The purpose of this paper is to critically analyse the historical background
of the writ, its scope, and remedies available to the citizens. The paper also
analyses the Habeas Corpus case i.e., ADM Jabalpur vs Shiv Kant Shukla
background of the case, the question of law involved, arguments by petitioner
and respondent, judgment, and dissenting judge's opinion.
The evolution of this writ has been discussed under three headings i.e.,
Historical Background, Post-Independence, and Post ADM Jabalpur. The gradual
broadening of this writ has been analysed using 7 landmark cases in legal
history. The paper also sums up a comparative analysis of the Right to life and
liberty and Habeas Corpus in India, the United States, and the United Kingdom.
Lastly, the paper concludes with a few recommendations.
In simple terms, Habeas corpus is an ancient common-law writ court order
instructing the person in custody to produce the person before the court for
some specified purpose. The "Great Writ" of habeas corpus is a fundamental
constitutional right providing and safeguarding citizens against unlawful,
unauthorized, and indeterminate imprisonment or confinement. It is taken from
Latin translating "show me the body."
Habeas corpus has since time immemorial been a significant legal mechanism for
ensuring and safeguarding an individual's liberty from arbitrary and unlawful
executive power. The right to file a habeas corpus motion has long been honoured
as the most powerful procedure for safeguarding an individual's right to life
and liberty when unlawfully taken into custody or detained. The British Habeas
Corpus Acts, according to the jurist Albert Venn Dicey, "declare no principle
and define no rights, but they are for practical purposes worth a hundred
constitutional articles guaranteeing individual liberty."
The habeas corpus petition is one of the "unique", "unprecedented", "common
law", or "right and privilege writs" that were traditionally awarded by the
British courts in the official title of the emperor to constrain the authority
of subordinate courts and legislate public authorities within the empire. The
Indian judiciary has successfully and safely issued the writ of habeas corpus to
grant a person's release from wrongful imprisonment in a slew of cases.
Analysis Of Adm Jabalpur
This declaration of emergency was not made on the spur of the moment. It all
started when the Allahabad High Court heard a case challenging Indira Gandhi's
election to the Lok Sabha. Justice Sinha subsequently declared her guilty of
participating in fraudulent activity, annulled her election, and disqualified
her from running in future elections for the next six years.
Indira Gandhi was only given a conditional stay when she appealed to the Supreme
Court. She made the decision to invoke the Constitution and declare an emergency
in order to regain her authority. In 1975, President Fakhruddin Ali declared a
National Emergency under Article 352 of the Indian Constitution as a result of
domestic unrest, on the advice of the country's then-Prime Minister Indira
Gandhi. The Fundamental Rights under Articles 14, 20, and 22 of the Constitution
were suspended by a Presidential Order under Article 359(1) during emergency.
Numerous political figures who were a potential political threat were detained
without being put on trial. A number of petitions were submitted to several High
Courts around the nation, and those courts issued decisions in the petitioners'
favour. As a result, Central government approached the Supreme court.
- The maintainability of petition under Article 226 for the issuance of a
writ of habeas corpus to protect individual liberty on the grounds that the
detention order is invalid in light of the Maintenance of Internal Security
Act of 1971 (also known as MISA) read in conjunction with the orders issued
by the President under Article 359 (1).
- If so, how rigorously are the aforementioned Presidential orders being
scrutinized by the courts?
The state argued that because declaring an emergency is essential in difficult
circumstances, its primary goal was to provide the executive additional,
unprecedented powers so that it could maintain total control over the nation's
law and order.
Furthermore, it was argued that when someone is detained, the decision to keep
them in detention cannot be cannot be contested on the grounds that there aren't
compelling reasons for the same. A person loses their right to Article 19 of the
Constitution when an emergency is declared. In addition to that, if they are
detained in violation of Article 22 of the Constitution, their detention cannot
be challenged since the option to file a petition in the court is closed during
the situation of an emergency.
It was decided that the restriction of such a right was carried out in
accordance with the President's order and that it could not, therefore, be
questioned. A Presidential Order issued according to Article 359 is carried out
in unique circumstances. As a result, the court lacks the authority to entertain
such matters and question the rationale behind the same.
According to the respondents, main goal of Article 359 was to prevent the
legislature from passing laws when an emergency was declared. There is a
restriction in the article on seeking the enforcement of specific rights in the
Apex Court. However, there is no restriction against seeking the enforcement of
statutorily guaranteed rights to personal liberty under Article 226 in the
Indian High Courts.
It was contended that this presidential order violated the concept of natural
law as well as other underlying fundamental legal foundations. When a
legislation on preventive detention is established, the practise must adhere to
the rules outlined by the law.
It was further stated that not all rights are fundamental rights but rather
statutory or natural rights, which are unaffected by presidential order and
cannot be removed, and that Article 21 is not the only defender of the right to
life and personal liberty. Furthermore, it was argued that if the state
established a law authorising detention, such detention should be directly
covered by the act. If the requirements aren't met, it would be beyond the Act's
With a 4:1 majority, the decision was upheld. Since a petition for a writ of
habeas corpus implies the enforcement of the Right to Life and Personal Liberty
under Article 21, which is restricted by the Presidential Order, the Court ruled
that no one can petition the High Court for any writ to enforce any fundamental
According to such assertion, nobody has the right to file a writ petition with
the High Court to enforce any fundamental right. The court ruled that those with
fundamental rights protected by the constitution shouldn't be accessible during
an emergency. According to the presidential order, all rights are void and
Furthermore, it held all court process shall remain suspended during the
emergency and that no citizen of the nation will be able to move the High court
for a writ of habeas corpus if the Presidential Order prohibited to do so.
To justify the suspension of Fundamental Rights the Court said, "In period of
public danger or apprehension the protective law which gives every man security
and confidence in times of tranquillity has to give way to interests of the
Justice Khanna gave the sole dissenting judgment in this case. Only Justice
Khanna dissented from the majority opinion in this case. According to him, "No
one shall be deprived of his life or liberty without the approval of law, which
was not a gift of the Constitution." The Constitution previously existed and was
in existence prior to its implementation. Even in the absence of Article 21 of
the constitution, no one may be deprived of their life or freedom.
He maintained that even if it occurred without the proper legal authority or in
blatant violation of the law, there would be no redress available if the right
to execute Article 21 was suspended.
Evolution Of The Writ
The history of this unprecedented writ dates back to 1774, when English
colonizers first implemented it to India in Calcutta. Sir Elijah Impey, the then
Chief Justice of Calcutta, issued its first in the case of Rex vs. Warren
Hastings. The British established three Presidency courts in Fort William
Bengal, Bombay, and Madras Presidencies in 1862. The jurisdictional power of
these courts to grant writs was fully integrated into the Criminal Procedure
Code in 1872.
The Constitution of India explicitly provides in Article 21, that "no person
shall be deprived of his life and personal liberty except according to the
procedure established by the law". This has been taken from Article XXXI of the
Japanese Constitution, 1946, and Article 40 of the Irish Constitution. The
remedies are available under 'Constitutional Remedies' through Article 32 i.e.,
Remedies available for any violation of fundamental rights. To move to the
Supreme Court for the enforcement of a Fundamental Right or in case of violation
of a Fundamental right is a right in itself.
During the Emergency (1975-1977), the High Court's liberally interpreted this
writ, unfortunately, the Supreme Court in the most notably infamous case of ADM
Jabalpur suspended the right to issue a writ petition during the time of the
Post ADM Jabalpur
Since the ADM Jabalpur judgement, the writ of Habeas Corpus has undergone a
significant transformation. The Emergency itself resulted in numerous human
rights infringements. Natural rights, such as the right to life and liberty, are
inalienable rights inherent in humans and remain independent of the
Constitution's governing text. The text of the Constitution certainly lends to
the protection of these rights and merely provides an extension to the natural
If a person's right to life and liberty is infringed during a case of emergency,
there is no legal mechanism to uphold and enforce the rights. Even against
unwarranted deprivation of life and liberty, there would be no legal recourse.
This is neither prescribed nor was the commitment of the nation's constitution
makers to protect the rights. Article 21 is not just inspired from the common
law framework of countries, but also from natural inalienable rights and
statutory laws that have long been in application in India.
From being strictly inferred in the initial stages, its scope, impact, and
implementation have evolved over time. Because of the significant number of writ
petitions filed and resulting judgments, the term has been liberally
interpreted. In a series of cases, the Supreme Court has brushed aside the
technicalities of the habeas corpus and protected the spirit of the writ.
It is now a legal remedy and sanction to safeguard and protect life and liberty
in order to live with basic human dignity. A few cases discussed below will
analyse the gradual evolution and transformation of Habeas Corpus through a
critical analysis of the factors catalysing the same.
- The legality of detention can be questioned without requiring the
person detained to be produced before it.
The appellant in Kanu Sanyal vs District Magistrate had an
association with Naxalite group who was taken into custody in Darjeeling's
Central Jail. He could only be tried before a special magistrate in
Visakhapatnam due to substantive jurisdictional issues. As a result, he
filed a lawsuit alleging infringement of fundamental rights under Article
It was held that a writ of Habeas Corpus cannot be granted when the
confinement is legal, authorized, essential, and purposeful and follows the
requisite procedural rules. It was also determined that the courts have the
jurisdiction to hear "Rule Nissi," which states that "show cause." Courts
can hear pleas even if the person seeking habeas corpus is not present.
The actual translation of "produce before the court" is "produce the body,"
but the clause is not stringently understood, and appearance before a court
of law is always ancillary to the principal objective of safeguarding and
ensuring the right to life and liberty through Habeas Corpus.
- Writ petitions in the form of letters.
The claimant in Sunil Batra vs Delhi Administration was an inmate at
Tihar Jail in Delhi whose fellow inmate was brutally tortured for cash. In
one such particular instance, the claimant decided to submit a letter to the
judge complaining about the horrific and systematic abusive treatment of the
prisoners by the prison authorities. This letter was then turned into a
petition for habeas corpus.
This case stands out in the legal history of landmark supreme court
decisions because it stated that fundamental rights do not cease to apply
for people imprisoned in jails and other judicial custodies for even the
most heinous crimes. It was necessary at the time to broaden the scope of
the writ to include the detainees still imprisoned, as they are also Indian
Converting a letter to a writ petition greatly expanded the possibilities
for new writ applications. One such case was SP Gupta vs Union of India, in
which it was declared that changes are taking place and that in order to
safeguard and ensure justice for people who are poor or come from a low
financial economic status, new procedures to benefit the people who have
confronted the brunt of human rights violations and legal wrongs must be
developed and evolved, and thus, writ petitions in the form of letters were
also welcomed by the courts.
- Compensation for past illegal detention and loss of life
In the case of Neelabati Bahera vs the State of Orissa, the
petitioner's son was arrested and detained by the police for an offense of
theft in the bank. The next day his body was found on a railway track and
the police claimed that he had managed to escape the prison late in the
Petitioner claimed that the police authorities were involved in the death of
her son and in a letter to the supreme court, asked for compensation for her
son's death. The court converted the letter into a habeas corpus petition
and found that he was subjected to brutality and it was a custodial death.
Thus, the habeas corpus petition was entertained and the Supreme court
expanded the writ's dimension by allowing compensation not only for past
illegal detention but also for loss of life.
- Relaxing the locus standi principle
Locus standi means the right to stand or appear before a court in a lawsuit.
In the case of Sheela Barse vs the State of Maharashtra, the
petitioner was a journalist and addressed a letter to the Supreme Court of
India about the low quality and ill-treatment of women in prison lockups.
Her letter was treated as a petition under the Constitutional Remedies.
The court entertained the petition and while relaxing the principle of Locus
Standi, the apex court held that even though the Petitioner did not have any
locus standi to approach the Court under article 32 if the detained
prisoners are unable to pray for a writ of Habeas Corpus directly from the
court, someone else concerned about the same issue even if not related, can
pray for such a writ on his or her behalf.
- Delay in consideration or disposal of representation, if not
explained- the detention will be quashed.
In the case of Ummu Sabeena vs the State of Kerala, an order of
detention was served under COFEPOSA (Conservation of Foreign Exchange and
Prevention of Smuggling Activities) to all the detenus on 10th March 2022 on
whose behalf habeas corpus writ petitions were filed before the High Court.
Representations filed on behalf of detenus were not considered as mandated
by Article 22(5) of the constitution.
The government took two months to reject the representations filed by them
and delayed them without any explanation. The Supreme Court held that the
representations should have been expeditiously rejected or considered
without any unnecessary delay. If there is an unexplained delay, then this
shows clear slackness or callous attitude on part of the government while
the fundamental right of the detenus is being violated.
This unexplained delay would amount to illegal and impermissible continued
detention. Thus, the habeas corpus petition was upheld along with procedural
safeguards for the protection of personal liberty.
- Court has inherent jurisdiction to hear habeas corpus matters related
to child custody
Recently, in the case of Rajeshwari Chandrasekhar vs State of Tamil Nadu,
the petitioner who has a child out of wedlock filed a suit for habeas corpus
against the father to produce the minor child before the court and deliver
the custody to the petitioner.
The court held that there is an inherent power of the Supreme court to
entertain such suits independent of any statute and therein the primary
objective of this writ is to ascertain what is in the best interest and
protection available to a child. The court then directed the government to
trace her minor children and deliver the custody to the petitioner.
In the United States, no person's life and liberty can be deprived without
following the due process of law, in India on the other hand the life and
personal liberty can be taken away only according to the procedure established
The UK has the Habeas corpus Act, 1679, which is still in force to ensure that
no one can be imprisoned unlawfully.
Petition to the Supreme Court is a fundamental right in India, whereas in the
US, it is the government that is petitioned (in case of the US, the word
"government" has a wider connotation and encompasses not only the executive, but
also the higher judiciary)
One similarity among all the jurisdictions is that habeas corpus is issued
against arbitrary and unlawful action by the executive, judicial, or other
In the United States, writ of habeas corpus is a civil proceeding and not a
criminal proceeding. The civil proceeding is to determine the legitimacy of a
prisoner's custody. While in India, the proceedings for a writ of habeas corpus
are criminal proceedings as declared in the case of Ram Kumar Pearay Lal vs
In the United States, the compensation for past illegal detention can only be
paid within 2 years of release. It is barred by limitations and the compensation
is fixed. In India, the compensation is fixed by the courts depending on the
facts, circumstances, and gravity of each case.
In the United States, citizens' liberty can't be waived off unless it is through
a legal process. In India, it can be suspended if it is proven that the
procedure has been followed as mandated by the law.
Like it has already been explained in the above scenarios, Habeas Corpus writ is
a significant addition to the constitution and the framers of the constitution
had this in mind while incorporating different articles. It is not just a mere
proceeding to remove the illegality of a detention but it is ensuring the
citizens with their basic fundamental right to live with dignity and liberty in
the society, confirming to the natural rights.
From protecting and safeguarding the rights of criminals to ensuring justice to
people from even low economic background, Supreme Court has evolved to interpret
the term liberally, foregoing many stringent literal interpretations. Thus,
Habeas Corpus has evolved to rescue all the petitioners praying for justice by
incorporating different circumstances of illegal detention and fundamental right
violation on the hands of state authorities.
From ADM Jabalpur to Rajeshwari Chandrashekar, Supreme Court while interpreting
the writ has seen highs and lows. However, the writ has progressed a long way
from its inception days to promise, ensure justice and safeguard the rights of
the citizens. Supreme Court has truly become the guardian of unassailable
fundamental rights of the citizens in India.
- People should be made aware about their rights, nature, and scope of
this writ so as to prevent misuse of the writ and to ensure a legal
mechanism if there is any legal wrong.
- Courts should interpret the writ liberally with special consideration to
the principles of equity, reason, and justice.
- Kanu Sanyal vs District Magistrate, AIR 1973 SCR 621