In this blogpost, Sudhi Ranjan Bagri, Student, National Law Institute University, Bhopal, writes about the writ of habeas corpus, its meaning and different dimensions.


Our Constitution entails the rules and guidelines; guiding, preaching and backing all the rights available and duties imposed upon the citizens as well as the non-citizens of the nation. No provision or legal principle listed in the constitution would truly be meaningful unless a mechanism exists for its enforcement. The concept of issuance of a writ has achieved its significance as it is one such enforcement device leading to achieving the benefit of fundamental rights in their literal sense. A writ is defined as a kind of special order sealed to any authority, government or any sovereign body in furtherance of abstinence or execution of a specified act. Our constitution specifies five writs which are Prerogative Writs, meaning they can be considered as a privilege or right exclusively for a specific category or class.

Issuance of any of these five writs has to be by the way of Article 32 or Article 226 for Supreme Court and High Court respectively. Article 226 has a broader jurisdiction than that of article 32 as SC can issue writs only when there is a fundamental right infringement, on the other hand, HC can issue these in both ordinary legal rights violation and fundamental rights violation. The writs available are namely Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto.

Writ of Habeas Corpus

This writ (meaning, you may have the body) has been given the status of the most important writ out of all the five as it deals majorly on the liberty and justice of an individual. It is issued in matters when there is a need to produce the detenu before the court so as to judge the preconditions and dimensions of his arrest. The writ refers to a legal procedure which prevents the government to hold a person unnecessarily i.e. without any just cause and provides for the explanation given by the detainee to the court of law regarding the grounds of the detention of the detained person.

The writ thus became a means of testing the legality of detention and in this form, it may be regarded as the immediate ancestor of the modern writ of habeas corpus. The major object of this writ is that it provides for a prompt and effective remedy against any restraint which is illegal and unreasonable, and its sole purpose lies in the enforcement of personal freedom and right of liberty. Personal liberty being the very essence carrier of our Constitution needs to be well taken care of, and hence writ of habeas corpus has proven itself as one of such steps towards establishing of civil or personal liberty protection.

Different dimensions of the writ of Habeas Corpus

Few important aspects relating to this writ of habeas corpus are:

  • Nature of Proceedings: In determining the question that whether habeas corpus proceedings are civil or criminal in nature, it was held by the court in Narayan v. Ishwarlal[1] that it would depend on the nature of the proceedings in which the jurisdiction has been implemented.
  • Who may apply: Regarding the question of who may apply for the writ it has been stated by courts in various cases that not only the prisoner or the detained, but any other person who is aware of the merits of the case, and is acquainted with the facts and circumstances and has recognized interest in moving of such application in front of the court can apply under Art. 32, and Art. 226 of the Constitution.
  • Territorial jurisdiction: Regarding the territorial jurisdiction, Supreme Court’s jurisdiction under Article 32 extends over all the authorities; be it inside the territory of India or outside it, provided they must be under the control of the Government. Whereas, in the case of High Courts’ jurisdiction under Article 226, it applies to all the authorities lying within the control of that high court or where the cause of action arises.
  • Improper pleading: The question regarding whether the writ petition can be set aside if the pleading made is improper has been made clear by the court of law in Ranjit Singh v State of Pepsu[2] by stating that “the whole object of proceedings for a writ of Habeas Corpus is to make them expeditious, to keep them as free from technicality as possible and to keep them as simple as possible”.
  • Burden of proof: In regard to the question pertaining to upon whom the burden of proof lies, it was stated that it is the responsibility of the authority which is being questioned for unlawfully detaining a person to prove that the grounds were satisfactory enough to arrest and confine a person behind the bars. But if it is alleged by the detenu (viz. the person detained) that the order of detention is mala fide, the burden of proof is on the detenu and he has to establish it.[3]
  • New pleadings: The question regarding whether or not a new plea can be raised during the hearing of the writ petition, it has been stated that no fresh issue can be evoked during the pleadings of writs, but Habeas Corpus is an exception to this. But no such plea can be allowed if the respondent has no opportunity to rebut or controvert the plea and it may result in prejudice to the other side.[4]
  • Res Judicata: When the question of whether principle of res judicata applies in case of writ petition of Habeas Corpus, it was held that, “So far as Indian Law is concerned, it is fairly well settled that no second petition for a writ of habeas corpus on the same grounds is maintainable if an earlier petition is dismissed by the court”.[5] But this principle would not stand where the forums in which subsequent filing is there, have independent existence from one another and are entirely separate in competency and jurisdiction.
  • Alternative remedy: Habeas corpus being a writ of course or right may be refused if there is no cause shown. It, however, cannot be refused on the ground that an alternative remedy is available to the applicant.[6]
  • Validation order of detention: There may be fresh validation order of detention being passed by the government in cases when old order suffers from a formal defect or a flaw which is technical in nature. As a general rule, once an order of detention has expired, revoked or is quashed and set aside no fresh order of detention on the same facts and on the same grounds can be made.[7] If, however, new facts or fresh or additional grounds have come into existence after revocation or setting aside of the order, fresh order can be passed.[8]
  • Ex parte grant: Unless the facts and circumstances so demands or to meet the ends of justice, never can this writ be granted ex parte (i.e. for one party).
  • Disobedience of this writ: An intentional and willful disobedience of a writ of habeas corpus amounts to contempt of court.[9] This may attract punishment of imprisonment and/or property attachment for the one who committed the contempt.
  • Costs and compensation: The basic purpose behind the issuance of this writ is to secure the release of the prisoner/detenu rather than to punish the detainer. Although, there may be compensation granted and costs awarded in appropriate cases at the discretion of the court.
  • Conditions for refusal: There may be conditions under which the habeas corpus may be refused which are as follows:
  1. when the imprisonment is in nexus with the order or decision rendered by the court,
  2. when the person or authority i.e. detainer does not come under the territorial jurisdiction of the court,
  3. when the detenu has already been set free,
  4. when the detention has been validated by removal of defects,
  5. when the writ is sought during emergency situations,
  6. when the petition has been dismissed by a competent court after looking into the merits.

Preventive Detention: With the concept of Habeas Corpus comes the wide ambit of Preventive Detention Theory, which is a precautionary activity and not meant as a punishment. In other words, it is not a penalty for the past activities of an individual but is intended to pre-empt the person from indulging in future activities sought to be prohibited by the relevant statute and with a view to prevent him from doing harm in future.[10]

Further Article 22 governs the procedure for preventive detention, and only one enquiry is needed to be kept in mind i.e. regarding strict adherence to law requirements. Parliament is empowered to enact a law of preventive detention for reasons connected with

  • defence
  • foreign affairs
  • Security of India
  • Security of State
  • maintenance of public order
  • maintenance of supplies and services essential to the community.[11]

However, there may be monitoring of such detention by the way of the process of judicial review.

  • Emergency proclamation: It is held by the court of law that writ of habeas corpus would be maintainable for the enforcement of fundamental rights under Article 20 and 21 even during the emergency proclamation time.

[1] AIR 1965 SC 1818

[2] AIR 1959 SC 843, 845-46

[3] Ram Singh v. State of Delhi, AIR 1951 SC 270

[4] Arun Kumar v. State of W.B., (1972) 3 SCC 893

[5] Lallubhai Jogibhai v. Union of India, (1981) 2 SCC 427

[6] R. v. Pell, (1674) 3 Keb 279: 84 ER 720

[7] Chaggan Bhagwan v. Kalna, (1989) 2 SCC 318

[8] Ibid

[9] V.G. Ramachandran, LAW OF WRITS, Eastern Book Company, 6th ed. (2006) , p. 1078.

[10] A.K. Gopalan v. State of Madras, AIR 1950 SC 27

[11] Ibid

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