Habeas Corpus

Right to Constitutional Remedy

 Contents

Introduction

‘You May Have The Body’ – The Main Concept of Habeas Corpus

When the Supreme Court struck down the Habeas Corpus

Kanu Sanyal v. District Magistrate

 Introduction

Habeas Corpus is considered as the base of personal liberty. By the writ of Habeas Corpus the
Court makes order to produce a detainee before the appropriate courts so that legality or
otherwise of such detention may be ascertained. If the detainee has been arrested unlawfully, the
Court may order to set him free.

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. It must be emphasized that the primary purpose of the
writ is & was to inquire into the legality of the detention .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.

The Indian judiciary in a catena of cases has effectively resorted to the writ of habeas corpus
mainly in order to secure release of a person from illegal detention. Personal liberty has always
been considered a cherished value in India & the writ of habeas corpus protects that personal
liberty in case of illegal arrest or detention. As personal liberty is so important, the judiciary has
dispensed with the traditional doctrine of locus standi. Hence if a detained person is not in a
position to file a petition, it can be moved on his behalf by any other person. The judiciary while
going one step further, has also dispensed with strict rules of pleadings. The increasing scope of
writ of habeas corpus may be explained with the help of following cases decided by the Indian
judiciary.

Habeas corpus is a protection against illegal confinement, such as holding a person without
charges, when due process obviously has been denied, bail is excessive, parole has been granted,
an accused has been improperly surrendered by the bail bondsman, or probation has been
summarily terminated without cause. Historically called "the great writ," the renowned scholar of
the Common Law, William Blackstone called it the "most celebrated writ in English law."
 ‘You May Have The Body’ – The Main Concept of 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 Shukla, 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 Constitutionand 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.
Conclusion:
The roots of our Constitutionlie 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.
 When the Supreme Court struck down the Habeas Corpus

April 28th, 1976 is a day never to be forgotten by any of us Indians who love the pledges of
Justice and Liberty which we gave to ourselves in the Preamble of our Constitution. It was on
this day when four of the five senior most Judges of the Supreme Court (including the Hon'ble
Chief Justice) struck the first mortal blow to these cherished dreams enshrined in our
Constitution.

On this day during the Emergency the Supreme Court sank to its lowest when it decided the
infamous Habeas Corpus Case with the following conclusion:
"In view of the Presidential Order dated 27th June 1975 no person has any locus to move any
writ petition under Art. 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 legal or is
based on extraneous considerations.

"The Presidential Order referred to was the one issued during Emergency declaring that the right
of any person to move any Court for any enforcement of the rights conferred by Articles 14, 21
and 22 of the Constitution and all proceedings pending in any Court for the enforcement of the
above mentioned rights shall remain suspended for the period during which the Proclamation of
Emergency are in force. 28th April, 2001, we complete twenty-five years of this horrific day
when four of the five senior most Judges of the Supreme Court of the world's largest democracy
could unabashedly declare that under those circumstances no one could seek the assistance of
any court in India to try and save his liberty, life or limb threatened to be taken away by the
State. A day, which produced a judgment so shameful that even Hitler would have blushed, had
he the opportunity to peruse it.

The question was simple: Despite the Presidential proclamation, can the High Court entertain a
writ of habeas corpus filed by a person challenging his detention? All High Courts that had
answered the question, had done so in the affirmative and had kept their doors open to those
unfortunate who dared risk the wrath of some petty governmental official. Against the
unanimous decision of the High Courts, four of the five senior most Hon'ble Justices of the
Supreme Court thought it fit to rule otherwise. They were the then Chief Justice A.N. Ray, along
with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. The Supreme Court had
effectively ordered the High Courts to slam shut their doors and windows.

The lone dissenting voice was that of Justice H.R. Khanna of whom the New York Times
remarked: 'surely a statue would be erected to him in an Indian city'.Justice Khanna, conscious of
his aloneness, ended his judgment with a quote:"As observed by Chief Justice Huges, Judges are
not there simply to decide cases, but to decide them as they think 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 unanimity 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 may possible correct the error into which
the dissenting Judge believes the court to have been betrayed."Justice Khanna paid the price for
his dissent. He was next in line to become Chief Justice of India.

He resigned when his junior, Justice M.H. Beg, superseded him. That was justice Indira Gandhi
style. It all started with the election of Mrs. Indira Gandhi, the then Prime Minister, which had
been held to be invalid by the Allahabad High Court. Wanting to cling to the chair at any cost,
she chose to declare emergency as on 25th June 1975 - the pretext being 'internal threat' to India
Censorship muzzled the Press, which could not publish the numerous arrests of vast sections of
people. Any person who was considered to be a political threat, or who could politically voice
his opposition was detained without trial under Preventive Detention laws one of which was the
dreaded MISA (Maintenance of Internal Security Act). The opposition was silenced. The
common man terrorized.

Many who had been arrested challenged their detention by filing writs of habeas corpus under
Article 226 in various High Courts. In most High Courts, the State Governments had raised the
issue as to whether such writs were maintainable on the ground that in light of the Presidential
Order the right to file such writ was taken away. The High Courts of Allahabad, Andhra Pradesh,
Bombay, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab, and Rajasthan had all rejected the
Government's argument and held that despite the suspension of fundamental rights, a person
detained could demonstrate that their detention was not in compliance with the law (under which
he or she was detained), or that the State action was mala fide, or that there was a mistake of
identity. Having received a drubbing nine to nil, the Government decided to appeal against these
decisions to the Supreme Court. It was thus that the Constitutional bench of five Judges came to
be constituted to hear and decide the most crucial case in Indian legal history referred to in all
law reports as A.D.M. Jabalpur vs. Shukla.

Niren De, the then Attorney General began the arguments on 14th December 1975. He focused
on the aspect of 'liberty' as found in Art.21 of the Constitution. His central contention was that
since the right to move any Court had been suspended, the detenue had no locus standi and their
writ petitions would necessarily have to be dismissed. It was on the next day that Justice Khanna
was to ask the first uncomfortable question. "Life is also mentioned in Article 21 and would
Government argument extend to it also?". There was no escape. Without batting an eyelid Niren
De answered, 'Even if life was taken away illegally, courts are helpless'. [Remember the Nazi
holocaust]. The case was argued for over two months. Judgment was reserved. It was only when
an application was moved for the pronouncement of the judgment that it was read in open Court
on that dark and ignominious 28th April 1976.And so was delivered the biggest blow to the
Supreme Court, by the Supreme Court.

This one case is a glaring example of how the four wise Judges of the Supreme Court tried to
outdo themselves in being more loyal to the throne than the king himself. The final order goes
way beyond what was demanded of them by the plea of the Union of India. All the individual
judgments of Ray (C.J.), Beg, Chandrachud & Bhagwati (JJ) record in extensio the submissions
of the Attorney-General on behalf of the government wherein he made the claim that the detenue
had no right to approach the Court to challenge his detention.

They also record the concession of the Attorney-General to the effect that despite this general
ban the Courts may grant relief if the detention order is on the face of it bad, as for example, if it
is passed by a person not authorized to pass it, or if it is passed for a purpose outside those
mentioned in Section 3(1) of the MISA or if it does not bear signature at all. The Attorney
General had thus handed over to the Supreme Court the same key with which all High Courts
had earlier used to keep ajar their doors for the detenues to squeeze through and enter. The
Supreme Court, instead, preferred to throw away this key to their own self-respect. The majority
judgment, literally taken, and as understood thereafter by all High Courts, clearly directed that
detenues were to be stopped at the doors if not in the corridors of the halls of Justice.
Another shocking aspect of A. D. M. Jabalpur is that it establishes beyond doubt our Judges do
really live in ivory towers totally oblivious of the ground realities. In speaking of the Emergency
and the condition of those detained Justice Beg has this to say: "We understand that the care and
concern bestowed by the State authorities upon the welfare of detenues who are well housed,
well fed and well treated, is almost maternal." Justice Chandrachud went further in his eulogy
when he ended his Judgment stating: "Counsel after counsel expressed the fear that during the
emergency, the executive may whip and strip and starve the detenue and if this be our judgment,
even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a
diamond-bright, diamond-hard hope that such things will never come to pass."
Chief Justice Ray had the audacity to chide counsel for the detenues who brought to mind the
nazi gas chambers. He voiced his belief that people who have faith in themselves and in their
country will not paint pictures of diabolic distortion and mendacious malignment of the
governance of the country.

We will never know if any of these men ate their words when a year later on 24th May, 1977
The Times Of India reported: "The Calicut Regional Engineering student Mr. P. Rajan, 'died
while in unlawful police custody at Kakayam Police Camp on 2 March 1976, as a result of
continuous police torture with iron and wooden rollers'. This was admitted in the returns filed in
the form of affidavits by respondents, including the former Chief Minister, Mr. K. Karunakaran
before the Div. Bench of the Kerala High Court."

A special mention must be made of Justice Bhagwati the man who had a knack with words and
who knew how to use them to play to the gallery. Though Justice Khanna had held high the torch
of freedom, it was Justice Bhagwati who spoke grandiosely about liberty. It was Mark Anthony
updated for the occasion telling us how much he loved liberty, but, how much more he loved the
law. Let us read his own words: "I have always leaned in favour of upholding personal liberty,
for, I believe, it is one of the most cherished values of mankind, without it life would not be
worth living. It is one of the pillars of free democratic society. Men have readily laid down their
lives at its altar, in order to secure it, protect it and preserve it. But I do not think it would be
right for me to allow my love of personal liberty to cloud my vision or to persuade me to place
on the relevant provision of the Constitution a construction which its language cannot reasonably
bear."
Yes, his intense love for the Constitution could not permit him to read into it things which were
not there. Yet, all this he did, and much more a little later in the case of Indira Gandhi's daughter
in law, Maneka Gandhi, when the Janata Government had impounded her passport. When it
came to the then famous daughter-in-law's case, Justice Bhagwati read the Constitution like a
visionary and prophet finding within its pages and between the lines the famous principle that
laws have to be 'right, just and fair, and not arbitrary, fanciful or oppressive'. He also brought in
the theory that the soul of natural justice was fair play in action.

Last year on 25th June we brought back to mind the proclamation of Emergency being the start
of the darkest period in Indian democracy. If this were so then we should never forget that during
this dark period, the 28th April, 1976, was its blackest day. It is all the more important to
remember this day since we the people of India have grown accustomed to being ruled by
preventive detention laws where thousands are being jailed without trial. Over and above this,
Government after Government is attempting to bring in laws which put to shame both MISA and
TADA combined. The Judiciary has failed us once. If we, the people of India, forget this, we will
be condemning ourselves sooner or later to history repeating itself. So let us always remember
A.D.M. Jabalpur.
 Kanu Sanyal v. District Magistrate

In Kanu Sanyal v. District Magistrate1,the court in this 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 case.

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 India 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.

Some cases related to the Concept of Habeas Corpus are:

1
AIR 1973 SC 2684
In Kanu Sanyal v. District Magistrate, while enunciating the real scope of writ of habeas corpus,
the Supreme Court opined that while dealing with a petition for writ of habeas corpus, the court
may examine the legality of the detention without requiring the person detained to be produced
before it.

In Sheela Barse v. State of Maharashtra2, while relaxing the traditional doctrine of locus standi,
the apex court held that if the detained person is unable to pray for the writ of habeas corpus,
someone else may pray for such writ on his behalf.

In Nilabati Behera v. State of Orissa3, the Orissa police took away the son of the petitioner for
the purposes of interrogation & he could not be traced. During the pendency of the petition, his
dead body was found on railway track The petitioner was awarded compensation of Rs. 1, 50,
000.

In Malkiat Singh v. State of U.P4, the son of a person was allegedly kept in illegal custody by the
police officers. It was established that the son was killed in an encounter with the police. The
court awarded Rs. 5,00,000 as compensation to the petitioner.

Conclusion: In this manner, writ of habeas corpus has been used effectively by the judiciary for
protecting personal liberty by securing the release of a person from illegal custody

Conclusion
2
AIR 1983 SC 378
3
AIR 1993 SC 1960
4
AIR 1999 SC 1522
There is no specification as to who can file an application for habeas corpus before Supreme
Court or High Court. This is the only writ that entertains an application from anybody other than
a victim. Thus an application can be made by any relation or friend or any person acting in the
interest of the detenu for habeas corpus.

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 too.

Bibliography
Writs-Law and Practice, M.R.Mallick

The Treatment of Prisoners Under International Law- Nigel.S.Rodley

Prevention Of Detention Act

Writs- Mulla

Constitutional Law of India- H.M.Seervai