Habeas Corpus
The word habeas corpus literally means to have a body.
A writ of habeas corpus is in the nature of an order 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 set him free if there is no legal justification for the imprisonment.
Habeas corpus is the writ which was visualized as an effective means to provide a quick remedy to a person who has lost his personal liberty without any legal justification.
Therefore, it cannot be used for complaining against past illegal detention.
But the Supreme Court in India has expanded its dimension and compensation is being paid not only for past illegal detention but also for loss of life.
Detention should not contravene Article 22, as for example, a person who is not produced before a magistrate within 24 hours of his detention is entitled to be released.
It is a process for securing the liberty of the subjects by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody.
In India the power to issue a writ of habeas corpus is vested only in the Supreme Court and the High Court.
The right to move the Supreme Court under Article 32 for the enforcement of fundamental rights is itself a fundamental right.
While the right to move a High Court under Article 226, though not a fundamental right, is still a constitutional right.
The 44th Amendment, 1978, has provided that Article 21, relating to personal liberty cannot be suspended even during an emergency.
In this way personal liberty has been strengthened and the writ of habeas corpus retains its potency even during an emergency.
A writ of habeas corpus will not lie and will be refused by a court:
Where the person or authority against whom habeas corpus is sought is not within the territorial jurisdiction of the court;
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