International Journal of Law and Legal Jurisprudence Studies

Judicial Review of Legislative actions: A critical study of the writ of Habeas Corpus from Indian Scenario

Judicial Review of Legislative actions: A critical study of the writ of Habeas Corpus from Indian Scenario


                                                                                                 Dr.Sanjay S. Bang*




           To study the judicial review for legislative actions with reference to writ of Habeas Corpus from Indian point of view.


The research methodology used for the present research article is traditional Doctrinal research method. As most of the information can be sought form the available literature by referring books, articles, journals, websites etc. but supplemented by discussion with few academicians and two jurists from Allahabad High Court.


               Judicial review of legislative Acts is the power of the court to determine the constitutionality of the Acts by the legislature.  The principal object of the writ of Habeas Corpus is to provide for judicial review of State action by which there is unlawful deprivation of the liberty of the person. The object of the writ is not to punish the detaining authority but to release a person from illegal detention.

Research Limitations:-

               The writs which are specifically mentioned in the Constitution are the Writs of Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto. But for the sake of proper study this research paper is limited up to the writ of Habeas Corpus,

Practical Implications:-

               The results of this study would check the utility of judicial review with reference to writ of Habeas Corpus in absence of such writ it would be difficult to protect the fundamental right of freedom from unlawful deprivation of the liberty of the person.

. Key words:-

               Judicial Review, Supreme Court, Habeas Corpus, Constitution, Fundamental Rights, Democracy,

Paper Type:-

               Doctrinal Research paper.



            A strong, independent and impartial judiciary is a sine qua non of any system of government, excluding dictatorship. In each country the judiciary plays the key role of interpreting and applying the law and deciding the disputes between one citizen and the other and between a citizen and state. Where there is a written constitution the courts perform the additional function of safeguarding the supremacy of the constitution by interpreting and applying its provisions and keeping all authorities within the limits of the constitution. Judicial review is a great institution and is a fundamental arch of the system of checks and balance without which no democracy worth the name can function. Judicial Review basically is an aspect of judicial power of the state which is exercised by the courts to determine the validity of a rule of law or an action of any agency of the state. In the legal systems of modern democracies it has very wide connotations.  The judiciary plays a very important role as a protector of the constitutional values that the founding fathers have given us.  They try to undo the harm that is being done by the legislature and the executive and also they try to provide every citizen what has been promised by Constitution.  All this is possible because of the power of judicial review.

* The Author is Reader of Law at Lal Bhadur Shastri National Academy of Administration, Mussoorie, Uttarakhand. The Author can be reached at

          India is lucky enough to have a constitution in which the fundamental rights are enshrined and which has appointed an independent judiciary as guardian of the constitution and protector of the citizen’s liberties against the forces of authoritarianism.  In a true form of democracy, the rule of a fearless independent and impartial judiciary is indispensable and cannot be over-emphasized.  Judicial review of legislation is a result of two of the most fundamental features of Indian constitution.  The first is the two-tier system of law with the constitution as the Supreme law and other legislation being the ordinary law which is valid only in so far as is consistent with the constitution.  The Second is the separation of the legislative, the executive and the judicial powers of the state. Deriving their powers from the constitution, the legislatures in India enact statutes. There is a two-fold limitation on the validity of the statues.  The Legislatures must have the competence to enact them.  Secondly, they must not conflict with the constitution.  They would be invalid to the extent of their repugnancy with the constitution.

Meaning and Definition of Judicial Review:-

               The word ‘review’ stands for an act of inspecting or examining something with a view to correct it or to improve it. This meaning shows that there is something which is already done by somebody whose correction or improvement is envisaged in the process of ‘ review’ The word ‘review’ in the phrase ‘judicial review’ stands for something which is done by a court to examine the validity of the action of some other agency. Thus the power of the Judiciary to review and to determine the validity of a law or an order may be described as the power of “Judicial review”. Thus, the constitution is the supreme law of the land and any law inconsistent therewith is void.

‘Judicial Review’ legislation or executive action can be defined as “Judicial review is the ultimate power of any court to declare any act of legislatures or executives as unconstitutional and hence unenforceable as a) any law. b) Any official action based upon a law and c) any other action by a public official that it deems to be in conflict with the constitution.”

            In L. Chandra Kumar Vs Union of India[1], the Supreme Court held that “Henry J. Abraham’s definition of judicial review in the American constitution is, subject to a few modifications, equally applicable to the concept as it is understood in Indian constitutional law.”

Scope of Judicial Review:-

            In countries like India and U.S.A, which operate under a Federal system of Government, there is a division of functions between the central Government and the component state government. Such a division of functions is an essential feature in any federal system, and the process of judicial review makes the Courts responsible for enforcing the provisions of the constitution, statute and the Rules of the federal system. This power necessarily includes the authority to declare ultra vires any state legislation or other action of the instrumentality of the state, which infringes on the constitutional authority of the Central government or any other State in the federation. The Supreme Court of India and the U.S.A. have a power to declare the Acts of Parliament and Congress unconstitutional respectively. Courts call this the judicial review over the acts of the Legislative and Executive Departments of the Government. The Courts have the authority to declare actions of the other two wings Invalid as contrary to the constitutional law. This system is termed as ‘Judicial supremacy’. This is enjoyed by the Indian and American courts No such authority resided in the highest courts of England, France, Russia and Switzerland. The principle of judicial review became an essential feature of written Constitutions of many countries.

            American constitutional writes say it is judicial enforcement alone that makes the provisions of the American Constitution more than mere maxims of political morality.  Regarding the judicial review in America, it is said: “The power of judicial review is based on the idea that the constitution created a government of limited powers.”  Such is the condition under the Indian Constitution also.

Judicial Procedure for judicial Review:-

            The constitution makers of India have inserted a specific provision under Article 32 of the constitution to go directly to the Supreme Court regarding legislative lapses concerned with infringement of Fundamental Rights. Article 32 itself is the fundamental right and according to Dr Ambedkar “it is the soul of the constitution as without which there would be no meaning of inserting the other fundamental rights in the constitution”. But there has been no any specific provision in the constitution to move the Supreme Court direct on the unconstitutionality arising out of the violation of the constitutional mandate relating to distribution of powers or separation of powers or other constitutional restrictions which is equally vital. If the issue does not involve infringement of fundamental rights guaranteed under part III of the constitution, the aggrieved party has to move first the High court under article 226 and then only in appeal he can go to the Supreme Court if relief is not given by the High Court. Such pitfalls deserves rectification by a suitable provision in the constitution so as to enable an aggrieved person to move the Supreme court directly concerning the unconstitutionality relating to the distribution of powers or delegated legislation or other constitutional restriction. This speedy remedy would quicken the conscience of the citizen in a more fruitful manner in protection of his rights. Thus the Power of Judicial Review is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are concerned and the Supreme Court Articles 32 and 136 of the Constitution.

            The courts which exercise the power of Judicial Review in relation to the action of the State exercise further the jurisdiction to provide remedies to the aggrieved persons, and this they do in the exercise of their jurisdiction under the ordinary law (Statute law)  as well as the extraordinary jurisdiction under the basic law (i.e., the Constitution of the country). The traditional theory of remedy to the aggrieved persons against invalid legislation has been to provide Writs to the aggrieved persons. It was the Common Law which had started the procedure of providing the remedies to aggrieved persons. The system which they had initiated of providing  ordinary remedies which was supplemented by  the Prerogative  writs; the system was further developed by  the principles of equity which provided equitable remedies of a very effective and efficient character, and then the statute gave a final shape to the system of remedies. This has been the position in India also where courts following the English practice and procedure exercise the ordinary jurisdiction under the ordinary laws as well as the extraordinary jurisdiction under Constitutional law and provide Writs to the aggrieved persons.

Meaning of Writ:-

            The expression ‘prerogative writ’ is one of the word from English Common Law. It refers to the extraordinary writs granted by the Sovereign, as function of the justice, on the ground of inadequacy of ordinary legal remedies. In course of time these writs came to be issued by the High Court of Justice as the agency through which the Sovereign exercised his judicial powers and these writs were issued as extraordinary remedies in cases where there was either no remedy available under the ordinary law or the remedy available was inadequate. These writs are Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto. In India, the constitution has empowered the writ jurisdiction under Article 32 to the Supreme Court of India and under Article 226 to the High Courts.

Writs under Indian Constitution:-

            Judiciary in India, specially the higher judiciary has been assigned a vital role in various areas like upholding the federal principle, interpretation of the laws made by the respective legislatures, testing the validity of such laws and more importantly in protecting the fundamental rights granted to the citizens[2]. The Supreme Court, being the apex court of the nation exercises various kinds of jurisdiction which includes writ jurisdiction under Article 32 of the constitution. The jurisdiction of the Supreme Court to entertain an application under Article 32 for the issue of a constitutional writ for the enforcement of fundamental rights. It is original jurisdiction of the Supreme Court as the party aggrieved has the right to directly move the Supreme Court by presenting a petition, instead of coming through a High Court by way of appeal.

             The High Courts are also having the writ jurisdiction under Article 226 in fact wider than Article 32 of the Supreme Court. The peculiarity of this jurisdiction is that being conferred by the Constitution, it cannot be taken away or abridged by anything short of an amendment of the constitution itself. As stated above, the writ jurisdiction of the High Court is wider than the Supreme Court in as much as while the Supreme Court can issue them only where a fundamental right has been infringed, a High Court can issue them not only in such cases but also where an ordinary legal right has been infringed, provided a writ is a proper remedy in such cases, according to well established principles. Article 226, not being the fundamental right, cannot be suspended even during the time of national emergency, whereas Article 32 itself is a fundamental right gets suspended by the time of emergency.

Aims and objectives of the study:-     

            The study is carried out with the following aims and objectives

  1. To study the specific writs briefly what these specific writs stand for in English and American legal systems and what they stand for in Indian legal system.
  2. To study law relating to constitutional writs in India and developments which have taken place in the system.
  3. To study the role of the judiciary for deciding the cases related to Habeas Corpus.
  4. To study the changes have taken place related to the writ.


            The research methodology used for the present research article is traditional Doctrinal research method. As most of the information has been taken form the available literature such as the secondary data available in the Public Libraries in the form of documents such as the Government Gazettes, Statutes, Law Reports, books, journals, research articles for preparation of the same. This method is supplemented by collecting primary data by discussing few resource persons like academicians from Lal Bhadur Shastri National Academy of Administration and few from Christ University, Bangalore and some Honourable judges from Aurangabad High Court bench of Bombay High Court.


            Remedies under the Constitutions are in the form of the Prerogative Writs and the specific provisions of the Constitution under which these Writs may be granted by the Courts are Articles 226 and 227 of the Constitution of India. This jurisdiction may be exercised by the Supreme Court under Article 32 of the Constitution and by the High Courts under Articles 226 and 227 of the Constitution. The writs which are specifically mentioned in the Constitution are the Writs of Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto.

            But for the sake of proper study this research paper is limited up to the writ of Habeas Corpus,

The Writ of Habeas Corpus:-

Habeas Corpus in English Law:-

             The literal meaning of the Latin words ‘Habeas Corpus’ is to ‘have the body’. Halsbury Laws of England, dealing with this writ, in 4th Edition of the book states as “The Writ of Habeas Corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention whether in prison or in private custody. It is a prerogative writ by which the Queen has a right to inquire into the causes for which any of her subjects are deprived of their liberty.”

            The principal object of the writ of Habeas Corpus is to provide for judicial review of State action by which there is unlawful deprivation of the liberty of the person. The object of the writ is not to punish the detaining authority but to release a person from illegal detention. In England, the writ of Habeas Corpus is a prerogative writ having the object of securing the liberty of persons. It acts as an effective means of securing the release of a person from unjusti­fiable detention in prison, hospital or private custody. It originated in a command to a person detaining another to have that person’s body before a court or sometimes to bring the accused person before a court.

            The writ is today available as a remedy in most cases of unlawful deprivation of personal liberty, civil or criminal enabling the court to inquire into the justification for deten­tion. An application for Habeas Corpus lies to the Crown, its ministers and officials, the judge being bound to safeguard the liberty of all subjects and aliens against anyone, and the writ has been invoked to test the validity of an order including committal for extradition. It is a writ of right grantable but may be refused if there is an alternative remedy available. It does not lie where a person has been sentenced to imprisonment by a court of competent jurisdiction.

 The Writ of Habeas Corpus in American Law:-

            The writ of Habeas Corpus was transplanted to the American colonies as Common Law and was frequently invoked before the War of Independence. Today it is available to con­test detention by public or private authority. The Supreme Court of United States can issue the writ as an original proceeding only in cases within its jurisdiction but under its appellate jurisdiction it may issue the writ to inquire in the validity of detention by order of an inferior court to determine whether such court has acted without jurisdiction or in excess of authority. Article 1, of the federal Constitution provides that “the writ shall not be suspended unless, when in case of rebellion or invasion, public safety may require it.”

 The Writ of Habeas Corpus in Indian Law:-

            During the British regime, provisions akin to the English Act of Habeas Corpus were for the first time incorporated in the Code of Criminal Procedure 1872. Section 81 of the Code provided that any British European subject who was detained in custody by any person, might apply to the High Court for’ an order directing the person detaining him to bring  him be­fore the court and to abide by such order as might be made by it. The section however applied to British European subjects only. The provisions were continued in the Cedes of Criminal’ Procedure, 1875, 1882, 1898 and the repealing Act of 1914. Under the Criminal Law Amendment Act, 1923 any High Court could pass an order in respect of persons within the territorial limits of its appellate criminal jurisdiction.

            After independence of the country, the Constitution has made elaborate provisions with regard to the rights of persons to life and personal liberty. Article 21 provides that no per­son shall be deprived of his life or personal liberty except according to a procedure established by law, Article 22 con­tains further provisions for protection against arrest and detention in certain cases. The writ of Habeas Corpus has been provided as one of the Constitutional Remedies to which a person is entitled as a matter of his Fundamental Right. By virtue of Article 32 of the Constitution the Supreme Court may issue directions, orders or writs in the nature of the writ of Habeas Corpus; and by virtue of Article 226 of the Cons­titution the High Courts may issue directions, orders or writs in the nature of Habeas Corpus for the enforcement of the fight to life and personal liberty.

            A Constitution Bench of the Supreme Court in the case of Kanu Sanyal v. District Magistrate, Darjeeling,[3] dealing with the nature and scope of the Writ of Habeas Corpus observed as follows:

            “It will be seen from this brief history of Habeas Corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the Court, but the production of the body of the person detailed is directed in order that the circumstances of his detention may be inquired into, or to put it different,”.  The form of the writ employed is: “We command you that you have in the King Bench Division of our High Court of Justice immediately after the receipt of this our writ, the body of A. B. being taken and detained under your custody together with the day and cause of his being taken and detained to undergo and receive all and singular such matters and things as our Court shall then and there consider of concerning him in this behalf.”  The words show that the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having him discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C. in Cox v. Hakes[4] “the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant’s freedom” and his release, if the detention is found to be unlawful. That is the primary purpose of the writ; that is its substance and end.”[5]

 The Situations in which the Writ of Habeas Corpus may be invoked:-

            There are four important situations in regard to which the role of Habeas Corpus is invoked by the persons in our system of writ Jurisdiction. The first situation is one in which a person is deprived of the custody of his wife or children without justification. The second situation is the one in which a person is deprived of his liberty under punitive laws, the third situation is one in which he is deprived of his liberty under preventive detention laws and the fourth situation is one in which there is emergency and the enforcement of fundamental rights stands suspended under a proclamation issued by the President of India.  Apart from the above there is yet another important thing which is of an innovative nature as far as the role of Habeas Corpus in Indian legal system is concerned. That is the Courts of our country have expanded the scope of the Writ by awarding compensation to persons affected in their right to life and personal liberty.

 Nature of Habeas Corpus:-

            It is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the Court, in order to let the Court know on what ground he has been confined and to set him free if there is no legal justification for imprisonment. If it appears on the face of the return that a person is in detention in execution of a sentence on indictment on a criminal charge, that would be a sufficient answer to an application for habeas corpus,[6] expect where the order prima facie appears to be without jurisdiction.[7] Assuming that in such cases it is open to investigate the jurisdiction of the Court which convicted the Petitioner, the mere fact that the trail Court has acted without jurisdiction would not justify interference by habeas corpus, if the conviction had been upheld on appeal by a Court of Competent jurisdiction the appellate Court is fully competent to decide whether the trail was with or without jurisdiction and it has jurisdiction to decide the question rightly as well as wrongly. Where the appellate court wrongly holds that the trail Court had jurisdiction, it cannot be said to have acted without jurisdiction and the order of the appellate Court cannot be treated as a nullity.

            In habeas corpus proceeding, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of institution of the proceeding. Hence, if a fresh and valid order justify the detention is made by the time of the return to the writ, the Court in cannot release the detenu whatever might have been the defect of the order in pursuance of which he was arrested or initially detained. When physical restraint is put upon a person under a law there is no right to habeas corpus unless the law is unconstitutional[8] or the order is ultra vires the statute[9]. But the Petitioner is entitled to challenge the Constitutionality of the law in the habeas corpus proceeding and the Court is bound to release him if the law is held to be unconstitutional.

            A petition for habeas corpus would lie under Art. 226 not only when a person was detained by the State but also when he was detained by another private individual though not under Art. 32, because Art. 226 are available not only for the enforcement of fundamental rights, but also for ‘other purposes’.[10]  The doctrine of constructive res judicata does not apply to habeas corpus proceedings, so that even after the dismissal of one application, a subsequent application would lie, if there are fresh grounds,[11] but not on the self-same grounds, in which case the remedy is to apply for review of the previous dismissal.[12]  An analysis of the role of Habeas Corpus in the four different situations pointed out above is presented as follows:

Habeas Corpus in Respect of Persons detained under Punitive Detention Laws:-

            Persons detained under punitive detention laws are known as the under-trial prisoners. These under- trial prisoners may resort to the remedy of Habeas Corpus on the basis of their fundamental rights guaranteed in Part III of the Constitution. The persons detained under unlawful detention orders may challenge the detention questioning the validity of the law under which they are detained and rely at the same time on one of the following rights. The important rights of the under trial prisoners on the basis of which they may avail the remedy of Habeas Corpus are the following:

(i).Right to Equality:-

            Article 14 of the Constitution of India provides that the State shall not deny to any person equality before the law or equal protection of the laws. If the authorities exercise discrimination against any prisoner then it is regarded as a violation of the right to equality. By virtue of this right, all prisoners have to be treated equally andprotection of law should be there to all in an equal measure.  If the under-trial prisoners are subjected to discriminatory treatment in the matter of trial, such as, the trial of some by ordinary courts and of some others by special courts; or if some under-trials are provided with more facilities like adjournments, bail etc. but others are refused such facilities then it amounts to denial of equality.

(ii).Right to Life and Personal Liberty:-

            Article 21 of the Constitution of India says, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”      The scope of the right to life guaranteed in Article 21 of the Constitution has received a wider interpretation by the courts. It has been said that the term ‘right to life’ cannot be confined only to the taking away of life.  In an American case it was pointed out that by the term ‘life’ something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body, by the amputation of any other organ of the body through which the sour communicates with the outer world.  The Supreme Court of India has upheld this statement in Kharak Singh v. State of Uttar Pradesh[13] and has said, “Article 21 means not merely the right to the continuance of a person’s animal existence, but a right to the possession of his organs his arms and legs.”

            In Maneka Gandhi v. Union of India[14], the Supreme Court has widened the scope of the words ‘personal liberty’ observing that “the expression personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the statutes of distinct fundamental rights and given additional protection under Article 19. In this case, the Court gave a new dimension to Article 21. It held that the right to life’ is not merely confined to physical existence but it includes within its ambit the right to live with human dignity. Elaborating the same view the Court in Francis Coralie v. Union Territory Delhi[15] said that the right to live is not restricted to mere animal existence. It means something more than just physical survival. The right to live is confined to the protection of faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also includes the right to live with human dignity

(iii).Right against Double Jeopardy:-

This safeguard is guaranteed in the Constitution of India and in the Statute like the General Clauses Act, and the Code of Criminal Procedure. As far as the Constitution is concerned, Article 20 (1) says, “No person shall be prosecuted and punished for the same offence more than once”. The General Clauses Act, 1897 provides, “When an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished either of these enactments but shall not be liable to be punished twice for the same offence.” Sec.300 of the Code of Criminal Procedure enacts the rule that “A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force not be liable to be tried against for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section 1 of Section 221 or for which he might have been convicted under sub-section 2, thereof.”

(iv).Right against Self-Incrimination:-

             Article 14 of the International Covenant on Civil & Political Rights says, “In the determination of any criminal charge against him everyone shall be entitled to the following minimum guarantees, in fully equality, not to be compelled to testify against himself or to confess guilty.

            Article 20 (1) of the Constitution embodiesthis right in the following provisions:  “No person accused of an offence shall be compelled to be a witness against himself”. This right is against compulsion ‘to be a witness’.  To be a witness means making of oral or written statements in a court by a person accused of an offence. In Nandini Sathpathi v. P.L. Dani[16] the Supreme Court observed that the rule against self-incrimination contemplated by Article 20 (3) or Sec.161 (2) of the Code of Criminal Procedure is not confined to a particular offence regarding which the questioning is done but extends to other offences in respect of which the accused has reasonable apprehension from his answers.

(v). the Right to Legal Aid:-

             In Sheela Barse v. State of Maharashtra[17] the Supreme Court said, “It is the constitutional right of every accused person who is unable to engage a lawyer and secure legal service on account of reasons such as poverty, indigence situation, the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case so require.”

(vi).Right to Speedy Trial:- 

            In A.R. Antulay v. R.S. Nayak[18] the Supreme Court upon a review of several decisions of the Supreme Court of the United States of America and full Bench of the Supreme Court of India expressly affirmed the principles of speedy trial enunciated earlier in different cases.  It was thus held that Article 21 declares that no one shall be deprived of his life or liberty except in accordance with procedure prescribed by law.”

 Habeas Corpus in Respect of Persons Detained under Preventive Detention Laws:-

            In the System of Criminal Justice obtaining in India, criminal process is concerned with two categories of persons

(i)              persons who are detained under punitive detention laws

(ii)             Persons who are detained under preventive detention laws.

            The first category of persons pertains to those against whom an accusation is leveled on the basis of information that he has violated the laws of the land.  Such an accusation when leveled against the person in a formal way by the Law Enforcement Agencies leads to his Prosecution and punishment. The Criminal Law of India deals with matters pertaining to such category of persons under the provisions of the Punitive Laws.  The second category of persons are those who have not violated the laws as such but their activities are considered to be prejudicial to the safety or security of the State,  who may at any  time violate the Law. This particular category of persons is dealt with under the provisions of Preventive Detention Laws. The rights guaranteed to the above two categories of persons are no doubt different but there is concern shown by the legal system to the life and liberty of persons to whatever extent it is possible. The following discussion concerns the safeguards guaranteed to persons detained under the preventive detention laws.

(i). Right to know the Grounds of detention:-

            Article 22 of the of India gives two rights to the detenu: The authority making the order of Constitution detention must as soon as communicate to the person detained the grounds of his arrest the grounds which led to the subjective satisfaction of the detaining authority. To give the detenu “the earliest opportunity” of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation.

            Clause (5) imposes an obligation on the detaining authority to furnish to the detenu the grounds for detention “as soon as possible”. The grounds of detention should be very clear and easily understandable by the detenu.  The sufficiency of the particulars conveyed to a detenu is a justiciable issue, the test being whether they are sufficient to enable the detenu to make an effective representation. The word “Communicate” is a strong word. It requires that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purposeful and effective representation,. If the grounds are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. Thus where the detenu did not know sufficient English to understand the grounds communicated to him it was held that there was no sufficient compliance with the requirements laid down in the Constitution.  Similarly in Lallubhai Jogibhai Patel. V. Union of India, the detenu did not know English but the grounds of detention were drawn in English and the detention order stated that the Police Inspector while serving the grounds of detention fully explained the grounds in Gujarati to the detenu. It was held that there was no sufficient compliance with Article 22(5), and hence the order of detention was invalid.

            Yet another requirement is that the grounds of detention must be in existence at the time of making the order. No part of such ground can be held back nor can new grounds be added thereto. In Shibban Lal v. State of U.P.,[19] the petitioner was supplied with two grounds of his detention. But later on the detaining authority revoked one of the grounds communicated to him earlier. The detenu challenged the detention as illegal.  The State contended that the remaining ground was sufficient to sustain the detention. The Court held the detention illegal and observed,

            “To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute on objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think, the position would be the same as if one of these grounds was irrelevant for purposes of the Act, or was wholly illusory and this would vitiate the detention order “as a whole”.

            In A.D.M.Jabalpur v. Shivkanth Shukla[20] the question examined by the Supreme Court was whether the concept of Rule of Law should be given a wider interpretation or it should be given a restrictive interpretation.  The facts of the case were: during the time of National Emergency of 1975 a large number of persons had been arrested by the Government on the ground that their activities were prejudicial to the security of the State. The detention orders were challenged in the court of law, and it was contended on behalf of the detenu that their detention was contrary to the principles of Common Law, Justice and Fair play.  In support of this contention it was argued that the concept of Rule of Law in India is wider in its scope and that it should not be interpreted restrictively with reference to the provisions of Articles 21 and 22 only, rather, a wider interpretation should be given to the concept so as to give greater protection to the rights of the individuals.

Rejecting the contention of the detenu the Supreme Court held that the Rule of Law in India is what is already there incorporated in the Constitution. There is nothing outside the provisions of the Constitution to be treated as part of the concept of Rule of Law. The implication of this ruling was that it was not possible for the Court to adopt any other source of law like Common Law or Natural Law and enforce the rights of the individuals by tapping an alien source of authority in the name of Rule of Law.

            The judgment of the Supreme Court in Habeas Corpus case had been severely criticized as taking away the safe­guards to the persons’ life and liberty under the Constitution and laws of the country. Article 359 was therefore amended’ by the Constitution Forty Fourth Amendment Act 1976 accor­ding to which the enforcement of the right to Life and liberty under Article 21 shall not be suspended by the Presidential Order during Emergency. This amendment has brought “”within judicial control the administrative action which during Emergency was outside such control.

            An important development that needs to be mentioned with regard to the role of this particular Writ is that it has been employed in situations where personal liberty suffers on account of the action of public authorities though there isn’t total deprivation of personal liberty. On the analogy of the American jurisprudence the Writ of Habeas Corpus has been employed by the courts in recent years to protect the convicts, the under-trial prisoners and the suspects against torture, inhuman and degrading treatment, lack of medical and health conditions, inadequate penal facilities etc.

            After the judgment of the Supreme Court Article 29, Article 359 was amended  inserting a new clause, 359 (1)(A) stating that the enforcement of rights guaranteed by Part-III may be suspended by the Proclamation of Emergency exceptArticles 20 and 21.

The new dimension to the writ of Habeas Corpus:-

            The traditional role of a writ of habeas corpus is to set the arrested or detained person free if he is arrested or detained in contravention of law. This writ does not perform any other function like punishing the detaining authority or ordering payment of compensation to the person detained. But in India the Writ Jurisdiction is utilized by the Indian Judiciary in a novel manner in comparison than its English or American counterparts. Payment of compensation is ordered in Writ Jurisdiction for Violation of The Right to life and Personal Liberty. In Bhavsar v/s State of Andhra Pradesh, where the plaintiff was arrested in violation of the procedure established by law, the Hyderabad High Court ordered immediate realize and payment of compensation of 20,000 Rs. In this case not only the compensation was awarded but the case was decided on simple post card sent by the friends of the arrestee. The Court relaxed two conditions here, the intensity of case was considered more important than technical procedure, and second thing the traditional rule of locus standi in Habeas Corpus was also relaxed.

Concluding Remarks:-

            The Supreme Court of India which is called as protector of constitution has played a wonderful role since 1950 to protect the fundamental rights granted to the citizens of India. It has adopted and implemented new dimensions for protection than to restrict it up to the traditional aspects. Thus, the judiciary has made the statements true given by Dr Ambedkar as he considered “Article 32 to heart and soul of the constitution”. Justice Krishna Iyer once quoted that “Indian Supreme Court is the most powerful Supreme Court of the world”. No doubt, the Court has made this statement also true, though Justice Krishna Iyer considered powers of the Court, but the Court by using the powers has expanded the scope of fundamental rights for its true protection. The Supreme Court has not just considered to maintain the supremacy of the constitution, but has considered the spirit of the constitution.


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[1] (AIR 1997 SC 1125)

[2] Judicial activism in India, by G.B.Reddy, page no2

[3] AIR 1973 SC 2684

[4] (1890) 15 AC 506

[5] AIR 1973 SC 2684 Para 4.

[6] Janardhan v. State of Hyderabad, (1950) S.C.R. 344.

[7] Niranjan v. State of Punjab, (1952) S.C.R. 395 (401); Gopalan v. Govt. of India, AIR. 1966 S.C. 816 (818).

[8] State of Punjab v. Ajaib Singh, (1953) S.C.R. 254.

[9] Makhan Singh v. State of Punjab, A. 1964 S.C. 381.

[10] Vidya Verma v. Shivarain, (1956) S.C.A. 357; Ikram v. State of U.P., A. 1964 S.C. 1625 (1630); Veena v. Varinder, A. 1982 S.C. 792.

[11] Lallubhai v. Union of India, .A. 1981 S.C 728 (para.13)

[12] Kavita v. State of Maharashtra, A. 1981 S.C. 2084.

[13]Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295

[14] AIR 1978 SC 597 p. 619

[15] AIR 1978 SC 597

[16] AIR 1977 SC 1025

[17] (1997) 4 SCC 373

[18] AIR 1988 SC 1531

[19] AIR 1954 SC 198

[20] AIR 1976 SC 1207