i

CHAPTER 1

INTRODUCTION

In 2018, the Hadiya case1 projected an inter-faith couple’s personal choices into the
national limelight, with a judicial intervention by the Apex Court chastising the Kerala
High Court’s decision to annul the marriage following a habeas corpus petition. The writ of
habeas corpus being invoked in a case of marriage against the parents’ wishes is an
excellent example of the widening scope of the writ. From being the fundamental writ to
secure the liberty of individuals from State detention, habeas corpus has permeated all
sections of cases wherever illegal custody is an issue. Perhaps, its use in cases against
private individuals was not a transformation in itself and delineating it temporally might
not be possible, but for a writ that was essentially envisaged to uphold liberty in cases
involving the State and its subjects, it does not have any parallels in the Constitution in its
ability to be used in cases between citizens. This dual nature of the writ merits deeper
exploration in light of how the Courts navigate questions of choice and self-determination
in these two types of cases. As is well documented by Pratiksha Baxi in her piece on
‘elopement’ cases2, the use of habeas corpus to have females ‘returned’ to their parents or
guardians is a common fixture resorted to in order to decide who the person in question
will reside with, with the victim’s choice and opinion being the casualty in such
proceedings.

The mention of the writ of habeas corpus conjures up a caricature of individuals

approaching the Court to secure their release from illegal detention. In India, from
cases of preventive detentions to enforced disappearances by the armed forces, the
writ can be invoked either through A.226 (for the HC) or A.32 (for the SC) seeking
orders for their release. AK Gopalan v State of Madras3, one of the first cases
challenging the violation of the fundamental right to liberty under A.21 was a habeas
corpus petition. The infamous ADM Jabalpur v Shivkant Shukla4, referred to as the
Habeas Corpus case, was another landmark decision in the wake of the suspension of
the writ during the emergency in India in 1975. The State had argued that during an
emergency, its

1
Shafin Jahan v. Ashokan KM & Ors. AIR 2018 SC 1933
2
PRATIKSHA BAXI, HABEAS CORPUS: JURIDICAL NARRATIVES OF SEXUAL GOVERNANCE (2009)
1
3
AK Gopalan v. State of Madras AIR 1950 SC 27
4
ADM Jabalpur v Shivkant Shukla (1976) 2 SCC 521

2
Considerations took supreme importance and that since the suspension was permitted
constitutionally under A.359, as it was then 5, the State was justified to hold persons in
detention without giving them an opportunity to challenge the detention. The Court
decided in favor of the State, holding that the recourse to the writ of habeas corpus for
unlawful detentions was not available when there is a state of emergency.

Juxtaposed against this use of the writ in detentions by the State, is the increasing use
of the writ against detentions by individuals. For example, it is used in child custody
cases, especially international child abductions by either parent. Since India is not a
signatory to The Hague Convention on the Civil Aspects of International Child
Abduction 1880 (The Hague Convention), the writ becomes a quick and often
efficacious tool for granting interim custody of children to the concerned party. The
writ has also been a popular remedy for parents seeking the ‘recovery’ of their
daughters who have married against their wishes, often into different castes and
religions. The enlarged meaning of locus standi6 for the writ means that multiple
parties can stake their claims to the female’s body.

The motivation for this study was triggered by my personal experiences with the legal
system. One of my first experiences watching a Court decide a habeas corpus petition
was during my internship at the Kerala High Court in 2014. A writ had been issued
for the production of a married lady who had left her two young daughters and
husband to live with another man. On the date of the appearance, the children were
dressed up in their prettiest Sunday clothes, looking angelic and quite bewildered in a
crowded court room. When the lady was brought before the Court, the Division Bench
asked her whether she wanted to return to her family, to which she mumbled an
almost inaudible ‘No’ in Malayalam. The Judge asked her again and this time she
emphatically answered in the negative, though looking at the floor, as her husband
and children stood behind her. With a sigh, the judge informed the husband that if she
did not want to come back, the Court could not force her. In a few minutes, a court
room full of strangers had turned against a female that they did not know, because she
had admitted and verbalised her choice to ‘abandon’ her family. The dynamics of
power play and emotional bargains that happen in a public setting such as the court
room can be quite overwhelming for

5
By the 44th Amendment to the Indian Constitution articles 20 and 21 cannot be suspended during an
Emergency.
3
6
Discussed in detail at p.1-2 of sub-section 3.1 of Chapter 3.

4
Any person not used to the rigmarole of the law. Exposing a family unit to glaring
eyes, compelling the female to announce her choice in an open courtroom and
subjecting the husband and children to witness their rejection can be a tumultuous
journey to undertake in a court of law. However, the scope of the habeas corpus writ
is such that family dramas are played out in full view of the court.

A few months later, in 2015, while researching for a study on atrocities against
minorities, I came across a report by Ashok Aggarwal and a team of lawyers which
documented habeas corpus petitions before the Jammu and Kashmir High Court in
cases of enforced disappearances for the period between 1990 and 20047. The report
included a study of the cases and interactions with family members of missing
persons. However, the significant finding of the report was that the habeas corpus
petitions were not efficacious in ensuring release from detention or even the
appearance of missing persons. It was a jarring realization, that a writ which is looked
upon as a harbinger of individual liberty was rendered infructuous in the light of a
powerful military, where even the Courts could not enforce the production of young
men who would disappear from their homes, ostensibly taken into custody by the
army, never to be seen again.

So here was a writ- almost mythic in proportion, the ‘great writ’ of liberty, not only
being used in cases against private parties but also having its efficacy questioned.
Clearly, the use of the writ had many dimensions in addition to being the sought-after
remedy against infringement of liberty- anybody could invoke the writ against the
State or individuals, the Court has discretion to decide whether the writ is
maintainable and the Court can even grant alternative remedies such as compensation.
The writ has a special status in being operable against the State and private parties. On
the one hand, the rights of State detenus are interpreted from statutes prescribing
detention while on the other hand, the rights of those confined by private parties are
premised on concepts of choice and self-determination and legality of detention. How
do the Courts reconcile these two distinct roles, especially when the same bench
decides both kinds of cases? As a corollary, how do the Courts construct an
individual’s right to liberty read with their right to choose in private detention cases?
In order to answer these questions, judgements of the Delhi HC through 2014 to 2019
in habeas corpus petitions will be analysed to gain a contemporary insight into the
use of the habeas corpus writ. The

5
7
Ashok Aggarwal, In Search of Vanished Blood, South Asia Forum for Human Rights (2008)

6
objective is to understand the reasoning of the Court in specific instances, the balance
it strikes between the State’s ability to detain and the individual’s right to liberty and
the use of the semantics of ‘custody’ and ‘choice’ by the court in the production of the
body. Additionally, this study of will indicate the kind of issues before the Delhi HC,
how the Court exercises discretion, the limits to the writ and whether there are Indian-
specific uses of the writ.

Sub-sections of Chapter 1 will discuss the research methodology and existing

literature on the writ of habeas corpus. Chapter 2 provides the historical background
of the writ from the perspective of England and the US, creating a template for the
global aspects of the writ. Chapter 3 is about the practical application of the writ in
India. Chapter 4 contains the analysis of the habeas corpus cases before the Delhi HC.
Chapter 5 presents the inferences from the data, reading it against the theory of habeas
corpus. Finally, Chapter 6 is the conclusion which draws from existing practices to
comment on the teleology of the writ and the probable course it is poised to take.

7
1.1 Research Methodology
The writ of habeas corpus is a well-known and popular writ compared to its
counterparts in the Constitution under articles 226 and 32. This popularity as well as
usage established by time makes the writ appear to be the ultimate guarantor of
people’s liberty, with a clear distinction in the use of the writ which requires judges to
navigate different questions. In cases of State detention, the judge would enquire on
the law that permits the detention and whether it violates the right to liberty. On the
other hand, in cases of detention by private parties, in addition to the law, judges have
to decide on more intimate attributes such as the choice of the person confined. The
cleavage lies here- in State detention, the will of the detenu is not taken into
consideration but where private parties are involved the will of the detenu is a matter
for the Court to consider. The questions that will inform this study are:

- What are the types of habeas cases before the Delhi HC?
- How does the Delhi HC balance interests of state agencies against the
fundamental right to liberty of an individual? What is the extent of discretion
in deciding legality of detentions?
- How does the Court construct an individual’s choice to determine who they
want to be with in cases of private confinement?
- What is the language of the Court when it decides cases involving
confinement by private parties? Does it continue to use the language of
‘recovery’, ‘return’, ‘production’ or other autonomy-undermining concepts?

For the theoretical understanding of the writ, existing literature, including books,
articles and judicial decisions, were analysed to develop the principles that govern the
use of the writ. The books on habeas corpus pertained to three main jurisdictions-
England, India and the US. England was chosen because of its status as the originator
of the writ in the common law system. The US had followed closely behind in
adopting the writ and hence it was practical to look at its use in the contemporary
sense as well, especially the use of the writ in terrorism charges.

The writ in practice is explored from the viewpoint of judgements in habeas corpus
petitions before the Delhi HC. The selected cases, from the Manupatra and SCC

8
databases8 range from January 2014 to January 2019. The locale and time period for
the study were refined based on time and resource constraints. A search for ‘writ
petitions’ was initiated first further filtered by the type of Court (Delhi High Court),
leaving out all the other courts and tribunals. Within these results, another search for
‘habeas corpus’ was initiated. Since all the cases beginning from the 1960s could not
have been analysed in the available time framework, the search was narrowed down
to the period between 2014 and 2019. A total of 49 judgements were found to be
relevant, that is, they were habeas corpus petitions (Annexe 1). The details of the
cases were entered into a questionnaire that was prepared on MS Excel (Annexe 2).
The spreadsheet captured all the relevant aspects of the 49 cases with broad categories
of information on detention, the detenu and the petitioner, arguments of either parties,
final decision, reasons for decisions and the Court’s consideration of the detenu’s
demographic details. The data was analysed using Excel functions, tabulated and
presented through charts in the study.