SC: A prisoner’s writ is maintainable if his fundamental rights are violated

The Hon’ble Supreme Court, on 23rd January 2020, in the matter of  The Home Secretary (Prison) & Ors. v. H. Nilofer Nisha pronounced that anybody who is behind bars and is ill­treated or is deprived of his liberties, may approach the Court for a writ of habeas corpus. A writ petition by a prisoner is maintainable if his fundamental rights are violated.

The Hon’ble Supreme Court observed that:

Article 226 of the Constitution of India empowers the High Courts to issue certain writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any right conferred under Part III of the Constitution dealing with the fundamental rights. In this case, we are concerned with the scope and ambit of the jurisdiction of the High Court while dealing with the writ of habeas corpus. (Para 13)

A writ of habeas corpus is available as a remedy in all cases where a person is deprived of his/her personal liberty. It is processual writ to secure liberty of the citizen from unlawful or unjustified detention whether a person is detained by the State or is in private detention. (Para 14)

A writ of habeas corpus will not lie and such a prayer should be rejected by the Court where detention or imprisonment of the person whose release is sought is in accordance with the decision rendered by a court of law or by an authority in accordance with law. (Para 14)

A writ of habeas corpus can only be issued when the detention or confinement of a person is without the authority of law. Though the literal meaning of the Latin phrase habeas corpus is ‘to produce the body’, over a period of time production of the body is more often than not insisted upon but legally it is to be decided whether the body is under illegal detention or not. Habeas corpus is often used as a remedy in cases of preventive detention because in such cases the validity of the order detaining the detenu is not subject to challenge in any other court and it is only writ jurisdiction which is available to the aggrieved party. The scope of the petition of habeas corpus has over a period of time been expanded and this writ is commonly used when a spouse claims that his/her spouse has been illegally detained by the parents. This writ is many times used even in cases of custody of children. Even though, the scope may have expanded, there are certain limitations to this writ and the most basic of such limitation is that the Court, before issuing any writ of habeas corpus must come to the conclusion that the detenu is under detention without any authority of law. (Para 17)

It is not for the writ court to decide whether a prisoner is entitled to parole or remission and these matters lie squarely in the domain of the Government. (Para 18)

One must remember that any person can be deprived of his liberty only in accordance with the procedure established by law. Therefore, when a person is sent to prison; whether during the investigation under an order of remand, issued under Section 167 of the Code of Criminal Procedure,1973, or as an undertrial by denying him the facility of bail, or after conviction; he is behind bars because of the orders of the Court. The Court which deprives a person of his liberty in accordance with law also has the responsibility to ensure that such a person though under incarceration is not denied the other fundamental rights which he is entitled to. (Para 20)

Anybody who is behind bars and is ill­treated or is deprived of his liberties, may approach the Court for a writ of habeas corpus. A writ petition by a prisoner is maintainable if his fundamental rights are violated. (Para 20)

Copy of judgement: Judgement_23-Jan-2020

-Adv. Tushar Kaushik 

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