Writ of Habeus Corpus
by Soumyadip Sarkar
Habeas Corpus which literally means “to produce the body”, is a protection against illegal and
arbitrary detention of a person. The petitions for habeas corpus determine whether the individual has
been arrested according to the procedure established by law.
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.
This writ can be filled by any person on behalf of person detained or by the detained person himself.
It is a judicial order issued by Supreme Court or High Court through which a person confined may
secure his release. The writ of Habeas Corpus can be filed by any person on behalf of the other
person.
According to Article 32 (3) of the Indian Constitution, the parliament may provide other courts legal
authority to exercise their jurisdiction on a local level. The right granted by Article 32 shall not be
suspended until and until provided for by the constitution, according to Article 32 (4) of the Indian
Constitution.
Article 226, empowers the high courts to issue, to any person or authority, including the
government (in appropriate cases), directions, orders or writs for enforcement of any of the
fundamental rights conferred by part III(fundamental rights) of the Constitution or for any other
purpose.
Importance :
The writ of habeas corpus primarily acts as a writ of enquiry.
It is a check on the governmental powers to curtail the liberty
of a person.
Moreover, if sufficient legal grounds of arrest are missing, the
court will order the immediate release of the individual.
As a fundamental instrument for safeguarding an individual’s
freedom against arbitrary and lawless state action, the writ of
habeas corpus serves as a procedural device, by which
executive, judicial, or other governmental restraints on
personal liberty are subjected to judicial scrutiny.
.
The writ of habeas corpus can be availed in the following cases:
For the enforcement of fundamental rights; the right to personal
liberty is a fundamental right by virtue of Article 21. Hence if
the executive arrests or detains a person without the authority of
law or in contravention of the procedure established by law, the
High Court or the Supreme Court will order the release of the
individual from detention by virtue of a writ of Habeas Corpus.
The writ can also be issued where the imprisonment or
detention is ultra vires to the statute that authorises such arrest
or detention. This principle has been invoked and implemented
in the case of Keshav v. Commissioner of Police.
The writ of Habeas corpus cannot however be invoked and implemented in
the following cases:
Where the person against whom the writ is issued or the person who is
detained is not within the jurisdiction of the Court.
In Janardhan v. State, the apex court also stated that the writ does not lie to
secure the release of a person who has been imprisoned by a court of law
on a criminal charge.
This writ cannot also be issued to interfere with a proceeding of contempt
by a court of record or by the Parliament.
When Article 21 was suspended, it was held in Addl. District Magistrate,
Jabalpur v. Shukla, 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 Supreme Court has expanded the dimension of this writ and now the Court awards
compensation not only for past illegal detentions but also for loss of life as was done in the case of
Rudul Shah v. State of Bihar. In this case, Rudul Sah was arrested in 1953 on charges of murdering
his wife. He was acquitted by an Additional Sessions Judge, in 1968, who directed his release from
jail, pending further orders.
The issues raised were-
Whether a person is entitled to compensation for illegal detention under Article 32 of the
Constitution?
Whether the right to compensation for the infringement of fundamental rights comes under the ambit
of Article 21 of the Constitution?
The Court granted the petition, ruling that the petitioner's incarceration in prison following his
acquittal was completely unlawful.
Case : ADM Jabalpur v Shivkant
Shukla
Facts:
Indira Gandhi was disqualified from running for office for the following six
years after Justice Sinha accused her of engaging in electoral fraud when the
Ahmedabad High Court disputed her victory in the Lok Sabha. The details of
the ADM Jabalpur Case are comprised on the following actions that took
place:Indira Gandhi filed a petition with the Supreme Court, which only issued
a provisional stay; as a result, on June 26, 1975, she declared an emergency
throughout the nation.
Political opponents such as A.B. Vajpayee and Morarji Desai were detained
without being given a hearing under the Maintenance of Internal Security Act
(MISA), which they successfully contested in the High Courts.To silence the
High Courts, the administration once more petitioned the Supreme Court.
Issues raised:
Maintainability of any writ petition under Article 226 for
the issuance of a writ of Habeas Corpus, to ensure personal
liberty, on the ground that the order of detention is not
valid according to the provisions of the Maintenance of
Internal Security Act, 1971 (also known as MISA) read
with the orders issued by the President under Article
359(1).
If yes, then what is the extent of judicial scrutiny with
respect to the aforesaid mentioned Presidential orders?
Judgement:
The judgment of the ADM Jabalpur Case was
originally made by the majority bench of judges,
who concluded that-
As soon as the Emergency ended, the stance of
the Supreme Court changed against the Habeas
Corpus case.
The majority of judges were accused guilty of
abetting the State apparatus.
In the 2017 Right to Privacy Case (Puttaswamy
Case), the Supreme Court overturned the ADM
Jabalpur Case.
The nine Judge Bench in this case unanimously
reaffirmed the right to privacy as a fundamental right
under the Constitution of India. The Court held that
the right to privacy was integral to freedoms
guaranteed across fundamental rights, and was an
intrinsic aspect of dignity, autonomy and liberty.
Thank You
