Writ of Habeas Corpus and Indian Constitution

Writ of habeas corpus is issued in the form of an order calling upon a person who has detained another person to bring that person before the court to let it know under what authority he has detained that person.

Habeas Corpus is a process by which a person who is confined without legal justification may secure a release from his confinement. It is an effective way of immediate release from unlawful detention, whether in prison or in private custody. For the purpose of this Writ, physical detention is not necessary to constitute detention. Control and custody are sufficient1.

Writ of habeas corpus is in the form of an order issued by the High Court calling upon the person by whom a person is alleged to be kept in confinement to bring such person before the court and to let the court know on what ground the person is confined. However, production of the body of the person alleged to be harmfully detained is not essential before an application for Writ of habeas corpus can be finally heard and disposed of by the Court. Production of the body of a person alleged to be wrongfully detained is ancillary to the main purpose of the Writ in securing the liberty of the subject illegally detained2.

An application for the Writ of habeas corpus can be filed by the person who is in confinement OR any other person on his behalf. However, all such applications shall accompany an affidavit stating the nature and circumstances of the confinement. General procedure is that, if the court considers that aprima facie case for granting the prayer has been made out, it issues a rule nisi calling upon the opposite party to show cause on a day specified, why an order granting the Writ should not be made.

A detention is not prima facie illegal if following conditions are satisfied;

  1. Detention should be in accordance with the procedure established by law3.
  2. It must not infringe any conditions laid down in the Article 22 of the Indian Constitution. Hence, if a person is not produced before the Magistrate within 24 hours of his arrest, he may be released on a Writ of habeas corpus.
  3. Legislature, which enacts the law depriving a man his personal liberty, must be empowered to make that law under Article 246 of the Indian Constitution4.

Writ of habeas corpus lies, if the malafide of the detaining authority is established OR if the detention is malafide and is made for a collateral OR with ulterior purpose5. However, in all these cases, burden of proof lies on the petitioner6. However, a person is not entitled to be released on a petition of habeas corpus, if he could not prove the illegal detention or restraint.

In a case of habeas corpus, if the detaining authority pleads that, detenu has already released, however, if the detenu is traceable and if the release is found to be false, then court may also order for compensation7. No Writ of habeas corpus will lie in regard to a person who is undergoing imprisonment on a sentence of a court in a criminal trial on the ground of the erroneousness of the conviction8.

Writ of habeas corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out. But this does not mean that, the writ cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent to whom the court gives such custody9.

However, a person has no right to present successive applications for habeas corpus to different judges of the same court10. However, a fresh petition under Article 32 would be competent11.

  1. Cox v. Haikes, (1819) 15 AC 506 []
  2. Kanu Sanyal v. District Magistrate, AIR 1973 SC 2684 []
  3. See Article 21, of Indian Constitution []
  4. Distribution of legislative powers []
  5. AK Gopalan v. State of Madras, AIR 1950 SC 27 []
  6. Prabhu Narain Singh v. Superintend, Central Jail, ILR (1961) 1 All 427 []
  7. Postsangbam Ningol Thokchom v. General Officer Commanding, AIR 1997 SC 3534 []
  8. Janardan Reddy v. State of Hyderabad, AIR 1951 SC 217 []
  9. Elizabeth Dinshaw v. Arvind M Dinshaw, AIR 1987 SC 3 []
  10. Ghulam Sarwar v. Union of India, AIR 1967 SC 1335 []
  11. Id. []

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