A writ of habeas corpus (which literally means to “produce the body”) is a court order demanding that a public official (such as a warden) deliver an imprisoned individual to the court and show a valid reason for that person’s detention. The procedure provides a means for prison inmates, or others acting on their behalf, to dispute the legal basis for confinement. Habeas corpus has deep roots in English common law.

Often, the court holds a hearing on the matter, during which the inmate and the government can both present evidence about whether there is a lawful basis for jailing the person. The court may also issue and enforce subpoenas in order to obtain additional evidence.

Depending on what the evidence reveals, the judge may grant the inmate relief such as:

  • Release from prison,
  • Reduction in the sentence,
  • An order halting illegal conditions of confinement, or
  • A declaration of rights.

It’s important not to confuse habeas corpus with the right of direct appeal. Criminal defendants are always entitled to appeal a conviction or sentence to a higher court, which then reviews the trial judge’s rulings. Habeas corpus provides a separate avenue for challenging imprisonment, and is normally used after a direct appeal has failed. It often serves as a last resort for inmates who insist that a miscarriage of justice has occurred.

Limitations of Habeas Corpus

A writ of habeas corpus is not available in every situation. Because judges receive a flood of habeas corpus petitions each year, including some that inmates prepare without the assistance of a lawyer, strict procedures govern which ones are allowed to proceed. Inmates are generally barred from repetitively filing petitions about the same matter.

Both state and federal courts can hear habeas corpus petitions. Federal courts sometimes decide that a state conviction was unjust and order the person’s release. However, Congress has imposed restrictions on federal courts’ authority to overrule state courts in this manner.

When an inmate is not challenging the fact of being in jail but rather the conditions of confinement — for instance, claiming severe mistreatment or unlawful prison policies — it is usually necessary to file a civil rights complaint instead of a habeas corpus petition. Under the Prison Litigation Reform Act, inmates contesting conditions generally must first attempt to resolve the matter through available grievance procedures, so that correctional officials have an opportunity to remedy problems before litigation.

Writ Petitions under Articles 32 and 226 of the Constitution of India – Habeas Corpus

The Writ Jurisdiction of Supreme Court can be conjured under Article 32 of the Constitution for the infringement of central rights ensured under Part – III of the Constitution. Any procurement in any Constitution for Fundamental Rights is negligible unless there are satisfactory shields to guarantee requirement of such procurements. Since the truth of such rights is tried just through the legal, the protections expect much more significance. Moreover, implementation additionally relies on the level of autonomy of the Judiciary and the accessibility of applicable instruments with the official power. Indian Constitution, as the greater part of Western Constitutions, sets out certain procurements to guarantee the authorization of Fundamental Rights. These are as under:

(a) The Fundamental Rights given in the Indian Constitution are ensured against any official and administrative activities. Any official or administrative activity, which encroaches upon the Fundamental Rights of any individual or any gathering of persons, can be pronounced as void by the Courts under Article 13 of the Constitution.

(b) Likewise, the Judiciary has the ability to issue the privilege writs. These are the additional standard cures given to the residents to get their rights upheld against any power in the State. These writs are – Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto. Both, High Courts and the Supreme Court may issue the writs.

(c) The Fundamental Rights given to the residents by the Constitution can’t be suspended by the State, aside from amid the time of crisis, as set down in Article 359 of the Constitution. A Fundamental Right may likewise be implemented by method for typical lawful techniques including an explanatory suit or by method for resistance to legitimate procedures.

Nonetheless, Article 32 is alluded to as the “Established Remedy” for authorization of Fundamental Rights. This procurement itself has been incorporated into the Fundamental Rights and thus it can’t be denied to any individual. Dr. B.R.Ambedkar portrayed Article 32 as the most essential one, without which the Constitution would be diminished to nullity. It is additionally alluded to as the absolute entirety of the Constitution. By incorporating Article 32 in the Fundamental Rights, the Supreme Court has been made the defender and underwriter of these Rights. An application made under Article 32 of the Constitution in the witness of the Supreme Court, can’t be rejected on specialized grounds. Notwithstanding the endorsed five sorts of writs, the Supreme Court may pass some other suitable request. Also, just the inquiries relating to the Fundamental Rights can be resolved in procedures against Article 32. Under Article 32, the Supreme Court may issue a Writ against any individual or government inside the region of India. Where the encroachment of a Fundamental Right has been built up, the Supreme Court can’t deny help on the ground that the wronged individual may have cure in the witness of some other court or under the standard law.

The alleviation can likewise not be denied on the ground that the debated certainties must be examined or some confirmation must be gathered. Regardless of the fact that a distressed individual has not requested a specific Writ, the Supreme Court, in the wake of considering the truths and circumstances, may give the fitting Writ and may even change it to suit the exigencies of the case. Regularly, just the oppressed individual is permitted to move the Court. In any case, it has been held by the Supreme Court that in social or open interest matters, any one may move the Court. A Public Interest Litigation can be recorded in the witness of the Supreme Court under Article 32 of the Constitution or in the witness of the High Court of a State under Article 226 of the Constitution under their particular Writ Jurisdictions.

Habeas Corpus Case

Case Summary – ADM Jabalpur v Shivkant Shukla

The Constitution of India since its adoption in 1950 has provided the citizens with a means to enforce their guaranteed rights through various institutions, especially, the Supreme Court. The Supreme Court has by and large remained firm in its role as the guardian of the fundamental rights that are provided in the Constitution. The most serious challenge to the independence and integrity of the Judiciary in general, and the Supreme Court in particular, came when the Late Prime Minister Smt. Indira Gandhi decided to impose an ‘Emergency’ through a proclamation by the then President Fakhruddin Ali Ahmad under Clause (1) of Article 352 of the Constitution. The government declared that a grave emergency existed whereby the security of India was threatened by internal disturbances.

State’s arguments

The State through its counsels argued that the purpose of emergency powers under the Constitution was to grant the executive broad powers whereby it can take over the implementation of laws, reason being, the interests of the State assume supreme importance during the invocation of emergency. The State further contended that the rights of the individuals to approach the Court have been curtailed under a constitutional provision i.e. Article 359 (1) and thus, it does not amount to the absence of law and order as was argued in various High Court petitions in this respect.  The State also reminded the court that emergency powers laid down in the Constitution were drafted so that the economic and military security of the country will take precedence over everything else.

Respondents’ arguments

The respondents stated that 359 (1) prohibited the right to approach the Court under Article 32 but such prohibition does not affect the enforcement of common law as well as the statutory rights of personal liberty in the High Court under Article 226 of the Indian Constitution. Therefore, the Presidential orders were valid only to the extent of fundamental rights and did not apply to Common Law, Natural Law, or Statutory Law. Respondents also stated that the argument of the petitioners that powers of the Executive increase due to the emergency are highly misplaced as the extent of the powers of the executive are already provided in the Constitution. It was argued that even though Article 21 laid down the Right of life and personal liberty as a fundamental right, the said Article is not the sole repository of this right. The respondents also urged the Court to consider the fact that the Executive taking over the role of the legislature goes against the basic constitutional principles that the framers had envisaged.

Habeas Corpus Case Judgement

The judgement, in this case, was laid down by a 5-judge bench consisting of Justices Ray, Beg, Chandrachud, Bhagwati, and Khanna.

  • The majority ruling was pronounced by four judges while Justice Khanna delivered a powerful dissent.
  • The Court held – Given the Presidential order dated 27 June 1975 no person has any 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 legal or is based on extraneous consideration.
  • The Court also upheld the constitutional validity of Section 16A (9) of MISA.
  • Justice H.R. Khanna in his dissent stated that invoking Article 359(1) does not take away the right of an individual to approach the Court for the implementation of statutory rights.
  • He added that Article 21 is not the sole repository of life and personal liberty.
  • He further stated that during the proclamation of emergency, Article 21 only loses the procedural power but the substantive power of this article is very fundamental and the State does not have the power to deprive any person of life and liberty without the authority of law.
  • There was so much political pressure during that particular hearing that this dissent cost Justice Khanna his chance of becoming the Chief Justice as he was the second in line to the Chair of CJI at that time.
  • Even Justice Bhagwati expressed his regret later for siding with the majority by saying that he was wrong not to uphold the cause of individual liberty.


The judgement in the Habeas Corpus case has been widely criticised for favouring the State instead of standing up for individual liberty. HM Seervai termed the judgement so bizarre that if Justice Khanna was arrested for giving the dissent he would not have had any remedy to secure his liberty. Immediately after the emergency ended, the Supreme Court changed its stance by giving Article 21 a permanent character in addition to linking the right provided in Article 21 with the rights provided in Articles 14 and 19. The majority judgement, in this case, is guilty of aiding and abetting the lust of power that the State apparatus at that time displayed. Commenting on the majority ruling in this case, Justice Venkatachaliah in his Khanna Memorial lecture of 2005 stated that the majority decision in the Emergency case should be “confined to the dustbin of history” and it is very hard to argue with his assessment.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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