Habeas CorpusRight to Constitutional Remedy

Contents

Introduction

‘You May Have The Body’ – The Main Concept of Habeas Corpus

When the Supreme Court struck down the Habeas Corpus

Kanu Sanyal v. District Magistrate

Introduction

Habeas Corpus is considered as the base of personal liberty. By the writ of Habeas Corpus the

Court makes order to produce a detainee before the appropriate courts so that legality or

otherwise of such detention may be ascertained. If the detainee has been arrested unlawfully, the

Court may order to set him free.

The concept of writ essentially originated in England & to issue appropriate writ was always

considered to be a prerogative of the crown. One of such important prerogative writs originated

in England is known as the writ of habeas corpus.

The writ of habeas corpus has always been looked upon as an effective means to ensure release

of the detained person from the prison. It must be emphasized that the primary purpose of the

writ is & was to inquire into the legality of the detention .However, even when writ of habeas

corpus is issued, it does not automatically exonerate the detained person from liability. It merely

ensures his release from the prison & it does not have any bearing on his guilt or otherwise.

The Indian judiciary in a catena of cases has effectively resorted to the writ of habeas corpus

mainly in order to secure release of a person from illegal detention. Personal liberty has always

been considered a cherished value in India & the writ of habeas corpus protects that personal

liberty in case of illegal arrest or detention. As personal liberty is so important, the judiciary has

dispensed with the traditional doctrine of locus standi. Hence if a detained person is not in a

position to file a petition, it can be moved on his behalf by any other person. The judiciary while

going one step further, has also dispensed with strict rules of pleadings. The increasing scope of

writ of habeas corpus may be explained with the help of following cases decided by the Indian

judiciary.

Habeas corpus is a protection against illegal confinement, such as holding a person without

charges, when due process obviously has been denied, bail is excessive, parole has been granted,

an accused has been improperly surrendered by the bail bondsman, or probation has been

summarily terminated without cause. Historically called "the great writ," the renowned scholar of

the Common Law, William Blackstone called it the "most celebrated writ in English law."

‘You May Have The Body’ – The Main Concept of Habeas Corpus

The concept of writ essentially originated in England & to issue appropriate writ was always

considered to be a prerogative of the crown. One of such important prerogative writs originated

in England is known as the writ of habeas corpus.

The writ of habeas corpus has always been looked upon as an effective means to ensure release

of the detained person from the prison. A habeas corpus petition is a petition filed with a court by

a person who objects to his own or another's detention or imprisonment. The petition must show

that the court ordering the detention or imprisonment made a legal or factual error

However, even when writ of habeas corpus is issued, it does not automatically exonerate the

detained person from liability. It merely ensures his release from the prison & it does not have

any bearing on his guilt or otherwise.

In the case of the Additional district Magistrate of Jabalpur v.Shiv Kant Shukla, popularly known

as the Habeas Corpus case, which came up for hearing in front of the Supreme Court in

December 1975. Given the important nature of the case, a bench comprising the five seniormost

judges was convened to hear the case.

The bench opined in April 1976, with the majority deciding against habeas corpus, permitting

unrestricted powers of detention during emergency. Justices A.N RAY, PN Bhagwati

Y.V.Chandrachud and M.H Beg, stated in the majority decision

However, Justice Khanna resisted the pressure to concur with this majority view. He wrote in his

dissenting opinion:The Constitutionand the laws of India do not permit life and liberty to be at

the mercy question is whether the law speaking through the authority of the court shall be

absolutely silenced and rendered mute... detention without trial is an anathema to all those who

love personal liberty. In the end, he quoted Justice: Charles Evans Hughes

A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a

later decision may possibly correct the error into which the dissenting Judge believes the court to

have been betrayed.

Conclusion:

The roots of our Constitutionlie deep in the finer, spiritual sources of social justice, beyond the

melting pot of bad politicking feudal crudities and sublimated sadism, sustaining itself by

profound faith in Man and his latent divinity Writ of habeas corpus is the fundamental

instrument for safeguarding individual freedom against arbitrary and lawless state action.

When the Supreme Court struck down the Habeas Corpus

April 28th, 1976 is a day never to be forgotten by any of us Indians who love the pledges of

Justice and Liberty which we gave to ourselves in the Preamble of our Constitution. It was on

this day when four of the five senior most Judges of the Supreme Court (including the Hon'ble

Chief Justice) struck the first mortal blow to these cherished dreams enshrined in our

Constitution.

On this day during the Emergency the Supreme Court sank to its lowest when it decided the

infamous Habeas Corpus Case with the following conclusion:

"In view of the Presidential Order dated 27th June 1975 no person has any locus to move any

writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or

direction to challenge the legality of an order of detention on the ground that the order is not

under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is

based on extraneous considerations.

"The Presidential Order referred to was the one issued during Emergency declaring that the right

of any person to move any Court for any enforcement of the rights conferred by Articles 14, 21

and 22 of the Constitution and all proceedings pending in any Court for the enforcement of the

above mentioned rights shall remain suspended for the period during which the Proclamation of

Emergency are in force. 28th April, 2001, we complete twenty-five years of this horrific day

when four of the five senior most Judges of the Supreme Court of the world's largest democracy

could unabashedly declare that under those circumstances no one could seek the assistance of

any court in India to try and save his liberty, life or limb threatened to be taken away by the

State. A day, which produced a judgment so shameful that even Hitler would have blushed, had

he the opportunity to peruse it.

The question was simple: Despite the Presidential proclamation, can the High Court entertain a

writ of habeas corpus filed by a person challenging his detention? All High Courts that had

answered the question, had done so in the affirmative and had kept their doors open to those

unfortunate who dared risk the wrath of some petty governmental official. Against the

unanimous decision of the High Courts, four of the five senior most Hon'ble Justices of the

Supreme Court thought it fit to rule otherwise. They were the then Chief Justice A.N. Ray, along

with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. The Supreme Court had

effectively ordered the High Courts to slam shut their doors and windows.

The lone dissenting voice was that of Justice H.R. Khanna of whom the New York Times

remarked: 'surely a statue would be erected to him in an Indian city'.Justice Khanna, conscious of

his aloneness, ended his judgment with a quote:"As observed by Chief Justice Huges, Judges are

not there simply to decide cases, but to decide them as they think they should be decided, and

while it may be regrettable that they cannot always agree, it is better that their independence

should be maintained and recognized than that unanimity should be secured through its sacrifice.

A dissent in a Court of last resort, to use his words, is an appeal to the brooding spirit of the law,

to the intelligence of a future day, when a later decision may possible correct the error into which

the dissenting Judge believes the court to have been betrayed."Justice Khanna paid the price for

his dissent. He was next in line to become Chief Justice of India.

He resigned when his junior, Justice M.H. Beg, superseded him. That was justice Indira Gandhi

style. It all started with the election of Mrs. Indira Gandhi, the then Prime Minister, which had

been held to be invalid by the Allahabad High Court. Wanting to cling to the chair at any cost,

she chose to declare emergency as on 25th June 1975 - the pretext being 'internal threat' to India

Censorship muzzled the Press, which could not publish the numerous arrests of vast sections of

people. Any person who was considered to be a political threat, or who could politically voice

his opposition was detained without trial under Preventive Detention laws one of which was the

dreaded MISA (Maintenance of Internal Security Act). The opposition was silenced. The

common man terrorized.

Many who had been arrested challenged their detention by filing writs of habeas corpus under

Article 226 in various High Courts. In most High Courts, the State Governments had raised the

issue as to whether such writs were maintainable on the ground that in light of the Presidential

Order the right to file such writ was taken away. The High Courts of Allahabad, Andhra Pradesh,

Bombay, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab, and Rajasthan had all rejected the

Government's argument and held that despite the suspension of fundamental rights, a person

detained could demonstrate that their detention was not in compliance with the law (under which

he or she was detained), or that the State action was mala fide, or that there was a mistake of

identity. Having received a drubbing nine to nil, the Government decided to appeal against these

decisions to the Supreme Court. It was thus that the Constitutional bench of five Judges came to

be constituted to hear and decide the most crucial case in Indian legal history referred to in all

law reports as A.D.M. Jabalpur vs. Shukla.

Niren De, the then Attorney General began the arguments on 14th December 1975. He focused

on the aspect of 'liberty' as found in Art.21 of the Constitution. His central contention was that

since the right to move any Court had been suspended, the detenue had no locus standi and their

writ petitions would necessarily have to be dismissed. It was on the next day that Justice Khanna

was to ask the first uncomfortable question. "Life is also mentioned in Article 21 and would

Government argument extend to it also?". There was no escape. Without batting an eyelid Niren

De answered, 'Even if life was taken away illegally, courts are helpless'. [Remember the Nazi

holocaust]. The case was argued for over two months. Judgment was reserved. It was only when

an application was moved for the pronouncement of the judgment that it was read in open Court

on that dark and ignominious 28th April 1976.And so was delivered the biggest blow to the

Supreme Court, by the Supreme Court.

This one case is a glaring example of how the four wise Judges of the Supreme Court tried to

outdo themselves in being more loyal to the throne than the king himself. The final order goes

way beyond what was demanded of them by the plea of the Union of India. All the individual

judgments of Ray (C.J.), Beg, Chandrachud & Bhagwati (JJ) record in extensio the submissions

of the Attorney-General on behalf of the government wherein he made the claim that the detenue

had no right to approach the Court to challenge his detention.

They also record the concession of the Attorney-General to the effect that despite this general

ban the Courts may grant relief if the detention order is on the face of it bad, as for example, if it

is passed by a person not authorized to pass it, or if it is passed for a purpose outside those

mentioned in Section 3(1) of the MISA or if it does not bear signature at all. The Attorney

General had thus handed over to the Supreme Court the same key with which all High Courts

had earlier used to keep ajar their doors for the detenues to squeeze through and enter. The

Supreme Court, instead, preferred to throw away this key to their own self-respect. The majority

judgment, literally taken, and as understood thereafter by all High Courts, clearly directed that

detenues were to be stopped at the doors if not in the corridors of the halls of Justice.

Another shocking aspect of A. D. M. Jabalpur is that it establishes beyond doubt our Judges do

really live in ivory towers totally oblivious of the ground realities. In speaking of the Emergency

and the condition of those detained Justice Beg has this to say: "We understand that the care and

concern bestowed by the State authorities upon the welfare of detenues who are well housed,

well fed and well treated, is almost maternal." Justice Chandrachud went further in his eulogy

when he ended his Judgment stating: "Counsel after counsel expressed the fear that during the

emergency, the executive may whip and strip and starve the detenue and if this be our judgment,

even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a

diamond-bright, diamond-hard hope that such things will never come to pass."

Chief Justice Ray had the audacity to chide counsel for the detenues who brought to mind the

nazi gas chambers. He voiced his belief that people who have faith in themselves and in their

country will not paint pictures of diabolic distortion and mendacious malignment of the

governance of the country.

We will never know if any of these men ate their words when a year later on 24th May, 1977

The Times Of India reported: "The Calicut Regional Engineering student Mr. P. Rajan, 'died

while in unlawful police custody at Kakayam Police Camp on 2 March 1976, as a result of

continuous police torture with iron and wooden rollers'. This was admitted in the returns filed in

the form of affidavits by respondents, including the former Chief Minister, Mr. K. Karunakaran

before the Div. Bench of the Kerala High Court."

A special mention must be made of Justice Bhagwati the man who had a knack with words and

who knew how to use them to play to the gallery. Though Justice Khanna had held high the torch

of freedom, it was Justice Bhagwati who spoke grandiosely about liberty. It was Mark Anthony

updated for the occasion telling us how much he loved liberty, but, how much more he loved the

law. Let us read his own words: "I have always leaned in favour of upholding personal liberty,

for, I believe, it is one of the most cherished values of mankind, without it life would not be

worth living. It is one of the pillars of free democratic society. Men have readily laid down their

lives at its altar, in order to secure it, protect it and preserve it. But I do not think it would be

right for me to allow my love of personal liberty to cloud my vision or to persuade me to place

on the relevant provision of the Constitution a construction which its language cannot reasonably

bear."

Yes, his intense love for the Constitution could not permit him to read into it things which were

not there. Yet, all this he did, and much more a little later in the case of Indira Gandhi's daughter

in law, Maneka Gandhi, when the Janata Government had impounded her passport. When it

came to the then famous daughter-in-law's case, Justice Bhagwati read the Constitution like a

visionary and prophet finding within its pages and between the lines the famous principle that

laws have to be 'right, just and fair, and not arbitrary, fanciful or oppressive'. He also brought in

the theory that the soul of natural justice was fair play in action.

Last year on 25th June we brought back to mind the proclamation of Emergency being the start

of the darkest period in Indian democracy. If this were so then we should never forget that during

this dark period, the 28th April, 1976, was its blackest day. It is all the more important to

remember this day since we the people of India have grown accustomed to being ruled by

preventive detention laws where thousands are being jailed without trial. Over and above this,

Government after Government is attempting to bring in laws which put to shame both MISA and

TADA combined. The Judiciary has failed us once. If we, the people of India, forget this, we will

be condemning ourselves sooner or later to history repeating itself. So let us always remember

A.D.M. Jabalpur.

Kanu Sanyal v. District Magistrate

In Kanu Sanyal v. District Magistrate1,the court in this case held that habeas corpus was

essentially a procedural writ dealing with the machinery of justice. The object underlying the

writ was to secure the release of a person who is illegally deprived of his liberty. The writ,

declared the court is a command addressed to the person who is alleged to have another person

unlawfully in his custody, requiring him to bring the body of such person before the court in

order that the circumstances of the detention may be enquired into and an appropriate judgment

rendered upon judicial enquiry into the alleged unlawful restraint. The characteristic element of

the writ and the theory behind the whole procedure observed the court was the immediate

determination of the right of the applicant's freedom and his release when the detention is found

to be unlawful.

An application for habeas corpus can be made by any person on behalf of the prisoner as well as

by the prisoner himself, subject to the rules and conditions framed by various High Courts. The

writ of habeas corpus is an effective means of immediate release from unlawful detention

whether in prison or private custody. Physical confinement is not necessary to constitute

detention. Control and custody are sufficient Legal necessities and technicalities are no

impediments to the court entertaining the writ of habeas corpus if the basic facts are found. The

writ of habeas corpus cannot only be used for releasing a person illegally detained but it will be

also used for protecting him inhumane treatment inside the jail as stated in Sunil Batra case.

The scope of the writ of habeas corpus has considerably increased by virtue of the decision of the

Supreme Court in Maneka Gandhi v. Union of India and also by the adoption of forty-fourth

amendment to the Constitution. Since the judicial interpretation of Article 21 has extended the

magnitude of the concept of the personal liberty and the Court introduced the element -of

fairness and justness in the 'procedure established by law', now a writ of habeas corpus would lie

if the law depriving a person of his personal liberty is not fair, just and equitable.

Some cases related to the Concept of Habeas Corpus are:

In Kanu Sanyal v. District Magistrate, while enunciating the real scope of writ of habeas corpus,

1AIR 1973 SC 2684

the Supreme Court opined that while dealing with a petition for writ of habeas corpus, the court

may examine the legality of the detention without requiring the person detained to be produced

before it.

In Sheela Barse v. State of Maharashtra2, while relaxing the traditional doctrine of locus standi,

the apex court held that if the detained person is unable to pray for the writ of habeas corpus,

someone else may pray for such writ on his behalf.

In Nilabati Behera v. State of Orissa3, the Orissa police took away the son of the petitioner for

the purposes of interrogation & he could not be traced. During the pendency of the petition, his

dead body was found on railway track The petitioner was awarded compensation of Rs. 1, 50,

000.

In Malkiat Singh v. State of U.P4, the son of a person was allegedly kept in illegal custody by the

police officers. It was established that the son was killed in an encounter with the police. The

court awarded Rs. 5,00,000 as compensation to the petitioner.

Conclusion: In this manner, writ of habeas corpus has been used effectively by the judiciary for

protecting personal liberty by securing the release of a person from illegal custody

Conclusion

2AIR 1983 SC 3783AIR 1993 SC 19604AIR 1999 SC 1522

There is no specification as to who can file an application for habeas corpus before Supreme

Court or High Court. This is the only writ that entertains an application from anybody other than

a victim. Thus an application can be made by any relation or friend or any person acting in the

interest of the detenu for habeas corpus.

An application for habeas corpus can be made by any person on behalf of the prisoner as well as

by the prisoner himself, subject to the rules and conditions framed by various High Courts. The

writ of habeas corpus is an effective means of immediate release from unlawful detention

whether in prison or private custody. Physical confinement is not necessary to constitute

detention. Control and custody are sufficient Legal necessities and technicalities are no

impediments to the court entertaining the writ of habeas corpus if the basic facts are found. The

writ of habeas corpus cannot only be used for releasing a person illegally detained but it will be

also used for protecting him inhumane treatment inside the jail too.

Bibliography

Writs-Law and Practice, M.R.Mallick

The Treatment of Prisoners Under International Law- Nigel.S.Rodley

Prevention Of Detention Act

Writs- Mulla

Constitutional Law of India- H.M.Seervai