WRIT OF HABEAS CORPUS

 

INTRODUCTION 

The term habeas corpus is a Latin term which translates into the term “you must have the body”.  However, recent developments of law suggest that the writ of habeas corpus includes the  production of the body of the person alleged to be unlawfully detained is not essential. 

Habeas corpus is a writ issued by the Supreme Court or the high court and is a judicial order by  which a person was confined by any public or private agency may secure his release. The writ of  habeas corpus can exist in the form of an order to call upon the person in whose confinement a  person is to let the court know the legal justification for detention and in the absence of such  justification, to release the person from his detention or confinement. The advantage of this writ is  observed through its effectiveness in securing the release of a person illegally detained or confined. 

In deciding the inquiry that whether habeas corpus procedures are affable or criminal in nature, it  was held by the court Narayan v. Ishwarlal that it would rely on upon the way of the procedures  in which the locale has been executed. 

The writ of habeas corpus can be traced to the common law system. It was true that the writ of  habeas corpus that is present at the time has developed or evolved out of the prerogative writ of  ad subjiciendum by which people could secure their release from illegal detention in the jails. 

WHO CAN FILE A WRIT OF HABEAS CORPUS 

Any person can file a writ of habeas corpus on behalf of any other person who is detained. Also,  the detained person himself can apply for the writ of habeas corpus. This petition for writ of habeas  corpus states that such writ of habeas corpus, should be supported by an affidavit which states the  facts and circumstances of detention and states the reasons as to why the prisoner is unable to make  an application where relevant. 

With regards to the case of a minor, a petition for writ of habeas corpus can be filed by any person  who is entitled to a minor custody. In case there is no such person, any other person may file such  a petition.

In the case of Ichhu Devi v. Union of India, the Supreme Court held that the court does not as a  matter of practice follow strict rules of pleadings, nor does it place undue or excess emphasis on  the strict observance of the rules of burden of proof with regards issuance of the writ of habeas  corpus. The court also observed that a postcard by a pro bono publicio is sufficient for the court  to issue a writ of habeas corpus in order to examine the legality of such detention or confinement. 

It should be noted that, for the issuance of the writ of habeas corpus, it is not necessary that the  detention must only be a physical kind of control or custody or restrain, exercised by one person over the other. Any kind of control is included within the meaning of detention. So, in case where  a child is forcibly kept away from his parents, or in a case where a man is wrongly kept in  confinement in a mental hospital as a patient, or if a nun is alleged to be prevented from leaving  her convent, the court will always issue the writ of habeas corpus. 

PURPOSE FOR ISSUANCE OF THE WRIT OF ABEAS CORPUS

The purpose of issues of the writ of habeas corpus can be briefly enumerated as follows: 

1. Testing the regularity of detention under preventive detention laws and any other law. 2. Securing custody of minor 

3. Securing custody of a person alleged to be a lunatic 

4. Securing custody of a partner in marriage 

5. Testing the Regularity of detention for a breach of privilege by the house 6. Testing the breach of regularity of detention by the executive during emergency 7. The testing the regularity of detention and the court-martial. 

THE WRIT OF HABEAS CORPUS IN INDIA 

Justice Krishna Iyer, in the case of Sunil Batra 2 v Delhi Administration, AIR 1980 SC 1579 provided different grounds, which are also applicable for the issuance of the writ of habeas corpus.  In this case, the writ of habeas corpus was famously filed by a fellow convict through a letter which  was given directly to the judge justice. Krishna Iyer treated this letter as a petitioner’s petition of  writ of habeas corpus filed on behalf of Prem Chand even though this letter did not demand his 

release from jail. This letter also described the inhuman torture of the fellow convict. Just as  Krishna Iyerfollowed a series of American cases where the rate of hypothesis was employed for  neglect of state penal facilities like overcrowding under staffing in sanitary facilities, brutality,  constant fear of violence lack of adequate mental and medical health censorship of meal. Inhuman  isolation segregation and inadequate or non-existent rehabilitative or educational opportunities. 

The evolution of the writ of habeas corpus is quite dynamic and has made the writ coextensive with growing human rights jurisprudence. 

In England as well as in India, it is observed that 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. However, a fresh petition under Article 32 of the Constitution of India can still be filed in  the Supreme Court if the petition has been heard and rejected by the high court this therefore acts 

as an exception to the principle of rest judicata, which applies to all other writs 

Similarly, in the case of Lallubhai Jogibhai v. Union of India, the Supreme Court was of the view  that when there exists a writ petition challenging an order of and this thread 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 a the principle of res judicata. Also, consecutive res judicata also does  not apply to writ of habeas corpus as it would weaken the scope of the writ of habeas corpus, which  enjoys wide constitutional protection. 

For the writ of habeas corpus, there lies no restriction of appeal under the Supreme Court by  Article 136 of the Constitution of India against the order of the high court, granting or rejecting  the petition for the rejection. However, in England no appeal lies against the order if the petition  of Habeas corpus has been accepted. 

DENIAL OF THE WRIT OF HABEAS CORPUS 

The writ of habeas corpus are security against administrative and private lawlessness, but not  against judicial foolishness. Thus, if a person has been imprisoned under the order of conviction  pass by a court, the writ of habeas corpus cannot be granted the general procedure. In such a case 

would be to opt for an appeal. In case of discretion, the court may refuse the petition if there is a  special alternative remedy available. However, it is not a rule of limitation or jurisdiction. The  court can still grant the relief of writ of habeas corpus even if alternative remedies exist. With  regards to the writ of habeas corpus, the fact of detention and the constitutionality of the law can  also be challenged; this was observed in the case of AK Gopalan v. State of Madras AIR 1950  SC 27 in which the court examined the constitutionality port, examined the constitutionality of  Preventive Detention Act 1950.  

CONCLUSION 

The Constitution of India is the ultimate law of the nation, laying down laws and regulations to  safeguard people's rights and impose obligations on them. This extensive literature is regarded as  the curator and protector of the fundamental rights granted to individuals. Writs is one such right  that a person can exercise. The articles of the Indian constitution are legally binding, hence the  court has autonomous jurisdiction over the topics for which writs are issued. The objective of writs  is to allow for the rapid determination of an individual's rights and to assist the person in obtaining  the benefit of those rights. 

It is possible to conclude that the right to writs is one of the rights that a person has. The articles  of the Indian constitution are legally binding, hence the court has autonomous jurisdiction over the  topics for which writs are issued. The objective of writs is to allow for the rapid determination of  an individual's rights and to assist the person in obtaining the benefit of those rights. 

The writ of habeas corpus is the most essential writ accessible to an individual because it allows  him to decide his right to liberty. It serves as a corrective action, ensuring that the imprisoned  individual is released from illegal incarceration. However, it does not free anybody of obligation.  It requires legitimate grounds for custody and safeguards the person from any kind of ill-treatment  or discrimination by the authority that detained them. The judiciary is employing this writ in an  efficient manner to protect a person from wrongful imprisonment.