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Habeas corpus plea by children of Pak. National

  • Published
    12th Feb, 2022
Context

Habeas Corpus: Recently, the Supreme Court decided to examine a habeas corpus plea made by the children of a Pakistan national who they believe has been unlawfully detained for seven years.

Background
  • The origin of Habeas Corpus can be traced back to 1215 AD when King John signed the landmark document of Magna Carta.
  • The 39th clause of this historical document stated, “No man shall be arrested or imprisoned…except by the lawful judgment of his peers and by the law of the land”.

Provision in Indian Constitution:

  • Right to Constitutional Remedies:The Indian Constitution empowers the Supreme Court to issue writs for enforcement of any of the fundamental rights conferred by Part III of Indian Constitution under Article 32. Thus the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen.
  • There are five types of Writs: 
    1. Habeas Corpus
    2. Mandamus
    3. Prohibition
    4. Certiorari
    5. Quo warranto

About Habeas Corpus: 

  • "Habeas Corpus" is a Latin term which literally means "you may have the body."
  • The writ is issued to produce a person who has been detained, whether in prison or in private custody, before a court and to release him if such detention is found illegal. 
  • The writ of habeas corpus can be issued against both public authorities as well as private individuals.
  • Who can apply for habeas corpus?
  • Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus.
  • The writ of habeas corpus can be availed in the following cases:
  • The constitution under art 32 and art 226 confers on SC and HC respectively to issue writs to protect the fundamental rights of the citizens.
  • These includes rights that are applicable to both citizens as well as foreigners (expect Articles 15,16,19,29 and 30).
  • Now, since habeas corpus is writs against “Unlawfull detention of a persion” and the only writ available against both public and private legal persons. Hence, habeas corpus is applicable for a foreigner when their fundamental rights (Article 14, 20, 21, 21A, 22, 23, 24, 25, 26, 27 and 28) are being violated.
  • The writ of Habeas corpus cannot however be invoked and implemented in the following cases: The writ is not issued where the
  • detention is lawful
  • the proceeding is for contempt of a legislature or a court
  • detention is by a competent Court
  • Detention is outside the jurisdiction of the court.
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