The Habeas Corpus Conundrum- The Supreme Court Must Resurrect Itself

Advocate Arunabh Chowdhury

4 May 2020 8:09 AM GMT

  • The Habeas Corpus Conundrum- The Supreme Court Must Resurrect Itself

    Recent cases invoking the writ of habeas corpus filed before the Hon'ble Supreme Court of India reveal a disquieting trend of the Court not taking up the petitions with the speed and urgency, it deserves. The remedy has been weakened- indeed an alarming trend for the Supreme Court who has been assigned the task of the sentinel -on –the-qui- vive to safeguard the rights and liberties of...

    Recent cases invoking the writ of habeas corpus filed before the Hon'ble Supreme Court of India reveal a disquieting trend of the Court not taking up the petitions with the speed and urgency, it deserves. The remedy has been weakened- indeed an alarming trend for the Supreme Court who has been assigned the task of the sentinel -on –the-qui- vive to safeguard the rights and liberties of its citizens.

    The writ of habeas corpus is a powerful safeguard of the liberty of a subject against arbitrary acts of the Executive and provides a prompt and effective remedy against illegal restraints. 'Habeas corpus' is a Latin term meaning, "that you have the body". The writ is intended to bring a person before a Court to examine the legality and validity of his detention. This writ itself originated in the 1300s, as a way to enforce the Magna Carta's[1] guarantee that "No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land[2]."

    Described as the bulwark of personal liberty, habeas corpus "is a remedy available to the lowliest subject against the most powerful"[3]. All that the Applicant has to show is that his detention is unlawful. Thereafter, the burden of justifying the legality of the detention passes on to the Detaining Authority. The writ is not discretionary and therefore, cannot be denied because there may be some alternative remedy. It issues as a matter of right.

    According to William Blackstone, "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". A.V Dicey described the remedy as "worth a hundred Constitutional articles guaranteeing civil liberty" while, Chief Justice John Marshall of the United States Supreme Court characterized the writ as "a great constitutional privilege" and Late M.C Setalvad[4] strikingly pictured the writ as "the key that unlocks the door of freedom."

    Habeas corpus primarily acts as a writ of inquiry, issued to test the reasons or grounds of detention. The writ stands as a protection against arbitrary arrests and detentions, by ordering the Detaining authority to furnish valid reasons for the detention. As a procedural device, the writ serves as a fundamental safeguard of an individual's freedom against arbitrary and lawless state action, by which executive or other governmental restraints on personal liberty are subjected to judicial scrutiny. The purpose of the writ is not to determine the guilt or innocence of a detenu, but only to test the legality of his detention. The remedy assumes more significance in the context of preventive detentions, which is, by nature, repugnant to democratic ideas and an anathema to the rule of law[5]. The Supreme Court in the famous case of Khudiram Das v. State of W.B.[6] had ruled that "it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the subject is not deprived of his personal liberty otherwise than in accordance with law[7]."

    The underlying object of the writ of habeas corpus has been succinctly explained by the Supreme Court in Sapmawia v. Deputy Commissioner Aizwal[8]:

    "11. … The writ of habeas corpus is a prerogative writ by which the causes and validity of detention of a person are investigated by summary procedure and if the authority having his custody does not satisfy the court that the deprivation of his personal liberty is according to the procedure established by law, the person is entitled to his liberty. The order of release in the case of a person suspected of or charged with the commission of an offence does not per se amount to his acquittal or discharge and the authorities are not, by virtue of the release only on habeas corpus, deprived of the power to arrest and keep him in custody in accordance with law for this writ is not designed to interrupt the ordinary administration of criminal law."

    Justice Bhagwati after tracing the historical development of the writ of habeas corpus in Kanu Sanyal case[9], eloquently explained that "the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C., in Cox v. Hakes 'the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom" and his release, if the detention is found to be unlawful'. That is the primary purpose of the writ; that is its substance and end". Kanu Sanyal's case is also important for the reason that the Supreme Court in this case clarified that the production of the body of the detenu in a habeas corpus petition is neither mandatory nor essential and the court can dispense with the said requirement and hear the petition without requiring the detenu to be brought before the Court.

    In England, the Habeas Corpus Act, 1640 was first enacted to codify the law of Habeas Corpus, which was followed by the Habeas Corpus Act, 1679. An interesting provision worth noting in the Habeas Corpus Act, 1679 is Section IX which provides that a Judge wrongfully declining to issue a writ of habeas corpus is liable to pay a penalty of 500 Pounds. In Ghulam Sarwar v. Union of India[10], Chief Justice Subba Rao speaking for the Constitution Bench noted this provision that in England heavy penalties are imposed on a Judge who wrongfully refuses to entertain an application for a writ of habeas corpus.

    The Habeas Corpus Act 1679 was thereafter followed by the Habeas Corpus Act, 1816 by which the remedy was made available to cases of civil detention also.

    Deeply rooted in the Anglo-American jurisprudence, the law of habeas corpus was adopted in the United States as well. The remedy is provided under the US Constitution which under Article I, Section 9, Clause 2, declares that: "The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it."


    The writ of habeas corpus came to India with the Britishers by the establishment of the Supreme Court at Fort William Calcutta, Bombay and Madras under the Regulation Act of 1773. After the enactment of the High Courts Act, 1861, the British Parliament abolished the three Supreme Courts and authorized the Crown to establish High Courts by Letters Patent, in place of the Supreme Courts conferring on the new High Courts "all the jurisdiction and every power and authority whosoever in any manner vested in any of the Courts in the same Presidency abolished under that Act at the time of their abolition". The power to issue the prerogative writ of habeas corpus, continued to be vested with the three High Courts in the Presidency towns of Calcutta, Madras and Bombay.

    Then came the Code of Criminal Procedure, 1872 which under Section 81 conferred the remedy of habeas corpus on British European Subjects detained in custody who considered such detention unlawful to apply to the three Presidency High Courts within the limits of their jurisdiction. The Criminal Procedure Code of 1898 confined it exclusively to the three Presidency towns only. It was by the Criminal Procedure Amendment Act, 1923 which extended the jurisdiction under Section 491 to all the High Courts in India but limited it to the appellate jurisdiction only. With the framing of the Constitution of India, the power to issue the writ of habeas corpus has been conferred on the High Courts under Article 226 and on the Supreme Court under Article 32 of the Constitution of India.

    Over the years, habeas corpus has emerged as an effective remedy against illegal detention.


    Traditionally, it has been and continues to be a consistent practice of the Courts to grant priority of hearing in habeas corpus petitions. It brooks no delay, as the principal aim of the writ is to provide for a swift judicial review of alleged unlawful restraint on liberty. The importance and significance of the age old practice of the Courts to give priority of hearing to cases involving the liberty of a citizen is best explained by the legendary Master of Rolls- Lord Denning in his Book "The family Story"[11]:-

    "Whenever one of the King's Judges takes his seat, there this one application, which by long tradition, has priority over all others. Counsel has to say, "My Lords, I have an application which concerns the liberty of the subject" and forthwith the Judges will put all other matters aside and hear it. It may be an application for habeas corpus or an application for bail, but whatever form it takes, it is heard first. This is of course only a matter of procedure, but English law respecting the freedom of the individual has been built from the procedure of the Courts; and this simple instance of priority is conflict between the freedom of the individual and any other rights or interests, then no matter how great or powerful those others may be, the freedom of the humblest shall prevail over it".

    LORD Donaldson of Lymington MR[12] succinctly catalogued the remedy of habeas corpus in the following words:

    "Habeas corpus is probably the oldest of the prerogative writs. Authorizing its issue in appropriate cases is regarded by all judges as their first duty, because we have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms. Consistently with this, an application for a writ of habeas corpus has virtually absolute priority over all other court business".

    In Greene Vs. Secretary of State for the Home Affairs[13], the House of Lords observed:

    "… The inestimable value of the proceedings is that it is the most efficient mode ever devised by any system of law to end unlawful detainments and to secure a speedy release where the circumstances and the law so require."

    Our Supreme Court in State of Maharashtra v. Bhaurao Punjabrao Gawande[14], described habeas corpus as 'a great constitutional privilege' or 'the first security of civil liberty and held that "the writ provides a prompt and effective remedy against illegal detention…. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner or detenu"[15].

    The Supreme Court Rules[16] as also the Rules framed by the High Courts have separate provisions for habeas corpus petitions. However, the Rules do not stipulate any time frame for disposal of the writ petitions. Yet, it is well-established practice that habeas corpus corpus petitions should be heard expeditiously. The decided cases of the Supreme Court also reaffirm the consistent view that habeas corpus petitions should be heard without delay. In Ranjit Singh v. State of Pepsu[17] the Supreme Court in placing reliance on Greene v. Secy. of States for Home Affairs [supra] observed that "the whole object of proceedings for a writ of habeas corpus is to make them expeditious, to keep them as free from technicality as possible and to keep them as simple as possible." The Court quoted Lord Wright who, in Greenes case (supra) held that "… The incalculable value of habeas corpus is that it enables the immediate determination of the right to the applicant's freedom.[18]"

    In a case where the Gujarat High Court had delayed the adjudication of a habeas corpus writ petition in a detention case under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, the Supreme Court in Rupesh Kantilal Savla v. State of Gujarat[19], by a short order had this to say:

    "1. ….Since it had been averred in the writ petition itself that the Gujarat High Court is taking an unusually long period in disposing of the detention matter, and it was told to us that there is no rule prescribing a period within which an application for habeas corpus is disposed of, we entertained these petitions. Even if there is no rule, it would be meet (sic- just) and proper for every High Court to dispose of the habeas corpus petition as expeditiously as possible."

    The Supreme Court has time and again reminded the High Courts about the need for expeditious hearing and disposal of habeas corpus writ petitions. [Baby Devassy Chully v. Union of India[20] & Kamlesh Tiwari v. Union of India[21]].

    In a short order, the Supreme Court on 3.12.2018 directed the Orissa High Court to expeditiously dispose off the habeas corpus petition preferably within 2 weeks and observed that " matters pertaining to personal liberty, habeas corpus etc. need to be given priority in their disposal".

    The decisions referred to above will apply proprio-vigore also to habeas corpus writ petitions filed before the Supreme Court and it is thus, imperative to give priority of hearing to habeas corpus petitions and decide them expeditiously.


    In recent times, the Supreme Court's handling of habeas corpus writ petitions in cases of preventive detention in Jammu & Kashmir (pursuant to the abrogation of Article 370) has prodded legal scholars to question whether the ghost of ADM Jabalpur still continues to haunt the Court?

    In August, 2019 after the abrogation of Article 370 of the Constitution of India in Jammu & Kashmir, the Supreme Court was moved by one Mohammad Aleem Syed, a student from Jamia Millia Islamia University who had no access to his parents residing in the Ananatnag, and Sitaram Yechury, CPI Polit-Bureau Member and a Former member of Parliament by filing two separate Habeas Corpus Writ Petitions. Yechury sought the production of Mr. Mohammad Yousuf Tarigami-a member of his Party and an erstwhile elected member of the Jammu & Kashmir Legislative Assembly contending that in spite of his best efforts, he has not been able to enquire about the welfare of his colleague and his attempt to meet him personally by going to the State of Jammu & Kashmir has also not succeeded, as he has been refused entry into the State. Both the Petitions were listed before the Court on 28.08.2019 when the Court in two separate orders, without issuing notice permitted Yechury to travel to Jammu & Kashmir to meet his party colleague 'and for no other purpose' and inform the Court about his visit by filing an Affidavit . The Court further imposed an unjustified restriction on Yechury by ordering that "if the petitioner is found to be indulging in any other act, omission or commission save and except what has been indicated above i.e. to meet his friend and colleague party member and to enquire about his welfare and health condition, it will be construed to be a violation of this Court's order".

    Likewise, the Jamia Milia student was allowed to travel to Anantnag, meet his parents and after ensuring their welfare, to report back to the Court on the next date fixed and file an affidavit of the event.

    Mr. Yechury in an interview to the Indian Express stated that he found it rather strange that instead of bringing the body, the Petitioner was asked to visit the body, come back and report on the status in an affidavit to the court.

    The record of proceedings of the cases reveals that on 05.09.2019, the Court issued formal notices in both the Writ Petitions. Tarigami was permitted to visit AIIMS, New Delhi for treatment and on 16.09.2019 the Court ruled that Tarigami was free to go back to Srinagar, his hometown, whenever his health permits to undertake the journey. The Court further observed "the writ petition is kept open for a decision on the validity of the alleged detention of the Petitioner claimed to be without authority of law with effect from 05.08.2019".

    On 01.10.2019 the Court directed the listing of Yechury's case "in usual course". Both the cases were tagged with the 3 Judges Bench matters hearing the validity of the restrictions imposed in J & K pursuant to the Presidential Order scrapping Article 370. Though the 3 Judges Bench delivered its judgment on 10.01.2020, Sitaram Yechury's Writ Petition is yet to be adjudicated; while the other Writ Petition of the Jamia Milia student came to be disposed off as infructuous.

    Then came the Habeas corpus petition filed by Sara Abdullah Pilot seeking the production of her brother Omar Abdullah (Former Chief Minister of Jammu & Kashmir) and for quashing of the detention order dated 05.02.2020 under the Jammu & Kashmir Public Safety Act, 1978 (PSA). The challenge in the Writ petition was that the grounds of detention of Omar Abdullah are specious and contains patently false and ridiculous material, essentially accusing the detenue of being a popular figure among general masses and possessing considerable influence over people.

    The writ Petition was listed before the Court on 14.02.2020 when the Court issued notice returnable on 02.03.2020 after 17 days. The Court did not heed to the fervent plea of the Senior Counsel appearing for Sarah Abdullah for an early date. On 02.03.2020, the Court after noting that reply has been filed on behalf of the Detaining Authority listed the matter on 05.03.2020.On 05.03.2020, the matter was shown in the alternative List of the Court and on mentioning, it was directed to be listed on 18.03.2020. On 18.03.2020, the Court while orally asking the Advocate for the Central Government to seek instructions on the release of the detenu directed the listing of the matter next week. In the meanwhile, regular work in the Supreme Court stood suspended in view of the COVID19 pandemic. It was on 24.03.2020 that the Government revoked the detention order of Omar Abdullah and he was released after 232 days of detention (initially detained under Section 107 Cr PC on 05.08.2019 followed by PSA on 05.02.2020.)

    The writ petition is still pending-and has died its own death without a decision on the validity of the detention order. Though, in Bhim Singh v. State of Jammu & Kashmir[29] and Ram Jethmalani v. Union of India[30], the Supreme Court had observed that with the release of the detenu, the writ petition becomes infructuous; in Arvinder Singh Bagga v. State of U.P. , the Supreme Court held that post the release of the detenu, the petition for habeas corpus can continue 'as one for qualified habeas corpus' to determine whether the detenu is entitled to compensation for illegal detention as a public law remedy for violation of the fundamental right under Article 21. However, more often, than not, the Courts have refrained from continuing with a habeas corpus petition, once the subject has been released.

    Worse still, is the habeas corpus petition filed by Iltija (daughter of Mehbooba Mufti) challenging the detention order dated 05.02.2020 of her mother Mehbooba Mufti under Section 8 (1) of the Jammu & Kashmir Public Safety Act, 1978. The Writ petition came up for admission hearing before the Supreme Court on 26.02.202 when the Court issued notice returnable on 18.03.2020 (after 21 days), subject to the filing of an affidavit stating that no such petition filed by any person challenging the detention of Mehbooba Mufti is pending before the Jammu & Kashmir High Court. The Affidavit in compliance of the order was filed on 26.02.2020 itself. The case is still pending when the regular work in the Supreme Court stands suspended due to Covid19 pandemic and the matter has not even been taken up for hearing by video conferencing; while Mehbooba continues to be under preventive detention.

    The aforesaid cases disclose a disturbing pattern of the Court not taking up the habeas corpus petitions with the speed and urgency it deserves, thereby rendering the remedy inexpedient. The drill adopted by the Court betrays the well-established practice that habeas corpus petitions have priority over all other business and is required to be heard and disposed off as expeditiously as possible. The Court has also by deferring adjudication of the cases refrained from examining the cause and the grounds of detention and expeditiously rule on the validity of the detention orders, leaving the citizens at the mercy of the Government.

    This is indeed an alarming trend for the Supreme Court who as the sentinel- on- the -qui-vive is assigned the task of safeguarding the rights and liberty of its citizens. It is time for the Court to take immediate remedial measures to hear and dispose off cases involving personal liberty without undue delay lest, by delaying justice; the Court may land up denying justice.

    Views Are Personal Only

    (Author is an Advocate at the Supreme Court of India)

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