Successive Habeas Corpus Petition Challenging Same Detention Order Not Maintainable Even If New Grounds Are Raised: Kerala High Court

The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen stated thus:

“...in habeas of simpliciter, the successive writ petition is possible, and judicial practice only discourages fresh writ petitions being brought before the Court as more as a vexatious attempt to redo what the Court already refused. However, relief of habeas sought based on the challenge against detention order stands differently. The essential challenge in that process is against the detention order though ultimate relief is granted, by way of habeas corpus. If the substantial challenge is against the detention order, the very same Court cannot entertain writ petition, even if new grounds have been raised as the Court is precluded from reopening its judgment challenging the validity of detention order which has become final.”

In the facts of the case, the first writ petition was dismissed by the Court and a second habeas corpus writ was filed challenging the same order raising some additional grounds. Relying upon the High Court decision Nisha Salim v. State of Kerala and Others (2009), it was argued that the second writ petition was maintainable on fresh grounds.

The Public Prosecutor submitted that successive writ petitions for a writ of habeas corpus were barred under Article 226 of the Constitution. Relying upon the Apex Court judgment in Ghulam Sarwar v. Union of India (1967), it was contended that the remedy for the petitioner was to approach the Apex Court vide a civil appeal or a writ petition under Article 32 of the Constitution.

The Court noted that earlier under English law, writ of habeas was not under the purview of the judicial review process and was not considered as a judgment and res judicata would not apply. It explained that with the passage of time and the emergence of sovereign states, the detention order has become part of administrative law since Article 22(3) Constitution permits preventive detention backed by law. It thus stated in a writ of habeas corpus, that preventive detention orders could be now challenged only if they were ultra vires, arbitrary, or for lacking logical foundation.

The Court further stated that detention orders will have to be adjudged based on the general principles relating to administrative law to test its validity. “Therefore, the Court while exercising power to issue writ of habeas corpus is essentially deciding the validity of detention order based on the objectives of detention law. Thus, general principles of administrative law are the test to check the validity of the detention order”, added the Court.

Relying upon the decisions in Ghulam Sarwar (supra) and Nisha Salim (supra), the Court concluded that a successive writ petition was not maintainable when the same grounds were raised earlier. It relied upon the Apex Court decision in P. Bandopadhya v. Union of India (2019), to state that res judicata was equally applicable in writ jurisdiction.

It stated that however, the legal issue here was to consider the impact of a second judicial review through a successive writ challenging the validity of the same detention order. It stated that in any other habeas of simpliciter, successive writs were maintainable on new grounds or based on grounds that were omitted earlier in the first writ petition since the Constitution grants utmost priority to the liberty of citizens.

“The constitutional Courts are not barred from exercising its power of habeas corpus and issuing a prerogative writ of habeas corpus in a successive writ petition filed on a new ground or grounds which were omitted to be canvassed in the first writ petition if such writs are not depended upon any predicated challenge. The liberty of the citizen is supreme, and it neither rest on pleas and counter pleas but on the freedom offered to him under the Constitution”, stated the Bench.

Accordingly, the Court dismissed the writ petition and stated that the successive writ petition filed by the petitioner was not maintainable against the very same detention order.

Counsel for Petitioner: Advocates M.H.Hanis, P.M.Jinimol, T.N.Lekshmi Shankar, Anandhu P.C., Neethu.G.Nadh, Ciya E.J

Counsel for Respondents: Additional State Public Prosecutor K A Anas

Citation: 2024 LiveLaw (Ker) 140

Case title: Ramseena S v State of Kerala

Case number: W.P.(CRL.) NO.109 OF 2024

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