1

A PROJECT ON

WRIT OF HABEAS CORPUS

SUBMITTED TO

Prof. Dr. Asad Malik

BY:

Name: Vidur Dwivedi B.A. LLB.(Hons.), 6th semester.

Acknowledegment
I, Vidur Dwivedi, would like to express my gratitude to our teacher, Dr. Asad Malik, for making the subject so easy and understandable to us that has helped me to put my best efforts to the assignment.

Vidur Dwivedi

Contents
1. Introduction 2. Types of Writs 3. Habeas Corpus 4. Aim 5. Brief History 6. Habeas Corpus distinguished from other writs 7. Who may apply? 8. Procedure 9. When may be refused? 10. Duty of Court 11. Compensation 12. Habeas Corpus & Emergency Powers 13. Grounds of Issue 14. Judgements 15. Article on Habeas Corpus Case 16. Conclusion 17. Bibliography

Introduction
The Constitution of India provides various Fundamental rights to all its citizens. The provisions for proper enforcement of these Fundamental rights are also given in the Constitution. In simple terms, enforcement of the Fundamental rights is safeguarded with the help of 5 prerogative Writs. Writs are nothing but written orders of the court ordering a party to whom it is addressed to perform or cease from performing a specified act. So Article 32 empowers the Supreme Court while Article 226 empowers the High Courts to issue writs against any authority of the State inorder to enforce the Fundamental rights. The State is defined under Article 12 of the Constitution and includes the Government and the Parliament of India, Government and the Legislatures of the States and all other authorities within the Indian Territory or under the control of Government of India. Other authorities is an expression that includes business organizations and citizens. Writs - Provisions in Indian Constitution The Indian Constitution empowers the Supreme Court to issue writs for enforcement of any of the fundamental rights conferred by Part III of Indian Constitution under Article 32. Thus the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen. The Right to Constitutional Remedies, as we know, is a guarantor of all other fundamental rights available to the people of India. In addition to the above, the Constitution also provides for the Parliament to confer on the Supreme Court power to issue writs, for purposes other than those mentioned above. Similarly High Courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.

Types of Writs
There are five types of Writs - Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto. 1. Writ of Habeas Corpus: One of the valuable writs for personal liberty is Habeas Corpus which means You may have the body. If any person is detained in prison or a private custody without legal justification; this writ is issued to the authority confining such person, to produce him/her before the Court. The Court intervenes here and asks the authority to provide the reasons for such detention and if there is no justification, the person detained is set free. The applicant for this writ can either be the person in detention or any person acting on his/her behalf to protect his/her liberty. This writ provides for immediate relief in case of unlawful detention. For instance : the first Habeas Corpus casein India was filed in Kerala where P. Rajan, a college student was arrested by the Kerala police and he died in custody unable to bear the torture. His father Mr T.V. Eachara Warrier filed a Habeas Corpus writ and it was proved that Rajan died in police custody. Habeas-corpus is a Latin term which literally means "you may have the body". Under the law of England, as a result of long usage, the term came to signify a prerogative writ; a remedy with which a person unlawfully detained sought to be set at liberty. It is mentioned as early as the fourteenth century in England and was formalised in the Habeas-corpus Act of 1679. The privilege of the use of this writ was regarded as a foundation of human freedom and the British citizen insisted upon this privilege wherever he went whether for business or colonisation. 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 that Constitution. In India, under the Constitution, the power to issue a writ of habeas-corpus is vested only in the Supreme Court and the High Courts. The writ is a direction of the Court to a person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a specified place for a specified purpose.

A writ of habeas-corpus has only one purpose: To set at liberty a person who is confined without legal justification: to secure release from confinement of a person unlawfully detained. The writ does not punish the wrongdoer. If the detention is proved unlawful, the person who secures liberty through the writ may proceed against the wrongdoer in any appropriate manner. The writ is issued not only against authorities of the State but also to private individuals or organizations if necessary The concept of writ essentially originated in England & to issue appropriate writ was always considered to be a prerogative of the crown. One of such important prerogative writs originated in England is known as the writ of habeas corpus. The writ of habeas corpus has always been looked upon as an effective means to ensure release of the detained person from the prison. It must be emphasized that the primary purpose of the writ is & was to inquire into the legality of the detention .However, even when writ of habeas corpus is issued, it does not automatically exonerate the detained person from liability. It merely ensures his release from the prison & it does not have any bearing on his guilt or otherwise. This writ has been frequently used in a number of cases by various courts. For instance, in Sommersetts case1 , writ of habeas corpus was issued to secure the release of slaves from an illegal detention. In Ex.P. Daisy Hopkins2, writ of habeas corpus was used to release a young lady who had been detained by the Vice Chancellor of Cambridge University to a local prison known as the Spinning House for walking in the streets with a member of the University. Therefore writ of habeas corpus goes a long way in providing an effective remedy in case of unjustified detention by the detaining authority. The Indian judiciary in a catena of cases has effectively 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
1 2

(1772) 20 St.Tr.1 (1891) 61 L.J.Q.B. 240

going one step further, has also dispensed with strict rules of pleadings. The increasing scope of writ of habeas corpus may be explained with the help of following cases decided by the Indian judiciary. 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. 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. In Nilabati Behera v. State of Orissa5, the Orissa police took away the son of the petitioner for the purposes of interrogation & he could not be traced. During the pendency of the petition, his dead body was found on railway track The petitioner was awarded compensation of Rs. 1, 50, 000. In Malkiat Singh v. State of U.P. 6, the son of a person was allegedly kept in illegal custody by the police officers. It was established that the son was killed in an encounter with the police. The court awarded Rs.5,00,000 as compensation to the petitioner. Conclusion: In this manner, writ of habeas corpus has been used effectively by the judiciary for protecting personal liberty by securing the release of a person from illegal custody

3 4

AIR 1973 SC 2684 AIR 1983 SC 378 5 AIR 1993 SC 1960 6 AIR 1999 SC 1522

2. Writ of Certiorari: The meaning of Certiorari is to be certified. This writ is issued when any lower court or a tribunal exercises a wrongful jurisdiction and decides the case. The party affected can move this writ to higher courts like the High Court or the Supreme Court. Writ of Certiorari can be issued to the quasi-judicial or subordinate courts when they act:

In excess or without any jurisdiction In contravention to the principles of Natural justice In violation of the prescribed procedure as established by law Resulting in an error of judgment apparent on the face of it.

The writ of Prohibition and Writ of Certiorari are similar except for the time of their issuance. The former is issued before the passing of the order by the lower court while the latter is issued after passing of the order. 3. Writ of Mandamus: The term Mandamus in Latin means We command. This writ is issued to a public official who refrains from performing his public duties which he is obliged to do. This writ can also be issued to any public authority (including the government, corporation and Court) commits an act which is detrimental to the welfare of the general public. This writ however cannot be issued against the President and the Governor. 4. Writ of Quo-Warranto: By what warrants? is the literal meaning of the term QuoWarranto. The issuance of this writ takes place to restrain a person from acting in public office to which he is not entitled. In simple words, if a person occupies a public office without being qualified for the office, then this writ is issued to restrain the concerned authority from discharging his duties. The High Court of that particular state has the authority to issue this writ and direct the person to vacate the office in question. The writ of Quo-Warranto is issued in 3 instances when

The office in question is a public office and is substantive in nature. The State or the Constitution has created the office The public servant (respondent) should have asserted a claim on the office.

5. Writ of Prohibition: Writ of Prohibition is issued to a subordinate to cease doing something which it is not supposed to do as per law. Normally, this writ is issued by the superior courts to the lower courts when the lower court tries to exceed the limit of jurisdiction vested in it. Likewise, if the court acts in absence of jurisdiction, this writ can be issued. Once this writ is issued the lower court is under an obligation to stop its proceedings. One cannot issue this writ against a public official who does not have judicial or quasi-judicial powers. This writ is issued before the lower court passes an order.

HABEAS CORPUS
The writ of Habeas Corpus is one of the most ancient writs known to common law of England. The latin phrase habeas corpus means have the body. This is a writ in the nature of an order calling upon the person who has detained or arrested another to produce the latter before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal justification for the imprisonment7. In other words, by this writ, the court directs the person or authority who has detained another person to bring the body of the prisoner before the court so that the court may decide the validity, jurisdiction or justification for such detention. The writ of Habeas Corpus is a process by which an individual who has been deprived of his personal liberty by any executive act, may have the validity of such act tested before a superior court. Habeas Corpus is thus a bulwark of personal liberty. The most characteristic element of the writ of Habeas Corpus is its peremptoriness, i.e. a speedy and effective remedy for having the legality of detention of the person enquired and determined by the Court.

State of Bihar v. Kameshwar, AIR 1965 SC 575

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Aim
The writ of Habeas Corpus provides a prompt and effective remedy against illegal restraints. The principal aim is to provide for a swift judicial review of an alleged unlawful detention. 8 As Lord Wright states, the incalculable value of habeas corpus is that it enables the immediate determination of the right of the appellants freedom.9 The writ of habeas corpus has been described as a great constitutional privilege. And if the court comes to the conclusion that there is no legal justification for the imprisonment of the person concerned, the court will pass an order to set him at liberty forthwith.10 Thus the object of the writ of habeas corpus is to release a person from illegal detention and not to punish the detaining authority. The question for a habeas corpus is whether the subject is lawfully detained. If he is, the writ cannot issue, if he is not, it must issue.11 The merit of the case or the moral justification for imprisoning the petitioner is no relevant consideration in a proceeding for habeas corpus. Thus, a person charged with high treason or murder is entitled to be set at liberty, if his imprisonment has not taken place in due course of law.12 Blackstone states: It is a writ antecedent to statute, and throwing its root deep into the genus of our common law It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I.13 In the leading case of A.D.M., Jabalpur v. Shivkant Shukla14, Khanna, J. stated the writ of habeas corpus is a process for securing the liberty of the subject by affording an effective means of immediate relief from unlawful or unjustifiable detention, whether in prison or private
8 9

Carafar v. Lavalee, 391 US 234 Greene v. Secy. Of Home Affairs(1942) AC 284 10 Ghulam Sarwar v. Union of India, AIR 1967 SC 1335 11 R. v. Home Secy. Exp. Greene, (1941) 3 AER 104 12 Exparte OBrien, (1923) LKB 361 13 Comm.(Vol. 3) at p. 131 14 AIR 1976 SC 1207

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custody. By it the High Court and the Judges of that court, at the instance of a subject aggrieved, command and the production of that subject and inquire into the cause of his imprisonment. If there is no legal justification for that detention, the party is order to be released.

Brief History
In England, habeas corpus is of common law origin. In India, the jurisdiction to issue prerogative writs came with the establishment of Supreme Court at Calcutta, Bombay and Madras under the Regulating Act, 1773. On abolition of Supreme Courts and establishment of High Courts, the said power had been conferred on High Courts. Under the Constitution of India, the Supreme Court (Article 32) and all High Courts ( Article 226) have power to issue a writ of habeas corpus.

Habeas Corpus distinguished from other writs

Habeas corpus differs from other writs. In habeas corpus, the court directs the detaining authority to release the detenu/prisoner while in mandamus, it orders a public authority to discharge its duty imposed by the Constitution, statute or Common Law. Habeas corpus is available in case of imprisonment by public (or even private) authority, prohibition is available only against judicial or quasi-judicial bodies. Whereas Habeas Corpus can be issued only after a person is in custody, prohibition can be sought before an order is passed or action is taken. Habeas corpus differs from certiorari in that it directs the authority to bring the body of the prisoner, certiorari requires production of the record of the lower court or tribunal. Habeas corpus protects personal liberty and freedom of the individual, quo warranto guards public office and prevents usurper from occupying it.

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Who may apply?

There is no hard and fast rule for making an application for a writ of habeas corpus u/a 32 before the Supreme Court or u/a 226 before the High Court. An application for habeas corpus can be made by any person on behalf of the prisoner as well as the prisoner himself.15 Courts can act suo motu in the interests of justice, on any information conveyed to it by any one.16 The general principle is that a person illegally detained in confinement without legal proceedings is entitled to seek the remedy of habeas corpus. However, it is not necessary that the detenue should alone apply. Even a letter to the judge mentioning illegalities committed on prisoners in jail can be admitted.17

Procedure
Every application for the writ of habeas corpus must be accompanied by an affidavit stating the facts and circumstances leading to the making of such an application. If the court is satisfied that there is a prima facie case for granting the prayer, it will issue a rule nisi calling upon the detaining authority on a specified day to show cause as to why the rule nisi should not be made absolute. On the specified day, the court will consider the merits of the case and will pass an appropriate order. If the court is of the opinion that the detention was not justified, it will issue the writ and direct the detaining authority to release the prisoner forthwith. On the other hand, if according to the court, the detention was justified, the rule nisi will be discharged. Where there is no return to the rule nisi, the prisoner is entitled to be released forthwith. 18 In exceptional circumstances, a petition is maintainable even if the person is not actually detained.19

15 16

Charanjit Lal v. Union of India, AIR 1951 SC 41 Ram Kumar v. District Magistrate, Delhi, AIR 1966 Punj 51 17 Sunil Batra v. Delhi Administration, AIR 1980 SC 1579 18 State of Bihar v. Kameshwar, AIR 1965 SC 575 19 S.M.D. Kiran Pasha v. Govt. of A.P. (1990) 1 SCC 328

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When may be refused?

Since the object of the writ of habeas corpus is remedial and not punitive, the legality or otherwise of the detention must be decided by the court with reference to the date of return of the rule nisi and not with reference to the date of making such applications. Thus, the writ would not be issued if at the time of the rule nisi, the prisoner was not illegally detained, even though at the time of detention the order was illegal.20 Similarly if the during the pendency of the petition for the writ of habeas corpus the prisoner is released, it will become infructuous.21

Duty of Court
The liberty of an individual is the most cherished of human freedoms and cases of gravest emergencies, judges have played a historic role in guarding that freedom with zeal and jealousy. The duty of the court is to safeguard a mans freedom against any encroachment on life and liberty. Also it is the duty of the court to strike a balance between the need to protect community on the one hand and the necessity to preserve the liberty of a citizen on the other.22

Successive Applications
In England, as has been in Re Hastings (II) Case23, a person has no right to present successive applications for the writ of habeas corpus. But as regards Indian law, it has been authoritatively held by the Supreme Court in Ghulam Sarvar v. Union of India, that the person detained can file an original application for enforcement of his Fundamental Rights to liberty before a Court rather than the High Court, i.e. the Supreme Court of India. The order of the High Court in the said writ does not operate as res

20 21

Naranjan Singh v. State of Punjab, AIR 1952 SC 106 Talib Hussain v. State of J&K, (1971) 3 SCC 118 22 ADM v. Shivkant Shukla, AIR 1976 SC 1207 23 (1959) AC 368

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judicata as the constructive res judicata. Thus this is an exception to the principle of res judicata which applies to other writs also. Similarly in Lallubhai Jogibhai v. Union of India24, the Supreme Court held that when a writ petition challenging an order of detention is dismissed by the Court, a second petition can be filed on fresh grounds which were not taken in the earlier petition for the same relief.

Compensation
Ordinarily, while exercising powers under Article 32 or 226 of the Constitution, a writ-court will not award compensation. In appropriate cases, however, the court may award monetary compensation to the person who has been illegally arrested or detained. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of the Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation.25

24 25

AIR 1981 SC 728 Rudul Shah v. State of Bihar, AIR 1983 SC 1086

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Habeas Corpus and Emergency Powers of Executive

Article 359 empowers the President to suspend the right to move any court for enforcement of any of the Fundamental Rights conferred by Part III of the Constitution. In Mohan Chowdhary v. Chief Commissioner26, the Supreme Court rejected the detenus petition under Article 32 on the ground that it was barred by the Presidential order declaring the emergency. In Makhan Singh v. State of Punjab27, the Supreme Court held that it cannot issue a writ of habeas corpus to set at liberty a person detained under the Defence of India Act, 1962 even though his detention was not in accordance with the Fundamental Rights guaranteed under the Constitution. However the Presidential order does not debar the jurisdiction of the court to decide as to whether the order of detention was under the Defence of India Act, 1962 or Rules framed thereunder. It is also open to the petitioner to contend that the order was malafide or invalid and in either of the cases, he was entitled to move the Court for setting aside the order of detention. The question is whether the right of personal liberty exists apart from the provisions of the Constitution as raised in the Habeas Corpus Case28. The matter before the Supreme Court was whether despite the Presidential order it was possible to the detenues to challenge their detention on the ground that it is ultra vires the Act. The Supreme Court by majority of 4:1 reversed the unanimous view of the High Court by passing the following order: In view of the Presidential Order, dated June 27, 1975, no person has any locus standi to move any writ petition u/a 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fide factual or legal or is based on extraneous considerations.

26 27

AIR 1964 SC 173 AIR 1964 SC 381 28 ADM, Jabaplur v. Shivkant Shukla, AIR 1976 SC 1207

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Grounds for issue

The traditional function of the writ of habeas corpus has been to get the release of a person wrongfully or unlawfully detained or arrested. However in Sunil Batra v. Delhi Administration29 Krishna Iyer, J. opened new vistas for the issuance of the writ of habeas corpus. In this case a convict had written a letter to one of the Judges of the Supreme Court alleging inhuman torture to a fellow convict. Krishna Iyer treated this letter as a petition of habeas corpus. The learned judge followed a series of American cases employing the writ of habeas corpus for the neglect of State penal facilities overcrowding, understaffing, insanitary facilities, brutality, segregation, isolation, etc. The Supreme Court has widened its scope by giving relief through the wit against inhuman and cruel treatment meted out to prisoners in jail. In Sunil Batra (II) the court observed that the dynamic role of judicial remedies.. imparts to the habeas corpus writ a versatile vitality and operational utility that makes the healing presence of the law live upto its reputation as bastion of liberty even with the secrecy of the hidden cell. The decision of the Supreme Court in Maneka Gandhi v. Union of India30 has electrified the whole concept of liberty by holding that procedure established by law in Article 21 means fair and reasonable procedure. Accordingly, writ of habeas corpus would lie if the law deprives a person of his liberty is not fair and just.

29 30

AIR 1980 SC 1579 AIR 1978 SC 597

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Important Judgements regarding Habeas Corpus

In the case of S. Soundarajan v. Union of India31 a petitioner was convicted by a Court martial for criminal misappropriation of money and was sentenced to a term of imprisonment. Rejecting his petition for a writ of habeas corpus, the HC stated that habeas corpus was not available to question the correctness of a decision by a legally constituted Court of competent jurisdiction. The High Court can go into questions of jurisdiction of the Court martial, or whether it was properly constituted, or whether there was such an irregularity or illegality as would go to the root of its jurisdiction. In another case of Anwar v. State of Jammu & Kashmir32 , the court held that a foreigner who enters India secretly cannot claim freedom of movement, and his detention with a view to expel him from India is not illegal. In Madhu Bala v. Narendra Kumar33 , the court was of the opinion that Habeas Corpus may also be issued when a person complains of illegal custody or detention by a private person. Similarly in Gohar Begum v. Suggi34 , the judges opined that when conflicting claims are made for the custody of an infant, the Courts can enquire into these claims and award the custody to the proper person. In the recent case of Shaukat Hussain Guru v. State (NCT) of Delhi35 , after dismissal of criminal appeal, review petition and curative petition, the petitioners plea that the Supreme Court allowed his appeal to the extent that his conviction u/s 121 of IPC was set aside, but he was convicted u/s 123 of IPC read with S. 39 of Cr.PC though this was not the charge against him, and therefore he was deprived of opportunity to defend himself. The court held that this aspect had been considered while dismissing review and curative petitions and entertaining fresh petition u/a 32 on the same ground would require setting aside the orders passed in R&C.
31 32

AIR 1970 Del. 29 AIR 1971 SC 337 33 AIR 1982 SC 938 34 AIR 1960 SC 93 35 (2008) 6 SCC 776 ; AIR 2008 SC 2419

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Article on A.D.M., Jabalpur v. Shivkant Shukla36

April 28th, 1976 is a day never to be forgotten by any of us Indians who love the pledges of Justice and Liberty which we gave to ourselves in the Preamble of our Constitution. It was on this day when four of the five senior most Judges of the Supreme Court (including the Hon'ble Chief Justice) struck the first mortal blow to these cherished dreams enshrined in our Constitution. On this day during the Emergency the Supreme Court sank to its lowest when it decided the infamous Habeas Corpus Case with the following conclusion: "In view of the Presidential Order dated 27th June 1975 no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations."

The Presidential Order referred to was the one issued during Emergency declaring that the right of any person to move any Court for any enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamation of Emergency are in force.

28th April, 2001, we complete twenty-five years of this horrific day when four of the five senior most Judges of the Supreme Court of the world's largest democracy could unabashedly declare that under those circumstances no one could seek the assistance of any court in India to try and save his liberty, life or limb threatened to be taken away by the State. A day, which produced a judgment so shameful that even Hitler would have blushed, had he the opportunity to peruse it!

The question was simple: Despite the Presidential proclamation, can the High Court entertain a writ of habeas corpus filed by a person challenging his detention? All High Courts that had answered the question, had done so in the affirmative and had kept their doors open to those unfortunate who dared risk the wrath of some petty governmental official.
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AIR 1976 SC 1207

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Against the unanimous decision of the High Courts, four of the five senior most Hon'ble Justices of the Supreme Court thought it fit to rule otherwise. They were the then Chief Justice A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. The Supreme Court had effectively ordered the High Courts to slam shut their doors and windows. The lone dissenting voice was that of Justice H.R. Khanna of whom the New York Times remarked: 'surely a statue would be erected to him in an Indian city'.

Justice Khanna, conscious of his aloneness, ended his judgment with a quote: "As observed by Chief Justice Huges, Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to use his words is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible correct the error into which the dissenting Judge believes the court to have been betrayed."

Justice Khanna paid the price for his dissent. He was next in line to become Chief Justice of India. He resigned when his junior, Justice M.H. Beg, superseded him. That was justice, Indira Gandhi style.

It all started with the election of Mrs. Indira Gandhi, the then Prime Minister, which had been held to be invalid by the Allahabad High Court. Wanting to cling to the chair at any cost, she chose to declare emergency as on 25th June 1975 - the pretext being 'internal threat' to India (read INDIRA). Censorship muzzled the Press, which could not publish the numerous arrests of vast sections of people. Any person who was considered to be a political threat, or who could politically voice his opposition was detained without trial under Preventive Detention laws one of which was the dreaded MISA (Maintenance of Internal Security Act). The opposition was silenced. The common man terrorized.

Many who had been arrested challenged their detention by filing writs of habeas corpus under Article 226 in various High Courts. In most High Courts, the State Governments had raised the

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issue as to whether such writs were maintainable on the ground that in light of the Presidential Order the right to file such writ was taken away. The High Courts of Allahabad, Andhra Pradesh, Bombay, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab, and Rajasthan had all rejected the Government's argument and held that despite the suspension of fundamental rights, a person detained could demonstrate that their detention was not in compliance with the law (under which he or she was detained), or that the State action was mala fide, or that there was a mistake of identity. Having received a drubbing nine to nil, the Government (read Indira Gandhi) decided to appeal against these decisions to the Supreme Court. It was thus that the Constitutional bench of five Judges came to be constituted to hear and decide the most crucial case in Indian legal history referred to in all law reports as A.D.M. Jabalpur vs. Shivkant Shukla.

Niren De, the then Attorney General began the arguments on 14th December 1975. He focused on the aspect of 'liberty' as found in Art.21 of the Constitution. His central contention was that since the right to move any Court had been suspended, the detenue had no locus standi and their writ petitions would necessarily have to be dismissed. It was on the next day that Justice Khanna was to ask the first uncomfortable question. "Life is also mentioned in Article 21 and would Government argument extend to it also? There was no escape. Without batting an eyelid Niren De answered, 'Even if life was taken away illegally, courts are helpless'. [Remember the Nazi holocaust]. The case was argued for over two months. Judgment was reserved. It was only when an application was moved for the pronouncement of the judgment that it was read in open Court on that dark and ignominious 28th April 1976.And so was delivered the biggest blow to the Supreme Court, by the Supreme Court.

This one case is a glaring example of how the four wise Judges of the Supreme Court tried to outdo themselves in being more loyal to the throne than the king himself. The final order goes way beyond what was demanded of them by the plea of the Union of India. All the individual judgments of Ray (C.J.), Beg, Chandrachud & Bhagwati (JJ) record in extension the submissions of the Attorney-General on behalf of the government wherein he made the claim that the detenue had no right to approach the Court to challenge his detention.

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They also record the concession of the Attorney-General to the effect that despite this general ban the Courts may grant relief if the detention order is on the face of it bad, as for example, if it is passed by a person not authorized to pass it, or if it is passed for a purpose outside those mentioned in Section 3(1) of the MISA or if it does not bear signature at all. The Attorney General had thus handed over to the Supreme Court the same key with which all High Courts had earlier used to keep ajar their doors for the detenues to squeeze through and enter. The Supreme Court, instead, preferred to throw away this key to their own self-respect. The majority judgment, literally taken, and as understood thereafter by all High Courts, clearly directed that detenues were to be stopped at the doors if not in the corridors of the halls of Justice.

Another shocking aspect of A. D. M. Jabalpur is that it establishes beyond doubt our Judges do really live in ivory towers totally oblivious of the ground realities. In speaking of the Emergency and the condition of those detained Justice Beg has this to say: "We understand that the care and concern bestowed by the State authorities upon the welfare of detenues who are well housed, well fed and well treated, is almost maternal." Justice Chandrachud went further in his eulogy when he ended his Judgment stating: "Counsel after counsel expressed the fear that during the emergency, the executive may whip and strip and starve the detenue and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a diamond-bright, diamond-hard hope that such things will never come to pass." Chief Justice Ray had the audacity to chide counsel for the detenues who brought to mind the nazi gas chambers. He voiced his belief that people who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country.

We will never know if any of these men ate their words when a year later on 24th May, 1977 The Times of India reported: "The Calicut Regional Engineering student Mr. P. Rajan, 'died while in unlawful police custody at Kakayam Police Camp on 2 March 1976, as a result of continuous police torture with iron and wooden rollers'. This was admitted in the returns filed in the form of affidavits by respondents, including the former Chief Minister, Mr. K. Karunakaran before the Div. Bench of the Kerala High Court."

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A special mention must be made of Justice Bhagwati the man who had a knack with words and who knew how to use them to play to the gallery. Though Justice Khanna had held high the torch of freedom, it was Justice Bhagwati who spoke grandiosely about liberty. It was Mark Anthony updated for the occasion telling us how much he loved liberty, but, how much more he loved the law. Let us read his own words: "I have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most cherished values of mankind, without it life would not be worth living. It is one of the pillars of free democratic society. Men have readily laid down their lives at its altar, in order to secure it, protect it and preserve it. But I do not think it would be right for me to allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the Constitution a construction which its language cannot reasonably bear."

Yes, his intense love for the Constitution could not permit him to read into it things which were not there. Yet, all this he did, and much more a little later in the case of Indira Gandhi's daughter in law, Maneka Gandhi, when the Janata Government had impounded her passport. When it came to the then famous daughter-in-law's case, Justice Bhagwati read the Constitution like a visionary and prophet finding within its pages and between the lines the famous principle that laws have to be 'right, just and fair, and not arbitrary, fanciful or oppressive'. He also brought in the theory that the soul of natural justice was fair play in action.

Last year on 25th June we brought back to mind the proclamation of Emergency being the start of the darkest period in Indian democracy. If this were so then we should never forget that during this dark period, the 28th April, 1976, was its blackest day. It is all the more important to remember this day since we the people of India have grown accustomed to being ruled by preventive detention laws where thousands are being jailed without trial. Over and above this, Government after Government is attempting to bring in laws which put to shame both MISA and TADA combined. The Judiciary has failed us once. If we, the people of India, forget this, we will be condemning ourselves sooner or later to history repeating itself. So let us always remember A.D.M. Jabalpur.37

37

When the Supreme Court struck down the Habeas Corpus ; Jos. Peter D 'Souza ; PUCL Bulletin, June 2001

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Conclusion
From the leading decisions, the following principles regarding a writ of habeas corpus emerge: 1) A writ of habeas corpus is a remedial writ, which can be used in all cases of wrongful deprivation of individual freedom and personal liberty. 2) It, however, cannot be employed to impeach or otherwise challenge the correctness or propriety of a decision rendered by a court of competent jurisdiction unless the decision is void or without jurisdiction. 3) An order of release by habeas corpus does not per se amount to discharge or acquittal of the prisoner. 4) Since a writ of habeas corpus is not punitive in nature, it cannot be utilized as an instrument of punishment of one who has wrongfully arrested or detained another person or parted with his custody. 5) A prisoner or detenu himself or his relative or his friend or any other person interested in the prisoner can move the court for a writ of habeas corpus. 6) A writ of habeas corpus is available not only to for release from detention by the State but also for release from private detention. 7) While issuing a writ of habeas corpus, the Court can award compensation or damages as a consequential or ancillary relief. 8) General principles of res judicata apply even to habeas corpus proceedings, but on fresh grounds a subsequent petition for the same relief is maintainable even after the dismissal of the earlier one. 9) Even during Emergency, a writ of habeas corpus for the enforcement of the fundamental rights guaranteed u/a 20 and 21 is maintainable.

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BIBLIOGRAPHY
Books Lectures on Administrative Law C.K. Takwani Administrative Law J.J.R. Upadhaya The Indian Administrative Law M.C. Jain Kagzi Indian Constitutional Law M.P. Jain Websites www.google.com www.scconline.com www.pucl.com