life. Initially, the state was asked to pay special cost to the prisoner.
This happened in Rudul Shah v. state of Bihar.
But now the payments are ordered
to be given as compensation. This is probably done for the reason that in a
regular civil suit for damages for false imprisonment, the state may
successfully put the defence of Sovereign immunity.
Detention should not contravene Article 22, as for example, a person who is
not produced before a magistrate within 24 hours of his detention is entitled to
be released. The power of detention vested in an authority, if exceeded, abused
or exercised mala fide makes the detention unlawful. Article 21 of the
Constitution having declared that no person shall be deprived of life and
liberty except in accordance with the procedure established by law, a machinery
was needed to examine the question of illegal detention with utmost promptitude.
The writ of habeas corpus has been described as a writ of right is grantable ex debito justitae
When physical restraint is put upon a person under a law there is no right to
habeas corpus unless the law is unconstitutional or the order is ultra vires the
When Habeas Corpus May Lie
The writ of habeas corpus is available as a remedy in all cases of wrongful
deprivation of personal liberty. It is a process for securing the liberty of the
subjects by affording an effective means of immediate release from unlawful or
unjustifiable detention, whether in prison or in private custody. The
Constitution confers ample powers on the Supreme Court and all High Courts in
the matter of issue of a writ of habeas corpus.
The right to move the Supreme
Court under Article 32 for the enforcement of fundamental rights is itself a
fundamental right, while the right to move a High Court under Article 226,
though not a fundamental right, is still a constitutional right.
When Habeas Corpus Does Not Lie
In the following cases, a writ of habeas corpus will not lie and will be
refused by a court:
- Where the person or authority against whom habeas corpus is sought is not within
the territorial jurisdiction of the court;
- Where imprisonment or detention of a person is in accordance with a decision
rendered by a court of law or by an authority in accordance with law;
Whether Writ Lies In National Emergency
A National Emergency made be declared under Article 352 of the Constitution.
Prior to 1978, i.e. before the 44th Amendment, the president could suspend and
fundamental right including the right of personal liberty (Article 21).
Article 21, was so suspended, it was held in Addl. District Magistrate, Jabalpur
, that an order of preventive detention could not be challenged even if
it violated the parent Act (i.e, the Act relating to preventive detention). The
44th Amendment, 1978, has provided that Article 21, relating to personal liberty
cannot be suspended even during an emergency. In this way personal liberty has
been strengthened and the writ of habeas corpus retains its potency even during
Nisi means Unless. At the first hearing of an application for a writ of
habeas corpus, if the court is prima facie satisfied that the prayer deserves to
be granted, it may issue rule nisi and call upon the person or authority against
whom such writ is sought on a returnable day to show cause as to why rule should
not be made absolute and he prisoner should not be released from detention or
When the topic of whether standard of res judicata applies if there should
arise an occurrence of writ request of habeas corpus, it was held that, So far
as Indian Law is concerned, it is genuinely all around settled that no second
appeal to for a writ of habeas corpus on the same grounds is viable if a prior
appeal is released by the court’.
It is well settled that strict rules of pleadings do not apply to an
application for a writ of habeas corpus. The Supreme Court as also High Court
have consistently shown great anxiety of personal liberty and have never refused
to grant relief to the applicant merely on the ground of imperfect pleading.