Q. Explain the writ of Habeas corpus.



Note: this post is a part of our important question answer series on Constitutional Law. You can read other questions by clicking here.





A Writ means a command of the Court to another person or authority by which such person/authority has to act in a certain way.

In India, the Supreme Court has authority to issue writs, for the violation of fundamental rights, under article 32, and High Courts can issue writs under article 226, upon the violation of fundamental/Constitutional/legal/statutory rights.

Mainly the writs can be studied in 5 heads:

i.       Habeas corpus,

ii.     Mandamus,

iii.    Prohibition,

iv.     Certiorari, and

v.       Quo Warranto.


Writ of Habeas corpus

Habeas Corpus means, "Let us have the body." A person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release.


The general rule is that an application can be made by a person who is illegally detained. but in certain cases, an application of habeas corpus can be made by any person on behalf of the prisoner, i.e., a Friend or Relatives. The relevant case here is: Charanjit Lal Chowdhury v Union of India.



This writ can be filed in both: formal as well as in informal way.



This writ can’t be filed when a person is facing trial on a judicial order. It can only be filed when a person is detained illegally.


Landmark Cases

i.                     A.K. Gopalan V. The State of Madras:

In this case, it was held that the writ of habeas corpus cannot be applied where a person is detained by following procedure established by Law. The court was not concern with the whether that procedure is just, fair or reasonable or not.

This view is criticised later.

ii.                   Additional district magistrate of Jabalpur v. Shiv Kant Shukla 1976:

This case is also known as habeas corpus case.

Question raised:

During the time of emergency, whether the rights mentioned under article 21 also get suspended?

Held: while taking a narrower view, the court held that during the time of emergency, all fundamental rights can be suspended. During this time, no person is entitled to came the court and issue the writ of habeas corpus.

In 1978, by 44th Constitutional amendment, it is made clear that in any condition, rights mentioned under article 20 and 21 can’t be suspended.

iii.                 Rudal Shah V. State of Bihar 1983:

Question raised:

In the situation, when the person is kept in the illegal detention almost for 14 years, after having court orders contrary to same, will he be entitled to compensation?

It was held that if the person is illegally detained, or not has been released after having the court order for the same, he shall be entitled for receiving due compensation.


iv.                                       Sunil Bhatra V/S Delhi Administration 1979 and Sheela Barse v. State of Maharashtra 1983

In both these cases, SC by its creative interpretation it has been held that the writ of habeas corpus can be issued not only for releasing a person from illegal detention but also for protecting prisoners from the inhuman and barbarous treatment.



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