Writ of Habeas Corpus: Meaning and Drafting

 

Muhammad Riyazul Ameen Memon

Final Year Student, Hidayatullah National Law University, Raipur

 

 “Habeas corpus” is a Latin term. It means ‘have the body’, ‘have his body’ or ‘bring the body’. By the writ of Habeas corpus, the court directs the person (or authority) who has arrested, detained or imprisoned another to produce the latter before it (court) in order to let the court know on what ground he has been arrested, detained, imprisoned or confined and to set him free if there is no legal justification for the arrest, detention, imprisonment or confinement.¹ It is a writ to a jailer to produce a prisoner in person, and to state the reasons of detention.² The main objective behind it is to provide effective remedy against illegal detention & to release a person from it. An illegally detained person may apply for the Habeas Corpus. Any other person may also apply on behalf of prisoner against the person or authority who has illegally detained or arrested the prisoner.

 

The Indian judiciary in a catena of cases has efficiently resorted to the writ of habeas corpus mainly in order to secure release of a person from illegal detention. Personal liberty has always been considered a cherished value in India & the writ of habeas corpus protects that personal liberty in case of illegal arrest or detention. As personal liberty is so important, the judiciary has dispensed with the traditional doctrine of locus standi. Hence if a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. The judiciary while going one step further, has also dispensed with strict rules of pleadings. In Kanu Sanyal v. District Magistrate³, while enunciating the real scope of writ of habeas corpus, the Supreme Court opined that while dealing with a petition for writ of habeas corpus, the court may examine the legality of the detention without requiring the person detained to be produced before it. Also, in Sheela Barse v. State of Maharashtra⁴, while relaxing the traditional doctrine of locus standi, the apex court held that if the detained person is unable to pray for the writ of habeas corpus, someone else may pray for such writ on his behalf. Habeas corpus petition may be filed for release from illegal custody of any person detained either by a State mechanism or by a private individual. Normally no such petition lies in respect of detention in prison in execution of a sentence passed and conviction ordered by a Criminal Court even though the conviction may be against the weight of evidence on the record or may be based on a wrong interpretation of law. In such cases the remedy of appeal or revision under the Code of Criminal Procedure or other similar Procedure or other similar law should be availed. The High Court has also inherent power under section 482 Cr. P.C. to grant redress with a few to preventing abuse of process of Court even where no appeal or revision lies. Likewise, the legality or correctness of a conviction and sentence by a Court Martial under the Army Act, the Air Force Act or the Navy Act cannot be challenged through a habeas corpus petition.

 

 

Article 227 and Article 136 of the Constitution lay down that the High Court or the Supreme Court cannot exercise its power of judicial superintendence under those articles over a court martial. There is, however, no such exclusion in Article 226 or in Article 32. Thus in very exceptional cases of lack of jurisdiction  or of clear violation of the rules of natural justice or of unconstitutionality of the law under which the order has been made, the High Court or the Supreme Court may entertain a habeas corpus petition even against a detention in pursuance of an order of conviction passed by an ordinary criminal court or a Court Martial.

 

Draft Of Writ Of Habeas Corpus

In the High Court of Judicature at Jabalpur

Writ Petition No.____________ of 2009

(Under Article 226 of the Constitution of India),

                

Shyam Kumar Sharma son of Deepak Sharma, aged about 30 years, resident of K-29, PC Colony, Hanuman Nagar, Patna-20, through Smt. Pooja Sharma, wife of Govind Mishra a foresaid, as next friend.

……… Petitioner

Versus

 

1.                State of Madhya Pradesh, through Secretary, Home Department, Patna.

2.                District Magistrate, Jabalpur.

3.                Superintendent, District Jail, Jabalpur.

                                                                              .............Respondents

 

To

The Hon’ble Chief Justice and His Companion Judges of the aforesaid Court.

 

The humble petition of the petitioner above named respectfully showeth:  

1.      The petitioner is a peaceful law abiding citizen engaged employment as a mechanic in a local motor repairs workshop named Subhash Motors.

 

2.      On September 2, 2008 the petitioner was arrested and served with an order of detention dated September 1, 2008 passed by District Magistrate, Respondent No. 2 purporting to act under sub-section (2) of section 3 of the National Security Act, 1980. He has been detained in the District Jail, Patna, of which Respondent no. 3 is the Superintendent, in pursuance of the said order.

 

3.      The order of detention recited that Respondent No.2 was satisfied that it was necessary to pass the order in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order. A true copy of the order is Annexure 1 to this petition.

4.      The said order was accompanied by the grounds on which it was purported to have been made. A true copy of the grounds is Annexure 2 to this petition.

 

5.      The grounds were four in number and were in substance as follows:-

(i)           That certain incident of communal rioting (at M/s Subhash Motors, the workshop at which the petitioner was employed) had taken place on August 30 and 31, 2008, and the petitioner was, as revealed by intelligence reports received by Respondent No. 2, the moving force behind these incidents.

(ii)         That the petitioner is an office- bearer of the local unit of the RSS

(iii)        That the petitioner had set up a defence committee for providing legal aid to Hindus.

(iv)        That earlier in July 2000 the petitioner was involved in Crime No. 180 Police Station Shashtrinagar, Jabalpur under section 324 IPC.

 

6.      No copy of the intelligence reports received by the respondent No.2 was supplied to the petitioner, nor were any details furnished to the petitioner in regard to his role in the said incidents.

 

7.      The grounds of detention were supplied to the petitioner in English, a language which the petitioner does not know or understand, and inspite of his request the grounds were not supplied to him in Hindi, nor were they explained to him in that language.

 

8.      As regards crime No. 180 of 2000 the fact is that though a false FIR involving petitioner was lodged by one Shiv Dayal , the same had been found on investigation to be false and final report had been submitted by the Police and the Magistrate had accepted it on 5^th October 2000.

 

9.      The petitioner’s wife is interested in the liberty of the petitioner as his next friend.

 

10.    The petitioner submits that the detention of the petitioner is illegal on the following grounds

(a)          Because Respondent No.1 had not delegated the power of detention to Respondent No. 2 and as such the order of detention was incompetent.

(b)         Because Membership of the RSS is not prohibited by or under any law, hence this fact was not relevant for the purposes of the Act.

(c)          Because the disposal of the petitioner’s representation by the Home Secretary was incompetent and in effect the representation was not considered by the State Government at all, and this resulted in breach of the petitioner’s constitutional right under Article 22 (5).

(d)         Because in the absence of a valid order of detention the petitioner’s detention is violative of his fundamental right of liberty granted by Article 21 of the Constitution.

(e)          Because at any rate the State Government took an unreasonably long time in consideration and disposing of the representation of the petitioner, and this delay amounted to breach of his constitutional right under Article 22 (5).

 

PRAYER

Writ of habeas corpus be issued against the respondents for production of the petitioner in this Hon’ble Court and for his being set at liberty forthwith (or, after quashing the order of detention Annexure-1)

                                                                                                (Smt. Pooja Sharma)

                                                                                                 Next friend of Petitioner

                                                                                                         Through    

Advocate

Dated: - Nov. 5, 2008

 

Affidavit In Support Of Writ Petition

Affidavit of Smt. Pooja Sharma wife of Shyam Kumar Sharma, aged about 25 years, resident of house no. K- 29, PC Colony, Hanuman Nagar, Jabalpur- 20.

 

The above named deponent makes oath and says as under-

1.      The deponent is the wife and next friend of the petitioner Shyam Kumar Sharma and is acquainted with the facts of the case.

2.      The facts mentioned in paragraphs 1, 2, and 9 of the accompanying writ petition are true to the personal knowledge of the deponent, the facts mentioned in paragraphs 3 to 7 thereof are based on perusal of records and the facts mentioned in paragraphs 8 thereof are based on information received and believed to be true.

3.      The contents of paragraphs 1 and 2 of this affidavit are true to my personal knowledge, and nothing has been concealed therein.                                                              

 

        Pooja Sharma,

           Deponent.       

 

The prerogative writ of habeas corpus ad subjicendum is the most renowned contribution of the English Common Law to the protection of human liberty.⁵ It is one of the most ancient writs known to the Common Law of England. In Halsbury’s Laws of England⁶, it is stated as:

 

“The writ of habeas corpus ad subjicendum, which is commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention whether in prison or in private custody. It is a prerogative writ by which the Queen has a right to inquire into the causes for which any of her subjects are deprived of their liberty. By it the High Court and the judges of that Court, at the instance of a subject aggrieved, command the production of that subject, and inquire into the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released. Release on habeas corpus is not, however, an acquittal, nor may the writ be used as a means of appeal.” ⁷

 

REFERENCES:

1.       Supra 1, p. 1023.

2.       Chamber’s Twentieth Century Dictionary, (1976), p. 584.   

3.       AIR 1973 SC 2684.

4.       AIR 1983 SC 378

5.       VG Ramachandran, Law of Writs, vol. 2, Sixth Edition, Eastern Book Company, p. 1021. 

6.       Halsbury’s Laws of England, vol.11, Fourth Edition, para 1452, p. 768. See also Corpus Juris Secundum, vol. 39, p. 424; Ghulam Sarwar v. Union of India, AIR 1967 SC 1335.   

7.       Ibid.