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1 Habeas Corpus!!!!!!!!!! on Fri 5 Aug 2011 - 12:51



Definition of Habeas Corpus

Habeas Corpus is a Latin Phrase which can be translated as “We command you have the body or you should arrest”. Habeas Corpus is one of the Writ Petition filed in the Court and the actual expansion is “habeas corpus ad subjiciendum”. It is a legal action through which a prisoner can be released from unlawful detention. It is a legal instrument for safe guarding the individual freedom against the arbitrary state of action. In layman words, Habeas Corpus is a summons with the force of a Court Order to produce the detained person before the Court and question the custodian (one who detained the person) whether he has the proof or has the lawful authority to detain that person.

What is a Writ petition???

As mentioned in the definition of the Habeas Corpus (“Great Writ”), it is a writ filed before the Court. A writ petition is a request by the petitioner to jump into the front line of the judiciary (Court of appeal) instead of waiting for an appeal after the judgment. A Writ normally directs the trial Court to do something or to prohibit from doing something. The extra ordinary colour of writ is that it is filed when the petitioner has no other suitable, speedy and adequate remedy in the ordinary Court of law. A Writ petition may be issued in 2 circumstances.

a. Public or Legal Significance.

A Writ is normally issued under this head, where the decision or judgment of the trail Court would affect the interest of the general public as a whole or the legal status of a major section of society. A writ under this head will be issued if and only if it has wide spread interests, or the interpretation of the trail Court needs resolution or a constitutional question has emerged.

b. Prejudice factor.

If the petitioner or the “aggrieved party” feels that he is prejudiced or harmed by the determination of trail Court and he has no other remedy in the ordinary appellate review, a writ petition may be filed. There are 5 types of writs in the judiciary viz:-

1. Habeas Corpus (“The Great Writ”)
2. Prohibition
3. Quo Warranto
4. Certiorari
5. Mandamus.
Evolution of Habeas Corpus in the Judiciary.

The concept of Habeas Corpus first rose in England during the reign of King Edward I in 1305, (The Film “Brave Heart” was based up on the writ) but an established and structured concept could not be formed regarding the rulings or procedure to implement the same. Then a separate Act was framed known as Habeas Corpus Act in the year 1640 and another act with the same name was reframed in the year 1679 which listed out the procedures for implementing Habeas Corpus in the kingdom. A renowned judgment viz:- Somersett’s case in the year 1771 was the first ruling in favour of Habeas Corpus writ when the Black Slave Somersett was freed with this famous quote “ The air of England has long been too pure for a slave and every man is free who breathes it. Later, some rational thinkers who were pro- diplomatic interpreted that Habeas Corpus had a revolutionary essence in it and need to be curtailed for safeguarding the authority of the rulers during the then era. Hence, Habeas Corpus was suspended and its procedure was with held several times in England which was the writ’s birth place.
A historic analysis of Habeas Corpus reveals that the concept had already got its origin in Poland (in the name Neminem captivabimus) in 1430 and as Fuero Nuevo in Spain in the year 1526 which was much before than it had in England.

Highlights of Habeas Corpus

Main highlights of the “Great Writ” are;-

1. The Writ insists that the prisoner or the aggrieved be speedily brought in the frontline of justice, so that the Court can determine whether there are any preliminary evidences would suffice the custodian to detain him.

2. It supersedes the state that a citizen cannot be harmed or nothing can happen which is prejudicial to the interests of general public.

3. It ensures that no person will be imprisoned without at least a Court hearing and also to prevent the arbitrary authority of the ruling government.

4. Habeas Corpus will never be suspended unless any cases of rebellion or invasion of public safety demands the judiciary for it.

5. The writ also privileges any person to re open the cases if the petitioner or the aggrieved has lawful justification for his action.

6. The privileges derived from the writ to all the citizens is valuable and precious under democracy as well as the judiciary and so it shall be implemented or initiated after due diligence and conceptual clarity.

The “Other Side” of Habeas Corpus concept.
Any loopholes or advantages framed by an authoritative body in a country will be often misused by misinterpretation or to derive “unjust enrichment”. Mentioned below are few grey areas of Habeas Corpus.
1. Modern practices in the judiciary is that, before the issuance of writs, the authority calls for a hearing of the petitioner and closes the room for further procedures by clarifying all the justifications he has with regard to the case.
2. Being an open option with only limited restrictions, every person deserving or not may stand in the midst and questions the judiciary.
3. Its only procedural remedy against unlawful detention of a person and as such it does not protect other rights. The boundary of Habeas Corpus appears when an aggrieved demands for a fresh trial.
4. Sometimes, it may adversely affect the judiciary when it becomes a burden in the disposal of cases in its ordinary routine. .
5. The mind set of the people may also sometimes become diplomatic if the concept of Habeas Corpus is misinterpreted or misunderstood.

Judicial Pronouncements regarding Habeas Corpus

1. Brown Vs Vasguez (1992)

This is one of the renowned judgments from the Supreme Court of United States where it was held that the writ of Habeas Corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."

2. Rajan’s Case :-

Rajan’s case was one of the breath taking incident ever faced by the Ministry of Kerala and it not only shook the entire state but even Indian Parliament. The fact of the case is as follows:
P. Rajan, a student studied in Regional Engineering College, Calicut, was arrested by the Kerala Police on March 1, 1976, during the nationwide Emergency in India, for alleged Naxal association. As was later revealed owing to a petition in the High Court of Kerala, he was held in police custody and tortured as part of the interrogation. He died due to the torture and his body was then disposed of by the police, and was never recovered. Rajan's father T. V. Eachara Warrier complained to the authorities about his missing son. The police finally confirmed that he died in custody and then a Habeas Corpus suit was filed by his father in the High Court of Kerala.
Rajan's father T. V. Eachara Warrier fought a long battle against the establishment to bring to light the facts behind the disappearance and through that expose atrocities committed by the state. This petition and subsequent investigations found that Rajan had indeed been taken and perhaps died when in police custody. His body was not found and due to this many charges against the accused in this case had to be dropped. The accused included the then chief of the Crime Branch wing of Kerala Police, DI Jayaram Padikkal. and Shri.K. Karunakaran was the Home Minister during the emergency. He resigned from the post of the Chief Minister of Kerala in 1978 due to adverse judgment in the case.

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