habeas corpus case studies dissertation



The right of personal liberty is usually guaranteed by simply Article 21 which says, ‘no person shall be miserable of his life or personal freedom except in accordance to procedure established by law. ‘ The writ of habeas ensemble has non-etheless long been celebrated as the most effective safeguard of the right to personal liberty. The jurist Albert Venn Dicey wrote that the British Habeas Corpus Functions “declare no principle and define not any rights, but are for useful purposes worth a hundred constitutional articles guaranteeing individual liberty.



Since general declarations relating to fundamental legal rights had not much value unless of course there been with us the will plus the means to enforce them, the constituent assembly showed the need and supplied the ways to enforce the fundamental rights conferred by Component III in the Constitution.[2] Document 13 (1) made almost all existing laws pro tanto void in the event that they were sporadic with primary rights and Article 13(2) made all laws passed by the express pro seja void in the event that they took away or shortened fundamental legal rights.

Articles 32 and 226 confer for the Supreme The courtroom and the Excessive Courts capabilities to issue appropriate writs for the enforcement of fundamental legal rights and for some other purpose. These kinds of provide powerful and speedy remedies to get asserting fundamental rights against laws which in turn violate them. Speaking in Article 32 (draft Artwork. 25) in the Constituent Set up, Dr . Ambedkar described the Article as the particular soul in the constitution because it provided effective remedies against violation of fundamental legal rights as simply no legislature can take away these remedies.[3]

Famous Account of Habeas Corpus

1 The english language Common Regulation

Few internet pages in English language history will be more inspiring than those relating to the writ of habeas ensemble, for they demonstrate determination of the people to protected personal liberty by a quick and powerful legal treatment. In his Contencioso Review of Administrative Action, Prof. de Cruz has presented an excellent and educational account of prerogative writs in England. He classified writs into two broad classes, writs of rights or course and prerogative writs which were not writs naturally because right cause had be shown to the satisfaction of the court why they need to issue[4]. The writ of habeas corpus was obviously a writ of right which in turn issued ex debilo justitiae when the consumer satisfied the court that his detention was unlawful[5].

Yet , the writ faced the most formidable difficulty from the Crown’s attempt to wipe out the writ altogether by managing that the exceptional command from the King was per se adequate to rationalize the commitment and detention of the subject[6]. In 1628, the Petition of Right[7] declared that this was not the law and further the Habeas corpus Work 1640 affirmed this position and gave to any person controlled of his liberty or perhaps suffering imprisonment by the command of the King or his Privy Council, the right to instant issue of a writ of habeas corpus[8]. Mentioning the writ of habeas corpus since ‘the many celebrated writ in the The english language Law, Blackstone cites the first noted usage of habeas corpus advertising subjiciendum in 1305, throughout the reign of King Edward cullen I.[9]

2 Indian Legislation

The wide principles governing writ of habeas ensemble were just like applied in England. Citing acceptance of Head of the family Herschell’s observations in Barnardo v. Honda: Gossage’s Circumstance[10] that the writ of habeas corpus is definitely remedial and not punitive, the Federal Courtroom in Basanta Chandra Ghose v. 3rd there’s r.[11], acquired repelled the applicant’s the law that each writ of habeas ensemble was given against a great order of detention, the court must determine whether that purchase was valid.

Section 491 of Cr. P. C. embodies the principle of English Rules that habeas corpus is available against unlawful detention by a public power or by a private person. In Smt. Vidya Varma v. Dr . Shiv Narayan Varma[12], the Substantial Court placed that a request under Article 32 with the Indian Constitution did not rest where the detention complained of was with a private person and not by simply or within the authority or orders of any State. Though s. 491 was disregarded in Cr. P. C. 1973, this decision would not cause any kind of practical hardship as the High The courtroom can concern writ of habeas a against against the law detention simply by private individuals under Content 226 in the Constitution.

Idea of Habeas Ensemble

The writ of habeas corpus “is the most distinguished contribution in the English prevalent law towards the protection of human liberty.[13]

1 That means

The term habeas ensemble is Latina for ‘to have the body’.[14] The writ is known in full in legal texts as habeas corpus advertisement subjiciendum or even more rarely advertisement subjiciendum ain recipiendum. The writ of habeas ensemble in the nature of an purchase calling upon the person who have detained one other to produce these before the Court, in order to allow Court find out on what ground this individual has been enclosed and to arranged him totally free if there is simply no legal legal system for the imprisonment[15] or is in breach of the method established by legislation. In India, illegality includes a violation in the Constitution by order of detention or perhaps by the rules under which the order purports to have happened.[16] It is the work of the the courtroom to issue this writ to safeguard the liberty of arbitrary and illegitimate detention.[17]

two Applicability

The writ exists for launch from detention of an person not only by State nevertheless another private individual.[18] In Sheela Barse v. State of Maharashtra[19], while relaxing the regular doctrine of locus standi, the top court kept that in the event the detained person is unable to pray for the writ of habeas a, someone else might pray pertaining to such writ on his part. Thus, an application for habeas corpus could possibly be made even by the jailed person or any stranger or a social worker.[20] The application could be made to the Supreme The courtroom and the Excessive Court under Article 32 and Content 226 with the Constitution respectively.

The writ is nevertheless not released in cases where the person against to whom the writ is desired or the person who is jailed is certainly not within the legislation of the Court docket; to secure launch of a one who has been imprisoned by the court on a criminal charge[21]; to hinder a going forward for disregard by a Court of record or by simply Parliament.[22]

three or more Basis of the writ

Blackstone has described the basis of the writ, expressing “The King is at every times entitled to have an account, why the freedom of any kind of his topics is controlled, wherever that restraint can be inflicted. [23] The basis in the writ sits in identification of the individual right of man to personal liberty which has been known international in numerous human rights instruments and also the article 21 years old of the Cosmetic of India. No person can be deprived of his freedom except in accordance with law. The writ of habeas ensemble entails an obligation on the executive and judiciary to protect freedom of residents and also conscientiously exercise purchases of detention.

Evolution Of Writ of Habeas Corpus in India

The safety ensured by writ of habeas corpus has been developed by the American indian judiciary in a catena of cases simply by effectively resorting to the writ of habeas corpus largely in order to secure release of the person coming from illegal detention.

1 Pre-Constitution Period

Before the enforcement with the Constitution of India, the concept of Habeas Corpus was widely recognized by process of law and exercised zealously to safeguard rights of folks wrongly enclosed.

In Uk India, the energy to issue writs had been conferred for the Supreme Process of law of Calcutta, Madras and Bombay by way of a respective events. This electric power was passed down by their heir High Legal courts established within the High Tennis courts Act, 1861. In 1898, S. 491, Cr. L. C. took away the power of these High Courts to issue writs of habeas corpus[24] replacing the writs simply by directions in the nature of habeas ensemble. In 1923, by a great amendment of s. 491, the power to issue guidelines was conferred also on the other High Courts.

Even though the correct of personal liberty had not been reported as fundamental, yet the tennis courts recognized the concept of habeas ensemble as an essential means to guarding people from illegal detention. In Kasturchand v. Sarkar[25] where a communism political head had been imprisoned and held as soon as having been released about completion of the detention of 6 months, Proper rights Nawal Kishore and Justice Bapna with the Rajasthan High Court selected 20 January 1950 that ‘if an order of detention is established not to have been completely made in conformity with the power conferred, the High The courtroom will have power to order launch of the person detained by simply reason of such order’. The the courtroom cited statement of Key Justice Ghosh in Chiranjilal Agarwal sixth is v. Chief Admin[26] that ‘cases in which plea of malafide is taken¦.. the court docket has seemed beyond the proper execution of the buy and provides interfered when it found the detention was illegal or improper. ‘

Before the decision in In re Hastings (No. 2)[27] and In re Hastings (No. 3)[28] the lovely view taken in Britain was that a person trying to get habeas ensemble was free to go via judge to judge and by court to court which view was pressed for the courts in India[29]. In In re Prahlad Krishna Kurane[30] Chief Proper rights Chagla declined that view and kept that although Article 226 restored to the High Courtroom the power to issue the regular law writ of habeas corpus, the power was trusted to the High Court and wherever a judge practiced that electric power, the order dismissing the application was the order of the courtroom and no further application could possibly be entertained by the court.

Subsequently, Chief Proper rights Subha Rao observed in Ghulam Sarwar sixth is v. Union[31] that the petitioner a new right to apply at the Great Court to get Habeas Ensemble even following his petition had been dismissed by the Excessive Court. Nevertheless , Justice Sarkaria and Rights Reddy stated the view in Lallubhai Jogibhai v. Union[32] after a overview of authorities the fact that principle of constructive ers judicata is entirely inapplicable to illegal detention and bar a subsequent request for a writ of habeas corpus below article thirty-two of the Cosmetic.


When the constitution was adopted about 26 By 1950, proper of personal liberty was certain under document 21 and deprivation on this right required writ legal system under Content 32 and 226. Additional, the habeas corpus was recognized as remedial and not punitive, that the writ of habeas corpus was obviously a writ intended for determining the legality or perhaps illegality of detention and never for punishing a person for a past offence[33]. In Birma Nai v. The State[34], Justice Ranawat and Justice Mehta with the Rajasthan Substantial Court (Jaipur Bench) decided on 17 March 1950 that treaties between states which in turn restrict fundamental rights in the subjects assured by the metabolism are not binding unless similar are expressly sanctioned by legislature of the state. Further more it was noticed by Chief Justice Nawal kishore and Justice Bapna of the Rajasthan High Courtroom in Haqiqatullah Khan v. The State[35] chosen 7 August 1950 that detention of the person below law of state legislature which is in contravention of the Constitution is definitely illegal.

In the earlier decisions, the Great Court gave a narrower connotation towards the expression personal liberty found in Article twenty-one. The initially case where the Indian Best Court was called upon to interpret Portion III in the Constitution was obviously a. K. Gopalan v State of Écharpe[36] wherein the petitioner, an innovator of the Communism Party was detained beneath the Preventive Detention Act 1950. Decided within a year with the adoption with the Constitution, the Supreme Courtroom took a literal perspective of the expression ‘personal liberty’ and kept that since the word ‘liberty’ was skilled by the word ‘personal’ that has been a less wide concept, the expression ‘personal liberty’ meant simply the liberty with the physical body system, that is, freedom from detain and detention from fake imprisonment or perhaps wrongful confinement. It was observed that Document 21 was attracted just in cases of ‘deprivation’ in the sense of ‘total loss’ and that it had no application in case of an established limit upon right to move readily, which received Art. nineteen (1)(d).

After, in Kharak Singh v. State of U. S.[37] the courtroom did not the actual above limited interpretation of the term ‘personal liberty’, and held that ‘personal liberty’ is used in Article 21 years old as a compendious term to incorporate within by itself all the types of rights which will go to make up the personal freedom of a person other than these dealt with inside the several nature of Content 19 (1). In Kanu Sanyal sixth is v. District Justice of the peace[38], whilst enunciating the actual scope of writ of habeas corpus, the Supreme Court opined that while coping with petition for writ of habeas corpus, the court may take a look at the legitimacy of the detention without requiring anyone detained to get produced just before it.

It is just a striking characteristic of the development of Constitutional rules of India that after a good struggle which will maybe said to have started out tangibly seeing that 1971, the minority watch in Gopalan’s case[39] is at a triumph in the 7 judge decision in Maneka Gandhi v. Union of India[40], in which the Supreme Court expanded the horizons from the expression personal liberty and gave it the widest possible which means. The Court held, ‘the expression ‘personal liberty’ in Article twenty one is of the widest amplitude and it covers various rights which go to make up the personal liberty of a man and some of them have been raised to the position of distinct fundamental legal rights. ‘

several Personal Freedom and Crisis

Post the declaration with the emergency of 1975, Content articles 14, 21 and twenty two were hung and the Maintenance of Internal Security Act the year of 1971 (MISA) was amended conferring extraordinary electrical power on the federal government to detain any person without trial. The main question which will arose if the writ of habeas corpus under Document 226 could possibly be issued to discharge a detenu on the ground that his detention was inconsistent with the provisions of the MISA or was malafide. Referring Supreme Court’s pronouncement in Makhan Singh v. State of Punjab[41], the different High Courts held that such pleas couldn’t end up being affected.

Nevertheless , in ADM, Jabalpur sixth is v. S. Shukla[42], popularly known as habeas corpus circumstance, the Best Court organised that Article 21 was the sole repository of the directly to life and private liberty and therefore. If t5he right to push any the courtroom for the enforcement of these right was suspended by the Presidential Order under Article 359, the detenu may have no positionnement standi to a writ request for difficult the legitimacy of his detention. In Union of India sixth is v. Bhanudas Krishna Gawde[43] the Supreme Court while reinterating the majority look at in ADM, Jabalpur versus. S. Shukla further broadened the attract of the Usa president Order given on June 27, 75 to their ultimate summary.

Such a wider meaning given to Article 359 triggered the refusal of the appreciated right to personal liberty guaranteed to the people. Experience proven that during emergency of 1975 the essential freedom with the people had lost almost all meaning. To ensure it must certainly not occur again, the Cosmetic (44th Amendment) Act 1978 amended the content 359 to the effect that during procedure of the aveu of emergency, the fix for the observance of the critical right assured by Document 21 would not be suspended under a Usa president Order.

Habeas Corpus And Preventive Detention

The Union Parliament plus the State Legislatures are vested with power to make laws providing intended for preventive detention under Entrance 9 List I of Seventh Plan and Entrance 3 in List III of the Seventh Schedule respectively. Legislations under preventive detention include Repair of Internal Secureness Act year 1971, The Conservation of Forex and Prevention of Smuggling Activities Take action 1974 (COFEPOSA), National Security Act 80 (NSA), Reduction of Black-marketing and Maintenance Of Supplies Of Essential Commodities Act 1980, Terrorist and Disruptive Actions Act 1985 (TADA). Document 22 ensures safeguard against arrest and detention produced arbitrarily. Preventive detention being obviously a restraint of private liberty by Executive, habeas corpus might lie about two-fold environment Non-constitutional and Constitutional.

In Kasturchand sixth is v. Sarkar[44], the Rajsthan High Court docket observed that the Rajasthan Open public Security Code gave two valuable legal rights to the detenu firstly to learn the cause of detention and subsequently to make a portrayal questioning quality of detention. If the reasons of detention are hazy and unsatisfactory, the the courtroom shall purchase release of the detenu. In Basheshardayal sixth is v. Emperor[45], Justice Tejasing held that in spite of H. 16 from the Defence of India Work that no order built under this act should be called involved, the High Court was quite competent to determine perhaps the arrest have been in bad trust and hence a great abuse of power.

The principle of recognizing the strength of the Excessive Court to inquire in detention cases under reliability laws have been accepted in Teja Singh v. Emperor[46], Vimlabai Deshpande versus Emperor[47] and Vasudev Anant Shastri versus Emperor[48]. Thus, even in pre-constitution days the courts known writ of habeas ensemble in detention under protection laws that can be accepted in lots of judgments of Supreme Court like Dyal Deorah, Prabhu v. District Magistrate, Kamrup[49] and Hamdani Satar Habib v. Dilip Singhji[50].


This way, writ of habeas a has been utilized effectively by the judiciary for protecting personal liberty simply by securing the release of a person from against the law custody. Nevertheless , the courtroom faces problems of right implementation from the writ by the administrative firms. The real fight lies beyond the courtroom room, it rests in resolving problems of incompetency and complacency of the administrative agencies in the government


  • Category: law
  • Words: 3147
  • Pages: 11
  • Project Type: Essay

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