Writ of Habeas Corpus

The paper is written on one of our writs provided in Indian Constitution i.e. Habeas Corpus. The paper deals with several questions like, what is the use of this writ, its history, who can apply it and the cases dealt with this provision. Basically, it’s both fundamental as well as constitutional right, which provides people quick remedy against the unlawful or illegal detentions. We can file writ of Habeas Corpus under Article 32 or under Article 226 as well, which is dealt by Supreme Court and High Court respectively

Habeas Corpus safeguards us from the unlawful detention not only by authorities but also from any individual. It is a basic fundament right and also known as the heart and soul of the constitution. In recent years it is most used petition due to the protest against the citizenship amendment act. There are many landmark judgements which are discussed in the paper.


The literal meaning of Habeas Corpus is to produce the body. Writ is a provision in our Indian constitution under Article 32 and Article 226. The motive of this provision is to provide people right to directly move to the Supreme Court under Article 32 on infringement of any fundamental rights. And we can also move to the High Court regarding the writ, when there is infringement of fundamental rights as well as other rights under the Indian Constitution. The area of writ under High Court is more than the Supreme Court, as Supreme Court only has power regarding fundamental rights given in Part III of Indian Constitution. There are five types of writ:

  • Habeas Corpus
  • Mandamus
  • Quo-Warranto
  • Certiorari
  • Prohibition

In this paper we will talk about Habeas Corpus. According to this writ if anybody is detained without legal notice then we can file a writ petition. After filing the petition the court will ask the authority to produce the body and questions for what reason the person is detained for. If the reason is legal then no actions will be taken but if the detention is for illegal reasons then the court will order them to release the detained person. The aim of the provision Habeas Corpus is to provide freedom to those illegally detained persons. Also, this immediately releases the detained person because the fundamental right gets infringed which is personal liberty. This provision can be used against state as well the individual also. Basically the court directs the authority or any individual to justify this detention.

Habeas Corpus is available to all the cases where wrongful restraints of a person have been done. It is a quick remedy that’s why it cannot be used for complaining about earlier or past illegal restraints. But in India, the Supreme Court has enlarged the area of complaint and provided compensations for past detentions and also if any misfortune happens like death. In India the power of this provision is in the hand of High Court and Supreme Court only.


The writ was regarded in England as a foundation of human freedom and British citizen insisted upon this privilege wherever he went whether for business or colonization. This is how it found a place in the constitution of the United States when the British colonies in America won their independence and established a new state under the U.S. Constitution. In India the power to issue a writ of habeas corpus is vested only in the Supreme Court and the High Court. The Habeas Corpus remedy is recognized within the countries of the Anglo-American system but is usually not found in civil-law countries, although a number of the latter have adopted comparable procedures. In the British colonies in North America, by the time of the American Revolution, the rights to habeas corpus were popularly considered among the essential protections of individual liberty.

Who May Apply?

Regarding the topic of who may apply for the writ it has been expressed by courts in different cases that the detainee or the confined, as well as whatever other individual who knows about the benefits of the case, and is familiar with the actualities and circumstances and has perceived enthusiasm for moving of such application before the court can apply under Art.32 and Art.226 of the Constitution.

Difference under Article 32 and Article 226

We know that both the articles i.e. Article 32 and Article 226 are invoked for the enforcement of the fundamental rights. Supreme Court as well as High Court both has the power to issue writs. But still both the articles are different from each other. Some differences are stated below:

• Article 32 is itself a fundamental right where as Article 226 is a constitutional right.

• Under Article 32 Supreme Court has mandatory power to issue writ whereas High Court has a discretionary power to issue writ.

• Article 32 is invoked only for the fundamental rights whereas Article 226 is invoked for fundamental rights as well as constitutional rights.

• Article 32 provides power to Supreme Court and Article 226 gives power to High Court.

The scope of Article 226 is quite the same as Article 32 still Article 32 is named heart and soul of the constitution. Dr. Bhim Rao Ambedkar gives the name “heart and soul of the constitution” to Article 32.

Case Laws

In the case of Rudal Shah v. State of Bihar, a PIL has been filed under Article 32 of the Indian Constitution, for the illegal detention of Rudal Shah. The petition sought the discharge of Rudul Sah from illegal detention, and also ancillary relief like rehabilitation and compensation. Rudul Sah’s case may be a landmark judgment within the jurisprudence of state liability. It is considered particularly important because it led to the emergence of compensatory jurisprudence for the violation of fundamental rights under the Constitution. It is noteworthy during this context that there’s no express provision for awarding compensation within the text of the Indian Constitution, which this judgment was on the basis of the Court’s interpretation of the extent of its remedial powers. This was the primary case since the inception of the Supreme Court that awarded monetary compensation to an individual for the violation of his fundamental rights guaranteed under the Constitution.

Supreme Court under the ambit of Article 21 of the Constitution (the right to life which is a fundamental right), compensation as a constitutional remedy may be available for violations of these rights. For example, within the case Paschim Banga Khet Samity v State of West Bengal[1], where the Supreme Court upheld that the right to life included the right to health, compensation was granted by way of redress with explicit reference to the Rudul Sah case.[2]

Additional District Magistrate (ADM), Jabalpur v. Shivakant Shukla, popularly known as the Habeas Corpus case, was decided by the Indian Supreme Court on April 28, 1976, by a bench of five judges, namely, Chief Justice A.N. Ray, and Justices H.R. Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. Justice Khanna was the lone dissenter in the case.The name of the ADM was Kiran Vijay Singh. He appealed against the Madhya Pradesh high court’s verdict that was in favour of the detenu, Shivakant Shukla. That was the lead case. The Supreme Court set aside nine high court judgements including this, which had ruled in favour of enforcement of fundamental rights during the Emergency[3].

In the case of Makhan Singh Tarsikka v. The State of Punjab[4] the detenu Makhan Singh Tarsikka whose Habeas Corpus petition has been dismissed by the Punjab High Court, has brought this appeal before us by special leave. In his petition which was filed by the appellant, the main allegation which he made in challenging the validity of his detention was that the grounds’ set up in the order of detention were “very vague, concocted and totally false”. The detention order had stated that the appellant was detained because he was found to be “indulging in activities prejudicial to the Defence of India and Civil Defence by making propaganda against joining the armed and civil defence forces and by-urging people not to contribute to the National Defence Fund.” The order added that having regard to his activities, it was thought necessary to detain him in order to prevent him from carrying on the said prejudicial activities[5].

This writ has been extended to non-state authorities as well which is evident from two cases. One from the Queen Bench’s case of 1898 of Ex Parte Daisy Hopkins in which the proctor of Cambridge University detained and arrested Hopkins without his jurisdiction and Hopkins was released. And in the case of Somerset v. Stewart wherein an African Slave whose master had moved to London was freed by the action of the Writ[6].

In Gopalan v.Government of India, the Supreme Court ruled that the earliest date with reference to which the legality of detention may be examined is the date on which the application for the same is made to the court[7].

Since the govt. has introduced the Citizenship Amendment Act (Bill) the protests has started raising due to which many people have been detained for many days. The case of a 25 year old lady who has been detained due to protest against CAA. A petition of habeas corpus was filed against this detention. Even though she was granted bail, she remains in jail.

“This constitutes a deprivation of the liberty of Ms. Fatima without due process, and therefore violates her fundamental right to life and liberty secured under Article 21 of the Constitution of India,” the plea said. The plea said that her continued detention was without authority of law, and urged the High Court to release her immediately.

A another case of Mohd Sohaib has been filed under habeas corpus, that he has be illegally detained by the police as the time and manner of his arrest was incorrect. The Allahabad High Court ordered the Uttar Pradesh govt. to investigate it and inform about the time and manner within a week.


Basically we can sum up habeas corpus as a fundamental as well as constitutional right under Article 32 and Article 226 respectively. Through this provision we can file petitions for an illegal detention of a person. This is a quick remedy for those who has been retained without any proper justification. And as we know Article 32 is also known as the heart and soul of the constitution by Dr. BR Ambedkar, it shows how important it is for the citizens. It is to save the person from unlawful detentions and not only from the government authorities but also from any individual. Though in other countries we cannot file petition under this for past detentions, but in India we can file and government can also provide monetary help for any misfortune.

Recently due to many reasons it is used by citizens in large numbers and we are able to listen and know more about it. Because these days politicians misuse there powers and detain people even for their personal grudges. So at last, we can say that, it’s actually an essential part of our constitution which safeguards us from illegal or unlawful detentions.

[1] (1996 SCC(4)37)

[2] https://www.escr-net.org/caselaw/2015/rudul-sah-v-state-bihar-1983-4-scc-141

[3] https://thewire.in/law/supreme-court-emergency-era-judgement

[4] 1964 AIR 1120, 1964 SCR (4) 932

[5] https://indiankanoon.org/doc/1335930/

[6] https://blog.ipleaders.in/article-32-constitution-india

[7] http://www.legalserviceindia.com/legal/article-68-types-of-writs-in-indian-constitution

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