A Comparative Analysis of Habeas Corpus in India and the USA

Habeas Corpus in India and the USA

Habeas Corpus in India

The Constitution of India is the supreme law of the land which lays down rules and regulations for the protection of the rights of the people and imposed duties over them. This vast literature is considered the guardian and protector of the fundamental rights guaranteed to an individual. The right of WRITS is one such right available to a person. The provisions of the Indian constitution are sanctioned by law thus the judiciary has the independent authority over the matters in which writs are to be issued. The concept of the writs is to enable the immediate determination of the rights of an individual and help the person to achieve the benefit of his right.

There are five types of writs in our constitution those are as follows:

  • Writ of Habeas Corpus

Habeas Corpus is the Latin term which means ‘you must have the body’. It is the order issued by the court to present the detenu before the court and to check whether the arrest was lawful or not.

  • Writ of Mandamus

The writ of mandamus is the order or command issued by any statute or any authority sanctioned by law to any person, corporation or any other authority in order to perform any public duty.

  • Writ of prohibition

The writ of prohibition means is a writ issued by the higher authority to its subordinate authority in order to stop something which the law prohibits. This writ can only be issued against a judicial and quasi-judicial body.

  • Writ of certiorari

The term certiorari is a Latin word which means to be informed. This writ is issued by the higher court to review the actions of the lower court.

  • Writ of quo warranto

Writ of quo warranto means by what authority. This writ is issued which requires a person to show by what authority he has exercised his powers or rights.

The Supreme Court under Article 32 and the high court under Article 226 have the power to issue writs of this nature. Though under Article 32 the supreme courts issue the writs if there is any violation of the fundamental rights of a person the High Court under Article 226 has a wider jurisdiction to issue the writ for both a violation of the legal as well as the fundamental rights.

Meaning of the writ of Habeas Corpus

The writ of Habeas Corpus is the legal procedure which acts as a remedial measure for the person who is illegally detained. The term Habeas Corpus is the Latin word which means to bring or present the body before the court. It is the most important right available to the person detained unlawfully. The basic purpose for which this writ is used is to release a person from unlawful detention or imprisonment. This writ is of great importance as it determines a person his right to freedom and personal liberty.


A has been taken into custody by B a police officer without a warrant. All the efforts made by A’s family to know the whereabouts of A turned out to be futile. As he was detained wrongfully by B (police officer), the writ of Habeas Corpus can be filed in court by A’s family on his behalf.

Nature of the writ of Habeas Corpus

The concept of Habeas Corpus can be traced way back to the thirteenth century. The writ of Habeas Corpus cum causa is an order calling upon the person who has detained another person, to present the person in the court and justify his actions on what grounds and under what authority he has confined that person. If the court doesn’t find any legal justifications for the cause, then it will order the immediate release of the person confined or imprisoned.

Who may apply for the writ of Habeas Corpus?

To answer this question the courts have made this clear in various cases that the person who may apply for the writ of Habeas Corpus should be

  • The person confined or detained illegally.
  • The person who is aware of the benefit of the case.
  • The person who is familiar with the facts and circumstances of the case and willingly files an application of the writ of Habeas Corpus under articles 32 and 226 of the Indian constitution.

When the writ of Habeas Corpus is refused

The following conditions when the writ of Habeas Corpus is refused are as follows:

  • When the court doesn’t have territorial jurisdiction over the detainer.
  • When the detention of a person is connected with the order of the court.
  • When the person detained is already set free.
  • When the confinement has been legitimized by the removal of the defects.
  • The writ of Habeas Corpus will not be available during an emergency.
  • When the competent court dismisses the petition on the grounds of merits.

Whether the doctrine of res judicata applies to this writ

When it comes to the illegal confinement of a person, the doctrine of res judicata is not applicable. Under article 32 successive petitions for the writ of Habeas Corpus can be filed in the court with fresh grounds which were not covered in the earlier petition filed for the same. The petition for Habeas Corpus is maintainable if it is filed in the forum having its independent existence and separate jurisdiction and competency.

In Lallubhai Jogibhai Patel vs Union Of India & Ors on 15 December 1980 it was held that no second petition for the writ of Habeas Corpus is maintainable in the court if filed on the same grounds as of the first one.

Preventive detention

Preventive detention is the confinement or imprisonment of a person in order to prevent him from committing any kind of offence in the future. It does not act as a punishment or penalty imposed upon a person; it’s just a precautionary method. The concept of preventive detention and Habeas Corpus comes hand in hand. Article 22 of the Indian constitution states the procedure of preventive detention and requires strict adherence to the law. Parliament is authorized to make laws for preventive detention for various reasons connected with it:

  • Foreign relations or foreign affairs of the country.
  • With the very purpose of providing security to India and its state.
  • For the maintenance of public order.

However, such detention may be monitored through judicial review by checking its preconditions.

Alternative remedy

If the defendant gives lawful justification for the detention or confinement the writ of Habeas Corpus may not be issued by the court. However, in case of an alternative remedy, the applicant still has the right of issuing the writ of Habeas Corpus. It is not refused on the grounds of the availability of the alternative remedy to the applicant.

Burden of proof

The burden of proof lies over the person or the authority to satisfy the court that the detention or confinement of the person was made on legal grounds. And if the detenu alleges that the confinement was malicious and outside the jurisdiction of the authority detaining the person then the burden of proof lies over the detenu.

Territorial jurisdiction

Under Article 32 of the Indian constitution, the Supreme Court has jurisdiction over all the authorities within and outside the territorial jurisdiction of India. Under Article 226 the high court is empowered to deal with the matter when the high court is having control over that authority and the probable cause of action arises.

Writ of Habeas Corpus during an emergency proclamation

The writ of Habeas Corpus is maintainable during an emergency proclamation, as after the 44th amendment in 1978 it was stated that fundamental rights enshrined under articles 20 and 21 cannot be suspended. And for the enforcement of these rights, the writ petition can be filed in court.

Case Laws-

Additional district magistrate of Jabalpur v. Shiv Kant Shukla 1976 SC 1207

This case is also known as the Habeas Corpus case and it was based upon the grounds of issuance and the viability aspect of this writ. This whole case spins around the situation when the emergency was proclaimed and the question was raised whether the writ of Habeas Corpus is maintainable in this situation or not. It was held that as in the case of Liversidge v. Anderson during emergency all the rights were held suspended, the same was held in the instant case where a state has the power to restrain the rights especially right to life enshrined under article 21 of the Indian constitution in an emergency situation. This decision was considered to be the darkest day of Indian history.

Sheela Barse v. State of Maharashtra 1983 SCC 96

In the instant case, a letter was written to the Supreme Court regarding the condition of the women prisoners who were assaulted in the lockup and the writ petition was filed regarding this situation by the plaintiff who was a human rights activists. An investigative authority was sent by the court for crosschecking the situation and the allegations made by the plaintiff. It was found that the allegations were correct. It was held that if a person detained or confined can’t file an application for the writ than some other person can file it on his behalf which quashed the locus standi approach.

Sunil Batra v. Delhi Administration 1980 AIR 1579

In the instant case, it was held by the court that the writ petition of Habeas Corpus can be filed in the court not only for the wrongful or illegal confinement of the prisoner but also for his protection from any kind of ill-treatment and discrimination by the authority responsible for his detention. Thus the petition can be filed for unlawful detention and checks the manner in which the detention was caused.

Nilabati Behra v. The State of Orissa

In the instant case, the son of the petitioner was taken away by the Orissa police for the purpose of interrogation. All the efforts made in order to trace him turned out to be futile. So the writ petition of Habeas Corpus was filed in the court. During the pendency of the petition, the dead body of the petitioner’s son was found on the railway track. The petitioner was awarded compensation for Rs. 1, 50,000.

Kanu Sanyal v. District Magistrate Darjeeling & Ors. 1974 AIR 510

In the instant case, it was held that instead of following the traditional method of producing the body before the court there must be a complete focus on the legality of the detention by looking into the facts and circumstances of the case. This case majorly focused on the nature and scope of the case and stated that this writ is a procedural writ and not a substantive writ.

A.K. Gopalan v. The State of Madras

In the instant case, the preventive detention act was examined based on its constitutional validity. If a legislature restraints a person from his personal liberty should be competent enough to make such law in the first place. Detention is turned out to be unlawful if the law backing it up is unlawful. A person has the right to approach the court. A person can file an appeal in the Supreme Court against the order of the high court in case of accepting or refusing the application for the writ of Habeas Corpus.

Habeas Corpus in the USA

In United States America law, Habeas Corpus is a recourse challenging the reasons or conditions of a person’s confinement under the colour of law. A petition for Habeas Corpus is filed with a court that has jurisdiction over the custodian, and if granted, a writ is issued directing the custodian to bring the confined person before the court for examination into those reasons or conditions.

The Suspension Clause of the United States Constitution specifically included the English common law procedure in Article One, Section 9, clause 2, which demands that “The privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

United States law affords persons the right to petition the federal courts for a writ of Habeas Corpus. Individual states also afford persons the ability to petition their own state court systems for Habeas Corpus pursuant to their respective constitutions and laws when held or sentenced by state authorities.

Federal habeas review did not extend to those in state custody until almost a century after the nation’s founding. During the Civil War and Reconstruction, as later during the War on Terrorism, the right to petition for a writ of Habeas Corpus was substantially curtailed for persons accused of engaging in certain conduct. In reaction to the former, and to ensure state courts enforced federal law, a Reconstruction Act for the first time extended the right of federal court habeas review to those in the custody of state courts (prisons and jails), expanding the writ essentially to all imprisoned on American soil. The federal habeas statute that resulted, with substantial amendments, is now at 28 U.S.C. § 2241. For many decades, the great majority of habeas petitions reviewed in federal court have been filed by those confined in state prisons by sentence of a state court for state crimes (e.g., murder, rape, robbery, etc.), since in the American system, most crimes have historically been a matter of state law.

The right of Habeas Corpus is not a right against unlawful arrest, but rather a right to be released from imprisonment after such arrest. If one believes the arrest is without legal merit and subsequently refuses to come willingly, he still may be guilty of resisting arrest, which can sometimes be a crime in and of itself (even if the initial arrest itself was illegal) depending on the state.


Habeas Corpus derives from the English common law where the first recorded usage was in 1305, in the reign of King Edward I of England. The procedure for the issuing of writs of Habeas Corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the Queen was a sufficient answer to a petition of Habeas Corpus.

The writ of Habeas Corpus was issued by a superior court in the name of the Monarch, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law. Petitions for Habeas Corpus could be made by the prisoner himself or by a third party on his behalf and as a result of the Habeas Corpus Acts could be made regardless of whether the court was in session, by presenting the petition to a judge.

The 1679 Act remains important in 21st-century cases. This Act and the historical body of British practice that relies upon it has been used to interpret the habeas rights granted by the United States Constitution while taking into account the understanding of the writ held by the framers of the Constitution.

At the 1787 Constitutional Convention Habeas Corpus was first introduced with a series of propositions on August 20 by Charles Pinckney, a delegate from South Carolina. Habeas Corpus was discussed and voted on substantively on August 28, 1787, where the first vote of the motion in favour of Habeas Corpus passed unanimously, and the second part passed by a vote of 7 to 3, for making Habeas Corpus Constitutionally-recognized.

Brief Overview

As with other features of English common law and practice, by the time of the American Revolutionary War, the Writ of Habeas Corpus was clearly established in all of the British colonies in New England and was generally regarded as part of the fundamental protections guaranteed by law to each citizen. The American Constitution at Article I, Section 9 states that: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it.” It is important to note that the framers of the Constitution for the United States of America choose to include in the body of the Constitution the Writ of Habeas Corpus while other important individual rights, arguably as an afterthought, were included in the first ten amendments, which were popularly called the Bill of Rights. This act sheds light on the importance of the Writ of Habeas Corpus as viewed by the framers of the American Constitution at the time it was established. In Hamdi V/s. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of United States citizens to seek writs of Habeas Corpus even when declared enemy combatants.

In Hamdan V/s. Rumsfeld, 2548 U.S. (2006), Salim Ahmed Hamdan petitioned for a writ of Habeas Corpus, challenging that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay “violate both the Uniform Code of Military Justice and the four Geneva Conventions.” The Supreme Court rejected Congress’s attempts to strip the courts of jurisdiction over Habeas Corpus appeals by detainees at Guantanamo Bay. On January 17, 2007, Attorney General Gonzales asserted in Senate testimony that while Habeas Corpus is “one of our most cherished rights,” the United States Constitution does not expressly guarantee Habeas Corpus rights to United States residents or citizens. America has Habeas Corpus as a heritage from England, in its Common Law later recognized by the Constitution of U.S. Only the Congress can suspend the writ. Each judge of the Supreme Court can issue the writ. Even District Courts in the U.S. can issue the writ. The Chief use of the writ in administrative law has been in alien cases. The Internal Security Act, of 1950 provided for the detention of potential spies and saboteurs during National Emergencies. But the Act provides for administrative as well as judicial review. There can be a judicial review in a Court of Appeals for a detenu by the Detention Review Board and there is also certiorari to the Supreme Courts for reviewable orders. The Board is enjoined to follow the Administrative Procedure Act; of 1946. This is a pointer to India where the Advisory Board under the Detention Act functions behind closed doors, with no facility for a trial or engagement of Counsel. In America, the Attorney-general has to furnish particulars of the evidence against the detenu who should also be given a hearing before a hearing officer within 48 hours of his arrest. Before the hearing officer, the detenu can get aid or Counsel and introduce evidence. The hearing officer can discharge a detenu against which there can be no appeal. But if he issues a detention order, an appeal lies to the Detention Review Board. Thus, in America, there are two administrative appeals and two opportunities for judicial review in detention matters.

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