Internal assessment ( test) questions

Subject : ADMINISTRATIVE LAW

Part –A (7 Marks )
2). What is the writ of Habeas Corpus? Explain the grounds for issue of Habeas
Corpus.

Meaning of the writ of habeas corpus

The writ of habeas corpus is the legal procedure which acts as a remedial measure
for the person who is illegally detained. The term habeas corpus is the Latin word
which means to bring or present the body before the court. It is the most important
right available to the person detained unlawfully. The basic purpose for which this
writ is used is to release a person from unlawful detention or imprisonment. This writ
is of great importance as it determines a person his right to freedom and personal
liberty.

Nature of the writ of habeas corpus

The concept of habeas corpus can be traced way back in the thirteenth century. The
writ of Habeas corpus cum causa is an order calling upon the person who has
detained another person, to present the person in the court and justify his actions
that on what grounds and under what authority he has confined that person. If the
court doesn’t find any legal justifications for the cause, then it will order for the
immediate release of the person confined or imprisoned.

Who may apply for the writ of habeas corpus

To answer this question the courts have made this clear in various cases that the
person who may apply for the writ of habeas corpus should be

 The person confined or detained illegally.

 The person who is aware of the benefit of the case.
 The person who is familiar with the facts and circumstances of the case and
willingly files an application of the writ of habeas corpus under article 32
and 226 of the Indian constitution.

Grounds of Habeas Corpus

The following grounds may be stated for the grant of the writ:-
1) The applicant must be in custody;

2) The application for the grant of the writ of habeas corpus ordinarily should be by the
husband or wife or father or son of the detenu. Till a few years back the writ of habeas
corpus could not be entertained if a stranger files it. But now the position has completely
changed with the pronouncements of the Supreme Court in a number of cases. Even a
postcard written by a detenu from jail or by some other person on his behalf inspired by
social objectives could be taken as a writ-petition.

3) In Sunil Batra v. Delhi Administration, [2]the court initiated the proceedings on a letter by a
co- convict, alleging inhuman torture to his fellow convict. Krishna Iyer, J., treated the letter
as a petition for habeas corpus. He dwelt upon American cases where the writ of habeas
corpus has been issued for the neglect of state penal facilities like over-crowding, in sanitary
facilities, brutalities, constant fear of violence, lack of adequate medical facilities, censorship
of mails, inhuman isolation, segregation, inadequate rehabilitative or educational
opportunities.

4) A person has no right to present successive applications for habeas corpus to different
Judges of the same court. As regards the applicability of res judicata to the writ of habeas
corpus the Supreme Court has engrafted an exception to the effect that where the petition
had been ejected by the High Court, a fresh petition can be filed to Supreme Court under
Article 32.

5) All the formalities to arrest and detention have not been complied with and the order of
arrest has been made mala fide or for collateral purpose. When a Magistrate did not report
the arrest to the Government of the Province as was required under Section 3(2) of the
Punjab Safety Act, 1947, the detention was held illegal.

6) The order must be defective in substance, e.g., misdescription of detenu, failure to

mention place of detention etc. Hence complete description of the detenu should be given in
the order of detention.

7) It must be established that the detaining authority was not satisfied that the detenu was
committing prejudicial acts, etc. It may be noted in this connection that the sufficiency of the
material on which the satisfaction is based cannot be subject of scrutiny by the Court.

Where the detaining authority did not apply his mind in passing the order of detention, the
court will intervene and issue the order of release of the detenu. Vague and indefinite
grounds of detention, where the detaining authority furnishes vague and indefinite grounds, it
entitles the petitioner to release.

Case
Additional district magistrate of Jabalpur v. Shiv Kant Shukla 1976 SC 1207

This case is also known as the habeas corpus case and it was based upon the
grounds of issuance and the viability aspect of this writ. This whole case spins
around the situation when the emergency was proclaimed and the question was
raised whether the writ of habeas corpus is maintainable in this situation or not. It
was held that as in the case of Liversidge v. Anderson during emergency all the
rights were held suspended, the same was held in the instant case where a state has
the power to restrain the rights especially right to life enshrined under article 21 of
the Indian constitution in an emergency situation. This decision was considered to be
the darkest day of Indian history.

Part –B (3 Marks )

1. An institution passed an order debarring a student from entering into the

premises of the college and from attending the classes till the pendency
of criminal case against him for stabbing a co student. Is the order valid,
decide.

Natural Justice
 Rules of natural justice had developed with the growth of human
civilization. It is not the creation of Constitution or mankind. It
originated along with human history. In order to protect himself
against the excess of organized power, man has always appealed to
someone which is not been created by him and such someone could
only be God and His laws, Divine law or Natural law, to which all
temporal laws must and actions must conform. It is of ‘higher law of
nature’ or ‘natural law’ which implies fairness, reasonableness, equity
and equality. Natural justice rules are uncodified laws. It is not possible
to define precisely and scientifically the expression ‘natural justice’.
They are basically common – sense justice which are built- in the
conscience of human being. They are based on natural ideals and
values which are universal in nature. ‘Natural justice’ and ‘legal justice’
are substances of ‘justices’ which must be secured by both, and
whenever legal justice fails to achieve this purpose, natural justice has
to be called in aid of legal justice. Natural justice has an impressive
history which has been recognized from the earliest times. The Greeks
had accepted the principle that ‘no man should be left unheard’. It was
first applied in ‘Garden of Eden’ where opportunity to be heard was
given to Adam and then providing him punishment. When we say
about Principle of Natural Justice, there are mainly two principles
which must be followed: 1.Nemojudex in causa sua: No man shall be a
judge in his own cause, or the deciding authority must be impartial
and without bias. 2. Audi Alteram Partem: To hear the other side, or
both the sides must be heard, or no man should be condemned
unheard, or that there must be fairness on the part of the deciding
authority.

But, in this case natural justice could not be applicable because of public
interest, maintain campus peace. In Abay Kumar V.K Srinivasan ,AIR
1981 Delhi 381 case the institution passed an order debarring the student
from entering the premise of institution and attending the classes till the
pendency of criminal case against him for stabbing a co-student. This
order was challenged on the ground of denial of natural justice. The Delhi
high court rejecting the contention held that the such an order could be
compared with an order of suspension pending enquiry which is privative
nature in order to maintain campus peace and hence the principle of
natural justice shall not apply.

Any act or thing done against the interest of the general public will be held
void ab initio. As barring the democratic country, the law are made for the
benefit of the public. Hence , if there is a hidden of the public in any
issue , then the principle of Audi Alterem Partem will be excluded.