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Decline of Habeas Corpus law

Published: 24th Feb, 2020

It is increasingly being argued that Supreme Court orders in Kashmir petitions undermine the spirit of habeas corpus law. In light of this argument, we analyse different facets related to this law. 



It is increasingly being argued that Supreme Court orders in Kashmir petitions undermine the spirit of habeas corpus law. In light of this argument, we analyse different facets related to this law. 


  • Political background: Amid revocation of Article 370, since August 5, 2019, Jammu and Kashmir (J&K) has been placed under a ‘communications lockdown’ due to the suspension of mobile internet services.
    • In addition, political leaders along with an unknown number of other individuals have been detained without any legal charges.
  • A case of violation of fundamental rights: Recently, Human right experts from the United Nations called the communication lockdown a form of ‘collective punishment’.
    • Supreme Court of India also recently held the right to use the internet for freedom of speech and expression and for trade or business as constitutionally protected.
    • On the other hand, detention violates personal liberty.
  • Right to Constitutional Remedies: There is a right in India which states that a person can move to Supreme Court (SC) if she/he wants to get their fundamental rights (FR) protected, as conferred under Part III of Indian Constitution. This right comes under Article 32 for SC, and Article 226 for High Court (HC). It is known as the right to constitutional remedies. 
    • Right to Constitutional Remedies is a guarantor of all other FRs available to people of India.
    • Dr B. R. Ambedkar said that Article 32 is the heart and soul of the Constitution of India. 
    • SC has included it in its basic structure doctrine. 
    • Right to move to the highest court cannot be rejected by any court, expect provided by the constitution. 
  • Constitutional Philosophy of Writ Jurisdiction: An individual whose privilege (FR) is encroached upon by an arbitrary administrative action may approach the Court for a suitable remedy.
    • In this regard, SC has the capacity to issue writs, incorporating the idea of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever might be suitable.
  • Current situation: Many persons have filed Habeas Corpus writ petition to the Supreme Court to seek information on persons apprehended to be under detention in J&K.


Digging deeper into the issue

  • Pending cases: Even with six months since the abrogation of Article 370, habeas corpus cases emerging from Kashmir are still pending.
  • Delay in hearing the matter: For example, when Rajya Sabha member Vaiko filed a habeas corpus petition on the detention of Farooq Abdullah on 11 September 2019, the court did not hear the matter immediately. Notice was issued to the government after six days, a very long delay for a habeas corpus case, during which government charged Abdullah under PSA.
  • Delay in assigning a bench: In case of many people detained, they were not even assigned to a bench.
  • Not asking the right question: It is increasingly being alleged that SC has failed to ask the government the right questions; i.e. whether there is detention as alleged, and whether such detention is made on legal grounds.
  • Workload and overburden: After weeks of delay in hearing the petitions, SC sent them back to Srinagar HC. The high court is swamped with the workload, with only two judges available to hear urgent habeas corpus matters. 9 of its 17 judgeships are vacant.
    • SC collegium had not appointed new judges to Srinagar HC. 
  • Arguments made: According to arguments against the SC, caseload and pendency is a weak excuse because the onus of prioritizing cases rest on the leadership of the court. SC decides what cases to hear and which ones to dismiss.
    • Research suggests that constitutional matters comprised only 5.3% of all matters heard by the apex court.
    • From 2010 to 2015, only 0.2% of cases were habeas corpus
    • So, sending habeas corpus cases back to HC doesn’t free up much caseload.

Public Safety Act (PSA)

  • Detention law of J&K: The Public Safety Act (PSA), 1978, of Jammu & Kashmir is an administrative detention law that allows detention of any individual for up to two years without a trial or charge.
    • The Act allows for arrest and detention of people without a warrant, specific charges, and often for an unspecified period of time.
    • This Act extends to the whole of Jammu & Kashmir. 
  • Disclosure for reasons of detentions: In some cases, the Act makes provisions for detained persons to be informed about the reason of custody, and also gives them an opportunity to make a case against their detention to the government.
    • However, detaining authority is not required to reveal any facts “which it considers being against the public interest to disclose”.

Writ of Habeas Corpus

  • Habeas Corpus: Habeas Corpus is a Latin term which literally means “you may have the body.”
    • This writ is in the nature of an order calling upon the person who has detained another to produce the latter before the Court, in order to let the Court, know on what ground he has been confined, and to set him free if there is no legal justification for the confinement.  
    • Habeas corpus writ is applicable to preventive detention
  • History: Habeas corpus is well established as a foundational right against state coercion in India. It dates back to 1775, when Sir Elijah Impey, chief justice of SC in Calcutta, issued a writ to governor-general Warren Hastings.
  • Legal entitlement to seek remedy: The principle on which Habeas Corpus functions is that a person illegally detained in confinement without legal proceedings is entitled to seek the remedy of habeas corpus.
  • Nature of writ: In deciding whether Habeas Corpus writs are civil or criminal in nature, the court would rely on the way of procedures in which the locale has been executed.
  • Few cases when a writ of Habeas Corpus can be issued:
    • Testing the validity of detention under preventive detention laws. 
    • Securing custody of a person alleged to be lunatic. 
    • Securing custody of the minor. 
    • Detention for breach of privileges by the house. 
    • Testing the validity of detention by the executive during an emergency, etc.
  • Bulwark of individual liberty: Habeas corpus writ is called bulwark of individual liberty against arbitrary detention.
    • It has been described as “a great constitutional privilege” or “first security of civil liberty”.
    • Its most quintessential element is a speedy and effective remedy.
    • This writ can be issued against both public authorities as well as individuals.
  • The rule for filing the petition: A general rule for filing the petition is that a person whose right has been infringed must file a petition. But Habeas corpus is an exception and anybody on behalf of the detainee can file a petition
  • Can be issued by local courts: Parliament by law can extend power to issue writs to any other courts (including local courts) for local limits of the jurisdiction of such courts. 
  • Damages: When a person is arrested and imprisoned with mischievous or malicious intent his constitutional and legal rights are invaded, the mischief or malice and invasion may not be washed or wished away by his being set free.
    • In certain appropriate cases, courts have the jurisdiction to compensate the victim by awarding suitable monetary compensation

Exceptions to Habeas Corpus

  • Person against whom writ (or detained) is issued is not within the jurisdiction of the Court.
  • Court Martiale. the tribunals established under military law. 
  • To save release of a person who has been imprisoned by a court for a criminal charge.
  • To interfere with a proceeding for contempt by a Court of record or by Parliament.
  • When a person is put into physical restraint under the law unless the law is unconstitutional or the order is ultra-vires the statute.

Habeas Corpus Case of 1975

  • Ms Indira Gandhi’s election result declared void: In June 1975, former PM Indira Gandhi was convicted of having indulged in wrong practices and her election was declared void, which meant that she couldn’t contest any election or hold her office for next six years.
  • The emergency was declared: Ms Gandhi appealed to SC, but SC only granted her a conditional stay. To rise above restrain on her political power by SC, Ms Gandhi requested the President to declare an emergency under Article 352, which he did on June 26, 1975.
    • FR suspended: This meant that the right to approach the court to enforce Article 14 (right to equality), Article 21 and Article 22 (prevention against detention in certain cases) were suspended.
    • Many leaders from the opposition were arrested under MISA (Maintenance of Internal Security Act).
  • Habeas Corpus Case: Challenging the detainments, petitions were filed in various HCs. Most HCs gave their judgement in favour of these petitions, i.e. writ of Habeas Corpus cannot be suspended even during an emergency (Article 359).
  • Additional District Magistrate Jabalpur V. Shivkant Shukla case (ADM Jabalpur case): This compelled Indira Gandhi Government to approach SC. A constitutional bench of 5 judges applied the doctrine of procedure established by law and overturned the judgement by high courts, declaring that Article 32 – the right to approach the court to defend FRs – remains suspended under emergency.
    • The judgement thus closed doors of the judiciary for citizen during an emergency.
    • Hence it established that personal liberties were not guaranteed in a state of Emergency.

Reversal on ADM Jabalpur case

  • Puttaswamy case: In 2017, SC reversed itself on ADM Jabalpur case when Justice D.Y. Chandrachud in Puttaswamy case parted judicial ways from his father Y.V. Chandrachud, who was part of the majority ruling that failed to check the power of the executive in ADM Jabalpur.
    • Case argument: The case challenged the Government’s proposed scheme for a uniform biometrics-based identity card which would be mandatory for access to government services and benefits.
    • Government’s defence: Government, on the other hand, argued that the Constitution did not grant specific protection for the right to privacy.
    • SC judgement: SC held unanimously that the right to privacy was a constitutionally protected right. 
    • Reasoning: Court reasoned that privacy is an incident of fundamental freedom or liberty guaranteed under Article 21 which provides that: “No person shall be deprived of his life or personal liberty except according to the procedure established by law”.
  • Wider implications of the judgement: This is a landmark case which is likely to lead to constitutional challenges to a wide range of Indian legislations with associated implications on matters of personal liberty, including matters related to detentions. 

Lacunas that still remain

  • The urgency in dealing with habeas corpus: Key aspect of habeas corpus writ is the urgency attached to it. The principal aim of this writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner or detenu. So any delay in that makes the write-only less effective in spirit.  
  • Need for improved judicial capacity: Structurally and procedurally, the court has still to create relevant judicial capacity to hear and dispose-off habeas corpus cases speedily, without which thousands of Indians can remain detained illegally. 


Even those on different ends of the ideological spectrum would agree that there should be limits to arbitrary state power when it comes to detention. Matters of personal liberty should not get any little attention than others. Supreme Court ought to rethink its caseload and prioritize urgent habeas corpus writ petitions. 

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