Habeas corpus

Habeas corpus: History, Scope and Landmark Judgements

Habeas corpus is a Latin phrase which means “to have the body of”. It is a writ guaranteed under Articles 32 and 226 of the Indian Constitution. The main purpose of this writ is to allow any person to make a request before a court of law, to order the state to bring a person that has been under suspension of illegal detainment or imprisonment. After that, the court can make an assessment of the legality of the detention.

Article 21 and 22 of the Indian Constitution protects the liberty of individuals and also safeguards the rights of detenus. Habeas corpus is one of several writs—formal written orders usually by a court—enshrined to protect the fundamental rights of citizens in Part III of the constitution. Both the Supreme Court and the various high courts can issue writs, including that of habeas corpus.

Scope and Evolution

The origin of Habeas Corpus can be traced back to the medieval period in England. The Assize of Clarendon, an act of King Henry II of England, contained protections from arbitrary detention or imprisonment. As India was heir to the English common law tradition, the Constituent Assembly enshrined it in Article 32 of the Constitution.

The writ of habeas Corpus is traditionally issued against state authorities, mostly police. However, it also includes within its range non-state authorities as well, including private persons.  As mentioned above, the scope has also been broadening in India so that even a person who is not directly aggrieved can file a writ of habeas corpus. Essentially, the principle of Locus Standi has been dispensed with when it comes to habeas corpus writs. In India, a court can also examine the legality of the detention or arrest without the detenu being physically present in court.

Landmark Judgements

K. Gopalan v. State of Madras 950 AIR 27

A.K. Gopalan was an Indian Communist leader who was detained under the Preventive Detention Act, of 1950. He was detained since December 1947 without trial. Challenging his detention, AKG, as he was popularly called, filed a habeas corpus writ petition in the court.

However, the court held in favour of the respondent in this case. In his judgement Chief Justice Kania said:

No extrinsic aid is needed to interpret the words of article 21, which in my opinion, are not ambiguous. Normally read, and without thinking of other Constitutions, the expression “procedure established by law” must mean procedure prescribed by the law of the State … To read the word “law” as meaning rules of natural justice will land one in difficulties because the rules of natural justice, as regards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard.

Kanu Sanyal v. District Magistrate 1974 AIR 510

Kanu Sanyal, the petitioner, was a member of a Naxalite group allegedly involved in illegal activities. He was wrongfully detained in a Darjeeling jail for which he moved the Supreme Court. In this judgement, the Supreme Court held that a court may examine the legality of detention without the person being present before it.

Sunil Batra v. Delhi Administration AIR 1980 SC 1579

Sunil Batra, the petitioner, was a prisoner who wrote a letter to the court regarding the treatment meted out to a fellow prisoner of his in Tihar Jail. In this, the Supreme Court allowed letters to be accepted by the court and converted into habeas corpus (or other) writ petitions. This has been legally termed as ‘epistolary jurisdiction’. Further, the court expanded the provisions of habeas corpus even to prisoners, holding that even prisoners’ rights were to be safeguarded by the provisions guaranteed under the Constitution.


This article has analysed the writ of habeas corpus, its history, evolution and scope, and landmark judgements relating to it. Habeas corpus in India has a chequered history, with highs (marked by judgements like Sunil Batra) and lows (marked by decisions like ADM Jabalpur). The availability of habeas corpus in Kashmir of late has also been a matter of controversy, with the Supreme Court refusing to issue habeas corpus writs to political detainees in the Valley. It is important that the writ of habeas corpus is safeguarded, and the courts uphold these protections.

Leave a Comment

Your email address will not be published. Required fields are marked *