Habeas Corpus is the Only Remedy Against Illegal Detention: High Court

Published: 07th September 2015 07:29 AM  |   Last Updated: 07th September 2015 07:29 AM   |  A+A-

A full bench of the Hyderabad High Court has made it clear that the writ of habeas corpus is the only remedy available against illegal detention of a citizen. The writ’s object is to secure the release of a person who is illegally deprived of his liberty, it has noted.

“Liberty of a citizen is a precious right, which cannot be transgressed by any one, including the detaining authorities. A writ of habeas corpus is an effective and prompt remedy. The detenu or any other person on his behalf can file habeas corpus writ petition to show a prima facie case of his unlawful detention and ,if he succeeds in establishing before the Court, he is entitled to the writ of habeas corpus as of right.”

The bench headed by acting chief justice Dilip B Bhosale has made the above observations while dealing with a question referred to it: “Whether a petition for a writ in the nature of habeas corpus, under Article 226 of the Constitution, can be entertained against the order of preventive detention passed under the provisions of Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act or any other enactment authorising preventive detention?”

The government counsel contended that the cases of detention should be challenged under the Preventive Detention Act and not by filing habeas corpus petitions.

On the other hand, the petitioners’ counsels said the cases of detention were being filed in the form of habeas corpus petitions and it had become a convention in the past several decades.

After hearing both the sides, the division bench then referred the petitions to a full bench headed by the acting CJ to adjudicate on the matter.

The full bench, after perusing the material on record and several judgments of the Supreme Court, has held that the principle of habeas corpus has been incorporated in the constitutional law and, therefore, to protect individual liberty a High Court owes a duty to safeguard the liberty of all the citizens by issuing a writ of habeas corpus. Even the Supreme Court has observed that the writ of habeas corpus is “a great constitutional privilege of the citizen” or “the first security of civil liberty”. It provides a prompt and effective remedy against illegal detention under the Act or any other enactment authorising preventive detention. Article 21 provides that no person shall be deprived of life and liberty except in accordance with the procedure established by law. Therefore, to examine the question whether the detention is illegal, the writ of habeas corpus is an effective and prompt remedy, the full bench said. While answering the question in the affirmative, it said a person in detention, by virtue of the order of detention under any enactment authorising preventive detention or is in illegal detention of any individual, has a right to approach the HC.


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