SCOPE OF WRIT OF HABEUS CORPUS
The term “habeus corpus” means “to have the body of”. The Supreme Court under Article 32 and the High Court under Article 226 has jurisdiction to issue writ of Habeus Corpus against illegal detention of a person. Thus, writ of Habeus Corpus is a great remedy for protection of right to life and personal liberty granted under Article 21 of the Constitution.
A writ of habeus corpus is maintainable not only against the public authority but also private person who has illegally detained a person.
Writ of habeus corpus can be issued against an authority or person who has illegally detained a person or having constructive custody of the detenu.
A writ of habeus corpus is not maintainable if the a person has been legally detained or an appeal or petition is pending before any court or detained person has already been released.
APPLICABLITY OF RES JUDICATA
Res Judicata is not applicable on writ of habeus corpus, as it involves the most fundamental right to life and personal liberty. An aggrieved person can file successive petitions for seeking issue of writ of habeus corpus if circumstances have changed.
WHO CAN APPROACH ?
A person who has been detained can approach the High Court or Supreme Court. Any other person including the relatives can approach the appropriate court if he or she is conversant with the facts of the case.
PREVENTIVE DETENTION AND WRIT OF HABEUS CORPUS
Writ of habeus corpus can also be filed against preventive detention. Preventive detention to be valid, procedure provided under Article 22 had to be strictly complied with. Further such detention has to be tested on touchstone of provisions of Article 14, Article 19 and Article 21.
RELEVANT CASE LAWS
The Supreme Court in A K Gopalan Vs. State of Madras AIR 1950 SC 27 and ADM Jabalpur Vs Shivkant Shukla AIR 1976 SC 1207 held that if detention of person is as per procedure established by law, such detention cannot be held invalid. But after Mankea Gandhi Vs Union of India AIR 1978 SC 597 there has been shift in law and now detention of a person not only have to be by procedure established by law but also such law should be fair, just and reasonable.
