WRIT-HABEAS CORPUS BY KANIKA BHATIA

WHAT IS A WRIT ?

The term writ refers to a formal, legal document that orders a person or entity to perform or to cease performing a specific action or deed. Writs are drafted by judges, courts, or other entities that have administrative or judicial jurisdiction. These documents are part of common law and are often issued after a judgment is made, giving those involved in a suit the ability to carry out the judgment. Writs can take many forms including summonses, writs of execution, writs of habeas corpus, warrants, and orders.

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.

WRIT-HABEAS CORPUS

Habeas corpus is the Latin term which means ‘you must have the body’.

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.

WHO CAN APPLY FOR THIS TYPE OF WRIT?

  • 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 article 32 and 226 of the Indian constitution.

CIRCUMSTANCES WHERE WRIT CAN BE REMOVED

  • When the court doesn’t have the 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.

WRIT USED DURING AN EMERGENCY PROCLAIMATION

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

CONCLUSION

The writ of habeas corpus is the most important writ available to a person as it enables him to determine the right to his liberty. It acts as a remedial measure which ensures to set free the detained person from the illegal imprisonment.

It doesn’t absolve any person from his liability. And, judiciary is using this writ in such an effective manner in order to ensure security to a person from unlawful confinement.

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