RIGHT AGAINST ILLEGAL DETENTION: WRIT OF HABEAS CORPUS Generally, writ means an order issued by any authority. In India, writs are issued un...


Generally, writ means an order issued by any authority. In India, writs are issued under Article 32 and 226 of the Constitution by the Supreme Court and the High Courts of the states for the enforcement of fundamental rights enshrined under Part III of the Constitution of India. One of the most widely used writs is the writ of Habeas Corpus. The Latin term Habeas Corpus means “you may have the body”.  The writ of Habeas Corpus is the most powerful tool for safeguarding one’s Right to Life and Liberty and is commonly used against illegal detention made by Police, any public Authority, or individuals.

By the order of this writ, the court calls upon the person who has detained another person, to inform the court reasons for such detention and by what authority he has detained that individual. If it is found that the detention is illegal and unjustifiable, the detained person is ordered to be released. The rapid release of an individual from unlawful detention is the main objective of this writ.

It is important to understand by what manner detention can be termed as unlawful.  If a person is detained by the police officer and is not produced before the magistrate within twenty-four hours of his arrest, his detention becomes illegal and is in contravention to Article 22 of the Constitution of India. However, when reasonable restrictions are put upon a person by law, the detention is not unlawful as provided under Article 21 which declares that no person shall be deprived of his personal life and liberty, except according to the procedure established by law. The right of habeas corpus collapses when a person is detained in accordance with the law and the procedure established by law.

In Deepak Bajaj vs. the State of Maharashtra, the writ of habeas corpus was described as a “great constitutional privilege or the first security of civil liberty”.  The writ becomes more significant to assure individual freedom in the country. The writ of habeas corpus can be brought up by the detainee himself, or his relatives or any person associated with the detained person’s benefit of ensuring that personal freedom.  To check the legitimacy of detainment the court order’s the body of authority to deliver the detained individual and give an appropriate explanation as to his detainment; and if it is found out by the court that his detention is unlawful, the aggrieved person is released by the order of the court. In Sunil Batra vs Delhi Administration, the Supreme Court widened the scope of the writ of habeas corpus, by stating that this writ can also be filed for the violation of the fundamental rights of the prisoners. The Superior Court of the country that is the Supreme Court and the High Court of the states are independent of the executive and the legislature and thus, they can issue the writ in the nature of habeas corpus, even on the basis of a letter addressed to them.

Jurisdiction plays an important role in deciding where the petition for issuance of a writ of habeas corpus will lie. In A.D.M Jabalpur vs. Shivakanth Shukla famously known as the habeas corpus case which was heard by the constitutional bench of the Supreme Court in 1975 the majority of judges permitted unrestricted powers of arrest and detention during an emergency. However, Justice Khanna stated in his separate judgment that “detention without trial is an anathema to all those who love personal liberty...”. To constitute unlawful detention, physical confinement is not necessary. The writ of habeas corpus not only aims to release the unlawfully detained person but it also used as a tool of protection from inhumane treatment of the prisoners inside the jail.  The scope of this writ was widened by the landmark judgment of the Supreme Court in Maneka Gandhi vs Union of India as well as by the forty-fourth amendment of the constitution. In this case, the interpretation of Article 21 was extended and it was vehemently stated that the term “procedure established by law” in this article articulated the element of justness and fairness. The Court can issue this writ not only against a public authority but also against individuals. For instance, contract laborers are often exploited by their contractors because of their innocence and unformed nature. However, several instances have been reported where the family members of the detained person filed this writ for the release of a detainee from the unlawful custody of their masters.

In conclusion, it is expedient to say that the writ of habeas corpus is an immediate remedy available to the detainee or his relatives from his unlawful custody. Since it is for the enforcement of the fundamental rights of the individual’s personal liberty, the writ does not include the costly procedure and anyone can file this application in accordance with the procedure established by law.  The writ of habeas corpus is a strong element for safeguarding the individual’s freedom of liberty from the hands of arbitrary actions of individuals under power or authority.




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