This article is written by Srijita Adak, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com.
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Writ is a formal written order or a letter of law which is issued under an authority by court, under its seal, to an official to act to do something. We all know that writ means a kind of remedy. Writs have been classified under 5 heads in India. They are Habeas Corpus, Mandamus, Certiorari, Prohibition, Quo Warranto. Under Article 32 Supreme Court and under Article 226 High Court can issue these writs. Also, under Article 32 the Parliament can empower any courts to issue these writs. Before 1950 only Calcutta, Bombay and Madras High Court had power to issue the writs but Art. 226 gives power to the High Court for issuing the writs.
All 5 of the writs are Latin terms. In Latin Habeas Corpus means to have a body or to produce a body and it originates in the 17th century from the United Kingdom of Great Britain. Literal meaning of a writ is “To have the body of”. Suppose you have detained someone then the court will issue ‘Habeas Corpus’ and order you to produce the body of that person which you have detained. Court will examine the legality of detention and if found illegal then it would free the detained person. Thus, a court can cause any person who has been detained/imprisoned to be physically brought before it. This writ can be issued against an individual and as well as a public authority.
Purpose and objective of Habeas Corpus
The essential purpose and object of the writ is to inquire into all manner of involuntary restraint as distinguished from voluntary and to relieve a person therefrom if such restraint is illegal. To justify the writ petition, the restrain of liberty must be actual, effective, illegal and involuntary deprivation of freedom of action.
Though the terms suggest its main purpose is to present the detained person but the presence of the person detained is only ancillary to the main purpose. If there is restraint on personal liberty of the detained person then that person should be free. The main purpose is securing the liberty of that detained person and setting the detained person free and secure liberty for him if his detention is unlawful.
The objective of this writ is speedy and effective judicial review of alleged unlawful restraint on liberty. It becomes a great constitutional privilege because the right of liberty is a fundamental right and if anyone takes away that right then you have the right to do action and if you don’t have a lawyer then the Government will provide you a lawyer. Court will give a conclusion whether the detention is justified or not.
Who may apply the writ?
Prisoner himself, any person on behalf of such prisoner and even a letter to judge may be treated as an application.
When can this writ be invoked
If a state illegally detains a person then such an individual himself or through his relatives or friends can use the writ of Habeas Corpus for the release of that person. So, whenever we use this writ the Supreme Court or the High Court asks the detaining authority on what basis the person was detained? If the basis is found to be unreasonable then the detention ends and he is to be released with immediate effect. So, this writ is used to demand production or release of a person who is illegally detained. But there are some situations where we cannot use this writ and the situations are- Detention is lawful, Contempt of court, Detention is outside the jurisdiction of the court, Detention is by a competent court.
Format of drafting the writ
Talking about the format, firstly the name of the court has to be mentioned whether it is High court or Supreme court. Under 226 only the High Court has jurisdiction and under article 32 it is the jurisdiction of the Supreme Court. After that the petition number of the year in which the case has been filed.
Then the name of the party, address, residents and also at the right-hand side we have to mention who is petitioner and who is respondent.
Then we have to mention to whom the writ has been issued. It may be sent to the Chief justice or other justice of the court. So, we have to mention that.
After that the subjects of the petition and the grounds on which we are asking for the writ as a relief. The subjects and grounds vary case to case.
Then we have to mention the note about the affidavit with the place and date at the left-hand side and at the right-hand side the signature of the petitioner.
After that the verification comes, that all the ground has been stated is best of his knowledge and belief is correct and with the place and date at the left-hand side and at the right-hand side the signature of the petitioner.
In A K Gopalan v. State of Madras, 1950, Ayillyath kuttiari Gopalan Was a communist leader. He was detained in Madras jail under preventive detention Act 1950. He challenged his detention on the ground of fundamental rights and questioned the law.
Judgement- The Court held that the preventive detention doesn’t abridge the detainee’s Right to freedom (Article 19). “The procedure established by law” in Article 21 are unique in relation to “Due process of law” as referenced in US Constitution for a similar arrangement. Article 22 empowers the parliament to legislate on the subject of preventive detention. A law that affected life and personal liberty Could not be declared unconditional Only on account that It did not follow due process of natural justice. This means that Article 21 provide no protection against Such legislative action. It was a narrow interpretation of Article 21.
In ADM Jabalpur v. Shivkant Shukla, 1976, during National Emergency (1975-1977) many people were arrested under MISA 1971 (Maintenance of Internal Security Act) and the government did not disclose the ground of arrest. So, various writ petitions of Habeas Corpus were filed in various High Court of India under article 226. Contention of the arrested persons was that they challenged the detention orders during National Emergency on the ground that it violates the principle of rule of law and the Government contended that during National Emergency article 21 is suspended by article 359 of Indian Constitution. So detained persons cannot approach the Court against violation of their fundamental rights during an emergency.
Judgement- Supreme Court held that there can’t be any standard of law other than the protected guideline of law. Court further added, Article 21 is our rule of law regarding life and liberty. Article 21 ensures protection of life and personal liberty and it can only take away by procedure established by law. So, MISA 1971 is the procedure established by law under which they have been detained. So, their detention is Constitutional. This judgement was criticized and later on the apex court admitted that it was a huge mistake. In 1978, by Janata Party Government, Article 359 was amended through 44th Constitutional Amendment and it was inserted that during National Emergency Article 20 and 21 will not be suspended.
In Sunil Batra v. Delhi Administration, 1979, a petition was admitted by the Court arising out of a letter written by Sunil Batra, a convict in the Tihar Jail to one of the judges alleging that a warden had caused a brutal bleeding injury to another convict named Prem Chand. The question of law was related to the human rights of prisoners in jail and the continued extension of fundamental rights to prisoners despite conviction.
Judgement-The Court liberalized the procedural limitations of the writ of Habeas Corpus by recognizing the right of the prisoner against excesses committed by jail authorities. Acknowledging the activist rule making role of the Courts, it is said that the Court is not a distinct abstraction omnipotent in books but an activist institution which is the cynosure of the public hope. The Bench laid down important principles regarding the status of the prisoners.
Habeas Corpus can be used to help a person who is confined or restrained by an agency of the Government. It is what’s called an extraordinary remedy and used to challenge the lawfulness of a person’s confinement or their restraint. It is essentially a command from a court with proper jurisdiction to anyone who has a person under confinement or under restraint. It applies to all confinement that is applied without lawful right or that is applied in an unapproved manner or degree. Importantly the terms confinement and restraint are interpreted broadly when talking about Habeas Corpus. This is the most impressive and most utilized writ.
The thing is we are born with liberty and if the Government locks up, detains, takes away our liberty, we have a right to ask the courts for a writ of Habeas Corpus which means the court has to tell why the person is locked up and then the government has to show why the person is being locked up. Thus, it gives individual liberty against arbitrary detention.
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