February 9, 2023

The origin of the writ of the Habeas Corpus

The writ of the ‘Habeas Corpus’ means the production of the body before the court. It is a remedy to enforce the fundamental rights, given under third part of Indian constitution.

The origin

The writ of habeas corpus is one of the most ancient writs known to the common law of England. It is a writ of immemorial antiquity and the first threads of its origin are, woven deeply within the “seamless web of history” and they are concealed and perhaps untraceable among countless incidents that constitute the total historical pattern.

Earl of Birkenhead described it in his speech in the Secretary of State v. O’ Brien[1] as “a writ antecedent to statute, and throwing its roots deep into the genius of our common law.”

Twelfth and thirteenth centuries

Originally, in its earliest period, during the twelfth and thirteenth centuries the writ of habeas corpus was used in mesne process and it was merely a command by the court to someone to bring before itself the body of a person whose presence was required for purpose of a judicial proceeding. This simple character of the writ as a special kind of summons remained unaltered till the first decades of the fourteenth century.

Pursuant to the writ, parties were brought before the Court, whether such parties were free or in detention, at the time of the issuance of the writ. When the ‘body’ named in the writ was delivered to the court, the duties of the Sheriff or other directed person were at an end. Until this time there was no mention in the writ of production accompanied by a statement as to the cause of detention. Indeed, in most cases, the writ was aimed at persons not in custody but at large. But obviously a writ by which a court could bring persons before it can be used for many different purposes and the genius of the English people found a way of using it for a different end.

Fourteenth century

The courts of common law started using the writ of habeas corpus for extending their jurisdiction at the expense of the rival courts. The writ of habeas corpus cum causa made its appearance in the early years of the fourteenth century. it not merely commanded the Sheriff to ‘have the body’ of the person therein mentioned like its predecessor but added the words ‘with the cause of the arrest and detention’. The person who had the custody of a prisoner was required by this writ to produce him before the Court together with the ground for the detention.

The writ thus became a means of testing the legality of the detention and in this form it may be regarded as the immediate ancestor of the modem writ of habeas corpus.

Fifteenth century

The writ of habeas corpus cum causa was utilised by the common law courts during the fifteenth century as an accomplishment of the writs of certiorari and privilege to assert their jurisdiction against the local and franchise courts. But towards the end of the fifteenth century the machinery of the writ of habeas corpus cum causa was turned to a new use. The courts of common law started asserting their jurisdiction against the rival central courts such as the Chancery, the Exchequer, the Ecclesiastical courts, the Council, the Star Chamber, the admiralty and the High Commission and in this struggle for supremacy between the combatant courts, the writ of habeas corpus cum causa came to be a most effective weapon in the hands of the common law courts.

The reason why it became so may be explained by quoting the following passage from the article of Maxwell Cohan on “Habeas Corpus Cum Causca” in 18 Canadian Bar Review at page 20:

“The struggle took the form of the assertion of jurisdiction on the part of combatant courts over matters as well as persons. Now the corpus cum causa was essentially a personal writ in the sense that the person of the party named was the subject matter to be had and dealt with by the court.

It will at once be apparent that if the Chancery or Exchequer or the special courts could not retain control over the bodies of parties and suitors before them and, further, could not control their actions upon the determination of the suit so as to ensure execution of their judgments, their power would be seriously impaired. This was precisely what the King’s Bench and Common Pleas had in mind when they issued writs of habeas corpus to applicants held under the process of some rival tribunal.”

The common law courts thus used the writ of habeas corpus to protect, assert and extend their own jurisdiction against the various rival courts by securing the release of litigants and others from custody. By means of this writ they brought before themselves and released persons who had been imprisoned by one of the rival courts.

Most efficient protector of the liberty

The writ of habeas corpus, known in this form as habeas corpus ad subliciandum, thus came to be a writ by which a person unlawfully imprisoned could secure his release. In this way it assumed great constitutional importance as a device for impugning the validity of arbitrary imprisonment by the executive and, as pointed out by Holdsworth in vol. 1 of his “History of English Law…… its position as the most efficient protector of the liberty of the subject was unquestioned after the Great Rebellion”. It was for this reason that men began to assign as its direct ancestor the clauses of the Magna Carta which prohibited imprisonment without due process of law.

Writ and the Magna Carta

The history of the writ shows that there is no direct descent but there can be no doubt that there is an indirect connection between the writ and the Magna Carta, because, far more effectively than any other remedy, the writ helped to vindicate the right of freedom guaranteed by the famous words of the Magna Carta.

The decision in Darnel’s case[2] was a set-back in the struggle for liberty since it eroded to some extent the effectiveness of the writ by taking the view that a return that the arrest was “by the special command of the King” was a good and sufficient return to the writ, which meant that a lawful cause of imprisonment was shown. But the Petition of Right, 1627 overruled this decision by declaring such a case of imprisonment to be unlawful. In the same way, it was enacted in the Habeas Corpus Act, 1640 abolishing the Star Chamber that any person committed or imprisoned by order of the Star Chamber or similar bodies or by the command of the King or of the Council should have his habeas corpus.

There were various other defects also which were revealed in course of time and with a view to remedying those defects and making the writ more efficient as, an instrument of securing the liberty of the subject unlawfully detained, reforms were introduced by the Habeas Corpus Act, 1679, and when even these reforms were found insufficient, the Habeas Corpus Act, 1816 was enacted by which the benefit of the provisions of the Habeas Corpus Act, 1679 was made available in cases of civil detention and the judges were empowered to inquire into the truth of the facts set out in the return to the writ.

The machinery of the writ was thus perfected by legislation and it became one of the most important safeguards of the liberty of the subject and, as pointed out by Lord Halsbury L.C., in Cox v. Hakes,[3] it has throughout “been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege.

Aprocedural writ

It will be seen from this brief history of the writ of habeas corpus that it is essentially aprocedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, “in order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restraint”.

The form of the writ employed is “We command you that you have in the King’s Bench Division of our High Court of Justice-immediately after the receipt of this our writ, the body of A.B. being taken and detained under your custody together with the day and cause of his being taken and detained-to undergo and receive all and singular such matters and things as our court shall then and there consider of concerning hint in this behalf”.

The underlined words show that the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the, detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C., in Cox v. Hakes, (supra) “the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant’s freedom” and his release, if the detention is found to be unlawful. That is the primary purpose of the writ; that is its substance and end. The production of the body of the person alleged to be wrongfully detained is ancillary to this main purpose of the writ. It is merely a means for achieving the end which is to secure the liberty of the subject illegally detained.

The question of production of body

In the early days of development of the writ, as pointed out above, the production of the body of the person alleged to be wrongfully detained was essential, because that was the only way in which the courts of common law could assert their jurisdiction by removing parties from the control of the rival courts and thereby impairing the power of the rival courts to deal with the causes and persons before them. The common law courts could not effectively order release of the persons unlawfully imprisoned by order of rival courts without securing the presence of such persons before them and taking them under custody and control.

But the circumstances have changed long since and it is no longer necessary to have the body of the person alleged to be wrongfully detained before the court in order to be able to inquire into the, legality of his detention and set him free, if it is found that he is unlawfully detained. The question is whether in these circumstances it calls be said that the production of the body of the person alleged to be unlawfully detained is essential in an application for a writ of habeas corpus.

There is no reason in principle why that which was merely a step in the procedure for determining the legality of detention and securing the release of a subject unlawfully restrained should be elevated to the status of a basic or essential feature of the writ. That step was essential to the accomplishment of the purpose of the writ at one time, but it is no longer necessary. The inquiry into the legality of the detention can be made and the person illegally detained can be effectively set free without requiring him to be produced before the court.

The applicant for the writ must show prima facie that he is unlawfully detained. If he cannot show prima facie that there is sufficient ground for his discharge the writ would not issue and his application would be summarily rejected.

Now, up to the end of the eighteenth century the procedure that was followed in application for the writ of habeas corpus was that when the applicant made out a prima facie case of an unlawful detention he would be entitled to issuance of the writ as of right. In obedience to the writ the respondent would produce the person detained before the court and file a return showing the cause of detention.

At the hearing on the date named oral argument would take place, the burden of proving lawful Justification for the detention being on the respondent. If no legal ground was made to appear justifying detention, the person detained would be immediately discharged. On the other hand,. the application would be dismissed if the detention was shown to be justified. But this procedure led to the inconvenience of unnecessarily bringing up the body of the person detained, sometimes from a distance in case where it might ultimately be found, when correct facts are placed before the court by the respondent in the return filed by him that the detention was perfectly lawful.

The supreme court in ‘Kanu sanyal v. District Magistrate Darjeeling, (1973)’ held that while dealing with an application for a writ of habeas corpus under Art. 32, the Supreme Court may not require the body of the person detained to be brought before the Court. The production of the body of the person detained is not essential to the jurisdiction of the Supreme Court to deal with the application. The Supreme Court can examine the legality of the detention on the hearing of the rule nisi without requiring that the person detained be brought before the Court, and if the detention is found unlawful, order him to be released forthwith.

Reference

Kanu Sanyal v. District Magistrate Darjeeling, (1973)


[1] [1923] A. C. 603.

[2] (1627) 3 State Trials 1.

[3] [1890] 15 A. C. 506.