Art 32 and Art 226 of the constitution confers writ jurisdiction upon the supreme court and the high court respectively. A writ is a formal order in writing issued under seal, in the name of the government, sovereign, court or other authority, commanding an officer or other person to whom it is issued to do or to refrain from doing some act specified therein. There are in total 5 writs provided by the constitution under Art 32 and Art 226. One among them is the writ of habeas corpus.
Habeas corpus literally means ‘you may have the body’. It is the most valuable writ for personal liberty. It is a remedy available to a person who is confined without legal justification. Through this writ, the court let it know the reasons for detention of the person and if there is no justification, order the authority concerned to set the person free. The writ of habeas corpus, thus, entails the authority to produce the person before the court. The applicant of this writ may be the prisoner or any person on his behalf to safeguard his liberty. It seeks immediate relief from unlawful detention whether in prison or private custody.
This writ particularly deals with illegal detention. For example, any person is locked up on the prison without any valid cause. Then the petition can be filed for illegal detention, it is not necessary that the petition is to be filed by the aggrieved person only. Any other person whether having relation with him or not can file such kind of petition.
In ‘Sunil Batra v. Delhi administration’, a prisoner sent a post card giving information about his illegal detention, and it was accepted by the court. So, physical presence of person is also not important for filing petition of habeas corpus.
In ‘ADM Jabalpur v. Shivkant Shukla’, the argument raised by the petitioner was that writ of habeas corpus ensures his right to life and liberty. Thus, this right should not be suspended at the time of emergency. The bench answered this with negativity. They were convinced that it was wrong with respect to justice at social level but could not do anything.
But later on in 1976, Another important Habeas corpus case filed in India at the time of Emergency, in Kerala High Court (The first Habeas corpus case in the history of Kerala), the previous judgement was overruled. P. Rajan, a student of the erstwhile Regional Engineering College, was arrested by Kerala police and died due to torturing. His father Mr. T. V. Eachara Warrier filed a Habeas corpus in Kerala High Court in which the police finally confirmed that he died in custody. On the basis of this case 44th amendment of the constitution was passed in 1978. This amendment ensured the enforcement of the writ of habeas corpus even at the time of emergency. The enforcement of all other writs is still in question.
Reliefs available if writ of Habeas Corpus is granted:
Following reliefs are available if writ of habeas corpus is granted:
- Release of custody
- Reduction in the sentence of prison
- Declaration of rights
- Order dealing with illegal conditions of confinement.
Limitation of habeas corpus:
- Many a times aggrieved persons have option of using civil right complaint process instead of habeas corpus, so using habeas corpus writ wastes the time and energy of superior judiciary.
- When seeking remedy for violation of their constitutional right while in confinement, they can file case in either state or federal court.
Scope of article 32 and article 226:
Both these articles confer power of writ jurisdiction over the supreme court and the high court. However, there is difference between two.
- while the right guaranteed by Article 32 can be exercised only for the enforcement of fundamental rights and Article 226 can be exercised not only for fundamental rights but also for all the purposes i.e. for the enforcement of any legal right conferred by a statute, etc.
- Under Article 32 writ can be filed against government only but under Article 226 writ can be filed against ‘person’ if it is a statutory body or performing a public function or public duty.