Significance of the Writ of Habeas Corpus

Habeas Corpus is a Latin word whose literal meaning is ‘You shall have the body.’ According to Merriam Websters dictionary, Habeas Corpus is “the right of a citizen to obtain a Writ of Habeas Corpus as a protection against illegal imprisonment.”[1] False or illegal imprisonment is an infringement to personal life and liberty. Therefore, in order to counter such infringement, this Writ is issued by a judge who orders the authority to produce the imprisoned person in the court. A Writ is defined as a kind of special order sealed to any authority, government or any sovereign body in furtherance of abstinence or execution of a specified act[2].

The Writ is issued by the court to know on what grounds a person has been imprisoned and if such grounds do not satisfy the legal requirements, such person may be released. Our constitution catalogues five Writs (Habeas Corpus, mandamus, prohibitions, quo warranto and certiorari) which are Prerogative Writs[3], meaning they can be considered as a privilege or right exclusively for a specific category or class. Under the ambit of Indian law, the power to issue the Writ of Habeas Corpus has been vested in the Honourable Supreme Court of India under Article 32 and in the respective High Courts under Article 226. The ambit of Article 226 is wider than that of Article 32. Under Article 32 Supreme court can issue Writ only on infringement of a fundamental right, but a high court can issue such Writ under article 226 against infringement of legal right as well[4]. These rights are often called heart and soul of the constitution.

History of Habeas Corpus

The inception of this Writ comes under the English Common law system. “Tracing the early history of Habeas Corpus is, to a great extent, tracing the development of the right of personal liberty in Great Britain after the signing of the Magna Carta[5], a right protected by implication in the “Suspension Clause” of the Constitution and by statutory means in later years”.[6]

Habeas Corpus first originated back in 1215, through the 39th clause of the Magna Carta signed by King John, which provided “No man shall be arrested or imprisoned…except by the lawful judgment of his peers and by the law of the land.” [7] This Write is often regarded as a great Writ. It finds origin in our legal system 1000s of years.

The Writ was introduced in the US 1789 after James Madison, one of the founding fathers argued for a bill of rights with Habeas Corpus envisaged in it. In 1830, the first Chief Justice of the US Supreme Court emphasized the importance of Habeas Corpus. Today, this Write is a statutory clause in USA.

Under the legal systems of Egypt, Iraq, Syria, Saudi Arabia, and Yemen, detainees generally have the right to challenge the legality of their detention by[8]:

  • Petitioning the investigative judge prior to referring the case to the trial court;
  • Petitioning the trial court after referral; and
  • Filing an appeal after conviction when such an appeal is allowed

The inception of the Writ in India traces back to the Regulating Act, 1773. It came first to Calcutta through the medium of English colonisers. Initially, select Supreme Court judges were allowed to use this Writ, however, later even Mofussil courts had the power to issue Writs. With the establishment of the 3 high courts of judicature at – Calcutta, Madras and Bombay, these also inherited the power of this Writ.

Evolution of Habeas Corpus

In the case of Shubhra Chakraborty, the Apex court held that right to life is not merely to live but to live with dignity and self-respect. Following are a few landmark cases through which Habeas Corpus has evolved over time.

  1. Kanu Sanyal V. District Magistrate[9]

This case highlighted that the Writ of Habeas Corpus is procedural and not substantive in nature. The basic difference is that substantive law gives the right but the methodology to enforce such law is given under procedural law. So, this case highlighted that right to life and liberty is a substantive law and in case of its infringement Habeas Corpus acts as its enforcement procedure. This case also held that Writ of Habeas Corpus can be issued on the basis of facts and circumstances of case.

2. Sunil Batra v. Delhi Administration[10]

This case was regarding life and liberty of prisoners lodged in jails. In this case one of the prisoners Prem Chand was tortured and beaten by the warden for money. Sunil Batra, his fellow prisoner wrote a letter to the Supreme Court of India.  This letter was converted into a Writ for Habeas Corpus. Justice Krishna Iyer in his judgement said- “The finest hour of justice comes when court and counsel constructively … case and fathom deeper to cure the institutional pathology which breeds wrongs and defies rights.” He further held that rights of prisoner with respect to human rights don’t end in a prison. Furthermore, this case increased the ambit of Habeas Corpus. Now, under this right one can file case not only for illegal detention but also for ill-treatment and discrimination by the authorities making such detention.

3. Nilabati Behra v. State of Orissa[11]

This is the second case where letter was treated as PIL for Habaes Corpus. In this case, the petitioner’s son was taken away by the police for interrogation for theft. The next day, the boy’s body was found on the railway tracks. The Police said that boy escaped their custody while the boy’s mother contended that he was killed in police custody. The petitioner wrote a letter to the Supreme Court which was converted into a PIL and an enquiry was ordered. After further investigation it was held that the boy died of injuries inflicted on him during custody. The court ordered a compensation of Rs. 1,50,000.

4. The case where Habeas Corpus was taken away- ADM Jabalpur v. Shivkant Shukla[12]

This case is popularly known as the Habeas Corpus case. The issue raised in this case was whether the Writ of Habeas Corpus is maintainable or not in when emergency is proclaimed. It was held that under emergency, the State had power to restrict people including Right to Life. It is considered one of the darkest decisions in the history of India.

Significance of Habeas Corpus

The celebrated Writ of Habeas Corpus is described by many as “the first security of civil liberty.”[13] The Indian judiciary in a lot of cases has resorted to the Writ of Habeas Corpus to secure release of a person from illegal and unlawful detention. Personal liberty has always been considered as a cherished virtue of great value in India & the Writ of Habeas Corpus protects that personal liberty. Personal liberty is so important, that the judiciary has dispensed with the traditional doctrine of locus standi. Hence if a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. The judiciary while going one step further, has also dispensed with strict rules of pleadings.


The author opines that Habeas Corpus is of key importance in upholding and providing protection to citizens for liberty and life. It ensures that no person is unlawfully detained by the authorities. It not only protects one’s liberty, but dignity as well. It protects citizens against discrimination and oppression. Over the years, this procedural right has evolved and it continues to protect the citizens of India. Lastly, to ensure that basic structure and rule of law under constitution is to be upheld Habeas Corpus has to be omni-present.


[2] Writ of Habeas Corpus and Supreme Court, Saloni Devpura (Nirma University, Ahmedabad), 2015

[3] Id. To 2

[4] Article 226(1), Constitution of India, 1950

[5] “Magna Carta Libertatum, commonly called Magna Carta, is a charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215”

[6] THE HISTORICAL DEVELOPMENT OF HABEAS CORPUS by Neil Douglas McFeeley (SMU law Review, 1976)



[9] 1973 AIR 2684

[10] 1980 AIR 1579

[11] 1993 AIR 1960

[12] 1976 AIR 1207

[13] Id. To 2

Rishi Raj from Symbiosis Law School, Noida

He is a criminal and constitutional law enthusiast who someday aspires to serve the Armed Forces of our country.


Success! You're on the list.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: