Writ of Habeas corpus

BY – Prateek Jain

Protection against unlawful and indefinite detention/incarceration


  • The High Courts and The Supreme Court have got a very wide power of protecting the liberty of subjects, under Article 226 and Article 32 respectively of the Constitution.
  • A proceeding of habeas corpus is essential of a civil character, and is concerned with the personal liberty of a citizen.
  • However, the power is exercised on the criminal side of the High Court’s appellate jurisdiction.
  • These powers are to be exercised on certain fixed judicial principles and not in an arbitrary manner.
  • The jurisdiction can be exercised if the Court is satisfied that the detention is illegal or improper, where the Court can also embark upon an inquiry as to whether the enactment under which a person is detained is proper or not.

Who can claim?

  • An application for habeas corpus may be made by any person interested in the liberty of the detenue without unreasonable delay; and it must be supported by an affidavit of the petitioner.

Who can proclaim/give orders?

  • The High Courts and the Supreme Court exercise this power when satisfied that the matter is of urgency and no other legal remedy is available.
  • A writ is an order from a higher court to a lower court or government agency or official to appear and bring the person detained in front of the court.
  • Ordinarily a rule nisi (to show cause) is issued by the Court in the first instance. It is not open to Court to go behind the reasons given by Government for the detention, and it must see the motive of the impugned law and the bona-fide of the Government.
  • If the impugned detention has been induced by mala-fide and some other strenuous reasons and not for bonafide cause, it shall be quashed and the individual shall be set at liberty.

Some case briefings

  • In the case of Sunil Batra v. Delhi Administration, 1980 AIR 1579 => A lawsuit was filed in the Supreme Court through a letter from a co-convict for mistreating prisoners. This letter was taken up by the Supreme Court and issued the writ of habeas corpus, which stated that this order could not only be used against the illegal detention of the prisoner, but also to protect against mistreatment or inhuman behaviour by the detention authorities.
  • Kanu Sanyal v. District Magistrate Darjeeling Ors., 1974 AIR 510 => In this case, The Supreme Court ruled that one should not purely focus on the defined meaning of habeas corpus, i.e.  if it is found that the request was procedural writ and not a substantive writ. This case was all about the type and scope of the habeas corpus criterion.

The landmark judgment of The Additional District Magistrate of Jabalpur v. Shiv Kant Shukla (Habeas Corpus case), 1976 AIR 1207

  • Human rights across the nation were being infringed in the name of Emergency in which politicians, activists, protestors, dissenters were being detained.
  • In this particular case, detenues were detained under Maintenance of Internal Security Act, 1971.
  • Their challenge was in many High Courts through the writ of Habeas corpus against their detention.
  • Majority of the High Courts held the maintainability of the writ of Habeas corpus.
  • 5-judge Constitution Bench of the Supreme Court heard the matter and question the order issued by the President under Article 359(1).
  • The majority of judges in this case ruled that no one can move into High Court under Article 226 to challenge the legality of any detention under the writ of Habeas corpus or under any other writ.
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