The Constitution of India provides powers to the
Supreme Court and the High Courts in the form of issuing writs
enforcement of the Fundamental Rights conferred on the citizens by the
Constitution under the Part-3 under Article 32 and 226.
Basically and majorly there are 5 types of writs:
- Habeas Corpus
- Quo- warranto
Amongst all the five writs, the most ancient common law and very widely used
writ is the writ of Habeas Corpus. This writ is issued by a court or a judge
which directs an individual who holds another person in custody to produce the
person before the court for some specified purpose.
Habeas corpus in the medieval Latin means "we, a Court, command that you may
have the body (of the detainee brought before us) is a recourse in law through
which a person can report an unlawful detention or imprisonment to a court and
request that the court order the custodian of the person, usually a prison
official, to bring the prisoner to court, to determine whether the detention is
There are several numbers of writs issued by a court, but what is most important
that writs should be used to create a check on the violations of personal
liberty of a person by directing a judicial inquiry into the legality of a
detention. And Habeas Corpus is considered to be a remedy by the many countries
but is generally not found in civil-law countries although some of them would
have adopted comparable procedures.
When looking back at the origin of the writ,
before magna carta
a lot of writs had already been into existence which were
quite similar to Habeas Corpus
in a way hat they performed the similar
functions. Looking at the Middle Ages, this writ was also into use for bringing
in the cases from the inferior tribunals into the Higher tribunals or courts
i.e. the King's court.
The modern history of the writ as a tool for the protection of personal liberty
against superior authorities maybe said to have existing from the reign of Henry
VII, when efforts were made to employ it on behalf of persons imprisoned by the
After the coming of Charles I, the writ was fully established as it lays down
the procedure for checking the illegal imprisonment of people by inferior courts
or public officials.
So it can be said that the writ of Habeas Corpus was formerly originated in
England and issue appropriate writ was always considered to be a prerogative of
One of such important prerogative writs originated in England is known as the
writ of Habeas Corpus.
Working of the writ:
When a public official arrests or keeps into detention
an individual, then the court may call that official and instruct him to provide
a valid reason for that person's detention. This order or instruction of the
court can be given by issuing the writ of Habeas Corpus
which literally means produce the corpus
The major reason behind court calling for the person in detention and officials
giving a valid reason behind such a person so detained is to ensure that the
reason behind that person detained is that he was observed or is alleged to have
done an act which is forbidden by the law.
The procedure provides a means for prison inmates, or others acting on their
behalf, to dispute the legal basis for confinement. Habeas corpus has deep roots
in English common law.
In a lot of matters, court holds a hearing on the matter, during which the
inmate and the government can present evidence about lawful jailing of a person.
Thereafter, depending on the evidence, the court may grant relief to such a
person detained like:
- Releasing the person from detention,
- Reduction in his sentence,
- Order halting illegal conditions of confinement,
- Declaring rights of the person.
In a Criminal case, defendant is always given an option to appeal a conviction
or sentence to a higher court, where the judgement given by the Lower Court can
be reviewed. While, Habeas Corpus gives a separate view for challenging
imprisonment, and is normally used after direct appeal has failed.
It is basically the last option available to the people in detention who claim
that their rights are infringed.
The writ of Habeas Corpus provides a prompt and effective remedy against illegal
restraints. The principal aim is to provide for a swift judicial review of
alleged unlawful detention.
As Lord Wright states, the incalculable value of habeas corpus is that it
enables the immediate determination of the right of the appellant's freedom. If
the court comes to a conclusion that there is no legal justification for the
imprisonment of the person then the court will pass an order to set him at
Thus, the object of habeas corpus is to release a person from illegal detention
and not to punish the detaining authority.
Who may apply for the exercise of the writ?
An application of applying the writ of Habeas Corpus may be made by a person who
is under detention, legally.
And in case if that person himself cannot make the application or is unable to d
so, then it can be made by another person who has an interest in the prisoner.
For example- the wife, husband, father, mother, sister or a friend may in such a
circumstance make an application for the writ of Habeas Corpus.
Against whom the writ lies?
A writ of Habeas Corpus lies or is issued against any person or authority who
has illegally detained or arrested the prisoner.
Which means that, if any public official or authority has arrested a person on a
mere reason that appears not to be legal or valid by the court, then the writ of
Habeas Corpus can be issued against such an official.
Every application for the writ of Habeas Corpus must be accompanied by an
affidavit stating the facts and circumstances leading to the making of such an
application. If the court is satisfied that there is a prima facie case for
granting the prayer, it will issue a rule miss calling upon the detaining
authority on a specified day to show cause as to why the rule should not be made
On the specified day the court will consider the merits of the case and will
pass an appropriate order. If the court is of the opinion that the detention was
not justified, it will issue the writ and direct the detaining authority to
release the prisoner forthwith.
On the other hand, if the detention was justified to the court, the rule will be
discharged. Where there is no return to the rule, the prisoner's interim bail
pending disposal of a petition, thrugh normally, it should not be granted.
In exceptional circumstances, a petition is maintainable even if the person is
not actually detained. Such exercise however, can be undertaken by a writ-court
with extreme care, caution and circumspection.
Delay by itself in applying for a writ of habeas corpus does not disentitle the
petitioner for the relief. The right of personal liberty is one of the
fundamental rights guaranteed in Part- III of the Constitution and will not be
Moreover, a wrongful detention or arrest of a person is a continuous wrong and
the injury subsists till it is remedied. A petition for a writ of Habeas Corpus,
therefore, cannot be dismissed on the grounds of Delay.
When may be refused:
Since the object of the writ of Habeas Corpus is remedial and not punishable in
nature, the legality of the detention must be decided by the court with
reference to the date of return of the rule and not with reform on the date of
such application made. Thus, the writ would not be issued if at the time of rule
nisi, the prisoner was not illegally detained, even though at the time of the
detention the order was illegal.
Similarly, during the pendency of the petition for the writ of Habeas Corpus the
petition is released, it will become in fructuous.
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
Duty of the State:
Whenever an action of detaining or arresting any individual is challenged, it is
the duty of the State to place before the court all relevant and material facts
leading to the impugned action truly, faithfully and with fairness.
Duty of Court:
The liberty of an individual is the most cherished of Human freedoms and in
cases of Grave emergencies, judges have played a historic role in guarding that
freedom with zeal and jealously. Where allegations are made that a person is in
illegal custody, it is the duty of the court to safeguard his freedom against
any encroachment on her life or liberty.
The duty of the court is to strike a balance between the need to protect
community on the one hand and the necessity to preserve the liberty of a citizen
on the other.
A writ of Habeas Corpus issued by the Supreme Court or by a High Court must be
obeyed by thr person to whom it is being issued. A wilful interference by the
person to whom it is issued would amount to contempt of court and would be
punishable with attachment of property and even imprisonment.
While exercising powers under Article 32 of the Constitution, a writ-court will
not award compensation. In appropriate cases, however, the court may award
monetary compensation to the person who has been illegally arrested or detained.
Article 21 which guarantees the Right to life and liberty will be downgraded of
its significance if the power of the court were limited to passing orders of
release from that illegal detention.One of the telling ways in which the
violation of that right can reasonably be prevented and due compliance which the
mandate of Article 21 secured, is to punish its violators in the payment of
Habeas Corpus and Proclamation of Emergency
Article 359 of the constitution empowers the President to suspend the right to
move to the curt for the enforcement of such of the Fundamental Rights conferred
by Part III of the Constitution.
The appellants were detained under r. 30(l) of the Defence of India Rules made
by the Central Government under s. 3 of the Defence of India Ordinance, 1962.
They applied to the Punjab and Bombay High Courts under s. 491(1)(b) of the Code
of Criminal Procedure and their case was that sec. 3(2)(15)(i) and 40 of
the Defence of India Act, 1962, and r.
30(1)(b) of the Defence of India Rules, which were continued under the Act, were
unconstitutional and invalid inasmuch as they contravened their fundamental
rights under Art. 14, 21, 22(4), (5) and (7) of the Constitution and
that, therefore, they should be set at liberty.
The High Court held that the Presidential Order which had been issued on
November 3, 1962, under Art. 359(1) of the Constitution, after a declaration
of emergency under Art. 352, consequent
on the Chinese invasion of India, barred their right to move the said petitions
and dismissed them.
These appeals raised two common questions in this Court:
- What was the true scope and effect of the Presidential Order
issued under Art.
- Did the bar created by the Order operate in respect of the
applications under s. 491(1)(b) of the Code.
Hence, the Supreme Court held that the court cannot issue a writ of Habeas
Corpus to et at liberty a person who has been detained under the Defence of
India Act, 1962 even if his detention was inconsistent with his constitutional
rights guaranteed under Part III of Constitution if Presidential Order
suspending fundamental rights under Article 14, 21 and 32 is in operation.
But the presidential order does not debar the jurisdiction of the court to
decide as to whether the order of detention was under Defence of India Act or
rules made there under.
It is open to the petitioner to contend that the order was mala fide or invalid
and in either of cases, he Is entitled to move the court for protection of his
rights under Article 21 and 32 of the constitution.
Then came the landmark case Additional District Magistrate
Jabalpur Vs. Shiva Kant Shukla
, the importance and application of the writ of Habeas Corpus
In this case, the President of India, in pursuance of the powers given to him
under Article 352 of the Constitution. Proclaimed Emergency
in the country
dated December 23, 1971 because of danger to the national security of India
threatened by External Aggression.
Later the President also took down the right to move to the court with respect
to the orders of detention which have already been made or which may be made
thereafter the proclamation of emergency for the enforcement of rights conferred
by Article 14, 21 and clauses (4), (5), (6) and (7) of the Article 22 of the
The respondents detained under the Maintenance of Internal Security prayed for:
- the setting aside of the said order and
- for directing their release forthwith.
In some cases, they challenged the validity of the Thirty-eight and
thirty-ninth constitution Amendment Acts.
Fortunately, after the Constitution 44h amendment act, 1978, right conferred by
Articles 20 and 21of the Constitution cannot be suspended even during emergency.
Article 226 of the Constitution is not meant for futile and unenforceable
declarations of right. The whole purpose of a writ of habeas corpus is to
enforce a right to personal freedom after the declaration of the detention as
illegal when it is so found upon investigation. Enforceability of rights,
whether. they are constitutional or common law or statutory, in constitutionally
prescribed ways by constitutionally appointed judicial organs is governed solely
by the terms of the written instrument in n Constitution such as ours.
The scope for judicial law making on the subject of enforcement of the right to
personal freedom was deliberately restricted by our Constitution makers. It is
difficult to see any such scope when enforcement itself is suspended.
From such a leading decision, a lot of principles emerged regarding the writ
of Habeas Corpus:
- A writ of Habeas Corpus is a remedial writ, which can be used in all
cases of wrongful deprivation of individual freedom and personal liberty.
- It, however cannot be employed to impeach or otherwise challenge the
correctness or propriety of a decision rendered by a court of competent
jurisdiction unless the decision is void or without jurisdiction.
- An order of release by Habeas Corpus does not per se amount to discharge
or acquittal of the prisoner or detention.
- Since a writ of Habeas Corpus is not punitive in nature, it cannot be
utilised as an instrument of punishment of one who has wrongfully arrested
or detained another person or parted with his custody.
- A prisoner or detained person himself or his relative or his friend or
any other person interested in the prisoner or detained person can move the
court for a writ of Habeas Corpus. He should not, however, be a total
- A writ of Habeas Corpus is available not only for release from detention
by the State but also for release from private detention.