A writ   of   habeas   corpus   always   been considered as ‘a great constitutional privilege’ or ‘the first security of civil liberty’.  The writ is meant to provide an expeditious and effective   remedy   against   illegal   detention,   for   such   detention affects   the   liberty   and   freedom   of   the   person   who is   in confinement.

In P. Ramanatha Aiyar’s Law Lexicon (1997 Edn.), while defining “habeas corpus”, apart from other aspects, the following has been stated: ¬

“The ancient prerogative writ of habeas corpus takes its name from the two mandatory   words   habeas corpus, which it contained at the time when it, in common with all forms of legal process, was framed in Latin. The general purpose of these writs, as their name indicates, was to obtain the production of an individual.”

In Cox v. Hakes[1], Lord Halsbury observed as under: ¬

“For a period extending as far back as our legal history, the writ of habeas corpus has been regarded as   one   of   the   most   important   safeguards   of   the liberty of the subject. If upon the return to that writ it was adjudged that no legal ground was made to appear   justifying   detention,   the   consequence   was immediate   release   from   custody.

If   release   was refused,   a   person   detained   might   make   a   fresh application to every judge or every court in turn, and each court or judge was bound to consider the question independently and not to be influenced by the   previous   decisions   refusing   discharge.   If discharge   followed,   the   legality   of   that   discharge could never be brought in question. No writ of error or demurrer was allowed.”

In Secretary of State for Home Affairs v. O’Brien[2], it has been observed that: ¬

“… It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. It has through the ages been jealously maintained by the courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege.”

In  Ranjit   Singh   v.   State   of   Pepsu[3] (now   Punjab) , after referring to Greene v. Secy. of States for Home Affairs[4], Supreme Court ruled:¬

“4.  … the whole object of proceedings for a writ of habeas corpus is to make them expeditious, to keep them as free from technicality as possible and to keep them as simple as possible.”

The Bench quoted Lord Wright who, in Greene’s case, had stated:¬

“… The incalculable value of habeas corpus is that it enables the immediate determination of the right to the applicant’s freedom.”

In  Kanu  Sanyal  v.  District  Magistrate,  Darjeeling  and Others[5], a Constitution Bench, after adverting to the brief history of   the   writ   of   habeas   corpus,   opined   that   it   is   essentially   a procedural writ that deals with the machinery of justice and  not a substantive law.  The object of the writ is to secure release of a person who is illegally restrained of his liberty. 

The Court further elaborated:¬

“… 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 constituted the total historical pattern.”

Tracing the history, the Court proceeded to explicate:¬ 

“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 modern writ of habeas corpus. The writ of habeas corpus cum causa was utilised by the common law courts during the fifteenth century as an   accompaniment   of   the   writs   of   certiorari   and privilege to assert their jurisdiction against the local and franchise courts.”

In Ware v. Sanders[6], a reference was made to the Law of Habeas   Corpus by James A Scott and Charles C. Roe of the Chicago   Bar   (T.H.   Flood   &   Company,   Publishers,   Chicago, Illinois, 1923) where the authors have dealt with the aspect of Habeas Corpus.  It reads as under:¬

“A writ of habeas corpus is a writ of right of very ancient origin, and the preservation of its benefit is a matter of the highest importance to the people, and   the   regulations   provided   for   its   employment against an alleged unlawful restraint are not to be construed or applied with over technical nicety, and when ambiguous or doubtful, should be interpreted liberally   to   promote   the   effectiveness   of   the proceeding.” (See  Ummu   Sabeena   v.   State   of   Kerala   and Others )

In  Ummu   Sabeena,   the   Court   further   ruled   that   the principle   of   habeas   corpus   has   been   incorporated   in   our constitutional law and in a democratic republic like India where judges function under a written Constitution and which has a chapter of fundamental rights to protect individual liberty, the judges owe a duty to safeguard the liberty not only of the citizens but also of all persons within the territory of India; and the same exercise of power can be done in the most effective manner by issuing a writ of habeas corpus.

Thus, the pivotal purpose of the said writ is to see that no one is deprived of his/her liberty without sanction of law. It is the primary duty of the State to see that the said right is not sullied in any manner whatsoever and its sanctity is not affected by any kind of subterfuge.   The role of the Court is to see that the detenue   is   produced   before   it,   find   out   about   his/her independent choice and see to it that the person is released from illegal   restraint.  

The   issue   will   be   a   different   one   when   the detention is not illegal. What is seminal is to remember that the song   of   liberty   is   sung   with   sincerity   and   the   choice   of   an individual   is   appositely   respected   and   conferred   its   esteemed status as the Constitution guarantees

It is so as the expression of choice is a fundamental right under Articles 19 and 21 of the Constitution, if the said choice does not transgress any valid legal framework.   Once   that   aspect   is   clear,   the   enquiry   and determination have to come to an end.

[1] (1890) 15 AC 506

[2] [1923] AC 603 : [1923] ALL E.R. Rep. 442 (HL)

[3] AIR 1959 SC 843

[4] [1942] AC 284 : [1941] 3 All ER 388 (HL)

[5] (1973) 2 SCC 674

[6] 146 Iowa 233 : 124 NW 1081 (1910)