TABLE OF CONTENT

Page No.
Acknowledgement i
List of Cases. v
Table of Statutes ix
List of Abbreviations. x
Abstract xi

CHAPTER –I: INTRODUCTION 1-23

1.1 Introduction 1
1.2 The writ of Habeas Corpus has some nature they are 4
1.3 When the Writ of Habeas Corpus can be granted 5
1.4 The writ has many forms 7
1.5 Objectives of the study 7
1.6 Identification of Research Question 8
1.7 Research Methodology 8
1.8 Sources and data collection 8
1.9 Significance of the study 9
1.10 Hypothesis 9
1.11 Review of Literature 9
1.12 Scheme of the Study 22

CHAPTER-II: HISTORICAL EVOLUTION OF WRIT OF HABEAS

CORPUS IN U.K. AND INDIA. 24-64
2.1 Introduction 24
2.2 Historical Evolution Of Writ Of Habeas Corpus In U.K. 25
2.3 Different forms of the Writ of Habeas Corpus 26
2.4 What Is Prerogative Writ? 28
2.5.1.1 Writ of Habeas Corpus in Pre-Constitutional period 32
2.6 Writ Of Habeas Corpus In India In The Post Constitution Period 52
2.7 Object, Nature And Scope Of habeas Corpus 56
2.8 Conclusion 63

ii
CHAPTER-III: GENERAL PRINCIPLES AND PROCEDURE OF WRIT
OF HABEAS CORPUS 65-101

CHAPTER-IV: JUDICIAL DEVELOPMENT OF HABEAS CORPUS AND

LEGAL REMEDIES AVAILABLE TO THE DETENUES.102-122
4.1 Introduction 102
4.2 Judicial Development of Writ of Habeas Corpus in U.K. 103
4.3 Application for Writ of Habeas Corpus 105
4.4 Habeas Corpus ad Testificandum and ad Respondendum 107
4.5 Court’s discretion not to refuse Habeas Corpus 107
4.6 Judicial development of writ of Habeas Corpus in India 107
4.7 Territorial Jurisdictions 109
4.8 Territorial Jurisdiction of Supreme Court: 110
4.9 Territorial Jurisdiction of High Court 110
4.10 Power of the Court to go beyond order of the Executive 110
4.11 Judicial Development of Habeas Corpus- analysis through case laws 111
4.12 Legal Remedies available to the Detenu 118
4.13 Need for guarantee of right for redress in case of violation of substantive
right 120
4.14 Remedies provided under the Constitution of India 121
4.15 Conclusion 122

CHAPTER-V: WRIT OF HABEAS CORPUS AND PREVENTIVE

DETENTION LAWS 123-145
5.1 Introduction 123
5.2 Meaning of Preventive Detention 124
5.3 Nature of Preventive Detention 124
5.4 Objectives of Preventive Detention Laws 124
5.5 Power of Parliament to enact laws 125
5.6 Strict Construction of Statute 126
5.7 Salient Features of Article 22 127
5.8 Writ Remedy 128
5.9 Subjective Satisfaction 131
5.10 Grounds for Release 134
5.11 Other Grounds of Challenge 136
iii
5.12 Communication of Grounds 137
5.13 Scope of Judicial Review 138
5.14 Cases other than Preventive Detention 139
5.15 Validation Order of Detention 141
5.16 Fresh Order of Detention 141
5.17 Habeas Corpus prior to Arrest 141
5.18 Conclusion 143

CHAPTER –VI: WRIT OF HABEAS CORPUS DURING EMERGENCY

PROVISIONS 146-162
6.1 Introduction 146
6.2 Emergency powers and writ of Habeas Corpus in U.K. 147
6.3 Emergency power and Writ of Habeas Corpus in India 148
6.4 Conclusion 161

CHAPTER –VII: CONCLUSION, FINDINGS & SUGGESTIONS 163-180

7.1 Introduction 163
7.2 Testing of Hypothesis 173
7.3 Answer to the Research question 175
Findings 178
Suggestions 179
Recommendation 179

BIBLIOGRAPHY 181-182

ARTICLES REVIEWED 183

WEBSITES 184

iv
 LIST OF CASES.
1. A.D. Jabalpur V. Shivakanth Shukla, AIR (1975) SC 1207
2. Altor confrman and other V Government of Bombay( 1894) 18 Bom-636.
3. Amulya Ranjan V Manoranjan AIR (1955) Thripura 1.
4. Additional Secretary to the Government of India V Alka Subhas Gadia (1990)
(2) SC ALE 1352.
5. AlamkhanV Emporer , AIR (1948) Lal 133.
6. A.K. Gopalan V Government of India , AIR (1966) SC 816.
7. A.K. Roy V Union of India (1982) SCC 271.
8. Amir Khan Re (1870) 6 Benj. L.R 459.
9. Abdul Rahman Badar Wahi V. State of J.K (1970) SCC 489.
10. Atchutan V Gopalan (1956) SC 531.
11. Bambordo V Ford (1892) AC 326,
12. B.R. Roa V State of Orissa AIR (1971) SC 2197.
13. Ballamal V Hardwarimal AIR(1924) Lahore, 570
14. Bhumsingh V State of J.K AIR (1986) SC 494.
15. Bhupal Chandra V Arif Ali AIR (1974) SC 255.
16. Basanth Chandra V Emperor AIR(1945) FC 18.
17. C.F. Haridas Avadia V King Emperor ILR (1948) Nag
18. C.W Goulter V Emperor AIR (1935) Sind 244.
19. Cox V Hakes (1890) 15 AC 506.
20. Collector of Malabar V Ibrahim AIR(1957) SC 688.
21. D.K. Basu V State of West Bengal SCC (1997).
22. D.A. Khan V State of West Bengal AIR (1976) SC 734.
23. Dusat Chandra Majumdar V State West Bengal AIR (1974) SC 156.
24. Emperor V Channapa Shantrappa (1930) 50 Bom.
25. Election Commissioner V Saulter Venkateshwara AIR (1953) SC 210.
26. Eugenia Archethi Abdullah V State of Kerala (2001) RCR, Cr.l.j 259.
27. Ekanth Laxman Chudhari V Superintendent Central Jail, Tihar (1978) Cr.L.J,
39.
28. Frank V Magnum (1915).
29. Green V Secretary of State (1942).
30. Giani Bakshish Singh V Government of India (1973) SCC 688.
31. Gohar V Suggi AIR (1960) SC 93.
v
32. Habi Ram V State , AIR (1952) Assam 192.
33. Hardhan Saha V State of W.B (1973) SCC 198.
34. Ikram V State of U.P AIR (1964) SC 1625.
35. Indira Gandhi V Raj Narain, (1975) SC 2299.
36. Jogan Nath Biswas V State of W.B. (1975) SCC 115.
37. Jayantilal V State of Maharastra (1981) Bom LR 190.
38. Jaichan Lal V State of W.B. AIR 91967) SC 483.
39. Kanu Snyal V District Magistrate, AIR 1973 SCR 621.
40. K.M. Sunitha V Smt Shyam Kali AIR (1982) All 1.
41. Keshav Singh V Speaker Legislative Assembly AIR (1965) All 349.
42. Kalyani V State of U.P (1978)Cr.l.j 1003.
43. Kuldeep Sighu V Chanan Singh and other AIR (1989) P and H 103.
44. Khudhiram Das V State of W.B. (1975) SCC 81.
45. Kanchanlal Maneklal Chokshi V State of Gujarath, (1979)SCC 14.\
46. Kanu Basuwar V State of W.B. AIR(1972) SC 1653.
47. Kirn Pasha V Government of A .P.91990) SCC 328.
48. Liversidge V Ander (1942) AC 20 C.
49. Mohiuddin V District Magistrate ,AIR (1987) SC 1977.
50. Maidari V jaward ,(1934)All 271.
51. Mahavir V Emperor ARR (1948) Bom 326.
52. M.C. Mehta V Union of India, AIR (1989) SC 1086.
53. Motilal V State of Bihar AIR (1968) SC 1303.
54. Manjit Singh Sethi V Maharastra Assembly, AIR 2006 P 3430.
55. Manjit Kaur V State of Punjab AIR (2001) SCC 734.
56. Massod Alam V Union of India, (1973) SCC 551.
57. Makhan Singh V State of Punjab AIR (1964) SC 381.
58. Mukarjee V Union of India AIR (1970) S.C 852.
59. Mohd. Umar V Thakurprasad Tiwari, AIR (1955), 200.
60. Mohan Chowdhara V Chief Commisioner Tripura . AIR (1964) SC 173.
61. Mathew V District Magistrate, Trivandrum, AIR (1939) PC 213.
62. NNC Ongbi Devi V. Rishang Keshing 1982.
63. Niza mudin V. State of W.B., AIR (1975) SCC 395.
64. Nibarendu Dutt V A.E. Porter ,AIR (1945)Cal 107 P 593.
65. Niranjan Singh V State of M.P ,(1972)SCC 542.
vi
66. Prema Lata Sharma V District Magistrate Mathura and other, (1998) SCC (4)
260.
67. Phillippa Anne Duke V State of Tamil Nadu ,(1982) SCC 389.
68. Purshottam V Desai ,AIR (1950) SC 20.
69. Ramkumar V District Magistrate , AIR (1951) Bom P25.
70. Ranjith Singh V State of Pepsu
71. Ram Narain V State of Delhi, AIR (1953) SC 277.
72. Rakesh Koushik V B.L Vig (1980) SCC 183.
73. R.V. Earl of Crewe (1910) KB 576.
74. Rajbuhadur V Legal Remembrance, AIR (1953) Cal 522.
75. R V Clarke (1762) Burr 1363 ER 875.
76. RamBabu Saksena V The State , AIR (1950) SC 155.
77. Ranjith Kumar V Secretary IPA Society , AIR (1963) Cal 261.
78. Raghunandan V Province of Bihar , AIR (1949),
79. Ranjit V Crown, ARR (1949) EP 67.
80. Rudul Sah V State of Bihar, AIR (1983) SC 1086.
81. R.V Governor of Briston Prison (1992) All ER 579.
82. R.V Home Secretary (1991) WLR 890.
83. R.V Secretary of State of the Home Department (1991) WLR 44.
84. Rameshwar Lal V State of Bihar, AIR (1968) SC 1303.
85. Ranjit Dam V State of W.B. (1975) SCC 516.
86. Re Madhu Lemaye, AIR (1969) SC 1014.
87. R.V Halliday (1917) AC 260.
88. Ram Manohar Lohia V State of Bihar, AIR (196) SC 740.
89. Shibnath V Porter ,AIR (1943) Cal 337.
90. State of Bombay V Atma Ram, AIR (1951) SC 157.
91. Shambhu Nath Sarkar V State of W.B. (1973), SC 856.
92. Selvraj V State, (2018) 22June.
93. Serious Fraud Investigation Officer V Rahul modi and another etc. (2019) Crl
No. 94-95.
94. Sunil Batra V Delhi Administration, AIR (1980) SC 1579.
95. S.P. Gupra V. Union of India, AIR (1982) SC 149.
96. Sampawia, Deputy Commissioner, Aijal , (1970) 2 SCC 399.
97. Sind High Court in Hoshang V Emperor, AIR (1936) Sind 146.
vii
98. Subbaswami Goundn V Kamakshi Ammal, AIR (1929) Mad 843.
99. S.M.D Kiranpasa V Government of A.P (1990) (1) SCC 328.
100. Vedprakash V Statye of Gujrath, AIR (1987) Guj 253.
101. Vijay Narain V State of Bihar, (1984) SCC 14.
102. Vinodh Kimar V State of U.P and others, AIR (2001) SCC 734.
103. Vidhavaruna V Shivanarayan, AIR (1956) S.C.P. 108.
104. Whirl pool Corpuration V Registrar of Trade Marks Mumbai and others,
(1998) SCC(8).
105. Zamir Ahmad V Gangaprasad, AIR (1963), All 4.

viii
 TABLE OF STATUTES

1. Bombay Public Safety measures Act 1947.

2. Criminal Procedure Code, 1973 .
3. Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974.
4. Detention of Terrorism (Northern Ireland ) Order 1972.
5. Ireland and Nothern Ireland Act 1973.
6. Indian Penal Code, 1860.
7. Indian Evidence Act, 1872.
8. Madras Maintenance of Public Order Act, 1947.
9. Maintenance of Internal Security Act, 1971
10. National Security Act, 1980.
11.Preventive Detention Act, 1950.

ix
 LIST OF ABBRIVIATIONS.
Art : Article
AIR : All India Reporter
Bom : Bombay
C.J. : Chief Justice
COFEPOSA : Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act.
Cr.p.c : Code of Criminal Procedure
Cr.L.J : Criminal Law Journal
CAL : Calcutta
Edn. : Edition
H.C. : High Court
H.C. : Habeas Corpus
H.C.A : Habeas Corpus Act 1640
H.R : Human Right
ID : Ibid
ILR : Indian Law Reporter
J : Judge
J.K : Jammu Kashmir
L : Lord
M.P : Madya Pradesh
NSA : National Security Act
PC : Privy Council
PD : Preventive Detention
SC : Supreme Court
SCC : Supreme Court Cases
SCCR ; Supreme Court cases and Reprts
UOI : Union of India
USA : United States of Amerika
U.K. : United kingdom
Vol : Volume
WB : West Benga

x
 ABSTRACT
The Constitution of India clearly provides that no person shall be deprived of
his life and personal liberty except according to the procedure established by law. If it
is violated by any person or group then person whose right has been violated has
every right to challenge before the court of law for the purpose of protecting their
right. For this purpose it is a judicial order, issued by a government official to compel
another person typically another government official, to bring forth the body of a
person, usually a detainee, for the purpose of testing the legitimacy of that person’s
detention. Therefore the writ of habeas corpus is a measure of liberalizing a person
whose detention is not lawful.

The prerogative writ of habeas corpus ad subjicendum is the most renowned

contribution of the English Common Law to the protection of human liberty. The writ
of habeas corpus is one of the most ancient writs known to the Common Law of
England. It is a writ of immemorial antiquity and the first threads of its origin are
woven deeply within the “seamless web of history and they are concealed and perhaps
untraceable among countless incidents that constituted the total historical pattern.
Earlier during the twelfth and thirteen centuries the writ of habeas corpus was used as
a command by the Court to someone to bring before itself the body of a person whose
presence was required for the purpose of a judicial proceedings. Pursuant to the writ,
parties were brought before the Court, whether the parties were free or in detention.

There can be doubt that personal liberty is a precious right. The liberty of an
individual has to be subordinated within reasonable bounds to the good of the people.
The Founding Fathers of the Constitution were conscious of the practical need of
preventive detention with a view to striking a just and delicate balance between need
and necessity to preserve individual liberty and personal freedom on the one hand and
security and safety of the country and interest of the society on the other hand.

Security of State, maintenance of public order and services essential to the

community and also demands effective safeguards in the larger interests of sustenance
of peaceful democratic way of life.

In India the Constitution of India under Article 359 empowers the President to
suspend to move the Court for the enforcement of any of the fundamental rights
conferred by the part III of the Constitution in case of proclamation of Emergency

xi
only after approval of Parliament. The Presidential order comes into force. In that
order has to specify the period of the emergency.

Emergency is a situation that is failure of Constitutional machinery in the state

that is breakdown of law and order situation or internal disturbance or waging a war
or external aggression. In that conditions President can proclaim the emergency and
then he can temporarily suspend the right to move a court for the enforcement of any
of fundamental rights to make state strong to face that situation for security of the
nation.

Article 359 empowers the president to suspend the right to move a court for
the enforcement of any of the fundamental rights conferred by part III of the
Constitution. The president has to specify the same in his order and limit it to the
period of the emergency or to a shorter period. This order is, however, subject to the
approval of parliament, which may revoke or conceal it. The President’s order is to be
placed before each House of Parliament but no time limit is fixed for this. The rights
suspended may be all or any, in respect of the whole or any part of the Country
affected by the proclamation. The word ‘as soon as may be’ enjoins the president not
to delay unduly the laying of the order before Parliament. ‘As soon as may be’
connotes as early as is reasonable and feasible.

With this background this present research work comprises of Seven Chapters:

Chapter- One: Introduction.

Chapter – Two: Historical background of Habeas Corpus in India and U.K.

Chapter- Three : General principles and procedure of Habeas Corpus.

Chapter- Four : Judicial Development of Habeas Corpus and Legal remedies

Available to the Detinues.

Chapter – Five: Writ of Habeas Corpus and Preventive Detention Law.

Chapter - Six : Writ of Habeas Corpus during Emergency Provision.

Chapter – Seven: Conclusion and Suggestion.

The overall study of my research work revolves around protection of personal

liberty of individuals in relation to preventive detention laws and Habeas Corpus the
research work also trace back to history behind preventive detention laws in India and
U.K. the origin and evolution of writ of habeas corpus in U.K. and India.
xii
 CHAPTER -I
INTRODUCTION
 CHAPTER -I

INTRODUCTION

1.1 Introduction:

In the evolution of human civilization, the organization of political society

can be considered as a great event since this led to forcing the devices for protecting
the life and liberty of its maker and also a product of urge of man to lead a dignified
life. Adequate ensurement of personal liberty enables man to lead a dignified life.
Fundamental Rights are the most important rights than any other legal rights.
Therefore in almost all countries in the world they are recognized in the written or
unwritten constitution as “Bill of Rights”, ‘Civil Liberties’ or ‘Fundamental Rights, to
protect the individual from the illegal wrongs done by the administrative authorities.
Enjoyment of all civil and political rights and achievement of social happiness depend
upon adequate protection of fundamental right and liberties of the subjects.

The Anglo Saxon contribution appears in the Shape of Royal Charters which
were used to express the King’s commands or whishes.Writ in law is a species of
formal order from the Crown or a delegated officer to an inferior officer or to a
private person doing some act or omission. The word repress the Latin brevis or
breve. 1

The writ in English Law still occupies a very important position. In the
“Corpus Juris”, work generally connoted a noted book or list. The introduction of
Roman Law sometimes represents the writ of English Law. Breve passed into the
Liber in a sense differing from that at present born by the writ of English Law. The
origin of the writ is disputed, but its development was clearly by both Anglo Saxon
and Norman Law before the conquest.

For the purpose of safeguarding personal liberty of the individual certain

effective legal remedies have been innovated in civilized political system. The great
writ of habeas corpus is one among such devices remedying the encroachment of
personal liberty of the subjects. The writ of habeas corpus ordering the release of
persons unlawfully detained by the authority after examining the legal justification for
detention is one of the most important constitutional remedy.
1
. Sir Percy Henry Winfield. “writ” Encyclopedia Britannica Ltd. Vol. 23.P 809.

1
 The recognition of writ of habeas corpus as a matter of right and a safeguard
of human liberty may be traced to Article 39 of “Magna Carta” which reads as
follows;

Article 39: “ no free man shall be arrested or imprisoned or disseised or outlawed or

exiled or in any way victimized, neither will we attack him or send any one to attack
him, except by the lawful judgment of his peers or by the law of the land”.2

However, mere conferment of fundamental rights in the constitution itself does

not protect these rights. There is a need for an agency to enforce those Rights by the
individual. Therefore the judiciary is considered as the guardian of the fundamental
rights. Thus the judiciary is the competent authority to decide any constitutional
matter as legal or illegal one.

The constitution of India confers wide power to the judiciary regarding

fundamental Rights particularly the power of the Supreme Court under Article 32, and
the power of the High Court under Article 226 for protecting the liberties of the
individual. It means, any individual can approach for violation of his fundamental
rights. The protection conferred to the individual under the provisions of the
constitution itself is fundamental rights and it cannot be barred by state because of its
importance.

Under Article 32 & 226, the Supreme Court and the High Court have the
power to issue.

5 Prerogative Writs.Viz.,

 Writ of Habeas Corpus.

 Writ of Mandamus.

 Writ of Prohibition.

 Writ of Certiorari.

 Writ of Certiorari.

2
Green V. Secretary of State(1942) ( referred by Lord Wright. “ A translation of words of Magna Carta
quoted above were embodied in the petition of right”) A.C.254 at 301.

2
 for the enforcement of any fundamental right. However, the High Court under
Article 226 can issue writ for any other purposes in addition to the enforcement of
fundamental rights.3

The writ of Habeas Corpus is one of the most important writs in which the
liberty of the individual can be protected most effectively when compared to any other
writ.

The History of Habeas Corpus is ancient, its origin can be found in Anglo-
Saxon Common law.

In England Habeas Corpus is of common law origin. But its effectiveness was
secured by the Habeas Corpus Acts of 1640, 1679 and 1816.4 Indian constitution also
recognized the principles of the writ of Habeas Corpus. Because it deals with human
life, which is enshrined in Article 21 of the constitution of India. This writ is required
to be heard and disposed off as expeditiously as possible because a wrongful act of
arrest or detection of a person is a continuous wrong till it is remedies.

The Latin term “Habeas Corpus” means “You must have the body”. Habeas
Corpus, HAY FLUS KAWRPUS is a legal term, which means ‘you are ordered to
have the body’5. This writ is one of the basic guarantees of personal freedom in
English law. It prevents unjust or wrongful imprisonment or detention by legal
authority.

It is not possible to trace the extraordinary remedies like writ of Habeas

Corpus in the ancient and medieval period of Indian history. The basic spirit and ethos
of Indian culture and notions of “Raja Dharma” had held, personal liberty of
individual in the high esteem. The remedy accorded to the victims of wrongful
detention was both punitive and remedial. It is true that, it is with the advent of British
regime that this anglo-saxon remedy was established in the Indian Soil.

The advent of British rule in India brought with it the importance of the
machinery of English administration of Justice.6 The part played by high prerogative

3
.D.D.Basu, Constitutional Remedies and Writs, Kamal Law House,2 nd Edition, (1999), P.21.
4
. Justice.B.P.Banerjee. Writ Remedies with Special Chapter on PIL, Wadhwa and Co. Nagpur,3 rd
Edition, (2002), P.198.
5
.Erwin.N.Griswold, Habeas Corpus The World Book Encyclopedia. Vo.8,1983.
6
. V.G. Ramachandran, Fundamental Rights and Constitutional remedies. Eastern Co. Vol 2, 2 nd
Edition, p. 697.

3
writs in England in securing the liberty of the subject and in protecting the rights and
property was well known to the framers of our Constitution.7

In India it is of statutory origin and was first conferred on the Supreme of

Court of Calcutta in 1774. The writ was therefore imported to India in a finished form
and the common law and statute that governed the issue of the writ in England was
followed in India with alterations necessitated by the special circumstances of the
country. The writ in India has therefore to be defined as of statutory origin but
otherwise in terms of English Law. It is also defined as a statutory remedy by which
the judges of Superior Courts empowered to direct the production of detained
individuals before a judges or court to be dealt with according to law.8

The main purpose for the issue of this writ is “the right to an instant
determination as to the lawfulness of an existing imprisonment” or “immediate
determination of the right of and applicants freedom” or “testing the validity or
legality of the arrest, detention or illegal confinement”.

1.2 The writ of Habeas Corpus has some nature they are,

 The writ of Habeas Corpus is an extraordinary remedy.

 The writ of Habeas Corpus cannot be used to challenge the correctness of a

decision. Rendered by a court of competent jurisdiction.

 This writ can be claimed when accompanied by an affidavit, in which shall be

stated the nature and circumstances of restraint. If detainee is unable to claim
petition, then on behalf of him/her relatives and friends, who are acquainted
with the fact can claim this writ.

During the time of emergency fundamental right guaranteed under Article 20

and 21 is outside from the purview of suspension. Even if it is suspended the
constitution has given the right to the aggrieve ed party to move any court of law, i.e.,
during the time of emergency, writ of Habeas Corpus for the enforcement of the
fundamental rights is guaranteed under these two Articles.

7
. H.M. Seervai, Constitutional Law of India, Bombay N.M. Tripathi Pvt. Ltd. Vol. 2, 2 nd Edition,.P.
751.
8
. Markose, A.T. Judicial Control of Administrative action. Madras Law Journal Office, Madras,
P.111-114.

4
 Delay in applying for the writ of Habeas Corpus may not disentitle the
petitioner for the relief because the right to personal liberty is one of the fundamental
rights guaranteed under part III of the constitution of India which cannot be waived.

A general principle of code of civil procedure, i.e., principles of Res-Judicata

applies to Habeas Corpus proceedings. But on fresh grounds a subsequent petition for
the same relief in maintainable even after the dismissal of the earlier one.

1.3 When the Writ of Habeas Corpus can be granted:

The writ of Habeas Corpus can be granted when a administrative agency or

authority acts.

 Mala Fides

 Belated Order

 Other Grounds i.e,

 If the detention order is not by a competent authority

 The condition precedent for the exercise of power does not exist.

 No-application of mind

 If the grounds are vague, indefinite, irrelevance, non-existent or

state.9

So the court must strike a balance between the need to protect the society on
the one hand and the necessity to safeguard the liberty of the citizen on the other hand.

Article 32 and 226 provides effective and speedy remedies for asserting
fundamental rights against laws.

The prerogative writ of Habeas Corpus ad subjicendum is the most renowned

contribution of England common law to the protection of human liberty.

We can trace the origin of writ of Habeas Corpus in Magna Carta in 1215.
Though it is originated from Magna Carta but its principle effect was achieved in
middle ages. Originally writ of Habeas Corpus was the prerogative of the king and
his courts, later by passage of time habeas corpus has evolved as prerogative writ

9
. V.G.Ramachandran’s Law of Writs. Vol.2, Eastern Book Co., 6 th Edition, (2006), P.1068-1070

5
initiated by the person restrained or some are acting in his interest rather than by king
or his courts.10

Magna Carta expressly refers to writ of Habeas Corpus to quote “no freeman
shall be taken or imprisoned or disseized or exiled or in any way destroyed except by
the lawful judgment of their peers or by the law of the land”.

In 15th and 16th centuries which were mainly jurisdictional issues made
changes of Habeas Corpus from a device not only to secure physical presence of the
party but also were to submit the cause for the imprisonment. The modern” ad
subjiciendum” i.e., to submit the cause to scrutiny took its notion from this time.

In 17th Century the writ of Habeas Corpus was used to test the legality of the
imprisonment. Then Habeas Corpus became the highest remedy in law.

In the earlier usage, the Habeas Corpus was used as an “injunction” to bring
the body before the court, but later the writ of Habeas Corpus evolved in such a way
that, it could cover almost all fundamental rights of individual.

In the Constituent assembly Dr. B.R. Ambedkar said that “Declaration of

fundamental rights is meaningless unless there is an effective machinery for the
enforcement of the rights.”11 In England, even though there is no formal declaration of
rights as fundamental, individual rights are safeguarded by means of the prerogative
writs.

In the Leading case of A.D.M Jabalpur V. ShivkantShukla12 which is

popularly known as Habeas Corpus case, J. Khanna observed that : “The writ of
Habeas Corpus ad Subjuciendum, which is commonly known as the writ of Habeas
Corpus, is a process for securing the liberty of the subject by affording an effective
means of immediate release from unlawful or unjustifiable detention, whether in
prison or private custody. By it the High Court and the judges of that Court, at the
instance of a subject aggrieved, command the production of that subject and inquire
into the cause of his imprisonment. If there is no legal justification for that detention,

10
.AsimPandya, Writs and Other Constitutional Remedies,Lesix Nexis Butterworths, Wadhwa Nagpur,
1st Edition, (2009), P.314.
11
. V.M.V. Pylee, Constitutional Government in India, Leaders Press Ltd, 1 st Edition, (1960). 2nd Rev.
Edn.(1965), P.304
12
.AIR( 1975) SC 1207.

6
the party is ordered to be released. Release in Habeas Corpus is not, however, an
acquittal, nor may the writ be issued as a means of appeal.

1.4 The writ has many forms:- i.e.,

 Writ of Habeas Corpus and Respondendum,

 Habeas Corpus and Satisfiendum,

 Habeas Corpus and prosequendum,

 Habeas Corpus and Testificandum,

 Habeas Corpus and Deliberandum,

 Habeas Corpus and Faciendum,

 Habeas Corpus et Recepiendum,

Frequently known as habeas corpus can cause.

1.5 Objectives of the study:-

The objectives which are involved in this study are,

 To discuss the efficacy of writ of Habeas Corpus.

 To examine the circumstances in which this writ can be issued.

 To test the operation of writ of Habeas Corpus.

 To examine the legal protection of detenue provided in India Law and

U.K.Law.

 To probe into the manner in which the writ of Habeas Corpus is issued.

 To examine the power of the implementing authority.

 To discuss the judicial development of writ of Habeas Corpus.

 To examine protection given to the detenues under Preventive Detention Law

both in India and U.K.

 To discuss the effect of writ of habeas corpus issued during proclamation of

emergency is in operation.

7
1.6 Identification of Research Questions:-

Following are the issues which raised in relation to writ of Habeas Corpus
with special reference to India and U.K. are;

 When the writ of Habeas Corpus can be issued?

 Whether the writ of Habeas Corpus can be issued at any point of time and for
any kind of offence?

 Whether writ of Habeas Corpus can be granted ex parte and without

detention?

 What are the consequences of disobedience of writ of Habeas Corpus?

 What is the role of Habeas Corpus under ordinary law and under Preventive
Detention Law?

 What is the scope of writ of Habeas Corpus during emergency period both in
India and U.K.?

1.7 Research Methodology:

The present research work is based upon doctrinal method. The primary
sources of materials are the rules and regulation, norms, doctrines, concepts etc, on
various provisions relating to the writ of Habeas Corpus. Apart from the above, due
importance has been given to legislation in India, decision of High Courts and
Supreme Court relating to the research topic and research problem. Researcher has
also referred books, journals, and decision of High Court and Supreme Court. The
researcher has also utilized the e-sources. The topic has been analyzed based on the
present scenario, critically evaluated and has been assigned the reason for the same. A
comparative, critical and analytical method are employed for the analysis of writ of
habeas corpus in India and U.K.

1.8 Sources and data collection:

The present research work is carried on the basis of primary and secondary data.

 Statutory laws and regulations, Government Reports, the judicial land mark
decision on the protection of interest of detenues are taken as primary sources
for the study.

8
  Literature on the subject matter, journals, publications, periodicals and various
internet websites are used as a secondary source.

1.9 Significance of the study :-

The importance or the significance of the study is to examine the effect of

order of Writ of Habeas Corpus by the courts. Because the Writ of Habeas Corpus is
remedial in nature. Its paramount object is to secure the release of a person who is
wrongfully detained. The primary object of the writ was said to be immediate
determination of the right of applicant’s freedom- that was its substance and its end.
The whole object of this writ is to keep law as free from technicality as possible, and
to keep them as simple as permissible as otherwise the incalculable value of this writ
is lost.

To examine the scope of Writ of Habeas Corpus in the light of Article 21

and Preventive Detention Law under the Indian Constitution.

1.10 Hypothesis:-

Followings are the hypothesis formulated about the writ of habeas corpus in
India and U.K.

 Writ of Habeas Corpus is an effective writ against illegal detention.

 Writ of Habeas Corpus ensures liberty and freedom against all kinds of
unlawful detention.

 Writ of Habeas Corpus cannot be issued against detention made under

Preventive Detention Laws.

 In majority cases of detention the detaining authorities rarely shows any

disobedience to the Writ of Habeas Corpus Order.

1.11 Review of Literature:

Review of related literature aims to acquire clear understanding of the basic

body of knowledge consisting of issues, facts, principles, theories, etc., The review
of the existing literature is necessary to avoid repetition and to provide clarity of
concept and better understanding of different aspects of the subject and would help
in identifying problem areas and formulating research methodology.

9
 The present research has reviewed the works of prominent foreign and Indian
writers on the subject and provides for the study of the system of application,
issuance, punishment for disobedience of the order and non application of rules and
procedures etc., and set the goal of dealing with the issues. Following are the list of
literatures, journals and judicial dicta which have been reviewed by the researcher
for the purposes of the present research work.

Books

1. The book entitled “Law of Writs”, written by V.G. Ramachandran, Vol-1,

6th Edition, 2006, Eastern book company.

The author has divided his work into two parts, where Part-One consists of
Introduction where the author has discussed the historical growth of Writ of
Habeas Corpus originated in England and how it is adopted in India.

Part-Two contains General principles of Writ Jurisdiction under which he has

discussed constitutional provisions, Locus-standi, Territorial Jurisdiction,
purpose for which writs are issued, Natural Justice, Administrative Tribunals,
Exclusion of Judicial review other limitation of writ jurisdiction are also
highlighted.

In his work the author has discussed in detail the Historical background of
Writs in England, meaning of writ, meaning of Prerogative writ and Judicial
writ, specific writs and absolute writs and also discussed in detail the Historical
background of writs in India, specific writ and writs under English Law and
Indian Law.

Researcher’s Approach: In this book the researcher has identified that the
author has collected the sources from primary sources. Here the author has
discussed in detail the historical background of Writs and in short the Habeas
Corpus. Researcher has discussed in detail about the historical background of
Habeas Corpus as a Specific Writs.

10
2. The title of the book is “Law of Writs”, written by V.G.Ramachandran,
Vol-2,6th Edition,2006, Eastern book company.

The author has divided his work into Three parts, in which Part-Three deals in
detail about specific writs like Habeas Corpus, Mandamus, Prohibition,
Certiorari and Quo-warranto. Part-Four deals about miscellaneous where he
discussed Supervisory jurisdiction of High Court, Special leave petition,
Constitutional amendments. Part-Five deals about practice and procedure
wherein he discussed about the Principles of Procedure and facets of practice.

In this book under Part-Three the author has discussed in detail about Specific
Writs. Under which the author has discussed in Chapter-One the Writ of
Habeas Corpus, Historical development, principles for issuance of Habeas
Corpus and duties of the applicants the authorities and the courts have been
highlighted general principles are formulated on the basis of decided cases.

Researcher’s Approach: In this book the author has discussed in detail along
with cases laws about the writ of Habeas Corpus till 2006. But in the present
work the researcher concentrated upon the cases about the writ of Habeas
Corpus and its effect from2006 to till date.

3. The book is entitled “Writ Remedies- remediable right under Public Law”,
written by Justice B.P. Banarjee, Vol-1, 5th Edition, 2010, Lexis Nexis.

In this book the author has divided his work into Eighteen chapter, under which
he has discussed in detail about the General Introduction, scope of Article 32
and 226, curative remedy, alternative remeday, what right do we have, public
law and private law, writ of Mandamus, Cirtiorari, Prohibition, Quowarranto,
Writ of evocation, Writ of Procendendo, Writ of Habeas Corpus in England,
U.S.A, India, ground of Judicial Review and so on.

The author has discussed the meaning of Habeas Corpus, Writ of Habeas
Corpus in England, various forms of writ of Habeas Corpus, Writ of Habeas
Corpus in U.S.A, Writ of Habeas Corpus in India, Scope of Writ, Nature of
Preventive Detention Laws and so on.

11
 Here the author has discussed the Writ of Habeas Corpus in relation to Infant,
parents, third person, between guardian and war, insane person, poor persons
and vagrant, drunkard, aliens in detail.

Researcher’s Approach:In the present work the researcher has focused more
on the age old parents or age old persons who are in the custody of their
children of in the custody of any 3rd person.

4. The title of the book is “Writs and other Constitutional Remedies”, written
by AsimPandya, 1st Edition 2009, Lexis Nexis. The author has divided his
work into Six chapters. Where in Chapter-1 deals about Power of High Courts
to issue certain Writs, Chapter-Two power of Superintendence over all courts
by the High Court, Chapter-Three Locus standi and Public Interest Litigation,
Chapter-Four Writs, Chapter-Five Letters Patent Appeal, Chapter-Six
Jurisdiction of Supreme Court.

The author under chapter-Four has discussed in detail about the meaning of
writs and meaning of prerogative writ and also he discussed elaborately about
the History of Writs. Under which he has covered salient feature of Writ of
Habeas Corpus, its history and origin, nature, object and scope, habeas corpus
and Res-judicata, custody of an infant and habeas corpus, illegal detention or
unlawful confinement by the private person in other cases, habeas corpus
whether criminal procedure or civil procedure. Scope of habeas corpus covers
within its sweep violation of fundamental rights in the prison, law of preventive
detention and habeas corpus, emergency law and habeas corpus.

Researcher’s Approach:Researcher in the present work discussed about the

scope of Writ of Habeas Corpus about fundamental rights and also other rights
and researcher also concentrated upon the effect of proclamation of emergency
and the writ of Habeas Corpus.

5. The book entitled “Constitutional Remedies and Writs”, written by

D.D.Basu, 2nd Edition, 1999, Kamal Law House.

In this book the author has divided his work into Four parts. Part-One contains
General Principles., where he has discussed introduction, comparative study of
jurisdiction under Article 32 and 226, Law common to writ jurisdiction under

12
 Article 32 and 226, Basic Principles relating to the several Prerogative Writs,
Supervisory Jurisdiction of High Court under Article 227, Extraordinary
jurisdiction of Supreme Court under Article 136.

Part-Two contains uses of Writs in particular. Part-Three contains Rules of

Supreme Court and High Court, Part-Four deals with appendices.

Under Chapter-Six the author has discussed about basic principles relating to
the several prerogative writs. Here the author has discussed about the nature of
habeas corpus and when it lies, when it does not lie, when habeas corpus is
refused, scope and order of the writ of habeas corpus.

In this book Part-Two is the distinctive feature of this book, where the author
has arranged in the alphabetical order the various uses of a writ petition in all
possible situations.

Researcher’s Approach: The author has concentrated about the writ provisions
only up to 1999. In the light of the work done by the author the researcher in the
research work has considered the development of writ of Habeas Corpus and its
scope, development from 1999 to till date. The researcher has coveredvrious
forms of fundamental rights with Habeas Corpus.

6. The title of the book is “Indian Constitution Provision and functioning of

Institution”, written by V.N.Khanna, 1st Edition, 2005, R. Chand and co.,
New Delhi.

The author in this book has divided his work into Twenty Two chapters,
wherein he covered the Constitution and Constitutional Government,
fundamental Rights, fundamental duties, Judiciary in India, emergency
provision, enforcing the rights.

The author under chapter-Five has discussed about the Nature of writs and with
respect to writ of Habeas corpus he just discussed about the nature of writ of
Habeas corpus.

Researcher’s Approach: In this book the author has discussed very briefly.
But researcher covered all the important aspects in the work which are not

13
 covered by the author and also the development of Writ of Habeas Corpus from
2005 to till date.

7. The book entitled “Constitutional History of the United Kingdom”, written

by Ann Lyon, 2003.

The author has discussed the entire work under 28th chapter, where in the author
has discussed in detail about the development of English law and Government
prior to the Norman Conquest, Magna Carta and its Genesis, the birth of the
Parliament, Government and Royal justice in the later middle ages, Civil War
and Common Wealth, restoration and revolution, the reform era an increasing
role for Government, Representation of People, emergence of modern
monarchy, the European convention on Human Rights and the Human Rights
Act.

The author has discussed in detail about Magna Carta and its Gensis under
Chapter-Three wherein he discussed about the significance of Magna Carta ,
creation of the Charter.

Researcher’s Approach: The author has discussed only the constitutional

history of U.K. but he has not covered the historical back ground of writ its
significance, scope, nature and so on. But the researcher has covered all those
uncovered aspects about writ and specifically with respect to writ of Habeas
Corpus in U.K. and India.

8. The title of the book is “Law of Writs”, written by P.S.Narayan, New

edition, 1999, Asia Law House.

The author has discussed elaborately about writs under Twenty Sixth chapter.
Wherein he covered History of Writs, Introduction, fundamental rights and
freedoms, Right to constitutional Remedies, writ proceedings and Res judicata,
writ Proceedings and injunction, writs in detail.

The author about the writ of habeas corpus has discussed in brief, where he
covered the scope, locus standi to file writ, mandatory provision of the Act,
Detention in Police lockup, order by incompetent authority, public order, court
martial, preventive detention precautionary in nature, custody of children, wife,
compensation or damages, Individual liberty a cherished rights.

14
 Researcher’s Approach: In this book the author has not covered the
emergency provisions and writ of Habeas Corpus. The researcher in the present
work has included and discussed the emergency provision and the validity of
the writ of Habeas Corpus during the emergency period. Whether this writ can
be issued during emergency or not has discussed in detail.

9. The book entitled “Writ Remedies with special chapter on Public Interest
Litigation”, written by Justice B.P. Banarjee, 3rd Edition, 2002, Wadhwa
Nagpur.

The author has divided his entire work in this book into Five parts, where the
Part-One deals about General Introduction, here the author has discussed the
scope of Article 32 and 226, public law and private law, writs in detail, grounds
for judicial review.

In Part-Two he has covered guidelines for drafting writ petition.

In part-Three relevant extract from Constitution of India.

In Part-Four the Constitution of U.S 1787 and under part-Five High Court rules
under Article 226.

Researcher’s Approach: In this book the author has covered all the aspects in
the light of writ of Habeas Corpus under Part-1 till 2002.

The researcher along with these has included Judicial development about this
writ till today and also covered the various aspects which are not covered by the
author for example, status of old age parents under the custody of the children
and grand children etc.,

10. The title of the book “The Constitutional Law of India”, written by
Dr.J.N.Pandey, 48th Edition, 2011, Central Law Agency.

The author has discussed the Constitutional provision in detail and has divided
his work into Forty One chapter, where he has discussed Historical background
of Constitution of India, Nature of Indian Constitution, Fundamental rights and
freedoms, emergency provision and so on.

15
 Under Right to Constitutional Remedies the author has discussed in brief about
the writs and he has distinguished between Article 32 and 226 and also he has
discussed about the Martial laws.

Researcher’s Approach:The author in this book has discussed the

constitutional development up to 2011 and he has not discussed in detail about
the writs. The author has not covered the specific and general aspects about the
writ.

The researcher focused upon those aspects in this research work which are not
covered by the author. The researcher also concentrated on the historical
development of the Writ of Habeas Corpus both in England and India and its
scope during the period of emergency.

11.The book entitled “Legal Remedies” available under various enactments in

India, written by V.N. Shukla, Edited by Vidya Bhushan Dr. Avtar
Singh,7th Edition, 1998, Eastern Book Company, Lucknow.

The author has discussed the Constitutional provision and Historical

background of Constitution of India, Nature of Indian Constitution,
Fundamental rights and freedoms, emergency provision along with the other
enactments where legal remedies are available.

Under the Legal Remedies the author has discussed the Historical Evolution of
Writ of Habeas Corpus, principles governing issuance of this writ, Writ of
Habeas Corpus petition during emergency, Compensation for detention.

Researcher’s Approach: The author in this book has discussed the

constitutional development up to 1998 and he has not discussed in detail about
the writs. The author has not covered the specific and general aspects about the
writ.

The researcher has concentrated upon those aspects in the research work which
are not covered by the author. The researcher also concentrated on the historical
development of the Writ of Habeas Corpus both in England and India and its
scope during the period of emergency in detail.

16
12. The book entitled “ Law of Writs”, written by V.G. Ramachandran,
Revised by C.K. Thakker, 4th edition, 1990, Eastern Book Company,
Lacknow.

The author has discussed elaborately about writs under First chapter. Wherein
he covered Historical growth of Writ of Habeas Corpus in England, India and
America, Introduction, fundamental rights and freedoms, Right to constitutional
Remedies, writ proceedings and Res judicata, writ Proceedings and injunction,
writs in detail.

The author about the writ of habeas corpus has discussed in brief, where he
covered the Object, Scope, locus standi to file writ, mandatory provision of the
Act, Detention in Police lockup, order by incompetent authority, public order,
court martial, preventive detention precautionary in nature, Salient features of
Article 22, Uses of Habeas Corpus, Habeas Corpus and Proclamation of
emergency, custody of children, wife, compensation or damages, Individual
liberty a cherished rights.

Researcher’s Approach:

In this book the author has discussed briefly. But researcher has covered all
those important aspects in the work which are not covered by the author and
also the development of Writ of Habeas Corpus from 1998 to till date.

13. he Book entitled “The Framing of Indian Constitution”, written by B

Shiva Rao, 1st Edition, 1968, N.M TripathiPvt Ltd.,

In this book the author has not discussed in detail about the writ of Habeas
Corpus. The author has covered all the Constitutional provision regarding
basic structure theory, salient features of Indian Constitution, fundamental
freedoms, fundamental rights, its protection etc., The author has covered
generally about all writs including writ of Habeas Corpus

Researcher’s Approach:

In this book author has covered all the aspects regarding constitution. The
author has not covered specifically about the Writ of Habeas Corpus. But the
researcher

17
14. The book entitled “Civil liberties cases and Materials”, written by Bailey,
Harris and Jones, 2001, Butter worths Publishers.

In this book the author has covered in detail about the civil liberties, cases in
relation with civil liberties, where the author has discussed elaborately about
the civil liberties, how to protect the liberties of the subjects, safeguard provided
under the Constitution.

15. The book entitled “Constitution Law of India”, written by H.M. Seervai,
Volume II, 4th Edition, 2004, Universal Book Traders.

In this book the author has discussed about the all the provisions of Indian
Constitution, where the author has covered in general about the writ of Habeas
Corpus along with all other writs under the Constitution. The author has not
discussed in detail by focusing upon the writ of Habeas Corpus, related aspects
of the writ of habeas Corpus.

Articles reviewed :

The researcher has collected important Articles which are so relevant to the present
study. Few important articles have been discussed by the researcher. They includes:

1. The Article entitled “Habeas Corpus, Suspension, and Detention: Another

view” written by David L. Shapiro (2006) published in Notre Dame Law
Review, Volume 82, Issue 1 Federal Courts, Practices and Procedure, deals with
Writ of Habeas Corpus, suspension clause, question of obligation, nature of
obligation, the locus of authority to suspend the writ, when does a limitation on
the availability of the writ violate the guarantee, judicial review of a decision to
suspend, the effect of a valid suspension on underlying rights,

In this article the author has discussed by focusing upon suspension clause. But
in the present work the researcher has discussed in detail about the writ of
Habeas Corpus, when it can be issued, when it cannot be issued, who can apply,
to whom this writ will be issued by the court, locus standi, rule nisi etc., The
researcher has strongly advocated for the need of the protection officer for the
protection of the rights of detenues who are detained by the detaining authority.

18
2. The article entitled “Habeas Corpus as a Common Law Writ” written by
Eric .M. Freedman (2011) published in Harvard Civil Rights- Civil Liberties
Law Review here the author has discussed the expanding the suspension clause
canon by taking functional view of Habeas Corpus, utility of a functional view,
some illustrative cases for suspension clause expansion. But the present work
the researcher has examined the subsequent cases relating to the Habeas Corpus
till date.

3. The article entitled “Habeas Corpus Writ of Liberty, Boumediene and

Beyond” written by Scott J. Shackelford (2009) published in Cleveland State
Law Review, here the author has discussed the summary of Habeas Corpus writ
of liberty, Critique o Habeas Corpus, boumediene and beyond: reaffirming
Habeas Corpus. But in the present work the researcher has discussed the issues
relating the issuance of writ of Habeas Corpus, whether this right can be
suspended or not, whether this writ can be issued exparte and related case laws.

4. The article entitled “ The tissue of the Structure- Habeas Corpus and the
Great Writ’s Paradox of power and liberty” written by Anthony Gregory
(2011) published in The Independent Review deals with history of Habeas
Corpus as seeming paradox, a remedy in search of a principle, individual liberty
and the Modern Detention State, The birth of the Modern Detention State, the
detention sate today, Habeas Corpus in the 21 st Century and beyond,
individualism and procedural rights, Jurisdictional Radicalism-reclaiming true
Habeas Corpus Federalism. But in the present work the researcher has discussed
in detail about the writ of Habeas Corpus in India and U.K. along with issues
and perspectives.

5. The article entitled “The Historical Development of Habeas Corpus” written

by Neil Douglas McFeeley (1976) volume 30, published in SMU Law Review
here the author has discussed about the English development where he has
covered the early origins of the writ, development through jurisdiction conflict,
the writ after the Act of 1679, The history of Habeas Corpus in the United
States. But in the present work the researcher has focused on the historical
evolution of Writ of Habeas Corpus in U.K. and India by covering all aspects of
Habeas Corpus including the present cases on the writ of Habeas Corpus.

19
6. The article entitled “The Evolution of Habeas Corpus” written by Bhoomika
Kalley published in International Journal of Legal Development and Allied
Issues where the author has discussed in short about origin of Habeas Corpus in
India along with cases and judgment of Supreme Court and when Habeas
Corpus was struck down. But the researcher in the present work covered in
detail about the Historical Development of Writ of Habeas Corpus related
aspects of this writ along with the latest cases by covering England Law relating
to writs.

7. The article entitled “Arduous Journey of Jail Justice”. Written byS.

Narayana Perumal. Published in S.B.R.R Mahajana Law College Journal of
Law, 2000.

The author in his article in this journal has discussed that “ Social good is an
end product which could be achieved by means of social justice. Class justice
can be displayed as social justice and here it is pictured as jail justice. Jail
Justice can be rendered by upholding the protected and recognized interest of
the inmates of the prison by invoking judicial process by means of writ or
epistolary jurisdiction of the constitutional functionaries’ viz., Supreme Court
and the High Courts.

The protection of human personality and of his fundamental right is the ultimate
purpose of law. It is the settled principle of the Supreme Court of India that
human dignity belongs to all human beings and the right guaranteed by Article-
21 in the constitution of India that he should not be deprived of life or personal
liberty according to procedure established by law should be considered.

In this book the researcher as identified that the author has covered Article 21 of
the Indian Constitution. But in the present work researcher has covered Article
21 and 22 and the emergency provisions of the Indian Constitution.

8. The title of the article is “Basic and Fundamental Human Rights and the
Indian Response”, written by Justice AltamasKabir, (2009), published in
Nyaya Deep, National Legal Services Authority.

The author has discussed about the rights of an individual. Here the author has
discussed the UDHR which met in Paris on 10th December 1948 for which India

20
 being a signatory to this declaration significantly has provided for and
recognized all the said concepts of Human rights which have been categorized
into two categories and have been divided between part-3 and part-4 of our
Constitution, while part-3 contains human rights which have been defined as
fundamental rights which are enforceable in a court of law.

The author has discussed that human and fundamental right to life and personal
liberty has engaged the attention of the courts is the draconian preventive
detention laws which are antithetical to the concept of freedom but have been
held to be an evil necessity. The courts have however interpreted and construed
the provisions of such law in a manner which tried to prevent their misuse.
Courts have constantly played watchdog in the implementation of detention
laws such as the Maintenance of Internal

Security Act [MISA], Preventive Detention Act, The conservation of Foreign

Exchange and Prevention of Smuggling Activities Act [COFEPOSA] which
empower the authorities to detain person behind bars without a trial. The author
in this book has discussed the effect of writ of habeas corpus with reference to
general aspect still 2009. The researcher has covered both general and specific
aspect which are not covered by the author and also the scope of writ of habeas
corpus during emergency period.

9. The article entitled “Judiciary and Social Welfare in India”, written by

JusticeKurian Joseph, (2009), published in Nyaya Deep, National Legal
Service Authority. The author in his article has discussed importantly upon the
fundamental right in Part-3 of the constitution and basically he discussed about
Article 21 with reference to Article 22 where in he is of the opinion that the
fundamental right enshrined under Article 21 shall not be deprived or violated.
The guarantee of the right to life in Article 21 was expanded to include a whole
gamut of social rights. On the expansion of Article 21 social rights have in
effect become justifiable and enforceable by the courts.

10. The article entitled “The Writ of Habeas Corpus” written by Gerald N. Hill
and Kathleen T. Hill, 2014. The author has discussed in his work about the
Habeas Corpus. He is of the opinion that “ today habeas corpus is mainly used
as a post conviction remedy for state or federal prisoners who challenges the

21
 legality of the application of federal laws that were used in the judicial
proceedings that resulted in their detention. Habeas Corpus is used to determine
preliminary matters in criminal cases.

The writ of habeas corpus serves as an important check on the manner in which
state courts pay respect to federal constitutional rights. The writ is the
fundamental instrument for safeguarding individual freedom against arbitrary
and lawless state action. Historically this writ is called as “Great Writ”, the
renowned scholar of the common law, William Blackstone called it the “most
celebrated writ” in English Law.

1.12 Scheme of the Study:

Topic entitled “The Role of Writ of Habeas Corpus in U.K. and India-Issues and
Perspectives” comprises following Chapters;

First Chapter: Introduction: Introduces the subject and covers various

methodologies such as research problem, research objectives, significance,
methodology, review.

Second Chapter: Historical background of Habeas Corpus in India and U.K.:

The second chapter emphasizes about the historical background of habeas corpus
focusing on development of writ of habeas corpus after first and second world war in
England and from 1774 to 1862 and 1862 onwards in India, and also focusing on the
Criminal Procedure.

Third Chapter: General Principles and procedure of Habeas Corpus: This

chapter contemplates about who may apply, against whom the writ of Habeas Corpus
can be claimed and the circumstances under which it can be issued. When it will not
lie, condition for the issue of the writ, delay in applying, whether can be barred by a
statute, nature of the proceedings civil or criminal, remedial and not punitive, writ of
right and not of course and remedy discretionary, burden of proof, duty of Courts,
duty of State, whether Habeas Corpus can be granted ex-parte, bail, res-judicata in
England and in India, compensation and disobedience of writ of Habeas Corpus.

Fourth Chapter: Judicial Development of Habeas Corpus and Legal Remedies

available to the detinues: This chapter focuses on the Judicial Development of writ

22
of Habeas Corpus and various Legal remedies which are available to the detinues who
are detained by the authority.

Fifth Chapter: Writ of Habeas Corpus and Preventive Detention Law: This
chapter focuses on the meaning, necessity, nature power of parliament to enact laws,
strict construction of statutes, salient features of Article, subjective satisfaction,
malafides, belated order other grounds of challenge, communication of grounds, scope
of judicial review, cases other than preventive detention.

Sixth Chapter: Writ of Habeas Corpus and Emergency Provisions: This chapter
contemplates the proclamation of Emergency by focusing on various cases and also
whether writ of Habeas corpus will lie during the time of emergency.

Seventh Chapter- Conclusion and Suggestion:

This Chapter summarizes the research work followed with testing of

hypothesis, reviewing chapters, findings, conclusion, recommendation suggestions.

23
 CHAPTER -II
HISTORICAL BACKGROUND OF
HABEAS CORPUS IN INDIA AND U.K.
 CHAPTER-II

HISTORICAL EVOLUTION OF WRIT OF HABEAS CORPUS IN

U.K. AND INDIA.

2.1 INTRODUCTION:

In the evolution of human civilization the organization of political society can

be considered as a great event since this led to forging the dev ices for protecting the
life and liberty of its maker and also a product of urge of man to lead a dignified life.
Adequate ensurement of personal liberty enables man to lead a dignified life. Personal
liberty has been considered as freedom from physical restraint and including all the
rights pertaining to various aspects of human personality. Enjoyment of all civil and
political rights and its achievement of social happiness depends upon adequate
protection of personal liberty of the subjects.

For the purpose of safeguarding personal liberty of the individual certain

effective legal remedies have been innovated in civilized political system. The great
writ of habeas corpus is one among such devices remedying the encroachment of
personal liberty of the subjects. The writ of habeas corpus ordering the release of
persons unlawfully detained by the authority after examining the legal justification for
detention is one of the most important constitutional remedy.

In the modern time this writ is issued by the court to remedy any kind of
violation of personal liberty of the detenues. This writ has originated and continued in
England as a King’s Prerogative writ. In all the Anglo Saxon systems this has been
incorporated as a Constitutional provisions. From the traditional requirement of
formal production of the body of the detenue to various types of orders redressing the
grievances of person in preventive, punitive and protective custodial detentions. The
writ of habeas corpus has undergone certain changes , controversies have also arisen
about the availability of this great writ during the war time and also during the
emergency period. Both in India and in England the doubts as to availability of this
remedy during these situations have caused certain unsatisfactory position of law. It is
quite useful to assess the extent of availability of writ of habeas corpus during these
situations. Since the origin and growth of writ of habeas corpus of present
understanding took place in the English Constitutional system which had its impact

24
upon the colonial states and Anglo Saxon legal system like India. Efficacy of any
right depends upon the right to enforce it. In safeguarding the precious right like
personal liberty the important contribution of writ of habeas corpus are to be
evaluated.

2.2 HISTORICAL EVOLUTION OF WRIT OF HABEAS CORPUS IN U.K.:

Writ in law is a species of formal order from the Crown or a delegated officer
to an inferior officer or to a private person doing some act or omission. The word
repress the Latin brevis or breve.

The writ in English Law still occupies a very important position. In the
“Corpus Juris”, work generally connoted a noted book or list. The introduction of
Roman Law sometimes represents the writ of English Law. Breve passed into the
Liber in a sense differing from that at present born by the writ of English Law. The
origin of the writ is disputed, but its development was clearly by both Anglo Saxon
and Norman Law before the conquest.

The Anglo Saxon contribution appears in the Shape of Royal Charters which
were used to express the King’s commands or whishes. The form of these ‘Charters’
was infected by royal letters employed primarily for the publication of laws, which
are communicated by such Letters to the “shiremoots” and presumably to the hundred
moots and important persons. These documents, cross bred between Charter and writ
show progress, but fall for short of the pure writ. The Chancery or Royal office which
in England framed the King’s Orders had some counterpart in “Normandy”. The exact
stages by which the writ evolved itself out of the Charter not certain but at any rate
the process was rapid one. The distinction between the two is known to have existed
early as 1071. The writ thus developed as of supreme importance in the growth of law
and government.1

The recognition of writ of habeas corpus as a matter of right and a safeguard

of human liberty may be traced to Article 39 of “Magna Carta” which reads as
follows;

1
Sir Percy Henry Winfield, Writ Encyclopedia Britannica Ltd. Vol. 23, p 809.

25
Article 39: “ no free man shall be arrested or imprisoned or disseised or outlawed or
exiled or in any way victimized, neither will we attack him or send any one to attack
him, except by the lawful judgment of his peers or by the law of the land”.2

Later part of the 13th century, to the early 18th century, if a man had no legal
right without a writ, he could not in general begin an action. At first new writs could
be used freely but in the provision of Oxford, 1258, the chancellor swore that he
would seal nor writs except those of course. 3 Collection of writs were made at the
early period. They were entitled Registrar Brevium and the oldest one exact is dated
1227. Registrar Brevium was first pointed in 1531. After that it practically ceased to
grow by the low itself, which needed something more elastic.4

Habeas Corpus, ‘ HAY FLUS KAWR PUS’ is a legal term.5 In Latin it means
‘you are ordered to have the body’. If a person has been arrested or is held by police, a
lawyer or friend can obtain a writ of Habeas Corpus. The writ of habeas corpus is one
of the basic guarantee of personal freedom in English Law. It prevents unjust or
wrongful imprisonment or detention by legal authorities.

2.3 Different forms of the Writ of Habeas Corpus:

This writ has many forms i.e.,

1) The writ of Habeas Corpus ad subjiciendum: - The writ by which illegally

detained persons secured their liberty was called Habeas Corpus ad
Subjuciendum. This writ is the great and efficacious writ which was directed
to the person detaining another and commanding him to produce the body of
the prisoner and to show the cause of that persons arrest and detention.

This writ was issued by the Court of England as a prerogative writ.

While at common law there were other writs of habeas corpus, which were in
the nature of ministerial or judicial writs which are related to production of
witness, transfer of prisoner and production of prisoner for trial.6 Those are;

2
Green V. Secretary of State(1942) ( referred by Lord Wright, A translation of words of Magna Carta
quoted above were embodied in the petition of right) A.C.254 at 301.
3
. Id, p 2.
4
. Id.
5
Erwin N Griswold, Habeas Corpus, The word Encyclopedia vol, 8, (1983).
6
Black Stone’s Commentary, Vol.3. P 131( Referred Halsbury’s Laws of England, vol.II 3 rd Edn.

26
 2) The writ of Habeas Corpus ad Testificandum:- This was meant to produce
before the court any person who is in legal custody to give evidence.

3) The writ of Habeas Corpus ad Respondendum:- The object of this writ is to

bring prisoners before a court for trial or examination on any charge other than
the one for which he was arrested.

4) The writ of Habeas Corpus ad Deliberandum and /or Recepiendum:- This writ
provides for the removal of the prisoners from the custody to another for the
purpose of his trial in the proper jurisdiction .

Though the Habeas Corpus in England is of common law origin its

effectiveness was enhanced by the three Statutes i.e., Habeas Corpus Act 1640, 1679
and 1816 and its issue vests in the king’s domains according to the Habeas Corpus
Act of 1862.

There are many theories prevailed to explain the origin of writ in English
Common Law. According to Holdworth, “ Habeas Corpus originally belonged to the
law of procedure and process by which a court could secure the presence of a person
before it.”7 As he observes such a process could be naturally may turned to different
used, one of them he points out was to bring before the courts of common law persons
who are actually sued or privileged to be sued before them alone, when they were
imprisoned by the process of any inferior court. This was in the 13th century. Then in
the 16th century it was used against the various branches of the Council Court of
Requests, chanery. In this period the common law and the parliament joined hands
against the despotism of the crown.

William F. Christian defines “ Habeas Corpus “ is a writ issued by a judge or

court of justice commanding the person to whom it is directed to bring the body of a
person in his custody before that or some other court for specified purposes. Habeas
Corpus is an ancient safeguard of the subject tended to secure release from any for of
unlawful detention. “ Montegue L.G.” who succeeded “Coke” described it as a “
prerogative writ” which concerns King’s justice to be administered to his subject, for
the King ought to have account why any of his subjects are imprisoned.8

7
History of English Law (1903 edn) Vol 01 page 97-98.
8
.The Indian Law Institute Judicial Review through writ petition, Tripati Bombay, Tripati Pvt Ltd,
(1962) P 146.

27
 Right depends upon remedies. English legal history is rich in examples of
general rules of law which have been distitiled from the system of remedies, as the
remedies have been extended and adopted from one class of case to another there is
no better example that Habeas Corpus.9

2.4 WHAT IS PREROGATIVE WRIT?

Romans indicates that it is a writ especially associated with king which were
later made available to the subject. This view cannot be accepted without a number of
reservations.

Today we look upon judicial review of administrative action by means of

prerogative writs, as an important part of administrative law, which itself is a part of
Public Law. But this was not so when English Constitution was framed. As late as
1935 the Lord Chief Justice of England dismissed administrative law as continental
jargon. The writ of habeas corpus is said to be a unique contributions of British
Jurisprudence and it is the most celebrated writ in English Law10 which is used as a
method of judicial control. This writ offers a variety of lessons in simplicity and
quickness. This only the single writ which played the greatest part in safeguarding the
security of the individual in England. This writ in England is closely related to the
constitution struggles of the English People11 and became a protection against
occasional despotism of usurping princes and the ferocity of two.

Under Edward III “ the glory of the English law consist in clearly defining, the
times, the cause and the extent when and to what degree of imprisonment of subject is
lawful. This includes the absolute necessity of expressing upon every commitment the
reason for which it is made, so that the court may examine its validity and according
to the circumstances of the case may discharge, admit to bail or remand the prisoner. 12
This passage gives briefly all the salient features of the writ as a control mechanism.
From purely procedural process this writ developed into a complete constitutional
remedy. The right to personal freedom which the writ directed to vindicate was said to
be secured.

9
. H.W.R. Wade, Administrative Law, Charendon Press Oxford 3 rd Edn (1971). P 107.
10
. Prof. Fruend in his work Administrative powers over persons and property 1926 p. 232.
11
. The writ found in the principles of Roman Dutch law called dehurine livero Exhibendo described
by his South African constitution (1949) p268.
12
.Bhawani Shankar Chowdary, The Law of Constitutional Writs- A study Easter Law House Pvt. Ltd.
(1999), P 66.

28
 This writ was issued before the Great Charter, the writ “ deodio et atgo” was
used as early at the 12th century to prevent imprisonment. It was in this period became
13
a weapon by which the courts of common law could both defend their own
jurisdiction and increase it at the expense of rival jurisdiction. It was in the IInd period
that the power of this weapon was seen on a larger stage and that the course of the
struggle with some of these rival courts showed that it could be used in a new way to
protect the liberty of the subject.14

In the 14th Century there emerged the writ of Habeas Corpus Cum Cause,
requiring the person who is already had custody of a prisoner to produce before the
court together with the ground for the detention,15 court also used to release the person
under illegal detention.

As early as in 1482 Fairfax.J. declared that the King’s Bench might forbid any
parties from resorting to any other jurisdiction than that of the common law courts of
the case, fell with in their jurisdiction. In the following year Hussey C.J. and Fairfex.J.
both agreed that, if the chancellor committed the plaintiffs to prison for failing to obey
an injunction to cease their proceedings at common law, judges would release them
on an application by writ of habeas corpus.16 During the period of Edward IVth ,
Fairfox.J. asserted that only the King’s Bench ought to have jurisdiction to issue the
writ of habeas corpus. It was towards the end of the 15 th century that the rivalry of the
courts of common law and the court of Chancery began, and almost immediately the
courts of common law period were cited for the release by means of this writ. 17
Further it was also settled in 1588 that if a person has been released on the basis of
writ and again imprisoned on some grounds it amounts to contempt.18

During the early part of the 16th Century as pointed out in Darnel’s case19 the
King’s Bench asserted that the jurisdiction to issue the writ of habeas corpus must be
conferred by the command of the King himself. This lead to conflict between
common law courts and Kings Courts and ended in enactment of 1640 Act which

13
Id.
14
. Id.
15
. Sir William Holdsworth, History of English Law vol IX London: Mathew and Co. Ltd Sweet and
Maxwell, 3rd edn.(1999), P-109.
16
.Harold Polter, An Historical Introduction to English Law, London Sweet Maxwell Ltd, (1966), p-
120.
17
Id, vol, IX P 110.
18
. Id, P-113.
19
. Keir and Lawson, cases in Constitutional Law, V edn, Oxford University (1967) p_79.

29
authorised the court of common law to issue this prerogative writs. As observed by
Willian Holdsorth, even this measure did not make the writ full effective because of
abuse of power by the courts of common. Again this led to the enactment of famous
Habeas Corpus Act 1679.

Some of the defects in the writ of habeas corpus were illustrated by the
arbitrary proceedings of clarendon, who in 1667 was accused of sending person to
remote Islands, Garrisons and other places thereby to prevent them from the benefit of
the law and to produce precedents for the imprisoning of any other of his Majesty’s
subjects in like manner. Other defects were illustrated by the manner in which persons
imprisoned by the council were obliged to bribe courtiers to obtain their liberty such
illicit methods were a speedier way of gaining liberty than a recourse to the law.20

A bill to prevent the refusal of the writ of Habeas Corpus was considered by
the House of Commons in 1668, but it failed to pass the committee stay. In 1669-70 a
bill providing for prevention of transportation of prisoners to English Courts was
defeated in the House of Lords though passed by the House of Commons. In 1673 and
1674 this bill was again passed by the Commons and reached the committee stay in
the House of Lords21 and in the same year another Bill for the improvement of the
procedure on writs of Habeas Corpus was passed by the House of Commons, but was
stopped in the house of Lords by a Prerogative Bills. 22 The Act of 1679 which gave
the general jurisdiction to all the 3 of the Common Law Courts and ended the
controversy regarding jurisdiction to issue the writ. Thus accordingly the act of 1678
was made applicable in case of imprisonment on Criminal matters.23

Further the act too brought judges of the Supreme Court within the ambit of
Habeas Corpus Act 1679, 24 and further the act provided for suspension in case of
emergency by legislation for instance 1696 an assassination plotted in the Year 1696
led to the temporary suspension of Habeas Corpus Act.

In 17th Century where the House of Commons in Party’s Case (1704)

attempted to stop actions similar to Ashbys brought by other burgesses of Aylesbury
by committing the plaintiffs to prison for contempt of the House, held that a writ of
20
.Sir William Holdsorth, History of English Law, (1956),p-116.
21
. Id, volIX P-116-117.
22
. Id.
23
.Id, volXI p.28.
24
. P.L. Keir and Lwson, cases in Constitutional Law V Edn, p-338.

30
Habeas Corpus would go to release any one committees for contempt by the House of
Commons.25 Further it was also held in Wolf Tone’s Case26, Wolf Tone was charged
with high treason method by being a natural born subject of the King, had tortuously
entered into the service of the French Republic then at open war with his Mejesty and
had been taken bearing arms against his King and country. He was tried by court
Martial acting under Martial Law and was convicted and sentenced to death, and the
morning fixed for his execution, one Mr. Gurran applied to this court for a writ of
Habeas Corpus on the ground that he had no commission under his Majesty’s and that
therefore no court Martial could have cognizance of any crime imputed to him while
the Kings Bench sat in the capacity of the great Criminal Court of the land. The court
granted writ without argument.

In the course of the 18th Century two defects were identified by the judiciary.
Firstly- the court had no power to examine the truth of the any returns made by the
jailor and Secondly the Act of 1679 was applicable Chiefly to detention on a criminal
Clorg and the abuse of power by the judges of Common Law Courts.27 Thus lead to
the presentation of a Bill by the House of Lords in 1758 to the enactment of the
Habeas Corpus Act of 1816. Though the Bill was rejected at the first instance, second
Bill was introduced in the year 1816 which was enacted as Habeas Corpus Act of
1816 which was outlined by the Bill of 1758. In short the Act of 1679 have been
further extended by Act of 1816 and made applicable to detention other than on a
criminal charges and this have much wider significance to the writ.28

As observed by Lord Holsbury the Act of 1679 was applicable to criminal

cases whereas Habeas Corpus Act of 1816 applicable to non-criminal cases. Later on
keeping a view of the modified Jurisdiction of English Courts the Fourth Act was
passed by the Parliament. Sec 25 and 26 of 1862 Act provides that a writ of Habeas
Corpus shall not be issued out of England by authority of any English Judges. 29

In 1869 it was enacted that if permitted by any order in council any colonies
could agree with that convicted prisoners in one conony could be recovered to another

25
.Id- P 251.
26
.Id.
27
.Sir Williams Holdsworth, History of English Law, vol IX, p.119
28
.JDB Mitchell, Constitutional Law 2nd Edn. The Scottish Universitied, Lewistitut. P.339.
29
.Bhawani Shankar Chowdury. Constitutional Writs, A study Eastern Law House Pvt Ltd. Calcutta.
P.67.

31
for the purpose of undergoing their punishment. It was enacted in 1862 that writs of
Habeas Corpus should not be issue into any colony the courts of which had power to
issue the writ.30 Today substitution of more shortly known as the writ of Habeas
Corpus to important writ known to the Constitutional Law of England affording as it
does a swift and in 1867 the writ become available to state prisoners and in a series of
judicial decisions culminating in Frank V. Magnum in 1915 the scope of the claims it
could redress was expanded beyond jurisdictional matters. In that case however, the
Supreme Court limited its review to those cases in which the state court had not given
the prisoner an adequate opportunity to raise his claim.

The Act of 1938 which abolished other prerogative writs, left the writ of
Habeas Corpus untouched. As Lord Birken had said ‘ we are dealing imperative to the
Constitutional Law of England, affording as it does a swift and imperative remedy in
all cases of illegal restraint, or confinement. It is of immemorial antiquity, an instance
of its less occurring in the 33 years of Edward I. It has through the ages been jealously
maintained by the courts of law as a check upon the illegal usurpation of power by the
executors at the cost of liege. According to Keir and Lawson the extraordinary
remedies used to control of the activities of public authorities were formerly known as
the Prerogative writ of Habeas Corpus is the great safeguard of individual liberty
against the encroachments by the government.31

On the basis of historical evolution of Habeas Corpus, it can be inferred that,

the writ of Habeas Corpus ad-subjiciendum having in the 17 century been rendered an
efficient means of securing the liberty of the subject imprisoned in a charge of crime
was in the 19th century.

2.5 HISTORICAL EVOLUTION OF WRIT OF HABEAS CORPUS IN INDIA:

Historical evolution of writ of Habeas Corpus in India can be studied under 2

headings;

I. Writ of Habeas Corpus in Pre-Constitutional period.

II. Writ of Habeas Corpus in Post-Constitutional period.

30
. Sir Williams Holdsworth, History of English Law, vol XIV.
31
. Keir and Lawson, cases in Constitutional Law. V edn. P 398.

32
2.5.1 Writ of Habeas Corpus in Pre-Constitutional period:

It is not possible to trace the extraordinary remedies like writ of Habeas

Corpus in the ancient and medieval period of Indian history. The basic spirit and ethos
of Indian culture and notions of “Raja Dharma” had held, personal liberty of
individual in the high esteem. The remedy accorded to the victims of wrongful
detention was both punitive and remedial. It is true that, it is with the advent of British
regime that this anglo-saxon remedy was established in the Indian Soil.

The advent of British rule in India brought with it the importance of the
machinery of English administration of Justice.32 The part played by high prerogative
writs in England in securing the liberty of the subject and in protecting the rights and
property was well known to the framers of our Constitution.33

In India it is of statutory origin and was first conferred on the Supreme of

Court of Calcutta in 1774. The writ was therefore imported to India in a finished form
and the common law and statute that governed the issue of the writ in England was
followed in India with alterations necessitated by the special circumstances of the
country. The writ in India has therefore to be defined as of statutory origin but
otherwise in terms of English Law. It is also defined as a statutory remedy by which
the judges of Superior Courts empowered to direct the production of detained
individuals before a judges or court to be dealt with according to law.34

Clause 4 of the Charter , the Supreme Court gave unrestricted jurisdiction to

the court over persons within its jurisdiction. The power so conferred on the judges of
the Supreme Court individually was similar to those conferred on the Judges of the
court of King’s Bench in England. Clause 21 of the Charter conferred power to issue
various kinds of writs to keep within bounds of the subordinate tribunals such as
Justices of the court Requests and courts of Quarters Sessions at Calcutta. The extent
of jurisdiction came up for consideration in several cases.

32
. V.G. Ramachandran, Fundamental Rights and Constitutional remedies. Eastern Co. Vol II ,2nd Edn
(1990) p. 697.
33
. H.M. Seervai, Constitutional Law of India, Bombay N.M. Tripathi Pvt. Ltd. Vol. II, 2nd edn. P. 751.
34
. Markose, A.T. “Judicial Control of Administrative action”. Madras Law Journal Office, Madras,
P.111-114.

33
1) In a case, the Court issued a writ of Habeas Corpus to release the prisoner
detained and also issued Certiorari quashing the proceedings of the Justice of the
Peace.35

2) In another case the Supreme Court held that as the Supreme Court Judges
individually were given the power of the Judge of King’s Bench Division, each
judge individually had the power to issue writs of Habeas Corpus but not jointly
as a Court.36

3) In a later case, a full Bench heard a petition for the issue of a writ of Habeas
Corpus though the petition failed on merits, it indicates that to later view was that
the court was also competent to issue the writ. 37 In the proceedings Council also
subsequently took the view that the power to issue writ of Habeas Corpus was
conferred on the Court. The Council said that: “It is an important feature of the
clause that it speaks of individual judge but in its Lordship’s view that clearly
does as part of the exposition of the nature and jurisdiction of the court of which
he is to be a member.

4) On the question of issuing the writ of Habeas Corpus for the release of a person
detained by a British Officer at Banaras, the Supreme Court held the writ could
not be issued, as the British common law which conferred to right to seek such a
remedy was extended only to Calcutta and beyond that territory it was not
entertained.38

5) On the question as to whether the Supreme Court39 had the jurisdiction to issue a
writ of Habeas Corpus and direct the release of a person convicted by a
company’s criminal court, it had no power to interfere with it, the court however
observed that of the action of the criminal court was without jurisdiction to
Supreme Court could interfere.

35
.Queer V. Sidduoph. India Dec. (OS) II. 571.
36
. Rao Govind Mitter. India Dec. (OS). I. 0009 (M 81).
37
. Rex V. Gokilnath. India Dec. (OS). I. P. 1009.
38
. Case of Ryots of Garahandhan.
39
. In the matter of Maharani of Lahore. Dec (OS) I. 1018.

34
 Prior to the Constitution the old Supreme Court at Madras possessed the
power of issuing these writs within the limits of its jurisdiction and outside that
jurisdiction only as regards Europeon British subjects.40

The courts in the three Presidency towns of Calcutta, Bombay and Madras, the
power to issue the prerogative writs, but this power was limited to implementation.
The power was restricted only to the High Courts in the three presidency towns, other
High Courts had no such jurisdiction.41

By the Charters 3 Supreme Court were created in pursuance of the Regulating

Act of 1773, these Supreme Court’s were vested with the powers to issue the
prerogative writs. As the successors of the Supreme Court’s the 3 High Courts
established in the presidency towns of Calcutta, Madras and Bombay by the Charter
Act of 1861, which inherited the power to issue these writs within the limits of the
respective presidency towns. 42

This jurisdiction of the High Courts in the presidency towns was conferred to
the limits of the original jurisdiction as a result of which they could not issue the writs
to persons or tribunals residing or situated outside the presidency towns. Though the
three presidency High Courts inherited the power to issue within the limits of their
original jurisdiction, a serious controversy soon arose whether this power had been
taken away by subsequent legislation in India which had provided statutory remedies
in Sec. 491 of the Criminal Procedure Code order in the nature of Habeas Corpus. 43

The early period in India, the jurisdiction to issue Habeas Corpus reached
position only through various stages of development or may be stated at the very
outset that this jurisdiction was not as extensive as it was in England. The Legislative
History44 of Habeas Corpus in India reflects the partial and pragmentary way in which
it was conferred on the High Courts and the halting and stunted development of this
weapon against executive interference with personal liberty of the subject. A detailed
treatment of the historical development is not possible in a study of this method of

40
.D.D. Basu, Commentary on the Constitution of India, Calcutta, S.C. Sarkar and Son’s Pvt Ltd. Vol
II( Art 20 to 117) 5th edn.
41
. D.D. Basu, Id., Vol.III, P.366.
42
. .D.D. Basu, Commentary on the Constitution of India. Vol III 5 th edn, (1967) p.366.
43
. Id., P. 366.
44
. Leach C.J., in District Magistrate, Trivandrum V, Mamman Mappillai (1962) Madras 708. at
pp.716-723).

35
judicial control. Hence it is attempted only a very brief survey of the statutory
development of the writ, sufficient to understand the basis of the power which the
courts have exercised. The jurisdiction to issue any of the prerogative writs does not
appear to have formed part of the powers of any Judges or courts in India until the
establishment of the Supreme Court by the Regulating Act in 1773.

When the Supreme Court was establishment in Calcutta in pursuance of the

Regulating Act (1773 Sec 13-22) by a Charter of 1774 clause 4 of the Charter gave to
each of the judges power to issue the writ of Habeas Corpus.45 High Court had
jurisdiction to issue a writ of Habeas Corpus into the Mofussils outside the original
jurisdiction as the Supreme Court had powers to issue writs of Habeas Corpus in the
same manner as they were issued in England and the same power was commanded in
the High Courts under their respective Charters.46

An act of Parliament in 1861 abolished in Supreme Court and the Suddar

Diwan Adalat of India and authorized the courts to establish by Letters Patent High
Courts. Under Section 9 of the Act, the High Court thus established were to have “all
jurisdiction and every power” and authority who so ever in any manner vested in any
of the courts in the same presidency abolished under that act at the time of their
abolition”. But by the same section the jurisdiction of the High Courts to be
established was made expressly “subject and without prejudice to the Legislative
powers of the Governor-General of India in Council.”47 The fundamental principles
were embodied in the Letters Patent issued on 28 th December 1865 to the High
Courts. Clause 44 of the Letters Patent specifically stated the Legislative power of the
Governor-General in Council to alter the jurisdiction of the High Courts. No
immediate changes were brought about by or pursuant to, the above mentioned Act of
1861, opinion was expressed by Judges that the Common Law Writ by Habeas
Corpus could be issued outside the original jurisdiction of the Supreme Courts. 48 But
soon after the judgment of Norman. J. Inre Ameer Khan, to the effect that the

45
. . Markose, A.T. “Judicial Control of Administrative action”. Madras Law Journal Office, Madras,
P. 128.
46
. Agarwal. Fundamental Rights and Remedies. Vol.II. Ist Edn. (1954). Metropolitan Book Co. Lts.,
P. 71. Markose, A.T. “Judicial Control of Administrative action”. Madras Law Journal Office, Madras,
P 9.
47
. Id., P. 128.
48
. Markose, A.T. “Judicial Control of Administrative action”. Madras Law Journal Office, Madras,
P129.

36
Supreme Court in India had the power to issue, the common law writ of Habeas
Corpus in to the mofussil and that power was inherited by the High Courts also.49

The Criminal Procedure Code was enacted as Act of X of 1872 Section 81 of

this Act conferred the rights to issue orders in the nature of Habeas Corpus in the case
of European British Subjects both within and outside the original jurisdiction of the
presidency High Courts. By section 82, the power of the High Courts and its judges to
issue the writ of Habeas Corpus beyond the presidency towns was taken away. In
1875 the High Court Criminal Procedure Code;50(Act of 1875) was passed. Section
148 of this Act gave the presidency High Courts power to issue directions in the
nature of Habeas Corpus on certain conditions and also took away the jurisdiction of
the High Court to issue the Common Law writ for any of the purposes, for which
provision was made in that section. In the penultimate paragraph of this section,
specific provision was made for the High Courts to frame rules to regulate the
procedure in cases under that section and it was further stated that until such rules
were framed, the existing practice regarding the writ of Habeas Corpus should apply
to such cases. This section also brought in string of laws 51 detention under which
could not be reviewed by the High Courts by virtue of the powers granted to them. In
1882 by the Code of Criminal Procedure the above two Acts of 1872 and 1875
repealed but not so as to revive any jurisdiction for form of procedure already
abolished. Section 491 of this Act made provision for issuing direction in the nature of
Habeas Corpus which were subsequently the same, power was to be exercised within
the limits of its ordinary original civil jurisdiction and not crucial criminal
jurisdiction. Code of 1882 was repealed by the code of 1898. But the latter produced

49
. (1870) 6 Beng. L.R. 459. This view was explained by the Privy Council in Ryots of Garabandhao
V. Govindar of parlok Medi 70 I. A 129 at 1 62 to be correct as the facts of that case because Dr.
Frawcus against whom the writ was directed was a European British Subject. But the following
observations of Sri.L.Peel, C.J. in a Maharoin of Lahore (1848) 2. I. D (OS) 256 at 259 appear to
neutralize the Privy Council explanation:
“….the fact that the detention is by a British subject does not advance the remedy because the
subjection of the
Keeper to the jurisdiction of this court does not give any additional claim to freedom to the detained
persons, which he would want in the custody of … subject, the question depending so far as the
detained person is concerned. On this statutes or the legality of the imprisonment and not on the
accident of the Statutes of the Keeper.
50
.This Act was concerned with original jurisdiction.
51
.”Nothing in this section applies to persons detained under Bengal Regulation 3 of 1818, Madras
Regulation 2 of 1819, Bombay Regulation 24 of 1827, or the Acts of the Governor-General in Council-
No.34 of 1850, and No. 3 of 1858.”

37
Section 491 of the earlier code and Section 2 of both Codes were identical. 52 This
section 2 was later abolished by the Amending and Repealing Act of 1914, but by
virtue of section of the General Clauses Act 1897 and Section 4 of the Amending and
Repealing Act, the prohibition against the issue of the Common Law writ of Habeas
Corpus introduced in 1875 continued. Even after this, the only the presidency High
Courts could issue the statutory writ and even they could not issue the writ to liberate
an Indian who resided outside the presidency towns. 53

2.5.1.1 Rowlat Act

The year 1919, constitutes a memorable period in the history of the struggle
for freedom of India. The 1919 Act was enacted which did not satisfy the aspirations
of the people. Repressive measures were taken up by the British Government such as
the passing of the Rowlat Act.

The Bill prepared by Justice Rowlat incorporated provisions, for indefinite

detention of persons suspected of acting against “public safety and for the constitution
of a special court to try persons, carrying on revolutionary activities without any
provisions for any appeal and also for imposing restrictions on the movement of
persons, who were suspected of committing offences against the State. It was passed
in the third week of March 1919.54

The Swarzs “within the Congress, including C.R. Das, Motilal Nehru as
pointed out the short coming Act of 1919 and demanded for an responsible
Government.,55 which provides feasible remedies for protection of individual liberty.
In 1922 the Madras High Court in a full bench decision in Inre 56 Govindan Nair” held
that the common law writ of Habeas Corpus was issuable by the Madras High Court
within its appellate jurisdiction. This view was held to be erroneous by the privy
council in 1939 in Mathew V. District Magistrate, Trivandrum.57 However the

52
. Markose. A.T. Id. P.130.
53
Intre the Justices of the Supreme Court of Bombay. 12. E. R. 22.
54
. Pattabhi S. Ramayya, B-History of Indian National Congress, PP. 160-161.
55
.Ramajoish, Legal and Constitutional History of India. Ed(1984), PP. 288-289.
56
. The decision in Intre Govindan Nair was on the 28 th September (1922), 45 Mad.922. F.B. Inre
Kochin Noyar(1921) 45 Mad. 14.
57
AIR. (1939) P.C. 213. This decision affirmed a Full Bench decision of the Madras High Court in
District Magistrate,Trivandrum V. Mamman V. Mannan Mapillai AIR 1939 Mad, 120. Which set aside
a Judgement of Pandurang Rao J. in Crown Prosecutor V. Mamman Pillai. AIR 1939 Mad. 115. The
reports of the Privay Council decisions on this matter of the decision bench full and privy Council are
given cautions in ILR (1939) Mad. 708-763.

38
Criminal Law amendment Act XI of 1923 by Amending section 49 of the Criminal
Procedure Code (1898) through open the statutory writ of Habeas Corpus; 58 was
conferred of the Superior Courts of the various provinces within their jurisdiction. 59
From these statutory provisions, it is clear that the jurisdiction of the Courts in India
to issue, the common law Habeas Corpus and have been clearly taken away from
1875 onwards, and that the High Courts have complete power to frame rules and form
the practice regarding the Statutory direction in the nature of Habeas Corpus under
Section 491, Criminal Procedure Code. So long as any High Court has not cared to
frame such rules, it would appear from the Act of 1875 that the legislature intended
that High Court to be guided by the practice in relation to the writ of Habeas Corpus.
However from the establishment of British Justice in India till 1923 in the right to the
constitutional remedy, the remedy of Habeas Corpus was considered a birth-right only
of European British subjects. After 1923 the State of Affairs continued without any
change until the new Republican Constitution came into operation which by Articles
32 and 226 gave the power to issue Habeas Corpus to the Supreme Court and all the
High Courts within the limits of the territorial jurisdiction of each court.

The brief Legislative History gives an idea of the possible scope that Habeas
Corpus could have had in the hands of the Judiciary. In spite of the very restricted
territorial limits, it had till 1923 to develop the remedy the Courts in India had
strenuously striven to create traditions of vigilant solicitude for the personal liberty of
the subject. Even though sometimes overwhelmed by sincere pessimism, 60 the Bench
and the Bar61 have always prided that Habeas Corpus in India was closely relates to
that in Great Britain and fostered the condition that the remedy should be worthy of its
English counterpart following illustrations will bear but the truth of this statement.

A few instances, wherein Indian Habeas Corpus had been successfully said
amay be sufficient to show that this conviction was not entirely unfounded. 62

58
. The Statutory writ under sec. 491.
59
. Cf. Haridas Awadi. V. King Emperor, ILR. (1948) Nag. 953, 957-960 perseu. J.
60
.Emperor V. Channappa Shantrappa (1930) 55 Bom. 263 at 290-291 Cf. Observations of Madqavkar,
J.
61
. For an illustration of the latter Cf. Argument of Pritt. K.C. and Krishna Menon in Emperor V.
Shibnath Banerjee (1945) F.C.R. 195 at 198 (PC).
62
.Stephen, Nan Commor and Dasrey Vol. II p. 134. Referred in Markose Judicial Control of
Administrative Action. Mad. Madras Law Journal Office. 1956. P.131.

39
 In 1775 Kaumaluddin was imprisoned by the Calcutta Revenue Council
apparently for not paying in the arrears of revenue but against established customs and
actually for ulterior purposes. He was released as a Habeas Corpus by the Supreme
Court.

Scroop Chand was conferred by the Dacca Council in 1779 for alleged arrears
of revenue, but the facts disclosed that the real ground was his neglect to render
accounts as a Treasurer of the Dacca Council. This latter matter being only a case of
contract, its fulfillment could not have been enforced by imprisonment because
imprisonment was permitted by the law only for the realization of revenue. The
Supreme Court (Learaislre.J) released him on bail.63

In 1894 the Supreme Court issued a writ of Habeas Corpus in the matter of
Gokulnath Mullik and a false returns was made by the Administration. The court
made the rule absolute for the writ on the mere ground that the return was false. All
these three cases can be taken as illusory of the rule that the courts will interfere
through Habeas Corpus and set at liberty persons who are detained in abuse of the
powers given to the administration.

In 1894 Altor Canfman64 and a few other Greeks were arrested by the Bombay
Police under warrant issued under sections 3 and 4 of the Foreigners Act (Act III of
1864). They filed an application under section 491 of the Criminal Procedure Code (X
of 1882) and obtained a rule nisi calling the Superintendent of the Jail, to show cause
why they should not be set at liberty. The original warrants were called for and the
Inspector, who affected the arrest put an affidavit. Moral for the writ was made
absolute because the warrants did not fulfil the conditions prescribed in the Statute.
They were not properly authenticated. There was no seal on the warrants and persons
named in them, were not indicated with sufficient certainty and the affidavit, of the
Inspector disclosed that the only ground for the government’s action was that these
foreigners were found to associate with loose women in Bombay. 65 This decision is a
clear illustration of the principle that in matters involving the personal liberty of an
individual every rule not only of substance but also of form and procedure are equally
important and are to be carefully observed.

63
. Markose. A,T,, Id., P. 132.
64
. Altor Canfman and others V. Government of Bombay (1894) 18 Bom.-636.
65
. Id.

40
 In the year 1911 Rudoff Stalman in after being arrested trice on land and once
on a sea was about to be extradited to Germany. 66 The High Court found that the
decision had been taken against him without giving him an opportunity to render his
defence and their Lordships declared the detention to be illegal and allowed the
German to go free, to uphold the rule that courts will enforce the doctrine of fair
procedure in the sphere of personal liberty.67

The Commissioner of Police, Bombay, arrested on September 17, 1924 a

person and detained the foreigners Act (III of 1864). When the Commissioner of
Police arrests and detains a person under Section 3-A of the Act, Sub-section (5) of
that Section declared that such officer “shall for that will report the fact to the Central
Government,” and the Central Government “shall without delay either direct that the
foreigner be discharged or make an order for the removal of such foreigner under
section 3 of the Act. In this case the Commissioner did not report the detention to the
Local Government had a pre- emptory duty to do. On application by the detenue on
September 24, 1924, the Court ordered a release and a pro-forma-re-arrest of the
applicant to regularize the detention which had clearly become illegal by the omission
of the Officer to report. The Court thereafter have time to the Government to issue the
order on the report of the Police Commissioner which was essential for further
detention under the foreigners Act. But when the application was called for, on
October 14, 1924, no order from the Local Government had been received though two
adjournments had been granted for this specific purpose. On proof of this inexcusable
conduct of the Executive the High Court ordered that the detenue be released
forthwith.68

The Bengal Government detained two persons in 1943 under a routine order,
when the Defence of Inre Act, 1939, read with Rule 26 of the Defence of India Rules,
required every detention is to be effected only after satisfaction of the provincial
government that the individual is to be detained in order to prevent him from acting in
a manner prejudicial to the defence of British India, the public safety or the efficient

66
. Inre Rudolff Stalman (1911) 39 Cal. 164, C.W. Goulter V. Emperor AIR (1935) Sind 244.
Tahilram Char B. Emperor AIR (1938) Sind 46. (These are the important cases under the Indian
Extradition Act.
67
. Inre Jagerdeo (1924) 49 Bom. 222, Similarly in Inre Antonius AIR 1950 Bom.
68
. Infre Jagerdeo (1924) 49 Bom. 222.

41
prosecution of the war.69 The detenus applied before the High Court declared that the
applicants were not detained on the satisfaction of the Provincial Government that the
individual is to be effected only after satisfaction of the Provincial Government, that
the individual is to be detained in order to prevent him from acting in a manner
prejudicial to the defence of British India, the public safety or the efficient
prosecution of the war. The detenues applied before the High Court of Calcutta to be
released on Habeas Corpus. The High Court declared that the applicants were not
detained on such a satisfaction of the Provincial Government, but that the
recommendation of the Police took the place of the satisfaction of the provincial
government and so the order neglected to fulfill the conditions precedent for its
validity under the defence of India Act and Rules. On these grounds, their Lordships
ordered the detenues to be released forthwith. 70 This is one of those cases where even
in cases of subjective satisfaction the petitioner could prove that the authority was not
in fact satisfied.

An advocate of the Nagpur High Court on August 1944 very early in morning
hauled into police lock-up and removed from there to the lock-up in the compound of
the District Magistrate to be interrogated in connection with a dacoity which took
place in Bombay. The arrest was effected under rule 129 of the Defence of India rules
which authorized detention only for the efficient prosecution of the war and for public
safety “on reasonable cause.” On an application by his wife, the detenue who was not
even given permission to interview his counsel was released by the Nagpur High
Court.71 This case, their Lordships said, was a clear illustration for malice in law.

A case arose in Punjab where under Rule 129 of the Defence of India Rules, a
person was imprisoned not because he did any act prejudicial to the safety of the
country or of the protection of the war but because he had the misfortune to earn to ill-
will of the sub-inspector and head-constable of the local police station. On Habeas
Corpus the Lahore High Court liberated the person after making some strong

69
. Shibnath V. Porter AIR 1943 Cal. 337 (S.B).
70
.Shibnath V. Porter Ibic., decision was affirmed by the Federal Court Sub Nom Emperor V. Shibnath
(1944) F.C.R. 1, and by the privy Council (1945) F.C.R. 191 as regards these two detenues.
71
. Vimalabhai Desphande V. Crown (1945) ILR Nag 1. On appeal to the P.C. Decision was affirmed.
Emperor B. Deshpande 73. I.A. 144, Inre A.K. Gopalan AIT (1953) Madras 41, 49. Inre A.K. Gopalan
AIR (1953).

42
comments on the reprehensible action of the police.72 This is a clear case of Malice in
fact.

A person in Bombay was arrested in 1947, and detained in Jail under the
Bombay Public Safety Measures Act XI of 1947. The grounds of detention which
were communicated to him under Section-3 of the Act were so indefinite and vague
that the court held that there was no compliance with the statute, under which the final
order under section 4 could be made by the Government. This order could be made
only after considering any representation. If the grounds were indefinite and vague
this could not be done. Therefore communication of such grounds for his detention
had been communicated to him. The object of a communication of the grounds of
detetion to the detenue was clearly made to enable him to make an effective
representation. If the grounds were indefinite and vague this could not be done.
Therefore communication of such grounds went against the Act and rendered the
continued detention of the individual legal. The High Court released the detenue
forthwith.73 This is a case where the prescribed procedure was not followed by the
detaining authority. Another example is: In 1948, M.R.S. Moni of Mathurai was put
behind the bars by the District Magistrate under the Madras Maintenance of Public
Order Act (I of 1947).

The grounds communicated were entirely worthless. A Division Bench

declaring that when a citizen’s liberty is curtailed every step not only of substance but
also of form must be observed, released the detenue.74

2.5.1.2 At the Constituent Assembly:

In the Constituent assembly Dr. B.R. Ambedkar said that “Declaration of

fundamental rights is meaningless unless there is an effective machinery for the
enforcement of the rights.”75 In England, even though there is no formal declaration of
rights as fundamental, individual rights are safeguarded by means of the prerogative
writs.

72
. Tejasingh V. Emperor AIR 1945- Lah. 293. Vimalabhai Deshpande V. Emperor AIR (1945). Nag.
8.
73
. Inre Krishna Gopal Brahme AIR (1948). Bom. 360.
74
. The Bombay Public Safety Measures Act ( Bom. Act VI of 1947).
75
Constitutional Government in India, V.M.V. Pylee, Bombay, Leaders Press Ltd. I Edn (1960). II
Rev. Edn.1965, P.304

43
 In order to enforce the fundamental rights, the idea of providing in the
constitution, effective remedies for the enforcement of the fundamental rights was
from the very beginning present in the minds of its framers. 76 When the sub-
committee on fundamental rights assembled for the first time on February27, 1947,
Alladi Krishna Swami Ayyar pointed out that the citizen’s rights to be embodied in
the Constitution, should consist of guarantees enforceable in courts of Law and that
such guarantee would be effective when precise many through which enforcement of
rights can be done, is also laid down in the Constitution. Munshi was emphatically of
the view that the Constitution should provide for writs to be issued by the courts. Dr.
B.R. Ambedkar supported this suggestion.77

In his note on fundamental rights, Munshi pointed out that fundamental rights,
in the United States and Civil Liberties in Britain had been preserved by reason of two
factors (a) an independent judiciary and (b) the prerogative writs of Habeas Corpus,
Mandamous, Prohibition, Certiorari and Quo-warranto. Further Munshi added that in
India only the High Courts of Madras, Bombay and Calcutta were vested with the
power to issue writs and this power extended only to the respective city areas. These
High Courts, inheriting the independence of the kings Bench in the country, United
Kingdom, had built up a strong tradition of prerogative writs. If writs were not
provided for in the new Constitution, people would have to subject themselves to the
loss of valuable rights before the constitutionality of our acts of a Government was
tested in a suit which might take years to be finally decided.

The object of the fundamental law will be frustrated of people have to serve
sentences, pay fines or deny themselves to privileges given by the Constitution for a
long time under an invalid law. The existence of a legal right in the Constitution
necessarily imply a right in the individual to intervene an order to make the legal right
effective.78 Prerogative writs as a speedy and effective means of guaranteeing
fundamental rights, according to Ambedkar, reinforcing Munshi’s arguments,
Dr.B.R.Ambedkar said, “The High Courts in India 79 possess these powers under the

76
Shiva Rao.B. The framing of India’s Constitutions. Select documents. Bombay, The Indian
77
Minutes. Feb 27,(1947). Select Documents II.4 (iii).”The framing of India’s Constitution. Supra
pp.115-116.
78
. Munshi’s “Note on Fundamental Rights”. B.Shivaroa. The Framing of the India’s Constitution.
Select Documents II
79
. B. Shivaroa. The Framing of Indian Constitution, Id, P.303

44
Government of India Act of 1935 and under the Letters Patent. These powers are
however subject to three limitations. They are;

1) The powers given by the Letters Patent are available only to the High
Courts in the presidency towns of Bombay, Madras and Calcutta and not to
all.

2) These powers are subject to laws made by the Indian legislature.

3) The powers given by the Government of India Act 1935, are restricted and
prove insufficient for the protection of the aggrieved persons.

The clause achieves two objectives, (i) to give the fullest power to the judiciary
to issue writs which under English Law are called prerogative writs and (ii) to prevent
the legislature from curtailing these powers in any manner what so ever. 80

On March 29, 1947, at the meeting of the Fundamental Rights Sub-Committee, Alladi
Krishnaswamy Ayyar made a somewhat different proposal that, Habeas Corpus
should be treated differently from other writs. If a complaint was made that any
person was unlawfully detained, the court could issue order for release, unless
satisfied that he was detained in accordance with law. In addition, Alladi
Krishnaswami suggested that such other remedies and writs would be available to
anyone, whose fundamental rights are infringed as might be provided in the
Constitution and laws of the Union and the States. The majority opinion in the sub-
committee was however that all the writs should be specified and the clause on right
was drafted accordingly as clause 32. The Sub-committee adopted the clause with two
modifications, the writ of Quo-warranto was added to sub-clause(2) and the sub-
clause was amended to provide for suspension of all the writs during emergency and
not Habeas Corpus alone.81

“Alladi Krishna Swami Ayyar” in a “Minute” of dissent appended to the

report, Alladi Krishna Swami Ayyer observed, while he was whole heartedly in
support of the principle that any fundamental right guaranteed under constitution
should have the appropriate sanction and as speedy remedy as possible, he was
against reproducing the complicated writ procedure and was in favour of substituting

80
B.Shiva Rao. The Framind of Indian Constitution, Supra note(1968). Pp. 97-98.
81
. B.Shiva Rao. The Framind of Indian Constitution. Report select Documents II 4(VIII). Supra note
(1968). P.175.

45
a simple remedy by application which would be easily understood by a simple citizen.
He pointed out even in England the writ procedure had been abolished in 1938.82

Apart from the question whether the proper procedure should by writ or
application,83 Alladi Krishnaswami Ayyar thought that, having regard to the variety of
rights embodied in the list of fundamental rights, an omnibus clause such as the one
proposed would be inappropriate, and the result might well be that the Supreme Court
would be flooded with applications of all sorts. He therefore suggested that original
jurisdiction should be conferred on the Supreme Court only in certain matters and that
over the rest of the field its jurisdiction should be revisionary or appellate. He
recommended that the proposal made by him at the sub-committee meeting should be
adopted, the Supreme Court being given original jurisdiction to entertain essential to
avoid a possible Construction of the provision that the Supreme Court alone would be
the exclusive authority for the enforcement of fundamental rights. In a vast country
like India the guardian of the liberties of the subject in the first instance must be the
provincial or local courts, though it might be necessary to invest on appellate or
revision jurisdiction in the Supreme Court.84

The clause came up before the Advisory Committee on April 22, 1947,
discussion centered mainly around the question of the jurisdiction of the Supreme
Court and of the other courts in the country to enforce fundamental rights. There was
really no difference of opinion on principle, it was accepted that the Supreme Court
would exercise jurisdiction as well as subject to the appellate and revisionary powers
of the Supreme Court. Alladi Krishnaswami Ayyar reiterated at his view that it would
not be practicable for the individual to approach the Supreme Court for every case of
infringement of fundamental rights; and suggested therefore that the Supreme Court
only with powers regarding Habeas Corpus, which affecting the liberty of the
individual was different from the other writs. These other writs, to be suggested, could
be regulated by Union Law. But this proposal did not meet with any support.
Ambedkar said that the jurisdiction of the Supreme Court to issue all types of writs
should be expressly derived from the Constitution. So that no legislature under any
circumstances except in an emergency would have the power to take away the right.

82
. Id., p. 304.
83
. Id., p. 304.
84
B.Shiva Rao. The Framind of Indian Constitution, Supra note II (IX). P.182.

46
Eventually its, the Chairman of the Advisory Committee requested Munshi.
Ambedkar and Alladi Krishnaswami Ayyar to revise the clause suitably in the light of
these views,85 in the redraft suggested by them, sub-clause (2) was modified to read
other courts.

The Supreme Court shall have power to issue direction or orders in the nature
of the writs of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari
whichever may be appropriate for the enforcement of any of the rights conferred by
this part of the Constitution. The Constitutional Adviser, in incorporating, in his draft
the decision as adopted by the Constituent Assembly as clause 28, dropped the
substance of sub-clause (2) which vested with Supreme Court power to issue writs.
Explaining the omission, he said that it was unnecessary to give to Supreme Court a
separate power to issue Habeas Corpus directions as the power is already given to
High Courts86 under Section 491 of the Code of Criminal Procedure. As for other
writs, B.N. Rao thought they were unnecessary and he gave an illustration where the
existence of such a right might hamper public health activities, e.g. the demolition of
insanitary buildings. 87

The drafting committee did not accept the change proposed by the
Constitution Adviser and restored sub-clause (2) to its original form. The Committee
in its draft, made it clear that the Supreme Court was not to have a exclusive power to
issue writs or directions for the enforcement of fundamental rights and the Parliament
may by law empower any other court to exercise similar power within the local limits,
objects, jurisdiction, the case as settled up by the committee was incorporated in the
Draft Constitution as Article 25 ( present Art. 32). Supreme Court by appropriate
Proceedings for the enforcement of the rights conferred by this part is guaranteed. 88
The Supreme Court shall have power to issue direction or orders in the nature of the
writs of Habeas Corpus, Mandamus, Prohibition, Quowarranto and Certiorari
whichever may be appropriate for the enforcement of any of the rights conferred by
this part. Parliament may be law empower any other court to exercise within the local

85
. B. Shiva Rao, “The Framing of Indian Constitution”. The Indian Institute of Public Administration.
Proceedings of the Advisory Committee, April 22, (1947). Select Documents II 6 (iv) PP. 227, 284-
285.
86
Under Sec. 491 of the Criminal Procedure, that any High Court May, whenever it thinks fit, direct
among other things that a person legally or improperly detailed in public or private custody, within the
limits of the courts appellate, criminal jurisdiction be set at the best.
87
. Draft Constitution, B.N .Rao’s Notes on certain clauses (28). Id., P. 306 Supra.note B. Shiva Rao.
88
.Id., P. 307.

47
limits of its jurisdiction all or any of the power exercisable by the Supreme Court
under Clause(2) of this article. The rights guaranteed by this Article shall not be
suspended except as otherwise provided for by this Constitution.

Clause (4) was linked with Article 359 which gave power to the president to
declare in an emergency when the security of India was threatened by war or domestic
violence, that the right guaranteed by this article would remain suspended. The
Drafting Committee also included an Article 226 expressly declaring that every High
Court would also have power to issue these writs for the enforcement of fundamental
rights.89 When Draft Constitution was circulated for opinion, several suggestions for
changes in article 25 were received.

When Draft Constitution was circulated for opinion, several suggestions for
changes in Article 25 were received. V.T. Krishnamachari and other representatives
of certain Indian States suggested that in an Indian State provision should be made for
the highest judicial tribunal in that State to be covered in the first instance for the
enforcement of fundamental rights, to Supreme Court’s jurisdiction should only be
invoked by way of revision or appeal. Pattabi Sitaramayya suggested the insertion at
the beginning of clause (3) of the words without prejudice to the powers of the
Supreme Court under clause (2) of this Article. The object of the amendment was to
make it clear beyond all doubt, that the Supreme Courts power to issue writs for the
enforcement of fundamental rights would not be effected by any law, that Parliament
might make for conferring similar powers on any other court. R.K. Sidhva wanted the
words, other courts in clause (3) to be “High Court” while another member Tajamul
Husain suggested deletion of clause.

Commenting on the amendments and suggestions, B.N. Rao said that there
was no objection to Pattabhi Sitaramayya’s amendment, Sidhvas’ amendment was
unnecessary as under draft Article 202.90 The High Courts had already been invested
with the powers to issue directions in the nature of already been invested with the
powers to issue directions in the nature of writs. Moreover, the object of clause (3)
was to enable Parliament to empower any other court to exercise all or any of these

89
B. Shiva Roa. The Framing of Indian Constitution. Supra. note
1. Selected Documents III, 6, pp. 526, 593, 625/
2. Comments, suggestion on the draft constitution by V.T. Krishnamachari, B.H. Zaidi, Raja Sardar
Singhji of Khetri and Sardar Jaidev Sing, Selected Documents-IV. P223.
90
. Article 226 of the Constitution.

48
powers for the convenience of parties. Regarding Tajamul Husain’s amendment, B.N.
Rao observed that clause (4) of the Articl 280,91which empowered the President to
suspend the right to Constitutional remedies during the operation of a proclamation of
emergency. He added that such curtailment of fundamental rights was necessary to
meet extraordinary situations, where the very existence of the State might be at shake
and ordinary situations, when the very existence of the State might beat and pointed
out that similar provisions existed in the Irish, U.S. Constitution.92

After considering the various amendments and suggestions, the drafting

committee decided to accept only one amendment, that moved by Pattabhi
Sitaramayya when draft article 25, concept for consideration in the constitutional
assembly. On December 1948, this amendment was moved by Dr. Ambedkar in a
slightly modified form so as to leave comments and suggestions no room for doubt
that the conferment on other courts would be without prejudice to the power vested in
the Supreme Court under clauses (1) and (2) of the draft article, of the other
amendments, the one moved by the Naziruddin Ahmad, sought the replacement of the
words “ in the nature of writ of in clause (2) by the words, or writs including writs in
the nature of , with a view to expressing the Supreme Court’s power to provide relief
in cases of infringement of fundamental rights in elastic and general terms and making
it clear that such power was not restricted to the issue of the writs specified in the
clause. Sri. H.V. Kamat suggested that it was not necessary to specify the various
writs individually and that the Supreme Court should be left free to evolve such
93
remedies or writs as it might deem proper in each case. V.S. Sarwate’s explanation
to clause (3) to the effect that in deciding matters arising out of the article, the
Supreme Court would have the power to go in to questions, of fact. Such an
explanation he said was necessary in order to place check on panicky, Legislature
going beyond the requirements of particular case. Tajamul Hussain sought the
deletion of clause (4) as the ground that it was dangerous to arm the Executive with
absolute power to suspend each and every one of the fundamental rights as envisaged
in clause (4) read with draft article 280. Karimuddin recognized the necessity for
suspending fundamental rights in an emergency but thought that circumstances in

91
. B. Shiva Rao. The Framing of Indian Constitution: A study Id.,
92
.”Comments and Suggestions on the Draft Constitution. Select Documents. IV. 1(i). B. Shiva Rao.
Id., P. 308.
93
. B. Shiva Rao. The Framing of Indian Constitution: A study. P.308.

49
which this could be done should be specifically laid down in clause (4) and that the
right should not be suspended except when there was a rebellion or invasion.94

In general draft article 25 was widely acclaimed as the “coping-stone” of the

structure of fundamental rights. The general discussion on the article mainly hinged
round clause (4) N.G. Ranga strongly supported the provision. He argued that just as
individuals and groups and their rights. Society as a whole had certain rights vis-à-vis
individuals and groups which were bent upon destroying that society subverting social
order and disaffecting the social organization through violent means. Whenever there
was serious danger to the very concept of democracy to the exercise of democratic
functions to the institutions of democracy, it must be the duty of the State to set aside
the fundamental rights in order to safeguard the people. Shibbanlal Saxena also
considered the clause to be necessary one and expressed the hope that it would be
possible to drop it, when the state became stable. Rohin Kumar Choudhury was in
favour of deleting the clause or modifying it in such a way that the article would not
be suspended except under most unavoidable circumstances, otherwise be said it
would have the evil effect of allowing even such forbidden practices as untouchability
and traffic in human beings to be carried on with impunity, when the article was
suspended.95

Dr.B.R.Ambedkar in replying to the debate readily accepted the amendment

moved by Naziruddin Ahmad but not others. The suggestion for the deletion of clause
(4) seemed to him to be an extravagant demand.96 In times of emergency he said the
superior right of the state to protect itself must prevail, otherwise the individual
himself would be in danger of losing his very existence. The suspension of rights is in
clause (4) could only take place in times of emergency and was a common feature in
all constitutions. Alllaying Tajmul Hussain’s97 apprehensions that all the fundamental
rights might be suspended during an emergency, he said that would be suspended
would be those cautioned in draft articles: 13, 20 and 25 and not others, similarly the
raised Karimuddin was accordingly to Ambedkar fully met by the provisions of draft
Articles 275 under which President’s power to issue a proclamation of emergency
arose only when there was a threat to the security of the country by reasons of war or

94
Id. P 309.
95
. C.A. Deb. Vol. VII PP 945-950.
96
. B. Shiva Rao. The Framing of Indian Constitution: A study. Id P. 309.
97
. Corresponding to article 19 of the Constitution regarding Freedom of Speech.

50
domestic violence and it was only when such a proclamation was enforced that the
right could be suspended.98

If we refer to Kamat’s amendment, he pointed out that the draft article not
only empowered the Supreme Court to grant particular remedies, but, gave it a general
power to evolve suitable remedies appropriate to the occasion. Therraison detre for
amending these writs in the Constitution, he said was that they were in existence in
Britain for a number of years and had given complete satisfaction in protecting the
liberties of the subject. Not only were the nature and remedies of the writs well known
to every lawyer but they had been found almost Kuna V.- proof and fool proof.

Dealing with the amendments moved by Sarwat, Ambedkar said that the writs
mentioned in the article fell into two categories, prerogative writs and writs in action.

If a man is arrested without filing a suit or proceeding against the officer who
arrests him, a detenue can file a petition to the court for setting him at liberty. The
court can inquire, in a Habeas Corpus proceeding whether the arrest is lawful. The
amendment moved by V.S. Sarwat was considered as out of place and rejected.
Finally on the significance of incorporating the writ, remedies in the constitution, Dr.
B.R. Ambedkar observed that in a sense, the writs were not new, Habeas Corpus was
in existence in the Code of Criminal Procedure. According to Ambedkar, it was one
of the greatest safeguards that could be provided for the safety and security of the
individual. He summed up the importance and significance of the article.

Dr.B.R.Ambedkar said, “If I was asked to name any particular article in this
Constitution, as the most important an article without which this Constitution would
be a nullity. I could not refer to any other article except this one. It is the very soul of
the Constitution and the very heart of it. Put to vote, the amendments moved by
Ambedkar and Naziruddin Ahmad were adopted by the Assembly and all others
negative. Subsequently at the revision stage, it was re-observed as Article 32.

Article 32(1): The right to move the Supreme Court by appropriate

proceedings for the enforcement of rights conferred by this part is guaranteed.

(2) The Supreme Court shall have the power to issue directions or orders or
writs including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-

98
. B. Shiva Rao. Id., P. 310.

51
warranto and Certiorari whichever may be appropriate for the enforcement of any of
the rights conferred by this part (3) without prejudice to the powers conferred on the
Supreme Court by clauses (1) and (2). Parliament may by law empower any other
court to exercisable by the Supreme Court under clause (3) and (4). The right
guaranteed by the article shall not be suspended. Exception otherwise provided for by
this Constitution.

2.6 WRIT OF HABEAS CORPUS IN INDIA IN THE POST CONSTITUTION

PERIOD:

Article 32 and 226 of the Constitution of India provide for redressal of

grievances by the Supreme Court and the High Courts, through the system of writs.
Article 32 guarantees a right to move the Supreme Court for the enforcement of
fundamental rights enshrined in the Constitution. The Supreme Court for this purpose
is empowered to issue writs including the writ in the nature of Habeas Corpus. Further
Article 226 also empowers the High Courts not withstanding anything in article 32,
throughout the territories in relation to which they exercised jurisdiction, to issue writs
including writ of Habeas Corpus. However the High Courts were also empowered to
issue writs for any other purpose, so as to place all the High Courts, in the same
position, as the court of the King’s Bench in England. 99

Further in the year 1963 as a result of the view taken by the Supreme Court
and the High Courts, 15th Constitutional Amendment Act 1963 was enacted, thereby
included clause 1(a) so as to confer all the High Courts with power to issue the writ of
Habeas Corpus. This supersedes the Supreme Court’s decision to the contrary.

However, article 226 was drastically substituted by the Constitution by the

42nd Amendment 1976 to curtail its scope. 100
But by the 44th Amendment Act 1978,
the text of Article 226 have been substantially restored.

In short the use of the expression nature of it gives a wider discretion to grant
relief to the petitioner. It is indicated that the scope of writ jurisdiction in India is
wider than that available in England. It is controlled only by other provisions of the
Constitution like Article 359 (1) but controls suspended by a statute. The nature,
scope and judicial interpretation of Article 32 and 226 have been unfolded in the

99
. Election Commissioner V. Salther Venkateshwara, Air (1953) SC.210.
100
. 42 Constitutional Amendment Act (1976).

52
following discussion. Further a survey of court’s power to issue writ of Habeas
Corpus and Presidential power to proclaim emergency and suspend the individual
liberties has been made.

The writ of Habeas Corpus is a prerogative process, for securing the liberty of
the subject, by affording an effective means of immediate release from unlawful
detention, whether in prison or in a private custody. The writ is applicable as a remedy
in all cases of wrongful deprivation of personal liberty. 101

The Criminal Procedure Code, 1872- In India provisions regarding the writ of
Habeas Corpus wee or the first time incorporated in the code of Criminal Procedure of
1872, section 81 of which provided that any British European subject who was
detained in custody by any person and who considered such detention unlawful might
apply to the High Court for an order directing the person detaining him to bring him
before the Court to abide such further order as might be made by it. The section also
provided that the High Court might issue such orders throughout the territories over
which it has jurisdiction and over such other places as the Governor General in
council might direct. The sections however, only applied to European British subjects.
Section 82 of the same code prohibited a High Court or any judge thereof issuing a
writ of Habeas Corpus or any other writ of the like nature, beyond the presidency
towns. The section was inserted as the result of the decision of Norman. J. In Re
Ameer Khan’s102 case that the Supreme Court at Calcutta had power to issue writs of
Habeas Corpus to person in the Mofussil and the same power was continued to the
High Court.

The Criminal Procedure Code, 1875-The Criminal Procedure Code of 1872

was followed by the Criminal Procedure Code Act X of 1875. According to Section
148 of this code in this year the High Courts were empowered to issue directions in
the nature of a Habeas Corpus.

The Criminal Procedure Code , 1882- The Act of 1875 was replaced by 1882
except Section 144 and 146 related to information, but by virtue of Section 2 of the
new Criminal Procedure Code of 1882 the repeal of Section 148 did not restored any

101
. Ikram V. State of U.P. AIR (1964), S.C. 1625.
102
.LR-392, (1871) 8 BOMHCR Cr 13.

53
former jurisdiction or procedure and the same effect continued even in the Act of
1895 against the issue of the prerogative writs.

The Criminal Procedure Code , 1898- The Criminal Procedure Code of 1898
replaced the Code of 1882 but it reproduced Section 2 and 491 as they stood in the
Code of 1882. Section 2 of the Code of 1898 has since been repealed but the
prohibition against the issue of the prerogative writs contained in the code of 1875
still continues. Section 6 of the General Clauses Act of 1897 provided that where the
Act or any Act of the Governor-General in Council or Regulation made after the
commencement of Act, repeals any enactment the repeal shall not revive anything not
in force or existing at the time at which the repeal takes effect unless a different
intention appears. Section 7 makes the position still more clear. It lays down that if in
any Act of the Governor-General in Council or regulation made after the
commencement of the General Clauses Act, it shall be necessary for the purpose of
revising either wholly or partially any enactment wholly or partially repealed,
expressly to state that purpose. Section 7 applies also to all Acts of the Governor-
General in Council made after 14th January, 1887.

Amending and Repealing Act , 1914- Section 2, Criminal Procedure Code of

1898 was repealed by the Amending and Repealing Act of 1914, but Section 4 thereof
provided that the repeal should not affect the existing position. The object of the
repeal of Section 2 of the Code of 1898 was to remove from the Statute Book a
redundant provision. Thus the effect of the General Clauses Act and the Amending
and Repealing Act of 1914 is to keep in operation the prohibition of the Code of 1875.

Criminal Law Amendment Act XII, 1923- Under the Criminal Law
Amendment Act, XII of 1923 any High Court could pass orders in respect of all
persons within the territorial limits of its appellate criminal jurisdictions. Under
Section 491-A newly added section, any chartered High Court could exercise the
powers conferred by the section, in the case of European British subjects, within the
local limits of its Appellate Criminal Jurisdiction and such other territories as the
Central Government might direct. But by virtue of Criminal Law (Removal of Racial
Discrimination) Act, XVII of 1949, Section 491-A was repealed with effect from 6th
April 1949.

54
 Scope of Section 491 of Criminal Procedure Code- Section 491 empowered
High Court, whenever it thinks fit, to direct,

(a) that a person within the limits of its Appellate Criminal Jurisdiction be
brought up before the Court to be dealt with according to law,

(b) that a person illegally or improperly detained in public or private custody

within such limits be brought before the Court to be these examined as a
witness in any matter pending or to be inquired into in such court,

(c) that a person detained as aforesaid be brought before a Court Martial or any
Commissioners for trial are to be examined touching any matter pending
before such Court Martial or Commissioners respectively,

(d) that a prisoner within such limit be removed from one custody to another for
the purpose of trial, and

(e) that the body of a defendant within such limits be brought in one the Shariff’s
return of Corpus to writ of attachment.

But this section did not apply to persons detained under the Bengal State
Prisoners Regulation, 1818, Madras Regulation II of 1819, Bombay
Regulation XXV of 1827, The State Prisoner’s Act of 1850 or the State
Prisoners Act, 1858.

Under Section 491 of the Criminal Procedure Code the court has the power to
issue, writs in the nature of Habeas Corpus, both under Article 226 and 32 has been
conferred to issue writs in the nature of Habeas Corpus and untrammeled by any
statutory provision. The power to issue writs as held in Ramkumar’s case103 by
Mehar Singh J. for majority, the power under Article 226 is much wider than that
under Sec. 491 Cr.P.C. Where, however, when Habeas Corpus petition made under
Article 226 reference to Section 491. Crpc, for practical purposes a superfluity and is
probably made merely as a matter of caution, but it is to be noted that where at the
time of the application, there is no illegal detention, the writ will issue.

103
. Ramkimar V. District Magistrate (Meharsingh. J) AIR (1951) Bombay, P. 25

55
 No privilege of person are placed can be availed. But although a writ of right
is not a writ of course can only be issued.104 Further as held by M. Basavalingam V.
M. Swarajyalakshmi;105 the powers conferred by article 226 in regard to the issue of
writs of Habeas Corpus are exercised for the purposes of enumerating Section 491
Criminal Procedure Code. Normally the remedy indicated in Section 491 Cr.P.C is for
a person deprived of liberty. However such comparison or evolution with respect of
the powers granted under Constitutional provision of Art 229 and 32 and Sec. 491 of
the Cr.P.C, because Section 491 Cr.P.C has been now omitted in Criminal Procedure
Code in 1973.106

Later the Constitution of India came into force where Article 32 and 226
conferred extensive power on the Supreme Court and all High Courts to issue the Writ
of Habeas Corpus throughout their respective territorial jurisdiction.

2.7 OBJECT, NATURE AND SCOPE OFHABEAS CORPUS:

The principle aim of the writ is to provide for a swift judicial review of alleged
unlawful restraint on liberty. In Cox V. Hakes 107 Lord Halsbury right propounded;
“For a period extending as for back as our legal history, the writ of Habeas Corpus has
been r4egarded as one of the most important safeguards of the liberty of the subject. If
upon the return to that writ it was adjudged that no legal ground was made to appear
justifying detention, the consequence was immediate release from custody. If release
was refused, a person detained might make a fresh application to every judge or every
court in turn, and each Court or judge is bound to consider the question independently
and not to be influenced by the previous decisions refusing discharge. If discharge
followed, the legality of that discharge could never be brought in question. No writ of
error or demurrer was allowed”.

In Halsbury’s Law of England108, it is stated: “In any matter involving the

liberty of the subject the action of the crown or its ministers or officials subject to the
supervision and control of the judges on Habeas Corpus. The judges owe a duty to
safeguard the liberty of the subject not only to the subjects of the crown, but also to all
persons within the realm who are under the protection of the crown and entitled to
104
. Amulya Ranjan V. Memorangan, AIR (1956), Tripura 1.
105
. AIR. (1957), Andra Pradesh 704 (705).
106
. Criminal Procedure Code (1908).
107
.(1890), 15 A.C 506: 60 LJQ 89.
108
. Halsbury’s Law of England, 4th Edition, Vol 11, 1450, Page 769.

56
resort to the Court to secure any rights which they may have, and this whether they
are alien friends or alien enemies. It is this fact which means the prerogative writ of
the highest Constitutional importance, it being a remedy available to the lowliest
subject against the most powerful. The writ has frequently been used to test the
validity of acts of the executive and, in particular to test the legality of detention under
emergency legislation. No peer or lord of Parliament has privilege of peerage or
Parliament against being compelled to render obedience to a writ of Habeas Corpus
directed to him”.

Again, in Greene V. Secretary of State for Home Affairs 109, Lord Wright
rightly observed: “ The inestimable value of the proceedings is that it is the most
efficient mode ever devised by any system of law to end unlawful detainments and to
secure a speedy release where the circumstances and the law so required”.

The same reasoning is accepted in the Indian legal system also. In the Leading
case of A.D.M Jabalpur V. Shivkant Shukla which is popularly known as Habeas
Corpus case, J. Khanna observed that : “The writ of Habeas Corpus ad Subjuciendum,
which is commonly known as the writ of Habeas Corpus, is a process for securing the
liberty of the subject by affording an effective means of immediate release from
unlawful or unjustifiable detention, whether in prison or private custody. By it the
High Court and the judges of that Court, at the instance of a subject aggrieved,
command the production of that subject and inquire into the cause of his
imprisonment. If there is no legal justification for that detention, the party is ordered
to be released. Release in Habeas Corpus is not, however, an acquittal, nor may the
writ be issued as a means of appeal.

The underlying object of the writ of Habeas Corpus has been succinctly
explained by Dua, J. in Sampawia V. Dy. Commissioner, Aijal110, that “ The writ of
Habeas Corpus is a prerogative writ by which the causes the validity of detention of a
person are investigated by summary procedure and if the authority having his custody
does not satisfy the Court that the deprivation of his personal liberty is according to
the procedure established by law, the person is entitled to his liberty. The order of
release in the case of person suspected of or charged with the commission of an
offence does not per se amount to his acquittal or discharge and the authorities are
109
.(1941), 3 ALL ER 388: 1942 AC 284.
110
.(1970) ,2 SCC, 3, 99 (1971) 1 SCR 690.

57
not, by virtue of the release only on Habeas Corpus, deprived of the power to arrest
and keep him in custody in accordance with law for this writ is not designed to
interrupt the ordinary administration of criminal law”.

The writ of Habeas Corpus is a prerogative writ, an extraordinary remedy,

which is issued upon cause shown in cases where the ordinary legal remedies are
inapplicable or inadequate. It is a writ of right and is granted ex debito justiciae. It is,
however, not a writ of course and may be granted only upon reasonable ground or
probable cause for its issue being shown. Not being a writ of course, it maybe refused
where there is an alternative remedy available by which the validity of the detention
may be examined. However, in general it may not be refused merely because there
exists an alternative remedy by which the validity of the detention can be questioned.

The writ of habeas corpus is remedial in nature. Its paramount object is to

secure the release of a person who is wrongfully detained and not to punish the
wrongdoer. It is the remedial counterpart of the substantive right of freedom which
was secured by the famous words of the Magna Carta that “no free man shall be taken
or imprisoned or discussed of his freehold or liberties… or be in any manner
destroyed, but by the lawful judgment of his peers or by the law of the land”. It,
therefore cannot be employed to impeach the correctness of the decision made by a
court of competent jurisdiction nor can it be used as a means of securing judicial
determination of any question falling outside the illegal confinement or restraint.
Similarly, an order of release in the case of a person suspected of or charged with the
commission of an offence does not per se amount to his acquittal or discharged and
the authorities are not, by virtue of the release only on Habeas Corpus, deprived of the
power to arrest and keep him in custody in accordance with law, for the prerogative
writ of Habeas Corpus is not designed to interrupt the ordinary administration of
criminal law importance of the writ of Habeas Corpus is that Article 21 of the
Constitution having declared that no person shall be deprived of life and liberty except
in accordance with the procedure established by law, a machinery was definitely
needed to examine the question of illegal detention with almost promptitude. The writ
of Habeas Corpus is a devise of this nature. Blackstone called it “ the great and
efficacious writ in all manner of illegal confinement”. As early as 1839 it was
proclaimed by Lord Denman that it had been “ for ages effectual to an extent never
known in any other country”.

58
 The Primary object of the writ was said to be immediate determination of the
right of applicants freedom- that was its substance and its end. As stated in Ranjit
Singh V. State of Pepsu111, the whole object of this writ is to keep law as free
technicality as possible, and to keep them as simple as permissible as otherwise the
incalculable value of this writ is lost. This writ has been described as a writ of right
which is grantable ex debito justitia. Though a writ of right, it is not a writ of course.
The applicant must show a prima facie case on his unlawful detention. Once,
however, he shows such a case and the return is not good and sufficient, he is entitled
to this writ as of right this writ can be issued in case of “Counterfeited release” also,
so too when there is a pretended ignorance of the place of custody or identity of the
custodian as stated in Bamardo V. Ford, 1891. The Gauhati High Court also took the
same view in N.N.C. Ongbi Devi V. Rishang Keshing, 1982.

Scope of the writ of Habeas Corpus is that the activist interpretation of Article
21 of the Constitution has immensely widened the scope of this writ. So much of
contents has been poured in Article 21 recently that various forms of illegalities
committed on human body now form part of it. The fountain head of this thinking in
mainly discernible in Menaka Gandhi, 1978 112, which has stated that the procedure
contemplated by Article 21 has to be just, fair and reasonable. This apart, the word
“life” appearing in this article has been understood to convey the idea of a dignified
life, and not merely one of animal existence. Sunil Batra, 1978113 and Charle Shobraj,
1978114, cases drawn the attention of the nation for the first time in a big way to the
prison injustice. The second Sunil Batra, 1980 115, dealt with prison vices. The Habeas
Corpus writ was stated in this case to have functional plurality and constitutional
regard for human dignity.

In Francis Coralie, 1981116 it was stated that the right to life enshrined in
Article 21 cannot be restricted to mere animal existence and it also laid down that
apart from Article 22, there is also Article 21 which restricts power o preventive
detention. In Keshav Sing , 1981, 117 the need for human dignity even for a prisoner

111
.AIR (1959) SC 843.
112
AIR (1978) SC 597.
113
. AIR( 1978) SC 1675.
114
.AIR (1978) SC 1514.
115
AIR (1980) SC 1579.
116
. AIR (1981) SC 746.
117
. AIR (1981) SC 625.

59
was again highlighted. Rakesh Kanshik 1981,118 it still another reminder about the
role of the Court in protecting the jail inmates from jail torture.

Article 32 and 226 of the Constitution of India provides for redressal of

grievances by the Supreme Court and the High Courts, through the system of writs.
Article 32 guarantees a right to move the Supreme Court for the enforcement of
fundamental rights enshrined in the Constitution. The Supreme Court for this purpose
is empowered to issue writs including the writ in the nature of Habeas Corpus. Further
Article 226 also empowers the High Courts not withstanding anything in Article 32,
throughout the territories in relation to which they exercised jurisdiction, to issue writs
including writ of Habeas Corpus. However the high courts were also empowered to
issue writs for any other purpose, so as to place all the High Courts, in the same
position, as the court of the King”s Bench in England.

The Constitution of India clearly provides that no person shall be deprived of

his life and personal liberty except according to the procedure established by Law. To
move the Supreme Court in case of violation of fundamental rights is a right in itself.
Any statute which takes away the privilege of applying for Habeas Corpus or any writ
for that matter, then that statute would be void. The Supreme Court has interpreted
this writ to safeguard the liberty of persons under all situations. The technical aspect
of law has been subsided by the spirit of law. Today, it is not just production of the
body that is the concern of Habeas Corpus. This writ ensures life and liberty of an
individual.

The broadening scope of the Writ of Habeas Corpus can be known with the
help of following decided land mark cases;

KANU SANYAL V. DISTRICT MAGISTRATE119

The petitioner was an active member of a naxalite group who was remanded in
the central jail of Darjeeling for having committed certain offences. A charge sheet
was filed againt him and some others. The offences committed by him were such as
could only be tried by a sessions court where the prisoner be brought before a special
magistrate in Vishakhapatnam. For this purpose a special warrant was issued by the
special magistrate and until the proceedings were complete, the petitioner was

118
.AIR (1981) SC 1767.
119
. AIR (1973) SCR 621.

60
remanded to a prison in Vishakhapatnam itself. The petitioner thus filed suit stating
that his detention in Darjeeling was illegal and violative of Art. 22. He claimed that
the magistrate in Darjeeling had no right to try his case as he did not have the
adequate jurisdiction. He also claimed that the magistrate in Darjeeling should have
not complied with the special order as per the Section 6 of Prisoner”s (Attendance in
Court) Act, 1955 which clearly states that an officer can abstain from execution of an
order if the accused is under trial or there has only been conducted a preliminary
investigation.

In this decision it was stated that, the writ of habeas corpus cannot be issued
when it is ascertained that the detention of the person so detained is not illegal and
neither it is without jurisdiction. It would be completely out of its purpose in this case
as there exists no right to claim the writ when the detention is necessary and
purposeful. Also the date that is to be taken into account in case of a writ petition, is
the date the petition was filed on. It was decided because the earliest date had to be
sought and that automatically would be the date on which the writ petition was filed.

The court can hear the Rule Nisi even in the absence of the detained person.
Rule Nisi is to ‘ show cause’ which means an order of a court is final until the party to
whom it applies shows reason otherwise. Once the rule nisi is issued by the court the
body of the detained has to be produced before the court. Presence before the court is
subsidiary to the primary objective of Habeas Corpus and that is to ensure an illegally
detained man’s liberty. It is referred to as the great writ solely because of the reason
that it limits the despotic powers of the state and guarantees liberty to a nation’s
citizens.120

SUNIL BATRA V. DELHI ADMINISTRATION121

This case is related to the rights of a prisoner. It highlights the horrendous

conditions that exist in Indian prisons. Sunil Batra was a prisoner of Tihar Jail in
Delhi. There he got the knowledge that one of his fellow prisoners, Prem Chand was
being treated barbarically by the prison authorities and was being brutally tortured for
money. The warden used to torture him with batons. On one such incident, Prem
Chand bled profusely and had to be hospitalized. To do something regarding this

120
V.G. Ramachandran, Law of writs, 368 ( 6th edn, 2006).
121
.AIR (1980) SC. 1579.

61
grotesque treatment, Sunil Batra wrote a letter to the judge wherein he addressed this
cause. This letter was then transformed into a petition under Habeas Corpus. Here, the
learned Justice Krishna Iyer stated that, human rights do not end for a prisoner. A
prisoner is as much a citizen of India as is anybody else and had to be granted his
basic rights as a person. If a prisoner, as per him is not regarded as a person then there
is no point of having a democracy or a constitution at all. Again he state that “ the
finest hour of justice comes when court and counsel constructively collaborate to
fashion in the case a relief to the prisoner and fathom deeper to cure the institutional
pathology which breeds wrong and defies right”. Further he said that the it is needed
to broaden the scope of habeas corpus was felt so that even the ones behind bars could
benefit from it and their rights can be safeguarded.

This case opened up new horizons of application of the writ. There existed no
one particular straight jacket way to invoke a writ.

HABEAS CORPUS WAS STRUCK DOWN;

ADM JABALPUR V. SHIVAKANTH SHUKLA122

In India 28th April was regarded as black day in the history of Habeas Corpus,
because a presidential order was passed stating that nobody had the right to move any
court in a writ petition for enforcement of Fundamental Rights. The High Courts had
decided to entertain the writ petitions despite government order. The Supreme Court
though, thought otherwise. Five Hon’ble judges asked the High Court not to consider
any writ petition filed during the emergency periods. 123

Justice Khanna was the only one with the dissenting opinion. Therein he said
that, “ as observed by Chief Justice Huges, judges are not there simply to decide
cases, but to decide them as they should be decided, and while it may be regrettable
that they cannot always agree, it is better that their independence should be
maintained and recognized than that unanimiaty should be secured through its
sacrifice. A dissent in a Court of last resort, to use his words, is an appeal to the
brooding spirit of the law, to the intelligence of a future day, when a later decision

122
AIR (1975) SC 1207.
123
Jos Peter D;Souza, when the SC struck down the habeas corpus, (june,2001), http://indiacode,
nic.in/coiweb/amend/amend44.htm.

62
may possible correct the error into which the dissenting Judge believes the court to
have been betrayed.

Where does judicial discretion go in case of a presidential order? Is the

emergency period so crucial or despotic so as to give ultimate powers to the State, so
much so that the whole point of granting liberty in the first place to all individuals is
taken away? Due to this judgment 44th amendment was brought into the constitution
in the year 1978 wherein it was made that Fundamental Rights could not be
suspended in case of a National Emergency. Ultimately the wrong was made right
though the scar remains.

2.8 CONCLUSION:

History helps us to know the reason behind passing of legislation and their
evolution. Fundamental rights are the most important rights than any other legal
rights. Therefore in almost all countries in the world they are recognized in the written
or unwritten constitution as ‘Bill of Rights’, ‘Civil Liberties’ or ‘ Fundamental
Rights’, to protect the individual from the illegal wrongs done by the administrative
authorities. Also vast and extensive power has been conferred upon the executive
authority under the constitution to declare an emergency and also arrest under
“preventive detention” laws.

However, mere conferment of fundamental rights in the constitution itself does

not protect these rights. There is a need for an agency to enforce those rights by the
individual. So, the judiciary is considered as the guardian of the fundamental rights.
Thus the judiciary has competent authority to decide any constitutional matter as legal
or illegal.

The Constitution of India confers wide power to the judiciary regarding

fundamental rights, particularly the power of the Supreme Court and the High Courts
under Article 32 and 226 respectively for protecting the liberties of the individual. It
means that any individual can approach for violation of his fundamental rights. Our
constitution confers this right under Article 32 to individuals,

When Habeas Corpus was first used it was just used to secure the presence of
the person who is unlawfully detained. But now in the present context, the same writ
can be invoked to protect almost all the fundamental rights. Likewise Preventive

63
Detention law also has taken many dimensions in its evolution since from East India
Company Act to till now, and these legislation are inevitable in the interest of the
public.

Even prior to constitution came in to force the High Court of 3 presidency

towns of Calcutta, Bombay and Madras were having the power to issue the
prerogative writs but they could issue only within the limit of respective presidency
town, and they could not issue writ to a person who is residing outside the limits.

After the constitution came into force, now the both Supreme Court under
Article 32 and High Court under Article 226 has the power to issue writ of Habeas
Corpus.

64
 CHAPTER-III
GENERAL PRINCIPLES AND
PROCEDURE OF HABEAS
CORPUS.
 CHAPTER-III

GENERAL PRINCIPLES AND PROCEDURE OF WRIT OF

HABEAS CORPUS

INTRODUCTION:

The great constitutional importance of the writ of habeas corpus lies in the fact
that ‘it is available to the meanest against the mightiest’.1 No privilege of a person or
place can stand against this writ. The sole purpose of the writ of habeas corpus is to
enforce right of liberty and personal freedom. It is thus” the key that unlocks the door
to freedom”2and the first security of civil liberty. The writ of habeas corpus is a
summary proceedings to secure personal liberty. It strikes at unlawful imprisonment
or restraint of the person by State or citizen, and by the most direct method known to
the law learns the truth and applies the remedy. It tolerates no delay except of
necessity, and is hundred by no obstacle except by the limits set up by the law of its
creation.

According to Blackstone “ It is a writ antecedent to statute, and throwing its

root deep into the genus of our common law-It is perhaps the most important writ
known to the constitutional law of England.

The jurisdiction to issue prerogative writs came in India with the establishment
of the Supreme Court by the Regulating Act of 1773. The Charter of 1774 Clause 4
gave the power to each of the justices of the Supreme Court of Calcutta to issue writ
of habeas Corpus with abolition of the three Supreme Courts in Calcutta, Bombay and
Madras by Act of Parliament in 1861, Section 9 of the Act referred to the
establishment of High Court by Letters Patent. These High Courts had original
jurisdiction only within the respective Presidency Towns. The opinion of the Court
was that the common law writ of habeas corpus could be isued outside the original
jurisdiction of the Supreme Court.

With the outbreak of the First World War, the Defence of India Act,1915 was
passed. It was intended to provide for special measures to secure the public safety and

1
Halsbury’s Laws of England, 4th edn. Vol. 11, P 769
2
M.C. Setalvad, The Common Law of India,(1960), p-37

65
the defence of British India and for the special trial of certain offences . Rules were
framed. Special Commissioners were appointed for trial of offences under the Act.

a) When would writ of Habeas Corpus lie?

If a person is arrested or detained under any civil or revenue law which

provides for, such arrest or detention in case of nonpayment of civil debt, or revenue
dues, an application for Habeas Corpus lies, if the requirements of the law have not
been complied with3. The same rule would apply in case of a person detained for
purpose of further investigation or trial under Section 167 and 344 of the code or other
relevant law have not been complied with.4

The writ of Habeas Corpus is available as a remedy in all cases of wrongful

deprivation of personal liberty. The legal justification of a subject, that is detention or
imprisonment which is incapable of legal justification, is the basic of jurisdiction in
Habeas Corpus. It is 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.

Generally, a writ of Habeas Corpus can be used in case of

1) Preventive Detention and

2) Other than Preventive Detention.

b) When the Writ of Habeas Corpus will not lie?

The writ of Habeas Corpus is remedial in nature and it cannot be used as an

instrument of punishment of one who has wrongfully detained or parted with the
custody of another. It also cannot be used to impeach the correctness or otherwise of a
decision pronounced by a court of competent jurisdiction.

No Habeas Corpus can lie if the arrested person is to face an exception of a

sentence of a Court of Law. The question may arise if the order passed by the trial
court is wrong or erroneous. Can Habeas Corpus intervene? Appeal is the remedy in
all such cases if appellate court is wrong or contrary to law, its order cannot be treated

3
. Collector of Malabar v. Ibrahim, AIR (1957), S.C.688.
4
. Ram Narain v. State of Delhi, AIR (1953), S.C. 277

66
as a null. No Habeas Corpus can be issued in such cases, except where the order is
without jurisdiction.

Where the order of remand under section 344 of the Code of Criminal
Procedure, 1898, was passed by a Magistrate having no jurisdiction at all, it is void
and as such a Habeas Corpus could rightly lie, but if the accused was later remanded
by a Magistrate having jurisdiction, the prior illegality was held not to affect the later
courts powers or jurisdiction. The writ of Habeas Corpus is not available to a person
properly detained by a Court Martial. The writ court cannot go into alleged
irregularities in procedure in Court Martial. It can only go into the question of the
jurisdiction of that body. For a Court cannot exercise supervisory control over or
review procedural errors generally in the proceedings of the Court Martial.

Again, the Supreme Court will not objectively and independently examine
what are the matters of facts; i.e., alleged imminent likelihood of objectionable
activities, as if it were an appellate court. Where a person is undergoing a sentence of
imprisonment imposed by a competent court, Habeas Corpus cannot be granted.

Likewise, the Habeas Corus proceedings, it is not open to the Court to hold an
independent enquiry into the question whether the allegations on the basis of which an
order of detention is passed are true or not. If a writ petition challenging an order of
detention is dismissed by a competent court on merits, the second petition on the same
grounds in absence of any new circumstances would not be maintainable. Similarly,
where a person is undergoing sentence of imprisonment imposed by a competent
court, Habeas Corpus cannot be granted.

c) Who may apply for Writ of Habeas Corpus?

There is no hard and fast rule for making an application for a writ of Habeas
Corpus. Anyone who is wrongfully arrested or illegally detained can apply for a writ
of habeas corpus to the Supreme Court under Article 32 or to a High Court under
Article 226 of the Constitution. Rule 3 of OrderXXXV of the Supreme Court Rules
provides as under:

A petition for a writ of habeas corpus shall be accompanied by an affidavit by

the person restrained stealing that the petition is made at his instance and setting out
the nature and circumstances of the restraint:

67
 Provided that where the person restrained is unable owing to the restraint to
make the affidavit, the petition shall be accompanied by an affidavit to the life effect
made by some other person acquainted with the facts. Which shall state the reason
why the person restrained is unable to make the affidavit.

Thus, the prisoner or the detenue himself, his father, his wife, his sister his
relative or even his friend can apply. A letter to the judge regarding illegalities
committed on prisoners in jail has been admitted (Rakesh Koushik V. B.L.Vig5 , Sunil
Batra V Delhi Administration). An advocate should get a power of attorney from the
prisoner, if he acts as advocate. If the affidavit of the stranger does not explain why
the detenue could not himself move the application, the writ application is liable to be
dismissed.

The above statement, however, must be read in the light of the subsequent
development of law and particularly in view of rapid development and growth of
Public Interest Litigation and liberalized concept of Locus Standi.

So anybody acting probono publico can knock the doors of the court for this
relief. The following observations of Bagawati. J. in para 17 of S.P. Gupta V. Union
of India commonly known as Judges Transfer case,6 brings out this aspect eloquently:

“Where the weaker sections of the community are concerned such as under
trial prisoners languishing in jails without a trial, inmates of the protective home in
Agar or Harridan workers engaged in road construction in Ajmer District who are
living in poverty and destitution, who are barely eking out a miserable existence with
the sweat and toil, who are helpless victims of an exploitative society and who do not
have easy access to justice, this Court will not insist on a regular petition to be filed
by the public spirited individuals espousing their cause and seeking relief for them.
This court will readily respond even to a letter addressed by such individual acting
probing Public.

In case of illegal detention of child then the legal representative of that child
entitled to move for habeas corpus. Where such a person did not exist or was not
capable of making an application, a friend might apply with an affidavit, which stated
the reasons and should state interest in the Child’s Welfare.

5
. (1980) Supp SCC 183,
6
. AIR (1982)) SC 149.

68
 Petition by person arrested and released on bail is maintainable. The High
Court of Allahabad, has held that petition by person arrested and released on bail lies,
because the fact that a person has been granted bail does not amount to his being set a
liberty. The High Court of Patna is of the same view.

Writ of Habeas corpus is a prerogative rights by which a person can enjoy his
liberty under the constitution both under the England law and Indian Constitution
also. According to writ of Habeas corpus a person who is wrongfully detained by the
detaining authority or the private person. This writ is available to every one in Indian
as well as those who not a resident of India i.e., a alien also and also those who have
obtained the domicile of India after fulfilling the essential requirements of the
authority.

d) Against whom Habeas Corpus would lie or to whom writ of Habeas Corpus
would be issued.?

A writ of Habeas Corpus is available in all cases of wrongful deprivation of

personal liberty.

1) The writ of Habeas Corpus would be issued to the person who has the
physical custody of the prison or on whose behalf the writ is sought.7

2) It would also be issue to a person who has the constructive custody8 of the
prison or in the sense of having power and control over the body and
would thus include the executive or administrative superior of the jailor or
actual custodian of the prisoner “ whose authority the custodian must rely
upon in order to justify the detention, and to whom obedience must be
rendered by the custodian of the orders release”.

3) It may be issued against any person or authority who has illegally detained,
arrested or confined the detenu or prisoner.

4) It can also be issued to an authority who has control over the imprisonment
who can order the release of the prisoner. In Mohammad Ikram V. State of
U.P and A.D.M. Jabalpur V. Shivakant Shukla.9

7
. R. V. Earl of Crewe (1910) 2 K.B. 576.
8
. Buruardo V. Ford (1892) A.C. 326; Secretary of State V. O’Brien, 1923, A.C. 603.
9
.AIR 1964 SC 1625 (1630) (1964) 5 SCR AND AIR 1976 SC 1207.

69
 Hidayatullah, J. rightly stated: “ The Writ of Habeas Corpus issued not only
for release from detention by the state but also for release from private detention .

In Halsbury’s Laws of England it is described as a “a remedy available to the

lowliest subject against the most powerful Government”. It is a writ of such a
sovereign and transcendent authority that no privilege of person or place can stand
against it.

Hence a person who had illegally imprisoned another cannot resist the writ on
the ground that he has illegally handed over the prisoner to another person (whether
within or out or jurisdiction of the court) and has therefore no longer the custody of
the prisoner.

It would not however, include a person who might in an advisory capacity

persuade the actual custodian to produce the prisoner.

e) When can a writ be prayed for:

An important question which has been examined recently by the Supreme

Court relates to the point as to when a writ for Habeas Corpus can be prayed for. A
two-judges Bench examined this question in S.M.D. Kiranpasa V. Government of
A.P10 and took the view that in an exceptional and rare case detention order already
made and either served or yet to be served could be legally brought under challenge
even if the person concerned is not in custody. This view was taken because resort to
Article 226(1) is meant for the enforcement of one’s right to life and personal liberty
guaranteed under Article 21. The Bench stated that the word enforce means to impose
or compel obedience to law or to compel observance of law.

When a right is so guaranteed, it has to be understood in relation to its orbit

and infringement. Conferring the right to life and liberty imposed a corresponding
duty on the rest of the society including the state to observe that right, that is to say,
not to act or do anything which would amount to infringement of that right. A
question was then posed as to whether a citizen has to wait till the right is infringed.
The bench felt that when right to personal liberty is guaranteed and the rest of the
society including the State is compelled or obligated not to violate that right and if
someone has threatened to violate it or its violation is imminent, and the person whose

10
.(1990) (1) SCC 328.

70
right is so threatened or its violation is so imminent resorts to Article 226 of the
Constitution, the Court could protect observances of his right by restraining those who
threatened to violate it until the court examines the legality of the action. It was
pointed out that protection of the right is to be distinguished from its restoration or
remedy after violation. If a threatened invasion of right is removed by restraining the
potential right remains protected and the compulsion against its violation is enforced.

A three Judge Bench in Additional Secretary to the Government of India V.

Alka Subhas Gadia11 however, disapproved the aforesaid decision. It took the view
that in pursuance of self-evolved judicial policy and in conformity with the self
imposed internal restrictions, court insists that the aggrieved person must allow the
due operation and implementation of the concerned law and exhaust the remedy
provided by it before approaching the High Court to invoke its discretionary,
extraordinary and equitable jurisdiction which has to be very sparingly used. It was
felt that allowing a person to challenge the detention order before it is executed would
amount to disregard of all time honored and well-tested judicial restraint. It was then
stated that if in every case the detainee is permitted to challenge and seek the stay f
the operation of the order before it is executed, the very purpose of the order and the
law under which it is made will be frustrated since such orders are in operation only
for a limited period. It was, however, pointed out that it would not be correct to say
that the courts have no power to entertain grievances against any detention order prior
to its execution. Such a power has been used infact in an appropriate cases although
such cases have been few and the grounds on which the court have interfered with
them at the pre-execution stage are necessarily very limited in scope and number, viz.,
where the courts are prime facie satisfied;

i) that the impugned order is not passed under the Act under which it is
purported to have been passed;

ii) that it is sought to be executed against a wrong person;

iii) that it is passed for a wrong purpose;

iv) that it is passed on vague, extraneous and irrelevant grounds and

11
.(1990) (2) SC ALE 1352.

71
 v) that the authority who passed it had no authority to do so. It was then observed
that the refusal by the court to use their extraordinary power of judicial review to
interfere with the detention orders prior to their execution on any other grounds
does not amount to the abandonment of the said power or to their denial to the
proposed detainee, but prevents their abuse and the perversion of the law in
question.

f) who and when can apply for Habeas Corpus?

The following persons are entitled to apply for writ of Habeas Corpus:

i) Stranger:- In India the English practice was followed in allowing relations and
friends of the prisoner to make an application. But in a simple case of In Re
Hardayal12 it was observed some rules should be framed distinguishing the right to
move the application and friends so that persons having no knowledge, could not
create unnecessary embarrassment to the authorities and it is waste of judicial
time. However, it is pointed out by D.D. Basu “that the word ‘friend’is itself a
vague term and make, include even persons having particular or other affinity,13
but in the light of the recent decisions the observation of D.D. Basu appears to
have been solved. If such a person makes an application with an affidavit or
setting for the reason for its being made by him 14 for instance as held in Delhi
High Court15 the court will enforce for justice to issue the necessary writ,
directions or order and in such rare cases a stranger may come in. Further it is also
held in Vidyavaruna V. Shivanarayan16, an Advocate acting in that capacity
cannot make the application unless he holds the power of attorney from the
prisoner.

ii) Minor or Infant:- Similarly in case of a detention of a child or a minor, the

English principles have been followed17 to hold that the only person, who is
competent to move the High Court in Habeas Corpus under Article 226 is one

12
.AIR (1949) E.P. 130.
13
. Alamkhan V. Emperor, AIR (1948), Lal 33.
14
. Kunjamma V. Shat Govinda Pillai. J.
15
. AIR (1951), Tra- Cochin 123 (pr.6). AIR (1970) Delhi 70.
16
. AIR (1956) S.C. P. 108
17
. Raj Bahdur Vs. Legal Remembrance. AIR (1953) Calcutta, 522. “A minor girl was recovered from
a brothel, and thereafter detained in a Rescue Home, under the Bengal Traffic Act 1933. The petitioner
moved for Habeas Corpus, stating that custody was unable to make the application. It was not shown in
the affidavit how the petitioner was interested in the welfare of the Minor and there was nothing to
incompetent to make the application.

72
 who is entitled either to the custody of the child or to represent her legally.
Where, however such a person is shown to be incapable of making the
application or where no such person exists the question of the right of a friend to
make such an application may properly arise.18

iii) Persons on Bail:- Even if a person is released on bail, he must be considered to

be detained in the constructive custody of the court through the surety, as his
liberty is subject to restraint and he has to be produced before the court by the
surety. A person released on bail being notionally in custody of competent court.
The court further by stating that, a person who has been temporarily send out on
bail, but still on trial can present an application for writ of Habeas Corpus.19

iv) Patient in Mental Hospital:- In R. V. Clarke20 an application for Habeas Corpus

was not as the person confined in mad house was held to be actually insane. The
counsel, who had moved for the Habeas Corpus, then desired a rule for liberty to
have access to and make an inspection of the patient in order to see that she was
properly treated. The request was rejected as he could not make out that his
application was made on behalf of any person who had the least pretensions to
the privilege claimed.

In short, an application for Habeas Corpus can be made by any person on behalf
of the person who is detained, pr by the person himself, if sufficient cause for
making the application is shown. Thereafter if the detention is found to be
without any lawful justification, the court will order the immediate release of the
person.

v) In case of Illegal Detention:-As a general rule it may be stated that any detention
will be illegal unless it can be shown in accordance with the law. In Habeas
Corpus proceeding, the court is to have regard to the legality or other ways of
detention, at the time of return and not with reference to the institution of the
proceedings. The material date is the date when the affidavit was filled, justifying
the detention as lawful one.21 The same principle has been reaffirmed by the

18
Raj Bahdur Vs. Legal Remembrance. AIR (1953) Calcutta, 522.
19
. Zamir Ahmad V. Gangaprasad, AIR (1963), Allahabad 4.
20
. (1762) 3. Burr 1363. 97 E.R. 875 (876).
21
. Ram Narayan Singh V. State of Delhi (Patanjali Shastri C.J.) AIR (1953), S.C. 277.

73
 Supreme Court in A.K. Gopalan Vs . Government of India22 and Inre Madhu
Limaye23, however as held by the Delhi High Court, as held in B.R. Rao V. State
of Orissa24 (Dua, J.) in an Habeas Corpus proceedings court is to regard to
legality or otherwise of detention at the time of return, and not with reference to
the institution of the proceedings. Illegal detention can be inferred in cases where
(a) noncompliance with statutory provision authorizing the detention; (b)
subsequent detention without order of remand; (c) the order of detention was
passed on irrelevant grounds; (d) rearrest and detention of a convict released on
ground of illness; (e) in case of refusal to allow solicitator to see person arrested,
(f) and such other instances, however which defining illegal detention, it is also
necessary to define the term custody. In the context of Habeas Corpus
accordingly the Kerala High Court25 held: “custody” in the context of the Habeas
Corpus means restraint of freedom; it must be something more than normal
restraint but it did not be actual imprisonment.

vi) In case of arrest in contravention of privilege:- In Venkateshvarlu26 the court

held firstly where a member of a state legislature or of the Parliament is arrested
in violation of his rights, privileges and immunities as such members, a writ of
Habeas Corpus can be issued. Secondly the immunity of the members of
legislature from arrest only extends to immunity under civil process. Hence a
member of a legislature is not entitled to immunity, as such member from arrest
and detention under preventive detention law. However it was held in members of
a U.P. legislative assembly for its contempt- petition for writ of Habeas Corpus
under Article 226- conviction cannot be challenged on ground of violation of
Article 21 or of principles of natural justice. 27

vii) In case of Protective Custody:- The Patna High Court28 in the year 1957
considering the validity of protective custody and the scope of Writ of Habeas
Corpus held “ in case of protection of kidnapped girl above 18 years of, in

22
.AIR (1966) S.C. 816.
23
. AIR (1969) S.C. 1014.
24
. AIR (1971) , S.C. 2197.
25
. I.L.R (1980) 1, Kerala 1. AIR Manual (civil and criminal) vol. IX, 4 th Edn. V.R. Manohar and
W.W. Chitaley, P. 198 ( Art. 226 and 32, N 76A-77).
26
. AIR (1951), Madras 269 (pr 7) (D.B)
27
. Keshavasing V. Speaker, Legislative Assembly ( Mathew J.) AIR (1965), Allahabad 349 (355).
28
. AIR (1957), Pat 689. Referred in AIR Manual ( Civil and Criminal) Vol. IX, 4 th En. V.R. Manohar
and W.W. Chitaley, P. 204 (Art. 226 and 32, N 84-86).

74
 pursuance of a search warrant and thereafter the magistrate remanding girl to jail
custody on the ground of apprehension of breach of peace, order is not justified,
sections 100, 107 or 552 of Cr.P.C and consequently detention is illegal, it is
further, held that if there is apprehension of breach of peace the magistrate
should take action against the parties.

Further according to Allahabad29 High Court where proceedings under Section

17(2) are pending against the girls arrested under Section 15 of the Suppression
of Immoral Traffic in Women and Girls Act for being sent to protective custody,
no question of Habeas Corpus being issued in the case arises. It was also held by
the Allahabad High Court,30 a minor female cannot be kept in “ protective home”
against her wish unless so authorized by law.

viii) In case of detention of Under Trial Prisoner:- In the case of persons who are
under arrest on a charge of criminal offence and have been remanded to custody
pending trial, the proper remedy is by way of a bail applications and not Habeas
Corpus. Later the Supreme Court31 in the year 1953 held “ if there is no legal
order of remand, an application for Habeas Corpus will lie for the discharge of
the prisoner.” Further Sikri C.J observed in case of under under trial prisoners the
question that he is entitled to be released as he was not produced before a
magistrate within 24 hours of his arrest does not arise.

ix) In case of detention of Foreigners:- As early as 1925 the Bombay High Court32
held “ where a person is detained under a Foreigners Act 1946 or any
corresponding Act a writ of Habeas Corpus may be issued, if such detention is
not in accordance with the relevant Act.” Further the Calcutta High Court33 held
“ foreigner was arrested and detained in jail under the Foreigner Act, while as
was in jail was served with an order under the Act directing him to leave the
country within the period of one month from the date of the service of the order,
the detenue applied under section 491 Criminal Procedure Code. It was held that
the order of deportation passed under the Foreigners Act and that his continued
detention after the deportation order was served on him was illegal and that, he

29
. (1963) 1, Cr.L.J 505.
30
. Kalyani V. State of U.P. (1978), Cr.L.J. (1003)/
31
. Ram Narain Singh V. State of Delhi ( Maj. Pattabhi Shastri) AIR( 1953), S.C. 277.
32
. AIR (1925) Bom 130, AIR Manual ( Civil and Criminal), op. cit. P. 211.
33
. AIR (1951), Calcutta 474, B.A. Shervashidze, V Government of W.B.

75
 must be set at liberty and he given an opportunity to comply with the order of
34
deportation”. It is further held by Supreme Court that if a foreigner enters in
India illegally and detained for purpose of deportation, such detention is not
illegal and Habeas Corpus cannot be issued for release.

x) In case of Extradition:-In India when a person is arrested and detained in

custody under the law relating to extradition, he is entitled to apply for Habeas
Corpus, where the detention is ultra virus, where the detention is not in
accordance with law, where there are defects in the warrant, where the person
was not given hearing.

Further with respect to binding force of Extradition Act or Extradition Treaty the
Supreme Court35 held firstly “ a detention in accordance with the provisions of
Extradition Act cannot be questioned, although it may not be covered by the
Extradition treaty and Secondly extradition for an offence not included in the
extradition treaty but which is made, which extraditable offence under the Act,
such Act would not be illegal within Section 18”. Further the Rajastan High
Court in Burman V. State36 held, “ A detention under Extradition treaty with
another state which is not in corporate into the law, will not be a detention in
accordance with the procedure established by law.”

xi) In case of custody of Minors:- The Madras High Court 37 held in proceedings by
way of Habeas Corpus can be adopted for obtaining custody of minors by their
parents, legal guardians, or others who are entitled to have such custody and an
application for Habeas Corpus shall be by the father unless there is any special
reason to deny him such rights. However in any proceedings before any court
concerning the custody or upbringing of an infant, the court must regard the
welfare of the infant as the first and paramount consideration, and must treat any
rights, priorities or preferences of the parents or of either of them of their persons
as subordinate thereto but however, the Madras High Court in the year 1916 held
that there is no doubt, the welfare of the minor was the primary consideration, at
the same time that it ought not to be forgotten that the legislature, advised by
draws a distinction, between the legal rights of husband and parents on the one
34
.AIR (1971), S.C. 337.
35
. Ram Babu Saksena v. The State Patanjali Sastri, AIR (1950), S.C. 155.
36
. AIR (1951) Rajastan 127.
37
. Venkata Ramaiah Chetty V. Pappamah (Rajamanur J.)

76
 side and those of the other near relation on the other side held by Privy Council as
in “England”. So among the Hindus the father is the natural guardian of his child
during their minorities. But this guardianship is in the nature of Scared Trust and
he can not therefore during his life time, substitute another person to be a
guardian in his place.

One of the factor to be considered regarding custody of infant is the consent of

the infant. In this regard as early as 1929 the Madras High Court 38 laid down
following guidelines;

Firstly: if the minor is of sufficient age and does not want to return to the control of
the father or husband the court will not ordinarily compel such return.

Secondly: when a minor is not of sufficiently mature age to force an opinion, the
minor’s wishes may be ignored and he may be restored to the custody, of his
legitimate guardian, that is the parent or the husband, though the minor may not be
willing to such custody.

Regarding custody of the guardian appointed by Court , where a person has

been appointed guardian of a minor by a court, an application for Habeas Corpus for
recovery of custody from him cannot be made, because his custody cannot be said to
be improper or illegal. Habeas Corpus cannot be restored to for the purpose of
nullifying the order of the court in such a case and further according to Oudh High
Court, the custody of minors may even be handed over to a court of wards, if it is
legally entitled to superintendence over the Minors and if it is to the benefit of the
minors.

In case of Minor outside the Jurisdiction, the court has jurisdiction to make an
order relating to the custody of an infant at a time when a infant is outside the
jurisdiction though it would be very unusual to do so and in many cases most
undesirable to do so.

In India though an application to the Supreme Court under Article 32 does not
lie in this ground an application under Article 226 lies39.

38
. Subbaswami Goundn V. Kamakshi Ammal. AIR (1929), Mad 834.
39
.Gopal V. Shreechand. AIR (1955) Allahabad 28.

77
 Availability of alternative remedy under Guardians and Wards Act whether
excludes Habeas Corpus?

Where there is no question of application of the Guardians and Wards Act,

there is unanimity on the point that an application for Habeas Corpus will lie to
restore a child to the person entitled to his or her custody where the welfare of the
child requires it, and the applicant is a person interested in the welfare of the child. It
will issue even where the child is not actually kept under physical restraint but is kept
away from the person entitled to his or her custody, without any lawful authority. But
the court will refuse to restore the child to the parent or other guardian where it would
be against the welfare of the child.40

But in a case where the Guardians and Wards Act applies, there was a conflict
of judicial opinion as to whether right to Habeas Corpus under 191 of the Criminal
Procedure Code was barred by the Statutory remedy under the Special Act. The
Allahabad High Court held that relief must be had only under that special Act e.g. for
the purpose of merely determining the rival claims of competing guardians. But
simply because of the other statutory remedy is available writ of Habeas Corpus
cannot be refused, it would be issued where there is imminent danger to the health,
safety or morals of the minor.

But now that the right to Habeas Corpus is secured by the Constitution and the
Writ of Habeas Corpus is a writ of right, the writ cannot be denied simply on the
ground that the petitioner has an alternative remedy, the Supreme Court has taken this
view even with respect to the statutory right under section 491 of Cr.P.C.41

xii) Habeas Corpus to recover the custody of wife:- As held by the Lahore High
Court42, Habeas Corpus to recover custody of wife, that the father of the Minor
guardian ceased to be the guardian of her person and in the case of the death of
her husband the mother-in-law is the natural guardian. The paramount factor to be
considered is the welfare of minor wife and if she is ill-treated by her husband, in

40
Id.
41
Gohar V. Suggi, AIR (1960) S.C. 93.
42
. Ballumal V. Hardawarimal, AIR (1924) Lahore 570.

78
 the interest of the minor his father may have the custody and the husband is not
entitled, for writ of Habeas Corpus.43

Further the Supreme Court44 held in issuing a writ of Habeas Corpus on the
application of a husband to recover his wife, the court cannot to set to have acted
without jurisdiction on the ground that the husband has alternative remedies, under
section 100 of Cr.P.C and also by way of civil suit, restitution of conjugal rights,
which could have very well pursued, further Andra Pradesh High Court45 held, on an
application by the husband for the custody of his minor wife from her alleged
detention by parents-wife herself unwilling to go back wife aged 17 and an intelligent
and educated girl capable of thinking herself- held, considering interest of Minor wife
it was not desirable to pass order of Habeas Corpus directing her physical delivery to
husband.

xiii) In case of detention in Lunatic asylum:- During the early period of 1936, the
Sind High Court in Hoshang V. Emperor46 denied on the ground that, there was
alternative remedy under section 33 of the Lunacy Act. However in the year
1960 the Supreme Court held otherwise in Gohar V. Suggi47 at any rate that
principle will not be applicable to the constitutional remedy under Article 226.

Further as per Calcutta High Court48 proceedings under Lunacy Act entirely
without jurisdiction and in violation of the Act in rules under an order directing
detention is illegal and void. It was held that Habeas Corpus lies against the
authorities of Mental Hospital.

xiv) In case of Cessation of Illegal Detention:- As held by the Allahabad High

Court49 in case of petition for production of girl- Father in counter-affidavit
alleging that she has disappeared from the house- writ will not be discharged
unless respondent father satisfies the court that he is really unable to produce the
girl. His mere statement that she has run away is not enough. Circumstances
showing that the father is not innocent as he claimed to be when the court

43
. In Mst Shyama V. S. Shankar, AIR (1935) All. 840.
44
. Ikram V. State of U.P. AIR (1964), S.C. 1625.
45
.AIR (1967) Andra Pradesh, 294 (297-299).
46
. AIR (1936), Sind 146.
47
.AIR (1960), S.C. 93.
48
. Ranjit Kumar V. Secretary I.P.A Society ( P.M. Mukharjee) AIR (1963) Cal 261.
49
. (1960) All India Reporter 97(1).

79
 entertaining doubts and suspecion about the manner in which the girl was
removed. Respondent- father cannot escape liability.

f) Conditions for the issue of the Writ of Habeas Corus:

Following are the condition for the issue of Writ of Habeas Corpus;

i) There must be detention that is there must be an actual confinement, some kind
of physical restraint on liberty of movement of the person. But it may be noted
that actual physical confinement is not necessary to constitute detention. Control
and custody are enough.

If the person sought to be produced had already left the country, a writ of Habeas
Corpus, testificandum cannot be issued. Though a person may be released on bail
after the arrest, he can nevertheless apply for Habeas Corpus his liberty is subject
to restraint according to the nature of the bail bond, he must be considered to be
detained in the constructive custody of the court through his surety, and he has to
be produced before the court by his surety. Under the circumstances his release
on bail would not prevent the High Court from exercising its power to issue a
writ of Habeas Corpus.

When the person is under illegal detention in jail, the remedy is petition for
Habeas Corpus and not for bail. Refusal of bail does not operate as an estoppels.
Habeas Corpus, cannot be refused on the ground that bail petition or its rejection
would serve as an estoppels. Nature and character of person wrongly detained
immaterial to issue writ of Habeas Corpus.

ii) The detention must be illegal or improper. If the detention is to be found to be not
supported by any lawful authority. The relief will be granted.

Where a convict was released on ground of illness but was re- arrested and
detained in jail without disclosing lawful authority under which re-arrest was
made, it was held that detention was illegal. The detention will be illegal where
the authority has not acted within the limitation imposed by the statute and
conformably to the procedure prescribed therein.

iii) Improper or unauthorized place of confinement may also be a ground for a writ
of Habeas Corpus. If the original order made by the police officer does not

80
 specify the place of detention and is defective, the subsequent order of the
provincial Government specifying the place of detention and its duration will not
serve to cure the original defect.

g) Delay in applying:

Delay by itself in applying for a writ of Habeas Corpus may not disentitle the
petitioner for the relief. Though in some other cases it was held that if there was
undue delay on the part of the petitioner in applying to a court for Habeas
Corpus, the relief may be refused. Thus, in Re Amritlal Dey50 is execution of a
decree passed by the presidency small cause court, the petitioner was arrested. He
applied for a writ of Habeas Corpus after a period of two months on this aspect, it
was observed that;

“On a comparison of dates, it appear that arrest and commitment took place two
months ago and unless this interval has been accounted for, this court would not
interfere on Habeas Corpus. It is incumbent on the applicant in a case of this kind
once to the court without delay”.

It is, however, submitted that whatever may be the position prior to the
commencement of the Constitution, after the Constitution came to force, the right
to personal liberty is one of the fundamental right guaranteed under part III which
cannot be waived. Again a wrongful act of arrest or detention of a person is a
continuous wrong and the injury subsists till it is remedied. Thus, the cause of
action for a writ of Habeas Corpus continues every day till the arrest and
detention continues and the relief cannot be refused only on the ground of delay
in applying. Again, when a petition or application for Habeas Corpus is made by
a detenue or prisoner to jail authorities, the authorities must forward such petition
immediately to the Court without any delay.

In Smt. Prem Lata Sharma V. District Magistrate Mathura and Others,51

Preventive Detention- Representation before detaining or appropriate authority-
delay and laches is making of plea not tenable- Representation can be made as
long as detention continues- Representation to Central State Government’s
obligations to forward it to Central Government. Representation before State

50
.(1875-76) ILR I CAL 78.
51
.(1998) SCC (4) 260 (THE SCC (1998) Vol. 4, P 260, 261).

81
 Government rejected copy of that representation along with parawise comments
forwarded by State Government to Home Secretary, Government of India but the
same also rejected by Central Government. Therefore, another representation
made to Home Secretary, Government of India through Superintendent of the Jail
where detention was confirmed. Retaining authority informing that the
representation could not be forwarded to Central Government as it was made
after extraordinary delay of Four months. Held, there cannot be any limitation
period for exercising right to make representation. When it was made to the
Central Government detaining authority was bound to forward it and had no
power to decide whether it should be rejected on ground of rejection of earlier
representation by Central Government and delay in making the second one.
Denial of the right to represent, and under Article 22(5) rendered the continuation
of the detention illegal.

Rajammal, Appellant V. State of Tamil Nadu and others,52, Tamil Nadu

preventive of Dangerous Activities of Bootieggers, Drug Offenders, Forest
Offendrs, Goondas, Immoral Traffic Offenders and Slum Grabbers Act (14 of
1982), Section 3- Retention unexplained delay of Five days in considering and
disposing detenu’s representation- Mere absence of Minister at Headquarters not
sufficient to justify delay- Retention violated.

In the present case, the Government which received remarks from different
authorities submitted the relevant files before the Under Secretary for processing
it on the next day. The Under Secretary forwarded to the Deputy Secretary on the
next working day. Thereafter the file was submitted before the Minister who
received it while he was on tour. The Minister passed the order after five days
and there was no explanation whatsoever as for the delay which occurred
thereafter. Merely stating that the minster was on tour and hence he could pass
order only after five days is not a justifiable, when the liberty of a citizens
guaranteed under Article 21 of the Constitution is involved. Absence of the
minister at the headquarters is not sufficient to justify the delay. Since the file
could be reached the minister with utmost promptitude in cases involving the
vitally important fundamental right of a citizen.

52
. AIR March Vol 86 1999 SC 684.

82
 h) Whether can be barred by a Statute?

The right to move Supreme Court by an appropriate proceeding under Article 32

of the Constitution for the enforcement of fundamental right is itself a
fundamental right. Similarly, the right to move a High Court under Article 226 of
the Constitution for the enforcement of fundamental rights or for any other
purpose is a constitutional right and hence those remedies cannot be taken away,
abridged or curtail by a statutory provision.

But as observed by Das.J. in A.K. Gopalan V. State of Madras53 “ Our

Constitution has recognized personal liberties as fundamental rights. It has
guaranteed some of them under Article 19(1) but put restraints on them by
Article 21 and 22. It has by providing for preventive detention, recognized that
individual liberty may be subordinated to the larger social interests. The only
limitation put upon the legislative power is that it must provide some procedure
and at least incorporate the minimum requirement laid down in Article 22(4) to
(7). There is no limitation as regards the substantive law. Therefore, a preventive
detention law which provides some procedure and complies with the
requirements of Article 22(4) to (7) zmust be held to be a good law, however, it
may appeal to the Court to be”.

Again, in A.D.M Jabalpur V. Shivakant Shukla54 also, dealing with the

Maintenance of Internal Security Act, 1971 (MISA), Chandrachud.J. held that the
writ jurisdiction of High Court under Article 226 was required to be exercised
consistently with laws made by the competent legislatures within the areas of
their legislative power.

Further in A.K. Roy V. Union of India55, upholding the Constitutional validity of

the National Security Act, 1980 (NSA), Chandrachud. C.J. rightly observed that:
“ The practical need and reality of the laws of preventive detention find
recognition in the provisions of Article 22 of the Constitution. Laws providing
for preventive detention are expressly dealt with by that article and their scope
appropriately defined. It is evident that the power of preventive detention was
conferred by the Constitution, in order to ensure that the security and safety of

53
.AIR (1950) SC 27 (108-109): 1950 SCR 88.
54
. AIR (1975) SC 1207.
55
.(1982) SCC 271

83
 the country and the welfare of its people are not put in peril. So long as a law of
preventive detention operates within the general scope of the affirmative words
used in the respective entries of the union and concurrent lists which give that
power and so long as it does not violate any condition or restriction placed upon
that power by the Constitution, the Court cannot invalidate that law on the
specious ground that it is calculated to interfere with liberties of the people”.

i) Nature of the Proceedings: Whether Civil or Criminal?

The Writ of Habeas Corpus in England was a common law writ of a procedural
nature. The writ of Habeas Corpus is concerned with the machinery of Justice,
and is essentially a procedural writ, the object of which is to enforce a legal right.
The application for a writ of Habeas Corpus may or may not be in a criminal
case.

In India before the Indian Constitution came into force it was held by the Lahore
and Allahabad High Courts that the proceedings under Section 499 of Cr.P.C.,
were criminal in nature and not civil. But in Nibarendu Dutt V. A.E. Porter56
their Lordships of the Calcutta High Court pointed out that the proceedings under
Section 149, in essence civil proceedings. The power being conferred under the
Code of Criminal Procedure being for courts of criminal jurisdiction the
proceedings were in their nature criminal. Under the present Constitution the
decision would depend upon the nature of the proceedings in which order is
made.

In America Habeas Corpus is a Civil as distinguished from a criminal

proceedings.

j) Remedial and not Punitive:

This writ is a writ of remedial nature and is not used as an instrument of

punishment. The object of the writ is not to punish previous illegality, but release
from previous illegal detention.

56
.AIR (1945) CAL 107 P. 593.

84
k) Writ of Right but not of Course:

The writ of Habeas Corpus ad subjiciendum is a prerogative writ, as

distinguished from an original or judicial writ which commences suits between
party and which issues as of course. “There is no such thing in law as writs of
grace and favour issuing from the judges; they are all writs of right, but they are
not all writs of course”.

The prerogative writs issuing only upon cause shown, and not of course, are
therefore distinguishable from original judicial writs which initiate suit between
party and party. “ Habeas Corpus is a writ of right, the highest writ the party can
bring”. There is this difference between Habeas Corpus ad Subjiciendum and any
other Habeas Corpus., that the former is a writ of right against which no person
or place can avail. The writ of Habeas Corpus is a writ of right and is grantable
ex debito justitiae.

Though it is a writ of right, it is not a writ of course, and therefore, may be

refused where there is an alternative remedy available by which validity of
detention can be questioned.

l) Remedy discretionary:

Where a writ of Habeas Corpus will be issued is a matter for judicial

determination and the Court may determine from a consideration of the
allegations of fact in the petition whether the petitioner is entitled to the writ. But
courts are generally liberal in entertaining or considering petitions for, and
granting writ of Habeas Corpus, and frequently they grant the writ on preliminary
inspection of the petition, without actually determining whether or not the
petitioner is entitled to have the writ issued.

Personal liberty being a fundamental right, the Supreme Court cannot, however,
refuse an application consistently with the responsibility laid upon it as a
protector and guarantor of fundamental right.

It can be issued only on a probable cause and may be refused where there is an
alternative remedy available and also on the ground that there has been delay on
the part of applicant in seeking the remedy.

85
 In Habi Ram V. State,57 the Court observed: “Assuming that the learned
magistrate has declined to enlarge the petitioner on bail on a bailable offence the
proper course for the petitioner is to move the appropriate court by an application
under the Code of Criminal Procedure”.

So, ordinarily, Habeas Corpus will not lie where there is another adequate
remedy, by appeal, writ of Cerrtiorari, Mandamus, motion or otherwise. But
where constitutional rights could not be otherwise adequately preserved, as when
ther was no other speedy and efficacious remedy open to the petitioner in the
usual and orderly course of criminal procedure, and there could be no enquiry
whether the charge constituted an offence against a statute until the meeting of a
grand jury and no relief from imprisonment meantime except through the writ of
Habeas Corpus, or by furnishing bail, circumstances are presented which call for
summary enquiry and Habeas Corpus is proper.

In Whirlpool Corporation V. Registrar of Trade Marks Mumbai and others58

court observed that “ Exhaustion of alternative remedy or existence of alternative
statutory remedies is not constitutional bar to High Court’s jurisdiction but it is a
self imposed restriction”. Further held, that the alternative remedy would not
operate as a bar if any of the three following contingencies existed:

i) Where the writ petition seeks enforcement of any of the fundamental rights;

ii) Where there is violation of principles of natural justice; or

iii) Where the order or the proceedings are wholly without jurisdiction or the
views of an Act is challenged. Hence, where the show cause notice issued
by the Registrar of Trade Marks under Section 56(4) of the Trade and
Merchandise Marks Act, 1958 was challenged by a writ petition on the
grounds that the notice was wholly without jurisdiction, held, High Court
erred in dismissing the writ petition at the initial stage without examining
that contention.

57
.AIR 1952 ASSAM 192
58
. (1998) SCC (8) .

86
Procedure and other aspect of Writ of Habeas Corpus:

1) Procedure: Every application for a writ of Habeas Corpus must be accompanied

by an affidavit stating the facts and circumstances leading to the making of such
application. If the court is satisfied that there is a prima facie case for granting the
prayer, it will issue a rule nisi calling upon the detaining authority on a 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 according to court, the detention was justified, the rule nisi will be
discharged. Where there is no return to the rule nisi, the prisoner is entitled to be
released forthwith. The court had jurisdiction to grant interim bail pending
disposal or a petition.

Normally a writ petition has to be properly verified by an affidavit and the rules of
procedure laid down in the rules of the court are to be followed. However, in the
case of an application for a writ of Habeas Corpus, the court does not, as a matter
of practice,” fallow strict rules of pleadings” not does it “place undue emphasis on
the question on whom the burden of proof lies? Even a postcard written by a
detainee from jail has been sufficient to actives this court into examining the
legality of detention.”

2) Expeditious Hearing: The whole object of proceedings for a writ of Habeas

Corpus is to make them expeditions to keep them as free from technicality as
possible and to keep them the simple as possible. The incalculable value of
Habeas Corpus is that it enables the immediate determination of the right to the
freedom of the detainee or prisoner. The jurisdiction of the Supreme Court and
High Courts to grant relief to the detainee in Habeas Corpus proceedings is very
narrow and very limited. That being so, if the Court takes the view that prima
facie, the allegations made in the writ petition disclose a serious defect in the order
of detention which would justify the release of the detainee, the wiser and the
more sensible and reasonable course to adopt would invariably be to expedite the
hearing of the writ petition and deal with the merits without any delay.

The right to speedy trial has become a universally recognized human right.
However, in the beginning the Indian Constitution did not guarantee the right,

87
 Since 1978, there was many changes ups and downs in the judicial interpretation
of the constitutional provisions. Article 21 has been the most favourite centre of
judicial creativity. The right to speedy trial received the status of fundamental
right due to the liberal judicial interpretation of Article 21.

3) Burden of Proof: In England it is well settled that the writ of Habeas Corpus is not
granted as of course as would an original writ for initiating an action. It is issued
only on probable cause being shown by an affidavit either of the person detained
or of some other person on this behalf. If applicant cannot show prima facie that
there is sufficient ground for his discharge the writ would not issue and his
application would be summarily rejected. In obedience to the writ the respondent
would produce the person detained before the Court and file on a return showing
the cause of detention. At the hearing on the data named or arguments will take
place, the burden of providing lawful justification for the detention being on the
respondent.

If no legal ground is made out justifying detention, person detained would be

immediately discharged. On the other hand, the application would be dismissed if
the detention was shown to be justified.

But, as observed by Lord Atkin in England there is a principle under the English
Law that “every imprisonment is prima facie unlawful, and that it is for a person
directing imprisonment to justify his act.”

The same principles are also accepted in India, that “ when the detainee contends
that the procedure prescribed by Article 22(5) of the Constitution is not completed
with the detaining authority will have to produce necessary materials to refuse that
contention. In Mohiuddin V. District Magistrate59 , the Supreme Court held that in
a petition for grant of a writ of Habeas Corpus it is enough for the detainee to say
that he is under wrongful detention, and the burden lies on the detaining authority
to satisfy the court that the detention is not illegal or wrongful and that the
petitioner is not entitled to the relief claimed. It is now well settled that it is
incumbent on the state to satisfy the court that the detention of the detainee was
legal and in conformity not only with mandatory provisions. But if it is alleged by

59
.AIR (1987) SC 1977.

88
 the detainee that the order of detention is malafide, the burden of proof is on the
detainee and he has to establish it.

4) Duty of Courts: The liberty of an individual is the most cherished of human

freedoms and even in face of greatest emergencies, judges have played a historic
role in guarding that freedom with zeal and jealously, though within the bounds,
the furthest bounds of constitutional power. The approach of the Court must be
objective striking a balance between need to protect the community on the one
hand and the necessity to preserve the liberty of a citizen on the other hand.

As observed by C.J. Patanjali Sastri, “ Preventive detention is a serious invasion

of personal liberty and such meager safeguards as the Constitution has provided
against the improper exercise of the power must be jealously watched and
enforced by the court”.

5) Duty of State: When prima facie case for issuance of a writ of Habeas Corpus has
been made out, the Court will issue rule nisi calling upon the opposite party to
justify the arrest or detention. When issues of facts are involved, the authority will
file a counter affidavit disclosing facts and circumstances against the detainee or
prisoner. It is obligatory on the part of the state to place before the Court all the
relevant and material facts leading to the impugned action truly, faithfully and
with utmost fairness. The court would normally accept without reservation the
sworn affidavits by responsible officers on the assumption that the facts stated
therein are absolutely correct and that there is no misstatement or concealment of
relevant or material facts. It is therefore, incumbent on the part of the officer
concerned swearing the counter affidavit to take proper and sufficient care to
satisfy himself that what he states on oath is absolutely true according to the
record.

Where in a Habeas Corpus petition a rule nisi is issued, it is incumbent upon the
State to satisfy the Court that the detention of the detainee was legal and in
conformity not only with the mandatory provisions of the relevant statute but also
in accordance with the requirements implicit in clause(5) of Article 22 of the
Constitution. Since the court is precluded from testing the subjective satisfaction
on the objective standards, it is all the more desirable that in response to the rule
nisi, the counter-affidavit on behalf of the state should be sworn by the detaining

89
 authority who has passed the order and has personal knowledge or in his absence
by some senior or responsible officer who personally dealt with or processed the
case in the Government Secretariat or submitted it to the minister.

But at the same time, the court has power to go behind the order of detention or to
inquire about the correctness or otherwise of the return. In fact, if the court doubts
about the candidate to disclosure of fact in the return affidavit, the Court is
expected to go behind the return to satisfy it that the impugned action is lawful or
not. If the court refuses to do so, it would be failing in its duty imposed by the
Constitution to protect individual freedom and personal liberty.

6) Whether Habeas Corpus can be granted Exparte?

When a petition for a writ of Habeas Corpus is filed, ordinarily, the Court will not
issue the writ exparte unless the urgency of the situation so demands or issuing of
a notice of motion may likely to result in defeat of justice. Again, the court will be
reluctant to issue a writ of Habeas Corpus exparte where the fact of detention
being contrary to law is likely to be contravene an enquiry become necessary to
investigate the facts. In that case, the Court will follow the ordinary and regular
procedure. If the applicant makes out a prima facie case of unlawful detention,
rule nisi would issue to the respondent and on the rule nisi the case would be
heard on the merits and if the court holds the detention illegal the rule will be
made absolute and writ will be issued. On the other hand, if the court is of the
opinion that the detention is legal and lawful, the writ will be issuesed and the rule
will be discharged.

According to Halsbury’s Laws of England “ The writ of Habeas Corpus will not
normally be ordered ex parte to issue, but may be so ordered to issue in an urgent
case or in any case where the issuing of a summons or a notice of motion would
be likely to result in a defeat of justice or where the facts and law are clear. Thus,
in cases relating to the custody of minors, where there is a probability of a minor
being removed out of the jurisdiction, or of his custody being changed or parted
with, the issue of the writ ex parte may be the expedient and proper course.

The normal practice is to adjourn the application for notice to be served on the
respondent (normally the person detaining but frequently also those persons who
have brought about the detention) and for evidence to be filed in reply. The matter

90
 is them dealt with on the adjournment application rather than after the writ has
been issued. The court may, however, in a doubtful case give leave for short
notice to be served to enable the court to hear the respondent and determine
whether there is substance in the application. If there is, a further adjournment can
be ordered for evidence to be filed. If not, the application may be dismissed. It is
to be noted that the application is in the first place for the writ and not for leave.
When the court order service it is giving direction and not to leave.

7) Bail and Habeas Corpus:

As early as 1944 the Lahore High Court60 held , where the court before finally
deciding to make a complaint under Section 476 of Criminal Procedure Code
orders that the accused should remain in the judicial look up, the proper
application would be for Habeas Corpus and not for bail, because the court has no
power at this stage to grant bail and even recently the Supreme Court 61 held that
“In a case of Habeas Corpus petition the High Court has jurisdiction to release
detenue on bail, pending final disposal of petition. Further , according to
Travancore and Cochin High Court62, writ cannot be issued on the ground that bail
petition or its rejection would serve as estoppels, two reliefs are entirely different
and even though bail was moved for a person it may on scrutiny turn out that
detention is illegal.63

The Supreme Court or High Court has jurisdiction to grant bail or parole to the
detainee, but the exercise of the said power is inevitably circumscribed by the
consideration which are special to such proceedings and which have relevant to
the object which is intended to be achieved by orders of detention properly and
validity passed under the preventive detention laws.

There is a vital difference between preventive detention and punitive detention.

Preventive detention is a precautionary measure and is intended to pre-empt a
person from indulging in illegal or anti-social activities in order to safeguard the
defence of India, public safety, maintenance of public order, maintenance of
supplies and services essential to the life of the community, preventive of

60
.AIR Manual (Civil and Criminal), Op, Cit., P 216.
61
AIR (1966) S.C. 1441.
62
.Id.
63
.Id.

91
 smuggling activities, etc., Therefore the jurisdiction of the court to grant relief to
the detainee in such proceedings is indeed narrow and very much limited. Bail
cannot be granted as a matter of common practice on considerations generally
applicable to cases of punitive detention. Therefore, whenever the court is of the
view that prima facie the allegations made in the writ petition disclose a serious
defect in the order of detention, the wiser and the more sensible and reasonable
course to adopt would invariably to be expedite the hearing of the writ petition
and deal with the merits without any delay.

A question arises that Interim Bail whether permissible? As usual it cannot be

accepted as a general rule, that the court has no jurisdiction to make an interim
order giving the detainee the relief which the court would be entitled to give him
at the end of the proceedings, on principle and in theory it is not easy to
understand why the court cannot give interim relief to the detainee pending the
final disposal of his writ petition. The interim relief which can be granted in
Habeas Corpus proceedings must no doubt be in aid of, and auxiliary to the main
relief. It cannot be urged that releasing a detainee on but is not in aid of, or
auxiliary to the main relief for which a claim is made on his behalf in the writ
petition.

An unwise decision granting bail to a party many lead to consequences which are
prejudicial to the interests of the community at large and that is a factor which
must be duly weighted by the High Court before it decides to grant bail to a
detainee in such proceedings.

If an order of bail by the court without a full trial of the issues involved merely on
prima facie opinion formed by the High Court, the said order would be open to
challenge that it is the result of improper exercise of jurisdiction and its proper
exercise. Improper exercise of jurisdiction in such matters must necessarily be
avoided by the courts in dealing with application of this character.

8) Successive application- Resjudicata:

In England under the common law successive application for writ of Habeas
Corpus for the same cause of action were maintainable. The detainee could
present an application to each judge consecutively.

92
 Subsequently the earlier view was reconsidered and it was held that if a petition is
heard by a court of Queen’s Bench Division and is dismissed, the applicant cannot
be held on a fresh application on the same grounds by another Court of Queen’s
Bench Division, as the earlier decision can be said to be a decision of all the
judges of the Queen’s Bench Division.

Section 14(2) of the Administration of Justice Act 1960 now prohibits fresh
application for Habeas Corpus on the same grounds after dismissal of the first
application.

In India prior to the application of the Constitution it was held by the Allahabad64,
Bombay65, and Patna High Courts66 that when an application under Section 491
Cr.P.C had been disposed of by a duly constituted court, no further application lay
to the High Court on the same ground, a full Bench of East Punjab67 High Court,
however held to the contrary on the ground that an order did not constitute a
judgment within the meaning of section 369 of the Cr.P.C and that since there was
no acquittal nor conviction, neither the principle of Rejudicata nor that of finality
of decision is attracted, so as to bar a fresh application on the same grounds.

After the coming into operation of the Constitution there has been a difference of
opinion in the High Courts: In Re Prahalad Krishna Kurane’s68 case held, that the
order of dismissing the application for writ of Habeas Corpus by the High Court
was the order of the whole court and further no subsequent application lies on the
same grounds. The Madras High Court and Patna High Court69upheld the same
principle.

Repelling the contention of the respondents the Court held that unlike in England,
in India the person detained can file an original application for enforcement of his
fundamental right to liberty before a court other than the High Court, namely the
Supreme Court in India. The order of the High Court in the said writ is not
resjudicata as held by the American and English Courts either because it is not a
judgment or because the principle or resjudicata is applicable to a fundamentally

64
. Maidari V. Jaward, (1934) All 271.
65
. Mahavir V. Emperor, ARR (1948) Bom 326( S.B)
66
.Raghunandan V. Province of Bihar, AIR (1949) Pat.
67
.Ranjit V. Crown ARR (1949) E.P. 67 (F.B)
68
.AIR (1951), Bom 25.
69
. AIR (1956) Pat 182.

93
 lawless order. If the principle of Resjudicata is not applicable for a writ of Habeas
Corpus there is no reason why the principle of constructive Rejudicata cannot also
govern the said application. If such principles are applied the scope of liberty of an
individual will be considerably narrowed. In the words of Subba Rao, C.J. “ If the
doctrine of constructive Resjudicata be applied, this court through is enshrined by
the Constitution, to protect the right of a person illegally detained, will become
powerless to do so. This would be writing down the wide sweep of the
Constitution protection.”

9) Compensation: The paramount object of writ of Habeas Corpus is to secure the

release of the detainee or prisoner and not to punish or penalize the wrong doer.
Therefore, as a general rule, the provisions of Article 32 or Article 226 cannot be
used as a substitute for the enforcement of rights and obligations which can be
done efficiously through ordinary process of Courts, civil and criminal.

That, however, does not mean that is no case, a court can award compensation or
damages to the person against whom wrong is committed and who has suffered a
legal injury.

In Rudul Sah V State of Bihar70 a petition for a writ of Habeas Corpus filed by the
petitioner was allowed holding the detention to be illegal. As an ancillary relief,
the petitioner had prayed for compensation for his illegal detention in jail for
about 14 years. Before the petition was taken up for hearing the petitioner was
already released from jail and thus the petition had become in fructuous. The
Supreme Court, however, issued a show cause notice for ancillary relief. Holding
the act of detention of the petitioner in jail for over 14 years even after acquittal by
a competent criminal court to be illegal and unlawful, the Supreme Court awarded
Rs.30,000/- to the petitioner by way of compensation speaking for the court ,
Chandrachud, C.J. observed that; “ It is true that Article 32 cannot be used as a
substitute for the enforcement of rights and obligation which can be enforced
efficaciously through the ordinary process of Courts , civil and criminal. A money
claim had therefore to be agitated in the adjudicated upon in a suit instituted in a
court of lowest grade competent to try it. But the important question for our
consideration is whether in the exercise of its jurisdiction under Article 32, this

70
. AIR (1983), SC 1086.

94
 court can pass an order for the payment of money if such an order is in the nature
of compensation, consequential upon the deprivation of a fundamental right. We
have no doubt that if the petitioner files a suit to recover damages for his illegal
detention, a decree for damages would have to be passed in that suit, through it is
not possible to predicate in the absence of evidence, the precise amount which
would be decreed in his favour. In these circumstances, the refusal of this court to
pass an order of compensation in favour of the petitioner wil be doing mere lip-
service to his fundamental right to liberty which the State Government has so
grossly violated. Article 21 which guarantees the right to life and liberty will be
demanded of its significant content if the power of this court were limited to
passing orders of release from illegal detention. One of the telling ways in which
the violation of that right can reasonably be prevented and due compliance with
mandate of Article 21 secured, it to mallet its violators in the payment of monetary
compensation”.

Similarly, in Sebastian m. Hongray V Union of India71, the Supreme Court issued

a writ of Habeas Corpus directing the Government of India to produce two
persons who were arrested and kept under army custody. The Government failed
to produce them expressing its inability to comply with writ. An inference was
drawn by the court that they must have met an unnatural death. Therefore, keeping
in view the torture, agony and mental apprehension through which the wives of
those persons had to pass, the court directed government to pay Rs. 1,00,000/- to
each of the wives of missing persons as a measure of exemplary costs.

Again in Bhim Singh V State of Jammu and Kashmir72 a member of the Jammu
and Kashmir Legislative Assembly was arrested and illegally detained in police
custody deliberately with malafide intention and oblique motive from preventing
him from attending session of the Assembly. He filed a petition in the Supreme
Court under Article 32 of the Constitution.

By the time the matter came up before the court for hearing, the petitioner was
released. But holding that his fundamental rights guaranteed by Articles 21 and 22
were violated, the court held that the petitioner was entitled to compensation.
Following Rudul Shah and Sebastain, the court observed that “ When a person
71
. AIR (1984) SC 1026.
72
. AIR (1986) SC 494.

95
 comes to us with the complaint that he had been arrested and imprisoned with
mischievous or malicious intent and that his Constitutional and legal rights were
invaded, the mischief or malice and the invasion may not be washed away or
wished away by his being set free. In appropriate cases we have the jurisdiction to
compensate the victim by awarding suitable monetary compensation. We consider
this an appropriate case. We direct the first respondent, the state of Jammu and
Kashmir to pay to Shri Bhim Singh a sum of Rs. 50,000/- within two months from
today”.

But the observations of Bhagawati, C.J. in the leading case of M.C. Mehta V
Union of India73 lays down the correct point of law on the point: “This court under
Article 32(1) is free to devise any procedure appropriate for the particular purpose
of the proceedings, namely, enforcement of a fundamental right under Article
32(1) the court has the implicit power to issue whatever direction, order or writ is
necessary in a given case, including all incidental or ancillary power necessary to
secure enforcement of the fundamental right. The power of the court is not only
injunctive in ambit, that is , preventing the infringement of fundamental right, but
it is also remedial in scope and provides relief against a breach of the fundamental
right already committed. If the court were powerless to issue any direction, order
or writ in cases where a fundamental right has already been violated, Article 32
would be robbed of all its efficacy, because then the situation would be that if a
fundamental right is threatened to be violated, the court can injunction such
violation but if the violator is quick enough to take action infringing the
fundamental right, he would escape from the net of Article 32. That would, to a
larger extent, emasculate the fundamental right guaranteed under Article 32 and
render it impotent and futile. We must, therefore, hold that Article 32 is not
powerless to assist a person when he finds that is fundamental right has been
violated. He can in that even seek remedial assistance under Article 32. The power
of the court to grant such remedial relief may include the power to award
compensation is appropriate cases”.

73
.AIR (1989) SC 1086.

96
 74
In D.K. Basu V State of West Bengal

In this case following requirements have been imposed by the court which has
to be followed in all cases of arrest or detention till legal provisions are made as
preventive measures;

1) The particulars of all such police personnel who handle interrogation of the
arrestee must be recorded in a register.

2) That the police officer carrying out the arrest shall prepare a memo of arrest at the
time of arrest and such memo shall be attested by at least one witness, who may
either be a member of the family of the arrestee or a respectable person of the
locality from where the arrest is made. It shall also be countersigned by the
arrestee and shall contain the time and date of arrest.

3) A person who has been arrested or detained and is being held in custody in a
police station or interrogation center or other lock-up, shall be entitled to have
one friend or relative or other person known to him or having interest in his
welfare being informed, as soon as practicable, that he has been arrested and is
being detained at the particular place, unless the arresting witness of the memo of
arrest is himself such a friend or a relative of the arrestee.

4) The time, place of arrest and venue of custody of an arrestee must be notified by
the police where the next friend or relative of the arrestee lives outside the district
or town through the legal to organization in the District and the police station of
the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5) The person arrested must be made aware of this right to have someone informed
of his arrest or detention as soon as he is put under arrest or is detained.

6) An entry must be made in the diary at the place of detention regarding the arrest
of the person which shall also disclose the name of the next friend of the person
who has been informed by the arrest and the names and particulars of the police
officials in whose custody the arrestee is.

7) The arrestee should, where he so requests, be also examined at the time of his
arrest and major and minor injuries, if any present on his/her body, must be

74
.SCC (1997) Eastern Book company, 34, Lalbagh, Licknow 22600 P. 416,118, 419.

97
 recorded at that time. The “Inspection Memo” must be signed both by the arrestee
and the police officer effecting the arrest and its copy provided to the arrestee.

8) The arrestee should be subjected to medical examination by a trained doctor

every 48 hours during his detention in custody by a doctor on the panel of
approved doctors appointed by Director, Health Services of the State or Union
Territory concerned.

9) Copies of all the documents including the memo of arrest, referred to above,
should be sent to the Illaqa Magistrate for his record.

10) The arrestee may be permitted to meet his lawyer during interrogation though not
throughout the interrogation.

11) A police control room should be provided at all district and state headquarters,
where information regarding the arrest and the place of custody of the arrestee
shall be communicated by the officer causing the arrest, within 12 hours of
effecting the arrest and at the police control room it should be displayed on a
conspicuous notice board.

The court held that State has to pay compensation for custodial violence state in
vicariously liable for acts of public servants.

The Indian Constitution does not specifically provide any right against
custodial violence. However certain fundamental rights are mainly contained in
Articles 19, 20,21,22,32 and 226 of the Constitution. Besides these Constitutional
rights, they enjoy certain legal rights under the Indian Penal code, criminal procedure
code and the Indian Evidence Act 1861. Various police and prison acts also carry
certain rules and regulations against custodial torture. The human rights conscious
Indian Supreme Court in a number of cases has not only acknowledged these rights
but expanded their scope through the process of judicial activism giving new and
liberal interpretation which covers ;

i) Right to life,

ii) Right against self incrimination,

iii) Right to be informed of ground for arrest ,

iv) Right to consult a legal practitioner,

98
 v) Right to be produced before magistrate within 24 hours of arrest ,

vi) Bar against handcuffing.

10) Disobedience of a writ of Habeas Corpus:

A writ of Habeas Corpus issued by the Supreme Court or by a High Court is

required to be obeyed by the person to whom it is issued. Disobedience of the said
direction would amount to contempt of Court. Any willful interference by the
contemnor would be punishable with attachment of property and even
imprisonment of the contemnor. A valid excuse will, however, be that it is
impossible to obey the order.

This, in Mohammad Ikram V State of U.P, the High court of Allahabad passed an
order directing the respondent to produce Kaniz Fatima. The respondent willfully
and deliberately disobeyed the said order and therefore, the High Court committed
the respondent and awarded simple imprisonment of three months. The Supreme
Court up held said order.

Similarly, in Sebastain M Hongray V Union of India75, the Supreme Court issued

a Writ of Habeas Corpus to produce two persons. The government failed to
produce them expressing its inability to comply with the writ. Holding it to be
willful disobedience of a writ of Habeas Corpus and keeping in view the torture,
agony and mental oppression through which the wives of those missing persons
had to pass, the court directed the government to pay Rs. 1,00,000/- to each of the
wives of the missing persons as a measure of exemplary cots.

Referring to Halsulbery’s Laws of England, the court rightly observed; that “

Mere failure ot obey the writ may not constitute civil contempt depending upon
the facts and circumstances of the case. But willful disobedience to a writ issued
by a court constitutes civil contempt. Again it is well settled that the appropriate
mode of enforcing obedience to a writ of a Habeas Corpus is by committal for
contempt. A committal order may be made against a person who intentionally
makes a false return to a writ of Habeas Corpus but an unintentional
misrepresentation on a return is not a ground for committal”.

75
. . AIR (1984) SC 1026.

99
CONCLUSION:

The judiciary has been considered as protection of individual liberty so the

Constitution has conferred wide power to High Court and Supreme Court under
Articles 226 and 32 respectively. And also right to move Supreme Court under Article
32 for enforcement of fundamental right is itself considered a fundamental right
therefore the main object of these courts is to ensure the individual liberty which
provided in Constitution and other law or statute against the unlawful act of executive
authority thus court adopted liberalized concept of locus standi that is any person can
apply who is wrongfully or illegally detained, with an affidavit which stated the back
grounds of his detention. Other persons who acquainted with the facts can also claim
this petition on behalf of detenue sometimes courts consider letter written to judges as
writ petition without observing any particular procedure on this basis of justice and
equality.

In an exceptional and rare case detention already made an either served or yet
to be served could be legally brought under challenge even if the person concerned is
not in custody.

The writ of Habeas Corpus will not issued where there is alternative remedy
and other remedies conferred in other statute. In some exceptional cases even
alternative remedy if courts think that there was no other speedy and efficacious
remedy, immediate determination of detention is necessary then writ of Habeas
Corpus can be issued it is desertion of the court generally liberal in entertaining the
petition of Habeas Corpus, personal liberty being a fundamental right, the Supreme
Court cannot, however, refuse an application consistently with the responsibility laid
upon it as a protector and guarantor of fundamental right.

Every application for a writ of Habeas Corpus must be accompanied by an

affidavit stating the facts and circumstances leading to the making of such application.
If the court is satisfied that there is a prima facie case for granting the prayer, it will
issue a rule nisi calling upon the detaining authority on a specified day, the court will
consider the merits of the case and will pass an appropriate order.

100
 Normally a writ petition has to be properly verified by an affidavit and the
rules of procedure laid down in the rules of the court are to be followed. However, in
the case of an application for a writ of Habeas Corpus, the court does not, as a matter
of practice,” fallow strict rules of pleadings” not does it “place undue emphasis on the
question on whom the burden of proof lies? Even a postcard written by a detainee
from jail has been sufficient to actives this court into examining the legality of
detention.”

The liberty of an individual is the most cherished of human freedoms and even
in face of greatest emergencies, judges have played a historic role in guarding that
freedom with zeal and jealously, though within the bounds, the furthest bounds of
constitutional power.

Article 21 has been the most favorite centre of judicial creativity. The right to
speedy trial received the status of fundamental right due to the liberal judicial
interpretation of Article 21.

When a petition for a writ of Habeas is filed, ordinarily, the Court will not
issue the writ ex-parte unless the urgency of the situation so demands or issuing of a
notice of motion may likely to result in defeat of justice.

101
 CHAPTER-IV
JUDICIAL DEVELOPMENT OF HABEAS
CORPUS AND LEGAL REMEDIES
AVAILABLE TO THE DETENUE
 CHAPTER-IV

JUDICIAL DEVELOPMENT OF HABEAS CORPUS AND LEGAL

REMEDIES AVAILABLE TO THE DETENUES.

4.1 INTRODUCTION:

The expression “writ” has not been defined in the Constitution. However,
according to the dictionary meaning it is “a formal order in writing issued under seal,
in the name of a sovereign, government, court or other authority commanding an
officer or other person to whom it is issued to do or refrain from doing some act
specified therein.”

Blackstone described a writ as “a mandatory letter from the king in

Parliament, sealed with his great seal, directed to the Sheriff of the County wherein
the injury is committed, or supposed so to be, requiring him to command the
wrongdoer or party accused, either to do justice to the complainant, or else to appear
in Court, an answer the accusation against him”. Corpus juris secundam1 defines writ
“a judicial instrument by which the court commands some act to be done by the
person to whom it is directed.” Disobedience of the writ 2was considered as contempt
of the royal authority and punishable as such.

The writ is prerogative one which is especially associated with the King.
Prerogative writs are writs which were originally issued only at the suit of the King
but which were later on made available to the subjects.

A prerogative writ was issued only on probable cause being shown to the
satisfaction of the court that why extraordinary power of the crown is required to be
exercised in favour of the applicant. It was issued by the crown as a fountain of
justice, where there was no statutory source of redress and the crown used to issue
orders by way of his prerogative.

The courts of common law started using the writ of Habeas Corpus for
extending their jurisdiction at the expense of the rival courts.

1
. Vol. 101.P 636.
2
. Carter: History of English Courts, P 25.

102
 In case of India the jurisdiction to issue prerogative writs came with the
establishment of the Supreme Courts by the Regulating Act of 1773 with abolition of
the three Supreme Courts in Calcutta, Bombay, and Madras by Act of Parliament in
1861. Section 9 of the latter Act provided for establishment of High Courts by Letters
Patent. Those High Courts had original jurisdiction only within the respective
Presidency Towns. After the Constitution of India came into force both Supreme
Court and High Court’s empowered under Article 32 and 226 where it confers
extensive power on both the courts to issue the writ of Habeas Corpus throughout
their respective territorial jurisdiction.

4.2 Judicial Development of Writ of Habeas Corpus in U.K.:

As mentioned earlier the origin of Habeas Corpus found in Magna Carta 1215.
It was a statute that was never meant to be repealed.

In England Habeas Corpus is of Common Law origin, and is thus as old as

Common Law itself. Earl of Birkinhead3 described it as “a writ antecedent to statute
and throwing its roots deep into the genius of our Common Law”. But its
effectiveness was secured by the Habeas Corpus Acts of 1640, 1679 and 1816.
According to Dicey, Habeas Corpus acts were for practical purposes worth a hundred
constitutional Articles guaranteeing individual liberty.4

The Act of 1640 authorized the Court of Common Pleas also to issue the writ,
and peremptorily demanded that even if any person is committed by the King himself
in person or by His Privy Council or any of the members thereof he shall have granted
a writ unto him upon demand of motion made and the matter shall be enquired into
within three days after the return is made. The Act of 1679 was concerned with
prisoners who were detained on criminal charges but all other cases of unjust
imprisonment were remedied by Habeas Corpus at Common Law. The 1679 Act
sought to prevent evasions of law and protect liberty of subjects against arbitrary and
unlawful detention by tyrannical monarchs and their officers. During the regime of
Stuart Kings, on the receipt of the writ by one gaoler, the prisoner would be removed
to another goal and then inform the court that he had no longer the body of the

3
. R.V. Secretary of State, Ex parte O’ Brien, (1923) 2 KB 361: AC 603:92LJ KB 797.
4
. Law and the Constitution, (1915).p.199.

103
prisoner, and hence could not produce him. Sometimes, even Judge refused to hear
prayers for a writ of Habeas Corpus. All those actions were made punishable.

The 1816 Act precluded the issue of the writ to any colony in which there was
a Court empowered to issue the writ. During the reign of George III there was a
Habeas Corpus Suspension Act of 1793. This Act was renewed by re-enactment every
year for Seven years by Parliament which ultimately passed the Indemnity Act in
1801. The uncertainty of the law of Suspension Act followed by an Indemnity statute,
led to an acquisition of direct powers by Parliamentary Legislation during the First
World War in the shape of the Defence of the Realm Acts 1914-1915. They
authorized the Executive to make regulations by Order-in-Council for securing the
public safety or the defence of the realm. Detention without trial was said to preclude
the initial release on Habeas Corpus. But the dissenting judgment of Lord Shaw in
King V. Halliday,5 refused to recognize this position without express words in the
statute to that effect.

The Habeas Corpus Acts have done for the liberty of the Englishmen more
than could have been achieved by way of declaration of rights. It is interesting to
mention that in England if a Judge declines to issue a writ of Habeas Corpus he is
liable to a fine. Under the English law there cannot be any appeal where a man has
been set free by means of Habeas Corpus.

In Halsbury’s Laws of England,6 it is stated: “In any matter involving the

liberty of the subject the action of the Crown or its ministers or officials is subject to
the supervision and control of the judges on Habeas Corpus. The judges owe a duty to
safeguard the liberty of the subject not only to the subjects of the Crown, but also to
all person within the realm who are under the protection of the Crown and entitled to
resort to the courts to secure any rights which they may have, and this whether they
are alien friends or alien enemies. It is this fact which means the prerogative writ of
the highest constitutional importance, it being a remedy available to the lowliest
subject against the most powerful. The writ has frequently been used to test the
validity of acts of the executive and, in particular, to test the legality f detention under
emergency legislation. No peer or lord of Parliament has privilege of peerage or

5
.(1917) AC 260:86 LJKB 1119.
6
.Halsbury’s Laws of England, (4th Edn). Vol.11, para 1454.p.769.

104
Parliament against being compelled to render obedience to a writ of Habeas Corpus
directed to him.”

4.3 Application for Writ of Habeas Corpus:

The application is made ex parte under the present procedure. When an

application for Habeas Corpus has been made in a civil or criminal matter such
application may be made on the same ground in respect of the same person to any
other Court or Judge unless fresh evidence is adduced in support of the application.
This is provided under the law. In R V. Governor of Briston Prison 7 it was held that
the Court retains jurisdiction to control its own procedures so as to prevent them from
being used vexatiously or in abuse of process and may, thus, strike out proceedings in
appropriate case.

In general, on an application for a writ of Habeas Corpus fresh evidence will

not be admitted. Therefore, where the application did not raise any issue or call for
evidence before the Magistrate that he would, if sent back to Ireland, be prosecuted or
detained for an offence of a political character, he is precluded from raising this issue
or adducing evidence on the matter before a higher court. Where an order for
detention and removal of a person as an illegal entrant is completely in order it is
prima facie good and the burden is on the applicant for Habeas Corpus to challenge
its validity and show that he is being unlawfully detained, by providing that his
passport has been stamped with lawful authority.8

In R.V. Home Secretary9 it was held that “a writ of Habeas Corpus will issue
whether some one is detained without any authority of the purported authority is
beyond the powers of the person authorizing the detention and so is unlawful. The
remedy of Judicial Review is available whether the decision or action sought to be
impugned is within the powers of the person taking it but, due to procedural error, a
misappreciation of the law, a failure to take account of the relevant matters, or taking
account of irrelevant matters or the fundamental unreasonableness of the decision or
action, it would never been taken.”

7
. Ex .p.Osman (4) (1992) 1 All ER 579.
8
.Reenobbs (1979) All ER 390.
9
.Ex .p. Cheblam, (1991) 1 WLR 890, 894.

105
 In R v. Secretary of State of the Home Department10, it was held that “if it be
objected, and shown, that the use of a writ of Habeas Corpus quin time is novelty, so
be it. Thus, the greatest and oldest of all the prerogative writs, is quite capable of
adopting itself to the circumstances of the times. An alternative might be to adopt the
writ of ne exact regno which was designed to prevent debtor fleeing the country, to
suit a situation in which far from wishing to leave the jurisdiction someone is being
compulsorily removed there from.”

The application need not be in the name of person detained but may be made
by another person at his instance or a person entitled to his custody or where it was
not possible by a relative or friends on his behalf and the evidence in support of the
application should depose to the facts on his head as well as to the fact on which the
intervention of the court is sought.

As writer of England Mr. Fredrick Pollock and Fredrick Maitland said

in his classical text “The History of English Law”. That the Magna Carta becomes,
and rightly becomes a sacred text, the nearest approach to an irrepealably
“fundamental statute” that England has ever had….

It was in 16th Century that writ of Habeas Corpus first began to be used
consistently as a means of testing the validity of executives committals to
imprisonment. And in 17th Century, in the struggle between the crown and emerging
bourgeoisie, that its use assumed a revolutionary dimension.

In 1627 in Darnel’s case, King Charles had imprisoned for 5 nights as a result
of their refusal to contribute to repay the forced loan he had taken out. The court in
this case ruled in favour of the king but in retaliation the parliament passed Habeas
Corpus Act 1640, to reverse that decision and curtail the power of arbitrary
executives.

In 1679, a second Habeas Corpus Act was passed which made it clear that the
territorial scope of the protection afforded by Habeas Corpus, the guarantee against
the arbitrary detention was intended to be broad. It was passed to overcome from the
procedural defects faced by 1640 Act.

10
.Ex. p. Mubayayi (1991) 3 WLR 442.

106
4.4 Habeas Corpus ad Testificandum and ad Respondendum:

The writ of Habeas Corpus ad testificandum is granted by a judge of the High

Court under common law power and for the purpose of trial in the High Court under
the Habeas Corpus Act, 1804. It is issued for bringing up a prisoner to give evidence
before a court. The writ of Habeas Corpus ad respondendum is granted under
common law and in regard to court-marshall and proceedings before the
Commissioners in bankruptcy, under Habeas Corpus Act, 1803. It is issued to bring
up the prisoner for trial or to be examined.

4.5 Court’s discretion not to refuse Habeas Corpus.

In Greene v. Secretary of State for Home Affairs,11 it was held that if it is

established that the detention is unlawful, the applicant is entitled to the writ and the
Court has no discretion to refuse it. A writ of Habeas Corpus is also considered and is
referred to as matter of right.

In England Order 54 of Supreme Court Practices, 1994 provides elaborate

provisions for application for writ of Habeas Corpus.

4.6 Judicial development of writ of Habeas Corpus in India:

The jurisdiction to issue prerogative writs came with the establishment of the
Supreme Courts by the Regulating Act of 1773. With abolition of the three Supreme
Courts in Calcutta, Bombay and Madras by Act of Parliament in 1861. Section 9 of
the latter Act provided for establishment of High Courts by Letters Patent12. Those
High Courts had original jurisdiction only within the respective Presidency Towns.

In Bombay, the Supreme Court issued a writ of Habeas Corpus for production
of Moro Raghunath, detained at poona by his grandfather. The Advocate General
opposed the writ on the ground that both the persons (Raghunath and his grandfather
Ramachaner) were residents of Poona and thus outside the jurisdiction of the court.
The court, however, issued writ and also imposed penalty of Rs. 10.000/-. It was not
obeyed. Sir Peter Grant, hence shut down the court and left for England.13

11
.(1942) AC 284.
12
. Supre note P. 1 of Chapter III.
13
.Moro Ragunath case, drewitt, Bombay in the Days George IV, 58, 180 (1935): see also Justices of
the Supreme Court of Judicature, 12 ER 222.

107
 In Amir Khan Re14, it was held that the Supreme Courts had power to issue the
writ of Habeas Corpus beyond the jurisdiction of the court i.e., in the mofussil and
that the High Courts also inherited the power. The Code of Criminal Procedure, 1872
took away the power of the High Courts and its Judges to issue the writ of Habeas
Corpus beyond the Presidency Towns. Section 491 of the Code of Criminal
Procedure,1898 made provisions for issuing directions in the nature of Habeas Corpus
but the power was to be exercised within the limits of its ordinary original civil
jurisdiction instead of criminal jurisdiction.

The decision in 1923 in Govindan Nair. Re15, indicated that Habeas Corpus
could be issued by the Madras High Court in its appellate jurisdiction but the Privy
Council held it to be erroneous.16 The Criminal Law (Amendment) Act, 1920
amended Section 491 of the Code of Criminal Procedure, 1898 and made the writ o
Habeas Corpus available throughout the jurisdiction of each of the High Courts in
India in their appellate jurisdiction.

The position was finally cured after the Constitution of India came into force.
Article 32 and 226 conferred extensive power on the Supreme Court and all High
Courts to issue the writ of Habeas Corpus throughout their respective territorial
jurisdiction.

In Sampawia v. Deputy Commissioner, Aijal17,Dua, J. observed that “The writ

of Habeas Corpus is a prerogative writ by which the causes and validity of detention
of a person are investigated by summary procedure and if the authority having his
custody does not satisfy the court that the deprivation of his personal liberty is
according to the procedure established by law, the person is entitled to his liberty. The
order of release in the case of a person suspected of or charged with the commission
of an offence does not per se amount to his acquittal or discharge and the authorities
are not, by virtue of the release only on Habeas Corpus, deprived of the power to
arrest and keep him in custody in accordance with law for this writ is not designed to
interrupt and ordinary administration of criminal law.18

14
.(1870) 6 Beng LR 459:
15
.45.Mad 922 (FB).
16
.C.P. Mathen v. District Magistrate, Trivandrum. AIR (1939) PC213.
17
.(1970) 2 SCC 399.
18
.Id. at.p. 402; see also Kanu Sanyal V. District Magistrate, Darjeeling, (1973) 2 SCC 674: AIR 1973 SC
2684.

108
4.7 Territorial Jurisdictions:

Jurisdiction may be defined to be the power or authority of a court to hear and

determine a cause, to adjudicate and exercise any judicial power in relation to it. In
other words, by jurisdiction is meant the authority which a court has to decide matters
that are litigated before it or to take cognize of matters presented in a formal way for
its decisions. Thus, jurisdiction of a court means the extent o the authority of a court
to administer justice prescribed with reference to the subject-matter, pecuniary value
and local limits.

Jurisdiction of a court may be classified into various categories; such as

i) Territorial jurisdiction;
ii) Pecuniary jurisdiction;
iii) Jurisdiction as to subject matter etc.,

Every court has its own local or territorial limits beyond which it cannot exercise its
jurisdiction. But, with respect to this writ the Supreme Court and all other High
Court’s have territorial jurisdiction to issue directions, orders or writs under Articles
32 and 226 of the Constitution.

India has a written Constitution. Territorial jurisdiction of the Supreme Court

and of High Courts has been defined and dealt with in Article 32 and 226
respectively.

4.8 Territorial Jurisdiction of Supreme Court:

The powers of the Supreme Court under Article 32 of the Constitution are not
circumscribed by any territorial limitation. It extends not merely over every authority
within the territory of India but also those functioning outside, the country, provided
that such authorities are under the control of the Government of India. However, the
power conferred on the Supreme Court by Part III of the Constitution has to be read in
conjunction with Article 142 of the Constitution, which brings in a limitation as
regards the territory in which the orders or directions of the Supreme Court could be
enforced.

109
4.9 Territorial Jurisdiction of High Court:

Article 226 as it originally stood had two-fold limitations on the jurisdiction of

High Courts with regard to their territorial jurisdiction;

Firstly:- the power could be exercised throughout the territories in relation to which it
exercises jurisdiction i.e., the writs issued by the court cannot run beyond the
territories subject to its jurisdiction.

Secondly:- the person or authority to whom the High Court is empowered to issue
such writs must be within those territories, which clearly implied that they must be
amenable to its jurisdiction either by residence or location within those territories.

This was the situation prior to the 15th Amendment. In the year 1963 m 15th
amendment was brought into to the constitution. The effect of the amendment is that
it made the accrual of cause of action an additional ground to confer jurisdiction to a
High Court under Article 226. As observed by the Joint Committee- “this clause
would enable the High Court within whose jurisdiction the cause of action arises to
issue directions, orders or writs to any Government, authority or person,
notwithstanding that the seal of such Government or authority or the residence of such
person is outside the territorial jurisdiction of the High Court. The Committee feel that
the High Court within whose jurisdiction the cause of action arises in part only should
also be vested with such jurisdiction.19

This amendment does not confer new jurisdiction on a High Court, but
provides an additional ground and extends its jurisdiction beyond the boundaries of
the State if the cause of action arose within its territory. The amendment does not
affect any substantive rights of the parties and is merely procedural.

4.10 Power of the Court to go beyond order of the Executive:

The general principles are that the Executive must act within the limits of the
power conferred by law, that it must act bona fide, and that it must act according to
the provisions of the law. The Court has the power to scrutinize the action of the
Executive from all these points of view.

19
. Report of the Joint Committee, Cl.8

110
 Now the question arises that whether the Court is entitled to go beyond a
statement by the Executive that the conditions prescribed by the statute for the
exercise of a certain power, are satisfied in a given case. As will be seen, there are
certain cases in which when the executive authority states in its order that it has
reasonable grounds to believe a certain fact which gives it power to restrict the
personal liberty of a certain person in a given case, the Court has to accept its
statement as conclusive and cannot go behind it and examine whether as a matter of
fact there are reasonable grounds for believing that the requisite facts exist. Hence, in
such cases, the order of detention or other order restrictive of personal liberty cannot
be questioned by the Court in an application for habeas corpus on the ground that fact
does exist.

The validity of an order, decision, action etc. may be questioned on any of the
two premises;

1. That it is not within the powers confined by the statute, or

2. That any of the requirements of the statute have not been complied with.

In habeas Corpus the extant review of question of fact relates not only to errors of law
and defects of form but also erroneous findings of material facts which may be
controverted by affidavit, may be grounds for the award of habeas corpus of existing
those facts affecting the legality of the restraint.

4.11 Judicial Development of Habeas Corpus- analysis through case laws:

The judicial development of habeas corpus can be found through the case laws
where the Supreme Court and the High Courts have given decision relating to writ of
habeas corpus.

1. In Venkateshvarlu20 the court held that where a member of a state legislature or

of the Parliament is arrested in violation of his rights, privileges and immunities
as such members, a writ of habeas corpus can be issued. The immunity of the
members of legislature from arrest only extends to immunity under civil process.
Therefore a member of a legislature is not entitled to immunity, as such member
from arrest and detention under preventive detention law.

20
.supra note 10.

111
 2. In A.K. Gopalan V. Government of India21 the court held that any detention will
be illegal unless it can be shown in accordance with the law. Further it held that
the court is to have regard to the legality or other ways of detention, at the time of
return an not with reference to the institution of the proceedings.

3. In Government of India V Alka Subhas Gadia22 it took the view that in

pursuance of self-evolved judicial policy an in conformity with the self imposed
internal restrictions, court insists that the aggrieved person must allow the due
operation and implementation of the concerned law and exhaust the remedy
provided by it before approaching the High Court to invoke its discretionary,
extraordinary and equitable jurisdiction which has to be very sparingly used.

4. In Whirlpool Corporation V. Registrar of Trade Marks Mumbai and others23

court observed that “ Exhaustion of alternative remedy or existence of alternative
statutory remedies is not constitutional bar to High Court’s jurisdiction but it is a
self imposed restriction. Further held, that the alternative remedy would not
operate as a bar if any of the three following contingencies existed:

i) Where the writ petition seeks enforcement of any of the fundamental

rights;

ii) Where there is violation of principles of natural justice; or

iii) Where the order or the proceedings are wholly without jurisdiction or
the views of an Act is challenged. Hence, where the show cause notice
issued by the Registrar of Trade Marks under Section 56(4) of the
Trade and Merchandise Marks Act, 1958 was challenged by a writ
petition on the grounds that the notice was wholly without jurisdiction,
held, High Court erred in dismissing the writ petition at the initial stage
without examining that contention.

5. In A.D.M Jabalpur V. Shivakant Shukla24 also, dealing with the Maintenance of

Internal Security Act, 1971 (MISA), Chandrachud.J. held that the writ
jurisdiction of High Court under Article 226 was required to be exercised

21
.supra note10.
22
.supra note 7 off chapter III
23
. supra note 22 of chapter III
24
. supra note 19 of chapter III

112
 consistently with laws made by the competent legislatures within the areas of
their legislative power.

6. In S.P. Gupta V. Union of India commonly known as Judges Transfer case,25

court is of the opinion that where anybody acting probono publico can knock the
doors of the court for the relief under writ of habeas corpus. The court observed
that “Where the weaker sections of the community are concerned such as under
trial prisoners languishing in jails without a trial, inmates of the protective home
in Agar or Harridan workers engaged in road construction in Ajmer District who
are living in poverty and destitution, who are barely eking out a miserable
existence with the sweat and toil, who are helpless victims of an exploitative
society and who do not have easy access to justice, this Court will not insist on a
regular petition to be filed by the public spirited individuals espousing their cause
and seeking relief for them. This court will readily respond even to a letter
addressed by such individual acting probino Publico.

7. In Motilal V. State of Bihar26 holding the detention of the petitioner as illegal,

Hedge,J. made the following pertinent observation. “Individual liberty is a
cherished right, one of the most valuable fundamental rights guaranteed by our
Constitution to the citizens of this country. If that right is invaded, excepting
strictly in accordance with law, the aggrieved party is entitled to appeal to the
judicial power of the State for relief. We are not unaware of the fact that the
interest of the society is no less important than that of the individual. Our
Constitution has made provision for safeguarding the interests of the society.

8. In Kanu sanyal v. district magistrate27

The petitioner was an active member of a naxalite group who was remanded in
the central jail of Darjeeling for having committed certain offences. A charge
sheet was filed againt him and some others. The offences committed by him were
such as could only be tried by a sessions court where the prisoner be brought
before a special magistrate in Vishakhapatnam. For this purpose a special warrant
was issued by the special magistrate and until the proceedings were complete, the
petitioner was remanded to a prison in Vishakhapatnam itself. The petitioner thus

25
. supra note 04 of chapter III
26
.supra note 4 of chapter III
27
. AIR (1973) SCR 621.

113
 filed suit stating that his detention in Darjeeling was illegal and violative of Art.
22. He claimed that the magistrate in Darjeeling had no right to try his case as he
did not have the adequate jurisdiction. He also claimed that the magistrate in
Darjeeling should have not complied with the special order as per the Section 6 of
Prisoner”s (Attendance in Court) Act, 1955 which clearly states that an officer can
abstain from execution of an order if the accused is under trial or there has only
been conducted a preliminary investigation.

In this decision it was stated that, the writ of habeas corpus cannot be issued
when it is ascertained that the detention of the person so detained is not illegal and
neither it is without jurisdiction. It would be completely out of its purpose in this
case as there exists no right to claim the writ when the detention is necessary and
purposeful. Also the date that is to be taken into account in case of a writ petition,
is the date the petition was filed on. It was decided because the earliest date had to
be sought and that automatically would be the date on which the writ petition was
filed.

9. In Sunil Batra v. Delhi Administration28

This case is related to the rights of a prisoner. It highlights the horrendous

conditions that exist in Indian prisons. Sunil Batra was a prisoner of Tihar Jail in
Delhi. There he got the knowledge that one of his fellow prisoners, Prem Chand
was being treated barbarically by the prison authorities and was being brutally
tortured for money. The warden used to torture him with batons. On one such
incident, Prem Chand bled profusely and had to be hospitalized. To do something
regarding this grotesque treatment, Sunil Batra wrote a letter to the judge wherein
he addressed this cause. This letter was then transformed into a petition under
Habeas Corpus. Here, the learned Justice Krishna Iyer stated that, human rights
do not end for a prisoner. A prisoner is as much a citizen of India as is anybody
else and had to be granted his basic rights as a person. If a prisoner, as per him is
not regarded as a person then there is no point of having a democracy or a
constitution at all. Again he state that “ the finest hour of justice comes when
court and counsel constructively collaborate to fashion in the case a relief to the
prisoner and fathom deeper to cure the institutional pathology which breeds

28
.AIR (1980) SC. 1579.

114
 wrong and defies right”. Further he said that the it is needed to broaden the scope
of habeas corpus was felt so that even the ones behind bars could benefit from it
and their rights can be safeguarded.

This case opened up new horizons of application of the writ. There existed no
one particular straight jacket way to invoke a writ.

10. In Km. Sunitha V. Smt. Shyam Kali29

The habeas corpus petition was filed on behalf of the minors by their father
against the step mother of the deceased mother of the minors. In this case age of
the minor girl was 12years and the age of the boy was 10 years. There were slight
differences between the ages of the minors given on behalf of the petitioners and
that given by the respondent but that was not very materials. In this it was opined
that it is undisputed that the father of the minor is the natural guardian an
ordinarily he has to keep the minors with him. Therefore the father cannot move
an application for appointment of guardian under Guardians and Wards Act.
Reliance was also placed on Section 6 of the said Act which provides that the
father is the natural guardian of Hindu minors and after the death of the father the
mother is the natural guardian. Section 13 of the said Act was also relied upon
which provides that appointment of a guardian can be made for welfare of the
minor. Further it was opined that the detention of a child against the wishes of the
natural guardian amounted to illegal detention and it was not necessary that the
father should have sought remedy under the Guardian and Wards Act. The in this
case arrived at conclusion that inspite of the fact that a remedy is provided under
the Guardians and Wards Act the petition under Article 226 of the Constitution of
India is maintainable on the ground that the right of natural guardian is
indefeasible.

11. In Manjit Singh Sethi V Maharastra Assembly,30

The Supreme Court has expressly laid down that under what situation and
circumstances a second petition for habeas corpus would be maintainable. “If a
person under detention files a writ of habeas corpus under Article 226 of the
Constitution before the High Court and the Writ petition is dismissed and the said

29
AIR (1982) All 1.
30
AIR (2006) P. 3430.

115
 decision is not challenged by preferring a special leave petition under Article 136
of the Constitution and is allowed to become final. Further the Court held that
‘once a habeas corpus petition has been decided on merits by the High Court
under Article 226 of the Constitution of India it would attain finality within that
court. Hence the High Court would not be able to sit in review or appeal by
considering another petition under Article 226 of the Constitution of India.

12. In Kuldeep Sidhu V. Chanan Singh and others, 31

In this case the Supreme Court held that “where mother had an order of
interim custody in her favour from a foreign court and the father had in an
unauthorized manner removed the children from Canada to India, the habeas
corpus petition was allowed and custody of the children was directed to be
handed over to the mother.

13. In Eugenia Archetti Abdullah V State of Kerala,32

In this case wife had claimed custody by filing habeas corpus petition.
Division of Kerala High Court observed that for custody of children of less than
3 years lap of the mother is a natural cradle where the safety and welfare of
children can be assured and there is no substitute for the same.

14. In Manjit Kaur V. State of Punjab,33

In this a minor child of 9 months was taken away by his grand-parents when
their daughter –in-law, an NRI, had came from abroad for a shorter period. She
filed writ of habeas corpus seeking custody of the child. In this case court held
that habeas corpus petition was maintainable as the child has been illegally
snatched away from the mother. Custody of the child was handed over to the
mother leaving the parties to avail other remedies in accordance with law.

15. In Vinodh Kimar V. State of U.P and others ,34

Court generally speaking , a person shall have no locus standi to file a writ
petition if he is not personally affected by the impugned order or his fundamental

31
. AIR (1989) P & H 103.
32
. (2005) (1) RCR (Crl.0 259.
33
. (2008) No. 608
34
AIR (2001) SCC 734

116
 rights have neither been directly r substantially invaded nor is there any imminent
danger of such rights being invaded or his acquired interests have been violated
ignoring the applicable rules. The relief under Article 226 of the constitution is
based on the existence of a right in favour of the person invoking the jurisdiction.
The exception to the general rule is only in cases where the writ applied for is a
writ of habeas corpus is filed in public interest. Further court observed that, it is
a matter of prudence, that the court confines the exercise of writ jurisdiction to
cases where legal wrong or legal injuries caused to a particular person or his
fundamental rights are violated, and not to entertain cases of individual wrong or
injury at the instance of third party where there is an effective legal aid
organization which can take care of such cases.

16. In G.K. Moopanar, M.L.A and 6 others V State of Tamil Nadu,35

In this High Court observed that “ a writ of habeas corpus is a very important
jurisdiction in which the High Courts are called upon to protect the individual
liberties of citizens and prevent illegal detention by the authority of the State or
otherwise. The jurisdiction is exercised to call upon the person who had detained
another to produce the person detained before the Court in order to let the Court
know on what ground he has been confined and if the court finds that there is no
legal basis for the imprisonment , the court will set him at liberty. It is the
paramount duty of the Courts to issue this kind of writ to safeguard the freedom
of the citizens against arbitrary and illegal detention.

17. In Selvaraj V. State36

In this the court held that ‘ Courts are frequently witnessing that man/woman
missing cases are mostly converted as habeas corpus petition under Article 226
of the Constitution of India. Mainly, two aspect are to be taken into
consideration. Right of every citizen for free movement is also enshrined in Part
III of the Constitution as a fundamental right. Personal liberty means that any
person on attaining the age of majority is at liberty to move to a place of his
choice. It is not necessary that a person has to inform each and every one of his
desire or decision to his kith and kin or to the other persons. The way of life is

35
. (1990)(1) MWN (Cr).
36
.( 2018) 22 June.

117
 also a part of personal liberty and a citizen of this country shall choose a path or
way of his own choice for leading his life as per his own mind set and whishes.
Further it held that for establishing an illegal detention, it is necessary that
substantial materials are to be furnished by the person, who approaches the court
by filing habeas corpus petitions.

18. In SeriousFraud Investigation Officer V. Rahul Modi and another etc.37

The Court observed that “in habeas corpus proceedings the Court has to
consider the legality of the detention on the date of the hearing”. An inquiry
whether the detention is legal or not at the date of hearing of the application for
habeas corpus would be quite relevant, for the simple reason that if on that date
the detention is legal, the court cannot order release of the person detained by
issuing a writ of habeas corpus.

4.12 Legal Remedies available to the Detenu:

Right occupy a significant place in books of Jurisprudence having many facets

and connotations. Briefly speaking, a right is an advantage, benefit or interest
conferred upon a person by law, including the common law, statute or the
Constitution of the land.

A legal right is one which is protected or enforced by law, as distinguished

from a moral right or a convention which has no legal sanction so long as it is not
adopted by legislation, when it becomes enforceable by means of the legal
proceedings in the Courts.

A right is a relative concept. When the law recognizes a right, it imposes a

duty on some other person or persons to do something or to omit to do duty,
something in relation to the right of the person on whom the right has been conferred
by law.

In private law, the person who owes the duty is a private person or individual.
But in public law to which Constitutional law appertains, the duty is owed by and the
right is enforced against the State itself, when the right is necessary for the existence
and dignity of a person as a human being, irrespective of any other consideration, it is

37
. Crl no. 94-95 ( 2019).

118
called a human rights.38 Rights are either substantive or procedural. That part of law
which creates or extinguishes a right is called substantive law and that part of the law
which prescribes the method of enforcing that right is called procedural or remedial
law.

When a legal right is created and guaranteed by the Constitution, it is called a

‘fundamental’ right because it is secured by the fundamental law. Article 19 of the
Indian Constitution, thus, confers a number of substantive fundamental rights on
every citizen of India, e,g,. the right to freedom of expression, assembly, association,
movement, residence and profession.

The Constitution of India does not rest with the creation of these substantive
rights but also provides for their enforcement , as in Article 32 and Article 226 . The
right right created by Article 32(1) is a remedial rights. A writ is a remedial right for
the enforcement of substantive rights. A writ literally means a written order.

In England, the writs are issued by the Crown as the head of the judicial
system. Where there was no statutory source and the Crown issued it by virtue of his
‘prerogative’.

In India, there is no prerogative power belonging to any organ of the State. But
the power to issue the writs corresponding to the English prerogative writ has been
vested in the Supreme Court under Article 32 and in the High Court under Article 226
of the Constitution. And since these writs are founded on the express provision of the
Constitution. Indian Courts are not bound by the technicalities and archaic
shortcomings of the English prerogative writs. They are also free to issue appropriate
orders in the nature of those writs, embodying their essential principles.39

Another special feature of these remedies in India that the right to enforce the
fundamental rights guaranteed by Part III of the Constitution through the Supreme
Court is itself guaranteed as a fundamental right by Article 32(1). The provision in
Article 32(1) thus confers a remedial fundamental right. In India these writs are
available not only for the enforcement of fundamental rights but also for the
enforcement of non-fundamental legal rights created by various statutes and other

38
. In India, the expression ‘human rights’ is defined in s. 2(1)(d) of the Protection of Human Rights
Act 1993 as—“the right relating to life, liberty, equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants and enforceable by Courts in India”
39
. Basappa V. Nagappa. A. (1954) SC. 440.

119
laws in force for the time being. This jurisdiction to enforce the legal rights is vested
in the High Court under Article 226 of the Constitution.

4.13 Need for guarantee of right for redress in case of violation of substantive
right:

As Dicey40 demonstrated a century ago, abstract declarations of the rights of

man are of little value unless there are definite means or machinery for such rights in
case any of those rights are violated by the State or its officials. He insisted that even
where such rights are guaranteed by a written Constitution, as in the U.S.A.

“The Habeas Corpus Acts declare no principle and define no rights but they
are for practical purposes worth a hundred constitutional articles guaranteeing
individual liberty”.

The value of Dicey’s emphasis upon the importance of the remedy to enforce the right
apart from the declaration of the substantive right remains as ever. All modern
International Charters relating to human rights as well as written Constitution
guaranteeing individual rights, therefore, contain provisions for a remedial rights for
the enforcement of the substantive rights guaranteed by these Constitution.

Now, this remedy may be provided for in the written constitution itself or in
the ordinary law. When the remedy is also guaranteed by the Constitution as a
fundamental rights as by Article 32 of the Indian Constitution . It can be called as
remedial fundamental rights.

In England individual rights are safeguarded, even without any declaration that
they are fundamental, by means of the ‘prerogative writs’, which have been called the
bulwark of English liberty.

The special feature of the remedial rights in India is that it has itself been made
a guaranteed fundamental right under Article 32(1). That the framers of the Indian
Constitution were fully alive to the Supreme importance of the judicial remedies to
enforce fundamental rights is evident from the fact that not only did they expressly
lays down that any law which contravenes any of the fundamental rights shall be void.
The right to make use of these constitutional remedies itself was also guaranteed by
the Constitution, so that nothing short of an amendment of the Constitution can take

40
. Dicey. 10th Ed. P. 197ff.

120
away the power of the superior courts, that is, the Supreme Court and the High Court
vested by Article 32 and 226 to apply these constitutional remedies for the protection
of the individual rights guaranteed by Part III of the Constitution. The Court have
made it clear that they cannot refuse to entertain an application for an appropriate
constitutional remedy where a fundamental rights has been infringed.

The jurisdiction of Indian courts in this connection has been made even more
elastic and effective than in England by empowering them to issue not only the
‘prerogative orders’ but also any direction or order in the nature thereof as may be
considered just and proper in the circumstances of each case, unfettered by the
technicalities of the English orders.

India stands ahead of many countries in that the right to move the Supreme
Court for enforcement of the fundamental rights guaranteed by Part III of the
Constitution has itself been made a guaranteed fundamental right as a result of which
this remedial rights offered by the Constitution. This right cannot be suspended except
as provided by the Constitution itself under Article 359. This right cannot be taken
away by any legislation, short of an amendment of the Constitution made in
accordance with the procedure laid down under Article 368 of the Constitution.
Supreme Court is considered as a protector and guarantor of fundamental rights and it
is the duty of the Supreme Court to grant relief under Article 32, where the existence
of a fundamental right and its breach, actual or threatened, is prima facie established .

Under Article 226 High Court empowered to issue the prerogative writs for
the enforcement of fundamental rights along with non fundamental rights is placed
outside Part III and there is no provision in Article 226 corresponding to Clause (1) of
Article 32, but it has been judicially held that this makes no difference as between the
Supreme Court and a High Court as regards the enforcement of fundamental rights.

4.14 Remedies provided under the Constitution of India:

Instead of leaving it to the general law of remedies under the civil law, the
Constitution of India has provided certain special remedies for the enforcement of the
rights and liabilities created by the Constitution;

a) Writs issued under Article 32 and 226( Supreme Court and High Court
respectively).

121
 b) Orders of revision under the supervisory jurisdiction of the High Court under
Article 227.

c) Appeal to the Supreme Court ,by special leave, under Article 136.

This jurisdiction under Article 136 is important because it is a constitutional and

extraordinary remedy at the hands of the Supreme Court where no other remedy is
available under the Constitution against the decision of a Court or Tribunal.

4.15 CONCLUSION:

This writ is prerogative one which is especially associated with the King.
Prerogative writs are writs which were originally issued only at the suit of the King
but which were later on made available to the subjects.

A prerogative writ was issued only on probable cause being shown to the
satisfaction of the court that why extraordinary power of the crown is required to be
exercised in favour of the applicant. It was issued by the crown as a fountain of
justice, where there was no statutory source of redress and the crown used to issue
orders by way of his prerogative.

The Habeas Corpus Acts have done for the liberty of the Englishmen more
than could have been achieved by way of declaration of rights. It is interesting to
mention that in England if a Judge declines to issue a writ of Habeas Corpus he is
liable to a fine. Under the English law there cannot be any appeal where a man has
been set free by means of Habeas Corpus.

It was in 16th Century that writ of Habeas Corpus first began to be used
consistently as a means of testing the validity of executives committals to
imprisonment. And in 17th Century, in the struggle between the crown and emerging
bourgeoisie, that its use assumed a revolutionary dimension.

Sunil Batra case opened up new horizons of application of the writ. There
existed no one particular straight jacket way to invoke a writ.

When a legal right is created and guaranteed by the Constitution, it is called a

‘fundamental’ right because it is secured by the fundamental law. Article 19 of the
Indian Constitution, thus, confers a number of substantive fundamental rights on
every citizen of India, e,g,. the right to freedom of expression, assembly, association,
movement, residence and profession.

122
 CHAPTER-V
WRIT OF HABEAS CORPUS AND
PREVENTIVE DETENTION LAW.
 CHAPTER-V
WRIT OF HABEAS CORPUS AND PREVENTIVE DETENTION
LAWS

5.1 INTRODUCTION:

There can be no doubt that personal liberty is a precious right. So did the
Founding Fathers believe at any rate because, while their first object was to give to
the people a Constitution whereby Government was established, their second object,
equally important, was to protect the people against the Government. While
conferring extensive powers on the Government like the power to declare an
Emergency, the power to suspend the enforcement of fundamental rights and the
power to issue Ordinances, they assured to the people a Bill of Rights, protecting
against executive and legislative despotism those human rights which the regarded as
fundamental. The imperative necessity to protect those rights is a lesson taught by all
history and all human experience.

Preventive Detention is the arch enemy of the right to personal liberty. It

envisages detention without trial, at the times when the liberty of the individuals
crosses the limit and threatens the very existence of the state, and that at point of time,
it fails to control the enjoyment of individual liberty then the state uses the preventive
detention measures.

The Constitution divides the legislative power in respect of defence, foreign

affairs or security of nation, and a power concurrent with the state, to legislate for ;

1) Preventive Detention for reasons connected with the security of nation.

2) Preventive Detention for reasons connected with the security of state.

3) Preventive Detention for the maintenance of public order and

4) Preventive Detention for the maintenance of supplies and services essential to

the community.1

5) Preventive Detention for the defence .

1
. V.S. Rekh. Preventive Detention- Need for substantive Restraints, Trends and Issues P.126.

123
5.2 Meaning of Preventive Detention:

There is no authoritative definition of the term ‘Preventive Detention’ either in

the Constitution or in any other statute. However, the expression is used in
contradistinction to the ‘punitive’. It is not a punitive but precautionary measure. 2 The
underlying object is not to punish a person for having done something but to intercept
him before he does it and to prevent him from doing a particular activity. 3 It is not a
penalty for the past activities of an individual but is intended to pre-empt the person
from indulging in future activities sought to be prohibited by the relevant statute and
with a view to preventing him from doing harm in future.4

5.3 Nature of Preventive Detention:

The Founding Fathers of the Constitution accepted preventive detention as a

necessary evil, to be tolerated in a constitutional scheme which, otherwise, guaranteed
personal liberty in its well accepted form.5

Preventive Detention is a precautionary measure. It is based on a reasonable

prognosis of the future behavior of a person based on his past conduct in the light of
the surrounding circumstances. There is no parallel between prosecution in a court of
law and a detention order passed under a statute relating to preventive detention.6
Merely because jurisdiction of a criminal court can also be validly invoked, does not
by itself exclude the jurisdiction of preventive detention.7 Preventive detention is not a
punishment for past activities of a person.8

5.4 Objectives of Preventive Detention Laws:

Apart from the exclusive power of the parliament to make laws in respect of
preventive detention for reasons connected with defence, foreign affairs or security of
India: persons subjected to such detention (vide Article 24(1) and entry 9 list I,
seventh schedule) parliament and state legislatures have both current powers to make
laws in respect of preventive detention for reasons connected with the security of a
state, the maintenance of public order, or the maintenance of supplies and services

2
.A.K. Gopalan V State of Madras, AIR (1950) SC 27.
3
Id.
4
.Id.
5
. Sambhu Nath Sarkar V State of W.B (1973), SCC 856.
6
.Haradhan Saha V State of W.B. (1973), SCC 198.
7
.Masood Alam V U.I., (1973) SCC 551.
8
. Giani Bakshish Singh V Government of India (1973) SCC 688.

124
essential to the community: persons subjected to such detention (vide Article 246 (2)
and entry 3 in list III of 7th Schedule).

The objective of preventive detention laws is not to punish a man for having
done something but to intercept him before he does it and to prevent him from doing
it. No offence is proved nor any charge formulated. The justification of such detention
is suspicion or reasonable probability of the impending commission of the prejudicial
act and not criminal conviction which can only be warranted by legal evidence.

5.5 Power of Parliament to enact laws:

Parliament is empowered to enact a law of preventive detention . In the

exercise of that power, the parliament has enacted a number of Preventive Detention
Laws such as;

1) The Preventive Detention Act, 1950.

2) The Maintenance of Internal Security Act, (MISA) 1971.

3) The Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, (COFEPOSA) 1974.

4) The Prevention of Black marketing and Maintenance of Supplies of Essential

Commodities Act, 1980.

5) The National Security Act, (NSA) 1980.

Article 22 lays down the permissible limits of legislation empowering

preventive detention. It prescribes the minimum procedure that must be included in
any law permitting preventive detention. When such requirements are not observed,
the detention, even if valid, becomes ab initio invalid.9

Any law providing for preventive detention must satisfy both Articles 19 and
22. Law authorizing deprivation of personal liberty does not fall within the purview of
Article 19. Its validity depends on its compliance with requirements of Articles 21 and
22. Even if a law of preventive detention may pass the test of Article 22, it has yet to
satisfy the requirements of other fundamental rights such as Article 19 and 14. The

9
State of Bombay V Atma Ram, AIR (1951) SC 157.

125
Defence of India Act, 1962 cannot be struck down as a colourable exercise of
legislative power because of existence of Preventive Detention Act, 1950.10

5.6 Strict Construction of Statute:

The power to detain a person without the safeguard of a court trial is too
drastic to permit a lenient construction and , therefore, the courts must be astute to
ensure that the detaining authority does not transgress the limitations subject to which
alone the power can be exercised. The safeguards provided for the protection of
citizens should be liberally interpreted. It should be construed in a manner which will
not restrict the right of freedom to any extent greater than a necessary to effectuate the
object of that provisions.11

It is well settled that any law of preventive detention is a hard law and
therefore, it should be strictly construed. Care should be taken that the liberty of a
person is not jeopardized unless his case falls squarely within the four corners of the
relevant law. The law of preventive detention should not be used merely to clip the
wings of an accused who is involved in a criminal prosecution.12

In Rameshwar Lal V. State of Bihar13, J. Hidayatullah observed that “The

detention of a person without a trial merely on the subjective satisfaction of an
authority however high, is a serious matter. It must require the closest scrutiny of the
material on which the decision is formed, leaving no room for errors or at least
avoidable errors. The very reason that the courts do not consider the reasonableness of
the opinion formed or the sufficiency of the material on which it is based, indicates
the need for the greatest circumspection on the part of those who wield this power
over others.”

In Motilal V. State of Bihar14 holding the detention of the petitioner as illegal,

Hedge,J. made the following pertinent observation. “Individual liberty is a cherished
right, one of the most valuable fundamental rights guaranteed by our Constitution to
the citizens of this country. If that right is invaded, excepting strictly in accordance
with law, the aggrieved party is entitled to appeal to the judicial power of the State for

10
. Makhan Singh V State of Punjab, AIR (1964) SC 381.
11
. Niranjan Singh V State of M.P.( 1972) SCC 542.
12
. Vijay narain V State of Bihar, (1984) SCC 14.
13
. AIR (1968) SC 1303.
14
.AIR (1968) SC 1509.

126
relief. We are not unaware of the fact that the interest of the society is no less
important than that of the individual. Our Constitution has made provision for
safeguarding the interests of the society. Its provisions harmonise the liberty of the
individual with social interests. The authorities have to act solely on the basis of those
provision. They cannot deal with the liberty of the individual in a casual manner, as
has been done in this case. Such an approach does not advance the true social interest.
Continued indifference to individual liberty is bound to erode the structure of our
democratic society.”

The warning given by Lord Atkin in the leading case of Liversidge V.

Anderson.15 should always be borne in mind by Judges while dealing with statutes
depriving or curtailing individual liberty. The learned Law Lord propounded that “I
view with apprehension the attitude of judges who, on a mere question of
construction, when face to face with claims involving the liberty of the subject, show
themselves more executive-minded than the executive… In England amidst the clash
of arms the laws are not silent. They may be changed, but they speak the same
language in war and in peace. It has always been one of the pillars of freedom, one of
the principles of liberty or which, on recent authority, we are not fighting, that the
judges are no respecters of persons, and stand between the subject and any attempted
encroachments on his liberty by the executive alert to see that any coercive action is
justified in law. In this case, I have listened to arguments which have been addressed
acceptably to the Court to King’s Bench Division in the times of Charles I.”

5.7 Salient Features of Article 22:

Article 22 of the Constitution provides for protection against arrest and

detention in certain cases. It is in two parts, Part-I and Part-II;

Part –I: contains clauses (1) to (3) which imposes limitation upon the Union and State
legislatures in enacting any procedural law for deprivation of personal liberty. The
limitations are;-

i). The arrested person must be informed of the grounds of his arrest as soon as may
be ;

15
. (1942) AC 206: 110 LJ KB 724.

127
ii). The arrested person must be produced before the nearest Magistrate within 24
hours of his arrest;

iii). The arrested person should be given an opportunity to consult and be defended by
a legal practitioner of his own choice.

Part- II: contains clauses (4) to (7) which covers the special law of preventive
detention. It imposes limitations upon the Union and State Legislatures in enacting
any law relating to preventive detention without trial. The limitations are;-

i). The ordinary periods of detention shall not exceed three months;

ii). Parliament may, however, enact a law laying down in what cases the three
months limit may be exceeded;

iii). The three months limit may also be extended on the report of the Advisory Board
duly constituted in that behalf;

iv). The detenu must be furnished as soon as may be the grounds of detention to
enable him to make a representation against an order of detention;

v). The detaining authority, however, need not disclose facts which will be against
public interest to disclose.

5.8 Writ Remedy:

Article 22 of the Constitution lays down the procedure to be followed in cases

of preventive detention and the said procedure must be strictly observed as the only
prospects of release by a court must be on the basis of technical or formal defects, a
long line of decision having held that the scope of judicial review in the matters of
preventive detention is practically limited to an enquiry as to whether there has been
strict compliance with the requirements of law.16 All the procedural requirements of
Article 22 are mandatory in character.17

The two requirements of Article 22(1) are meant to afford the earliest
opportunity to the arrested person to remove any mistake in the mind of arresting
authority and also to know exactly what the accusation against him is, so far that he
can exercise the second right namely, of consulting a legal practitioner of his choice

16
. Naranjan Singh V. State of Punjab AIR (1952) SC 106.
17
. Abdul Karim V. State of W.B (supra).

128
and to be defended by him. Under clause (2) of that article, it is provided that the
arrested person must be produced before a Magistrate within 24 hours of his arrest.
Article 22 (4) guarantees that there shall be no preventive detention for more than
three months unless the law authorizing it makes provisions for an Advisory Board
and the Board after considering each individual case separately reports that there is in
its opinion sufficient cause for such detention. Where from the circumstance of the
case . It was clear that the petitioner had the knowledge of the grounds of his arrest
and detention, he cannot contend that his arrest was in contravention of Article 22(1).
Second order of detention is invalid without fresh material. Order of detention should
be explained in vernacular language, when the detenu does not know English.18

It is not illegal for the State Government to refer the case to the Advisory
Board without itself first considering his representation. Order rejecting
representation need not be a reasoned order. The representation should be considered
without delay.19

The expression “as soon as may be” in clause (5) of he Article 22 must imply
extreme care on the part of the authority concerned to perform its duty in this respect
as early as practicable without avoidable delay.

The provisions in Section 8(6) of COFEPOSA are subject to safeguards

provided under Article 22(5). Hence there is a duty cast on the Government to provide
earliest opportunity to the detenu to make the representation and consider the same.
This is far different from its duty to refer than to Advisory Board and obtain its report.

The Court is of opinion that “Since MISA gives extraordinary powers to the
Executive to detain a person without trial meticulous compliance with letter and
requirements of law is essential of the validity of an order of detention made there
under. The power under Section 3(1)(a) can be exercised only on one or more of the
grounds stated in sub-clauses (i) to (iii). If the exercise of the power is not on the face
of the order correlated those grounds or concern activities which are not correlated to
any of these grounds, such exercise would be vitiated for lack of jurisdiction. Further
the satisfaction spoken in section 3(1)- which is the sine qua non to the exercise of the
power-is subjective satisfaction of the authority, which cannot be tested in Court by

18
. Abdul Rahman Bhadar Wahi V. State of J.K. (1970) SCC 489.
19
. Ranjit Dam V. State of W.B. (1975) SCC 516.

129
objective standard. Ordinarily, therefore, the Court cannot go behind the satisfaction
expression on the face of the order. Thus where the order ex facie is made the a view
to prevent an act prejudicial to the maintenance of public order the detaining authority
cannot be permitted to show that in fact the order was made prevent an act prejudicial
to the maintenance of supplies and services essential to the life of the community.

The provision in Article 22(5) enjoins grounds to be supplied as soon as may

be i.e., as soon as it is practicable to enable the detenu to make a proper
representation. The term ‘Grounds’ mean all the basic facts and materials which have
been make the order of detention. If the grounds are defective the order will be
quashed. Apart from basic facts and materials, history sheet of the detenu should also
be supplied to the detenu in MISA cases.

The detention under MISA of Members of Parliament cannot be attacked on

the ground of privileges of Parliament i.e. to attend proceedings of Parliament. The
privilege from arrest is limited to civil areas and not to criminal cases or emergency
legislation cases.20

Subjective satisfaction of the authority under Article 22(5) does not mean
mechanical application of mind. When grounds are stated, they are presumed to be
true. It is not the function of the Court to test the veracity of grounds i.e. truth or
otherwise of the allegations mentioned in the grounds. Where grounds are neither
vague nor irrelevant, the truth thereof cannot be tested with objective judicial
standards. It is enough if grounds are reasonably connected with the object of
detention. A second representation made by detenu on fresh materials should again be
referred to the Advisory Board. However, mere petitions or memorials to the state
dignitaries does not amount to representation.21

The authority which passes the initial order of detention should not fix the
period of detention as that will be illegal. Even after the confirmation of the order, the
State is not bound to fix the period. Where a person is treated for substantative
offences but prosecution was dropped due to unwillingness of the eyewitnesses to
depose, he cannot be detained under the Preventive Detention Laws. That will be
gross colourable exercise of power.

20
. Indira Gandhi V. Raj Narain, (1975) SC 2299.
21
. Phillippa Anne Duke V. State of Tamil Nadu, (1982) SCC 389: Cr.L.J 13898.

130
 The burden is on the detaining authority to show that the detention has taken
place in due course of law.22

Under the Preventive Detention laws, the executive had two-fold discretion. It
is to determine with very broad limits the purposes for which the power is to be
exercised, and secondly it has to be subjected to preventive detention. The
Constitution provides for certain procedural safeguards under Article 22. The power
given to the courts under Article 226 and 32 ought to be exercised (a) to protect the
individual liberty guaranteed under Article 21, and (b) ensure observance of
Procedural and Substantive Safeguards under Article 22 through writ of Habeas
Corpus. In short, the court is empowered to re-examine the rationale for the exercise
of the power of preventive detention. The abuse of the power by the executive and the
judicial response to it are analysed with reference to select cases.

5.9 Subjective Satisfaction:

Subjective satisfaction being a condition precedent for the exercise of the

power conferred on the Executive, the court can always examine whether the requisite
satisfaction is arrived at by the authority; if it is not, the condition precedent to the
exercise of the power would not be fulfilled and the exercise of the power would be
bad.

Such instances are,

Firstly:- where the authority has not applied its mind at all, in such a case the authority
could not possibly be satisfied as regards the fact in respect of which it is required to
be satisfied.

Secondly:- where the power is exercised dishonestly or for an improper purpose such
a case would also negative the existence of satisfaction on the part of the authority.

Thirdly:- where in exercising the power, the authority has acted under the dictation of
another body.

Fourthly:- application of a wrong test or the mis-construction of a statute.

Fifthly:- where the satisfaction is not grounded on materials which are of rationally
probative value, i.e. the grounds on which the satisfaction is based must be such as a

22
. Eknath Laxman Chudhari V. Suptd. Central Jail, Tihar, (1978) Cri.L.J 39.

131
rational human being can consider connected with the fact in respect of which the
satisfaction is to be reached and they must be relevant to the subject-matter of the
inquiry and must not be extraneous to the scope and purpose of the statute.

Sixthly:- failure of the authority to have regard to the express or implied statutory
requirement of giving regard to certain matters when exercising the power, and

Seventhly:- where the subjective satisfaction is not such that any reasonable person
could possibly arrive at and the inference is that the authority did not honestly form
that view or that in forming it, he could not have applied his mind to the relevant
facts.23

The courts in such cases do not act as an appellate authority but a judicial
authority which is concerned and concerned only, to see whether the statutory
authority has contravened the law by acting in excess of the power which the
Legislature has confided in it. Though the last mentioned ground above tends to blur
the dividing line between subjective satisfaction and objective determination, the
dividing line is very much there howsoever faint or delicate it may be, and courts have
never failed to recognize it.

The opinion of the detaining authority must be honest and real and not so
fanciful or imaginary that on the facts alleged no rational individual will entertain the
opinion necessary to justify detention. Even if the incident attributed to the detenu has
some connection with the obnoxious activities, it would not be too trivial in substance
nor to state in point of time as to snap the rational link that must exist between the
vicious episode and the prejudicial activity sought to be interdicted. Absence of bona
fides does not mean proof of malice.

Court cannot go into truth or otherwise of the facts alleged as grounds for
detention. Only one vague or irrelevant ground is enough to vitiate the order of
detention. An extraneous ground vitiates the order since it is impossible to predicate
whether without it the requisite satisfaction would have been reached. If such
consideration does not influence the mind of the detaining authority the order would
not be vitiated.

23
.Khudiram Das V. State of W.B. (1975) SCC 81.

132
 The power of pre-executive detention is precautionary power exercised in
reasonable anticipation. An order for preventive detention may be made before or
during prosecution, with or without prosecution and in anticipation or after discharge
or even acquittal. The pendency of prosecution is no bar to an order of preventive
detention. An order of preventive detention is also not a bar to prosecution. Failure to
consider the possibility of launching a criminal prosecution may, however, in the
circumstances of a case, lead to the conclusion that the detaining authority had not
applied its mind.24

Writ of Habeas Corpus acts as an adequate remedy as seen in judicial response

as held by the High Courts and the Supreme Court as detailed under;

As rightly held by our Supreme Court25, liberty of a subject is an extremely

precious right when infraction of such right is involved. Court must act as a watch
dog and every benefit of the lacuna goes to the detenu. Further it was held by the
Supreme Court26 persons detained in jail in violation of Article 22(1) will be entitled
to writ of Habeas Corpus directing his release.

According to Calcutta High Court facts stated in the grounds being final, High
Court cannot (i)examine the veracity of the allegations, (ii) or their sufficiency. But it
can be set-aside an order if it is (a )malafide, (b) based on extraneous matters, (c) if
grounds are baseless, (d) or non-existent or (f) when the material is such that it was
impossible to arrive at the conclusion arrived at by the authority.

In short as rightly held by the Supreme Court27, Punjab28, Madhya Pradesh29

and Andhra Pradesh30 High Courts, satisfaction is that of detaining authority, High
Court can only scrutinize the grounds furnished to see whether they are in fact
relevant to the object sought to be achieved.

24
. Kanchanlal Maneklal Chokshi V. State of Gujarat, (1979 )SCC 14.
25
D.A. Khan V. State of West Bengal. AIR (1976 ) SC734.
26
In Re Madhu Limaye. AIR(1969), SC, 1014.
27
Rambali V.State of W.B AIR (1975), S.C. 623
28
The AIR Manual (Civil and Criminal). AIR Publication, Vol,IX, 4 th Edn, AIR (1963) Punjab 408.
29
The AIR Manual (Civil and Criminal). AIR Publication, Vol,IX, 4 th Edn, AIR (1973), Cr.l.j. 1987
Madhya Pradesh.
30
AIR (1957), Andhra Pradesh Page 143.

133
5.10 Grounds for Release;

The Writ of Habeas Corpus will be issued on the following grounds;

5.10.1 Bonafide:

Where the detention is not bonafide, the detention is illegal and the detenue
must be released. A case of bonafides may be made out not merely by proof that the
order of detention was in fact made for ulterior purposes i.e., for purposes outside the
order is made without taking into consideration the standard of bonafides under Penal
Code as being due care and attention. Where the ground of detention is outside the
purview of the Act under which the detention has been ordered the detenu must be
released. Further where the detaining authority has not applied his mind to the matter
at all as is evident from the fact that the ground stated for the detention has no
connection with the facts on which the order purports to be used, the detenu is entitled
to be released.

5.10.2 Malafide:

As held by the Supreme Court in Atchutan V. Gopalan31 where the order of

detention is challenged on the ground of Malafides, what has got to be made out is not
the want of bonafides on the part of the police but want of bonafides as well as the
non-application of mind, on the part of the government which for this purpose must be
taken to be different from the place. Further Supreme Court held that, an order of
Preventive Detention cannot be said to be malafide merely because the police on
investigation into cases registered against the petitioner in regard to incidents
mentioned in the grounds of detention, had previously discharged the petitioner for
want of evidence.

5.10.3 Detention on irrelevant grounds:

The Supreme Court repeatedly held in P. Mukherjee V. Union of India32,

Dulat Chandra Majumdar V. State of W.B33 and Bhupal Chandra V. Arif Ali34, in
case of detention under Section 3(2) of the Preventive Detention Act 1950, since at

31
AIR (1956), S.C. 531
32
AIR (1970), S.C. 852
33
AIR (1974), S.C. 156
34
AIR (1974), S.C. 255

134
least one out of the four grounds for detention was found irrelevant, petitioner was
held entitled to release.

5.10.4 Precedural Ultravirus:

Detention found to be not in accordance with the procedure established should

be released. Further it was held by the Supreme Court in Kanu Basuwar V. State of
W.B.35 , what the Supreme Court has to be satisfied with in that the Mandatory
provisions has been complied with. An order of detention in vernacular cannot be said
to be defective for want of proper communication. This is more so when the objection
was not taken at the time of making representation.

Further court would not stay its hands in directing release of detenu when
technical pleas are raised by the government, when liberty of a citizen is affected and
more so, when the detention itself was not in accordance with law. The Supreme
Court can always examine whether the requisite satisfaction is arrived at by the
authority, if it is not, the condition precedent to the exercise of the power will not be
fulfilled and the exercise of the power will be considered as in violation of the rule.
Wherein case of detention it was not clear as to who out of the two detaining
authorities passed the detention order and who was satisfied regarding the sufficiency
of the grounds, it was not possible to determine as to who made the order of detention.
In such circumstances, the exercise of jurisdiction to detain the detenu had not been
made with due care and caution or in a proper and fair manner and the detention order
such as was quashed.

5.10.5 Belated Order:

A writ of Habeas Corpus can be issued if there is wide time gap between the
offending act and the order of detention. No authority, acting rationally can be
satisfied subjectively or otherwise, of future mischief merely because long ago the
detenu had done something evil. Whether the acts of the detenu are too remote in
point of time to induce any reasonable person to reach subjective satisfaction must
depend on the facts and circumstances of each case. The test of proximity is not a
rigid or mechanical test to be blindly applied by merely counting the number of
months.

35
AIR (1972), S.C. 1653.

135
 In Nizamuddin V. State of West Bengal36 it was held that delay of 2and half
months in arresting the detenu after discharge from criminal case and the passing of
detention order showed that there was no real and genuine subjective satisfaction as
regards the necessity to detain the detenu with a view to preventing him from acting in
a prejudicial manner.

Again Supreme Court laid down that there is no hard and fast rule that merely
because there is a time lag of about 6 months between the offending act and the date
of the order of detention, the casual link must be taken to be broken and the
satisfaction claimed to have been arrived by the District Magistrate must be regarded
as sham or unreal. The court has to investigate whether the casual connection has been
broken in the circumstances of each case.37

Where there was 6 months gap between the date of detention and the date of
last incident and no explanation for such delay was offered it was held that there was
no proximity in time to provide a rational nexus between the incident and the
satisfaction arrived.38

5.11 OTHER GROUNDS OF CHALLENGE:

An order of detention can also be attacked inter alia, on any of the following
grounds-

1) The order is not by a competent authority;

2) The condition precedent for the exercise of power does not exist;

3) There is non-application of mind;

4) The grounds are or one of the grounds is vague, indefinite, irrelevant,

extraneous, non-existent or state;

5) There is lack of bona fides in passing the order;

6) The person against whom an order of detentions is passed is already in jail

awaiting trial in respect of alleged activities;

36
. AIR (1975) SCC 395.
37
.Gora V State of West Bengal. AIR (1975) SC 473..
38
. Jogan Nath Biswas V. State of W.B (1975), SCC 115.

136
7) The order is passed by way of punishment after the detenu has been discharged
or acquitted in a criminal trial;

8) The case of the detenu is considered by only two of the three members who
constitute the Advisory Board constituted under the Act;

9) Failure to refer the detenu’s case to the Board within the time fixed by the
statute;

10) Where the initial order of detention fixes the period of detention.

11) Where the Government revoked a previous order of detention in pursuance of

the opinion of Advisory Board, but by the same order, confined the detenu
under one of the sub-clauses of Section 3(1) (a) of the Act.

5.12 Communication of Grounds:

It is, not only the right of the court, but also its duty as well, to examine what
are the basic facts and materials which actually and in fact weighed with the detaining
authority in reaching the requisite satisfaction. The judicial scrutiny cannot be
foreclosed by a mere statement of the detaining authority that it has taken into account
only certain basic acts and materials and though other basic facts and materials were
before it, it has not allowed them to influence its satisfaction. The court is entitled to
examine the correctness of this statement and determine for itself whether there were
any other basic facts or materials, apart from those admitted by it, which could have
reasonably influenced the decision of the detaining authority and for that purpose, the
court can certainly require the detaining authority to produce and make available to
the court the entire record of the case which was before it. That is the least the court
can do to ensure observance of the requirements of law by the detaining authority.

If there is before the District Magistrate material against the detenu which is of
a highly damaging character and having nexus and relevancy with the object of
detention, and proximity with the time when the subjective satisfaction forming the
basis of the detention order was arrived at, it would be legitimate for the court to infer
that such material must have influenced the District Magistrate in arriving at his
subjective satisfaction and in such a case the court would refuse to accept the bald
statement of the District Magistrate that he did not take such material into account and
excluded it from consideration.

137
 Therefore, in a case where the material before the District Magistrate is of a
character which would in all reasonable probability be likely to influence the decision
of any reasonable human being, the court would be most reluctant to accept the ipse
dixit of the District Magistrate that he was not so influenced and a fortiori, such
materials is not disclosed to the detenu the order of detention would be vitiated, both
on the ground that all the basic facts and materials which influenced the subjective
satisfaction of the District Magistrate were not communicated to the detenu as also on
the ground that the detenu was denied an opportunity of making an effective
representation against the order of detention.

5.13 Scope of Judicial Review:

As the law stands now, a detenu has a four-fold right. He is to be informed of

the grounds as soon as may be. Next, he can make a representation in answer thereto.
Then he is entitled to a personal hearing before the Advisory Board. Later he has to be
informed of the order of confirmation or release by the Board’s recommendation of
the Government. The scope of review emerging is indeed very limited.

The writ of Habeas Corpus ‘shrinks’ in its scope in cases coming under the
subjective satisfaction of the authority as contemplated under the Detention Act. This
has resulted in abuse of powers by the authority. The periodical revival of the Act
from 1950 every three years, has resulted in continuance of suppression of the
citizen’s personal liberty. The theory of subjective satisfaction of the authority has
been carried too far in the Act, practically throttling judicial review. Making the
satisfaction to be that of Minister may be preferable as he is at least answerable to
Parliament, on the lines indicated in Liversidge V. Anderson39. To delegate this power
to a Magistrate or a lesser official does not appear just to the detenu.

The Advisory Board, however well manned, appears at best a ‘solatium’ than
a substitute for a Court of law. The procedure adopted before the Board renders the
whole thing useless. A mere reading of an accusation and an answer supplemented by
any information that may be called for by the Board is hardly enough. The board
could be easily converted into a Court or tribunal with power to take evidence and
allow cross-examination with aid of Counsel. The detenu’s right of audience before
the Board can hardly make up for representation by a lawyer. Exclusion of counsel

39
(.1942), AC 206.

138
excludes the only source or assistance to the Boards to sift the materials. If the
criticism is that by a public trial, publicity cannot be avoided: the answer is that
Article 22(6) already provides secrecy in respect of disclosure of certain facts in
public interest. The other ground of expedition can hardly be an argument where the
liberty of an individual is involved. Justice must not only be done but should be seen
to be done publicly and impartially. Once the Board is converted to the status of a
tribunal, the larger remedies of review under Articles 226 and 136 of the Constitution
are made available. An American example adverted to already may also be considered
in this connection, if necessary, and an appeal provided in the first instance from
decisions of the Board, Mr. M.C. Setalvad ( Attorney-General of India) had once
suggested a compulsory consultation with an impartial Board before detention; a
reviewing Board having binding authority, adoption of a rule that all persons detained
after a specified periods as a rule be brought before the ordinary courts and
restrictions of detention should be with prior consultation of the most responsible
authorities in the Government. We may add that if these area adopted, a further appeal
from the Board may be necessary.

5.14 Cases other than Preventive Detention:

Any person can invoke the writ of Habeas Corpus where he is arrested and
imprisoned in case the provision of the law under which the arrest has been made has
been violated. So, if Court adjourned a proceeding under Section 344 of Criminal
Procedure, 1898, and omitted to make an order of remand to custody as required
under the section, the detention was held illegal as a violation of procedure
established by law as enjoined in Article 21 of the Constitution. Similarly, where the
Superintendent of the Jail has himself punished the detenu for an offence under the
Punjab Communist Detenus Rules, 1950, but sent the detenu again for trial before a
magistrate for the same offence, Habeas Corpus was issued. If the law under which
detention is made is itself unconstitutional, the arrest becomes illegal and the person
has to be at once set at liberty.

139
 In Purshottam V. Desai40, a person arrested for arrears of tax was released as
Section 46(2) of the Income-tax Act, 1922 and Section 13 of the Bombay City Land
Revenue Act, 1876 were attacked as repugnant to Article 14 of the Constitution.

Similarly, a person arrested under Section 3 of the U.P. Special Powers Act
successfully challenged the constitutionality of the Act as offending his freedom of
speech and expression. Though the function of Habeas Corpus does not extend
beyond investigating into the jurisdiction of the Court which issued the arrest warrant
and the validity of the arrest warrant on its face, yet if the constitutionality of the law
itself is attacked and the law is held void, there could be no valid conferral of the
jurisdiction itself.

The constitutional guarantee in Article 21 that no person shall be deprived of

his life or personal liberty except according to procedure established by law affords
ample scope for invoking Habeas Corpus whenever there are procedural lapses in the
deprivation of personal liberty. This principle is applicable both in the case of punitive
as well as preventive detention. Before a person is deprived of his personal liberty, the
procedure established bylaw must be strictly followed and must not be departed from
to the disadvantage of the person affected. Even where a petitioner is on bail, the court
has still the power to issue the writ of Habeas Corpus.41

Where the order under Section 144 of Code of Criminal Procedure, 1898 itself
is illegal, a disobedience of that order and an arrest therefore under Section 188,
Indian Penal Code, 1872, was held illegal and struck by the Writ of habeas Corpus. A
sentence of 25 years imprisonment was held as illegal, the law having fixed a
maximum of only 20 years imprisonment. The detention for the extra 5 years was held
illegal.

The power of the High Court before the Constitution f India came into force
was confined in the matter of Habeas Corpus to the provision of Section 491, Code of
Criminal Procedure, 1898, since the old Common Law writ was taboo. But after, the
Constitution came into force the field is enlarged and writ direction or order in the
nature of Habeas Corpus could be enforced and further such an order can lie for the

40
. AIR (1956), SC 20.
41
.Mohd. Umar V. Thakurprasad Tiwari, AIR (1955) MB 200.

140
enforcement of Fundamental Rights ( Part III of the Constitution). The said provision
has been omitted by the Code of Criminal Procedure, 1973.

5.15 Validation Order of Detention:

It is open to the Government to pass fresh order of detention on the same facts,
in case the order suffers from a technical or formal defect.

In BasanthChandra V Emperor42, an order of detention was passed under the

Defence of India Rules. It was revoked and fresh order was made on the same day. It
was contended by the detenue that the authority had no power except on fresh grounds
from making a fresh order of detention after cancellation of earlier one.

Negativing the contention, Spens, CJ. Stated that; “It may be that in cases in
which it is open to the Court to examine the validity of the grounds of detention as
decision that certain alleged grounds did not warrant a detention will preclude further
detention on the same rounds. But where the earlier order of detention is held
defective merely on formal grounds there is nothing to preclude a proper order of
detention being based on the pre-existing grounds themselves, especially in cases in
which the sufficiency of the grounds is not examinable by the courts.43

5.16 Fresh Order of Detention:

As general rule, once an order of detention has expired, revoked or is quashed

and set aside no fresh order off detention on the same fact and on the same ground can
be made. If, however, new facts or fresh or additional grounds have came into
existence after revocation or setting aside of the order, fresh order can be passed.44

5.17 Habeas Corpus prior to Arrest:

If a petition under Article 32 or 226 is maintainable when there is reasonable

apprehension of invasion of a fundamental right, can a petitioner approach the court
for protection of a right under Article 21 from being threatened imminent violation in
a case of detention?

42
.AIR (1945) FC 18.
43
. Id.
44
. Id.

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 In Jayantilal V. State of Maharashtra45, the High Court of Bombay observed:”
Article 226 is couched in language wide enough to protect a person against an illegal
invasion of his right to freedom by protecting him while still free and by regaining his
freedom for him if he has already been wrongfully detained. We cannot countenance
and do not accept the Advocate General’s submission that the High Courts are
impotent to give relief against the prospect of illegal detention and must first require
the intended detenu to surrender to the illegal detention. We are satisfied that the High
Courts may under the provisions of Article 226 issue a direction, order and writ in the
nature of Mandamus and /or Certiorari quashing an illegal order of detention and may
by direction, order and writ in the nature of Prohibition enjoin the person threatening
the illegal detention from executing the threat.”

In Vedprakash V. State of Gujarat46, Full Bench of the Gujarat High Court

also took a similar view. The court observed that, “The High Court cannot be a silent
spectator when the fundamental right and liberty of a citizen are being eroded by an
executive fiat. May it be under the cloak of preventive detention or any other law or
provision the High Court has ample power to entertain and save an individual who
would otherwise be mauled by an arbitrary action. No doubt there are limitations in
exercising the powers under Article 226 and such limitations are wider and limited
according to the legislation under which the executive has exercised its authority. If a
preventive detention order is found to be arbitrary and ex facie illegal, the High Court
will not hesitate to interfere in such type of orders for the purpose of giving necessary
relief to the affected. The Court which has derived its power under the Constitution
cannot lie dormant as if its hands are fettered by promulgation of a detention order,
when specially the intended detention order is ex facie illegal, arbitrary and shocks the
moral conscience of the Court. In such rarest of rare cases it is the duty of the Court to
interfere with ex facie illegal and arbitrary detention order in order to save and protect
the liberty of the individual against the executive fiat.”

In Kiran Pasha V. Government of A.P47, direct question arose before the

Supreme Court. The petitioner filed a writ petition in the High Court of Andhra
Pradesh under Article 226 of the Constitution restraining the respondents from

45
. (1981), 83 Bom LR 190: 1 Cri L.J. 767(Bom).
46
. AIR (1987) Guj 253.
47
( 1990), SCC 328.

142
passing an order of detention against him. The Single Judge of the High court granted
interim relief against taking the petitioner in custody but the Division Bench held that
the order of detention was already made even prior to filing of the petition, the
petitioner was taken into custody and the petition had become in fructuous. According
to the Division Bench the normal rule was that the petitioner should first surrender to
custody and then to move for a writ of Habeas Corpus. The petitioner approached the
Supreme Court.

The Supreme Court held that where writ petition for protection of a
fundamental right being threatened or in imminent danger was maintainable.

The Court then indicated exceptional circumstances wherein a court may

interfere with an order of detention prior to its execution. They are;-

1) The order is not passed under the Act under which it is purported to
have been passed,

2) It is sought to be executed against a wrong person,

3) It is passed for a wrong purpose,

4) It is passed on vague, extraneous and irrelevant grounds, or

5) The authority which passed it had not authority to do so.

In the light of the above declaration of law, the Court partly overruled Kiran
Pasha’s case.

5.18 CONCLUSION:

Preventive Detention is the arch enemy of the right to personal liberty. It

envisages detention without trial, at the times when the liberty of the individuals
crosses the limit and threatens the very existence of the state, and that at point of time,
it fails to control the enjoyment of individual liberty then the state uses the preventive
detention measures.

Constitution has provided safe guards under Article 22 to the detenu’s for both
who are detained under normal and also under preventive detention. Unlike other
countries, Indian Constitution makes provision for preventive detention even in the
peace time.

143
 The framers of the Constitution were very much concerned about security of
the nation and also the civil liberty of individuals. So they have incorporated the
Preventive Detention Laws and their procedure under Article 22 i.e., Part III of the
Constitution.

Though prima facie Article 22 looks like contravening the Article 21 i.e.,
Right to life and personal liberty, in fact they are correlated to each other. Article 21
says that “No person shall be deprived of his life and personal liberty without
procedure established by law and Article 22 lays down the procedure for detention.
And if a detaining authority did not follow the procedure then it is unlawful and
illegal detention. So we can see the intention of framers that they have tried and
almost successful in balancing the interest of the society as well as individual liberty.

Habeas corpus is a judicial remedy for an unlawful detention. The right to

move the Supreme Court by an appropriate proceedings under Article.32 of the
constitution for the enforcement of fundamental rights is itself a fundamental right.
Similarly, the right to move a High court under Article.226 of the constitution for the
enforcement of fundamental rights or for any other purpose is a constitutional right
and hence remedies cannot be taken away, abridged or curtailed by a statutory
provision.

Personal liberty is one of the most important right of a person, without which
there is no worth or meaning in living. In international level the Universal declaration
of Human Rights has played a very important role in laying foundation for many
convention and treaties for the purpose of protecting the rights of the detenu, detained
under preventive detention laws.

Apart from this, judicial review is also one of the most effective remedy to
limit or curb the discretionary power of the executives, when they are given vast
power under preventive detention laws and provide remedy to those who are
arbitrarily detained.

Finally the Habeas corpus which helped in establishing the rule of law is the
most effective remedy where the detention is arbitrary or when the executives abuse
their power. Even though preventive detention is an exception to writ habeas corpus
and can be suspended or barred but still it can provide effective remedy where the
detention was made with malafide intention.

144
 It is, not only the right of the court, but also its duty as well, to examine what
are the basic facts and materials which actually and in fact weighed with the detaining
authority in reaching the requisite satisfaction. The judicial scrutiny cannot be
foreclosed by a mere statement of the detaining authority that it has taken into account
only certain basic acts and materials and though other basic facts and materials were
before it, it has not allowed them to influence its satisfaction.

145
 CHAPTER-VI
WRIT OF HABEAS CORPUS
DURING EMERGENCY
PROVISIONS
 CHAPTER –VI

WRIT OF HABEAS CORPUS DURING EMERGENCY

PROVISIONS

6.1 INTRODUCTION:

In England in times of war the Executive is armed by parliament with wide

power of detention without trial of any person subject or alien on mere suspicion.1 But
the court can grant this remedy where the regulation2order itself is found to be ultra-
vires the statute. The Parliament is competent to abrogate the common law writ of
Habeas Corpus. Earlier, before the enactment of Habeas Corpus Suspension Act,
Parliament used to suspend the writ during the period of emergency3.

During the suspension of writ of Habeas Corpus the executive is statutorily

empowered with best power of detention to e exercised, on its subjective satisfaction
as to the need of detaining any6 persons are grounds of national security. In such
circumstances the efficacy of writ of Habeas Corpus suffers seriously and the detenu’s
chances of success are practically nil.

Wars and emergencies have posed serious problems to the issue of this
extraordinary remedy. While in Liver Sidge V. Anderson4 the remedy was decided on
the ground that the subjective satisfaction.

The outright suspension of Habeas Corpus, an action reserved for Parliament,

has been a rare occurrence in the United Kingdom. The threat presented by James II
led to another suspension of Habeas Corpus in 1969. In the 18th Century, Parliament
suspended Habeas Corpus due to the fear of invasion from France, the threat of
rebellion in Scotland, and the revolution in the American Colonies. During World
War II, Parliament suspended Article 8 of the Habeas Corpus Act of 1679 to allow the
detention of British subject on the Isle of Man.5

During World War I the Home Secretary was given complete discretion to
detain persons of “hostile origin or association” without trial. Rejecting the claim that

1
.Id.
2
. Exparte, O’Brien (1923) 2 K.B. 361.
3
. Halsbury Laws of England, 3rd Edn. Vol. 11, Butter Worth and Co. Landon, P.27.
4
.(1947) A.C. 206 221.
5
.Isle of Man (Detention) Act, (1941) 5&6 Geo, 6,c.16.

146
this amounted to a suspension of Habeas Corpus, Lord Atkinson found that the
subject “retains every right” conferred by the Habeas Corpus statutes.6 The writ of
Habeas Corpus could still issue to the custodian, he reasoned; all the regulation had
done was temporarily make detention without trial lawful under certain
circumstances.7

6.2 Emergency powers and writ of Habeas Corpus in U.K.:

Most significant aspect of 20th Century experience with emergency powers

has been the use of statutes conferring broad powers to enact subordinate legislation.
The parliament has delegated its very legislative capacity to the executives and they
have to define the limits of their own powers.

War time Regulation and Detention:

In 1914-1918 war, by virtue of Defence of the Realm Act 1914, Parliament

delegated to the King in Council the power to regulate generally for the safety of
realm. The Act made no mention for internment, but the executives did establish a
scheme by statutory instrument. Under Regulation 14-B the Secretary of Home
Affairs was given the power on the recommendation of a specified naval or military
authority, where it appeared to the minister “that for securing the public safety or the
defence of realm it is expedient in view of the hostile origin or associations…to order
the internment of any person.

In R V. Halliday8, the legality of this internment scheme was challenged. An

internee brought an application for Habeas Corpus alleging that his detention was
illegal since the whole scheme was Ultra virus. The House of Lords rejected the
contention and held that the danger to the public safety had reached such proportion
that internment could reasonably be said to fall within the general regulatory
competence to act of the realm.

Lord Atkinson observed that “However precious the personal liberty of the
subject may be, there is something for which it may well be, to some extent, sacrificed
by legal enactment, namely, national success in the war, or escape from national
plunder or enslavement.

6
. R V Halliday ,(1917) A.C. 260,
7
. Id.
8
(.1917) A.C.260.

147
 During 1939 to 1945 war, the Secretary of State for Home Affairs was
empowered by the Defence (general) Regulation 1939 to order for internment. Under
regulation 18-B he can order for internment if he has reasonable cause to believe that
the person is endangering to public safety or for the defence of realm.

In Exparte Budd 9, an internee obtained the writ of Habeas Corpus on the

ground that the Home Secretary had failed to demonstrate reasonable ground to
support his belief for detention.

However in subsequent case i.e., in Liver Sidge V Anderson10 and Greene V The
Secretary of State for Home Affairs11, where House of Lord held that the court could
not interfere, however objectively unreasonable the minister’s belief may have been,
under the applicant could show lack of bonafide with the evidence and Habeas Corpus
was refused.

Many emergency Acts were passed during the partition of Ireland the Northern
Ireland (Emergency provisions) Act 1973, Detention of Terrorism (Northern Ireland)
Order 1972, and in 1974 Emergency powers of Detention were also introduced in
England. Many Habeas Courts petitions were filed challenging the validity of the
internment under these Acts.

6.3 Emergency power and Writ of Habeas Corpus in India:

In India the jurisdiction to issue came with the establishment of Supreme

Court by the regulation Act 1773. The Charter of 1774 clause 4 gave power to justice
of the Supreme Court of Calcutta to issue writ of Habeas Corpus.

Later by the Act of Parliament in 1861 the 3 Supreme Courts of Calcutta,

Bombay and Madras were abolished and Section 9 of Latter Act established High
Courts by letter of patent. These High Courts had the original jurisdiction to issue the
writ of Habeas Corpus within the limits of their presidency towns.

9
. (1942) AII E.R. 749
10
. (1942) A.C. 248.
11
.(1942) A.C. 248

148
In Re Amir Khan12, it was observed that Supreme Court of India had power to issue
the writ of Habeas Corpus into the Moffusil and that the High Courts also inherited
the power.

In 1920 Criminal Law of Amendment Act of 1920 amended section 491 of

Criminal Procedure Code and made the writ of Habeas Corpus available throughout
the jurisdiction of each High Courts in India.

After the independence when the Constitution came into force, the position of
writ procedure was fully cured by inserting the powers of the court to issue writs
under part III of the Constitution. Now any person can invoke the jurisdiction of the
Supreme Court under Article 32 and of High Court jurisdiction under Article 226 of
the Constitution for the writ of Habeas Corpus. The writ of Habeas Corpus had been
proved itself as useful and valuable remedy.

In India the Constitution of India under Article 359 empowers the President to
suspend to move the Court for the enforcement of any of the fundamental rights
conferred by the part III of the Constitution in case of proclamation of Emergency
only after approval of Parliament. The Presidential order comes into force. In that
order has to specify the period of the emergency.

Emergency is a situation that is failure of Constitutional machinery in the state

that is breakdown of law and order situation or internal disturbance or waging a war
or external aggression. In that conditions President can proclaim the emergency and
then he can temporarily suspend the right to move a court for the enforcement of any
of fundamental rights to make state strong to face that situation for security of the
nation.

Article 359 empowers the president to suspend the right to move a

court for the enforcement of any of the fundamental rights conferred by part III of the
Constitution. The president has to specify the same in his order and limit it to the
period of the emergency or to a shorter period. This order is, however, subject to the
approval of parliament, which may revoke or conceal it. The President’s order is to be
placed before each House of Parliament but no time limit is fixed for this. The rights
suspended may be all or any, in respect of the whole or any part of the Country

12
6 Beng, LR 459, V.G. Ramachandran, Law of Writs (1963), Eastern Book House.

149
affected by the proclamation. The word ‘as soon as may be’ enjoins the president not
to delay unduly the laying of the order before Parliament. ‘As soon as may be’
connotes as early as is reasonable and feasible.

In three important cases, that is Mohan Chowdhary case, Makhan Singh case
and Habeas Corpus case the court upheld the Presidential order dated June 27, 1975
which suspends enforcement of the fundamental rights.

The cases with reference to the disability to move the Court for the
enforcement of fundamental rights during the emergency period are;

1) Mohan Chowdhury V. Chief Commissioner, Tripura13

In this case, the petitioner was detained under the Defence of India Rules,
1962. He filed a petition in the Supreme Court under Article 32 of the Constitution. A
preliminary objection regarding maintainability of the petition was raised in view of
the presidential order declaring emergency on October 26, 1962 and suspension of the
enforcement of the fundamental rights guaranteed under Articles 14, 21, and 22 of the
Constitution by an order dated November 3, 1962. It was argued on behalf of the
detainee that the right under Article 32 could not be suspended as Article 359 did not
authorize the president to do so. Since the operation of Article 32, which was itself a
fundamental right was not suspended, the petition was maintainable.

The Supreme Court held that the right to move that Court under Article 32 was
subject to Article 32(4) under which the right could be suspended in accordance with
the provisions of the Constitution. Article 359 enabled the President to suspend the
right to move any court for the enforcement of the fundamental rights which may be
named by the President. The President’s order did not suspend all rights vested in a
citizen to move the Supreme Court but only his right to enforce the provisions of
Articles 21 and 22 in respect of anything done under the Defence of India Act.

“Thus, as a result of the President’s order, the petitioner’s right to move this
Court, but not this Court’s power under Article 32 has been suspended during the
operation of the emergency with the result that the petitioner has no locus standi to
enforce his right, if any, during the emergency”. So, this petition is not maintainable.

13
. AIR (1964) SC 173: (1964) Cr.L.J 132.

150
 2) Makhan Singh Tarsikka V. State of Punjab14

The appellant had been detained under Rule 30(1) (b) of the Defence of India
Rule made by the Central Government in exercise of the powers conferred on it by
Section 3 of the Defence of India Ordinances 1962. When the appellants sought the
issue of Habeas Corpus by initiating proceedings under Section 491(1) (b) of the
C.P.C before the High Courts of Bombay and Punjab, contending that their detention
was illegal because the Ordinance and the Rules made there under were
unconstitutional and void, both the High Courts rejected their plea and refused to
issue the writ.

Meanwhile, when similar petitions came up before the Allahabad High Court,
the Court took a contrary view and directed the detenus to be released holding that the
far to move a Court did not apply to proceedings where the Court was moved for the
enforcement of fundamental rights and that Rule 30 of the Defence of India Rules
providing for preventive detention was unconstitutional and void as it violated Article
22(4), (5) and (7). The matters were carried to the Supreme Court and heard by a
Constitution Bench of 7 Judges.

In this case several questions were raised and contended.

Firstly: That the legal provision such as Article 359 is in favour of the Fundamental
Rights of the citizen and also in favour of the State to result such right, the court
should lean in favour of the former one. But the court rejected the argument and held
that Article 359 was capable of only one construction i.e., as long as emergency was
in force a Presidential order, suspending the enforcement of Fundamental Rights
would comprehensively preclude reliance of those rights directly or indirectly.

Secondly: It was argued that the bar imposed by Article 359 applies only to the
enforcement of Fundamental Rights through the Supreme Court and not through any
of the High Court.

But the Court rejected this argument on the ground that even where an
application for Habeas Corpus was made under Section 491(1) (b) of Criminal
Procedure Code 1898, its effect was really to enforce the Fundamental Rights
guaranteed by the Constitution.

14
.AIR (1964) SC 381: Cr.L.J. 269 (1964).

151
Thirdly: It was argued that the Presidential Order dated on 3 November 1962 was
invalid because it is purported to confine itself to a specified class of persons i.e., the
persons detained under the Defence of India Ordinance 1962, Preventive Detention
Act 1950.

The Court rejected this argument and observed that the power conferred by
Article 359 is wide enough and flexible enough to allow the President to issue an
order of limited scope if he so choose and merely because he choose not to exercise
the full extent it did not make the order invalid.

Further the Court held that where the legislature had laid down the policy
behind a statute in clear and unambiguous terms, leaving it to a specified authority to
execute that policy by making rules, such delegation of power was continuously
unassailable.

Lastly: It was argued that the Presidential order barring the enforcement of
Fundamental Rights were not limited in duration and could last for an indefinite
length of time, the court found that there is no merit in this argument.

Though the appeal was dismissed by the Court, it made certain points clear. It
was held that the operation of Article 359 did not affect the rights but only suspended
the remedy. Apart from petitions under Article 226(1) or 32 (1), a detainee could seek
an appropriate order in the nature of the writ of Habeas Corpus by moving the High
Court under Section 491 (1) (b) of Cr.P.C. When Article 359 gave the President
power to suspend the right to move any court for the enforcement of the specified
fundamental rights, it included the action under Section 491 (1)(b) of Cr.P.C as well.

Although the plea of statutory provisions enabling detention being

unconstitutional was rejected by the Court, it pointed out that a detainee could
contend that this detention was illegal either for the reason that the mandatory
provisions of the Act had been contravened or that the detention was made with
malafide and both of these contentions were outside the purview of Article 359.

152
 3) A.D. M. Jabalpur V. Shivankant Shukla:15

This case is popularly known as “Habeas Corpus case”. In this case a more
pertinent question arose that does the right of personal liberty exist apart from the
provision of the Constitution in any other statute?

On June 25, 1975 Emergency was proclaimed by the Government of Mrs.

Indira Gandhi, the then Prime Minster of India on account of “internal disturbances”.
By virtue of Article 358 of the Constitution, the citizen’s seven freedoms under
Article 19 stood automatically suspended. On June 27, 1995 the President issued an
order under Article 359 suspending the enforcement of Article 14, 21and 22 also. On
25 June, 1975 and thereafter a lare number of persons, particularly the leaders of the
opposition party in parliament were detained under the provision of the Maintenance
of Internal Security Act, 1971(MISA). Many of them were not even informed of the
ground of their detention.

Some of the detenus filed petitions in different High Courts for the issue of the
writ of Habeas Corpus. When those petitions came up for hearing the Government
raised a preliminary objection to their maintainability on the ground that in asking for
release by the issuance of a writ of Habeas Corpus the detenus were in substance
claimed that they had been deprived of their personal liberty in violation of the
procedure established by law, which plea was available to them under Article 21 of
the Constitution.

The right to move for enforcement of the right conferred by that Article having
been suspended by the presidential order, dated 27, 1975, the petitions, according to
the Government, were liable to be dismissed at the threshold. The preliminary
objection had been rejected for one reason or another by the High Court of Allahabad,
Andhra Pradesh, Bombay, Delhi, Karnataka, Madhya Pradesh, Madras, Punjab and
Rajasthan. Broadly, these High Courts have taken the view that despite the
Presidential Order, it is open to the detenus to challenge their detention on the ground
that it is ultravires, as for example, by showing that the order on the face of it is
passed by an authority not empowered to pass it, or it is excess of the power delegated
to be authority, or that the power has been exercised in breach of the conditions
prescribed in that behalf by the Act under which the order is passed, or that the order

15
.AIR (1976) SC 1207: (1976) Cr.L.J 945.

153
is not in strict conformity with the provisions of the Act. Some of these High Courts
have further held that the detenus can attach the order of detention on the ground that
it is malafide, as for example, by showing that the detaining authority did not apply its
mind to the relevant considerations, o that the authority was influenced by irrelevant
considerations, or that the authority was actuated by improper motives. Being
aggrieved by the finding recorded by these High Courts on the preliminary point, the
State Governments and the Government of India files appeals contending that Article
21 is the so repository of the right to life and personal liberty an if the right to move
any Court for the enforcement of that right is suspended by the Presidential Order
issued under Article 359(1), the detenus have no locus standi to file the writ petitions
and therefore these petitions must be dismissed without any further enquiry into the
relevance of the materials on which the grounds of detention are bared or the
relevance of the grounds or the bonafides of the detaining authority. If the MISA
permits the non disclosure of grounds and indeed prevents their disclosure, there is no
question of inquiry into the reasons or grounds of detention and Court must accept at
its face value the subjective satisfaction of the detaining authority as recorded in the
order of detention. The matter was heard by a Constitution Bench of Five Judges
consisting of Ray C.J. and Khanna, Beg, Chandrachud and Bhagwati JJ. The majority
(Ray, C,J., Chandrachud and Bhagwati JJ) answered the issue in the negative and
delivered separate judgement. Their judgment are as follows;

Ray, C.J. held:

“ In view of the Presidential order, dated June 27, 1975 under clause (1) of
Article 359 of our Constitution no person has Locus Standi to move any writ petition
under Article 226 before a High Court for Habeas Corpus or any other writ or order or
direction to enforce any right to personal liverty of a person detained under the Act on
the grounds that the order of detention or the continued detention is for any person not
under or in compliance with the Act or is illegal or malafide. There is no natural law
or common law right to writ of Habeas Corpus”.

Beg,J., held:

“If the right to move any court” can be suspended under Article 359 there
remains no right, for the time being, to an inquiry into conditions which may enable a
party to secure release in assertion of rights guaranteed either by Article 21 or by

154
other Articles whose ‘enforcement’ is suspended. Indeed, the clear object of such a
suspension seems to be that Courts should not undertake inquires into the violation os
all alleged right. Courts, even in Habeas Corpus proceedings, do not grant relief
independently of rights of the person deprived of liberty.

Courts must presume that executive authorities are acting in conformity with
bottom of the spirit and the substance of the law. ‘Omnia praesumuntur rite esse
acta’, which means ‘that all official acts are presumed to have been rightly and
regularly done’. If the burden to displace that prema facie is upon the detenu, he
cannot, on a Habeas Corpus petition under Article 226of the Constitution, ask the
court to embark upon a inquiry, during the emergency, to allow him to this
presumption. To do so would be plainly to countenance a violation of the
Constitution.

To ask the executive authority to show the strict legality and correctness of
every step in the procedure adopted in a case of deprivation of personal liberty would
multiply the effect of the suspension of the enforceability of the procedural protection
to the right of personal freedom. To do so in reality to make the Presidential Order
under Article 359 (1) of the Constitution ineffective. Therefore, no question of
‘malice in law’ can arise in Habeas Corpus proceedings when such a protection is
suspended.

Chandrachud. J., held:

“The orders issued by the President in the instance case under Article 359(1)
provides for the suspension of the right to move any court for the enforcement of the
rights conferred by Articles, 14, 19, 21 and clauses (4) to (7) of Article359 aims at
empowering the President to suspend the right to enforce all or any of the
fundamental rights conferred by part III. Personal liberty is but one of the
fundamental rights conferred by part III and the writ of Habeas Corpus is peculiar to
the enforcement of the right to personal liberty. It must follow that the suspension of
the right to enforce the right conferred by Article 21 means and implies the
suspension of the right to file Habeas Corpus petition or to take any other proceedings
to enforce the right to personal liberty conferred by Article 21”.

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Bhagwati.J. held:

“The right to move any court for the enforcement of the fundamental right
guaranteed by Article 21 may be suspended by specifying it in the Presidential Order.
When that is done, no one can move any court, and any court would means any court
competent jurisdiction, including the High Court and Supreme Court , for
enforcement of the right conferred by Article 21. In the ultimate analysis, the
protection of personal liberty and the supremacy of law which sustains it must be
governed by the constitution itself. The Constitution in the paramount and Supreme
Law of the Land if it says that even if a person is detained otherwise than in
accordance with the law, he shall not be entitled to enforce his right of personal
liberty. While a Presidential Order under Article 359 clause(1) specifying Article 21 is
in force. The court has to give effect to it as the plain and emphatic command of the
Constitution”.

Khanna .J. held:

‘However, did not agree with the majority view that is upheld the suspension
of the writ of Habeas Corpus during the period of emergency on the basis of higher
claims of national security. In a powerful dissent, his Lordship held;

“It is incorrect to contend that when right to enforce the right under Article21
is suspended, the result would be that there would be no remedy against deprivation of
a person’s life or liberty by the State even though such deprivation is without the
authority of law or even in flagrant violation of the provision of law. The right not to
be deprived of one’s life or liberty without the authority of law was not the creation
for the Constitution. Such right existed before the constitution came into force. The
fact that the framers of the constitution made an aspect of such right a part of the
fundamental rights did not have the effect of exterminating the independent identity of
such right and of making Article 21 to be the sole repository of that right. Its real
effect was to ensure that a law under which a person can be deprived of his life or
personal liberty should prescribe a procedure for such deprivation or , such law should
be a valid law not in violation of fundamental rights guaranteed by Part III of the
Constitution. Recognition as fundamental right of one aspect of the pre-constitutional
right cannot have the effect of making things less favorable so far as the sanctity of
life and personal liberty is concerned compared to the position if an aspect of such

156
right had not been recognized as fundamental right because of the vulnerability of
fundamental rights accruing from Article 359.

Even prior to the proclamation of emergency in June, 1975 on account of “ a

fearless judicial decision”, by Sinha.J. of the High Court of Allahabad holding the
then Prime Minister India Gandhi guilty of corrupt electoral practices, such
declaration had been made thrice in the past; namely in 1962, 1965 and 1971. In spite
of the emergency, “ a free press, a free parliament and an independent judiciary
ensured the working of our liberal democratic Constitution as it was intended to be
worked, judicial proceedings and judgments of Courts were equally freely reported,
because, under the general law, the publication of judgments and a fair report of
judicial proceedings, are protected. Judgments were delivered fearlessly no judge was
demoted, or transferred without his consent because his judgment was damaging to
the Government”. The emergency subverted the Constitution in a number of ways.
There was an attack on a free press by imposing on it a censorship the like of which
had not been known in India even in times of war. Court and parliamentary
proceedings were subject to censorship not only were the publication of Court
judgments censored but directions were gives as to how judgments should be
published.

Orders of preventive detention were signed in blank, people arrested and the
grounds for detention got up later. India seemed to have gone back to the days of star
chamber which issued general orders to arrest unspecified persons and search
property.

In the above background, the Supreme Court delivered Five separate

judgments in the Habeas Corpus case and by a majority of 5:1 (Ray, C.J., Beg,
Chandrachud and Bhagawati. J.J, Khanna.J. dissenting) reversed the unanimous view
of HighCourts and passed the following order;

“In view of the Presidential Order, dated June 27, 1975, no person has locus
standi to move any writ petition under Article 226 before a High Court for Habeas
Corpus or any other writ or order or direction to challenge the legality of an order of
detention on the ground that the order is not under or in compliance with the Act or is
illegal or is vitiated by mala fides factual or is based on extraneous considerations.”

157
 Apart from the fact that the said order did not lay down correct law, the
judgment in the Habeas Corpus case, is clearly erroneous, contrary to against the
judgments pronounced by the Supreme Court itself and has proceed great public
mischief.

Firstly, the majority failed to consider in its prior perspective and most
important fact that Article 21does not confer a right to life or personal liberty. The
said right inherits in the body of every living person and Article 21 is not the sole
repository of the right to life and personal liberty.

Secondaly, the point was covered by a number of pronouncements of the

Supreme Court. In Makhan Singh V State of Punjab16, the Supreme Court observed
that certain pleas were still available to citizens in challenging the legality or propriety
of their detentions during the emergency in spite of the bar created under Article 359
of the Constitutions.

By way of illustrations, it was stated in Makhan Singh that if the detainee had
been detained in violation of the mandatory provisions of the Act; or under a law
suffered from the vice of excessive delegation, and the detention was, therefore,
invalid or that the order of detention was malafide. All those pleas would be outside
Article 359(1) of the Constitution. These are not pleas which are referable or relatable
to the fundamental rights specified in the presidential order but independent of these
rights and they can always raised either in a petition under Article 32 or under Article
226 of the Constitution of India.

Gajendragadkar.J. then rightly observed;

“We ought to add that these categories of pleas have been mentioned by us by
way of illustrations, and so, they should not be read as exhausting all the pleas which
do not fall within the purview of the Presidential Order”.

In Durgadas V. Union of India17 also, the Supreme Court held that even during
emergency, the detainee can challenge the order of detention on the ground of mala
fide exercise of power or that any of the grounds mentioned in the order of detention

16
.AIR (1964) SC 381.
17
. AIR (1966) SC 1078

158
was irrelevant or there was no real and proximate connection between the ground
given and the object sought to be achieved by the Act.

It is respectfully submitted that the following observations of Ramaswami,J. in

the case of Jaichand Lal V State of West Bengal18 laid down correct law on the point.

“The scope of Article 359(1) and the Presidential Order it is wide enough to
include all claims made by citizens in any Court of competent jurisdiction when it is
shown that the said claims cannot be effectively adjudicated upon without examining
the question as to whether the citizen is, in substance, seeking to enforce fundamental
rights under Article 14, 19, 21 and 22. But this limitation cannot preclude a citizen
from challenging the validity of the ordinance or any rule or order made there under
on any other grounds. If the appellant seeks to challenge the validity of the ordinance,
rule or order made there under on any ground other than the contravention of Articles
14, 21 and 22 the Presidential Order cannot come into operation.

Thirdly, the most disturbing part of the majority judgment is that it held that
even a mala fide order of detention cannot be challenged. This is clearly wrong. It is
settled law that mala fide exercise of power is not an exercise of power is law at all. It
vitiates every action. In Makhan Singh, Gajendragadkar, J. rightly stated: “It is hardly
necessary to emphasize that the exercise of a power mala fide in wholly outside the
scope of the Act conferring the power and can always be successfully challenged. It is
true that a mere allegation that the detention is malafide would not be enough; the
detainee will have to prove the mala fides. But if the mala fides are alleged, the
detainee cannot be precluded from substantiating his plea on the ground of the bar
created by Article 359 (1) and the Presidential Order. That is another kind of plea
which is outside the purview of Article 359 (1).”

It is submitted that the following observations of Hidayatullah, J. in the

leading case of Ram Monohar Lohia V. Stat of Bihar19 are worth quoting:

“If a person, under colour of exercising the statutory power, acts from some
improper or ulterior motive, he acts in bad faith. The action of the authority is capable
of being viewed in two ways. Where power is misused but there is good faith the act
is only ultra vires, but where the misuse of statutory power and the more readily when

18
. AIR (1967) SC 483.
19
.AIR (1966) SC 740.

159
improper motives underlie it. The misuse may arise from a breach of the law
conferring the power or from an abuse of the power in bad faith. In earlier case the
Courts can be moved for we do not think that Article 359 or the President’s Order
were intended to condone an illegitimate enforcement of the Defence of India Act.”

Seervai Pithily states; It is not possible for layman and lawyers alike to speak
of the judgments in the Habeas Corpus case without strong emotion. The majority
judgments gave a free character to every petty government servant to do his will
against helpless people stripped by the Supreme Court of the protection of law. A
rigid censorship concealed the extent of the injury inflicted by the judgment from the
public gaze. But the evidence which has come to light since then, particularly before
the shah commission, shows how little justification there was for any judge to speak
of motherly case shown to detenus, or to express diamond bright and diamond hard
hopes’ that the kind of misdeeds which counsel for the detenus feared, if the
protection of the law was withdrawn from the detenus, had not tarnished the fair
record of free India and would not do so. The Four Judgments were delivered in the
darkest hours of India’s history after independence, and they made that darkness
complete”.

The learned author rightly concludes:

“The judgment in the Habeas Corpus case…. is the most glaring instance in
which the Supreme Court of India has suffered most severely from a self-inflicted
wound”.

In addition to the above matters, the Habeas Corpus case do not lays down
correct law and also unfortunate that the majority judgments failed to notice that the
whole emphasis of Article 358 and 359 is on law. The marginal note to Article 358,
“Suspension of provisions of Article 19” is misleading and inaccurate. Article 358
does not suspend Article 19 without any action on the part of the State. Article 19 is
suspended in the sense that, to use the words of Article 358,….nothing in Article 19
shall restrict the power of the state to make any law, or take any executive action
which the State would, but for the provisions contained in part III be competent to
make or take. Article 358 shows that when there is no emergency, the provisions of
Article 19, read with Article 13(2), limit legislative, and, consequently, executive
power since broadly speaking, executive power is to extensive with legislative power.

160
Article 73 and 162. Therefore, unless a law is made after a proclamation of
emergency comes into force, any action taken under a pre-emergency law must stand
the test of Article 19. If such a law violated Article 19 it would be void, although if
such a law had been enacted during an emergency the law as well as the executive
action, would have been valid.

After considered the above points the 44th Amendment took away the
President’s Power , under Article 359, to suspend by an order the right to move any
court for the enforcement of the fundamental rights conferred by Article 20 and 21
consequently, the situation created by the majority judgments of the Supreme Court in
the Habeas Corpus case cannot arise as long as this amendment of Article 359 is not
repealed. Again, the iniquity of inserting MISA in schedule 9 was realized and the
44th Amendment recovered MISA from September 9.

6.4 CONCLUSION:

In England in times of war the Executive is armed by parliament with wide

power of detention without trial of any person subject or alien on mere suspicion.20
But the court can grant this remedy where the regulation 21order itself is found to be
ultra-vires the statute. The Parliament is competent to abrogate the common law writ
of Habeas Corpus. Earlier, before the enactment of Habeas Corpus Suspension Act,
Parliament used to suspend the writ during the period of emergency22.

In the 18th Century, Parliament suspended Habeas Corpus due to the fear of
invasion from France, the threat of rebellion in Scotland, and the revolution in the
American Colonies. During World War II, Parliament suspended Article 8 of the
Habeas Corpus Act of 1679 to allow the detention of British subject on the Isle of
Man.23

During World War,I the Home Secretary was given complete discretion to
detain persons of “hostile origin or association” without trial.

In democratic country like India people are given freedom of speech and
expression, independent judiciary to free and fair report of judicial proceedings and

20
.Id.
21
. Exparte, O’Brien (1923) 2 K.B. 361.
22
. Halsbury Laws of England, 3rd Edn. Vol. 11, Butter Worth and Co. Landon, P.27.
23
.Isle of Man (Detention) Act, (1941) 5&6 Geo, 6,c.16.

161
judgment. If wide power conferred to executive authority to face the situation of
emergency it may act prejudicial to the interest of people and under the preventive
detention law can arrest any person without proper reason only on irrelevant grounds.

So Habeas Corpus case subject to lot of criticism by Khanna,J. dissenting

judge in Habeas Corpus case.

Therefore, even during emergency, the freedom of Indian citizens cannot be

taken away without the existence of the justifying necessity specified by the Rule
themselves. Even during emergency individual can have right conferred by part III of
the Constitution on the ground of mala fide exercise of power or that any of the
grounds mentioned in the order of detention irrelevant or there was no real and
proximate connection between the ground given and the object sought to be achieved
by the Act.

After considerable thought that Habeas Corpus case do not lay down correct
law and require to be overruled. However, fortunately by the Constitution 44th
Amendment Act, 1978 a provision has been made that even during the proclamation
of emergency, the president cannot suspend the enforcement of the rights conferred by
Article 20 and 21 of the Constitution. This amendment thus superseded the view taken
by the majority an action reserved for Parliament, has been a rare occurrence in the
United Kingdom judgment in the Habeas Corpus case.

162
 CHAPTER-VII
CONCLUSIONS AND
SUGGESTIONS
 CHAPTER –VII

CONCLUSION, FINDINGS & SUGGESTIONS

7.1 Introduction:

Dr. Ambedkar in the constituent assembly said: “If I was asked to name any
particular article in this constitution as the most important, an Article without which
this Constitution would be a nullity I could not refer to any other article except this
one. it is the very soul of the constitution and the very heart of it.

Writ in law is a species of formal order from the Crown or delegated officer to
an inferior officer or to a private person enjoying some act or omission. It appeared as
an expression of kings command or wish subsequent to 1531 it gets transformed into
a plaintiffs written declaration and continued till 1873. Later after 1873 it gives is to a
species of writs called “prerogative writs”. Habeas Corpus in England is of common
law origin, though its effectiveness was enhanced by three statutes and its issue into
the king’s domains defined by a Fourth Act.

From the birth of concept of rule of law the democracy has also taken its birth
and had brought revolutionary changes from police state to welfare state. The welfare
state has given great importance towards human rights and other fundamental rights
also recognized by the state. One of the most important rights recognized by the
civilized states is personal liberty which can be curtained by the state only through
law and preventive detention is also such law under which the state can use police
power to detain any person in the interest of security of nation and maintenance of
public order. For this purpose the executive has given enormous power under
preventive detention laws which are many times abused or arbitrarily used to prevent
this misuse of power and to protect individual liberty by invasion of executives many
standards have been laid down.

The recognition of writ of Habeas Corpus as a matter of right and a safeguard

of human liberty may be traced to Article 39 of Magna Carta. It was also pointed out
that no freeman may be taken or imprisoned or exiled or in any manner destroyed, but
by the law of the land.

Habeas Corpus is a legal term in its Latin means, you are ordered to have the
body, if a person has been arrested or is held by police or a lawyer or friend can obtain

163
a writ of Habeas Corpus. The writ of Habeas Corpus is one of the basic guarantees of
personal freedom in English law. It prevents unjust or wrongful imprisonment or
detention by legal authorities.

The jurisdiction to issue prerogative writs came in India with the establishment
of the Supreme Court by the Regulating Act of 1773. The Charter of 1774 Clause 4
gave the power to each of the justices of the Supreme Court of Calcutta to issue writ
of habeas Corpus with abolition of the three Supreme Courts in Calcutta, Bombay and
Madras by Act of Parliament in 1861, Section 9 of the Act referred to the
establishment of High Court by Letters Patent. These High Courts had original
jurisdiction only within the respective Presidency Towns. The opinion of the Court
was that the common law writ of habeas corpus could be issued outside the original
jurisdiction of the Supreme Court.

In the modern time this writ is issued by the court to remedy any kind of
violation of personal liberty of the detenues. This writ has originated and continued in
England as a King’s Prerogative writ. In all the Anglo Saxon systems this has been
incorporated as a Constitutional provisions. From the traditional requirement of
formal production of the body of the detenue to various types of orders redressing the
grievances of person in preventive, punitive and protective custodial detentions. The
writ of habeas corpus has undergone certain changes , controversies have also arisen
about the availability of this great writ during the war time and also during the
emergency period. Both in India and in England the doubts as to availability of this
remedy during these situations have caused certain unsatisfactory position of law. It is
quite useful to assess the extent of availability of writ of habeas corpus during these
situations. Since the origin and growth of writ of habeas corpus of present
understanding took place in the English Constitutional system which had its impact
upon the colonial states and Anglo Saxon legal system like India. Efficacy of any
right depends upon the right to enforce it. In safeguarding the precious right like
personal liberty the important contribution of writ of habeas corpus are to be
evaluated.

The early period in India, the jurisdiction to issue Habeas Corpus reached
position only through various stages of development or may be stated at the very
outset that this jurisdiction was not as extensive as it was in England. The Legislative

164
History1 of Habeas Corpus in India reflects the partial and fragmentary way in which
it was conferred on the High Courts and the halting and stunted development of this
weapon against executive interference with personal liberty of the subject. A detailed
treatment of the historical development is not possible in a study of this method of
judicial control. Hence it is attempted only a very brief survey of the statutory
development of the writ, sufficient to understand the basis of the power which the
courts have exercised. The jurisdiction to issue any of the prerogative writs does not
appear to have formed part of the powers of any Judges or courts in India until the
establishment of the Supreme Court by the Regulating Act in 1773.

It is the opinion of sir William F. Christian Defines Habeas Corpus is a writ

issued by a judge or court of justice commanding the person to whom it is directed to
bring the for a specified purpose. Habeas Corpus is an ancient safeguard of the subject
intended to secure release from any form of unlawful detention. According to coke it
is a prerogative writ which concerns kings justice to be administered o his subjects.
According to S.A.D. smith, Habeas Corpus appears to have issued on the application
of subjects.

According to sir William Holds Worth the Writ is merely procedural writ, in
the desire of the courts of the common law to extend their jurisdiction. As observed
by Sir William Holds worth, it was in the medieval period that the writ of Habeas
Corpus became a weapon by which the courts of common law could both defend their
own jurisdiction and increased that of the expense of rival jurisdiction. it was in the
second period that the power or this weapon was seen on a larger stage.

After the revolution the efforts of legislature was to improve the writ of
Habeas Corpus. in fact the judges have always been ready except in the period of
acute constitution controversy, immediately proceeding to the revolution to interpret
the rules of the common ;aw and the statue law in such a way that they made for the
greater efficiency. This was due to two causes. In the first place the tradition which
dated from the days when the writ was used by the common law courts to protect their
own jurisdiction from the encroachments of rival courts supplied precedents for rules
which made to writ both as effectual and a speedy. We have seen that in 1588 it had

1
. Leach C.J., in District Magistrate, Trivandrum V, Mamman Mappillai (1962) Madras 708. at
pp.716-723).

165
been settled that once again imprisoning a person released by the writ was liable to
attachment for contempt.

It had been already discussed that some illustration of the practical effects of
this attitude of the judges in the 18th century in the nineteenth and 20th centuries, the
most striking illustration of the maintenance of this attitude is to be found which
evolved acts of 1679 and 1816 providing the writ of Habeas Could be issued by the
lord chancellor or by any of the judge or barons of exchequer, as observed by Lord
Herchell in the case or Cox v hakes was decided on 1923 by the case.

Habeas Corpus is the great safeguard of individual liberty against the

encroachments by the government in this way the writ of Habeas Corpus and
Subjuciendum having in the Seventeenth Century been rendered an efficient means of
securing the liberty of the subject imprisoned as a charge of crime, was in the
Nineteenth Century not only rendered still more effective for this purpose but also
extended to almost all other cases of imprisonment.

In U.K., as held in Gassages Case2, it follows that a writ is a remedial and not
punitive. According to Lord Halsbury it is not appropriate to punish wrongful
detention once it is ended. Further as explained by Brett, L.J.in Thomas Dale’s3 case a
detention is unlawful for the purpose of issue of writ of Habeas Corpus where the
procedure prescribed by law, which authorizes the detention has not been followed.

The writ of Habeas Corpus may be issued if any detention which is not
justified by any, in case of civil, criminal and revenue law. It can be issued also in
cases of detentions contravening the procedure established by law although the
detention is coming under the broad scope of the legislation.

Historically the remedy of Habeas Corpus first came to India in 1773 along
with the supreme court of Calcutta. It became generally available outside the ordinary
original jurisdiction of the three presidency high courts in India only as late as 1923.
Because of the existence of many laws inserted in section 491 of the criminal
procedure code, detention under which could not be agitated in Habeas Corpus
proceeding, the importance of the remedy in the legal system was very much limited
compared to the position of Habeas Corpus in other common law systems. But the

2
. Boruardo V. Ford Gassages case( 1892) A.C. 326, 339,
3
. Dale’s case (1881) 6. Q.B.D. 376(C.A).

166
remedy has to-day got emancipated from all its historical Shakles and stands as a
fundamental and guaranteed right. in the opinion of Markose,the importance of
Habeas Corpus depends upon two factors. The first is the nature of the remedy as
recognized by the law. The second is the scope of the remedy as enforced by the
court.

In India the English law was followed in allowing relation and friends of the
prisoner to make an application. In re Hardayal Sigh4, it was observed that some rules
should be framed distinguishing the right to move the application by relation and
friends, so that persons having no knowledge could not create unnecessary
embarrassment to that authorities and waste judicial time. However, it is pointed out
by D.D. Basu, that the word “friend” itself a vague term and may include even
persons having particular of affinity, but in the light of the recent decisions, the
observation of the D.D.Basu appears to have been solved.

In regard to the availability of alternative remedy and guardians and words act,
as held in Gopalan v. Shrechand5 where there is no question of application of the
guardian and wards act there is an unanimity on the point that an application for
Habeas Corpus will lie. it was also further held in Gopalan V State of Madras. If the
petitioner successfully challenges the constitutionality of a law under which he has
been deprived of his liberty by Habeas Corpus. The court is bound to release him.

About the nature of Habeas Corpus proceeding there has not yet been
unanimity of opinion in India. The weight of authority is on the side which considers
it a criminal proceeding. This is at variance with the principle followed in England-
where its nature is held to depend upon the nature of the proceeding under which the
detenue is detained: successive Habeas Corpus application are now not allowed in
India except under Article 32. When an identical application is dismissed by any state
high court under Article 226.

According to Markose, scope of the remedy depends upon the operative

provision of the law under which curtailment of individual liberty is sanctioned and
the principles upon which alternate remedies are held to displace Habeas Corpus.

4
.A. 1949 EP-67(68) Ranjitlal V. Rex.
5
.AUR 1955, All. 28.

167
 Wars and emergencies have passed serious problems to the issue of this
extraordinary remedy. While in Liver Sidge case the remedy was decided on the
ground that the subjective satisfaction of the Home Secretary would not be examined.
In India there are similar developments although such errors were sought to be
rectified recently. In Makhan Singh’s case the supreme court decided that when
through Presidential order under Art. 359 power to move the supreme court is
suspended, about the merits of the detention order the High Courts and the Supreme
Court could examine on the ground that there is abuse of power of detention. This
approach was not adopted in Shivakant Shukla case6 where the Court adhered to
literal interpretation of Art. 359. It is submitted in Shivakant Shukla the majority erred
in holding that deprivation of constitutional remedies also bar remedies under public
have, in cases of abuse of discretionary power. It is submitted the dissenting judgment
of justice Khanna is a fair as it stress on the requirement of rule of law. However the
present position after 44th amendment which has immunized personal liberty from
suspension during emergency, has put the law of remedies on right to Constitutional
track. Availability of writ of Habeas Corpus during emergency does not in any way
effect the interest of the state because detention would be continued on justifiable
grounds.

The objective of preventive detention laws is not to punish a man for having
done something but to intercept him before he does it and to prevent him from doing
it. No offence is proved nor any charge formulated. The justification of such detention
is suspicion or reasonable probability of the impending commission of the prejudicial
act and not criminal conviction which can only be warranted by legal evidence.

Under the Preventive Detention laws, the executive had two-fold discretion. It
is to determine with very broad limits the purposes for which the power is to be
exercised, and secondly it has to be subjected to preventive detention. The
Constitution provides for certain procedural safeguards under Article 22. The power
given to the courts under Article 226 and 32 ought to be exercised (a) to protect the
individual liberty guaranteed under Article 21, and (b) ensure observance of
Procedural and Substantive Safeguards under Article 22 through writ of Habeas
Corpus. In short, the court is empowered to re-examine the rationale for the exercise

6
. Supra note P. 7, Chapter 4.

168
of the power of preventive detention. The abuse of the power by the executive and the
judicial response to it are analyzed with reference to select cases.

The very meaning of habeas Corpus ad Subjicieudeum, is that let the body be
produced. From the very inception of this remedy in England as discussed in the
earlier Chapters the content of the remedy lie in production of the detained person,
along with furnishing the reasons for detention, even- person, along with furnishing
the reasons for detention, even-though so many remedies have been evolved through
statutes and decisional law the importance of this remedy has not been diluted in
England for the reason that the remedy is effective, quick, and orders for relief of the
person unjustifiably detained this point has been made clear in the decisions like
Jenk’s case, Anderson’s and Gassage’s case. Taking a clue from these English cases
that a writ of Habeas Corpus is a remedial and not punitive, according to the
observation of Supreme Court that, the main purpose of this remedy is to order for
release of illegally detained person if at the time of Habeas Corpus proceedings the
detention was unjustified considering that the determination as to the validity of
detention is the primary concern of writ of Habeas Corpus. It is submitted that this is
very unfortunate stand as it denies to the detenues the advantages of physical
production of them before the courts of law. If the detenue is ordered to be produced,
before the courts of law the detenue can personally convince the court about the
factors of unjustified detention, about the maltreatment of his person and claim
appropriate remedies. In a society infested with police excess and other executive
harassments production of the body of the detenue has certain definite checks against
abuse of power. It was supported by the Colonial logic that since the production of the
body of the detenue has certain definite checks against abuse of power. It is submitted
that the delay due to production of the detenue is quite insignificant as compared to
the great benefits of producing the body of the detenue.

To release the unlawful detained person, in the modern times the remedy of
the Habeas Corpas been extended to redress the grievances of the detenues who are
under lawful custody but are subjected to physical or mental tortures and immoral
treatment. When the prisoners are deprived of their freedom of speech and expression
in jail or when the jail conditions are inhuman and unfair or when harsh treatment like
imposing handcuffs or confining in a solitary cells the supreme court and the high

169
courts have interfered in entertaining writ petition and reviewing the points put
forward.

All observations that may be relevant here can be derived from the cardinal
principle which had ready discussed namely Habeas Corpus is exclusively concerned
with the legality and reasonable conditions of persons detention the rule that cases of
commitment by a court record or by the houses of parliament for contempt or for
breach of privileges cannot be touched by Habeas Corpus is only a corollary that
doctrine because when such a return is made o the writ is conclusive that the detention
is legal. Many of the purposes for which the writ was granted in the past are now only
of historical interest. In recent years application to the high court for writs of Habeas
Corpus have been concerned with the legal right to the custody of infants the
detention of persons subject to mental disabilities detention by military authority
internment in war time, the detention would be immigrants who have been refused
leave to land, detention in pursuance of deportation orders for the extradition or
rendition of fugitive offenders and committal to prison for contempt of court or upon
conviction for crime.

The Writ of Habeas Corpus during emergency dose not in any way affect the
interest of the State because detention could be continued on justifiable grounds. The
conclusion reached by the court that this requirement is merely procedural formality
without any utilitarian value, is quite wrong for the reasons stated above. It is
submitted this unsatisfactory position can be rectified by over ruling the decision by a
Constitutional Bench of the Supreme Court.

The overall growth of law relating to writ of Habeas Corpus both in England
and in India suggest that the value and effect of writ of been properly recognized in
these legal systems both in the area of availability of the writ and the content of the
writ order there has been satisfactory development the position reached after 44th
amendment guaranteeing personal liberty even during emergency has put the law on
right track. The response of the courts to questions, (a) who can claim a writ of
Habeas Corpus? and (b) against whom writ of habeas corpus can be issued is also
satisfactory since the present notion of this writ remedy extends to almost all cases of
illegal detention. Thus it can be said that writ of Habeas Corpus has made a great
contribution to the cause of the liberty by providing effective remedy.

170
 There is no doubt that the Supreme Court and High Courts has been protecting
individual liberties which are conferred by part III of the constitution by issuing
various prerogative writs under Article 32 and 226, one of the important writ is that
writ of habeas corpus which deals with the life of individual. So the writ of habeas
corpus may be considered as a “the first serenity of civil liberty” The writ provides a
prompt and effective remedy against illegal restraint. By this writ, the courts directs
the prisons before the court so that the court may decide the validity, jurisdiction or
justification for such detention. The principal aim of the writ is to provide for a swift
judicial review of alleged unlawful restraint on liberty.

Our constitution has provided us various constitutional safeguards in the Part III of
the Constitution and also other statutory provisions of law as Criminal Procedure
Code, Evidence Act and also various guidelines have been issued, While delivering
judgment, which are to be complied with, followed by the executive authority while
doing its executive action against individual which is imposed duty on executive
authority by the State for illustration, Article 21 of the constitution having declared
that no person shall be deprived of life and liberty expect in accordance with the
procedure established by law.

Article 22 of the Constitution provides for protection against arrest and

detention in certain cases. It consists two parts, the first part contains clause(1) to (3)
which imposes limitation upon the Union and State legislature in enacting any
procedural law for deprivation of personal liberty. The limitations are (1) the arrested
person must be informed of the grounds of the arrest as soon as may be (2) the
arrested person must be produced the nearest magistrate within 24 hours of his
arrest(3) the arrested person should be given an opportunity to consult and be
depended by a legal practitioner of his own choice.

The second part contains clause (4) to (7) which covers the special law of
preventive detention. It imposes limitation upon the union and state legislature is
enacting any law relating to preventive detention without trial. The limitations are(i)
the ordinary period of detention shall not exceed three months (ii) parliament may,
however, enact a law laying down in what cases the three months limit may be
exceeded (iii) the three months limit may also be extended on the report of the
advisory board duly constituted in that behalf (iv) the details must be furnished as

171
soon as may be the grounds of detention to enable him to make a representation
against an order of detention (v) the detaining authority; however, need not disclose
facts which will be against public interest to disclose.

The Constitution provides various individual liberty on the one hand and also
her some provisions regarding preventive detention on other hand. The practical need
of preventive detention is that to security and safety of the country, interest of the
society and maintenance of public order and services essential to be community. The
executive authority to achieve this object it may invoke the article 359 that empower
the president to suspend the right to move a court for the enforcement of any of the
fundamental rights conferred by part III of the constitution. But these powers should
exercise in accordance with the procedure established by law otherwise the courts
have power to guard the executive order. In case the order is malafide belated order,
there is non-application of mind, the grounds are vague, indefinite, irrelevant,
extraneous, non-existent or state there invalidate the order by issuing writ of habeas
corpus.

In considering and interpreting preventive detention laws, courts though to

show greatest concern and solitude in upholding and safeguarding the fundamental
right of liberty of the citizen, but as against that they should not forget the historical
background in which the necessity an unhappily necessity was felt by the makers of
the constitution in incorporating provisions of preventive detention in the Constitution
itself.

The provisions writ of habeas corpus is very effective as there is no hard and
fast rule for making an application because of rapid development and growth of public
interest litigation and liberalized concept of locus stand and also broad interpretation
to article 21. But practically the executive authority did strictly complied various
provisions safeguard given to the individuals. In D.K.Basu V State of west Bengal
regarding custodial violence, torture death in police custody or back up, the detailed
guideline has issued to be followed in all case of arrest or detention. But some
guidelines remain unpracticed by the authority to ignorance of the individual
regarding their legal rights. If state provide adequate knowledge about individuals
legal right through mass media, and other method, and make upgrade the financial
position or status or free legal and for infringement of their fundamental rights and to

172
see speedy or expedition trial of writ habeas corpus their can be writ of habeas corpus
till very effective and meaningful.

7.2 Testing of Hypothesis:

1) Writ of Habeas Corpus is an effective writ against illegal detention.

For the purpose of safeguarding personal liberty of the individual certain

effective legal remedies have been innovated in civilized political system. The great
writ of Habeas Corpus is one among such devices remedying the encroachment of
personal liberty of the subjects. The writ of Habeas Corpus is remedial in nature. Its
paramount object is to secure the release of a person who is wrongfully detained and
not to punish the Wrongdoer. Article 32 and 226 of the Constitution of India provides
for redressal of grievances by the Supreme Court and the High Courts.

Therefore 1st Hypothesis is proved.

2) Writ of Habeas Corpus ensures liberty and freedom against all kinds of
unlawful detention

Liberty of a subject is an extremely precious right when infraction of such

right is involved. Court must act as a watch dog and every benefit of the lacuna goes
to the detenue. A writ of Habeas Corpus is a judicial mandate to a prison official
ordering that an inmate be brought to the court so it can be determined whether or not
that person is imprisoned lawfully and whether or not he should be released from
custody.

This Writ of Habeas Corpus ensures the liberty and freedom against unlawful
detention like detention made by the detaining authority as well as private person, i.e.,
Bonded labour system. When this writ is issued by the Court it is the duty of the
person to whom it is issued either to produce the detained person to the nearest
magistrate or to liberate that person.

Therefore 2nd Hypothesis is Proved.

3). Writ of Habeas Corpus cannot be issued against detention made under
Preventive Detention Laws.

The writ of Habeas Corpus is a judicial remedy for an unlawful detention. The
right to move the Supreme Court by an appropriate proceeding under Article 32 of the

173
Constitution for the enforcement of fundamental rights is itself a fundamental right.
Similarly, the right to move a High Court under Article 226 of the Constitution for the
enforcement of fundamental rights or for any other purpose is a Constitutional right
and hence remedies cannot be taken away, abridged or curtailed by a statutory
provision. But question arises that whether the Habeas Corpus can be barred by a
Statute?

The answer is yes. The writ of Habeas Corpus can be barred by the preventive
detention laws. We can say preventive detentions as an exception to the Writ of
Habeas Corpus as observed by Das J. in A.K Gopalan V. State of Madras- AIR 1950
SC. 27. Justice Das has observed that “ Our Constitution has recognized personal
liberties as fundamental rights. It has guaranteed restraints on them by clauses (2) to
(6). It has put checks on the state legislative powers by Article 21 and 22. It has by
providing for preventive detention, recognized that individual liberty may be
subordinated to the larger society interests. The only limitation put upon the
legislative powers is that it must provide some procedure and at least incorporate the
minimum requirements laid down in Article 22 (4) to (7).

Therefore 3rd Hypothesis is Proved.

4). In majority cases of detention the detaining authorities rarely shows

disobedience to the writ of Habeas Corpus.

The framers of the Constitution were very much concerned about security of
the civil liberty of individuals. So they incorporated the Preventive Detention Laws
and their procedure under Article 22.

The objective of Preventive Detention Laws is not to punish a man for having
done something but to intercept him before he does it and to prevent him from doing
it. Every person who is arrested and detained in custody shall be produced before the
nearest magistrate with in the period of 24 hours of such arrest excluding the time
necessary for the journey from the place of arrest to the Court of Magistrate and no
such person shall be detained in custody beyond the said period without the authority
of a magistrate. It is the duty of the detaining authority to communicate to such person
the grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order.

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 Article 22, provides that the detaining authority has to follow certain
procedural requirements which are established under the law, if it is not followed then
it amounts to violation of right to life and personal liberty which are guaranteed under
Article 21 of the Indian Constitution.

Certain circumstances the detaining authority under certain influence exercises

the power without following the procedures established by the law and rules which
violates the personal liberty and individual interest which amounts to disobedience to
the Writ of Habeas Corpus order

Therefore 4th Hypothesis is Proved.

7.3 Answer to the Research question:

1. Whether the writ of Habeas Corpus can be issued at any point of time and
for any kind of offence?

The great constitutional importance of the writ of Habeas Corpus lies in the
fact that ‘it is available to the meanest against the mightiest’.

If a person is arrested or detained under any civil or revenue law which

provides for, such arrest or detention in case of nonpayment of civil debt, or
revenue dues, an application for Habeas Corpus lies, if the requirements of the law
have not been complied with. The same rule would apply in case of a person
detained for purpose of further investigation or trial under Section 167 and 344 of
the code or other relevant law have not been complied with.

2. When the writ of Habeas Corpus can be issued?

Writ of Habeas Corpus is a prerogative rights by which a person can enjoy his
liberty under the constitution both under the England law and Indian Constitution
also. According to writ of Habeas Corpus a person who is wrongfully detained by
the detaining authority or the private person, this writ is available to everyone in
Indian as well as those who not a resident of India i.e., a alien also and also those
who have obtained the domicile of India after fulfilling the essential requirements
of the authority.

The writ of Habeas Corpus is available as a remedy in all cases of wrongful

deprivation of personal liberty. The legal justification of a subject , that is

175
 detention or imprisonment which is incapable of legal justification, is the basic of
jurisdiction in Habeas Corpus. It is 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.

3. Whether writ of Habeas Corpus can be granted ex-parte and without any
detention?

When a petition for a writ of Habeas Corpus is filed, ordinarily, the court will
not issue the writ ex-parte unless the urgency of the situation so demands or
issuing of a notice of motion may likely to result in defeat of justice. Again, the
court will be reluctant to issue a writ of habeas corpus ex-parte where the fact of
detention being contrary to law is likely to be contravene an enquiry become
necessary to investigate the facts. In such case, the court will follow the ordinary
and regular procedure. If the applicant makes out a prima facie case of unlawful
detention, rule nisi would issue to the respondent and on the rule nisi the case
would be heard on the merits and if the court holds the detention illegal the rule
will be made absolute and writ will be issued. This writ can be issued by the Court
even where there us no detention.

4. What are the consequences for the disobedience of writ of Habeas Corpus?

A writ of Habeas Corpus issued by the Supreme Court or by a High Court is

required to be obeyed by the person to whom it is issued. Disobedience of the said
direction would amount to contempt of Court. Any willful interference by the
contemnor would be punishable with attachment of property and even
imprisonment of the contemnor. A valid excuse will, however, be that it is
impossible to obey the order. Mere failure to obey the writ may not constitute civil
contempt depending upon the facts and circumstances of the case. But willful
disobedience to a writ issued by a court constitutes civil contempt.

5. What is the role of Habeas Corpus under ordinary law and under Preventive
Detention Law?

The writ of Habeas Corpus is a prerogative writ, an extraordinary remedy,

which is issued upon cause shown in cases where the ordinary legal remedies are
inapplicable or inadequate. It is a writ of right and is granted ex debito justitiae. It

176
 is, however, not a writ of course and may be granted only upon reasonable ground
or probable cause being shown. Not being a writ of course, it may be refused
where there is an alternative remedy available by which the validity of the
detention may be examined. In general it may not be refused merely because there
exists an alternative remedy by which the validity of the detention can be
questioned.

Preventive Detention is the arch enemy of the right to personal liberty. It

envisages detention without trial, at the times when the liberty of the individuals
crosses the limit and threatens the very existence of the state, and that at point of
time, it fails to control the enjoyment of individual liberty then the state uses the
preventive detention measures. It is not a punitive but precautionary measure.

Its validity depends on its compliance with requirements of Articles 21 and 22.
Even if a law of preventive detention may pass the test of Article 22, it has yet to
satisfy the requirements of other fundamental rights such as Article 19 and 14.

6. What is the scope of writ of Habeas Corpus during emergency period both in
India and U.K.?

In England most significant aspect of 20th century experience with emergency

powers has been the use of statutes conferring broad powers to enact subordinate
legislation. The danger to the public safety had reached such proportion that
internment could reasonably be said to fall within the general regulatory
competence to act of the realm. Whenever it appeared to the minister, that for
securing the public safety or the defence of realm it is expedient in view of the
hostile origin or association to order the internment of any person.

In India Article 359 empowers the President to suspend the right to move a
court for the enforcement of any of the fundamental rights conferred by Part III of
the Constitution. The President has to specify the same in his order and limit it to
the period of the emergency or to a shorter period.

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Findings:

1. Lack of effective representation:

The concept of writ of Habeas Corpus is widely observed with a critical analysis
in India and U.K. In both the countries in many cases writ of habeas corpus have
been issued with an intention to liberate the detenu. But in some cases the executive
authority has exercised their power under colour of their office. Many circumstances
they have not permitted the detenu to avail the benefit of contacting their relatives and
friends. Though the law permits that the detenu as soon as his arrest can contanct his
relatives or his representatives as soon as he arrested and detained as a natural law
theory. Due to various reasons detaining authority takes everything into its hand
without providing opportunity to make representation.

2. Lack of system to prevent the misuse or miscarriage of power by the

authority:

The problem of wrongful arrest and conviction has become an accepted reality in
most common law jurisdictions. It is obligatory on the part of the state to place before
the court all the relevant and material acts leading to the impugned action truly,
faithfully and with utmost fairness. High profile cases tends to draw our attention to
the detrimental effects of a wrongful conviction of an individual. It is the duty and
role of the state to carefully investigate every reported case of unjust conviction under
the shadow of subjective satisfaction.

3. Lack of separate office to protect the interest of detenue.

It is accepted reality that, there is a lack of separate office in the jail or cell or
police station with a bonafide intention to secure and protect the interest of detenu

178
Suggestions:

I would like to suggest following suggestion which may possibly help in forming an
opinion.

1. The Court should not entertain the petition which are filed by the detenu,
relatives or friends where detenu is a hardcore and habitually criminal who
is committing the act habitually . The detaining authority and the
Government shall take necessary steps to reform the person so detained, so
that on his release he should not think of committing the crime again.

2. Adequate measures shall be taken to keep the person detained under

Preventive Detention Laws separately from the persons convicted.

3. An efficient review committee must be constituted by the government which

is free from executive influence.

4. Speedy trial shall be provided to the detenu without delay.

5. The detainees shall not be allowed to move from one jail to another except
for the reason of security. However, if the circumstances so require to shift
the detenue, then the same shall be intimated to his family members as
required by natural law.

Recommendation:

Followings are some recommendation

1. Establishment of separate office and appointment of supervisory officer to

protect the interest of detenu.

The paramount object of the issue of writ of habeas corpus is the liberty of an
individual. In Certain circumstances detaining authority fails to follow the rules
framed under the Constitution and other Statutes deliberately.

For the purpose of eradicating this evil and to secure the rights and interest of
detenu who have been detained by the authority it is very much essential to establish
separate office and supervisory officer should be appointed by the state. The
supervisory officer should have law background and who is having experience and
should be appointed with all powers for protecting the rights and liberties of an

179
detenu. The Supervisory Officer should be appointed both at the Centre, State and
District level.

2. Proper insertion and proper working and maintenance of C.C. Camera in

the Police Station, Jail and cell where the detenu is put behind the bars.

Now the technology has improved very much and on the basis of this, it is
very much essential to insert the C.C. Camera in every Police Station, Jail and cell
throughout India which should be monitored by proper authority where manipulation
of this facilities should not occur. At the same time it should be mandatorily order by
the government to insert the C.C. Camera, disobedience of which should be strictly
taken into consideration by the government where it should impose heavy penalty and
imprisonment of the officer who disobeys.

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 BIBLIOGRAPHY

1. Ann Lyan, Constitutional History of the United Kingdom, Cavendish Publishing

limited, (London, United Kingdom2003).

2. AsinPandya, Writs and other Constititonal Remedies, Lexis Nexis Butterworths, 1st
Edition, (Wadhwa, Nagpur2009).

3. Baiey Harris and Jones, Civil Liberties Cases and Materials , Butter Worths
Publishers, (Nagpur 2001).

4. B.V Kimar, Preventive Detention Law of India, Konark Publishers Pvt. Ltd, (New
Delhi, 1991).

5. B Shiva Rao, The Framing of Indian Constitution 1st Edition, N.M TripathiPvt
Ltd.,( New Delhi 1968).

6. D.D. Basu, Constitutional Remedies and Writs, 2nd Edition, Kamal Law
House,(Calcutta 1999).

7. D.R. Prem, Law of Habeas Corpus Fundamental Rights and Other writs, 3 rd Edition,
Ashok Law House, (New Delhi 2006).

8. D.J. De, The Constitution of India, Volume 1, Asia Law House,( Hyderabad 2008).

9. Frankowski Stanislaw and Shelton Dinah, Preventive Detention a comparative and

International Law Perspective, Martinus Nighoff Publishers, (United States 1992).

10. H.M. Seervai ,Constititonal Law of India Vol-2, 4th Edition , Universal Book Traders
(New Delhi 2004)

11. Justice B.P. Banergee, writ remedies, 5th Edition, Lexis NexisButterworths wadhwa,
(Nagpur 2010).

12. Justice B.P. Banerjee, Writ Remedies with special chapter on public interest
Litigatian, 3rd Edition, (Wadhwa Nagpur 2002).

13. M. Hidayatullah, Constitutional Law of India, Volume 1. The Bar Council of India
Trust.

14. P.S. Narayana, Law of Writs, New Edition, Asian Law House, ( Hyderabad 1999).

15. R.J. Sharpe, The Law of Habeas Cropus, Clarendon Press, (Oxford University Press
India 1976).

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16. T.K. Tope, Constitutinal Law of India, 2nd Edition, Eastern Book Company,(
Lucknow 1992).

17. V.G. Ramachandran, Law of writs, 6th Edition, Vol.1 Eastern Book Company,(
Lucknow 2006).

18. V.G. Ramachandran,Law of Writs Revised by C.K. Thakker, 4th edition, Eastern
Book Company, (Lacknow 1990).

19. V.N. Shukla, Constitution of India, 10th Edition, Eastern Book Company,( Lucknow
2005).

20. V.M. Shukla, “Legal Remedies” available under various enactments in India
Edited by VidyaBhushan Dr. Avtar Singh,7th Edition, Eastern Book
Company, (Lucknow 1998).

182
Articles Reviewed:

1. Anthony Gregory , The tissue of the Structure- Habeas Corpus and the Great
Writ’s Paradox of power and liberty, published in The Independent Review
deals with history of Habeas Corpus as seeming paradox, (2011).

2. BhoomikaKalley , The Evolution of Habeas Corpus, published in

International Journal of Legal Development and Allied Issues

3. David L. Shapiro , Habeas Corpus, Suspension, and Detention: Another view

(2006) published in Notre Dame Law Review, Volume 82, Issue 1

4. M. Freedman, Habeas Corpus as a Common Law Writ . published in Harvard

Civil Rights- Civil Liberties Law Review, (2011).

5. Neil Douglas McFeeley , The Historical Development of Habeas Corpus,

volume 30, published in SMU Law Review ,(1976).

6. Nyaya deep the official journal of NALSA, Special issue on Law -day National Legal
Service Authority (2009).

7. Nyaya Deep, Special issue on Human Rights Day, National Legal Service Authority,
2009.

8. Scott J. Shackelford, Habeas Corpus Writ of Liberty, Boumediene and Beyond,

published in Cleveland State Law Review, (2009).

9. SBRRM, Journal of Law, SBRR Mahajana Law College, 2000.

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Web sites:

1. Constituent Assembly of India-Vol.IXhttp://parliamentofindia.nic.in/is/debates

/vol9p 14-02-2007

2. Supreme Court the final pedestal of justice: Its Efficacy vis-vis Right to life and
liberty <http://www.legalservicesindia.com/articles/sc_c.htm. 18/09/2015.

3. Constituent Assembly of India- Volume IX http://Parliamentofindia,nic.in/is/

debates/ vol9b14b.htm.14/02/2016.

4. Human Rights implication of National Security laws in India: Conbating terrorism

while preserving civil liberties, <http://www.accessmylibray.com/
coms2/summary_0286-9440775_ITM 20.1.2018.

5. <http://www.Habeascorpus,net/hcwrit,html.21/02/2018.

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 ‘THE ROLE OF WRIT OF HABEAS CORPUS IN U.K.
AND INDIA-ISSUES AND PERSPECTIVES.’

A THESIS

Submitted to the University of Mysore for the award of the Degree of

DOCTOR OF PHILOSOPHY IN LAW.

Submitted by

Smt. Sujatha J. K.
B.Com., M.A., LL.M.

Under the Guidance of

Prof. Dr. C. Basavaraju
M.A. LL.M. Ph.D.
Professor of Law
Dean Faculty of Law & Chairman
P.G. Department of Studies and Research in Law
University of Mysore, Manasagangothri,
Mysore.

DEPARTMENT OF POST GRADUATE STUDIES AND

REAEARCH IN LAW
UNIVERSITY OF MYSORE
MANASAGANGOTHRI, MYSORE
KARNATAKA

MAY, 2019.
 CHAPTER-VII
CONCLUSIONS AND
SUGGESTIONS
 CHAPTER –VII

CONCLUSION, FINDINGS & SUGGESTIONS

7.1 Introduction:

Dr. Ambedkar in the constituent assembly said: “If I was asked to name any
particular article in this constitution as the most important, an Article without which
this Constitution would be a nullity I could not refer to any other article except this
one. it is the very soul of the constitution and the very heart of it.

Writ in law is a species of formal order from the Crown or delegated officer to
an inferior officer or to a private person enjoying some act or omission. It appeared as
an expression of kings command or wish subsequent to 1531 it gets transformed into
a plaintiffs written declaration and continued till 1873. Later after 1873 it gives is to a
species of writs called “prerogative writs”. Habeas Corpus in England is of common
law origin, though its effectiveness was enhanced by three statutes and its issue into
the king’s domains defined by a Fourth Act.

From the birth of concept of rule of law the democracy has also taken its birth
and had brought revolutionary changes from police state to welfare state. The welfare
state has given great importance towards human rights and other fundamental rights
also recognized by the state. One of the most important rights recognized by the
civilized states is personal liberty which can be curtained by the state only through
law and preventive detention is also such law under which the state can use police
power to detain any person in the interest of security of nation and maintenance of
public order. For this purpose the executive has given enormous power under
preventive detention laws which are many times abused or arbitrarily used to prevent
this misuse of power and to protect individual liberty by invasion of executives many
standards have been laid down.

The recognition of writ of Habeas Corpus as a matter of right and a safeguard

of human liberty may be traced to Article 39 of Magna Carta. It was also pointed out
that no freeman may be taken or imprisoned or exiled or in any manner destroyed, but
by the law of the land.

Habeas Corpus is a legal term in its Latin means, you are ordered to have the
body, if a person has been arrested or is held by police or a lawyer or friend can obtain

163
a writ of Habeas Corpus. The writ of Habeas Corpus is one of the basic guarantees of
personal freedom in English law. It prevents unjust or wrongful imprisonment or
detention by legal authorities.

The jurisdiction to issue prerogative writs came in India with the establishment
of the Supreme Court by the Regulating Act of 1773. The Charter of 1774 Clause 4
gave the power to each of the justices of the Supreme Court of Calcutta to issue writ
of habeas Corpus with abolition of the three Supreme Courts in Calcutta, Bombay and
Madras by Act of Parliament in 1861, Section 9 of the Act referred to the
establishment of High Court by Letters Patent. These High Courts had original
jurisdiction only within the respective Presidency Towns. The opinion of the Court
was that the common law writ of habeas corpus could be issued outside the original
jurisdiction of the Supreme Court.

In the modern time this writ is issued by the court to remedy any kind of
violation of personal liberty of the detenues. This writ has originated and continued in
England as a King’s Prerogative writ. In all the Anglo Saxon systems this has been
incorporated as a Constitutional provisions. From the traditional requirement of
formal production of the body of the detenue to various types of orders redressing the
grievances of person in preventive, punitive and protective custodial detentions. The
writ of habeas corpus has undergone certain changes , controversies have also arisen
about the availability of this great writ during the war time and also during the
emergency period. Both in India and in England the doubts as to availability of this
remedy during these situations have caused certain unsatisfactory position of law. It is
quite useful to assess the extent of availability of writ of habeas corpus during these
situations. Since the origin and growth of writ of habeas corpus of present
understanding took place in the English Constitutional system which had its impact
upon the colonial states and Anglo Saxon legal system like India. Efficacy of any
right depends upon the right to enforce it. In safeguarding the precious right like
personal liberty the important contribution of writ of habeas corpus are to be
evaluated.

The early period in India, the jurisdiction to issue Habeas Corpus reached
position only through various stages of development or may be stated at the very
outset that this jurisdiction was not as extensive as it was in England. The Legislative

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History1 of Habeas Corpus in India reflects the partial and fragmentary way in which
it was conferred on the High Courts and the halting and stunted development of this
weapon against executive interference with personal liberty of the subject. A detailed
treatment of the historical development is not possible in a study of this method of
judicial control. Hence it is attempted only a very brief survey of the statutory
development of the writ, sufficient to understand the basis of the power which the
courts have exercised. The jurisdiction to issue any of the prerogative writs does not
appear to have formed part of the powers of any Judges or courts in India until the
establishment of the Supreme Court by the Regulating Act in 1773.

It is the opinion of sir William F. Christian Defines Habeas Corpus is a writ

issued by a judge or court of justice commanding the person to whom it is directed to
bring the for a specified purpose. Habeas Corpus is an ancient safeguard of the subject
intended to secure release from any form of unlawful detention. According to coke it
is a prerogative writ which concerns kings justice to be administered o his subjects.
According to S.A.D. smith, Habeas Corpus appears to have issued on the application
of subjects.

According to sir William Holds Worth the Writ is merely procedural writ, in
the desire of the courts of the common law to extend their jurisdiction. As observed
by Sir William Holds worth, it was in the medieval period that the writ of Habeas
Corpus became a weapon by which the courts of common law could both defend their
own jurisdiction and increased that of the expense of rival jurisdiction. it was in the
second period that the power or this weapon was seen on a larger stage.

After the revolution the efforts of legislature was to improve the writ of
Habeas Corpus. in fact the judges have always been ready except in the period of
acute constitution controversy, immediately proceeding to the revolution to interpret
the rules of the common ;aw and the statue law in such a way that they made for the
greater efficiency. This was due to two causes. In the first place the tradition which
dated from the days when the writ was used by the common law courts to protect their
own jurisdiction from the encroachments of rival courts supplied precedents for rules
which made to writ both as effectual and a speedy. We have seen that in 1588 it had

1
. Leach C.J., in District Magistrate, Trivandrum V, Mamman Mappillai (1962) Madras 708. at
pp.716-723).

165
been settled that once again imprisoning a person released by the writ was liable to
attachment for contempt.

It had been already discussed that some illustration of the practical effects of
this attitude of the judges in the 18th century in the nineteenth and 20th centuries, the
most striking illustration of the maintenance of this attitude is to be found which
evolved acts of 1679 and 1816 providing the writ of Habeas Could be issued by the
lord chancellor or by any of the judge or barons of exchequer, as observed by Lord
Herchell in the case or Cox v hakes was decided on 1923 by the case.

Habeas Corpus is the great safeguard of individual liberty against the

encroachments by the government in this way the writ of Habeas Corpus and
Subjuciendum having in the Seventeenth Century been rendered an efficient means of
securing the liberty of the subject imprisoned as a charge of crime, was in the
Nineteenth Century not only rendered still more effective for this purpose but also
extended to almost all other cases of imprisonment.

In U.K., as held in Gassages Case2, it follows that a writ is a remedial and not
punitive. According to Lord Halsbury it is not appropriate to punish wrongful
detention once it is ended. Further as explained by Brett, L.J.in Thomas Dale’s3 case a
detention is unlawful for the purpose of issue of writ of Habeas Corpus where the
procedure prescribed by law, which authorizes the detention has not been followed.

The writ of Habeas Corpus may be issued if any detention which is not
justified by any, in case of civil, criminal and revenue law. It can be issued also in
cases of detentions contravening the procedure established by law although the
detention is coming under the broad scope of the legislation.

Historically the remedy of Habeas Corpus first came to India in 1773 along
with the supreme court of Calcutta. It became generally available outside the ordinary
original jurisdiction of the three presidency high courts in India only as late as 1923.
Because of the existence of many laws inserted in section 491 of the criminal
procedure code, detention under which could not be agitated in Habeas Corpus
proceeding, the importance of the remedy in the legal system was very much limited
compared to the position of Habeas Corpus in other common law systems. But the

2
. Boruardo V. Ford Gassages case( 1892) A.C. 326, 339,
3
. Dale’s case (1881) 6. Q.B.D. 376(C.A).

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remedy has to-day got emancipated from all its historical Shakles and stands as a
fundamental and guaranteed right. in the opinion of Markose,the importance of
Habeas Corpus depends upon two factors. The first is the nature of the remedy as
recognized by the law. The second is the scope of the remedy as enforced by the
court.

In India the English law was followed in allowing relation and friends of the
prisoner to make an application. In re Hardayal Sigh4, it was observed that some rules
should be framed distinguishing the right to move the application by relation and
friends, so that persons having no knowledge could not create unnecessary
embarrassment to that authorities and waste judicial time. However, it is pointed out
by D.D. Basu, that the word “friend” itself a vague term and may include even
persons having particular of affinity, but in the light of the recent decisions, the
observation of the D.D.Basu appears to have been solved.

In regard to the availability of alternative remedy and guardians and words act,
as held in Gopalan v. Shrechand5 where there is no question of application of the
guardian and wards act there is an unanimity on the point that an application for
Habeas Corpus will lie. it was also further held in Gopalan V State of Madras. If the
petitioner successfully challenges the constitutionality of a law under which he has
been deprived of his liberty by Habeas Corpus. The court is bound to release him.

About the nature of Habeas Corpus proceeding there has not yet been
unanimity of opinion in India. The weight of authority is on the side which considers
it a criminal proceeding. This is at variance with the principle followed in England-
where its nature is held to depend upon the nature of the proceeding under which the
detenue is detained: successive Habeas Corpus application are now not allowed in
India except under Article 32. When an identical application is dismissed by any state
high court under Article 226.

According to Markose, scope of the remedy depends upon the operative

provision of the law under which curtailment of individual liberty is sanctioned and
the principles upon which alternate remedies are held to displace Habeas Corpus.

4
.A. 1949 EP-67(68) Ranjitlal V. Rex.
5
.AUR 1955, All. 28.

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 Wars and emergencies have passed serious problems to the issue of this
extraordinary remedy. While in Liver Sidge case the remedy was decided on the
ground that the subjective satisfaction of the Home Secretary would not be examined.
In India there are similar developments although such errors were sought to be
rectified recently. In Makhan Singh’s case the supreme court decided that when
through Presidential order under Art. 359 power to move the supreme court is
suspended, about the merits of the detention order the High Courts and the Supreme
Court could examine on the ground that there is abuse of power of detention. This
approach was not adopted in Shivakant Shukla case6 where the Court adhered to
literal interpretation of Art. 359. It is submitted in Shivakant Shukla the majority erred
in holding that deprivation of constitutional remedies also bar remedies under public
have, in cases of abuse of discretionary power. It is submitted the dissenting judgment
of justice Khanna is a fair as it stress on the requirement of rule of law. However the
present position after 44th amendment which has immunized personal liberty from
suspension during emergency, has put the law of remedies on right to Constitutional
track. Availability of writ of Habeas Corpus during emergency does not in any way
effect the interest of the state because detention would be continued on justifiable
grounds.

The objective of preventive detention laws is not to punish a man for having
done something but to intercept him before he does it and to prevent him from doing
it. No offence is proved nor any charge formulated. The justification of such detention
is suspicion or reasonable probability of the impending commission of the prejudicial
act and not criminal conviction which can only be warranted by legal evidence.

Under the Preventive Detention laws, the executive had two-fold discretion. It
is to determine with very broad limits the purposes for which the power is to be
exercised, and secondly it has to be subjected to preventive detention. The
Constitution provides for certain procedural safeguards under Article 22. The power
given to the courts under Article 226 and 32 ought to be exercised (a) to protect the
individual liberty guaranteed under Article 21, and (b) ensure observance of
Procedural and Substantive Safeguards under Article 22 through writ of Habeas
Corpus. In short, the court is empowered to re-examine the rationale for the exercise

6
. Supra note P. 7, Chapter 4.

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of the power of preventive detention. The abuse of the power by the executive and the
judicial response to it are analyzed with reference to select cases.

The very meaning of habeas Corpus ad Subjicieudeum, is that let the body be
produced. From the very inception of this remedy in England as discussed in the
earlier Chapters the content of the remedy lie in production of the detained person,
along with furnishing the reasons for detention, even- person, along with furnishing
the reasons for detention, even-though so many remedies have been evolved through
statutes and decisional law the importance of this remedy has not been diluted in
England for the reason that the remedy is effective, quick, and orders for relief of the
person unjustifiably detained this point has been made clear in the decisions like
Jenk’s case, Anderson’s and Gassage’s case. Taking a clue from these English cases
that a writ of Habeas Corpus is a remedial and not punitive, according to the
observation of Supreme Court that, the main purpose of this remedy is to order for
release of illegally detained person if at the time of Habeas Corpus proceedings the
detention was unjustified considering that the determination as to the validity of
detention is the primary concern of writ of Habeas Corpus. It is submitted that this is
very unfortunate stand as it denies to the detenues the advantages of physical
production of them before the courts of law. If the detenue is ordered to be produced,
before the courts of law the detenue can personally convince the court about the
factors of unjustified detention, about the maltreatment of his person and claim
appropriate remedies. In a society infested with police excess and other executive
harassments production of the body of the detenue has certain definite checks against
abuse of power. It was supported by the Colonial logic that since the production of the
body of the detenue has certain definite checks against abuse of power. It is submitted
that the delay due to production of the detenue is quite insignificant as compared to
the great benefits of producing the body of the detenue.

To release the unlawful detained person, in the modern times the remedy of
the Habeas Corpas been extended to redress the grievances of the detenues who are
under lawful custody but are subjected to physical or mental tortures and immoral
treatment. When the prisoners are deprived of their freedom of speech and expression
in jail or when the jail conditions are inhuman and unfair or when harsh treatment like
imposing handcuffs or confining in a solitary cells the supreme court and the high

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courts have interfered in entertaining writ petition and reviewing the points put
forward.

All observations that may be relevant here can be derived from the cardinal
principle which had ready discussed namely Habeas Corpus is exclusively concerned
with the legality and reasonable conditions of persons detention the rule that cases of
commitment by a court record or by the houses of parliament for contempt or for
breach of privileges cannot be touched by Habeas Corpus is only a corollary that
doctrine because when such a return is made o the writ is conclusive that the detention
is legal. Many of the purposes for which the writ was granted in the past are now only
of historical interest. In recent years application to the high court for writs of Habeas
Corpus have been concerned with the legal right to the custody of infants the
detention of persons subject to mental disabilities detention by military authority
internment in war time, the detention would be immigrants who have been refused
leave to land, detention in pursuance of deportation orders for the extradition or
rendition of fugitive offenders and committal to prison for contempt of court or upon
conviction for crime.

The Writ of Habeas Corpus during emergency dose not in any way affect the
interest of the State because detention could be continued on justifiable grounds. The
conclusion reached by the court that this requirement is merely procedural formality
without any utilitarian value, is quite wrong for the reasons stated above. It is
submitted this unsatisfactory position can be rectified by over ruling the decision by a
Constitutional Bench of the Supreme Court.

The overall growth of law relating to writ of Habeas Corpus both in England
and in India suggest that the value and effect of writ of been properly recognized in
these legal systems both in the area of availability of the writ and the content of the
writ order there has been satisfactory development the position reached after 44th
amendment guaranteeing personal liberty even during emergency has put the law on
right track. The response of the courts to questions, (a) who can claim a writ of
Habeas Corpus? and (b) against whom writ of habeas corpus can be issued is also
satisfactory since the present notion of this writ remedy extends to almost all cases of
illegal detention. Thus it can be said that writ of Habeas Corpus has made a great
contribution to the cause of the liberty by providing effective remedy.

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 There is no doubt that the Supreme Court and High Courts has been protecting
individual liberties which are conferred by part III of the constitution by issuing
various prerogative writs under Article 32 and 226, one of the important writ is that
writ of habeas corpus which deals with the life of individual. So the writ of habeas
corpus may be considered as a “the first serenity of civil liberty” The writ provides a
prompt and effective remedy against illegal restraint. By this writ, the courts directs
the prisons before the court so that the court may decide the validity, jurisdiction or
justification for such detention. The principal aim of the writ is to provide for a swift
judicial review of alleged unlawful restraint on liberty.

Our constitution has provided us various constitutional safeguards in the Part III of
the Constitution and also other statutory provisions of law as Criminal Procedure
Code, Evidence Act and also various guidelines have been issued, While delivering
judgment, which are to be complied with, followed by the executive authority while
doing its executive action against individual which is imposed duty on executive
authority by the State for illustration, Article 21 of the constitution having declared
that no person shall be deprived of life and liberty expect in accordance with the
procedure established by law.

Article 22 of the Constitution provides for protection against arrest and

detention in certain cases. It consists two parts, the first part contains clause(1) to (3)
which imposes limitation upon the Union and State legislature in enacting any
procedural law for deprivation of personal liberty. The limitations are (1) the arrested
person must be informed of the grounds of the arrest as soon as may be (2) the
arrested person must be produced the nearest magistrate within 24 hours of his
arrest(3) the arrested person should be given an opportunity to consult and be
depended by a legal practitioner of his own choice.

The second part contains clause (4) to (7) which covers the special law of
preventive detention. It imposes limitation upon the union and state legislature is
enacting any law relating to preventive detention without trial. The limitations are(i)
the ordinary period of detention shall not exceed three months (ii) parliament may,
however, enact a law laying down in what cases the three months limit may be
exceeded (iii) the three months limit may also be extended on the report of the
advisory board duly constituted in that behalf (iv) the details must be furnished as

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soon as may be the grounds of detention to enable him to make a representation
against an order of detention (v) the detaining authority; however, need not disclose
facts which will be against public interest to disclose.

The Constitution provides various individual liberty on the one hand and also
her some provisions regarding preventive detention on other hand. The practical need
of preventive detention is that to security and safety of the country, interest of the
society and maintenance of public order and services essential to be community. The
executive authority to achieve this object it may invoke the article 359 that empower
the president to suspend the right to move a court for the enforcement of any of the
fundamental rights conferred by part III of the constitution. But these powers should
exercise in accordance with the procedure established by law otherwise the courts
have power to guard the executive order. In case the order is malafide belated order,
there is non-application of mind, the grounds are vague, indefinite, irrelevant,
extraneous, non-existent or state there invalidate the order by issuing writ of habeas
corpus.

In considering and interpreting preventive detention laws, courts though to

show greatest concern and solitude in upholding and safeguarding the fundamental
right of liberty of the citizen, but as against that they should not forget the historical
background in which the necessity an unhappily necessity was felt by the makers of
the constitution in incorporating provisions of preventive detention in the Constitution
itself.

The provisions writ of habeas corpus is very effective as there is no hard and
fast rule for making an application because of rapid development and growth of public
interest litigation and liberalized concept of locus stand and also broad interpretation
to article 21. But practically the executive authority did strictly complied various
provisions safeguard given to the individuals. In D.K.Basu V State of west Bengal
regarding custodial violence, torture death in police custody or back up, the detailed
guideline has issued to be followed in all case of arrest or detention. But some
guidelines remain unpracticed by the authority to ignorance of the individual
regarding their legal rights. If state provide adequate knowledge about individuals
legal right through mass media, and other method, and make upgrade the financial
position or status or free legal and for infringement of their fundamental rights and to

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see speedy or expedition trial of writ habeas corpus their can be writ of habeas corpus
till very effective and meaningful.

7.2 Testing of Hypothesis:

1) Writ of Habeas Corpus is an effective writ against illegal detention.

For the purpose of safeguarding personal liberty of the individual certain

effective legal remedies have been innovated in civilized political system. The great
writ of Habeas Corpus is one among such devices remedying the encroachment of
personal liberty of the subjects. The writ of Habeas Corpus is remedial in nature. Its
paramount object is to secure the release of a person who is wrongfully detained and
not to punish the Wrongdoer. Article 32 and 226 of the Constitution of India provides
for redressal of grievances by the Supreme Court and the High Courts.

Therefore 1st Hypothesis is proved.

2) Writ of Habeas Corpus ensures liberty and freedom against all kinds of
unlawful detention

Liberty of a subject is an extremely precious right when infraction of such

right is involved. Court must act as a watch dog and every benefit of the lacuna goes
to the detenue. A writ of Habeas Corpus is a judicial mandate to a prison official
ordering that an inmate be brought to the court so it can be determined whether or not
that person is imprisoned lawfully and whether or not he should be released from
custody.

This Writ of Habeas Corpus ensures the liberty and freedom against unlawful
detention like detention made by the detaining authority as well as private person, i.e.,
Bonded labour system. When this writ is issued by the Court it is the duty of the
person to whom it is issued either to produce the detained person to the nearest
magistrate or to liberate that person.

Therefore 2nd Hypothesis is Proved.

3). Writ of Habeas Corpus cannot be issued against detention made under
Preventive Detention Laws.

The writ of Habeas Corpus is a judicial remedy for an unlawful detention. The
right to move the Supreme Court by an appropriate proceeding under Article 32 of the

173
Constitution for the enforcement of fundamental rights is itself a fundamental right.
Similarly, the right to move a High Court under Article 226 of the Constitution for the
enforcement of fundamental rights or for any other purpose is a Constitutional right
and hence remedies cannot be taken away, abridged or curtailed by a statutory
provision. But question arises that whether the Habeas Corpus can be barred by a
Statute?

The answer is yes. The writ of Habeas Corpus can be barred by the preventive
detention laws. We can say preventive detentions as an exception to the Writ of
Habeas Corpus as observed by Das J. in A.K Gopalan V. State of Madras- AIR 1950
SC. 27. Justice Das has observed that “ Our Constitution has recognized personal
liberties as fundamental rights. It has guaranteed restraints on them by clauses (2) to
(6). It has put checks on the state legislative powers by Article 21 and 22. It has by
providing for preventive detention, recognized that individual liberty may be
subordinated to the larger society interests. The only limitation put upon the
legislative powers is that it must provide some procedure and at least incorporate the
minimum requirements laid down in Article 22 (4) to (7).

Therefore 3rd Hypothesis is Proved.

4). In majority cases of detention the detaining authorities rarely shows

disobedience to the writ of Habeas Corpus.

The framers of the Constitution were very much concerned about security of
the civil liberty of individuals. So they incorporated the Preventive Detention Laws
and their procedure under Article 22.

The objective of Preventive Detention Laws is not to punish a man for having
done something but to intercept him before he does it and to prevent him from doing
it. Every person who is arrested and detained in custody shall be produced before the
nearest magistrate with in the period of 24 hours of such arrest excluding the time
necessary for the journey from the place of arrest to the Court of Magistrate and no
such person shall be detained in custody beyond the said period without the authority
of a magistrate. It is the duty of the detaining authority to communicate to such person
the grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order.

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 Article 22, provides that the detaining authority has to follow certain
procedural requirements which are established under the law, if it is not followed then
it amounts to violation of right to life and personal liberty which are guaranteed under
Article 21 of the Indian Constitution.

Certain circumstances the detaining authority under certain influence exercises

the power without following the procedures established by the law and rules which
violates the personal liberty and individual interest which amounts to disobedience to
the Writ of Habeas Corpus order

Therefore 4th Hypothesis is Proved.

7.3 Answer to the Research question:

1. Whether the writ of Habeas Corpus can be issued at any point of time and
for any kind of offence?

The great constitutional importance of the writ of Habeas Corpus lies in the
fact that ‘it is available to the meanest against the mightiest’.

If a person is arrested or detained under any civil or revenue law which

provides for, such arrest or detention in case of nonpayment of civil debt, or
revenue dues, an application for Habeas Corpus lies, if the requirements of the law
have not been complied with. The same rule would apply in case of a person
detained for purpose of further investigation or trial under Section 167 and 344 of
the code or other relevant law have not been complied with.

2. When the writ of Habeas Corpus can be issued?

Writ of Habeas Corpus is a prerogative rights by which a person can enjoy his
liberty under the constitution both under the England law and Indian Constitution
also. According to writ of Habeas Corpus a person who is wrongfully detained by
the detaining authority or the private person, this writ is available to everyone in
Indian as well as those who not a resident of India i.e., a alien also and also those
who have obtained the domicile of India after fulfilling the essential requirements
of the authority.

The writ of Habeas Corpus is available as a remedy in all cases of wrongful

deprivation of personal liberty. The legal justification of a subject , that is

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 detention or imprisonment which is incapable of legal justification, is the basic of
jurisdiction in Habeas Corpus. It is 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.

3. Whether writ of Habeas Corpus can be granted ex-parte and without any
detention?

When a petition for a writ of Habeas Corpus is filed, ordinarily, the court will
not issue the writ ex-parte unless the urgency of the situation so demands or
issuing of a notice of motion may likely to result in defeat of justice. Again, the
court will be reluctant to issue a writ of habeas corpus ex-parte where the fact of
detention being contrary to law is likely to be contravene an enquiry become
necessary to investigate the facts. In such case, the court will follow the ordinary
and regular procedure. If the applicant makes out a prima facie case of unlawful
detention, rule nisi would issue to the respondent and on the rule nisi the case
would be heard on the merits and if the court holds the detention illegal the rule
will be made absolute and writ will be issued. This writ can be issued by the Court
even where there us no detention.

4. What are the consequences for the disobedience of writ of Habeas Corpus?

A writ of Habeas Corpus issued by the Supreme Court or by a High Court is

required to be obeyed by the person to whom it is issued. Disobedience of the said
direction would amount to contempt of Court. Any willful interference by the
contemnor would be punishable with attachment of property and even
imprisonment of the contemnor. A valid excuse will, however, be that it is
impossible to obey the order. Mere failure to obey the writ may not constitute civil
contempt depending upon the facts and circumstances of the case. But willful
disobedience to a writ issued by a court constitutes civil contempt.

5. What is the role of Habeas Corpus under ordinary law and under Preventive
Detention Law?

The writ of Habeas Corpus is a prerogative writ, an extraordinary remedy,

which is issued upon cause shown in cases where the ordinary legal remedies are
inapplicable or inadequate. It is a writ of right and is granted ex debito justitiae. It

176
 is, however, not a writ of course and may be granted only upon reasonable ground
or probable cause being shown. Not being a writ of course, it may be refused
where there is an alternative remedy available by which the validity of the
detention may be examined. In general it may not be refused merely because there
exists an alternative remedy by which the validity of the detention can be
questioned.

Preventive Detention is the arch enemy of the right to personal liberty. It

envisages detention without trial, at the times when the liberty of the individuals
crosses the limit and threatens the very existence of the state, and that at point of
time, it fails to control the enjoyment of individual liberty then the state uses the
preventive detention measures. It is not a punitive but precautionary measure.

Its validity depends on its compliance with requirements of Articles 21 and 22.
Even if a law of preventive detention may pass the test of Article 22, it has yet to
satisfy the requirements of other fundamental rights such as Article 19 and 14.

6. What is the scope of writ of Habeas Corpus during emergency period both in
India and U.K.?

In England most significant aspect of 20th century experience with emergency

powers has been the use of statutes conferring broad powers to enact subordinate
legislation. The danger to the public safety had reached such proportion that
internment could reasonably be said to fall within the general regulatory
competence to act of the realm. Whenever it appeared to the minister, that for
securing the public safety or the defence of realm it is expedient in view of the
hostile origin or association to order the internment of any person.

In India Article 359 empowers the President to suspend the right to move a
court for the enforcement of any of the fundamental rights conferred by Part III of
the Constitution. The President has to specify the same in his order and limit it to
the period of the emergency or to a shorter period.

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Findings:

1. Lack of effective representation:

The concept of writ of Habeas Corpus is widely observed with a critical analysis
in India and U.K. In both the countries in many cases writ of habeas corpus have
been issued with an intention to liberate the detenu. But in some cases the executive
authority has exercised their power under colour of their office. Many circumstances
they have not permitted the detenu to avail the benefit of contacting their relatives and
friends. Though the law permits that the detenu as soon as his arrest can contanct his
relatives or his representatives as soon as he arrested and detained as a natural law
theory. Due to various reasons detaining authority takes everything into its hand
without providing opportunity to make representation.

2. Lack of system to prevent the misuse or miscarriage of power by the

authority:

The problem of wrongful arrest and conviction has become an accepted reality in
most common law jurisdictions. It is obligatory on the part of the state to place before
the court all the relevant and material acts leading to the impugned action truly,
faithfully and with utmost fairness. High profile cases tends to draw our attention to
the detrimental effects of a wrongful conviction of an individual. It is the duty and
role of the state to carefully investigate every reported case of unjust conviction under
the shadow of subjective satisfaction.

3. Lack of separate office to protect the interest of detenue.

It is accepted reality that, there is a lack of separate office in the jail or cell or
police station with a bonafide intention to secure and protect the interest of detenu

178
Suggestions:

I would like to suggest following suggestion which may possibly help in forming an
opinion.

1. The Court should not entertain the petition which are filed by the detenu,
relatives or friends where detenu is a hardcore and habitually criminal who
is committing the act habitually . The detaining authority and the
Government shall take necessary steps to reform the person so detained, so
that on his release he should not think of committing the crime again.

2. Adequate measures shall be taken to keep the person detained under

Preventive Detention Laws separately from the persons convicted.

3. An efficient review committee must be constituted by the government which

is free from executive influence.

4. Speedy trial shall be provided to the detenu without delay.

5. The detainees shall not be allowed to move from one jail to another except
for the reason of security. However, if the circumstances so require to shift
the detenue, then the same shall be intimated to his family members as
required by natural law.

Recommendation:

Followings are some recommendation

1. Establishment of separate office and appointment of supervisory officer to

protect the interest of detenu.

The paramount object of the issue of writ of habeas corpus is the liberty of an
individual. In Certain circumstances detaining authority fails to follow the rules
framed under the Constitution and other Statutes deliberately.

For the purpose of eradicating this evil and to secure the rights and interest of
detenu who have been detained by the authority it is very much essential to establish
separate office and supervisory officer should be appointed by the state. The
supervisory officer should have law background and who is having experience and
should be appointed with all powers for protecting the rights and liberties of an

179
detenu. The Supervisory Officer should be appointed both at the Centre, State and
District level.

2. Proper insertion and proper working and maintenance of C.C. Camera in

the Police Station, Jail and cell where the detenu is put behind the bars.

Now the technology has improved very much and on the basis of this, it is
very much essential to insert the C.C. Camera in every Police Station, Jail and cell
throughout India which should be monitored by proper authority where manipulation
of this facilities should not occur. At the same time it should be mandatorily order by
the government to insert the C.C. Camera, disobedience of which should be strictly
taken into consideration by the government where it should impose heavy penalty and
imprisonment of the officer who disobeys.

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