CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND

GOVERNANCE

PROJECT WORK ON WRIT

OF HABEAS CORPUS

SUBMITTED BY- PRERAK RAJ SUBMITTED TO- DR. PALLAVI SINGH

B.A.LLB ASSISTANT PROFESSOR

E. No.-: CUSB1813125067 SCHOOL OF LAW AND GOVERNANCE

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ACKNOWLEDGEMENT

You are most welcome in my project work on the topic “Writ of Habeas Corpus”.

This project is given by our honorable subject professor “Dr. Pallavi Singh” and I would like to
thank her for giving me such opportunity to work on this specified topic.

I would like to express thank to my seniors who reviewed my paper for rendering constructive
and valuable suggestions and comments that have helped a lot in improving the quality and
content of this paper.

Last but not the least I would like to thank all who directly or indirectly helped me in completion
of this project. I have made this project with great care and tried to put each and every necessary
information regarding the topic. So at the beginning I hope that if once you will come inside this
project you will be surely glad.

-Prerak Raj

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TABLE OF CONTENTS

S.NO. HEADING PAGE NO.

1. INTRODUCTION 4

2. WRIT OF HABEAS CORPUS- AN OVERVIEW 4-7

3. LANDMARK JUDGMENTS OF HABEAS
7-9
CORPUS

4. CONCLUSION 9

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INTRODUCTION

Our Constitution, which is the foremost framework, entails the rules and guidelines; guiding,
preaching and backing all the rights available and duties imposed upon the citizens as well as the
non citizens of the nation. It is considered as the torchbearer of all the rights of the citizens which
they possess. One of such rights is what we call as the right of writs petitions. No provision or
legal principle listed in the constitution would truly be meaningful unless and until there are
mechanisms backing its enforcement most efficiently. The judiciary has thus been given the
independence in these matters wherein there is a call for issuing such writs so as to protect the
basic essence of our constitution. The concept of issuance of writ has achieved its significance
as it is one such enforcement device leading to achieving the benefit of fundamental rights in
their literal sense. A writ is defined as a kind of special order sealed to any authority, government
or any sovereign body in furtherance of abstinence or execution of a specified act. Our
constitution catalogs five writs which are prerogative writs, meaning they can be considered as a
privilege or right exclusively for a specific category or class.

One of such writ is writ of mandamus which signifies “You may have the body”. It is the most
significant writ for individual freedom. It has been given the status of the most important writ out
of all the five as it deals majorly on the liberty and justice of an individual. It is issued in matters
when there is a need to produce the detenu before the court so as to judge the preconditions and
dimensions of his arrest. The writ is issued in form of an order calling upon a person by whom
another person is detained to bring that person before the court and to let the court know by what
authority he has detained that person. If the cause shown discloses that there is no legal
justification for detention the court will order immediate release of the detained person. 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.

WRIT OF HABEAS CORPUS- AN OVERVIEW

It is a process by which a person who is confined without legal justification may secure a release
from his confinement. The writ is in form of an order issued by Supreme Court or High Court
calling upon the person by whom a person alleged to be kept in confinement to bring such person

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before the court and to let the court know on what ground the person is confined. If there is no
legal justification for the detention, the person is ordered to be released. In modern times the
writ is most frequently invoked to test the validity of detention in public or private custody. A
person who is in custody under a warrant or order of commitment may test the validity of the
warrant or order under which he is detained by means of the writ of habeas corpus irrespective of
the fact whether he is imprisoned under the sentence of a naval, military or interned under the
authority of some emergency state. The Court is competent to issue a writ of habeas corpus for
the production of a person illegally or improperly detained in public custody under executive
orders. In India, detention may be unlawful if, inter alia 1, it is not in accordance with law, or the
procedure established by law has not been strictly followed in detaining a person, or there is no
valid authority of law to detain a person, or the law is invalid because it infringes a
Fundamental Right, or the legislature in enacting the law exceeds, its limits . Under Art. 22, a
person arrested is required to be produced before a magistrate within 24 hours of his arrest, and
failure to do so would entitled the arrested person to be released. The burden of proof lies over
the person or the authority to satisfy the court that the detention or confinement of the person
was made on legal grounds. And if the detenu alleges that the confinement was malicious and
outside the jurisdiction of the authority detaining the person than the burden of proof lies over
the detenu.

Subject to the rules framed by various High Courts, an application for habeas corpus can be
made by the person who is in confinement or by any other person on his behalf. Every
application for a writ of habeas corpus has to be accompanied by an affidavit stating the nature
and circumstances of the confinement. On an application for the writ the usual procedure is that
if the court considers that a prima facie2 case for granting the prayer has been made out, it issues
a rule nisi calling upon the opposite party to show cause, on a day specified, why an order
granting the writ should not be made. On the day so specified the court considers the sufficiency
of the cause shown. If the cause shown or the return made by the jailor, or any person detaining
the applicant, discloses that the detention is unjustified, the court will order immediate release of
the detained person. This it does by making the rule nisi absolute which has the effect of setting
the detenu free. If the detention is justified, the rule nisi shall be discharged.

1
Among other things.
2
At first sight.

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The concept of habeas corpus can be traced way back in the thirteenth century. The writ of
Habeas corpus cum causa is an order calling upon the person who has detained another person,
to present the person in the court and justify his actions that on what grounds and under what
authority he has confined that person. If the court doesn’t find any legal justifications for the
cause, then it will order for the immediate release of the person confined or imprisoned. There
are certain conditions when the writ of habeas corpus is refused such as when the court doesn’t
have the territorial jurisdiction over the detainer or when the detention of a person is connected
with the order of the court or when the person detained is already set free or when the
confinement has been legitimized by the removal of the defects or at last when the competent
court dismisses the petition on the grounds of merits.

Recent developments of law indicate that in a writ of habeas corpus the production of the body
of the person alleged to be unlawfully detained is not essential. In case of Kanu Sanjal v. District
Magistrate. Darjeeling3, the top-ranking Naxalite leader Kanu Sanyal was arrested in 1971 and
was detained without trail in the Visakhapatnam Jail. He moved the Supreme Court for a writ
under Art.32 of the Constitution challenging the legality of his detention and praying for the
Court’s order for his production before the court. Bhagwati, J., held that in writ of habeas corpus
under Art.32 the production of body of the person detained before the court was not necessary
for hearing and disposing of the writ-petition by the court. The production of body of a person
illegally detained is not an essential feature of the writ of habeas corpus. "Why should we hold
ourselves in fetters by a practice which originated in England about 300 years ago on account of
certain historical circumstances which have ceased to be valid even in that country and which
have certainly no relevance in ours', his Lordship said.

Though the traditional function of the writ of habeas corpus has been to get the release of a
person unlawfully detained or arrested, the Supreme Court has widened its scope by giving relief
through the writ against inhuman cruel treatment meted out to prisoners in jail. In case of Sunil
Batra v. Delhi Administration4, the hon’ble court stated that “the dynamic role of judicial
remedies ... imparts to the habeas corpus writ a versatile vitality and operational utility that
makes the heating presence of the law line up to its reputation as bastion of liberty even within

3
1974AIR510
4
1980AIR1579

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the secrecy of the hidden cell.” The court has thus permitted the use of the writ for protecting the
various personal liberties to which the arrested persons or prisoners are entitled to under the law
and the Constitution. The general rule is that an application can be made by a person who is
illegally detained. But in certain cases, an application for 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 on whom the burden of proof lies. Even a postcard written by a detenue from jail
would be sufficient to activise the court into examining the legality of detention. The Supreme
Court has shown great anxiety for personal liberty and refused to throw out a petition merely on
the ground that it does not disclose a prima facie case.

When it comes to the illegal confinement of a person, the doctrine of res judicata is not
applicable. Under article 32 successive petitions for the writ of habeas corpus can be filed in the
court with fresh grounds which were not covered in the earlier petition filed for the same. The
petition for habeas corpus is maintainable if it is filed in the forum having its independent
existence and separate jurisdiction and competency. In Lallubhai Jogibhai Patel vs Union Of
India & Ors5, it was held that no second petition for the writ of habeas corpus is maintainable in
the court if filed on the same grounds as of the first one

Writ of habeas corpus provides security against administrative and private lawlessness but not
against judicial 'foolishness'. Therefore if a person has been imprisoned under the order of
conviction passed by a court, writ would not lie. The normal procedure in such case is appeal. In
exercise of its discretion, the court may refuse the petition if there is special alternative remedy
available. But it is not a rule of the limitation of jurisdiction. The court may still grant relief in
appropriate cases.

LANDMARK JUDGMENTS OF HABEAS CORPUS

Now let us have a look over few more landmark judgments for clear understanding of this writ of
habeas corpus.

5
AIR 1981 SC 728

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(i) Additional District Magistrate of Jabalpur V. Shiv Kant Shukla6

This case is commonly known as the habeas corpus case as it was based upon the issuance and
validity aspects of this writ. This case was there as on behind the 44 th Constitutional Amendment
Act, 1978 and also the major decision that Article 21 can be suspended during emergency. It
basically revolves around the emergency which was imposed during the period 1975-77 on the
direction of Smt. Indira Gandhi for the fulfillment of her own political benefits. According to
article 21 of our constitution, every person is entitled to life and liberty which also covers the
right to move to court. But according to Article 359, this right was curbed during this emergency
situation whose reason was declared as threat to security of nation by the way of internal
disturbances. The whole case revolved around the basic question of whether habeas corpus can
be granted in such a situation or even that right would be taken away subsequently. The
arguments given from the side of state were that situations of emergency are declared for social,
economic and military security of the nation thus in such situations, the state is given the zenith
power. Nevertheless, when the state can suspend the fundamental rights of article 14 and 21, then
no question arises regarding whether a person can come with a writ petition of habeas corpus
regarding these fundamental rights. The major argument from the opposite party was that except
the detention talked about in Section 3 of MISA (Maintenance of Internal Security Act), every
other detention without any special condition fulfillment will be considered as ultra vires of the
court. Major questioning was upon the content and essence of the presidential order and also the
locus standi of the writ of habeas corpus. The decision of the Supreme Court had its base upon
the case of Liversidge v. Anderson wherein all the rights were held as suspended during the
emergency and same was held in this case that even the right to life can be curbed by the state
while emergency is imposed. The decision was highly criticized and this day became the black
day of Indian legal history.

(ii) Sheela Barse v. State of Maharashtra7

In this case, the plaintiff who was a journalist and an activist for prisoners‟ rights wrote a letter
to the Supreme Court stating that women prisoners were assaulted in the lock up, following
which a writ petition was filed by the court and an investigative authority was sent to crosscheck

6
1976SC 1207
7
1983 SCC 96

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the allegations made which were found true subsequently. Thus, in this case it was held that if
the detained person can’t file the writ petition, someone else can file it on his behalf quashing the
traditional approach of locus standi.

(iii) A,K Gopalan v. State of Madras8

In the instant case, the preventive detention act was examined based on its constitutional validity.
If a legislature restraints a person from his personal liberty should be competent enough to make
such law in the first place. Detention is turned out to be unlawful if the law backing it up is
unlawful. A person has the right to approach the court. A person can file an appeal in the
supreme court against the order of high court in case of accepting or refusing the application for
the writ of habeas corpus.

(iv) Nilabati Behra v. State of Orissa9

In the instant case, the son of the petitioner was taken away by the Orissa police for the purpose
of interrogation. All the efforts made in order to trace him turned out to be futile. So the writ
petition of habeas corpus was filed in the court. During the pendency of the petition, the dead
body of the petitioner’s son was found on the railway track. The petitioner was awarded
compensation for Rs. 1,50,000

CONCLUSION
Concluding, we may say that the writ of Habeas Corpus is rightly called the Great Writ because
it is based upon the right of liberty is the very heart and soul of our constitution. Writ of habeas
corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and
lawless state action. The writ of habeas corpus cannot be issued to prevent detention. It can only
be issued after a person is detained. Further only one principle must be kept in mind by the court
of law when a person is charged with detention that, “No innocent person should be punished”
and therefore before detaining a person, acute scrutinizing of the facts and circumstances stands
as a must.

8
1950 AIR 27
9
1993 AIR 1960

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