WRIT OF HABEAS CORPUS

INTRODUCTION :

If I was asked to name any particular Article in this Constitution as the most important- an Article without which this Constitution would be a nullity- I could not refer to any other Article except Article 32-35 .It is the very soul of the Constitution and the very heart of it, Dr. Ambedkar. Clause (2) of Article 32 confers power on the Supreme Court to issue appropriate directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari  by part III of the Constitution.

Habeas Corpus is a Latin term which literally means you may have the body. Thus, the main object of the writ is to give quick and immediate remedy to a person who is unlawfully detained by the person whether in prison or private custody.

In Kanu Sanyal V. District Magistrate, Darjeeling,  AIR 1974 SC 510 the Supreme Court stated that, however, the body of the person alleged to be unlawfully detained was not essential. The Court issued the rule nisi but not the production of the detenue. The body of person alleged to be illegally detained was an essential feature of writ of habeas corpus under Article 32 of the Constitution and that the Court can dispose of the petition only after the petition was produced in person before it. Bhagwati, J. held that in writ of habeas corpus under Article 32 the production of the body of the person illegally detained is not an essential feature of the writ of habeas corpus.

Where the detenue is in judicial custody pursuant to remand order passed by jurisdictional Magistrate, the habeas corpus petition is not maintainable.

Who can apply for the writ

The general rule is that an application is applicable by person who  is illegally detained. But in certain cases, an application of habeas corpus can be made by any person on behalf of the prisoner, i.e., a friend or a relation.

In an application for a writ of habeas corpus the Supreme Court will not follow strict rules of pleading nor place undue emphasis as to question as to whom the burden of proof lies.

When it will lie

The writ of habeas corpus will lie if the power of detention vested in an authority was exercised mala fide and is made in collateral or ulterior purposes. But if the detention is justified the High Court will not grant the writ of habeas corpus.

When Habeus Corpus does not lie

Where the person or authority against whom habeus corpus is sought is not within the territorial jurisdiction of the court.

Res Judiciary

When the topic of whether standard of res judicata applies if there should arise an occurrence of writ request of habeus corpus, it was held that, so far as Indian Law is concerned, it is genuinely all around settled that no second appeal to for a writ of habeus corpus on the same ground is viable.

Pleading

It is well settled that strict rules of pleadings do not apply to an application for a writ of habeus corpus.

Conclusion

It can be concluded that the right of writ is one such right available to a person. The concept of the writ is to enable the immediate determination of the rights of an individual and help the person to achieve the benefit of his/her right. The writ of habeus corpus is the most important writ. Where imprisonment or detention of a person is in accordance with a an appeal lies against an order of the High Court grating or rejecting the application for issues of the habeas corpus under Article 132, 133, 134 or 136. The judiciary is using this writ in such an effective manner in order to ensure security.

References

1.blog.ipleaders.in › writ-habeas-…

The Writ of Habeas Corpus – iPleaders – iPleaders Blog

2.legal-dictionary.thefreedictionary.com › …

Writ of habeas corpus – Legal Dictionary – The Free Dictionary

3.www.legalserviceindia.com › legal

Habeas Corpus – Legal Service India

Aishwarya Says:

If you are a lawyer or a law student who is looking for a job, then you can find details about the latest openings here.

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.

Do follow me on FacebookTwitter  Youtube and Instagram.

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 secondinnings.hr@gmail.com

In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.