Jitendra Chauhan College of commerce

Critical evaluation of Writ of Habeas

Corpus with Judicial Decision
(Administrative Law)

Prof In-charge

Prof. Navnitha Warrier

Prof. Sneha Anilkumar

Student Name: Heet Shah

Roll No: B-107 (S.Y. LLB)

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Table of content

Sr Particulars Page
No no’s
1. Acknowledgement 3
2. Introduction 4
3. Situation when Writ of Heabeas Corpus can be invoked 4
4. Nature of Habeas Corpus 5
5. Habeas Corpus in Respect of Persons detained under Punitive 6
Detention Laws
(i) Right to Equality 6
(ii) Right to Life and Personal Liberty 6
(iii) Right against Double Jeopardy 7
(iv) Right against Self-Incrimination 7
(v) Right to Legal Aid 7
(vi) Right to Speedy Trial 8
6. Conclusion 8
7. Bibliography 8

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 Acknowledgement

I would like to express my greatest appreciation to the all individuals who have helped
and supported me throughout the project. I am thankful to my Administrative Law
teacher for her ongoing support during the project, from initial advice, and provision of
contacts in the first stages through ongoing advice and encouragement, which led to the
final report of this project.

A special acknowledgement goes to my colleagues who helped me in completing the

project by exchanging interesting ideas and sharing their experience.

I wish to thank my parents as well for their undivided support and interest who
inspired me and encouraged me to go my own way, without whom I would be unable to
complete my project.

At the end, I want to thank my friends who displayed appreciation to my work and
motivated me to continue my work.

Thank you!

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 Introduction :

During the British regime, provisions akin to the English Act of Habeas Corpus were for the
first time incorporated in the Code of Criminal Procedure 1872. Section 81 of the Code
provided that any British European subject who was detained in custody by any person,
might apply to the High Court for’ an order directing the person detaining him to bring him
before the court and to abide by such order as might be made by it. The section however
applied to British European subjects only. The provisions were continued in the Codes of
Criminal’ Procedure, 1875, 1882, 1898 and the repealing Act of 1914. Under the Criminal
Law Amendment Act, 1923 any High Court could pass an order in respect of persons within
the territorial limits of its appellate criminal jurisdiction.

After independence of the country, the Constitution has made elaborate provisions with
regard to the rights of persons to life and personal liberty. Article 21 provides that no person
shall be deprived of his life or personal liberty except according to a procedure established by
law, Article 22 contains further provisions for protection against arrest and detention in
certain cases. The writ of Habeas Corpus has been provided as one of the Constitutional
Remedies to which a person is entitled as a matter of his Fundamental Right. By virtue of
Article 32 of the Constitution the Supreme Court may issue directions, orders or writs in the
nature of the writ of Habeas Corpus; and by virtue of Article 226 of the Constitution the
High Courts may issue directions, orders or writs in the nature of Habeas Corpus for the
enforcement of the fight to life and personal liberty.

A Constitution Bench of the Supreme Court in the case of Kanu Sanyal v. District Magistrate,
Darjeeling, dealing with the nature and scope of the Writ of Habeas Corpus observed as
follows: It will be seen from this brief history of Habeas Corpus that it is essentially a
procedural writ. It deals with the machinery of justice, not the substantive law. The object of
the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, a
command addressed to a person who is alleged to have another person unlawfully in his
custody requiring him to bring the body of such person before the Court, but the production
of the body of the person detailed is directed in order that the circumstances of his detention
may be inquired into, or to put it different”.

The form of the writ employed is: “We command you that you have in the King Bench
Division of our High Court of Justice immediately after the receipt of this our writ, the
body of A. B. being taken and detained under your custody together with the day and cause
of his being taken and detained to undergo and receive all and singular such matters and
things as our Court shall then and there consider of concerning him in this behalf”.

The words show that the writ is primarily designed to give a person restrained of his liberty a
speedy and effective remedy for having the legality of his detention enquired into and
determined and if the detention is found to be unlawful, having him discharged and freed
from such restraint. The most characteristic element of the writ is its peremptoriness and, as
pointed out by Lord Halsbury, L.C. in Cox v. Hakes1“the essential and leading theory of the
whole procedure is the immediate determination of the right to the applicant’s freedom”
and his release, if the detention is found to be unlawful. That is the primary purpose of the
writ; that is its substance and end.”

 Situation when Writ of Heabeas Corpus can be invoked:

1
Cox v. Hakes AIR 1973 SC 2684 Para 4.

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 There are 4 important situations in this regard to which the role of Habeas Corpus is invoked
by the persons in our system of writ Jurisdiction.

1. When a person is deprived of the custody of his wife or children without justification.
2. When a person is deprived of his liberty under punitive laws,
3. When is deprived of his liberty under preventive detention laws and
4. When there is emergency and the enforcement of fundamental rights stands
suspended under a proclamation issued by the President of India.

Apart from the above there is yet another important thing which is of an innovative nature as
far as the role of Habeas Corpus in Indian legal system is concerned. That is the Courts of our
country have expanded the scope of the Writ by awarding compensation to persons affected
in their right to life and personal liberty.

 Nature of Habeas Corpus

It is a writ in the nature of an order calling upon the person who has detained another to
produce the latter before the Court, in order to let the Court know on what ground he has
been confined and to set him free if there is no legal justification for imprisonment. If it
appears on the face of the return that a person is in detention in execution of a sentence on
indictment on a criminal charge, that would be a sufficient answer to an application for
habeas corpus,2 expect where the order prima facie appears to be without jurisdiction.3
Assuming that in such cases it is open to investigate the jurisdiction of the Court which
convicted the Petitioner, the mere fact that the trail Court has acted without jurisdiction
would not justify interference by habeas corpus, if the conviction had been upheld on appeal
by a Court of Competent jurisdiction the appellate Court is fully competent to decide whether
the trail was with or without jurisdiction and it has jurisdiction to decide the question rightly
as well as wrongly. Where the appellate court wrongly holds that the trail Court had
jurisdiction, it cannot be said to have acted without jurisdiction and the order of the appellate
Court cannot be treated as a nullity.

In habeas corpus proceeding, the Court is to have regard to the legality or otherwise of the
detention at the time of the return and not with reference to the date of institution of the
proceeding. Hence, if a fresh and valid order justify the detention is made by the time of the
return to the writ, the Court in cannot release the detenu whatever might have been the defect
of the order in pursuance of which he was arrested or initially detained. When physical
restraint is put upon a person under a law there is no right to habeas corpus unless the law is
unconstitutional4 or the order is ultra vires the statute5. But the Petitioner is entitled to
challenge the Constitutionality of the law in the habeas corpus proceeding and the Court is
bound to release him if the law is held to be unconstitutional.

A petition for habeas corpus would lie under Art. 226 not only when a person was detained
by the State but also when he was detained by another private individual though not under

2
Janardhan v. State of Hyderabad, (1950) S.C.R. 344.
3
Niranjan v. State of Punjab, (1952) S.C.R. 395 (401); Gopalan v. Govt. of India, AIR. 1966 S.C. 816 (818).
4
State of Punjab v. Ajaib Singh, (1953) S.C.R. 254.
5
Makhan Singh v. State of Punjab, A. 1964 S.C. 381.

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 Art. 32, because Art. 226 are available not only for the enforcement of fundamental rights,
but also for ‘other purposes’6. The doctrine of constructive res judicata does not apply to
habeas corpus proceedings, so that even after the dismissal of one application, a subsequent
application would lie, if there are fresh grounds7, but not on the self-same grounds, in which
case the remedy is to apply for review of the previous dismissal8. An analysis of the role of
Habeas Corpus in the four different situations pointed out above is presented as follows:

 Habeas Corpus in Respect of Persons detained under Punitive Detention Laws:-

Persons detained under punitive detention laws are known as the under-trial prisoners. These
under- trial prisoners may resort to the remedy of Habeas Corpus on the basis of their
fundamental rights guaranteed in Part III of the Constitution. The persons detained under
unlawful detention orders may challenge the detention questioning the validity of the law
under which they are detained and rely at the same time on one of the following rights. The
important rights of the under trial prisoners on the basis of which they may avail the remedy
of Habeas Corpus are the following:

(i).Right to Equality:-

Article 14 of the Constitution of India provides that the State shall not deny to any person
equality before the law or equal protection of the laws. If the authorities exercise
discrimination against any prisoner then it is regarded as a violation of the right to equality.
By virtue of this right, all prisoners have to be treated equally andprotection of law should be
there to all in an equal measure. If the under-trial prisoners are subjected to discriminatory
treatment in the matter of trial, such as, the trial of some by ordinary courts and of some
others by special courts; or if some under-trials are provided with more facilities like
adjournments, bail etc. but others are refused such facilities then it amounts to denial of
equality.

(ii).Right to Life and Personal Liberty:-

Article 21 of the Constitution of India says, “No person shall be deprived of his life or
personal liberty except according to procedure established by law.” The scope of the right
to life guaranteed in Article 21 of the Constitution has received a wider interpretation by the
courts. It has been said that the term ‘right to life’ cannot be confined only to the taking away
of life. In an American case it was pointed out that by the term ‘life’ something more is
meant than mere animal existence. The inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of
the body, by the amputation of any other organ of the body through which the sour
communicates with the outer world. The Supreme Court of India has upheld this statement in
Kharak Singh v. State of Uttar Pradesh9 and has said, “Article 21 means not merely the
right to the continuance of a person’s animal existence, but a right to the possession of his
organs his arms and legs.”

6
Vidya Verma v. Shivarain, (1956) S.C.A. 357; Ikram v. State of U.P., A. 1964 S.C. 1625 (1630); Veena v.
Varinder, A. 1982 S.C. 792.
7
Lallubhai v. Union of India, .A. 1981 S.C 728 (para.13)
8
Kavita v. State of Maharashtra, A. 1981 S.C. 2084.
9
Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295

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In Maneka Gandhi v. Union of India10, the Supreme Court has widened the scope of the
words ‘personal liberty’ observing that “the expression personal liberty’ in Article 21 is of the
widest amplitude and it covers a variety of rights which go to constitute the personal liberty
of man and some of them have been raised to the statutes of distinct fundamental rights and
given additional protection under Article 19. In this case, the Court gave a new dimension to
Article 21. It held that the right to life’ is not merely confined to physical existence but it
includes within its ambit the right to live with human dignity. Elaborating the same view the
Court in Francis Coralie v. Union Territory Delhi11said that the right to live is not
restricted to mere animal existence. It means something more than just physical survival. The
right to live is confined to the protection of faculty or limb through which life is enjoyed or
the soul communicates with the outside world but it also includes the right to live with human
dignity

(iii).Right against Double Jeopardy:-

This safeguard is guaranteed in the Constitution of India and in the Statute like the General
Clauses Act, and the Code of Criminal Procedure. As far as the Constitution is concerned,
Article 20 (1) says, “No person shall be prosecuted and punished for the same offence more
than once”. The General Clauses Act, 1897 provides, “When an act or omission constitutes
an offence under two or more enactments then the offender shall be liable to be prosecuted
and punished either of these enactments but shall not be liable to be punished twice for the
same offence.” Sec.300 of the Code of Criminal Procedure enacts the rule that “A person
who has once been tried by a court of competent jurisdiction for an offence and convicted or
acquitted of such offence shall, while such conviction or acquittal remains in force not be
liable to be tried against for the same offence, nor on the same facts for any other offence for
which a different charge from the one made against him might have been made under sub-
section 1 of Section 221 or for which he might have been convicted under sub-section 2,
thereof.”

(iv).Right against Self-Incrimination:-

Article 14 of the International Covenant on Civil & Political Rights says, “In the
determination of any criminal charge against him everyone shall be entitled to the following
minimum guarantees, in fully equality, not to be compelled to testify against himself or to
confess guilty.

Article 20 (1) of the Constitution embodiesthis right in the following provisions: “No person
accused of an offence shall be compelled to be a witness against himself”. This right is
against compulsion ‘to be a witness’. To be a witness means making of oral or written
statements in a court by a person accused of an offence. In Nandini Sathpathi v. P.L. Dani12
the Supreme Court observed that the rule against self-incrimination contemplated by Article
20 (3) or Sec.161 (2) of the Code of Criminal Procedure is not confined to a particular
offence regarding which the questioning is done but extends to other offences in respect of
which the accused has reasonable apprehension from his answers.

(v). the Right to Legal Aid:-

10
Maneka Gandhi v. Union of India AIR 1978 SC 597 p. 619
11
Francis Coralie v. Union Territory Delhi AIR 1978 SC 597
12
Nandini Sathpathi v. P.L. Dani AIR 1977 SC 1025

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 In Sheela Barse v. State of Maharashtra13 the Supreme Court said, “It is the constitutional
right of every accused person who is unable to engage a lawyer and secure legal service on
account of reasons such as poverty, indigence situation, the State is under a mandate to
provide a lawyer to an accused person if the circumstances of the case so require.”

(vi).Right to Speedy Trial:-

In A.R. Antulay v. R.S. Nayak14 the Supreme Court upon a review of several decisions of the
Supreme Court of the United States of America and full Bench of the Supreme Court of India
expressly affirmed the principles of speedy trial enunciated earlier in different cases. It was
thus held that Article 21 declares that no one shall be deprived of his life or liberty except in
accordance with procedure prescribed by law.”

 Conclusion :

The Supreme Court of India which is called as protector of constitution has played a
wonderful role since 1950 to protect the fundamental rights granted to the citizens of India. It
has adopted and implemented new dimensions for protection than to restrict it up to the
traditional aspects. Thus, the judiciary has made the statements true given by Dr Ambedkar as
he considered “Article 32 to heart and soul of the constitution”. Justice Krishna Iyer once
quoted that “Indian Supreme Court is the most powerful Supreme Court of the world”. No
doubt, the Court has made this statement also true, though Justice Krishna Iyer considered
powers of the Court, but the Court by using the powers has expanded the scope of
fundamental rights for its true protection. The Supreme Court has not just considered to
maintain the supremacy of the constitution, but has considered the spirit of the constitution.

 Biblography

1. http://ijlljs.in/judicial-review-of-legislative-actions-a-critical-study-of-the-
writ-of-habeas-corpus-from-indian-scenario/
2. https://blog.ipleaders.in/writ-habeas-corpus/
3. http://www.legalservicesindia.com/article/1885/Constitutional-philosophy-of-
Writs:-A-detailed-analysis.html
4. https://www.legalserviceindia.com/legal/article-6104-writ-of-habeas-
corpus.html

13
Sheela Barse v. State of Maharashtra (1997) 4 SCC 373
14
A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531

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