Writ of Habeas Corpus | Overview
Writ of Habeas corpus has been fundamentally important in safeguarding the rights of detainees in India. It protects citizens from arbitrary arrests, abuse by police authorities, illegal detentions, etc.
Habeas corpus has been available to citizens for protection throughout independent India’s history save for the Emergency period when it was controversially revoked. Notably, the Supreme Court had acquiesced (in its now-infamous ADM Jabalpur case) and granted judicial imprimatur to the executive action.
This article analyses the writ of habeas corpus by tracing its history, studying its scope and evolution, and evaluating landmark judgements surrounding it.
I. Introduction
Habeas corpus, a Latin phrase literally translating to “produce the body,” is a writ guaranteed under Article 32 of the Constitution of India.
This writ essentially allows any person to request a court to order the state to bring a person suspected to be illegally detained or imprisoned. The court can then assess the legality of the detention.
Article 21 protects the liberty of individuals (except according to procedure established by law) and therefore is the fount of the protections guaranteed under habeas corpus. Article 22 of the Indian constitution safeguards the rights of detenus.
Habeas corpus is one of several writs—formal written orders usually by a court—enshrined to protect the fundamental rights of citizens in Part 3 of the constitution. Both the supreme court and the various high courts can issue writs, including that of habeas corpus.
Importantly, habeas corpus can be accessed by any citizen—not just an “interested party.”
II. Scope and evolution
Habeas corpus can trace its origins to mediaeval England. The Assize of Clarendon, an act of King Henry II of England, contained protections from arbitrary detention or imprisonment.[1]
As India was heir to the English common law tradition, the Constituent Assembly enshrined it in Article 32 of the constitution.
Traditionally, habeas corpus is only issued against state authorities, especially the police. However, it also includes within its scope non-state authorities, including private persons.
As mentioned above, the scope has also been widened in India so that even a person who is not directly aggrieved can file a writ of habeas corpus. Essentially, the principle of locus standi has been dispensed with when it comes to habeas corpus writs.
In India, a court can also examine the legality of the detention or arrest without the detenu being physically present in court.
III. Landmark judgements
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A. K. Gopalan v. State of Madras, 1950[2]
A.K. Gopalan was an Indian Communist leader who was detained under the Preventive Detention Act, 1950. He was detained since December 1947 without trial. Challenging his detention, AKG, as he was popularly called, filed a habeas corpus writ petition in the court.
However, the court held in favour of the respondent in this case. In his judgement Chief Justice Kania said:
No extrinsic aid is needed to interpret the words of article 21, which in my opinion, are not ambiguous. Normally read, and without thinking of other Constitutions, the expression “procedure established by law” must mean procedure prescribed by the law of the State … To read the word “law” as meaning rules of natural justice will land one in difficulties because the rules of natural justice, as regards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard.
This judgement was criticised for being restrictive in interpreting the rights guaranteed under the constitution. Nonetheless, it is a landmark judgement in Indian habeas corpus jurisprudence.
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B Ramachandra Rao v. State of Orissa[3]
In B Ramachandra Rao v. State of Orissa, the court held: “[A habeas corpus writ] is not granted where a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal and we are not satisfied that the present is not such a case.” (emphasis supplied)
Essentially, the court declared that habeas corpus writs can only be issued in an arrest which is prima facie without jurisdiction or wholly illegal.
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Kanu Sanyal v. District Magistrate, 1974[4]
Kanu Sanyal, the petitioner, was a member of a Naxalite group allegedly involved in illegal activities. He was wrongfully detained in a Darjeeling jail for which he moved the Supreme Court.
In this judgement, the Supreme Court held that a court may examine the legality of detention without the person being present before it.
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ADM Jabalpur v. Shivkant Shukla, 1976[5]
ADM Jabalpur is perhaps the most infamous judgement of the Supreme Court. The issue at hand in ADM Jabalpur was whether writ petitions could be filed during a period of Emergency.
Delivered at the height of the Emergency declared by Prime Minister Indira Gandhi, the Court in ADM Jabalpur held that the rights under Article 21—including habeas corpus—were suspended during a period of Emergency.
The Janata Party-led government that followed the Indira Gandhi government reversed the judgement through the Forty-fourth Amendment to the Constitution. This amendment ensured that Article 21 could not be suspended even in the event of an emergency proclamation.
The Supreme Court itself in KS Puttaswamy went on to discard the ADM Jabalpur decision, with Justice D Y Chandrachud writing, “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed.”
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Sunil Batra v. Delhi Administration[6]
Sunil Batra, the petitioner, was a prisoner who wrote a letter to the court regarding the treatment meted out to a fellow prisoner of his in Tihar Jail.
In this, the Supreme Court allowed letters to be accepted by the court and converted into habeas corpus (or other) writ petitions. This has been legally termed as ‘epistolary jurisdiction’.
Further, the court expanded the provisions of habeas corpus even to prisoners, holding that even prisoners’ rights were to be safeguarded by the provisions guaranteed under the Constitution.
IV. Conclusion
This article has analysed the writ of habeas corpus, its history, evolution and scope, and landmark judgements relating to it.
Habeas corpus in India has a chequered history, with highs (marked by judgements like Sunil Batra) and lows (marked by judgements like ADM Jabalpur).
The availability of habeas corpus in Kashmir of late has also been a matter of controversy, with the Supreme Court refusing to issue habeas corpus writs to political detainees in the Valley. It is important that the writ of habeas corpus is safeguarded, and the courts uphold these protections.
[1] “Assize of Clarendon, 1166.” Yale University. Available here.
[2] A K Gopalan v. The State of Madras 1950 AIR 27.
[3] Col Dr B. Ramachandra Rao v. The State Of Orissa (1972) 3 SCC 256.
[4] Kanu Sanyal v District Magistrate, Darjeeling 1974 AIR 510.
[5] ADM. Jabalpur v. Shukla, AIR 1975, SC 1207.
[6] Sunil Batra v. Delhi Administration, AIR 1980 SC 1579.
