HABEAS CORPUS

The concept of writ essentially originated in England, COMMON LAW

The issue of appropriate writ was always considered to be a prerogative of the
crown. One of such important prerogative writs originated in England is known as
the writ of habeas corpus. The writ of habeas corpus is also known as the "Great
Writ,"
A writ of habeas corpus is a judicial mandate to a prison official ordering that an
inmate be brought to the court so it can be determined whether or not that person
is imprisoned lawfully and whether or not he should be released from custody.
A habeas corpus petition is a petition filed with a court by a person who objects
to his own or another's detention or imprisonment.

Literally the phrase means, "You may have the body".

The primary purpose of the writ is & was to inquire into the legality of the
detention. Article 21 of the Indian constitution guarantees the right to life and
liberty to each and every citizen of the nation. Hence every citizen has a right to
fight against any illegal detention.

The writ may be addressed to any person whatever, an official or a private person
who has another person in his custody and disobedience to the writ is met with
punishment for the contempt of the court.
The Indian judiciary in a catena of cases has effectively resorted to the writ of
habeas corpus mainly in order to secure release of a person from illegal detention,
under articles 226 and 32 of the Constitution Of India, 1950
The different purposes for which the writ of habeas corpus can be issued are: (a)
for the enforcement of fundamental rights, (b) to decide whether the order of
imprisonment or detention is ultra vires the statute that authorises the
imprisonment or detention.
Therefore in the following circumstances the writ is issued by the court to which a
habeas corpus petition has been submitted:
1. When the person is detained and not produced before the magistrate within 24
hours
2. When the person is arrested without any violation of law
3. When the person is arrested under a law that is unconstitutional
4. When the detention is done to harm the person.

CASE LAW

1. The A.D.M. J abalpur vs. Shukla is the famous Habeas Corpus writ. Right to
move to the court to enforce this article was suspended under Article 359 of the
constitution when internal emergency was imposed (1975-77). The logical
question that followed whether the writ of Habeas Corpus was enforceable in
such a situation? The landmark Supreme Court case or the Habeas Corpus case
attempted to answer this question, and was the reason for the 44
th
Constitutional
Amendment in 1978. This amendment, passed unanimously, ensure that Article
21 cannot be suspended even during an Emergency.

2. In Kanu Sanyal v. District Magistrate4, while enunciating the real scope of writ
of habeas corpus, the Supreme Court opined that while dealing with a petition for
writ of habeas corpus, the court may examine the legality of the detention without
requiring the person detained to be produced before it.
3. In Sheela Barse v. State of Maharashtra, while relaxing the traditional doctrine
of locus standi, the apex court held that if the detained person is unable to pray for
the writ of habeas corpus, someone else may pray for such writ on his behalf.
4. In Nilabati Behera v. State of Orissa, the Orissa police took away the son of the
petitioner for the purposes of interrogation & he could not be traced. During the
pendency of the petition, his dead body was found on railway track The petitioner
was awarded compensation of Rs. 1, 50, 000.