The Writ of Habeas Corpus

In one line

Habeas corpus is the writ that asks a jailer one question: by what authority are you holding this person?

In the wording a student can write in an exam: habeas corpus, meaning that you have the body, is a writ directed to a person who detains another, requiring him to produce the body of the detenu and to show the authority for the detention; if no lawful authority is shown the court orders release, and the writ is issued as of right rather than as a matter of discretion where the detention is prima facie unlawful.

Why the law has this at all

Because personal liberty is the one right whose violation cannot wait. A licence wrongly refused can be restored next year; a man wrongly imprisoned cannot get the year back. So the common law gave liberty a remedy that is quick, that can be applied for by anybody, and that puts the burden on the detaining authority rather than on the person detained.

Article 21 protects life and personal liberty; Article 22 regulates arrest and preventive detention; and habeas corpus is the machinery by which both are enforced.

Who may apply, and against whom

Who may apply. The detenu himself, or any person on his behalf: a relative, a friend, a lawyer, or a stranger. The rule is looser here than for any other writ, because a person in custody cannot file his own petition. A letter has been treated as a petition.

Against whom. Any person who detains another, whether a public authority or a private person. This is the only writ that lies against a private individual as a matter of course, because the wrong is the detention and not the exercise of public power. A parent detaining an adult daughter, or an employer confining a workman, can be answered by habeas corpus.

What the court actually does

The rule nisi and the return. The court issues a rule calling on the detaining authority to justify the detention. The authority files a return setting out the authority for it. The court then decides whether the detention is lawful on the return.

Production of the body is not essential. Kanu Sanyal v. District Magistrate, Darjeeling, AIR 1973 SC 2684.

Facts. An undertrial prisoner petitioned under Article 32 for habeas corpus. The Court issued a rule nisi but directed that he need not be produced in person, and the question arose whether production is essential before the petition can be heard and decided.

Held. There is nothing in Article 32 that requires the body of the detained person to be produced before the application can be heard and decided, and the Court may dispense with production while issuing a rule nisi under its own Rules. The Constitution makers meant to give a person illegally restrained of liberty the same kind of remedy as had been fashioned in England and the United States, and the substance of the remedy is the enquiry into the legality of the detention.