Writ of Habeas Corpus and Indian Constitution

Writ of habeas corpus is issued in the form of an order calling upon a person who has detained another person to bring that person before the court to let it know under what authority he has detained that person.

Habeas Corpus is a process by which a person who is confined without legal justification may secure a release from his confinement. It is an effective way of immediate release from unlawful detention, whether in prison or in private custody. For the purpose of this Writ, physical detention is not necessary to constitute detention. Control and custody are sufficient ((Cox v. Haikes, (1819) 15 AC 506)).

Writ of habeas corpus is in the form of an order issued by the High Court calling upon the person by whom a person is alleged to be kept in confinement to bring such person before the court and to let the court know on what ground the person is confined. However, production of the body of the person alleged to be harmfully detained is not essential before an application for Writ of habeas corpus can be finally heard and disposed of by the Court. Production of the body of a person alleged to be wrongfully detained is ancillary to the main purpose of the Writ in securing the liberty of the subject illegally detained ((Kanu Sanyal v. District Magistrate, AIR 1973 SC 2684)).

An application for the Writ of habeas corpus can be filed by the person who is in confinement OR any other person on his behalf. However, all such applications shall accompany an affidavit stating the nature and circumstances of the confinement. General procedure is that, if the court considers that aprima facie case for granting the prayer has been made out, it issues a rule nisi calling upon the opposite party to show cause on a day specified, why an order granting the Writ should not be made.

A detention is not prima facie illegal if following conditions are satisfied;

  1. Detention should be in accordance with the procedure established by law ((See Article 21, of Indian Constitution)).
  2. It must not infringe any conditions laid down in the Article 22 of the Indian Constitution. Hence, if a person is not produced before the Magistrate within 24 hours of his arrest, he may be released on a Writ of habeas corpus.
  3. Legislature, which enacts the law depriving a man his personal liberty, must be empowered to make that law under Article 246 of the Indian Constitution ((Distribution of legislative powers)).

Writ of habeas corpus lies, if the malafide of the detaining authority is established OR if the detention is malafide and is made for a collateral OR with ulterior purpose ((AK Gopalan v. State of Madras, AIR 1950 SC 27)). However, in all these cases, burden of proof lies on the petitioner ((Prabhu Narain Singh v. Superintend, Central Jail, ILR (1961) 1 All 427)). However, a person is not entitled to be released on a petition of habeas corpus, if he could not prove the illegal detention or restraint.

In a case of habeas corpus, if the detaining authority pleads that, detenu has already released, however, if the detenu is traceable and if the release is found to be false, then court may also order for compensation ((Postsangbam Ningol Thokchom v. General Officer Commanding, AIR 1997 SC 3534)). No Writ of habeas corpus will lie in regard to a person who is undergoing imprisonment on a sentence of a court in a criminal trial on the ground of the erroneousness of the conviction ((Janardan Reddy v. State of Hyderabad, AIR 1951 SC 217)).

Writ of habeas corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out. But this does not mean that, the writ cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent to whom the court gives such custody ((Elizabeth Dinshaw v. Arvind M Dinshaw, AIR 1987 SC 3)).

However, a person has no right to present successive applications for habeas corpus to different judges of the same court ((Ghulam Sarwar v. Union of India, AIR 1967 SC 1335)). However, a fresh petition under Article 32 would be competent ((Id.)).

Custodial Deaths and its Preventive Measures

Prachi Kumari, Student, Law School, BHU, Varanasi

As per Section 57 of the Code of Criminal Procedure, 1973, a police-officer cannot detain an accused person in custody for more than twenty four hours if he is arrested without warrant. Article 22 of the Constitution also mandates the arrested person to be produced before Magistrate within 24 hours.

In case, police-officer considers it necessary to detain such accused person for a longer period for the purpose of investigation, he can do so only after obtaining a special order of a magistrate under section 167 of the Cr.P.C. The object of these provisions is to enable the magistrate to keep check over the police-investigation and to protect the accused from unscrupulous police-officer.

Unfortunately, accused persons are not safe in police custody and are often found dead mysteriously despite these provisions. Following data reveals the story;

As per the data released by the National Crime Records Bureau, “There were 21 deaths in police custody of persons who were remanded to such custody by the Court during the year 2013. Magisterial enquiry was ordered / conducted in 11 of the reported incidents in 2013 and judicial enquiry was ordered/ conducted in 6 deaths during 2013.13 cases were registered against police personnel for such custodial deaths wherein no policeman was either charge-sheeted or convicted during the year ((National Crime Records Bureau, Crimes in India 2013, available at http://ncrb.gov.in/CD-CII2013/Chapters/13-Custodial%20Crimes.pdf)).”

Moreover, “There were 97 incidents of deaths in Police custody of persons who were not remanded to police custody by court 2013, showing an increase of 36.6% in 2013 over 2012. Majority of such incidents were reported in Maharashtra (34), Tamil Nadu (15), Uttar Pradesh (14) and Gujarat (13). These States together have accounted for 78.4% (76 out of 97 deaths) in country during 2013. Magisterial enquiry was ordered in 38 out of 97 such deaths reported and judicial enquiry was ordered in 30 incidents. A total of 48 cases were registered against police personnel wherein 1 policeman was charge-sheeted; however no policeman was convicted during the year 2013.”

Furthermore, “During the year 2013, in Karnataka 5 persons were arrested under custodial rape but due to want of evidence or other reason all 5 persons were released or freed before trial. However, Out of 4 under trial persons whose trials were completed during the year, all four persons was acquitted.”

This is, indeed, an alarming data as we see; most of the guilty policemen have been acquitted due to want of evidence. The Bombay High Court took note of abovementioned data and on 16 August 2014 ordered installation of CCTV cameras in Police Stations in order to collect evidence and prevent custodial deaths. The Division Bench comprising of V.M. Kanade, J. and P.D. Kode, J. directed that compliance report should be filed within four weeks. This data was referred by advocate Yugmohit Choudhary, who has been appointed as amicus curiae in all custodial death cases together.

I think installation of CCTV cameras is a good tool to collect evidence unless it is tampered. But, there are high chances of tampering with this recording. It is significant to note that the Bombay HC has made the senior police-inspector or in-charge of the police station responsible for ensuring that the CCTVs are operational. The police cannot be trusted to keep this recording safe in all the circumstances, since this footage may be used against police itself. Although, the footage goes in favour of police if it has been kind to the person in custody whose death has been caused by any other reason, it may go against police if it has been cruel to the person in custody. Therefore, something more should be added to make this tool tamper-proof. I have following suggestions:-

  • A district-level body should be constituted to monitor whether CCTV cameras are operational.
  • That body should consists of members who are either retired or working judicial officers and are persons of high moral character.
  • That body should be empowered to operate the control-room, and should manage live recording.
  • That body should be made responsible for preservation of recording.

Police is the machinery which controls crime. If crime takes place in police custody, then we must lean towards some other machinery to curb it. Therefore, I would suggest constitution of such body to monitor CCTV footage, which consists of members other than police officers.