Writ of Habeas Corpus


This writ is the fundamental safeguard of personal liberty of an individual. Habeas Corpus literally means to ‘to have the body.’ It is an order calling upon the authority to specify on what grounds an individual has been detained by them and if there is no legal justification for the same, then the person must be set free. It provides a remedial measure for the person who has been detained without any lawful authority. It is enforceable by way of Article 32 in the constitution wherein a person can approach the Apex Court to determine the legality of his detention.


This writ was considered as an adequate safeguard of personal liberty by the people of U.K. and in turn there was demand for this privilege by the citizens wherever they went for business or colonization. In this way, it found a place in the British law. Therefore when America won its independence from British colonies, it got incorporated into the U.S. Constitution. India had the similar fate and he power to issue these writs vested in Supreme Court and High Court.


  • The person who is confined or detained without any lawful authority.
  • The person aware of the benefits of the case.
  • The person familiar with the facts of the case and himself files an application of the writ of habeas corpus under article 32 and 226 of the Indian constitution on the behalf of detainee.


The writ is enforceable in each and every case of wrongful deprivation of personal liberty. It provides an effective and immediate relief from unlawful detention. The detention may be in prison or private custody. The Constitution of India confers various powers on the Supreme Court and all High Courts in India for issuing the writ of habeas corpus. It is provided in the constitution in Article 32 and Article 226. Article 32 is a fundamental right to move Supreme Court whereas Article 226 is a constitutional right which provides a right to move High Court.


The writ of habeas corpus may be refused in the following circumstances:-

  • When the detainer is outside the territorial jurisdiction of the court.
  • When the detention of the person is backed up by a lawful order of court of competent jurisdiction.
  • When the person who was detained is set free from the detention.
  • When the confinement has been made lawful after removing the irregularities.
  • When emergency has been enforced.
  • After the dismissal of the petition on merits by a court of competent jurisdiction.


Res Judicata is not applicable in case of illegal detention of a person. Article 32 of the constitution provides that a petition for writ of habeas corpus can be filed in the court on new grounds which had not been covered in the earlier petition which was filed for the same. The petition is maintainable if it is filed in the court having an independent existence and separate jurisdiction.

In Lallubhai Jogibhai Patel v. Union Of India & Ors[1], the Supreme Court held that second petition for the writ of habeas corpus is not maintainable in the court if it is filed on the same grounds as that of the first one.


Preventive detention means to imprison an individual in order to prevent him from committing any kind of offence in the future. It is a precautionary measure rather than a punishment or penalty. These both concepts i.e. preventive detention and habeas corpus go hand in hand. Article 22 provides the procedure to be followed while taking a person into preventive detention and it requires a strict adherence of law.

Parliament has the power to make laws for preventive detention for various reasons like:

  • Defense purposes.
  • Relations with foreign countries.
  • For security purposes of the state.
  • For the maintaining public law and order.
  • However, such kind of detention may be tracked through judicial review.


The burden of proof of legality of the confinement or detention lies on the detainer i.e. the person or authority who detains the other. If the detainee alleges that the confinement was malicious and outside the scope of jurisdiction of the authority detaining the person then the burden of proof lies on the detainee.


The Supreme Court of India has jurisdiction over all the authorities within and outside the territorial jurisdiction of India under Article 32 of the constitution. Whereas under Article 226 the high court has the authority to deal with the matter when it has control over that authority and where the probable cause of action arises.


A National Emergency may be declared under Article 352 of the Constitution. Before 1978, the writ was not maintainable during an emergency proclamation. However, 44th amendment was introduced in 1978 wherein it was declared that fundamental rights enshrined under article 20 and 21 cannot be suspended during an emergency. Henceforth for the enforcement of these rights, the writ petition can be filed in court under Article 32 or Article 226.


  1. ADM Jabalpur v. Shivkant Shukla[2]

This case is also known as the habeas corpus case. In the instant case, emergency was declared by the then President and various persons were not found by the members of their family. The Supreme Court held that state has the power to suspend all the rights including fundamental rights even Article 20 and 21 during an emergency.  This judgment was considered to be the darkest day in Indian history.

  1. Sunil Batra v. Delhi Administration[3]

The Supreme Court widened the scope of this writ. In the present case, the court observed that writ can also be filed for protecting the detainee from any kind of harsh or ill-treatment and discrimination by the detaining authority. Thus the writ not only checks the legality of detention but it also checks the manner in which detention is caused.

  1. Veena Sethi v. State Of Bihar[4]

In this case, the court was informed by a letter that some of the prisoners, who were insane at the time of trial but afterwards they were declared sane, were still under detention due to the lethargic attitude of state authorities and thus they had to remain in jails from 20 to 30 years. The court directed that they be released with immediate effect.

  1. Sheela Barse v. State of Maharashtra[5]

A letter was written to the Supreme Court regarding the poor condition of woman prisoners and the assault they had to suffer in the lockup. One of the human rights activist filed a writ petition for this matter. The allegations were found to be true. The Court held that if a person who is detained is not able to file a petition then some other person could file it on his behalf.

  • Kanu Sanyal v. District Magistrate Darjeeling & Ors.[6]

It was observed that rather than focusing on the traditional method of producing the body before the court, the court should concentrate on the legality of the detention made considering the circumstances of the case. It was also held that writ of habeas corpus is a procedural writ and not a substantive writ.

  • D.S. Nakara v. Union of India[7]

The court held that registered societies, non-political, non-profit making and voluntary organizations can file a petition for writ of habeas corpus under Article 32 of the constitution on behalf of the old infirm pensioners who are not able to approach the court by themselves.


The roots of our Constitution lie deep in the finer and spiritual sources of social justice which incorporates within itself the most important concept of individual and personal liberty. Writ of habeas corpus provides remedy against the unlawful and arbitrary action of state. The fundamental rights are incorporated in the constitution to help people to secure individual freedom. Right of writs is one such major right to achieve it. Where the state fails to provide full enforcement to such rights, judiciary as an independent authority steps in.

As Pascal has rightly quoted in Pensees, “Justice without force is impotent, force without justice is tyranny”.

This writ acts as a remedial measure which ensures to set free the detained person from the illegal imprisonment. However, the writ doesn’t exonerate any person from his liability. It only justifies the legality of the detention made and if such detention is found to be unlawful, the courts can intervene and direct release from such detention. It shields the detainee from any kind of inhuman treatment. Henceforth, the judiciary is using this writ in such an effective manner for ensuring safety to a person from unlawful detention or confinement.

[1]  1981 SCR (2) 352

[2] (1976) 2 SCC 521

[3] 1980 SCR (2) 557

[4] AIR 1983 SC 339

[5] 1983 AIR 378

[6] 1974 AIR 510

[7] 1983 1 SCC 304

Author: Niharika from Panjab University, Chandigarh.

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