Writ of Habeas Corpus

Writ of Habeas Corpus


Article 32 and Article 226 of the Constitution gives two separate yet equal provisions of writ purview with the Supreme Court and High Courts individually. Article 32 has been incorporated as a fundamental right and it accommodates for the constitutional remedy against the infringements of fundamental rights. This remedy is limited to the violation of fundamental rights only under Article 32.

The provision of Article 226 is a constitutional provision, but it is not a fundamental right. There no guarantee attached to it unlike Article 32. The extent of Article 226 is extensive than that of Article 32 because the operation of Article 226 is not limited to violation of fundamental rights only, but it can be operated for other purposes also. However, in engaging the writs, the High Court enjoys wide and open authority as an issue of tact. It is an entire intensity of the High Court with no fatter from any provision of the Constitution. Since it is an extraordinary jurisdiction with the High Court, it has not to be resorted to in routine. The fundamental objective of this authority is to guarantee justice wherever the miscarriage of justice shows.

Concept of Habeas Corpus

It is the most significant writ for personal liberty. Habeas Corpus signifies “Let us have the body.” An individual, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the confining authority to present the arrested individual before it with the goal that it might look at whether the individual has been kept lawfully or otherwise. If the Court is persuaded that the individual is illicitly kept, it can give orders for his release. A writ of habeas corpus derived from Latin word means “you may have the body” is a court order that requires a person under arrest to be brought before a judge or into court. The rule of habeas corpus guarantees that a detainee can be released from unlawful confinement, detainment lacking adequate reason or proof. The cure can be looked for by the detainee or by someone else coming to the prisoner’s aid. This right originated in the English legal system, and is presently accessible in numerous countries. It has historically been a significant lawful instrument protecting individual freedom against arbitrary state action.

Who may apply for the Writ of Habeas Corpus?

The general rule is that an application can be made by a person who is illegally detained. But in certain cases, an application of habeas corpus can be made by any person on behalf of the prisoner, i.e., a Friend or a Relatives. A writ of habeas corpus, otherwise called as the “great writ”, is an order with the power of a court order; it is routed to the custodian (a jail official for instance) and demands that a detainee be taken before the court, and that the custodian present confirmation of authority, permitting the court to decide whether the custodian has lawful authority to detain the prisoner. On the off chance that the custodian is acting beyond his power, at that time, the detainee must be released. Any detainee, or someone else following up for their benefit, may appeal to the court, or a judge, for a writ of habeas corpus. One purpose behind the writ to be looked for by an individual other than the detainee is that the prisoner might be held incommunicado. Habeas corpus has certain limitations. It is actually just a procedural cure; it is an assurance against any confinement that is prohibited by the law, however, it doesn’t really secure other rights, for example – the entitlement to a fair trial.

When it will lie?

The writ of habeas corpus will lie if the intensity of detainment vested in authority was practiced mala fide and is made for the guarantee or ulterior objective. However, if the detention is defended, the high court won’t issue the writ of habeas corpus.

In Sunil Batra vs. Delhi Administration [AIR 1980 SC 1795][1], it has been held that the writ of habeas corpus can be issued not only for releasing a person from illegal detention but additionally for shielding detainees from the cruel & primitive treatment. The dynamic part of legal cures imports to the habeas corpus writ adaptable essentialness and operational utility as a stronghold of liberty even within jails.

In Veena Sethi vs. State of Bihar [AIR 1983 SC 339][2], it was held that the court was informed through a letter that some prisoners, who were insane at the time of trial but subsequently proclaimed normal, were not released because of the inaction of state authorities and need to stay in jails from 20 to 30 years. The court directed they be released forthwith.

Habeas corpus is a writ clearly or right might be denied if there is no reason showed up. It, regardless, can’t be declined on the ground that an alternative remedy is accessible to the applicant.


In deciding the inquiry that whether habeas corpus procedures are affable or criminal in nature, it was held by the court in Narayan vs. Ishwarlal [AIR 1965 SC 1818][3] that it would depend upon the method of the procedures wherein the locale has been executed.

The essential reason behind the issuance of this writ is to secure the arrival of the detainee as opposed to rebuff the detainer. Regardless of the way that, there may be compensation permitted and costs rewarded in appropriate cases at the civility of the court.

[1]. https://indiankanoon.org/doc/778810/

[2]. https://indiankanoon.org/doc/1928844/

[3]. https://indiankanoon.org/doc/1102942/

Author: Ayush Patria,
Sangam University, Bhilwara (Rajasthan); 3rd Year; Law Student

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