3.

1 Historical antecedents
Though the British were reluctant to enact the 1679 Habeas Corpus Act in their
colonies, by the instrument of the 1773 Regulation Act, a Supreme Court was set up
in C

, the writ has been available for persons in private and State custody.

1
DAVID CLARK & GERARD MCCOY, THE MOST FUNDAMENTAL LEGAL RIGHT 19-21 (2000)
2
PAUL D. HALLIDAY, HABEAS CORPUS: FROM ENGLAND TO EMPIRE 283 (2010)
3
Ibid, p.286
4
Ibid
5
Ibid, p.289
6
Ibid 1, p.22
In P.K. Tare v Emperor, it had been laid down that the writ is always available unless
suspended by statute7. During the Constituent Assembly Debates on clause (4) of
A.328 there was a lot of opposition to the possibility that the right to habeas corpus
might be suspended in times of emergency. Shibban Lal Saxena lamented that if a
state of war continues for 10 years, people will not be entitled to seek remedy under
S.491 of the CrPC9. The suspension of the writ by the American Constitution was also
discussed in light of the safeguards accompanying such a suspension. However the
assembly found it fit for inclusion and the clause was adopted in the final
Constitution.

Articles 32 and 226 of the Constitution laid down habeas corpus as one of the writ
remedies available to citizens when their fundamental rights are violated. In practice,
the Court does not only test whether the detention is permitted by law, but also
whether the detention is correct procedurally10. The writ is considered very efficacious
for speedy releases from illegal detention, more so because habeas petitions, by
practice, are listed for early hearing11. There is no bar on who can approach the Court
for release of the detenu- it can be the detenu themselves, a relative, counsel, friend or
even a stranger. However, when a stranger approaches the Court, they are required to
satisfy the Court of the reasons the detenu was not able to approach the Court in
person12. The Courts in India have also instituted proceedings on a suo moto basis or
on the receiving of a letter from the detenu13.

The nature of the writ is procedural and proceedings are summary. The court was
essentially tasked to test the legality of a detention, and not whether a particular
statute ordering detention was constitutionally valid or not. It does not prescribe any
punishment for illegality caused through a wrongful detention 14, though a failure to
follow an order pertaining to the petition can be treated as contempt of court. As the
use of the writ grew there were instances of the Court venturing into the legality of
statutes15. When used in criminal proceedings, it is not supposed to replace ordinary

7
B P BANERJEE, WRIT REMEDIES 272 (4th ed. 2008)
8
Constituent Assembly Debates, Volume IX, 4th August 1949
9
Ibid
10
Ram Narayan Singh v. State of Delhi AIR 1953 SC 318
11
Danial Latifi, Efficacy of Habeas Corpus Restored, 29 J. of Indian L. Institute 416 (1987)
12
Kunjamma v. State AIR 1951 TC 123
13
Sunil Batra v. Delhi Administration (1980) 4 SCC 488
14
Ibid 7, p.277
15
For example, in AK Gopalan v. State of Madras AIR 1950 SC 27, a habeas petition, the Preventive
Detention Act had been challenged.
administration of justice. Appeals from habeas decision are permitted and while res
judicata applies, if there is a new ground of illegality, a fresh petition can be filed 16.
There is some debate as to this special treatment accorded to the writ of habeas corpus,
since all the other writs are subject to res judicata unconditionally17. Perhaps a
premium placed on liberty justifies more grounds for the detenu to seek his release.
Once a detention is found to unlawful, the Court cannot exercise any discretion to
deny the writ. The detaining authority is supposed to apply its mind when allowing
remand, and such an order should not be reached mechanically 18. The writ is used ad
subjiciendum and is issued to the person who has physical custody over the body of
the detenu. Since the writ contains a matter of personal liberty, Supreme Court Rules
permit a vacation judge sitting singly to decide on a matter under A.32 if no
substantial question of law is involved19. In the case of Mohinuddin v DM20, when the
counsel for the detenu had requested the matter to be placed before a vacation bench,
in order to hear it expeditiously, the sitting judge had brushed it aside saying he had
never heard of any such practice21, which appears to be an erroneous stand since
habeas corpus petitions are heard at the earliest.