Habeas Corpus is one of the writs. Habeas Corpus means “you may have the body”. Habeas corpus is an order upon the person who has detained another to let the court know on what ground he has been confined and set him free if there is no legal justification for the imprisonment. Habeas Corpus is a device through which the illegal detention or imprisonment can be questioned.
Habeas Corpus is not a writ of course, but is only a procedural remedy. The main object of this writ is to give an immediate remedy to a person for his release from an unlawful detention. It is a weapon against unlawful detention.
HISTORY OF HABEAS CORPUS
The writ of Habeas Corpus was historically issued by the English Courts in the name of Monarch to control inferior courts and public authorities within the kingdom. The writ of habeas corpus was described in 18th century by William Blackstone “as a great and efficacious writ in all manner of illegal confinement” and he records the first use of the writ during the reign of King Edward 1.
The procedure for issuing the writ was codified by the Habeas Corpus Act 1679 which was to prevent the King to overturn the decisions. The codification in 1679 took placed in the context of sharp confrontation between King Charles 2 and the Parliament which was dominated by the then sharply oppositional nascent Whig party. The short lived Parliament which made the enactment came to be known as the Habeas Corpus Parliament which was dissolved by the King immediately afterwards. Since 18th century the writ was used in cases of unlawful detention by private individuals, most famously in Somerset’s case where the black slave was ordered to be freed. The Habeas Corpus Act 1816 introduced some changes and expanded the territorial jurisdiction.
The application for writ of habeas corpus can be made by the person who is illegally detained or by his next friend or relative or an advocate of the detenu who has interest in his welfare.
The writ can be filed in situations where the arrested person is not produced before the Magistrate within 24 hours or if the law under which detention is made is ultra vires the Constitution or the power of detention vested in authority was exercised mala fide. The applicant must show prima facia case of his unlawful detention.
Habeas Corpus in India
The Constitution confers ample power to the Supreme Court and High court in the matters of issue of writ of habeas corpus. The writ can be issued to the Supreme Court by Article 32 of the Constitution and by Article 226 to the High courts.
The court does not insist on strict rules of pleading. In Sunil Batra v. Delhi Administration A.I.R 1980 S.C.1579, a post card written by the person from jail was converted into a writ petition for habeas corpus.
In Kanu Sanyal v.District Magistrate Darjeeling A.I.R 1973 S.C.2684 , court held that the production of the body of detenu before the court was not necessary for hearing and disposing of the writ petition by the court. The court will issue an order to the authority to show the legality of detention and if causes are not justiciable, court will order immediately to release.
In T.V. Eachara Varier v. Secretary to The Ministry Of Home 1978 CriLJ 86, popularly known as the Rajan Case where a young boy, P Rajan was taken into police custody while he was studying in the college campus. The principle of the college informed the father of the child about his arrest. This was done during the period of national emergency and for months, there was no information about him. In this case, the Court observed that P Rajan had been detained without any justification and issued the writ of Habeas Corpus for production of Rajan before itself.
The scope of writ of habeas corpus has considerably increased by virtue of the decision of the Supreme Court in Maneka Gandhi v.Union of India 1978 AIR 597 and also by the adoption of forty fourth amendment of the Constitution. Now a writ of habeas corpus lie if the law depriving a person of his personal liberty is not fair, just and equitable.
The writ of Habeas corpus is the writ of highest constitutional importance being a remedy available to the lowliest citizen against the most powerful authority.
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