The right of personal liberty is guaranteed by Post 21 which says, ‘no individual will be deprived of his life or personal liberty except according to treatment developed by law.’ The writ of habeas corpus has actually nonetheless long been celebrated as the most efficient safeguard of the right to personal liberty. The jurist Albert Venn Dicey composed that the British Habeas Corpus Acts “declare no principle and define no rights, but they are for useful functions worth a hundred constitutional short articles ensuring individual liberty”.
Given that general declarations relating to essential rights had not much value unless there existed the will and the ways to implement them, the constituent assembly showed the will and supplied the methods to enforce the essential rights provided by Part III of the Constitution. [2] Article 13 (1) made all existing laws professional tanto void if they were inconsistent with basic rights and Article 13( 2) made all laws enacted by the state pro tanto space if they removed or abridged essential rights.
Articles 32 and 226 confer on the Supreme Court and the High Courts powers to issue appropriate writs for the enforcement of fundamental rights and for any other purpose. These provide effective and speedy remedies for asserting fundamental rights against laws which violate them. Speaking on Article 32 (draft Art. 25) in the Constituent Assembly, Dr. Ambedkar described the Article as the very soul of the constitution because it provided effective remedies against violation of fundamental rights as no legislature could take away these remedies.[3]
Few pages in English history are more inspiring than those relating to the writ of habeas corpus, for they show the determination of the people to secure personal liberty by a speedy and effective legal remedy.
In his Judicial Review of Administrative Action, Prof. de Smith has given an admirable and scholarly 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 of course because proper cause had be shown to the satisfaction of the court why they should issue[4]. The writ of habeas corpus was a writ of right which issued ex debilo justitiae when the applicant satisfied the court that his detention was illegal[5].
However, the writ faced the most formidable difficulty from the Crown’s attempt to defeat the writ altogether by maintaining that the special command of the King was per se sufficient to justify 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 Act 1640 affirmed this position and gave to any person restrained of his liberty or suffering imprisonment by the command of the King or his Privy Council, the right to the immediate issue of a writ of habeas corpus[8]. Referring to the writ of habeas corpus as ‘the most celebrated writ in the English Law”, Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I.
The broad principles governing writ of habeas corpus were same as applied in England. Citing approval of Lord Herschell’s observations in Barnardo v. Ford: Gossage’s Case[10] that the writ of habeas corpus is remedial and not punitive, the Federal Court in Basanta Chandra Ghose v. R.[11], had repelled the applicant’s contention that once a writ of habeas corpus was issued against an order of detention, the court must determine whether that order was valid.
Section 491 of Cr.P.C. embodies the principle of English Law that habeas corpus is available against illegal detention by a public authority or by a private person. In Smt. Vidya Varma v. Dr. Shiv Narayan Varma[12], the Supreme Court held that a petition under Article 32 of the Indian Constitution did not lie where the detention complained of was by a private person and not by or under the authority or orders of a State. Even though s. 491 was omitted in Cr.P.C. 1973, this decision did not cause any practical hardship as the High Court can issue writ of habeas corpus against illegal detention by private persons under Article 226 of the Constitution.
The writ of habeas corpus “is the most renowned contribution of the English common law to the protection of human liberty”.[13]
The phrase habeas corpus is Latin for ‘to have the body’.[14] The writ is referred to in full in legal texts as habeas corpus ad subjiciendum or more rarely ad subjiciendum et recipiendum. The writ of habeas corpus in the nature of an order calling 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 to set him free if there is no legal jurisdiction for the imprisonment[15] or is in violation of the procedure established by law. In India, illegality includes a violation of the Constitution by the order of detention or by the law under which the order purports to have been made.[16] It is the duty of the court to issue this writ to safeguard the freedom of arbitrary and illegal detention.[17]
The writ is available for release from detention of an individual not only by the State but another private individual.[18] In Sheela Barse v. State of Maharashtra[19], 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. Thus, an application for habeas corpus may be made even by the detained person or any stranger or a social worker.[20] The application can be made to the Supreme Court and the High Court under Article 32 and Article 226 of the Constitution respectively.
The writ is however not issued in cases where the person against whom the writ is sought or the person who is detained is not within the jurisdiction of the Court; to secure release of a person who has been imprisoned by the court of law on a criminal charge[21]; to interfere with a proceeding for contempt by a Court of record or by Parliament.[22]
Blackstone has explained the basis of the writ, saying “The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.”[23] The basis of the writ rests in recognition of the inalienable right of man to personal liberty which has been recognized international in various human rights instruments and also the article 21 of the Constitution of India. No person can be deprived of his liberty except in accordance with law. The writ of habeas corpus entails a duty on the executive and judiciary to protect liberty of citizens and also responsibly exercise orders of detention.
The protection ensured by writ of habeas corpus has been developed by the Indian judiciary in a catena of cases by effectively resorting to the writ of habeas corpus mainly in order to secure release of a person from illegal detention.
Prior to the enforcement of the Constitution of India, the concept of Habeas Corpus was widely recognized by courts and exercised zealously to safeguard rights of people wrongly confined.
In British India, the power to issue writs had been conferred on the Supreme Courts of Calcutta, Madras and Bombay by their respective charters. This power was inherited by their successor High Courts established under the High Courts Act, 1861. In 1898, S. 491, Cr.P.C. took away the power of these High Courts to issue writs of habeas corpus[24] replacing the writs by directions in the nature of habeas corpus. In 1923, by an amendment of s. 491, the power to issue directions was conferred also on the other High Courts.
Even though the right of personal liberty had not been declared as fundamental, yet the courts recognized the concept of habeas corpus as an essential means to protecting people from illegal detention. In Kasturchand v. Sarkar[25] where a communist political leader had been arrested and detained as soon as he was released on completion of the detention of 6 months, Justice Nawal Kishore and Justice Bapna of the Rajasthan High Court decided on 20 January 1950 that ‘if an order of detention is established not to have been made in conformity with the power conferred, the High Court will have power to order release of the person detained by reason of such order’. The court cited observation of Chief Justice Ghosh in Chiranjilal Agarwal v. Chief Secretary[26] that ‘cases in which plea of malafide is taken…..the court has looked beyond the form of the order and has interfered when it found that the detention was illegal or improper.’
Before the decision in In re Hastings (No.2)[27] and In re Hastings (No.3)[28] the view taken in England was that a person applying for habeas corpus was free to go from judge to judge and from court to court and that view was pressed on the courts in India[29]. In In re Prahlad Krishna Kurane[30] Chief Justice Chagla rejected that view and held that though Article 226 restored to the High Court the power to issue the common law writ of habeas corpus, the power was entrusted to the High Court and wherever a judge exercised that power, the order dismissing the application was the order of the court and no further application could be entertained by the court.
Subsequently, Chief Justice Subha Rao observed in Ghulam Sarwar v. Union[31] that a petitioner had a right to apply to the Supreme Court for Habeas Corpus even after his petition had been dismissed by the High Court. However, Justice Sarkaria and Justice Reddy expressed the view in Lallubhai Jogibhai v. Union[32] after a review of authorities that the principle of constructive res judicata is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under article 32 of the Constitution.
When the constitution was adopted on 26 Jan 1950, right of personal liberty was guaranteed under article 21 and deprivation of this right entailed writ jurisdiction under Article 32 and 226. Further, the habeas corpus was recognized as remedial and not punitive, that the writ of habeas corpus was a writ for determining the legality or illegality of detention and not for punishing a person for a past offence[33]. In Birma Nai v. The State[34], Justice Ranawat and Justice Mehta of the Rajasthan High Court (Jaipur Bench) decided on 17 March 1950 that treaties between states which restrict fundamental rights of the subjects guaranteed by the constitution are not binding unless the same are expressly sanctioned by the legislature of the state. Further it was observed by Chief Justice Nawal kishore and Justice Bapna of the Rajasthan High Court in Haqiqatullah Khan v. The State[35] decided on 7 August 1950 that detention of a person under law of state legislature which is in contravention of the Constitution is illegal.
In its earlier decisions, the Supreme Court gave a narrower connotation to the expression personal liberty used in Article 21. The first case in which the Indian Supreme Court was called upon to interpret Part III of the Constitution was A.K. Gopalan v State of Madras[36] wherein the petitioner, a leader of the Communist Party was detained under the Preventive Detention Act 1950. Decided within a year of the adoption of the Constitution, the Supreme Court took a literal view of the expression ‘personal liberty’ and held that since the word ‘liberty’ was qualified by the word ‘personal’ which was a narrower concept, the expression ‘personal liberty’ meant nothing more than the liberty of the physical body, that is, freedom from arrest and detention from false imprisonment or wrongful confinement. It was observed that Article 21 was attracted only in cases of ‘deprivation’ in the sense of ‘total loss’ and that it had no application in case of a restriction upon right to move freely, which came under Art. 19 (1)(d).
Later, in Kharak Singh v. State of U.P.[37] the court did not follow the above restrictive interpretation of the term ‘personal liberty’, and held that ‘personal liberty’ is used in Article 21 as a compendious term to include within itself all the varieties of rights which go to make up the personal liberty of a man other than those dealt with in the several clauses of Article 19 (1). In Kanu Sanyal v. District Magistrate[38], 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.
It is a striking feature of the development of Constitutional law of India that after a long struggle which maybe said to have started tangibly since 1971, the minority view in Gopalan’s case[39] has come to triumph in the 7 judge decision in Maneka Gandhi v. Union of India[40], where the Supreme Court expanded the horizons of the expression personal liberty and gave it the widest possible meaning. The Court held, ‘the expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and some of them have been raised to the status of distinct fundamental rights. ’
Post the declaration of the emergency of 1975, Articles 14, 21 and 22 were suspended and the Maintenance of Internal Security Act 1971 (MISA) was amended conferring extraordinary power on the government to detain any person without trial. The most crucial question which arose whether a writ of habeas corpus under Article 226 could be issued to release 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 various High Courts held that such pleas couldn’t be affected.
However, in ADM, Jabalpur v. S. Shukla[42], popularly known as habeas corpus case, the Supreme Court held that Article 21 was the sole repository of the right to life and personal liberty and therefore. If t5he right to move any court for the enforcement of that right was suspended by the Presidential Order under Article 359, the detenu would have no locus standi to a writ petition for challenging the legality of his detention. In Union of India v. Bhanudas Krishna Gawde[43] the Supreme Court while reinterating the majority view in ADM, Jabalpur v. S. Shukla further broadened the sweep of the Presidential Order issued on June 27, 1975 to its ultimate conclusion.
Such a wider connotation given to Article 359 resulted in the denial of the cherished right to personal liberty guaranteed to the citizens. Experience established that during emergency of 1975 the fundamental freedom of the people had lost all meaning. In order that it must not occur again, the Constitution (44th Amendment) Act 1978 amended the article 359 to the effect that during operation of the proclamation of emergency, the remedy for the enforcement of the fundamental right guaranteed by Article 21 would not be suspended under a Presidential Order.
The Union Parliament and the State Legislatures are vested with power to make laws providing for preventive detention under Entry 9 List I of Seventh Schedule and Entry 3 in List III of the Seventh Schedule respectively. Legislations under preventive detention include Maintenance of Internal Security Act 1971, The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (COFEPOSA), National Security Act 1980 (NSA), Prevention of Black-marketing and Maintenance Of Supplies Of Essential Commodities Act 1980, Terrorist and Disruptive Activities Act 1985 (TADA). Article 22 guarantees safeguard against arrest and detention made arbitrarily. Preventive detention being obviously a restraint of personal liberty by the Executive, habeas corpus would lie on two-fold grounds Non-constitutional and Constitutional.
In Kasturchand v. Sarkar[44], the Rajsthan High Court observed that the Rajasthan Public Security Ordinance gave two valuable rights to the detenu firstly to know the cause of detention and secondly to make a representation questioning validity of detention. If the grounds of detention are vague and unsatisfactory, the court shall order release of the detenu. In Basheshardayal v. Emperor[45], Justice Tejasing held that in spite of S.16 of the Defence of India Act that no order made under this act shall be called in question, the High Court was quite competent to determine whether the arrest had been in bad faith and hence an abuse of power.
The principle of recognizing the power of the High Court to inquire into detention cases under security laws has been accepted in Teja Singh v. Emperor[46], Vimlabai Deshpande v Emperor[47] and Vasudev Anant Shastri v Emperor[48]. Thus, even in pre-constitution days the courts recognized writ of habeas corpus in detention under security laws which has been accepted in many judgments of Supreme Court like Dyal Deorah, Prabhu v. District Magistrate, Kamrup[49] and Hamdani Satar Habib v. Dilip Singhji[50].
In this manner, writ of habeas corpus has been used effectively by the judiciary for protecting personal liberty by securing the release of a person from illegal custody. However, the court faces issues of proper implementation of the writ by the administrative agencies. The real battle lies beyond the court room, it rests in resolving issues of incompetency and complacency of the administrative agencies of the government
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