1:INTRODUCTION

Though the remarkable feature of judicial review is that it gives power to the court to create its
own powers and invent its one role yet the basic pur pose of judicial review is to enforce
constitutionalism and to guard against majoritarianism. Thus, an important aspect of public law
review is not only the enforcement of private rights but to keep the administrative and quasi-
administrative machinery within proper control.

It is no denying the fact that today due to the intensive form of government, there is a
tremendous increase in the functions of the administration as a facilitator, regulator and provider.
Therefore, if these new-found powers are properly exercised, these may lead to real socio-
economic growth, and if abused these may lead to a totalitarian state.Against this backdrop, the
prime function of judicial review is to check the abuse of administrative powers and to enforce
accountability on the operators of these powers. The Supreme Court and High Courts exercise
the power of public law review through writs of certiorari, prohibition, mandamus, quo
warranto,and habeas corpus, and through the exercise of power under Articles 136 and 227 of the
Constitution. One of these modes of public law review now be discussed in detail.

Writ of habeas corpus

Habeas corpus is a Latin term, which may be translated into English in some such form as "you
must have the body". However, recent develop ments 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.

Habeas corpus may be defined as a judicial order issued by the Supreme Court or a High Court
by which a person who is confined by any public or private agency may secure his release. The
writ in the form of an order calls upon the person, in whose confinement a person is, to let the
court know the legal justification for the detention, and in the absence of such justification to
release the person from his confinement. The efficacy of this writ lies in its promptness and
effectiveness in securing the release of persons illegally detained.

The true origin of the writ in the common law is still to be traced, but it is certain that the present
writ developed out of the prerogative writ of ad subjiciendum by which people could secure their
release from illegal detention in jails.
A writ of habeas corpus can be filed by any person on behalf of the per son detained or by the
detained person himself. However, every petition must be supported by an affidavit stating the
facts and circumstances of detention and, where relevant, the reasons as to why the prisoner is
unable to make an application. In the case of a minor, any person entitled to the minor's custody
can file a petition. If no such person is available, any other person may file such petition.

In Icchu Devi Choraria v. Union of India, the Supreme Court held that in case of a writ of habeas
corpus, the court does not, as a matter of practice, follow strict rules of pleadings nor does it
place undue emphasis on the strict observance of the rules of burden of proof. Even a postcard by
a pro bono publico is sufficient to galvanise the court into examining the legality of detention.

In order to maintain a petition for habeas corpus, physical confinement is not necessary. It is
sufficient if some kind of control, custody or restraint is exercised over the person. Thus, if a
child is forcibly kept away from his parents, if a man is wrongly kept in confinement as a lunatic,
if a nun is alleged to be prevented from leaving her convent, the court will always issue the writ
of habeas corpus,

The purposes for which the writ of habeas corpus may be issued may include

1) testing the regularity of detention under preventive detention laws and any other law;

2) securing the custody of a minor;

3) securing the custody of a person alleged to be a lunatic;

4) securing the custody of a mar riage partner;

5) testing the regularity of detention for a breach of privilege by the House;

6) testing the regularity of detention under court-martial; and

7) testing the regularity of detention by the executive during emer gency, etc.
Besides these traditional grounds for which the writ of habeas corpus may be issued, Krishna
Iyer J in Sunil Batra (2) v. Delhi Admn." (Sunil Batra (II)] opened new vistas for the issuance of
this writ. Sunil Batra (II) arose out of a letter written by a convict to one of the judges of the
Supreme Court alleging inhuman torture to a fellow convict. Krishna Iyer J treated this letter as a
petition of habeas corpus filed on behalf of Prem Chand, though the latter had not demanded his
release from the jail. The learned judge followed a series of American cases employing the writ
of habeas corpus for the neglect of State penal facilities like overcrowding, under staffing,
insanitary facilities, brutality, constant fear of violence, lack of adequate medical and mental
health, censorship of mail, inhuman isolation, segregation, and inadequate or non-existent
rehabilitative or educational opportunities. The writ was also issued when a ban was imposed on
law students to conduct interviews with prisoners for affording them legal relief. Thus, this new
dynamics of the writ of habeas corpus is a high benchmark of judicial creativity in India which
has made the writ coextensive with growing human rights jurisprudence.

In India, as in England, successive applications to different judges and Benches of the same court
are not allowed if the order on the first application has been made on merit.85 However, if the
petition has been heard and rejected by the High Court, a fresh petition under Article 32 can still
be filed in the Supreme Court.86 Therefore, this is an exception to the principle of res judicata
which applies to other writs. In the same manner, in Lallubhai Jogibhai v. Union of India87, the
Supreme Court held that when a writ petition challenging an order of detention is dismissed by a
court, a second petition can be filed on additional grounds to challenge the legality of continued
detention and it will not be barred by res judicata. In the same manner, constructive res judicata
also does not apply to habeas corpus proceedings as it would whittle down the wide sweep of
this constitutional protection.

In England, no appeal lies against the order if the petition of habeas corpus has been accepted. In
India, there is no such restriction and appeal would lie to the Supreme Court under Article 136
against the order of the High Court granting or rejecting the petition for the writ.
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, the 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 a special alternative
remedy available. But it is not a rule of the limitation of jurisdiction. The court may still grant
relief in appropriate cases.89

In a habeas corpus writ proceeding, not only the fact of detention but the constitutionality of the
law can also be challenged. In A.K. Gopalan v. State of Madras", the court examined the
constitutionality of the Preventive Detention Act, 1950.

1.5.1 Constitution and the writ of habeas corpus

The writ of habeas corpus gives meaning and colour to the rights of personal liberty guaranteed
under Article 21 of the Constitution. Without the remedy of habeas corpus, the right to personal
liberty would be merely a tale told by an idiot full of sound and fury, but signifying nothing.
Judicial behaviour before 1978 gave not only a restricted meaning to the term "personal liberty"
but did not allow the importation of the principles of natural justice or procedural due process
into the words "procedure established by law".

The decision of the Supreme Court in Maneka Gandhi v. Union of India" electrified the whole
concept of liberty by making two significant innovations with far-reaching consequences: 1) The
court gave a wide, extended meaning to the term "personal liberty" as including everything that
makes life worthwhile, including the right to education, involving the right to participate in the
activities and the corporate life of an university," and the right to legal aid in cases of criminal
convictions with long loss of liberty." 2) The court imported the element of fairness and justness
in the "procedure established by law" depriving a person of his liberty. Therefore, now a writ of
habeas corpus would lie if the law which deprives a person of his liberty is not fair, just and
equitable.
Before the Constitution (44th Amendment) Act, 1978, the President of India could suspend the
enforcement of Article 21 during an emer gency-under Article 359(1)-and, therefore, courts were
debarred from considering the legality of an executive detention during the emergency even on
the ground that it was ultra vires the Act, or palpably wrong or mala fide. But now after the
amendment of the Constitution in 1978, the right to personal liberty under Article 21 cannot be
suspended even during an emergency, therefore, the writ of habeas corpus will be available to
peo ple against any wrongful detention during an emergency proclaimed under Article 352 of the
Constitution. Thus, the 1978 constitutional amendment overrules ADM, Jabalpur v. Shivakant
Shukla" (also known as the Habeas Corpus case) decided during the 1975 Emergency which
remains a blot on the glorious history of the Supreme Court.