writ of habeas corpus - Indian Laws - General

Writ of habeas corpus- It is a settled principle of law that a writ of habeas corpus is available as a remedy in all cases where a person is deprived of his/her personal liberty. It is processual writ to secure liberty of the citizen from unlawful or unjustified detention whether a person is detained by the State or is in private detention. As Justice Hidayatullah (as he then was) held; The writ of habeas corpus issues not only for release from detention by the State but also for release from private detention Mohd. Ikram v. State of U.P., AIR 1964 SC 1625. At the same time, the law is well established that a writ of habeas corpus will not lie and such a prayer should be rejected by the Court where detention or imprisonment of the person whose release is sought is in accordance with the decision rendered by a court of law or by an authority in accordance with law. According to Dicey, - if, in short, any man, woman, or child is, or is asserted on apparently good grounds to be, deprived of liberty, the Court will always issue a writ of habeas corpus to anyone who has the aggrieved person in his custody to have such person brought before the Court, and if he is suffering restraint without lawful cause, set him free. A.V. Dicey, Introduction to the Study of the Law of the Constitution, Macmillan And Co., Limited, p. 215 (1915) In Halsburry s Laws of England, a writ of habeas corpus is described as a remedy available to the lowliest subject against the most powerful. Halsbury s Laws of England, (4th Edn.) Vol. 11, para 1454 p. 769. It is a writ of such a sovereign and transcendent authority that no privilege of person or place can stand against it. V.G. Ramachandran s Law of Writs, revised by Justice C.K. Thakker M.C. Thakker, Eastern Book Company, p.1036, 6th Edn. (2006) A writ of habeas corpus can only be issued when the detention or confinement of a person is without the authority of law. Though the literal meaning of the Latin phrase habeas corpus is to produce the body , over a period of time production of the body is more often than not insisted upon but legally it is to be decided whether the body is under illegal detention or not. Habeas corpus is often used as a remedy in cases of preventive detention because in such cases the validity of the order detaining the detenu is not subject to challenge in any other court and it is only writ jurisdiction which is available to the aggrieved party. The scope of the petition of habeas corpus has over a period of time been expanded and this writ is commonly used when a spouse claims that his/her spouse has been illegally detained by the parents. This writ is many times used even in cases of custody of children. Even though, the scope may have expanded, there are certain limitations to this writ and the most basic of such limitation is that the Court, before issuing any writ of habeas corpus must come to the conclusion that the detenu is under detention without any authority of law. [THE HOME SECRETARY (PRISON) VERSUS H. NILOFER NISHA- 2020 (1) TMI 1208 - SUPREME COURT]