The right of personal liberty is guaranteed by Article 21 which says, ‘no person shall be deprived of his life or personal liberty except according to procedure established by law.’ The writ of habeas corpus has nonetheless long been celebrated as the most efficient safeguard of the right to personal liberty. The jurist Albert Venn Dicey wrote that the British Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty".
WRIT OF HABEAS CORPUS
Since general declarations regarding fundamental rights had not much value unless there existed the will and the means to enforce them, the constituent assembly showed the will and provided the means to enforce the fundamental rights conferred by Part III of the Constitution. Article 13 (1) made all existing laws pro tanto void if they were inconsistent with fundamental rights and Article 13(2) made all laws enacted by the state pro tanto void if they took away or abridged fundamental rights.
Articles 32 and 226 confer on the Supreme Court and the High Courts powers to issue appropriate writs for the enforcement of fundamental rights and for any other purpose. These provide effective and speedy remedies for asserting fundamental rights against laws which violate them. Speaking on Article 32 (draft Art. 25) in the Constituent Assembly, Dr. Ambedkar described the Article as the very soul of the constitution because it provided effective remedies against violation of fundamental rights as no legislature could take away these remedies.
Historical Account of Habeas Corpus
1 English Common Law
Few pages in English history are more inspiring than those relating to the writ of habeas corpus, for they show the determination of the people to secure personal liberty by a speedy and effective legal remedy. In his Judicial Review of Administrative Action, Prof. de Smith has given an admirable and scholarly account of prerogative writs in England. He classified writs into two broad classes, writs of rights or course and prerogative writs which were not writs of course because proper cause had be shown to the satisfaction of the court why they should issue. The writ of habeas corpus was a writ of right which issued ex debilo justitiae when the applicant satisfied the court that his detention was illegal. However, the writ faced the most formidable difficulty from the Crown’s attempt to defeat the writ altogether by maintaining that the special command of the King was per se sufficient to justify the commitment and detention of the subject. In 1628, the Petition of Right declared that this was not the law and further the Habeas corpus Act 1640 affirmed this position and gave to any person restrained of his liberty or suffering imprisonment by the command of the King or his Privy Council, the right to the immediate issue of a writ of habeas corpus. Referring to the writ of habeas corpus as ‘the most celebrated writ in the English Law”, Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I.
2 Indian Law
The broad principles governing writ of habeas corpus were same as applied in England. Citing approval of Lord Herschell’s observations in Barnardo v. Ford: Gossage’s Case that the writ of habeas corpus is remedial and not punitive, the Federal Court in Basanta Chandra Ghose v. R., had repelled the applicant’s contention that once a writ of habeas corpus was issued against an order of detention, the court must determine whether that order was valid. Section 491 of Cr.P.C. embodies the principle of English Law that habeas corpus is available against illegal detention by a public authority or by a private person. In Smt. Vidya Varma v. Dr. Shiv Narayan Varma, the Supreme Court held that a petition...