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Published : June 17, 2010 | Author : sonal_chhablani
Category : Constitutional Law | Total Views : 27369 | Rating :

sonal chhablani BA LLB(H)IP University (3rd year)

You May Have The Body – Habeas Corpus

The concept of writ essentially originated in England & to issue appropriate writ was always considered to be a prerogative of the crown. One of such important prerogative writs originated in England is known as the writ of habeas corpus.

The writ of habeas corpus has always been looked upon as an effective means to ensure release of the detained person from the prison. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error

However, even when writ of habeas corpus is issued, it does not automatically exonerate the detained person from liability. It merely ensures his release from the prison & it does not have any bearing on his guilt or otherwise

In the case of the Additional district Magistrate of Jabalpur v.Shiv Kant Shukla2, popularly known as the Habeas Corpus case, which came up for hearing in front of the Supreme Court in December 1975. Given the important nature of the case, a bench comprising the five seniormost judges was convened to hear the case.

The bench opined in April 1976, with the majority deciding against habeas corpus, permitting unrestricted powers of detention during emergency. Justices A.N RAY, PN Bhagwati Y.V.Chandrachud and M.H Beg, stated in the majority decision

However, Justice Khanna resisted the pressure to concur with this majority view. He wrote in his dissenting opinion:
The Constitution and the laws of India do not permit life and liberty to be at the mercy question is whether the law speaking through the authority of the court shall be absolutely silenced and rendered mute... detention without trial is an anathema to all those who love personal liberty.

In the end, he quoted Justice: Charles Evans Hughes
A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed

In Kanu Sanyal v. District Magistrate3.
The court in that case held that habeas corpus was essentially a procedural writ dealing with the machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ, declared the court is a command addressed to the person who is alleged to have another person unlawfully in his custody, requiring him to bring the body of such person before the court in order that the circumstances of the detention may be enquired into and an appropriate judgment rendered upon judicial enquiry into the alleged unlawful restraint. The characteristic element of the writ and the theory behind the whole procedure observed the court was the immediate determination of the right of the applicant's freedom and his release when the detention is found to be unlawful.

An application for habeas corpus can be made by any person on behalf of the prisoner as well as by the prisoner himself, subject to the rules and conditions framed by various High Courts. The writ of habeas corpus is an effective means of immediate release from unlawful detention whether in prison or private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient Legal necessities and technicalities are no impediments to the court entertaining the writ of habeas corpus if the basic facts are found. The writ of habeas corpus cannot only be used for releasing a person illegally detained but it will be also used for protecting him inhumane treatment inside the jail as stated in Sunil Batra case4

The scope of the writ of habeas corpus has considerably increased by virtue of the decision of the Supreme Court in Maneka Gandhi v. Union of India5 and also by the adoption of forty-fourth amendment to the Constitution. Since the judicial interpretation of Article 21 has extended the magnitude of the concept of the personal liberty and the Court introduced the element -of fairness and justness in the 'procedure established by law', now a writ of habeas corpus would lie if the law depriving a person of his personal liberty is not fair, just and equitable.

The roots of our Constitution lie deep in the finer, spiritual sources of social justice, beyond the melting pot of bad politicking feudal crudities and sublimated sadism, sustaining itself by profound faith in Man and his latent divinity

Writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. As it is rightly quoted by Pascal in Pensees.
“Justice without force is impotent force without justice is tyranny”.

1. Constitution of India by V.N. Shukla ( Lucknow Eastern Book Company , 11 edition edited by Mahendra P. Singh )
2. (1976) 2 SCC 521
3. AIR 1973 SC 2684
4. (1978) 4 SCC 409
5. AIR 1978 SC 597

Authors contact info - articles The  author can be reached at: sonal_chhablani@legalserviceindia.com

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