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Habeas Corpus

January 17, 2023 | Dispute Resolution

In India, the power to issue the writ of Habeas Corpus vests only with the High Court (Article 224) and Supreme Court (Article 32) under the Constitution of India.

Meaning and Origin

Habeas Corpus is a writ recourse available in law to report an unlawful detention or imprisonment before a High Court or the Supreme Court and request that the court order the custodian of the person, usually the police, to bring the prisoner to court and determine whether the detention is lawful or not. If it is found that the police are acting beyond their capacity, the Court orders the release of the detainee.

The phrase “Habeas Corpus” originates from the Latin habeas or habere, which means "to have", "to hold"; and corpus is the singular version of the word "body". Therefore, the phrase literally commands that you (Prison Officials) should have the (detainee's) body (brought to court), to ascertain whether the person is lawfully detained or not. It is pertinent to mention that the Indian judiciary has doled out the traditional doctrine of locus standi. This means that if a detained person is not in a position to file a petition, it can be filed on his behalf by any other person when the captive is held incommunicado. This writ is more in the nature of a prerogative writ and aims at controlling the lower courts and police authorities in a setup. However, even though the writ of habeas corpus checks on the nature of detention, it does not guarantee a fair trial for the detained and is more of temporary relief from unlawful detention.

Procedure to file a Habeas Corpus:

In India, the power to issue the writ of Habeas Corpus vests only with the High Court (Article 224) and Supreme Court (Article 32) under the Constitution of India.  Habeas Corpus adapts quick help if there is an occurrence of unlawful detainment and is an important writ for individual freedom. Therefore, if a detainee is held incommunicado, he or another person acting on his behalf may petition the court or a judge under the writ of Habeas Corpus.

Further, all applications for writs or orders in the nature of writ of Habeas Corpus under Article 32 or 226 of the Constitution of India shall be made to the Division Bench taking the criminal business of the appellate side of the High Court or Supreme Court.

The Court on scrutiny of the application can refuse it on grounds that the person or authority against whom habeas corpus is sought is not within the territorial jurisdiction of the court; or

Where imprisonment or detention of a person is under a decision rendered by a court of law or by an authority by law;

However, if it finds some standing in the petition, the Court issues what we call as Rule Nisi, calling upon the person or persons against whom the order is sought to appear on a day to be named therein to show cause why such order should not be made and at the same time, if the Court so directs, to produce in Court the body of the person or persons alleged to be illegally or improperly detained then and there to be dealt with according to law: The detention should not contravene Articles 21 and 22 of the Indian Constitution.

The writ of habeas corpus is generally used where there is a wrongful deprivation of private liberty.


The rigorous rules of pleadings does not apply to an application filed under the writ of Habeas Corpus. The Courts have always shown great reassurance for personal liberty and have never refused to grant relief to the applicant merely on the ground of insufficient or incomplete pleading. However, it is only a procedural remedy and does not protect the rights regarding  the manner of conduct of the trial against the captive.

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