THE WRIT OF HABEAS CORPUS | origin | meaning | preventive detention |

|What is Habeas corpus & how to use it

Introduction to Habeas corpus

The Indian constitution is one of the biggest constitutions in the world. Before enacting the present constitution the framers of the constitution examined the constitution of various countries of the world and also working the government of India act 1936. They did not copy any one particular model but literally borrowed the provisions from many countries of the world. 

The constitution of India gives the fundamental right to all of its citizens and also gives remedies to how to save oneself from anyone who is trying to take away these fundamental rights. One of the many rights a person has if his fundamental right to freedom is " The Right Of Habeas Corpus"

What is  Habeas corpus

"Habeas Corpus" is a Latin term which literally means "You may have the body". Habeas Corpus is a law that a person cannot be kept in prison unless they have been brought before a court of law, which decides whether it is legal for them to be kept in prison.

In many countries, authorities may take citizens and incarcerate them for months or years without charging them. Those imprisoned had no legal means by which they can protest the imprisonment. The framers of the U.S constitution wanted to prohibit this kind of occurrence. Therefore, they included a clause in their constitution that allows the court to issue writs of Habeas corpus. Later many countries also added the writ of Habeas corpus in their constitution including India.

• Habeas corpus can be issued only in the following cases:

1. When the person is arrested without any violation of a law.
2. When a person is arrested under a law which is Unconstitutional.
3. When detention or imprisonment is done to harm the person or insincere or Malafide.
4. When the person is detained and not produced before the Magistrate within 24 hours.

Thus, Habeas corpus writ is called “Bulwark or Barrier of Individual Liberty Against Arbitrary Detention”.

• A general rule of filing the petition is that - A person whose right has been infringed must file a petition. But Habeas corpus is an exception and anybody on behalf of the detainee can file a petition.
• Habeas corpus writ is applicable to preventive detention also.
• This writ can be issued against both public authorities as well as individuals.

On the other side, this writ can't be issued where -

• The detention is LAWFUL.
• The procedure is for contempt of a LEGISLATURE or a COURT.
• Detention is outside the JURISDICTION of the court.
• Detention is by a COMPETENT COURT.