The Constitution under its Part 3 provides us citizens with Fundamental Rights. These fundamental rights are to be protected and respected by the State. If and when these fundamental rights get violated, a remedy against these are in the form of Writ Petitions. The person whose fundamental rights are violated, can go to the High Court or Supreme Court for seeking remedies.
These writ petitions can be filed under Article 226 of the Constitution in respect of High courts and under Article 32 in respect of the Supreme Court. Once a Writ petition is filed in the court, the court reviews the same and then issues the writ. It is due to this power that the Supreme Court is known as the ‘Protector and Guarantor of Fundamental Rights’.
There are five types of writs, namely, Habeas Corpus, Mandamus, Quo Warranto, Certiorari and Prohibition. This article will extensively focus on the Writ of Habeas Corpus.
What is Habeas Corpus?
This latin phrase literally means “to have the body of”. In other words, it can be said as “to produce a body”. To simply give an explanation, this writ is used to release or bring forth a person who has been held in custody. This is one of the most used writs out of all. A petition under this writ is filed when it is believed that someone is being held wrongfully.
The Indian Constitution guarantees the right to freedom under Articles 19-22. Article 19 states that all citizens have the right to move freely in the territory of India. Right to Life and Personal Liberty is guaranteed under Article 21. Thus, every citizen is entitled to live freely, as per their own wish except under any procedure established by law. This ‘procedure established by law’ refers to those instances when the State can lawfully curb the liberty of a person, such as in cases where a law has been broken. Further, Article 22 deals with imprisonment. The person in custody should know the reason for imprisonment and be produced before the magistrate in 24 hours of their arrest. If the Court finds that the detention is unreasonable, then the person should be released on immediate effect.
Where a person feels that he/she has been held unlawfully can use the remedy under Habeas Corpus. This writ can be used not just against the state, but also against the general public who may be holding the aggrieved unlawfully. Thus, the person in custody, or anyone representing them can file the writ. There are four conditions under which the writ of habeas corpus cannot be granted. These are – when detention is lawful, there has been contempt of court, if the detention is outside the jurisdiction of the court, and lastly if the detention is done by a competent court.
Important Habeas Corpus Judgements:
This was one of the most important cases coming to the Apex Court in a historical time for India. While in the State of Emergency imposed by the then Prime Minister Indira Gandhi, the question was raised, of whether writs could be filed in the State of Emergency. The very next day that the emergency was imposed, the right to approach the Supreme Court to enforce Articles 14, 21 and 22 were taken away. Immediately after this, such persons who were considered either political opponents or critics were taken into custody; without trial under the Maintenance of Internal Security Act. These included people such as A.B. Vajpayee, Jay Prakash Narayan and Morarji Desai. They then appealed to high courts challenging their detention & some even got favourable results.
Thus, the center became concerned with these high courts and went before the Supreme court under this case. It was argued by the State that it assumed supreme importance during the Emergency and had the power to take over the implementation of laws. During such a state of Emergency, the rights of the individuals to approach the Court are curtailed. They stated that Emergency does not mean the absence of law and order, rather it is the economic and military security of the country that supersedes everything.
However, on the other hand, the respondents put forth the contention that a state of Emergency does not have any effect on the enforcement of common law and statutory right of personal liberty. The respondents also stated that the Executive taking the role of legislature goes against the basic constitutional principles.
The judgement in the case was given by a 5-judge bench of the Apex Court, consisting of A.N. Ray, Hans Raj Khanna, Mirza Hameedullah Beg, Y.V. Chandrachud, and P.N. Bhagwati. This Habeas Corpus judgement has been widely criticised for favouring the State instead of standing up for individual liberty. It decided that in a state of emergency no person had the right to move to the courts for Habeas Corpus or any other writ. Detention in a state of emergency could not be challenged. It was only Justice Khanna who opposed the decision and stood with the right of individual liberty. However, the political pressure at the time was extremely intense and it cost Justice Khanna the opportunity of becoming Chief Justice. ADM Jabalpur V. Shivkant Shukla remains one of the widely criticised judgments of the Supreme Court.
The petitioner, AK Gopalan was a communist leader detained under the Preventive Detention Act, 1950. It was argued that this detention was violative under Article 19 & 21 of the Indian Constitution; the freedom of movement and of personal liberty. The petition was made directly to the Apex Court under Article 32. The petition also showed various dates since 1947 that the petitioner had been detained. He had been sentenced to imprisonment before, but the convictions were set aside. While in detention under the other order of the Madras Government, he was served with an order made under Section 3 (1) of the Preventive Detention Act, 1950.
In this case, it was questioned if the Preventive Detention Act was constitutional; if there was similarity between ‘procedure established by law’ and ‘due process of law’; and if Articles 19 & 21 were independent of each other. It was stated that personal liberty is a Fundamental Right and it is being violated. Articles 19 & 21 were to be seen as dependent on one another.
This judgement was delivered by Harilal Kania (Chief Justice), Justice M. Patanjali Sastri, Justice Mehr Chand Mahajan, Justice B.K. Mukherjea, Justice Sudhi Ranjan Das and Justice Fazal Ali. The majority judgement was in favor of the respondent, whereas Justice Ali was in the dissenting opinion. It was stated that the Act was indeed constitutional and thus, the detention of AK Gopalan was justified. The Court had interpreted Article 21 literally and that the expression procedure established by law meant any procedure which was laid down in the statute by the competent legislature that could deprive a person of his life or personal liberty.
The Chief Justice stated, “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.”
The dissenting opinion of Justice Ali was actually later upheld in a different case of Maneka Gandhi V. Union of India.
- Rudul Sha V. State of Bihar (1983)
Sha was imprisoned in 1953 for murdering his wife. Even after his acquittal in the year 1968, he was not released from imprisonment for another 14 years. When the media heard about his plight, a writ of Habeas Corpus by PIL was filed. Although Sha was released due to media influence before the hearing, he sought relief and compensation from the court. After gathering information from the State authorities, it was held that the extra 14 years was unjustified and thus, Sha received compensation and relief from the court.
A letter was written to the Apex Court regarding the condition of the women prisoners who were assaulted in custody. The writ petition was filed by the plaintiff who was a human rights activist. An investigation was done by the court for cross checking the allegations made. The investigation brought to light the allegations made which were true. It is in this case, that the court held the validity of a representative filing a writ petition in case the person detained or cannot file the same. Thus, the locus standi approach was quashed.
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The son of the petitioner was taken away by the Orissa police for interrogation. All the efforts made in order to trace him turned out to be futile. So the writ petition of habeas corpus was filed in the court. During the pendency of the petition, the dead body of the petitioner’s son was found on the railway track. The petitioner was awarded compensation for Rs. 1,50,000.
- Foreign reference: Ex parte Merryman (1861)
The petitioner Merryman resided in Maryland, an eastern region of the United States; one of the first colonies of the British in America. He was taken into custody, and imprisoned, without a warrant from any lawful authority. His lawyer then filed for a writ of habeas corpus. President Lincoln had commanded to suspend the writ of habeas corpus. After an individual was held as a prisoner, such a person was to be brought before a justice of the supreme court, to examine the imprisonment. The officer answered that he was authorized to suspend the writ and thus, suspended it in this case. Thus, Merryman argued that the president had acted outside of his constitutional authority.
It was held that the Constitution does not give a president the authority to suspend the writ of habeas corpus. The president may not take it upon himself to exercise this power even in times of emergency, tumult, or danger.
Story by Sai Kulkarni – Intern
