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Haebus Corpus

The Constitution of India provides powers to the Supreme Court and the High Courts in the form of issuing writs for the 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:

  1. Habeas Corpus
  2. Mandamus
  3. Certiorari
  4. Prohibition
  5. 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 lawful.

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 Privy Council.

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 the crown.

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 i.e. body.

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 liberty forthwith.

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 absolute.

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 waived.

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.

Rule Nisi

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 confinement.

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 Monetary Compensation.

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:
  1. What was the true scope and effect of the Presidential Order issued under Art. 359(1), and]
  2. 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 completely changed.

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 constitution.
The respondents detained under the Maintenance of Internal Security prayed for:
  1. the setting aside of the said order and
  2. 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:

  1. 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.
  2. 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.
  3. An order of release by Habeas Corpus does not per se amount to discharge or acquittal of the prisoner or detention.
  4. 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.
  5. 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 stranger.
  6. A writ of Habeas Corpus is available not only for release from detention by the State but also for release from private detention.

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