There are many laws to define the rights of the people in India like right to speech, right to life, right to privacy, right to liberty etc. in some cases, the police officers illegally arrest a person and take him to some other place by the political influence behind them for some personal gains or personal grudges. Many of them don’t know that they can file a writ in the court and make the particular police officers to present the arrested ones before the court within 24 hours to examine whether the arrest is meaningful, lawful or not.
The Constitution of India is ultimate law of the land which lays the rules and regulations for the protection of both rights and imposed duties over the people. This huge literature is considered because, both the guardian and protector of the elemental rights bound to individuals. The concept of the writs is to enable the immediate determination of the rights of an individual by heling the person to realize the advantage of his rights. The five types of writs are as follows:
Types of writs:
Writ of prohibition:
The writ of prohibition can be explained as the writ issued by the upper authority to its subordinate authority so as to prevent something which the law prohibits. This writ can only be issued against a judicial and quasi-judicial body.
Writ of Mandamus:
The writ of mandamus can be explained as the order or command issued by any statute or any authority sanctioned by law to a person , corporation or the other authority so as to perform any public duty without any further delays.
Writ of habeas corpus:
The word Habeas corpus is derived from a latin term which gives the meaning as ‘you must have the body’
Writ of certiorari:
The term certiorari is also derived from the Latin word explaining “to be told”. This writ is issued by the upper court to review the actions of the lower courts .
Writ of quo warranto:
Quo warranto means hearing. It is a writ requiring the person to whom it directs to show what authority they have for exercising some of their rights, powers, or franchise they claim to be hold.
Under the article 32, the supreme court can issue the writes if there is any violation of the fundamental rights of the people. Under the Article 226, the high courts have the power to issue the writs also, this article 226 have wider jurisdiction to issue the writ for both violation of legal rights as well as the fundamental rights.
Nature of Habeas Carpus:
The concept of habeas corpus are followed in the thirteenth century itself. The writ of Habeas corpus is an order calling upon the one that has detained another person, to present the person within the court and justify his actions that on what grounds and under what authority he has confined that person. If the court do not find any legal justifications for the detention, then the court will order for the immediate release of the person who got detention or imprisoned.
Meaning and functions of the writ of habeas corpus:
The writ of habeas corpus is that the legal procedure which acts as a remedial measure for the individuals that are illegally detained. The term habeas corpus is that the Latin word which suggests bringing or present the body before the court within 24 hours. The writ of Habeas carpus is the foremost important right available to the person detained unlawfully. The essential purpose of this writ is assiting to release an individual from unlawful detention or imprisonment.
This writ is of great importance because it determines an individual his right to freedom and private liberty. For example, consider that person A has been taken into custody by person B who is a police officer without any warrant. Person A’s family made all the efforts to understand the whereabouts of person A turned out to be futile. As he was detained illegally by person B (police officer), the writ of habeas corpus could be filed in court by person A’s family on his behalf to enquire the police officer the reason for detention.
The person who got detained (or his friends and family members) or the person who knows the facts and circumstances can willingly file an application for the writ of habeas carpus under the article 32 and article 226. If the court do not have any jurisdiction over the detainer or the detention of that person is already connected with the order of the court, then the court refuses the writ of habeas carpus.
this term is commonly used by the police officers as the reason for detention before the court as this preventive detention is confinement or imprisonment of a person to restrict him from committing offence in the future. It don’t act as a punishment or penalty imposed upon that particular person, it’s just a precautionary method took to prevent the person committing further offence in the future.
The concept of preventive detention and habeas corpus comes very close together. Article 22 of the Indian constitution states that the procedure of preventive detention requires a strict adherence of law. Parliament have powers to form laws for preventive detention for various reasons connected with defense, foreign relations and maintenance of public law and order.
Elements of the writ of habeas carpus:
Jurisdiction of the courts: Article 22 of the Indian constitution says that the supreme court have the jurisdiction all over India. Under the article 226, the high court also have power to deal with the matter when the high court has the control over the particular authority.
After cause: If the police officers give lawful justification for the detention, the writ of habeas corpus will not be issued by the court. As remedy, the applicant will have the right of issuing the writ of Habeas Carpus.
Burden of proof: The burden of proof lies over the person or the authority to satisfy the court that the detention or confinement of the person was made on legal grounds. And if the detained person alleges that the confinement was malicious and was out of the jurisdiction of the authority, detaining the person than the burden of proof lies over the detenu.
Writ during an emergency: The writ of habeas corpus is maintainable during an emergency proclamation, as after the 44th amendment in 1978 had stated that fundamental rights under article 20 and 21 can’t be suspended.
Cases for reference:
Ramabai Balkrishna Nene And Ors. vs The Secretary, Urban Development, 1976
Additional district magistrate of Jabalpur v. Shiv Kant Shukla 1976 SC 1207
Sunil Batra v. Delhi Administration 1980 AIR 1579
Ram Kumar Pearay Lal vs District Magistrate decided on 1965
Sejalben Arpit Shah W/O Arpit vs State Of Gujarat decided on 2019
Selvaraj vs The State decided on 2018
The writ of habeas corpus one of the most important writ available to an individual because it enables him to determine the rights to his liberty. It acts as a remedial measure which ensures to free the detained person from the illegal imprisonment also, it is very much helpful in making the people safer from false imprisonment and fake encounters. However, it does not absolve a person from his liability. It demands lawful justification for the detention and protects the person from any quite ill-treatment and discrimination from the authority which detained the person.
Author: SriKanth R,
2nd semester | BBA LLB | IFIM Law school, Bangalore