Academic query

Under what circumstances can Habeas Corpus be issued in India? Can it be issued if ANY right is violated? How does Habeas Corpus, or any writ help a private or public individual?



The Writ Jurisdiction of Supreme Court can be conjured under Article 32 of the Constitution for the infringement of central rights ensured under Part – III of the Constitution. Any procurement in any Constitution for Fundamental Rights is negligible unless there are satisfactory shields to guarantee requirement of such procurements. Since the truth of such rights is tried just through the legal, the protections expect much more significance. Moreover, implementation additionally relies on the level of autonomy of the Judiciary and the accessibility of applicable instruments with the official power. Indian Constitution, as the greater part of Western Constitutions, sets out certain procurements to guarantee the authorization of Fundamental Rights. These are as under:

(a) The Fundamental Rights given in the Indian Constitution are ensured against any official and administrative activities. Any official or administrative activity, which encroaches upon the Fundamental Rights of any individual or any gathering of persons, can be pronounced as void by the Courts under Article 13 of the Constitution.

(b) Likewise, the Judiciary has the ability to issue the privilege writs. These are the additional standard cures given to the residents to get their rights upheld against any power in the State. These writs are – Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto. Both, High Courts and the Supreme Court may issue the writs.

(c) The Fundamental Rights given to the residents by the Constitution can’t be suspended by the State, aside from amid the time of crisis, as set down in Article 359 of the Constitution. A Fundamental Right may likewise be implemented by method for typical lawful techniques including an explanatory suit or by method for resistance to legitimate procedures.

Nonetheless, Article 32 is alluded to as the “Established Remedy” for authorization of Fundamental Rights. This procurement itself has been incorporated into the Fundamental Rights and thus it can’t be denied to any individual. Dr. B.R.Ambedkar portrayed Article 32 as the most essential one, without which the Constitution would be diminished to nullity. It is additionally alluded to as the absolute entirety of the Constitution. By incorporating Article 32 in the Fundamental Rights, the Supreme Court has been made the defender and underwriter of these Rights. An application made under Article 32 of the Constitution in the witness of the Supreme Court, can’t be rejected on specialized grounds. Notwithstanding the endorsed five sorts of writs, the Supreme Court may pass some other suitable request. Also, just the inquiries relating to the Fundamental Rights can be resolved in procedures against Article 32. Under Article 32, the Supreme Court may issue a Writ against any individual or government inside the region of India. Where the encroachment of a Fundamental Right has been built up, the Supreme Court can’t deny help on the ground that the wronged individual may have cure in the witness of some other court or under the standard law.

The alleviation can likewise not be denied on the ground that the debated certainties must be examined or some confirmation must be gathered. Regardless of the fact that a distressed individual has not requested a specific Writ, the Supreme Court, in the wake of considering the truths and circumstances, may give the fitting Writ and may even change it to suit the exigencies of the case. Regularly, just the oppressed individual is permitted to move the Court. In any case, it has been held by the Supreme Court that in social or open interest matters, any one may move the Court. A Public Interest Litigation can be recorded in the witness of the Supreme Court under Article 32 of the Constitution or in the witness of the High Court of a State under Article 226 of the Constitution under their particular Writ Jurisdictions.


The word habeas corpus literally means to have a body. A writ of habeas corpus is in the nature of an order upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been confined and set him free if there is no legal justification for the imprisonment.

The writ was regarded in England as a foundation of human freedom and British citizen insisted upon this privilege wherever he went whether for business or colonization. This is how it founded a place in the constitution of the United States when the British colonies in America won their independence and established a new state under the U.S. Constitution. In India the power to issue a writ of habeas corpus is vested only in the Supreme Court and the High Court.

Habeas corpus is the writ which was visualized as an effective means to provide a quick remedy to a person who has lost his personal liberty without any legal justification. Therefore, it cannot be used for complaining against past illegal detention. But the Supreme Court in India has expanded its dimension and compensation is being paid not only for past illegal detention but also for loss of life. Initially, the state was asked to pay special cost to the prisoner.

This happened in Rudul Shah v. state of Bihar. But now the payments are ordered to be given as compensation. This is probably done for the reason that in a regular civil suit for damages for false imprisonment, the state may successfully put the defence of Sovereign immunity.

Detention should not contravene Article 22, as for example, a person who is not produced before a magistrate within 24 hours of his detention is entitled to be released. The power of detention vested in an authority, if exceeded, abused or exercised mala fide makes the detention unlawful. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus has been described as a writ of right is grantable ex debito justitae.

When physical restraint is put upon a person under a law there is no right to habeas corpus unless the law is unconstitutional or the order is ultra vires the statute.

Diverse measurements of the writ of Habeas Corpus

Couple of essential perspectives identifying with this writ of habeas corpus are:

  • Nature of Proceedings: In deciding the inquiry that whether habeas corpus procedures are affable or criminal in nature, it was held by the court in Narayan v. Ishwarlal that it would rely on upon the way of the procedures in which the locale has been executed.
  • Who may apply: Regarding the topic of who may apply for the writ it has been expressed by courts in different cases that the detainee or the confined, as well as whatever other individual who knows about the benefits of the case, and is familiar with the actualities and circumstances and has perceived enthusiasm for moving of such application before the court can apply under Art. 32, and Art. 226 of the Constitution.
  • Regional ward: Regarding the regional purview, Supreme Court’s locale under Article 32 stretches out over every one of the powers; be it inside the domain of India or outside it, if they should be under the control of the Government. While, on account of High Courts’ purview under Article 226, it applies to every one of the powers existing in the control of that high court or where the reason for activity emerges.
  • Inappropriate arguing: The inquiry in regards to whether the writ appeal can be put aside if the arguing made is despicable has been clarified by the courtroom in Ranjit Singh v State of Pepsu by expressing that “the entire object of procedures for a writ of Habeas Corpus is to make them quick, to keep them as free from detail as could be expected under the circumstances and to keep them as straightforward as could reasonably be expected”.
  • Weight of confirmation: with respect to the inquiry relating to upon whom the weight of evidence falsehoods, it was expressed that it is the obligation of the power which is being addressed for unlawfully keeping a man to demonstrate that the grounds were sufficiently attractive to capture and restrict a man behind the bars. Be that as it may, in the event that it is asserted by the detenu (viz. the individual kept) that the request of confinement is mala fide, the weight of confirmation is on the detenu and he needs to set up it.
  • New pleadings: The inquiry in regards to regardless of whether another supplication can be raised amid the knowing about the writ appeal, it has been expressed that no crisp issue can be evoked amid the pleadings of writs, however, Habeas Corpus is a special case to this. In any case, no such supplication can be permitted if the respondent has no chance to disprove or dispute the request and it might bring about bias to the next side.
  • Res Judicata: When the topic of whether standard of res judicata applies if there should arise an occurrence of writ request of Habeas Corpus, it was held that, “So far as Indian Law is concerned, it is genuinely all around settled that no second appeal to for a writ of habeas corpus on the same grounds is viable if a prior appeal is released by the court”.[5] But this guideline would not stand where the gatherings in which consequent recording is there, have autonomous presence from each other and are altogether separate in competency and locale.
  • Elective cure: Habeas corpus being a writ obviously or right might be denied if there is no cause appeared. It, notwithstanding, can’t be declined on the ground that an option cure is accessible to the applicant.
  • Acceptance request of detainment: There might be crisp approval request of confinement being gone by the administration in situations when old request experiences a formal deformity or a defect which is specialized in nature. When in doubt, once a request of detainment has lapsed, denied or is suppressed and put aside no crisp request of confinement on the same realities and on the same grounds can be made. If, be that as it may, new truths or new or extra grounds have appeared after repudiation or putting aside of the request, new request can be passed.
  • Ex parte stipend: Unless the actualities and circumstances so requests or to meet the finishes of equity, never would this be able to writ be allowed ex parte (i.e. for one gathering).
  • Insubordination of this writ: A deliberate and persistent noncompliance of a writ of habeas corpus adds up to scorn of court. This may draw in discipline of detainment and/or property connection for the person who conferred the hatred.
  • Expenses and remuneration: The essential reason behind the issuance of this writ is to secure the arrival of the detainee/detenu as opposed to rebuff the detainer. Despite the fact that, there might be pay allowed and costs recompensed in proper cases at the tact of the court.
  • Conditions for refusal: There might be conditions under which the habeas corpus might be denied which are as per the following:
  1. at the point when the detainment is in nexus with the request or choice rendered by the court,
  2. at the point when the individual or power i.e. detainer does not go under the regional ward of the court,
  3. at the point when the detenu has as of now been without set,
  4. at the point when the detainment has been accepted by expulsion of deformities,
  5. at the point when the writ is looked for amid crisis circumstances,
  6. at the point when the request has been released by a capable court subsequent to investigating the benefits.


  • Preventive Detention: With the idea of Habeas Corpus comes the wide ambit of Preventive Detention Theory, which is a preparatory action and not implied as a discipline. At the end of the day, it is not a punishment for the past exercises of an individual, however, is expected to pre-empt the individual from enjoying future exercises looked to be denied by the important statute and with a perspective to keep him from doing hurt in future.

Further Article 22 oversees the strategy for preventive detainment, and one and only enquiry is should have been remembered i.e. as to adherence to law prerequisites. Parliament is enabled to sanction a law of preventive confinement for reasons associated with:

  1. barrier
  2. outside issues
  3. Security of India
  4. Security of State
  5. support of open request
  6. support of supplies and administrations fundamental to the community.

In any case, there might screen of such detainment by the method for the procedure of legal audit.

  • Crisis declaration: It is held by the courtroom that writ of habeas corpus would be viable for the requirement of key rights under Article 20 and 21 notwithstanding amid the crisis decree time.

When Habeas Corpus May Lie

The writ of habeas corpus is available as a remedy in all cases of wrongful deprivation of personal liberty. It is a process for securing the liberty of the subjects by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. The Constitution confers ample powers on the Supreme Court and all High Courts in the matter of issue of a writ of habeas corpus.

The right to move the Supreme Court under Article 32 for the enforcement of fundamental rights is itself a fundamental right, while the right to move a High Court under Article 226, though not a fundamental right, is still a constitutional right.

When Habeas Corpus Does Not Lie

In the following cases, a writ of habeas corpus will not lie and will be refused by a court:


  • Where the person or authority against whom habeas corpus is sought is not within the territorial jurisdiction of the court;
  • Where imprisonment or detention of a person is in accordance with a decision rendered by a court of law or by an authority in accordance with law;


Whether Writ Lies In National Emergency

A National Emergency made be declared under Article 352 of the Constitution. Prior to 1978, i.e. before the 44th Amendment, the president could suspend and fundamental right including the right of personal liberty (Article 21).

When Article 21, was so suspended, it was held in Addl. District Magistrate, Jabalpur v. Shukla, that an order of preventive detention could not be challenged even if it violated the parent Act (i.e, the Act relating to preventive detention). The 44th Amendment, 1978, has provided that Article 21, relating to personal liberty cannot be suspended even during an emergency. In this way personal liberty has been strengthened and the writ of habeas corpus retains its potency even during an emergency.

Rule Nisi

Nisi means Unless. At the first hearing of an application for a writ of habeas corpus, if the court is prima facie satisfied that the prayer deserves to be granted, it may issue rule nisi and call upon the person or authority against whom such writ is sought on a returnable day to show cause as to why rule should not be made absolute and he prisoner should not be released from detention or confinement.

Res Judicata

When the topic of whether standard of res judicata applies if there should arise an occurrence of writ request of habeas corpus, it was held that, So far as Indian Law is concerned, it is genuinely all around settled that no second appeal to for a writ of habeas corpus on the same grounds is viable if a prior appeal is released by the court.


It is well settled that strict rules of pleadings do not apply to an application for a writ of habeas corpus. The Supreme Court as also High Court have consistently shown great anxiety of personal liberty and have never refused to grant relief to the applicant merely on the ground of imperfect pleading.

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