Writ of Habeas Corpus is only remedy against the illegal Detention: AP High Court

The full Bench of the Andhra Pradesh High Court has reiterated the principle that a person in detention under any enactment authorizing preventive detention or is in illegal detention of any private individual has a right to approach the High Court under Article 226 of the Constitution of India in a Habeas Corpus petition.

“The object of the writ of Habeas Corpus is to secure release of a person who is illegally restrained of his liberty. Where the detenu is not in detention, he may pray for a writ in the nature of certiorari to quash the impugned detention and/or writ in the nature of mandamus for restraining the authorities from arresting him but once he is arrested a writ of Habeas Corpus is the only remedy available against the illegal detention. The liberty of a citizen is a precious right, which cannot be transgressed by anyone, including the detaining authorities,” the Bench observed.  

The Bench, comprising Acting Chief Justice Dilip Bhosle, Justice S.V. Bhatt and Justice A. Shankar Narayana was examining the question whether a petition for a Writ of Habeas Corpus, under Article 226 of the Constitution of India, can be entertained against the order of preventive detention passed under the provisions of any enactment authorizing preventive detention.

The question was required to be framed in view an order dated November 11, 2013, passed by Division Bench of the Court in the case of Sare Laxmaih Naidu vs. The Collector & District Magistrate, YSR District, Kadapa and others, W.P.No.32190 of 2013. This Writ Petition was dismissed observing that going by the allegations made in the petition and the submissions that the petitioner was detained by the detention order passed by the appropriate authority. In view of this, the Court observed that no Habeas Corpus petition could be entertained.

The Full Bench noted that in view of the 2013 order, no Writ Petitions under Article 226 of the Constitution, against an order of detention passed by appropriate authority were filed in the last two years. It further noted that Writ Petitions, challenging such orders were heard by a single Judge, even though Rule 14(a) of the Writ Proceedings Rules, 1977, High Court of Andhra Pradesh stipulate that a petition for a writ in the nature of Habeas Corpus is required to be heard by a Bench of two Judges.

The Bench referred to the judgment in the case of Dr. Ram Manohar Lohia v. State of Bihar and Others, 1966 SCR (1) 709. In this case, the Apex Court dealt with a petition under Article 32 of the Constitution of India for a Writ of Habeas Corpus seeking a direction for the release of Ram Manohar Lohia from detention under an order passed by the District Magistrate of Patna. The order of detention was made under Rule 30(1) (b) of the Defence of India Rules, 1962.

It was contended that the order was not in terms of the Rule under which it was made and, therefore, furnishes no legal justification for detention. On the other hand, it was contended that in view of the President Order, such as one under challenge in the said writ petition, the detenu has no right to move the Court under Article 32 for his release and, therefore, the Supreme Court should not hear the application at all. In this case, the Supreme Court after referring to its several judgments and the relevant provisions entertained the petition and set aside the order of detention.

The Court also referred to the case of Kanu Sanyal v. District Magistrate, Darjeeling and others, 1974 SCR (1) 621, wherein a five Judge Bench of the Supreme Court had considered the question whether the production of the body of the person alleged to be unlawfully detained is essential before an application for a writ of Habeas Corpus can be finally heard and disposed of by the Court. The Constitution Bench took a view that there is nothing in Article 32 which requires that the body of a person detained must be produced before an application or writ of Habeas Corpus can be heard and decided by the Court.

Accepting the law laid down in earlier cases, the Court observed, “The principle of Habeas Corpus has been incorporated in our Constitutional law and, therefore, to protect individual liberty a High Court owe a duty to safeguard the liberty of all the citizens by issuing a writ of Habeas Corpus.”

Read the Judgment here.