Libertatem Magazine

Everything You Need To Know About the Writ of Habeas Corpus

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The Constitution of India provides different Fundamental Rights to its citizens and residents. However, merely providing the Fundamental rights is not enough, it should be ensured that these rights are protected and enforced as well. To protect Fundamental Rights the Indian Constitution, under Articles 32 and 226, provides the right to approach the Supreme Court & High Court, respectively, to any person whose Fundamental Right has been violated. These two Articles give the court the right to issue writs to enforce the Fundamental Rights. Writ, in simple terms, is an order, direction, or warrant issued by the court against any person or the concerned government authority. There are five Writs in total, each of which has a different meaning and implication. They are, Habeas Corpus, Mandamus, Quo Warranto, Certiorari, prohibition.

The term ‘‘Habeas Corpus’’ means, “have the body”. This writ is filed requesting the release of a person who has been unlawfully detained or imprisoned. Under this writ, the Court directs the person so detained to be brought before it to examine the legality of his detention. If the Court concludes that the detention was unlawful, then it directs the person to be released immediately.

The Objective of Habeas Corpus

The writ of Habeas Corpus provides an effective remedy against the illegal detention of a person. It ensures the protection of Fundamental Right given under Article 21 of the Constitution, which talks about the “Right to personal liberty”. The main objective of this writ is to make room for a smooth judicial review of alleged unlawful detention. If the court concludes that the detention of any person is illegal and has no lawful justification then, the court will pass a formal order to set the person free. The idea of habeas corpus is to respect the liberty of a person and not to punish the detaining Authority.

In the landmark case of ADM Jabalpur v. Shivakant Shukla, Justice Khanna observed that “The writ of habeas corpus is a process for securing the liberty of the subject by affording an effective means of relief from unlawful or unjustifiable detention whether in prison or private custody”. This statement makes it clear that “habeas corpus” is one of the essential measures to ensure the enforcement and protection of Fundamental Rights. In the case of Kanu Sanyal v. District Magistrate, the court explained in detail the objective of the writ of Habeas corpus. It was held that “habeas corpus was essentially a procedural writ dealing with the machinery of justice. The main aim of the writ was to ensure the release of a person who is illegally deprived of his liberty”.

A writ of Habeas Corpus can be applied not only in cases where the person is detained in a prison but in private custody of any person. For the successful application of habeas corpus, physical confinement is not necessary, rather the fact that the person is in control and custody of another person or authority is sufficient.

Who Can Apply for the Writ of Habeas Corpus?

The person illegally detained can apply for the writ of Habeas Corpus. However, if such a person is unable to make an application then any other person having an interest in the detainee can make an application on his behalf. The court in various cases has held that the husband, wife, father, mother, brother, sister, or friend can in such a situation make an application for the writ. However, a total stranger cannot make such an application. The application asking for the writ of habeas corpus should include full facts in the petition filed before the court. The writ of habeas corpus can be applied as long as the person continues to stay in the detention. Freedom from illegal detention is a fundamental right, thus the person cannot waive off it. The court cannot reject the application based on the ground of delay in applying it.

Against Whom the Writ Lies

The writ of Habeas Corpus can be issued by the court against any person or authority who has illegally detained or arrested the prisoner. Once such person or authority has been issued the writ he has to duly obey it. Intentional disobedience to the writ will amount to contempt of court, the consequences of which can be the seizure of property, and even imprisonment of the person who disobeyed.

When the Writ of Habeas Corpus Can Be Denied

There might be certain circumstances under which the Habeas Corpus can be denied, such as

(i) When the detainment is due to the request, or choice by the court.

(ii) When the individual or the authority, which has detained the person do, not fall under the territorial jurisdiction of the court.

(iii) When the person so detained has now been set free.

(iv) When the detainment has been accepted by the expulsion of deformities.

(v) When the request has been denied by a capable court after investigating the benefits.

Habeas Corpus and National Emergency

National Emergency is a situation declared by the President using his powers under Article 352 of the Constitution. During the existence of such emergency, Article 359 of the Constitution provides power to the President to suspend the right to move any court for the enforcement of such Fundamental Rights given under Part III of the Constitution. The National Emergency has been proclaimed in India once in the year 1975 during the reign of Indira Gandhi. During this emergency, the President on the advice of Prime Minister Indira Gandhi passed an order using his power given under Article 359 suspending the people’s right to move the court. Several leaders of the opposition and many journalists who spoke against the government were unlawfully arrested. It was a total misuse of power, which deprived people of their Fundamental Rights.

The suspension of Fundamental Rights was questioned in the case of ADM Jabalpur v. Shivakant Shukla. Unfortunately, it was held with the 4:1 majority that during the emergency and suspension of Fundamental Rights, no person has locus standi to move any court for a writ of Habeas corpus. The following judgment was heavily criticised.

Eventually, in the year 1978 during the rule of Morarji Desai, the 44th Amendment to the Constitution was brought into place. It said that rights conferred by Article 20 and 21 of the Constitution cannot be suspended even during an emergency increasing the scope of the writ of Habeas Corpus. Further, the judicial interpretation of Article 21 in the case of Maneka Gandhi v. Union of India extended the magnitude of the concept of personal liberty. Now a writ of Habeas Corpus would be applicable if the law depriving a person of his liberty is not fair, just, and equitable. All this has led to the strengthening of the writ of “Habeas corpus”.


To conclude one can say that the writ of Habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. In simple terms, writ of “Habeas corpus is a key which unlocks the door to freedom”. It has been successful in safeguarding and enforcing the Fundamental Rights of an Individual.

This article is written by Adish Anilkumar Kulkarni who is a student at School of Legal Studies, CMR University, Bengaluru. is now on Telegram. Follow us for regular legal updates and judgements from the court. Follow us on Google NewsInstagramLinkedInFacebook Twitter. You can also subscribe for our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.

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