The Constitution of India is the fundamental law of the nation which lays
down rules and regulations to safeguard the rights of people and impose
obligations on them. This set of basic principles is considered as the
protection and custodian of the fundamental rights guaranteed to the people.
One such right available to individuals is the right of WRITS. The
constitutional provisions of India are authorized by law. Therefore, the
Judiciary has independent jurisdiction to issue writs in the required matters.
The conception of the writs is to allow instant determination of rights of a
person and to help that individual realize the benefits of his rights.
Article 32 and Article 226 of the Indian Constitution provide the Supreme
Court and the High Court with two separate but parallel provisions of writ
jurisdiction. The Supreme Court by virtue of Article 32 and the High Court by
virtue of Article 226 are empowered to issue such writs. Although, according to
Article 32, the Supreme Court issues writs when the fundamental rights of an
individual are infringed while according to Article 226, the High Court has a
broader jurisdiction to issue a writ for violation of both the legal as well as
Five kinds of writs provided by the Indian Constitution:
- Writ of Habeas Corpus
- Writ of Mandamus
- Writ of Certiorari
- Writ of Prohibition
- Writ of Quo Warranto
Meaning Of The Writ Of Habeas Corpus
Habeas Corpus is the most valuable writ as it determines the right to freedom
and personal liberty. It is derived from a Latin term, meaning “to have a
body.” After an individual is detained, he can appeal to the court for the
issue of Habeas Corpus.
The order from the court to the detaining authority to produce the detained
individual before it is to examine whether the person has been detained legally
or not. If the Court is certain that the individual is unlawfully detained, it
can issue orders for his release. The principle of the writ of Habeas Corpus
assures that a prisoner can be released from illegal detention i.e., detention
without sufficient evidence or cause.
Evolution Of The Writ Of Habeas Corpus
The writ of Habeas Corpus originated in the British Legal System. In the UK, the
writ was considered as the foundation of human freedom and citizens of England
insisted on enjoying this right wherever they went whether for business or
colonization. When the British colonies in the United States gained their
independence and established a new country in accordance with the Constitution
of the United States, this was how the writ established its place in the
Constitution of the United States.
This writ is now acquirable in many countries. Historically, it has always been
a major legal means to protect individual freedom from arbitrary actions by the
state. It has been extended to non-police departments, as in the Queen’s Bench
case of Ex Parte Dorothy Hopkins in 1898, which has recently been used
successfully in India to rescue a woman from a madrasa.
Who Can Apply For The Writ Of Habeas Corpus?
Prerequisites for application of writ of Habeas Corpus
- The person who is unlawfully detained.
- The person who is acquainted with the benefit of the case.
The person who understands the facts and conditions of the case and
voluntarily files for the application of the writ of Habeas Corpus under Article
32 or 226 of the Constitution of India.
The general rule is that the filing for writ of habeas corpus can be done by an
individual who is unlawfully detained. However, in some cases any individual may
petition the court or a judge for the application of the writ on behalf of the
detainee (i.e., a family member or friend). One reason why someone other than
the prisoner is applying for the writ is that the person detained might be held
When Is The Writ Of Habeas Corpus Refused?
In the following situations, the writ of Habeas Corpus will be refused by a
- Where the court has no territorial jurisdiction over the detainer.
- Where the detention of an individual is related to a court order.
- Where the detainee is already released.
- Where the detention of a person has been legalized by the removal of
- Where the competent court rejects the petition based on the merits of
Whether The Writ Of Habeas Corpus Lies During An Emergency?
The writ of Habeas Corpus can be maintained during emergency situations, as
after the 44th Amendment Act, 1978, it was determined that even in emergency
situations, Article 21 related to personal liberty cannot be suspended. In
this way, personal liberty has been strengthened, and the writ of Habeas Corpus
can maintain its power even in emergency situations.
Whether The Doctrine Of Res Judicata Applicable To The Writ Of Habeas Corpus?
When it comes to the unlawful detention of an individual, the doctrine of res
judicata does not apply. In accordance with, Article 32, consecutive petition
for the writ of Habeas Corpus can be brought before the court on new grounds
which were not covered in the earlier petition filed for the same. If the
petition for Habeas Corpus is filed in a forum with independent existence,
independent jurisdiction and authority, it can be upheld.
In the case of Lallubhai Jogibhai Patel v. Union of India and Ors
December 15,1980, the court ruled that if the petition for the writ of Habeas
Corpus was filed for the same reasons as the first one, the second Habeas Corpus
petition could not be upheld.
Preventive Detention is the imprisonment or detention of an individual to avert
him from committing any type of crime in the future. It is not an act of
penalty or punishment inflicted on a person but a preventive method. The concept
of preventive detention and writ of Habeas Corpus go hand in hand. Article
22 stipulates the procedure of preventive detention and requires strict
compliance with the law.
Parliament has the power to enact laws for preventive detention for various
reasons, such as:
- Diplomatic relations or foreign affairs of the nation
- To maintain public order
- Aim to bring security to the nation
Nonetheless, such detention can be supervised through judicial review by
inspecting its prerequisites.
Nisi means “Unless
”. In the initial hearing for the application of the
writ of Habeas Corpus, if the court is prima facie contented that the writ must
be granted, it may issue rule nisi and call the detainer against whom such writ
is sought to show the reasons as to why the rule should not be absolute, and why
the detainee should not be released from the detention or imprisonment.
Sunil Batra v. Delhi Administration
In this case, the court held that the petition for the writ of Habeas Corpus can
be filed in the court, not only for the purpose of unlawfully or illegally
imprisoning the offender, but also to protect him from any form of abuse and
discrimination by the detainer responsible for his confinement. In this way, a
petition for illegal detention can be made and the source of the detention can
Kanu Sanyal v. District Magistrate Darjeeling & Ors.
In this case, the court held that the facts and circumstances of the case should
be followed, rather than following the traditional method of producing the body
before the court, one should focus entirely on the legitimacy of the detention.
The case focused primarily on the nature and scope of the case, noting that the
writ is procedural rather than substantive.
Additional district Magistrate of Jabalpur v. Shiv Kant Shukla
This case is also called the “Habeas Corpus Case.
” The entire case
revolved around the situation of a state of emergency and raised the question of
whether the writ of Habeas Corpus is sustainable in this situation or not. In
the case of Liversidge v. Anderson, during emergency all the rights were held
suspended, the same was held in this case where a nation has the authority to
restrict the rights, especially the Right to life preserved under Article 21 of
the Indian constitution in a situation of emergency. This decision of the
Supreme Court is perhaps considered its most infamous judgement.
Habeas corpus is the most important writ available to an individual as it
enables him to determine his personal liberty. It is a remedy that can ensure
the release of a detainee from unlawful confinement. However, it does not exempt
any person from his liability. It requires detention to be justified and
protects the detainee from any form of abuse and discrimination. In this way,
the judiciary is using this writ so effectively to ensure personal safety from
- The Constitution of India, 1950, Art. 32
- The Constitution of India, 1950, Art. 226.
- The Constitution of India, 1950, Art. 21.
- Lallubhai Jogibhai Patel v. Union of India and Ors, 1981 AIR 728.
- The Constitution of India, 1950, Art. 22.
- Sunil Batra v. Delhi Administration, 1980 AIR 1579.
- Kanu Sanyal v. District Magistrate Darjeeling & Ors, 1974 AIR 510.
- Additional district Magistrate of Jabalpur v. Shiv Kant Shukla, 1976 AIR
Written by: Radhika Jhanwar
- Suryansh Singh, The Writ of Habeas Corpus, Ipleaders (June 18,
- M. Sumi Arnica, Habeas Corpus, Legal Service India (last visited May 24,
- anu Kapoor, Analysis of Types of Writs under Constitution of India:
Landmark Cases By: Tanu Kapoor, Latest Laws (March 7, 2020), https://www.latestlaws.com/articles/analysis-of-types-of-writs-under-constitution-of-india-landmark-cases-by-tanu-kapoor/