India is one of the largest democracy in the world and it also enjoys the benefit of having the longest written constitution in the world. The constitution thus, provides a number privileges on its citizens and non-citizens by way of fundamental rights, directive principles of state policy, writ petitions etc. Apart from providing various privileges it also acts as a custodian of those rights and grants every individual of the country an opportunity and freedom to move the judiciary as and when needed in order to seek redressal. The judiciary acts an independent authority who looks into the executive failures and also secures the liberty provided to the people of the nation. Every citizen of the country has been granted with certain fundamental rights relying on which he can challenge any act of the Parliament which debars him from his exercising those rights. It is with the help of the judicial interpretations that the provisions of the Constitution were simplified for the citizens and they were given a new dimension to suit the need of the changing times and society. Thus, every person who is aggrieved by the decision of the administrative or executive body and believes that his rights have been infringed can approach the judiciary for the enforcement of his rights. The Constitution has conferred the judiciary with writ jurisdictions under which it can protect the rights of an individual and can also enforce those rights in the event of infringement. The High Court and the Supreme Court have been vested with the writ jurisdiction under Article 226 and Article 32 of the Constitution respectively. The writs are basic mechanism to protect and preserve an individual’s freedom against the arbitrary and lawless action of the executive and administrative authorities of the State and also to prevent the failure of justice.

Article 32 clause (2) empowers the Supreme Court to issue orders or writs or direction for enforcing any rights guaranteed to an individual under Part III of the Constitution. The Supreme Court can issue writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari. Article 32 apart from vesting writ jurisdiction on the Supreme Court is itself is a fundamental right and provides constitutional reliefs for a citizen whose fundamental rights have been infringed. The jurisdiction of the Supreme Court extends to the whole of India but it cannot issue these writs against any administrative decision which in breach of the ordinary law.

High Courts can issue these writs within its territorial jurisdiction under Article 226. The High Courts enjoy a wider scope in terms of writ jurisdiction when compared with the Supreme Court. Unlike, the Supreme Court, the High Courts can issue any writs for the enforcement of fundamental rights and also for any other action of the administrative which is against the law.

The High Courts and the Supreme Court can both issue the writ of Habeas Corpus. The term ‘Habeas Corpus’ is a Latin term which means ‘to have the body’. It works as a channel to probe and keep a check on the illegalities that are committed on an individual’s body under the head the unlawful confinement or detention. Any individual who has been detained or confined unlawfully then in such a situation any person, or the relatives or friends of such a person other than a stranger can approach the court by filing the writ of Habeas Corpus. The writ of Habeas Corpus is available only in the cases where the detention is illegal and it is at the discretion of the Court whether the writ will be issued or no. The main purpose of this writ is to provide expeditious relief to the person who has been detained unlawfully in prison or in private custody. The detention becomes unlawful when a person who has been arrested is not produced before the magistrate within 24 hours of his arrest or when the law under which the person is being detained is in itself unlawful then the detention automatically becomes unlawful. Article 21 of the Constitution guarantees to all the persons within the territory of the country Right to Life and Liberty and it specifically states that no person shall be deprived of his personal life and liberty except without the due process of law. Thus, the writ of Habeas Corpus can be availed when a person is deprived of his personal liberty without following the proper procedure established by law. Under this writ the Court directs the prison officer or the prison authority to produce the detained person before it and to liberate the prisoner if the court has reasons to believe that the detention of such person was without a valid cause or the detention of such person was illegal or unlawful.

The writ of Habeas Corpus is available in the following situations:

  • For enforcing the fundamental rights of citizens and non-citizens.
  • In the events where the detention or imprisonment is ultra vires the State.

Habeas Corpus basically is an order wherein the court questions the detaining authority about the grounds of detention or confinement and in situation where there is no legal justification for the same, the court orders to set free the detainee. For the purpose of this writ, no physical detention is necessary mere custody and control are sufficient.

However, this writ cannot be issued in the following circumstances:

  • Where the detention has been made outside the jurisdiction of the Court.
  • Where a person has been imprisoned by a court on a criminal charge.

The burden of proof to prove that the detention in question is illegal lies on the petitioner and thus if the person fails to prove that the detention was unlawful his is not entitled to be set free. However, no person can present continuous application for habeas corpus for different judges of the same court. But, this does not restraint or stop a person from filing a fresh petition under Article 32 in the Supreme Court. Any act of disobedience of this writ is to be met with the punishment for the Contempt of Court.

The sole purpose of this writ is to grant liberty to an individual in case of illegal and unlawful detention and not to punish the wrongdoer. However, the person who is released from the detention on grounds of illegal detention can separately proceed against the wrongdoer in an appropriate lawful manner. The main feature that distinguishes this writ from the other writs is that it can be issued not only against State authorities but also against private individuals and organization.

Thus, the writ of Habeas Corpus acts as custodian of liberty and individual’s body against unlawful and illegal detention. It basically, provides the remedy by which a person can set himself free in the event of illegal detention.

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