The term “habeas corpus” is a Latin word which literally means “you may have the body”. This writ is issued in the form of an order calling upon a person by whom another person is detained to bring that person before the court to know by what authority he has detained that person. This writ lies when a person has been detained unlawfully.
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It may be used to secure release of a person from confinement without legal justification. In India, detention may be unlawful if, inter alia, it is not in accordance with law, or there is no valid law to warrant it, or the law is invalid because it infringes a fundamental right or the legislature enacting it exceeds its limit. The great value of this writ is that it enables the immediate determination of the right of a person’s freedom.
ADVERTISEMENTS:
In Kanu Sanyal vs. District Magistrate, Darjeeling, AIR 1983 S.C. 653, the Supreme Court has held that while dealing with the application of writ of habeas corpus, production of the body of the person allegedly to be unlawfully detained was not essential.
Justice Bhagwati held in this case that in a writ of habeas corpus under Article 32, the production of the body of the person detained, Is not necessary for hearing and disposing of the writ petition by the court. The production of body of the person detained illegally is not the essential feature of the writ of habeas corpus.
Who can apply for the writ?
The general rule is that an application can be made by a person who is illegally detained. But in certain cases, an application for habeas corpus can be made by any person on behalf of the petitioner, Le., his friend or a relation.
The writ of habeas corpus cannot only be used for releasing a person illegally detained but it will also be used for protecting him from inhuman treatment inside the jail. The Supreme Court has consistently shown great anxiety for personal liberty and refused to throw out a petition on the ground that it does not disclose a prima facie case.
ADVERTISEMENTS:
This writ is issued to the authority that has the aggrieved party in his custody. When on a petition for the writ the court considers that a prima facie case for granting the prayer, has been made out, a rule nisi is called upon the custodian of the prisoner to show cause why the writ cannot be Issued.
If the cause is shown insufficient, the writ is issued for setting the prisoner free. The writ is not issued if the custodian can satisfy the court that the prisoner is not under unlawful detention. The Supreme Court has held in Janardan vs. State of Hyderabad, AIR 1951 S.C. 217, that if it should appear on the face of return that a person is in detention in execution of a sentence or an indictment on a criminal charge, that would be a sufficient answer to an application for a writ of habeas corpus.