The Friendly Writ `“ Habeas Corpus


By M.C. Linthoingambee
What are Writs? And what’s the creepy word called Habeas Corpus? Writs are commands, issued by the Court to compel a certain party to abide by those commands and it is to say that whoever does not follow such a command is a disturber of law and order and they can be so punished. It basically serves as a remedy to those whose fundamental rights are encroached upon. There are many writs in existence today. But, let us confine ourselves to the readings of the term – Habeas Corpus, a type of writ. Firstly, why do such things exist? For starters, every state functions according to the laws governing them but in such cases where the State tries to undertake its people (termed citizens) by exercising arbitrary powers, then one can go seeking for freedom with the help of the above. In short, writs exist mainly to safeguard our fundamental rights.
The origin of the term “Habeas Corpus” comes from the Latin word meaning – may you have the body. Speaking of personal freedom and liberty, this writ helps seek asylum for any abridgment in our fundamental rights and most importantly, when any person is also illegally detained. The Indian Judiciary has added in the effects of locus standi, where forth any other person who may have the authority or stand say in the manner of a friend or a family may file for this writ on behalf of the person illegally detained so that due remedy may be given to him. In the Indian Constitution, prerogative writs such as this one come into view giving special powers in two specific articles – Article 32, wherein power to grant writs lies with the Supreme Court and Article 226, wherein the power to grant writs lies with the High Court.

In a familiar tone, the detained person is produced before court. The court intervenes in the nature and system of arrest and asks the authority detaining such a person, the reasons for his detention. If the matter seems unreasonable or wrong, the court sets free the detainee. This writ stands to give an immediate relief for a wrongful detention. But in case, some wrong has been committed by the detainee, this writ can also be used for safekeeping of the prisoners inside a jail.

India witnessed a major turn of events in 1994, in the landmark judgment of Joginder Kumar v. State of UP,1 which defined the writ of Habeas Corpus. This case states that no arrest should be made voluntarily by the police even though they are vested with such powers lawfully. The existence of the power has no effect however, while exercising for a no cause arrest. The police officer must be able to justify the reasons of his arrest or detentions as such lock up procedures tend to harness harm upon an individual. It reflects upon the reputation and individuality of the detainee. No arrest is to be made in a routine manner for a mere allegation made against such person. In the protection of the Constitutional Rights, it would be wise for the police officers no to make any hasty arrests without conducting proper investigations and providing reasonable specifications of the arrests. The reason should be bona fide in nature; i.e,it must exist in good faith and not with the intention of causing wrongful intention against the detainee. Denying a person of his Right to Life and Personal Liberty (Article 21) is both a legal and a moral wrong for there lays significant other reasons for granting arrest according to the Criminal Laws exercised in our country.

Although this writ owes its origin in England, several other countries have also chosen to abide by such principles. Countries such as: Australia, Canada, Germany, India, Ireland, Malaysia, New Zealand, The Philippines, Scotland, Spain and the US grants jurisdiction that is, hears matters of the like nature as those relating to this writ in their courts. The legal background of Poland and Roman-Dutch Law has also served to grant remedies of the likely nature. In the present day, even with the exercise of a little around sixty years of democracy in India, we still pay witness to a variable number of wrongful arrests. Recently, the writ of Habeas Corpus was filled for Anna Hazare, a social activist by the group called Panthers Party to protest against his arrest.

But for those regions or states which have been compelled to welcome the draconian exercise of the Armed Forces Special Powers Act, 1958 these arbitrary powers of the authorities of the State roams free. Although the writ of Habeas Corpus is in existence, many are unaware or many are often mislead. The AFSPA, 1958  passed by the Parliament of India in September 11, 1958 gives special powers to the members of the Armed Forces. It is applied in what the act states as the disturbed areas of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram Nagaland and Tripura which later extended to the State of Jammu and Kashmir. Irom Chanu Sharmila, a social activist  has gone on an indefinite hunger strike to repeal the act. The existence of the above legislation has made or caused some undeniable chaos and has resulted in a coherent amount of grave danger to the public at large. This act makes friendly writs such as that of Habeas Corpus seem aloof as such rights in reality hides behind closed doors.

Attention: So in case, such unlawful detention has occurred in your sight:  hire a lawyer as soon as you can. Such writ only exists to guarantee your individual freedom and not to bind you in chains. Any arrested person is to be presented in front of a magistrate within 24 hours without fail. In case one feels that an arrest is unwarranted, then a writ of  Habeas Corpus can be filed to get the detainee out. This can be filed by a friend or a family. Such matters can only be heard of in a High Court or a Supreme Court and with the setting up of the High Court of Manipur recently, resorting to a writ of Habeas Corpus should not be a problem.

(M.C. Linthoingambee is an undergraduate pursuing B.Com. LL.B(H). An avid blogger, poet, a seasonal artist and a foodie, she is also a life member to the Indian Society of the Red Cross.)


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