This blog is inscribed by Rahil Setia
“The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume.” -Thomas Jefferson
I. INTRODUCTION
The concept of issuance of Writs holds prominence under the constitution as it tends to provide an effective enforcement mechanism for fundamental rights under Part III of the constitution. Constitution entails five Writs and the Writ of Habeas Corpus is the heart and soul of the ideal of personal liberty enshrined in the constitution. It serves as a powerful tool to shield the citizenry from the tyrannical, despotic and arbitrary advances of the executive wing of the state. It installs an efficacious remedial mechanism which acts to dismantle the clutches of illegal and unlawful restraints. “Habeas Corpus” is a Latin word which means “that you have the body”. The validity of detention of a person is examined by the courts on the touchstone of this Writ when the person is presented before the court of law. It is pertinent to note that this Writ is a matter of right and not discretionary.
II. OVERVIEW OF THE HISTORICAL EVOLUTION OF THE WRIT OF HABEAS CORPUS IN INDIA
Regulating Act, 1773: This act established Supreme Courts at Fort Williams Calcutta and also at other Presidency Towns of Bombay and Madras. Initially they had the power to issue such prerogative Writs.
High Courts Act, 1861: It abolished all the Supreme Courts and conferred power on the Crown to establish High Courts via Letters Patent. Thereafter, these High Courts in the three Presidency Towns of Calcutta, Madras and Bombay. Powers of the High Courts were at par with the powers of the erstwhile Supreme Courts.
Criminal Procedure Code of 1898: Remedy of Writ of Habeas Corpus was further narrowed down and confined only to the geographical limits of the three Presidency Towns.
Constitution: Power is conferred in the Supreme Court under Article 32 and all the High Courts under Article 226 of the Constitution of India.
III. BRIEF ANALYSIS OF THE CONCEPTUAL MATRIX OF THE WRIT OF HABEAS CORPUS
Writ of Habeas Corpus acts as a writ that sets into motion the mechanism, which examines the legality of the detention of the detenu. It must be noted here that the courts, while introspecting the cases concerning the Writ of Habeas Corpus, are not concerned with the innocence or guilt of the detenu but they are only concerned with the legality of the detention. Therefore, it may be safely said that the Writ provides for procedural safeguard against arbitrary restraints by ensuring that the actions of the executive do not escape judicial scrutiny. In a country like India, which is the most populous democracy in the world, ideals such as the individual freedom and liberty hold even more prominence and therefore safeguarding such ideals becomes indispensable in a constitutional order, this was further expounded by the Supreme Court in the case of Khudiram Das v. State of W.B.[1], in which it was observed that the courts are duty bound to examine whether the mandate of law is being scrupulously observed or not, so that nobody is deprived of their freedom and liberty.
IV. PRONOUNCEMENTS EXPOUNDING THE UNDERLYING ESSENCE OF THE WRIT OF HABEAS CORPUS
In Sapmawia v. Deputy Commissioner Aizwal[2], Supreme Court observed that the Writ is a prerogative Writ which examines the causes and validity of the detention of the detenu by a summary procedure. It also observed that the release of a person under the Writ doesn’t tantamount to his/her release or acquittal and is not prejudicial to the powers of the authorities to keep him under their custody if all the rigors and safeguards of the law are observed. The Court also observed that the Writ is not meant to interfere in the normal application of criminal law by any manner.
Kalu Sanyal v. District Magistrate of Darjeeling[3], Apex Court observed that while hearing the petition for the issuance of Writ of Habeas Corpus, production of the body of the detenu is not an essential prerequisite and therefore the courts are within the confinement of their power to hear and dispose of the petition without the detenu being present in the court.
State of Maharashtra v. Bhaurao Punjabrao Gawande[4], Supreme Court observed that the Writ of Habeas Corpus is a “great constitutional privilege” or “first security of civil liberty”. It said that the Writ provides a prompt and effective remedy against illegal detention.
Ranjit Singh v. State of Pepsu[5], Supreme Court emphasized on the need for expeditious disposal of cases concerning the Writ of Habeas Corpus and keeping them free from any procedural technicality to ensure smoothness.
Arvinder Singh Bagga v. State of U.P.[6], in this case, the apex court made an interesting statement that after the release of the detenu, the petition of Habeas Corpus can continue as “one for qualified Habeas Corpus” to determine the compensation that may be paid to the detenu for illegal detention which violated his right under Article 21 of the constitution.
V. CONCEPT OF HABEAS CORPUS: ENGLAND
The Concept of Habeas Corpus was introduced in England way back in the year 1640 by the Habeas Corpus Act, 1640, which, for the first time codified the law pertaining to the Habeas Corpus. It was later on replaced by the Habeas Corpus Act, 1679 which further laid emphasis on the protection of individual’s liberty and freedom by laying a positive obligation on the judiciary to try and dispose off the cases pertaining to Habeas Corpus at the earliest. In order to ensure that the judiciary performs its functions properly, the Habeas Corpus Act, 1679 also provided for a penalty to the tune of 500 Pounds that could be imposed on judges who refuse to give consideration to the petition of Habeas Corpus. The Act of 1679 was further replaced by the Habeas Corpus Act, 1816 which increased the ambit of applicability of the remedy of Habeas Corpus and dealt with cases of civil detention as well.
Lord Halsbury in the case of Cox v. Hakes[7]observed that the essence of the whole theory of Habeas Corpus is the immediate determination of the right of an applicant’s freedom and liberty, if his/her detention is found to be unlawful or illegal.
Lord Donaldson in the case of R v. Secretary of State for the Home Department, Ex-Parte Cheblak[8]observed that liberty of a person is the highest fundamental right as compared to all the other rights. Hence, an application for Habeas Corpus assumes priority over all other court business.
CONCLUSION
It is hoped that in this new constitutional order, the ideals of liberty and freedom would acquire a central place and the institutions of the state would undertake earnest efforts to protect and enforce the soul of this benevolent remedy.
Opmerkingen