Writs - Provisions in Indian Constitution

 

Writs - Provisions in Indian Constitution

The Indian Constitution empowers the Supreme Court to issue writs for enforcement of any of the fundamental rights conferred by Part III of Indian Constitution under Article 32. Thus the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen. The Right to Constitutional Remedies, as we know, is a guarantor of all other fundamental rights available to the people of India.

In addition to the above, the Constitution also provides for the Parliament to confer on the Supreme Court power to issue writs, for purposes other than those mentioned above.

Similarly High Courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.

 

Facts about writs in India

• Article 32 also empowers Parliament to authorize any other court to issue these writs
• Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs
• Article 226 empowers all the high court’s of India to issue the writs
• Writs of India are borrowed from English law where they are known as ‘Prerogative writs’

 

What is a Writ Petition?

A writ petition is essentially a court petition for extraordinary review, asking a court to intervene in a lower court’s decision. Under the Indian legal system, jurisdiction to issue ‘prerogative writs’ is given to the Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating to writs are set forth in the Constitution of India.

 

Type of Writs

The Constitution empowers the Supreme Court and High Courts to issue orders or writs.

The types of writs are:

v  Habeas Corpus

v  Certiorari

v  Prohibition

v  Mandamus

v  Quo Warranto

Writ of Habeas Corpus

In many countries, authorities may take citizens and imprison them for months or years without charging them. Those imprisoned have no legal means to protest or challenge the imprisonment.

The framers of the U.S. Constitution wanted to prohibit this kind of abuse of power in the new United States. Therefore, they included a specific clause in the Constitution to safeguard the right, known as habeas corpus.

 What is a writ of habeas corpus?

A writ of habeas corpus is a court order for law enforcement to justify a particular detention.

Defendants or inmates can petition for a writ of habeas corpus. In this petition, they ask the judge to review their case. They claim that their detention violates the law.

The judge will set a hearing to make this decision. If the judge agrees that the detention is illegal, the petitioner can be released or their terms of confinement can change.

The right to petition for a writ of habeas corpus is an old one. It has existed since the early middle Ages. Now, it is a part of the U.S. Constitution¹ and the Texas Constitution. It is designed to restrict the power of the executive branch. It gives judges the power to require law enforcement to justify an arrest.

The term “habeas corpus” is Latin. It means “you have the body.” In the writ, a judge demands that law enforcement produce a person in their possession.

Who can petition for a writ?

In Texas, both inmates and defendants can petition for a writ of habeas corpus.

Inmates are people who have already been convicted of a crime. They are serving jail time. They can petition for a writ of habeas corpus to challenge their detention. They can claim:

ü  The court that sentenced them did not have jurisdiction, or

ü  They are held captive after being deprived of a fair trial due to a violation of a federal constitutional right.

Defendants can also petition for a writ of habeas corpus if they are in custody for a pending charge. They can claim that the detention violates their rights. Those rights include:

ü  the Double Jeopardy clause,

ü  excessive bail, or

ü  Mandatory detention maximums for alleged probation violations.

Defendants do not need to physically be in jail to petition for a writ of habeas corpus.

 

 How it Works

A writ of habeas corpus (which literally means to "produce the body") is a court order demanding that a public official (such as a warden) deliver an imprisoned individual to the court and show a valid reason for that person's detention. The procedure provides a means for prison inmates, or others acting on their behalf, to dispute the legal basis for confinement. Habeas corpus has deep roots in English common law.

Often, the court holds a hearing on the matter, during which the inmate and the government can both present evidence about whether there is a lawful basis for jailing the person. The court may also issue and enforce subpoenas in order to obtain additional evidence.

Depending on what the evidence reveals, the judge may grant the inmate relief such as:

ü  Release from prison,

ü  Reduction in the sentence,

ü  An order halting illegal conditions of confinement, or

ü  A declaration of rights.

It's important not to confuse habeas corpus with the right of direct appeal. Criminal defendants are always entitled to appeal a conviction or sentence to a higher court, which then reviews the trial judge's rulings. Habeas corpus provides a separate avenue for challenging imprisonment, and is normally used after a direct appeal has failed. It often serves as a last resort for inmates who insist that a miscarriage of justice has occurred.

Limitations of Habeas Corpus

A writ of habeas corpus is not available in every situation. Because judges receive a flood of habeas corpus petitions each year, including some that inmates prepare without the assistance of a lawyer, strict procedures govern which ones are allowed to proceed. Inmates are generally barred from repetitively filing petitions about the same matter.

Both state and federal courts can hear habeas corpus petitions. Federal courts sometimes decide that a state conviction was unjust and order the person's release. However, Congress has imposed restrictions on federal courts' authority to overrule state courts in this manner.

When an inmate is not challenging the fact of being in jail but rather the conditions of confinement -- for instance, claiming severe mistreatment or unlawful prison policies -- it is usually necessary to file a civil rights complaint instead of a habeas corpus petition. Under the Prison Litigation Reform Act, inmates contesting conditions generally must first attempt to resolve the matter through available grievance procedures, so that correctional officials have an opportunity to remedy problems before litigation.

HABEAS CORPUS CASE LAW

Additional District Magistrate of Jabalpur V. Shiv Kant Shukla 1976 SC 1207: This case is commonly known as the habeas corpus case as it was based upon the issuance and validity aspects of this writ. This case was the reason behind the 44th Constitutional Amendment Act, 1978 and also the major decision that Article 21 can be suspended during emergency. It basically revolves around the emergency which was imposed during the period 1975-77 on the direction of Smt. Indira Gandhi for the fulfillment of her own political benefits.

According to article 21 of our constitution, every person is entitled to life and liberty which also covers the right to move to court. But according to Article 359, this right was curbed during this emergency situation whose reason was declared as threat to security of nation by the way of internal disturbances. The whole case revolved around the basic question of whether habeas corpus can be granted in such a situation or even that right would be taken away subsequently. The arguments given from the side of state were that situations of emergency are declared for social, economic and military security of the nation thus in such situations, the state is given the zenith power. Nevertheless, when the state can suspend the fundamental rights of article 14 and 21, then no question arises regarding whether a person can come with a writ petition of habeas corpus regarding these fundamental rights. The major argument from the opposite party was that except the detention talked about in Section 3 of MISA (Maintenance of InternaSecurity Act), every other detention without any special condition fulfillment will be considered as ultra vires of the court. Major questioning was upon the content and essence of the presidential order and also the locus standi of the writ of habeas corpus.

The decision of the Supreme Court had its base upon the case of Liversidge v. Anderson wherein all the rights were held as suspended during the emergency and same was held in this case that even the right to life can be curbed by the state while emergency is imposed. The decision was highly criticized and this day became the black day of Indian legal history

SUMMARY OF LIVERSIDGE V ANDERSON

On 29 May 1940, Robert Liversidge (born Jacob Perl Zweig), a pilot officer in the Royal Air Force Volunteer Reserve, was arrested by a warrant issued by Sir John Anderson, Secretary of State. Liversidge was detained in Brixton Prison pursuant to Regulation 18B. He was not charged or accused of criminal conduct and he was given no reasons for his detention. The warrant merely recited that the Home Secretary had 'reasonable cause to believe' that Liversidge was 'a person of hostile associations'. At the time of Liversidge v Anderson, there was understandable public concern about the threat of persons who might support or collaborate with the enemy. Security Service MI5 was interested in Liversidge as he had a chequered past and access to classified information through his position.

On 14 March 1941, Liversidge issued a writ, suing the Secretary of State for unlawful detention and claiming damages for false imprisonment. The matter was first heard by Master Mosley who refused Liversidge's suit. An appeal to the Kings Bench was dismissed. At this point Liversidge appealed again to the English Court of Appeal, then to the Appellate Committee of the House of Lords.

By majority, Liversidge lost his claim on 3 November 1941. Because he failed to prove that he was wrongly detained, he received no damages for false imprisonment. Liversidge was only released on 31 December 1941, having been detained for one year and seven months.