The Writ of Habeas Corpus


The Constitution of a country serves a multi-fold purpose:

  1. The Constitution allows the citizens of the country to break away from their past, which includes political independence from not only the socio-politico-economic and intellectual control but also the political vision and ideology of the preceding form of government: totalitarianism, authoritarianism, monarchism, dictatorship, imperialism, autocratic, democracy, communism, socialism, etcetera.
  2. The Constitution outlines a future roadmap for the citizens of the country.
  3. The Constitution established a new form of governance for the country, wherein the Constitution defines and delineates the division of power and authority between the primary organs of the country. The Constitution of India creates a quasi-federal, parliamentary form of government, wherein the Constitution marks off the authority of the three organs of the democratic governance: the Legislative (inclusive of the Union Parliamentary bodies of the House of People (Lok Sabha) and the Council of States (Rajya Sabha) along with the State Legislative Assemblies), the Executive (inclusive of the President of India, State Governors, Central Government and State Governments) and the Judiciary (inclusive of the Supreme Court of India along with the respective High Courts and their Subordinate Courts like District Courts and Sessions Court; additionally, the Judiciary includes quasi-judicial bodies like the National Commission for Human Rights), wherein the three organs of the governance machinery are restricted in their respective constitutional limitation or sphere of jurisdiction. Dr Durga Das Basu held that no organ of the aforementioned government machinery should exercise any power and authority that ideally belongs to either of the remaining organs of the said machinery; additionally, he added that the Legislative is barred from delegating its powers.
  4. The final purpose of the Constitution is to protect the present and future of its citizens,wherein the Constitution confers certain immutable Fundamental Rights and Freedoms upon its citizens, residents and foreign visitors, such that the said rights must be protected by the government. The thirty-nine signatories to the oldest written constitution of the world (i.e. the United States of America): Benjamin Franklin, Jonathan Dayton, George Washington, etcetera, signed the Constitution, drafted between March 25, 1787, and September 17, 1787, at the Federal Constitution Convention. The Bill of Rights was enforced on December 15, 1791, wherein Speech, Religion, Possession of Arms, Assembly, Protection against Double Jeopardy, Protection against Self-Incrimination, Protection of Life and Liberty were held as Fundamental Rights to the citizens of the United States of America. The Constituent Assembly borrowed heavily from the Bill of Rights whilst framing the Fundamental Rights for the citizens of India within Part III of the Indian Constitution. Fundamental Rights bolster the all-round intellectual and moral development of all citizens of India; additionally, the Fundamental Rights are protected against any infringement by either the political government or an individual, such that the supreme Rule of the Law protects the citizens of India against the despotic attitudes of any authoritarian government. It is worth mentioning that the Fundamental Rights quantify the privilege of Equality, Liberty and Fraternity, which was rarely provided to Indians in its pre-independence era. In a nutshell, Part III of the Constitution of India propounds  the idea that a social democracy like India can be maintained if and only if no citizen of India relinquishes their fundamental liberties and freedoms at the feet of either a great man or a great institution. 

Article 32 of the Indian Constitution embodies the multi-fold purpose of the Constitution of India, wherein Article 32, Clause 1 entitles each citizen of India to approach the Supreme Court of India for the protection and enforcement of the said Fundamental Rights, wherein constitutional liberties cease to have any meaning if it can be easily suppressed by the actions of the State. 

The exclusion of Article 32 from the Constitution of India will jeopardize the trinity of India’s social democracy: Liberty, Equality and Fraternity, wherein the authority of judicial review under Article 32 is not only the integral part of the Indian Constitution but also the essential edict of the basic structure of the said constitution, such that the judiciary acts as the interpreter of the Indian Constitution to curb any invasive action of the Legislative and the Executive that attempts to unconstitutionally abridge the Fundamental Rights of the citizens of India. In a nutshell, the Supreme Court of India is entrusted under Article 32 to prevent the unconstitutional and despotic abuse of authority by the Legislative and the Executive, wherein the provisions under Article 32 cannot be suspended in situations unless provided by the said Constitution itself.

The Supreme Court of India uses the tool of Writ Petitions to enforce the Fundamental Rights within Part III of the Indian Constitution, wherein the provision of writ petition balances the multi-tier purpose of the Constitution of India.

What is a Writ Petition?

There are five kinds of writ petitions under Article 32, Clause 2 for the enforcement of the Fundamental Rights and Freedoms, wherein an aggrieved individual moves to the Supreme Court of India to restore and enforce their Fundamental Rights violated by actions of the State; however, the decision to grant the constitutional remedy and relief to the said individual is left at the discretion of the Supreme Court of India.

It is worth noting that the Supreme Court of India is empowered to issue a writ on its own for the enforcement of Fundamental Rights; per contra, the High Courts of India are authorized to issue writs under Article 226 of the Indian Constitution for the enforcement of not only Fundamental Rights but also Non-Fundamental Rights of the citizens of India, wherein Justice M. H. Hussain in the Smt. Imtiaz Bano v. Masood Ahmad Jafri case held that the petition by the appellant for the custody of her children is maintainable as a writ petition under Article 226 of the Indian Constitution. The scope of writ petitions is wider for the High Courts than that of the Supreme Court under Article 32 since the former uploads the enforcement of Fundamental Rights along with Non-Fundamental Rights. In its truest form, a writ is nothing more than a formal written command from the court of law or any judicial/ quasi-judicial authority to an entity to either perform or abstain from performing an act or series of acts.

For example, X has been taken into custody by Y a police officer without a warrant. All the efforts made by X’s family to know the whereabouts of X turned out to be futile. Since he was detained wrongfully by Y (the police officer), the writ of habeas corpus can be filed in court by X’s family on his behalf.

The Writ of Habeas Corpus

The Latin phrase Habeas Corpus literally translates as ‘To Have the Body,’ wherein the writ of Habeas Corpus is the oldest writ in the world that finds  its roots in Clause 39 of the Magna Carta, 1215 where the clause was added to prevent the unlawful imprisonment of innocent individuals. The Magna Carta was signed by King John, wherein the court of law was empowered to order the writ of Habeas Corpus to judicially inquire into the legality of the arbitrary arrest of an individual. The legal procedure to issue the writ was officially codified as the Habeas Corpus Act, 1679 under the aegis of King Charles II. The writ of Habeas Corpus exists within the Constitution of India, wherein unlawful arrest and detention can occur at the hands of either the State or any private institution, such that the writ can be issued by not only the Supreme Court of India but also the High Courts in the case of the former while the writ can only be issued by the High Courts in the case of the latter. The unlawful detention or arrest of an individual can happen under any one of the following circumstances:

  1. If X is arrested by the arresting agency (either the State or the private institution), then Article 22, Clause 2 of the Constitution of India mandates the arresting agency to present the arrestee before the nearest Magistrate’s Court within the first twenty-four hours of the said arrest. If X is held in custodial detention by the arresting agency for a period greater than twenty-four hours without being presented before a judicial magistrate, then the said detention is deemed to be unlawful,
  2. If X and Y are a homosexual couple who were arrested under Section 377 of the Indian Penal Code, 377 by the law enforcement agency after being caught whilst engaging in sexual intercourse on July 20, 2019, in a hotel room whilst they were holidaying in the country-side of India, then the custodial detention of X and Y is unlawful since the actions of the two violate neither any legislative statute nor any law. In a nutshell, the arrest or detention of any individual for the performance or omission of an act or series of acts is unlawful under Article 20, Clause 1 of the Constitution if and only if the said performance or abstinence from performance violates neither any incumbent law nor any legislative statute.
  3. If X is arrested and subsequently detained for the performance of an act or series of acts held illegal under certain legislative statute or law, then the said detention is deemed to be unlawful if and only if the aforementioned legislative statute or law has been labelled as unconstitutional by the Supreme Court of India.
  4. If X is arrested by the arresting agency with the malicious intention to inflict harm and pain on X, then the said detention is deemed to be unlawful.
  5. If X has been detained in custody under certain legislative statutes of Preventive Detention and if the period of the said detention exceeds three months without the same being upheld by an Advisory Committee on grounds of sufficient cause, then the detention is deemed as unlawful under Article 22, Clause 4 of the Indian Constitution.

It is worth noting that the writ of Habeas Corpus can be filed by either the detainee itself or any person on behalf of the detainee who represents the interests of the said detainee. In the Sunil Batra v. Delhi Administration & Ors. case, the five-judge constitutional bench of Justice Y. V. Chandrachud, Justice V. R. Krishnaiyer, Justice S. M. Fazl Ali, Justice P. N. Shingal and Justice D. A. Desai upheld the petition filed by the petitioner on behalf of his fellow inmate, Prem Chand. The case highlighted the inhumane, sexual torture of Prem Chand at the hands of the Head Warden, Maggar Singh; additionally, the case allowed the Supreme Court of India to liberalize the scope of the writ to include the protection of life and liberty of inmates and prisoners within a prison even if their detention is not deemed to be unlawful.

In the Prem Shankar Shukla v. Delhi Administration case, Justice V. R. Krishnaiyer upheld the petition made by the petitioner, an inmate at the Tihar Central Jail, as a valid application for Habeas Corpus, wherein the Supreme Court widened the purview of the writ further to include applications of not only formal but also informal nature from petitioners, such that a scribbled letter written by a prisoner at the Tihar Central Jail, addressed to the Supreme Court was accepted as a valid application of Habeas Corpus.

If the writ is rejected by a certain judge of the Supreme Court, then the same petitioner is barred from applying again to another judge of the Supreme Court for the same writ petition; this idea adheres to the legal principle of Res Judicata, held under Section 11 of the Civil Procedure Code, 1908. If X and Y are parties to a suit filed before a court of law and if a substantial nature of the facts of the suit/ questions of law raised within the suit has been raised in a previous suit before the same court of law by the X and Y, then the court of law is entitled to reject the fresh suit under the principle of Res Judicata since the court of law has already adjudicated upon a substantial nature of the facts of the suit/ questions of law raised within the suit in the previous suit.

On an application, the court of law is empowered to direct that the detained person be produced before it, wherein the court of law inquires into the grounds of the said detention. If the court is satisfied that such detention is illegal, then it can order the immediate release of that person.


Article 32 and Article 226 of the Indian Constitution is a constitutional remedy against the unlawful abridgement of the rights of the citizens of India by either the State or a private institution; additionally, it acts as a check on the Doctrine of the Separation of Powers by the different organs of India’s social democracy. The writ of Habeas Corpus can be used by the High Court and the Supreme Court of India to protect and enforce the constitutional rights of the citizens of India while protecting the fundamental freedoms and interests of the citizens of India. In a nutshell, the writ acts as a check against any unconstitutional and unlawful exercise of power and authority by the organs of the government machinery in India.



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