is Latin for. you (should) have, the body (person). A Writ of
Habeas Corpus [which literally means to produce the body is a Court
Order demanding that a Public Official (such as a Warden) deliver an imprisoned
individual to the Court and show a valid reason for that persons detention.
Habeas Corpus, an ancient common-law writ, issued by
a Court or Judge directing one who holds another in custody to produce the
person before the Court for some specified purpose. Although there have been and
are many varieties of the Writs, the most important is that used to correct
violations of personal liberty by directing judicial inquiry into the legality
of a detention.
The Habeas Corpus remedy is recognized in the countries of the
Anglo-American legal system but is generally not found in civil-law countries,
although some of the latter have adopted comparable procedures.
The origins of the writ cannot be stated with certainty. Before the Magna Carta (1215)
a variety of writs performed some of the functions of Habeas Corpus. During
the Middle Ages Habeas Corpus was employed to bring cases from inferior
tribunals into the King’s Courts. The modern history of the writ as a device for
the protection of personal liberty against Official Authority may be said to
date from the reign of Henry VII (1485–1509), when efforts were made to employ
it on behalf of persons imprisoned by the Privy Council. By the reign of Charles
I, in the 17th century, the writ was fully established as the appropriate
process for checking the illegal imprisonment of people by inferior Courts or
Many of the procedures that made for effective assertion of these rights were
provided by the Habeas Corpus Act of 1679, which authorized Judges to issue the
writ when Courts were on vacation and provided severe penalties for any Judge
who refused to comply with it. Its use was expanded during the 19th century to
cover those held under private authority. In 1960 legislation was enacted
limiting the instances in which Habeas Corpus could be denied and establishing
new lines of appeal.
In the British colonies in North America, by the time of the American
Revolution, the rights to Habeas Corpus were popularly regarded as among the
basic protections of individual liberty. The U. S. Constitution guarantees that
the privilege shall not be suspended, unless when in cases of rebellion or
invasion the public safety may require it (Article I, Section 9, Paragraph 2).
In England such suspension had occurred during the wars with France at the time
of the French Revolution.
In the United States of America, President Abraham
Lincoln suspended the writ by executive proclamation at the outbreak of
the Civil War in 1861. The Presidential act was challenged by Chief Justice
Roger Taney who, in the case of Ex parte Merryman, vigorously contended that the
power of suspension resided only in Congress. Lincoln ignored the Order of the
Court, but the weight of modern opinion appears to support Taney’s view.
Origin of Habeas Corpus in India
In India, the history of this great writ can be studied from 1774 onwards.
Habeas Corpus was introduced in Calcutta by the English colonizers. The power to
issue the writ to the Petitioner came from the English to the select Supreme
Court Judges and they would then proceed with it. This power was not granted to
the entire Court. Therefore, later it was decided that not just the few select
Judges of the Supreme Court but the entire Court is empowered to issue the writ
of Habeas Corpus. After 1774, the writ was sent from the Supreme Court to even
the Mofussil towns. This wide expansion of the court’s authority led to a
conflict between the Government and the Court.
It was decided that the Court could expand its powers to the Mofussils however
the right was limited to subjects of British origin. In 1862, High Courts were
ordered to be established. Three Presidency Courts were established at Fort
William in Bengal, Bombay and Madras and inherited the power to issue the writ
of Habeas Corpus. It was initially incorporated in the Code of Criminal
Indian Constitution and Habeas Corpus
The Constitution of India clearly provides that no person shall be deprived of
his life and personal liberty except according to the procedure established by
Law . It can be invoked through Article. 32 i.e. Constitutional Remedies for any
violation of rights granted under Part III of the Indian Constitution . The
Supreme Court has to decide the relief regarding enforcement of the infringed
Fundamental Right only when it is against the State and not against a private
To move the Supreme Court in case of Violation of Fundamental Rights is a right
in itself. If any act takes away the privilege of applying for Habeas Corpus or
any writ for that matter, then that act would be void. However, in the case of
an emergency, this right can be taken away as was stated in ADM, Jabalpur Vs.
Shukla, AIR 1975 SC 1207 wherein it was forbidden to issue a Writ Petition
in a National Emergency.
Evolution of Habeas Corpus
The writ of Habeas Corpus has seen a lot of trends since its inception in India.
From being largely narrow at the very beginning, its scope as times have passed
has broadened and magnified due to various kinds of writ petitions and a
subsequent variety of Judgments. The Supreme Court has interpreted this writ to
safeguard the liberty of persons under all types of situations. The technical
aspect of law has been subsided by the spirit of law.
Today, it is not the mere production of the body that is the concern of Habeas
Corpus. It is the ensurance of life and liberty that is becoming its crux. The
Habeas Corpus writ is known as the great writ of liberty, as it seeks the
immediate protection of personal liberty from the excesses of State power.
But the orders passed by the Honble Supreme Court of India on August 27, 2019
in two Habeas Corpus Petitions concerning detentions in Kashmir do not reflect
the spirit of the spirit of this glorious writ.
One was a Petition filed by Sitaram Yechury , General Secretary of CPI (M),
challenging detention of his party colleague M. Y. Tarigami , a four time MLA
from Kulgam in the now dissolved J&K Assembly. The second was a Petition by
Mohammad Aleem Syed, a law graduate in Delhi, seeking information regarding
whereabouts of his parents in Anantnag, whom he apprehended to be under
In both these Petitions, the Honble Supreme Court permitted the
Petitioners to travel to Kashmir on Government assistance to meet the detained
persons. These orders have been welcomed with a sigh of relief by proponents of
civil liberties. But one should not get carried away by such small offerings of
liberty to fail to ask the larger question – has the Honble Supreme Court in
these cases done complete justice to its constitutionally assigned role of
protector of fundamental rights?
The prime purpose of this writ is to obtain the production of an individual who
is alleged to be in illegal detention (Habeas corpus literally means produce
the body). It is meant to provide an expeditious and effective remedy against
illegal detention. So, when a writ of Habeas Corpus is sought, it is imperative
that the Court asks the State if there is detention as alleged, and if yes,
whether the detention is made on legal grounds.
Curiously, in both these petitions, the Honble Supreme Court has not cared to
ask the Government these pertinent questions. There was not even a single query
regarding detention and its grounds. The Court did not even issue notice to the
Central Government in the cases. At the same time, as if to maintain the veneer
of a constitutional Court, the Court allowed the Petitioners to travel to
Kashmir to visit the detenus.
In Writ Petition (Criminal) No. 229/2019 titled Sitaram Yechury Vs Union of
India & Anr., the Honble Supreme Court passed following directions:
On due consideration, we permit the petitioner to travel to Jammu & Kashmir
for the aforesaid purpose and for no other purpose.
This permission was conditional on Yechury undertaking not to make the visit
The Order further added:
We make it clear that if the petitioner is found to be indulging in any other
act, omission or commission save and except what has been indicated above i.e.
to meet his friend and colleague party member and to enquire about his welfare
and health condition, it will be construed to be a violation of this Courts
It is baffling how the Court could impose restrictions on Yechurys fundamental
right to travel by saying that it could be for no other purpose.
In Writ Petition (Criminal) No. 225/2019 titled Mohammad Aleem Syed Vs Union
of India, the Honble Supreme Court held:
"The petitioner shall be allowed to travel to Jammu & Kashmir; go to Anantnag;
meet his parents and after ensuring their welfare, to report back to the Court
on the next date fixed."
Thus, in a bizarre turnaround, the Petitioners were sent to the detenus and
asked to report to the Court. By making the exercise of rights conditional on
the permission from the Court, these orders have rewritten the meaning of
fundamental rights. Instead of seeking an affidavit from the Government, the
Honble Supreme Court has chosen to task the Petitioners with the duty of
submitting to the Court reports regarding their visit, a procedure completely
unknown in Habeas Corpus Writ.
As observed by the Honble Supreme Court in Kanu Sanyal Vs District
Magistrate, Darjeeling, 1973 AIR 2684, the most characteristic element of
the habeas corpus writ is its peremptoriness and "the essential and leading
theory of the whole procedure is the immediate determination of the right to the
applicants freedom and his release, if the detention is found to be unlawful.
The whole object of proceedings for a writ of Habeas Corpus is to make them
expeditious, to keep them as free from technicality as possible and to keep them
as simple as possible. The essential purpose of this writ is to swiftly
determine if a persons detention is legal. To ascertain and ensure the
well-being of the detenu is not its sole purpose. It is distressing to watch
that the Apex Court going against the well-established principles of Habeas
India’s tryst with destiny inaugurated a new dawn, with vibrant values wiping
out colonial denial of human rights to the masses. This transformation had to be
reflected in the justice process. To obliterate procedural twists and turns, to
broaden the idea of locus standi to enable the penurious many to exercise their
right of access to judicial justice, to abolish expensive nuances and chaos of
interpretation and to establish free legal aid and public interest litigation -
these were forensic urgencies and jural necessities if the democracy of judicial
remedies were to reach the indigent, illiterate and alienated Indians.
The constitutional revolution, which was the vision of the Founding Fathers, was
entrusted to the judiciary, giving it vast powers to enforce, through ‘writ
power’, the socio-economic liberation implicit in the Fundamental Rights and
other avant-garde provisions of Constitution of India.
The call of the Preamble, with the militant resolve to secure social justice in
its broader dimensions to every Indian, could not be denied or defied too long,
since the antyajas and neglected gender claimed the Constitution of India as
their title deed. These pressures from the proletariat eventually found response
and midwifed what has now become familiar forensic thought in the shape of
judicial activism, public interest litigation and egalitarian jurisprudence.
Judicial activism is the oxygen of the Rule of Law and the Rule of Life. It is
obscurantist retreat from constitutional obligation for a Court to blink or wink
at social justice issues brought to its notice by any citizen, be he the
humblest or the highest, basing his title to rights conferred by the
Constitution of India, but deprived by the executive.
Judicial activism comes in for criticism at the time on the ground that judicial
populism is leading the Judges to usurp the power, which legitimately belonged
to Parliament. It is true the Judges do not legislate but their judgements serve
to give meaning and content to the fundamental rights enshrined in our
It remains the sacred duty of the Courts to secure the fundamental
liberties of the citizens against arbitrary exercise of power but Judges must
know their jurisdictional limits and activism should not mean invading the
exclusive legislative and executive domains. judicial activism does not
become judicial adventurism.
Writ of Habeas Corpus is the fundamental instrument for safeguarding individual
freedom against the arbitrary and lawless State actions. As is rightly quoted by
Pascal in Pensees Justice without force is impotent force without justice is
Has the Honble Supreme Court in these cases done complete justice to its
constitutionally assigned role of protector of fundamental rights? It needs to
be said that in these cases the Honble Supreme Court failed in its role as the
sentinel on the qui vive of civil liberties.
Written by: Dinesh Singh Chauhan, Advocate - J&K High Court of
Email: [email protected], [email protected]