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Writ of Habeas Corpus - History

Writ of Habeas Corpus - History

Advocatetanmoy Law Library

This Constitution is the supreme law of the State-Subject to the provisions of this Constitution, any law inconsistent with this Constitution is invalid to the extent of the inconsistency.This Constitution shall be upheld and respected by all Fijians and the State, including all persons holding public office, and the obligations imposed by this Constitution must be Fulfilled. Any attempt to establish a Government other than in compliance with this Constitution shall be unlawful.


Habeas corpus derives from the English common law where the first recorded usage was in 1305, in the reign of King Edward I of England. The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the Queen was a sufficient answer to a petition of habeas corpus. Winston Churchill, in his chapter on the English Common Law in The Birth of Britain, explains the process thus:

Only the King had a right to summon a jury. Henry [II] accordingly did not grant it to private courts . But all this was only a first step. Henry also had to provide means whereby the litigant, eager for royal justice, could remove his case out of the court of his lord into the court of the King. The device which Henry used was the royal writ . and any man who could by some fiction fit his own case to the wording of one of the royal writs might claim the King's justice.

The writ of habeas corpus was issued by a superior court in the name of the Monarch, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law. Petitions for habeas corpus could be made by the prisoner himself or by a third party on his behalf, and as a result of the Habeas Corpus Acts could be made regardless of whether the court was in session, by presenting the petition to a judge.

The 1679 Act remains important in 21st century cases. This Act and the historical body of British practice that relies upon it has been used to interpret the habeas rights granted by the United States Constitution, while taking into account the understanding of the writ held by the framers of the Constitution.

At the 1787 Constitutional Convention Habeas Corpus was first introduced with a series of propositions on August 20th by Charles Pinckney, a delegate from South Carolina. [2] [3] [4] Habeas Corpus was discussed and voted on substantively on August 28th, 1787, [5] where the first vote of the motion in favor of Habeas Corpus passed unanimously, and the second part passed by a vote of 7 to 3, [6] [7] for making Habeas Corpus Constitutionally-recognized.

The Suspension Clause of Article One does not expressly establish a right to the writ of habeas corpus rather, it prevents Congress from restricting it. There has been much scholarly debate over whether the Clause positively establishes a right under the federal constitution, merely exists to prevent Congress from prohibiting state courts from granting the writ, or protects a pre-existing common law right enforceable by federal judges. [8] However, in the cases of Immigration and Naturalization Service v. St. Cyr (2001), [9] and Boumediene v. Bush (2008) [10] the U.S. Supreme Court suggested that the Suspension Clause protects "the writ as it existed in 1789", that is, as a writ which federal judges could issue in the exercise of their common law authority.

Regardless of whether the writ is positively guaranteed by the constitution, habeas corpus was first established by statute in the Judiciary Act of 1789. This statutory writ applied only to those held in custody by officials of the executive branch of the federal government and not to those held by state governments, which independently afford habeas corpus pursuant to their respective constitutions and laws. From 1789 until 1866, the federal writ of habeas corpus was largely restricted to prisoners in federal custody, at a time when no direct appeals from federal criminal convictions were provided for by law. Habeas corpus remained the only means for judicial review of federal capital convictions until 1889, and the only means for review of federal convictions for other "infamous crimes" until 1891. [11] Until 1983 [ clarification needed ] the writ of habeas corpus remained the only way that decisions of military courts could be reviewed by the Supreme Court.

The authority of federal courts to review the claims of prisoners in state custody was not clearly established until Congress adopted a statute (28 U.S.C. § 2254) [12] granting federal courts that authority in 1867, as part of the post-Civil War Reconstruction. The U.S. Supreme Court in the case of Waley v. Johnson (1942) [13] interpreted this authority broadly to allow the writ to be used to challenge convictions or sentences in violation of a defendant's constitutional rights where no other remedy was available.

The U.S. Congress grants federal district courts, the Supreme Court, and all Article III federal judges, acting in their own right, jurisdiction under 28 U.S.C. § 2241 [14] to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody, subject to certain limitations, if the prisoner –

  • Is in custody under or by color of the authority of the United States or is committed for trial before some court thereof or
  • Is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree court or judge of the United States or
  • Is in custody in violation of the Constitution or laws or treaties of the United States or
  • Being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations or
  • It is necessary to bring said persons into court to testify or for trial.

In 1950s and 1960s, decisions by the Warren Court greatly expanded the use and scope of the federal writ largely due to the "constitutionalizing" of criminal procedure by applying the Bill of Rights, in part, to state courts using the incorporation doctrine. This afforded state prisoners many more opportunities to claim that their convictions were unconstitutional, which provided grounds for habeas corpus relief. In the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed the writ.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) further limited the use of the federal writ by imposing a one-year statute of limitations and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on appeal or in a state court habeas corpus action. One of AEDPA's most controversial changes is the requirement that any constitutional right invoked to vacate a state court conviction rooted in a mistake of law by the state court must have "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" (emphasis added). Thus, a U.S. Court of Appeals must ignore its own precedents and affirm a state court decision contrary to its precedents, if the U.S. Supreme Court has never squarely addressed a particular issue of federal law. [15]

Presidential suspension of habeas corpus Edit

On April 27, 1861, the right of habeas corpus was unilaterally suspended by President Abraham Lincoln in Maryland during the American Civil War. Lincoln had received word that anti-war Maryland officials intended to destroy the railroad tracks between Annapolis and Philadelphia, which was a vital supply line for the army preparing to fight the south. Indeed, soon after, the Maryland legislature would simultaneously vote to stay in the Union and to close these rail lines, in an apparent effort to prevent war between its northern and southern neighbors. [16] Lincoln did not issue a sweeping order it only applied to the Maryland route. [17] Lincoln chose to suspend the writ over a proposal to bombard Baltimore, favored by his General-in-Chief Winfield Scott. [18] Lincoln was also motivated by requests by generals to set up military courts to rein in his political opponents, "Copperheads", or Peace Democrats, so named because they did not want to resort to war to force the southern states back into the Union, as well as to intimidate those in the Union who supported the Confederate cause. Congress was not yet in session to consider a suspension of the writs however, when it came into session it failed to pass a bill favored by Lincoln to sanction his suspensions. [19] During this period one sitting U.S. Congressman from the opposing party, as well as the mayor, police chief, entire Board of Police, and the city council of Baltimore were arrested without charge and imprisoned indefinitely without trial. [20]

Lincoln's action was rapidly challenged in court and overturned by the U.S. Circuit Court of Appeals in Maryland (led by the Chief Justice of the Supreme Court, Roger B. Taney) in Ex parte Merryman. Chief Justice Taney ruled the suspension unconstitutional, stating that only Congress could suspend habeas corpus. [21] Lincoln and his Attorney General Edward Bates not only ignored the Chief Justice's order, [22] but when Lincoln's dismissal of the ruling was criticized in an editorial by prominent Baltimore newspaper editor Frank Key Howard, they had the editor also arrested by federal troops without charge or trial. The troops imprisoned Howard, who was Francis Scott Key's grandson, in Fort McHenry, which, as he noted, was the same fort where the Star Spangled Banner had been waving "o'er the land of the free" in his grandfather's song. [23] In 1863, Howard wrote about his experience as a "political prisoner" at Fort McHenry in the book Fourteen Months in the American Bastille [23] two of the publishers selling the book were then arrested. [20]

When Congress convened in July 1861 it failed to support Lincoln's unilateral suspension of habeas corpus. A joint resolution was introduced into the Senate to approve of the president's suspension of the writ of habeas corpus, but filibustering by Senate Democrats, who did not support it, and opposition to its imprecise wording by Senator Lyman Trumbull prevented a vote on the resolution before the end of the first session, and the resolution was not taken up again. [24] Trumbull himself introduced a bill to suspend habeas corpus, but failed on getting a vote before the end of the first session. [25]

Shortly thereafter, on September 17, 1861, the day the Maryland legislature was to reconvene, Lincoln imprisoned pro-Confederate members of the Maryland General Assembly without charges or hearings in further defiance of the Chief Justice's ruling. [26] Thus, the legislative session had to be cancelled. [16]

On February 14, 1862, the war was firmly in progress and Lincoln ordered most prisoners released, [27] putting an end to court challenges for the time being. He again suspended habeas corpus on his own authority in September that same year, however, in response to resistance to his calling up of the militia. [28]

Congressional suspension of habeas corpus Edit

When Congress met again in December 1862, the House of Representatives passed a bill indemnifying the president for his suspension of habeas corpus. [29] The Senate amended the bill, [30] and the compromise reported out of the conference committee altered it to remove the indemnity and to suspend habeas corpus on Congress's own authority. [31] That bill, the Habeas Corpus Suspension Act, was signed into law March 3, 1863. [32] Lincoln exercised his powers under it in September, suspending habeas corpus throughout the Union in any case involving prisoners of war, spies, traitors, or military personnel. [33] The suspension of habeas corpus remained in effect until Andrew Johnson revoked it on December 1, 1865. [34]

General Ambrose E. Burnside had former-Congressman Clement Vallandigham arrested in May 1863 for continuing to express sympathy for the Confederate cause after having been warned to cease doing so. Vallandigham was tried by a military tribunal and sentenced to two years in a military prison. Lincoln quickly commuted his sentence to banishment to the Confederacy. Vallandigham appealed his sentence, arguing that the Enrollment Act did not authorize his trial by a military tribunal rather than in ordinary civilian courts, that he was not ordinarily subject to court martial, and that Gen. Burnside could not expand the jurisdiction of military courts on his own authority. The Supreme Court did not address the substance of Vallandigham's appeal, instead denying that it possessed the jurisdiction to review the proceedings of military tribunals without explicit congressional authorization. [35]

In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the war ended. In Ex parte Milligan (1866), [36] the U.S. Supreme Court decided that Congress's 1863 suspension of the writ did not empower the President to try to convict citizens before military tribunals where the civil courts were open and operational. This was one of the key Supreme Court Cases of the American Civil War that dealt with wartime civil liberties and martial law.

In the Confederacy Edit

In the Confederacy, Jefferson Davis also suspended habeas corpus and imposed martial law. [37] Shortly after his inauguration as president of the Confederacy, [38] an act of the Confederate Congress of February 27, 1862, was passed authorizing Davis to suspend the writ of habeas corpus and declare martial law "in such towns, cities, and military districts as shall, in his judgment, be in such danger of attack by the enemy". [39] The Confederate Congress passed a limiting act two months to restrict the suspension of the writ "to arrests made by the authorities of the Confederate Government, or for offences against the same" and to add a sunset clause providing that authorization to suspend habeas corpus would expire 30 days after the next meeting of Congress. [39]

In various proclamations and orders beginning in 1862, Davis suspended the writ and declared martial law in parts of Virginia (including the Confederate capital of Richmond, Norfolk, Portsmouth, Petersburg, and elsewhere). [39] Davis also suspended the writ in East Tennessee [39] in this region, Thomas A.R. Nelson was arrested by the Confederate military and held as a political prisoner before being released on the condition that he cease criticizing the Confederate government. [40] Suspensions of civil process in the confederacy were used against suspected Unionists, particularly in border states. [41] Historian Barton A. Myers notes that after the Confederacy imposed nationwide conscription, "the difference between arrest for political dissidence and conscription into the military became largely semantic, as anyone accused of Unionism was almost always first taken to a training camp where they were monitored and hazed under guard." [42]

Davis also suspended the writ in North Carolina (June 1862) and in Atlanta (in September 1862). [39] The Confederate Congress passed re-authorizing legislation twice more, in October 1862 and February 1864. [39] Davis suspended habeas corpus in Arkansas and the Indian Territory in January 1863. [41] [43] Although Davis had initially been resistant to the idea, he suspended the writ after receiving a telegram from General Theophilus Holmes complaining that his region was filed with disloyal persons and deserters, and that he could not enforce conscription. [43]

At least 2,672 civilians were subject to military arrest in the Confederacy over the course of its history, although this is likely an undercount given the incompleteness of records. [42] Civil War historian Mark E. Neely Jr. suggests that "there seems to be no difference in the arrest rate in those periods when the Confederate Congress refuse to authorization suspension of the writ of habeas corpus and those periods was authorized. . civilian prisoners trickled into Confederate military prisons whether the writ of habeas corpus was suspended or not." [42]

The last suspension lapsed in August 1864, amid deep domestic opposition to the suspension, including from the Confederate vice president Alexander H. Stephens, Davis's political rival. [39] Citing "discontent, disaffection, and disloyalty", [38] Davis made entreaties in late 1864 and 1865 about the necessity of suspension, but bills to further suspend habeas corpus failed in the Confederate Senate. [39]

Following the end of the Civil War, numerous groups arose in the South to oppose Reconstruction, including the Ku Klux Klan. In response, Congress passed the Enforcement Acts in 1870–71. One of these, the Civil Rights Act of 1871, permitted the president to suspend habeas corpus if conspiracies against federal authority were so violent that they could not be checked by ordinary means. That same year, President Ulysses S. Grant suspended the writ of habeas corpus in nine South Carolina counties [44] the Act's sunset clause ended that suspension with the close of the next regular session of Congress.

In response to continuing unrest, the Philippine Commission availed itself of an option in the Philippine Organic Act of 1902, 32 Stat. 692, and on January 31, 1905, requested that Governor-General Luke Edward Wright suspend the writ of habeas corpus. He did so the same day, and habeas corpus was suspended until he revoked his proclamation on October 15, 1905. [45] [46] The suspension gave rise to the United States Supreme Court case Fisher v. Baker, 203 U.S. 174 (1906).

Immediately following the attack on Pearl Harbor, the governor of Hawaii Territory, Joseph Poindexter, at the specific request by Lieutenant General Walter Short, US Army, invoked the Hawaiian Organic Act, 31 Stat. 141 (1900), suspended habeas corpus, and declared martial law. Short was recalled to Washington, D.C. two weeks after the attack and subsequently Hawaii was governed by US Army Lieutenant Generals Delos Emmons and Robert C. Richardson Jr. for the remainder of the war. In Duncan v. Kahanamoku, 327 U.S. 304 (1946), the United States Supreme Court held that the declaration of martial law did not permit the trial of civilians in military tribunals for offenses unrelated to the military (in this case, public drunkenness).

In 1942, eight German saboteurs, including two U.S. citizens, who had secretly entered the United States to attack its civil infrastructure as part of Operation Pastorius, were convicted by a secret military tribunal set up by President Franklin D. Roosevelt. In Ex parte Quirin (1942), [47] the U.S. Supreme Court decided that the writ of habeas corpus did not apply, and that the military tribunal had jurisdiction to try the saboteurs, due to their status as unlawful combatants.

The period of martial law in Hawaii ended in October 1944. It was held in Duncan v. Kahanamoku (1946) [48] that, although the initial imposition of martial law in December 1941 may have been lawful, due to the Pearl Harbor attack and threat of imminent invasion, by 1944 the imminent threat had receded and civilian courts could again function in Hawaii. The Organic Act therefore did not authorize the military to continue to keep civilian courts closed.

After the end of the war, several German prisoners held in American-occupied Germany petitioned the District Court for the District of Columbia for a writ of habeas corpus. In Johnson v. Eisentrager (1950), [49] the U.S. Supreme Court decided that the American court system had no jurisdiction over German war criminals who had been captured in Germany, and had never entered U.S. soil.

In 1996, following the Oklahoma City bombing, Congress passed (91–8 in the Senate, 293–133 in the House) and President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA was intended to "deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes." The AEDPA introduced one of the few limitations on habeas corpus. For the first time, its Section 101 set a statute of limitations of one year following conviction for prisoners to seek the writ. The Act limits the power of federal judges to grant relief unless the state court's adjudication of the claim has resulted in a decision that

  1. Is contrary to, or has involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States or
  2. Has resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

It barred second or successive petitions generally but with several exceptions. Petitioners who had already filed a federal habeas petition were required first to secure authorization from the appropriate United States Court of Appeals, to ensure that such an exception was at least facially made out.

The November 13, 2001, Presidential Military Order purported to give the President of the United States the power to detain non-citizens suspected of connection to terrorists or terrorism as enemy combatants. As such, that person could be held indefinitely, without charges being filed against him or her, without a court hearing, and without legal counsel. Many legal and constitutional scholars contended that these provisions were in direct opposition to habeas corpus, and the United States Bill of Rights and, indeed, in Hamdi v. Rumsfeld (2004) [50] the U.S. Supreme Court re-confirmed the right of every American citizen to access habeas corpus even when declared to be an enemy combatant. The Court affirmed the basic principle that habeas corpus could not be revoked in the case of a citizen.

In Hamdan v. Rumsfeld (2006) [51] Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay "violate both the UCMJ and the four Geneva Conventions." In a 5-3 ruling the Court rejected Congress's attempts to strip the court of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay. Congress had previously passed the Department of Defense Appropriations Act, 2006 which stated in Section 1005(e), "Procedures for Status Review of Detainees Outside the United States":

(1) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba. (2)The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination . was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence), and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.

On September 29, the U.S. House and Senate approved the Military Commissions Act of 2006, a bill which suspended habeas corpus for any alien determined to be an "unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States" [52] [53] by a vote of 65-34. (This was the result on the bill to approve the military trials for detainees an amendment to remove the suspension of habeas corpus failed 48-51. [54] ) President Bush signed the Military Commissions Act of 2006 (MCA) into law on October 17, 2006. With the MCA's passage, the law altered the language from "alien detained . at Guantanamo Bay":

Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." §1005(e)(1), 119 Stat. 2742.

The Supreme Court ruled in Boumediene v. Bush that the MCA amounts to an unconstitutional encroachment on habeas corpus rights, and established jurisdiction for federal courts to hear petitions for habeas corpus from Guantanamo detainees tried under the Act. [55] Under the MCA, the law restricted habeas appeals for only those aliens detained as enemy combatants, or awaiting such determination. Left unchanged was the provision that, after such determination is made, it is subject to appeal in federal courts, including a review of whether the evidence warrants the determination. If the status was upheld, then their imprisonment was deemed lawful if not, then the government could change the prisoner's status to something else, at which point the habeas restrictions no longer applied.

There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal hearing. Prisoners were, but are no longer, legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.

In January 2007, Attorney General Alberto Gonzales told the Senate Judiciary Committee that in his opinion: "There is no express grant of habeas in the Constitution. There's a prohibition against taking it away." He was challenged by Sen. Arlen Specter who asked him to explain how it is possible to prohibit something from being taken away, without first being granted. [56] Robert Parry wrote in the Baltimore Chronicle & Sentinel:

Applying Gonzales's reasoning, one could argue that the First Amendment doesn't explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. Ironically, Gonzales may be wrong in another way about the lack of specificity in the Constitution's granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment . [57]

The Department of Justice in the George W. Bush administration took the position in litigation that the Military Commissions Act of 2006 does not amount to a suspension of the writ of habeas corpus. The U.S. Court of Appeals for the D.C. Circuit agreed in a 2-1 decision, [58] on February 20, 2007, [59] which the U.S. Supreme Court initially declined to review. The U.S. Supreme Court then reversed its decision to deny review and took up the case in June 2007. In June 2008, the court ruled 5-4 that the act did suspend habeas and found it unconstitutional. [60]

On June 11, 2007, a federal appeals court ruled that Ali Saleh Kahlah al-Marri, a legal resident of the United States, could not be detained indefinitely without charge. In a two-to-one ruling by the U.S. Court of Appeals for the Fourth Circuit, the Court held the President of the United States lacks legal authority to detain al-Marri without charge all three judges ruled that al-Marri is entitled to traditional habeas corpus protections which give him the right to challenge his detainment in a U.S. Court. In July 2008, the U.S. Court of Appeals for the Fourth Circuit ruled that "if properly designated an enemy combatant pursuant to the legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities." [61]

The Habeas Corpus Restoration Act of 2007 failed to overcome a Republican filibuster in the United States Senate in September, 2007.

On October 7, 2008, U.S. District Judge Ricardo M. Urbina ruled that 17 Uyghurs, Muslims from China's northwestern Xinjiang region, must be brought to appear in his court in Washington, DC, three days later: "Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful." [62]

On January 21, 2009, President Barack Obama issued an executive order regarding the Guantanamo Bay Naval Base and the individuals held there. This order stated that the detainees "have the constitutional privilege of the writ of habeas corpus." [63]

Following the December 1, 2011, vote by the United States Senate to reject an NDAA amendment proscribing the indefinite detention of U.S. citizens, the ACLU has argued that the legitimacy of Habeas Corpus is threatened: "The Senate voted 38-60 to reject an important amendment [that] would have removed harmful provisions authorizing the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world. We're disappointed that, despite robust opposition to the harmful detention legislation from virtually the entire national security leadership of the government, the Senate said 'no' to the Udall amendment and 'yes' to indefinite detention without charge or trial." [65] The New York Times has stated that the vote leaves the constitutional rights of U.S. citizens "ambiguous," with some senators including Carl Levin and Lindsey Graham arguing that the Supreme Court had already approved holding Americans as enemy combatants, and other senators, including Dianne Feinstein and Richard Durbin, asserting the opposite. [66]

On March 20, 2015, a New York Supreme Court justice issued an order to "show cause & writ of habeas corpus" in a proceeding on behalf of two chimpanzees used in research at Stony Brook University. The justice, Barbara Jaffe, amended her order later in the day by striking the reference to habeas corpus. [67]

Habeas corpus is an action often taken after sentencing by a defendant who seeks relief for some perceived error in his criminal trial. There are a number of such post-trial actions and proceedings, their differences being potentially confusing, thus bearing some explanation. Some of the most common are an appeal to which the defendant has as a right, a writ of certiorari, a writ of coram nobis and a writ of habeas corpus.

An appeal to which the defendant has a right cannot be abridged by the court which is, by designation of its jurisdiction, obligated to hear the appeal. In such an appeal, the appellant feels that some error has been made in his trial, necessitating an appeal. A matter of importance is the basis on which such an appeal might be filed: generally appeals as a matter of right may only address issues which were originally raised in trial (as evidenced by documentation in the official record). Any issue not raised in the original trial may not be considered on appeal and will be considered waived via estoppel. A convenient test for whether a petition is likely to succeed on the grounds of error is confirming that

  1. a mistake was indeed made
  2. an objection to that mistake was presented by counsel and
  3. that mistake negatively affected the defendant's trial.

A writ of certiorari, otherwise known simply as cert, is an order by a higher court directing a lower court to send record of a case for review, and is the next logical step in post-trial procedure. While states may have similar processes, a writ of cert is usually only issued, in the United States, by the Supreme Court, although some states retain this procedure. Unlike the aforementioned appeal, a writ of cert is not a matter of right. A writ of cert will have to be petitioned for, the higher court issuing such writs on limited bases according to constraints such as time. In another sense, a writ of cert is like an appeal in its constraints it too may only seek relief on grounds raised in the original trial.

A petition for a writ of error coram nobis or error coram vobis challenges a final judgment in a criminal proceeding. Use of this type of petition varies from jurisdiction to jurisdiction, but is usually limited to situations where it was not possible to raise this issue earlier on direct appeal. These petitions focus on issues outside the original premises of the trial, i.e., issues that require new evidence or those that could not otherwise be raised by direct appeal or writs of cert. [68] These often fall in two logical categories: (1) that the trial lawyer was ineffectual or incompetent or (2) that some constitutional right has been violated.

Number of cases Edit

In 2004, there were about 19,000 non-capital federal habeas corpus petitions filed and there were about 210 capital federal habeas corpus petitions filed in U.S. District Court. The vast majority of these were from state prisoners, not from those held in federal prisons. There are about 60 habeas corpus cases filed in the U.S. Supreme Court's original jurisdiction each year. The U.S. Courts of Appeal do not have original jurisdiction over habeas corpus petitions.

Types of cases in which petitions are filed Edit

In 1992, less than 1% of federal habeas corpus petitions involved death penalty sentences, although 21% involved life sentences. At that time about 23% had been convicted of homicide, about 39% had been convicted of other serious violent crimes, about 27% had been convicted of serious non-violent crimes, and about 12% were convicted of other offenses. These are almost exclusively state offenses and thus petitions filed by state prisoners.

Exhaustion of state-court remedies often takes five to ten years after a conviction, so only state prisoners facing longer prison sentences are able to avail themselves of federal habeas corpus rights without facing a summary dismissal for failure to exhaust state remedies. The lack of state remedies to exhaust also means that the timeline for federal death penalty habeas review is much shorter than the timeline for state death penalty habeas review (which can drag on literally for decades).

In 2004, the percentage of federal habeas corpus petitions involving state death sentences was still about 1% of the total.

Success rates Edit

About 63% of issues raised in habeas corpus petitions by state court prisoners are dismissed on procedural grounds at the U.S. District Court level, and about 35% of those issues are dismissed based on the allegations in the petition on the merits (on the merits has a different meaning than what it's used for here). About 2% are either "remanded" to a state court for further proceedings (which poses an interesting problem of federalism – the federal court usually issues a writ to the state prison to release the prisoner, but only if the state court does not hold a certain proceeding within a certain time), or, far less frequently, resolved favorably to the prisoner on the merits outright. About 57% of habeas corpus issues dismissed on procedural grounds in 1992 were dismissed for a failure to exhaust state remedies.

Success rates are not uniform, however. James Liebman, Professor of Law at Columbia Law School, stated in 1996 that his study found that when habeas corpus petitions in death penalty cases were traced from conviction to completion of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995." [69] Similarly, a study by Ronald Tabek in a law review article puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted." [70] Most habeas corpus petitioners in death penalty cases are represented by attorneys, but most habeas corpus petitioners in non-death penalty cases represent themselves. This is because federal funds are not available to non-capital state habeas petitioners to pay for attorneys unless there is good cause, there being no federal right to counsel in such matters. However, in state capital cases, the federal government provides funding for the representation of all capital habeas petitioners.

Thus, about 20% of successful habeas corpus petitions involve death penalty cases.

These success rates predate major revisions in habeas corpus law that restricted the availability of federal habeas corpus relief when AEDPA was adopted in 1996, over a decade ago. Post-AEDPA, the great disparity in success rates remains, however, with the federal courts' overturning of state capital cases a major reason that many states have been unable to carry out a majority of capital sentences imposed and have long backlog lists.

Disposition time Edit

The time required to adjudicate habeas corpus petitions varies greatly based upon factors including the number of issues raised, whether the adjudication is on procedural grounds or on the merits, and the nature of the claims raised.

In 1992, U.S. District Courts took an average of two and a half years to adjudicate habeas corpus petitions in death penalty cases raising multiple issues that were resolved on the merits, about half of that time-length for other multiple issue homicide cases, and about nine months in cases resolved on procedural grounds.

AEDPA was designed to reduce the disposition times of federal habeas corpus petitions. But AEDPA has a little impact in non-capital cases, where a majority of cases are dismissed on procedural grounds, very few prisoners prevail and most prisoners are not represented by attorneys. The disposition time in capital cases has actually increased 250% from the time of AEDPA's passage to 2004.

Filing rates Edit

In 1991, the average number of federal habeas corpus petitions filed in the United States was 14 per 1,000 people in state prison, but this ranged greatly from state to state from a low of 4 per 1,000 in Rhode Island to a high of 37 per 1,000 in Missouri.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) produced a brief surge in the number of habeas corpus filings by state prisoners, as deadlines imposed by the act encouraged prisoners to file sooner than they might have otherwise done so, but this had run its course by 2000, and by 2004, habeas corpus petition filing rates per 1,000 prisoners was similar to pre-AEDPA filing rates.

December 22, 2010

On a lazy afternoon in February 1961, Wilbert Rideau decided to rob a bank in Lake Charles, Louisiana. Rideau, a smart but impulsive eighth-grade dropout from a violent home, had counted on making a quick, clean getaway, just like the ones he’d seen in the movies, but his plans unraveled during the heist when a phone call to the bank revealed that the police were closing in. Rideau took three hostages, commandeered a car and, as darkness fell, got lost on the back roads outside town. At a bayou crossing the passengers bolted, and Rideau opened fire. Two survived and vanished into the night, but the third, a teller named Julia Ferguson, was wounded by the gunfire and then stabbed to death by Rideau with a hunting knife. A 19-year-old black man had killed a white woman. In no time, Rideau was under arrest.

In the Place of Justice
A Story of Punishment and Deliverance.
By Wilbert Rideau.
Buy this book.

Habeas Corpus
From England to Empire.
By Paul D. Halliday.
Buy this book.

Outside the jail, a mob formed. "Hang that nigger," a voice called out. But the officers held their man, confident that justice would be swift and severe. "It was a good little town back then," a deputy sheriff later explained to a reporter. "Ever’body did their job. The prosecutors, the law enforcement…. You didn’t have to worry about lynching because they lynched ’em for you."

The trial, as Rideau recalls in his gripping memoir In the Place of Justice, was "merely a formality," played out by white attorneys before a white judge and an all-white jury. "I was the only black in sight, a fly in a bowl of milk," he writes. The place was Calcasieu Parish, at the height of the backlash against the civil rights movement, when Louisiana lawmakers had voted to close down the state’s public schools rather than integrate them. Rideau was guilty of terrible crimes&mdasharmed robbery, kidnapping and homicide&mdashbut the district attorney stretched and suppressed evidence to prove premeditation, a necessary condition for a capital conviction. Julia Ferguson’s stabbing wounds became an attempted beheading, an embellishment later undermined by pathology photographs. A meandering oral confession got replaced by a tidier version, written by an FBI agent, that detailed plans to murder every witness. Physical evidence from the crime scene disappeared. The verdict was certain: death.

When it reviewed the roughshod proceedings on appeal, the US Supreme Court assailed Calcasieu Parish’s "kangaroo court" and reversed the conviction. But a second trial before another all-white jury in the same venue returned the same verdict. At that point the defendant would have run out of options were it not for an ancient legal instrument that dates back at least to the sixteenth century, and indirectly to the Magna Carta: habeas corpus. Literally an order to "have the body" of a detainee brought into court to assess the legality of his or her confinement, the writ of habeas corpus has long been celebrated in Anglo-American jurisprudence as "a fundamental safeguard against unlawful custody" and "a critical check on the executive." As the writ gained strength in the decades around England’s Glorious Revolution, it helped to vanquish absolutism and lay the groundwork for the modern era’s protections of individual rights. Architects of the early American Republic regarded habeas corpus as so indispensable that they enshrined it in the Constitution, before the Bill of Rights, and set an exceedingly high bar to its suspension, only "when in cases of rebellion or invasion the public safety may require it." Hailed by William Blackstone as a "stable bulwark of our liberties," the writ has figured prominently, if inconsistently, in protecting disfavored minorities and mitigating repression throughout the common-law world. In the legendary Somersett case of 1772, a habeas petition led to the abolition of slavery in England, though not yet its colonies. In 2004 the Supreme Court ruled in Hamdi v. Rumsfeld that the Bush administration’s indefinite detention of suspected terrorists who are US citizens without judicial review was constitutionally indefensible. Even during the "most challenging and uncertain moments," the majority held, "the Great Writ of habeas corpus" remains in force, allowing citizens, aliens and even designated enemy combatants to challenge involuntary confinement and demand "due process of law."

In Rideau’s case, habeas corpus provided a second entry into federal court, which ordered yet another trial. Louisiana then sought and won a third death sentence, but the delays allowed Rideau to survive until 1972, when the Supreme Court, in Furman v. Georgia, vacated every capital conviction in the country. After Furman Rideau was resentenced to life imprisonment, and his court-appointed attorneys bid him farewell, saying they had done everything they could for him. Sent to Angola, a former slave plantation that by the 1970s was "the most violent prison in America," he was left to rot but instead built an extraordinary career. He started reading, then writing, and eventually became a respected, award-winning journalist from behind Angola’s walls. Life magazine called him "the most rehabilitated prisoner in America," but partly because one of his former hostages lobbied hard for his perpetual confinement, his repeated appeals for clemency went nowhere.

That is, until habeas corpus again came to his rescue. A literary scholar named Linda LaBranche took an interest in his case and started poring over old jury selection records. She found incontrovertible evidence of racial discrimination in Rideau’s trials, and through the flexible, open-ended provisions then permitted in federal habeas practice, she was able to help secure Rideau a fourth shot at justice in 2005. This time, ably represented by a team of pro bono attorneys, Rideau was convicted of manslaughter rather than premeditated murder. Having already been incarcerated for forty-four years, a period twenty-three years longer than the maximum sentence for manslaughter, Rideau went free. He now lives in Baton Rouge, where he has settled down with LaBranche and a brood of cats. "I’m only here today because of habeas corpus," he said in a recent interview. "It saved my life."

Rideau’s commutation and ultimate release signal the enduring potency of habeas corpus, but also its practical impotence. What jurists have long called "the Great Writ of Liberty" did its work, but at an excruciating pace. That Rideau’s case unfolded during a period of relative vitality in habeas jurisprudence makes his story all the more troubling. Since the 1990s, lawmakers have increasingly circumscribed the writ, imposing rigid time limits and erecting formidable barriers between state and federal courts. In today’s legal climate, a defendant like Rideau would have almost no chance of returning to freedom or even escaping execution. Habeas is becoming "an illusory writ," says George Kendall, one of Rideau’s lawyers and a habeas and death penalty expert. In the war on crime, the war on terror and the new war against undocumented immigration, the Great Writ is being gutted.

Paul Halliday’s sweeping, scrupulously researched Habeas Corpus: From England to Empire examines the capacities and contradictions of this remarkable legal device. A historian at the University of Virginia and an occasional contributor to amicus briefs in noteworthy habeas cases, Halliday dismisses conventional paeans to the writ. Focusing less on landmark decisions than on thousands of quotidian cases from the sixteenth to the eighteenth century, recorded on parchment and bound with leather thongs, he pieces together an ambivalent story with unexpected origins. Rather than heralding habeas corpus as a "palladium of liberty," he shows how, over the course of centuries, habeas has extended state power as well as constricted it, facilitated empire as well as regulated its reach, and how, in periods of crisis and demagoguery, princes and parliamentarians have muffled the "sighs of prisoners" despite the venerable writ’s promise to hear them.

In early modern England, the judiciary was not a separate branch of government but an extension of the sovereign’s law, Halliday explains. Writs of habeas corpus, accordingly, functioned less to safeguard individual liberty&mdashstill an embryonic concept&mdashthan to regulate the conduct of jailers. Faced with a polyglot legal landscape in which myriad entities, from ecclesiastical courts to justices of the peace, had been granted the franchise of imprisonment, powerful jurists, especially on King’s Bench, the common law court upon which the monarch theoretically sat, used habeas corpus to review the decisions of lesser magistrates in order to ensure that his majesty’s subjects were lawfully detained. In this way, Halliday argues, enterprising judges close to the crown made themselves into a superior court and "put themselves at the heart of the state."

Acting in the name of the sovereign and asserting the authority to "monitor the work of all other jurisdictions," King’s Bench (Queen’s Bench when the monarch was a woman) deployed the writ in an extraordinary array of cases, reshaping it in the process. Impressed soldiers, asylum inmates, slaves and prisoners of war sought release through habeas proceedings, sometimes successfully. Long before the development of modern family law, women called on the writ to escape abusive husbands, though they had to convince the court that a man’s violence exceeded "the lawful government of his wife." Forged in common law rather than by statute, writs of habeas corpus, in the hands of determined judges, could reach almost any detainee, held under any circumstances, located anywhere under British control.

In the turmoil of the seventeenth century, the judiciary went further. If habeas began as a "writ of the prerogative by which the king demands account for his subject," Halliday writes, the justices of King’s Bench increasingly claimed the powers of sovereign prerogative "for their own use, thereby making themselves the sun that lit the heavens." As the crown was weakened, judges asserted their independence, with startling results. In the wake of revolution in the late 1680s&mdash"a period of rampant fear," with war raging in Ireland and an invasion from Catholic France looming&mdashKing’s Bench reviewed the records of 147 detainees charged with treason and other "wrongs against the state" and ordered "bailed or discharged 80 percent," at a time when the very survival of the government hung in the balance. What started as a means of consolidating power had become a check on the powerful.

This was the golden age of habeas corpus, Halliday contends. Although Whiggish histories have depicted the Great Writ as marching ever forward, spreading freedom as it goes, Halliday shows that by the late eighteenth century, when Enlightenment revolutions were breaking out on both sides of the Atlantic, habeas corpus was in retreat. The advancing force was empire. While in one sense the centralizing authority exercised through habeas review standardized and thus facilitated the imperial reach of British law, the writ’s promise to apply the law uniformly inevitably faltered before the inequalities and injustices of colonialism. Habeas corpus "traveled the globe," Halliday observes, but "suspension followed, like a shadow."

During the American Revolution, Parliament suspended the writ and for the first time made distinctions between detainees charged with committing offenses at home and abroad, with the result that "hundreds of American sailors" captured at sea were denied habeas relief and held indefinitely "not as POWs, but as traitors or pirates." In South Asia, habeas corpus arrived with the East India Company, but Halliday shows how statutory limitations on habeas&mdasha topic too often ignored in the literature, he claims&mdash"put Indians beyond the bounds of subjecthood" and empowered colonial governors to define "criminal tribes" and imprison or deport whole groups without trial. In response to the Mau Mau rebellion of the 1950s, hundreds of thousands of Kenyans, including Barack Obama’s paternal grandfather, were rounded up, tortured or placed in concentration camps without judicial review. Habeas corpus cast no light of liberty there.

Halliday focuses mainly on sixteenth- and seventeenth-century England, but his attention to the perennial disappointments of the writ and its invidious intersections with empire make for fascinating reading in the twenty-first-century United States. Although habeas corpus is embedded in the Constitution and has been suspended by Congress only once, during a case of genuine rebellion in 1863, it faced epic challenges in the wake of September 11, when the Bush administration asserted unprecedented powers to unilaterally declare people "enemy combatants" and detain them at will, indefinitely and without independent review of any kind. Halliday’s book suggests that the White House had ample, if selective and legally dubious, precedent for its aggressive posture. In response to "detestable conspiracies," both real and imagined, various British governments had pioneered all manner of habeas circumventions: removing prisoners to other countries, holding them on ships and building special prison camps on remote islands, where, "surrounded by waves," detainees were kept "beyond law’s gaze." When challenged by the courts, administrators had sought and often won legislation to strip noncitizens of legal protections, indemnify jailers "who had done the ugly work" or simply suspend habeas corpus altogether&mdashan increasingly common practice as the British Empire, and resistance to it, grew. In defending rendition, enhanced interrogation and indefinite detention at Guantánamo, legal theorists in the Bush administration thus borrowed from repressive tactics developed in colonial Ireland, Jamaica and New Zealand&mdashconquered places that allowed the British sun never to set but where the law was too often put to sleep.

Halliday posits that "the history of habeas corpus traces an ongoing tension between the logic of detention and the persistent judge." By 2004 it seemed the judge might again be gaining the upper hand. In three cases decided in June of that year, as images of prisoner degradation at Abu Ghraib spread around the world, the Supreme Court condemned the Bush administration’s "unchecked system of detention" and breathed new life into habeas corpus. Narrow majorities ruled on a number of key issues: citizens and aliens alike retain their habeas rights, even if they are declared enemy combatants the executive’s war powers do not insulate it from judicial review and writs of habeas corpus have the power to reach any jailer anywhere who is subject to US law, even at Guantánamo Bay, which is officially Cuban territory but has been controlled by the United States since the Spanish-American War. Rejecting the Bush administration’s most expansive arguments, the justices noted that the founders, having suffered British despotism, regarded "unlimited power" as "especially hazardous to freemen." As Justice O’Connor famously commented, "A state of war is not a blank check for the President."

The Court’s rulings marked another milestone in the history of the Great Writ, yet the aftermath bears out Halliday’s clear-eyed approach. Following the advice of Justice Scalia, who accused his fellow justices of "judicial adventurism of the worst sort" (ironically, just the sort of adventurism that created habeas and sustained it over four centuries), Congress in 2005 stripped Guantánamo detainees of their habeas rights, reinforcing Halliday’s contention that legislators can be as hostile to civil liberties as executives. In two subsequent cases, most categorically in Boumediene v. Bush (2008), the Court struck back, again rejecting President Bush’s determination to "govern without legal constraint" and Congress’s willingness to let him. The majority ruled that under the Constitution lawmakers have no right to suspend the writ selectively and that military tribunals, as set up by the Pentagon, provide no "adequate substitute" for impartial, adversarial judicial review. Sweeping in scope, the decisions nonetheless left the vast majority of detainees in legal limbo: still incarcerated, still awaiting their day in court. Almost a decade after its creation&mdashdespite constitutional censure and promises by President Obama to shut it down&mdashthe prison camp that Amnesty International has called "the gulag of our times" remains mostly insulated from the rule of law. On the page, habeas corpus may have triumphed over the Bush administration’s war of fear, but on the ground the "logic of detention" continues to unfold.

This disjuncture between promise and practice is equally pronounced, if less discussed, in other areas of modern US law. In the realm of immigration enforcement, where federal detention has expanded most rapidly in recent years, similar tensions have developed between the judiciary and the political branches, and with similar results. In 2001 the Supreme Court held in INS v. St. Cyr that immigration detainees have habeas rights and that deportation hearings managed by the Justice Department, an executive agency, cannot be walled off from judicial review, as Clinton-era statutes tried to do. In 2005 Congress responded with the Real ID Act, which in addition to setting up the rudiments of a controversial national ID card system, included scarcely noticed provisions to paralyze the writ of habeas corpus in immigration cases without actually killing it. By imposing thirty-day federal filing deadlines and limiting the purview of the judiciary to questions of constitutional law rather than the factual record of individual cases, the statute preserved habeas in name but in effect made it unavailable to thousands of detainees each year. "The government has so chipped away at habeas in immigration cases as to make it an almost meaningless right," says Lee Gelernt, an ACLU attorney who is building a case to challenge the new law. He adds that an executive-only approach to immigration enforcement has continued under the Obama administration, which detained 380,000 individuals on immigration violations in 2009, almost none of whom are provided access to counsel or even an independent court hearing, much less habeas review.

In conventional criminal law, the United States is unique in using habeas corpus primarily as a postconviction remedy. Invoking the writ successfully has never been easy, as the case of Wilbert Rideau makes clear. Nevertheless, postconviction habeas developed into an important alternative to direct appeals and as a mechanism of equity relief, especially in death penalty and civil rights cases. During the divisive crime debates of the 1990s, however, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which put habeas petitions beyond the reach of all but the most capably represented and egregiously wronged criminal detainees. Extending legalistic restrictions already imposed by the Rehnquist Court, the law requires prisoners to exhaust all state remedies before turning to federal court, limits the ability of federal judges to question the decisions of trial courts and imposes various administrative burdens on petitioners, including strict deadlines for initial filings&mdashall of which add up to insurmountable barriers for most inmates, who tend to be indigent, poorly educated and unrepresented by counsel. "AEDPA has been awful for criminal defendants," says Vanita Gupta, an ACLU attorney who under more forgiving state rules famously helped overturn a host of wrongful drug convictions in Tulia, Texas. "Its onerous, lawyerly demands and blanket restrictions have created a morass of litigation and severely curtailed the reach of the Great Writ." Even as America’s prison population has swollen to an unparalleled size, a key conduit for release has thus been shut off, in effect rendering the country’s first civil right an inaccessible right. As during the repressive ascendance of the British Empire, lawmakers in the United States have "bound the judge and muffled the prisoner’s sighs."

Halliday’s history of setbacks and shortcomings is indeed discomfiting. "Beginning with royal power" and ending with "detention of people on a scale that defies judiciousness," his book suggests that the "idea of habeas corpus"&mdashthat no person shall be detained except by due process of law&mdash"has been more powerful outside of courtrooms than inside them." Yet his book is not without hope. Halliday shows how innovative and persistent judges turned an instrument of the king’s prerogative into a "writ of majestic, even equitable, sweep" and managed, in some cases at least, to defend it against "a legislative onslaught on liberties of every kind." In thwarting the Bush administration’s absolutist leanings, the Supreme Court has recently shown glimmerings of that same independence, but the results remain unclear. In the twenty-first century, habeas corpus can be as vital for the protection of individual liberties as it was in the seventeenth, but courageous judges&mdashprecisely the sort excoriated by Scalia&mdashwill have to make it so.

Robert Perkinson Robert Perkinson teaches at the University of Hawaii at Manoa and is the author of Texas Tough: The Rise of America&rsquos Prison Empire.

III. Landmark judgements

A. K. Gopalan v. State of Madras, 1950[2]

A.K. Gopalan was an Indian Communist leader who was detained under the Preventive Detention Act, 1950. He was detained since December 1947 without trial. Challenging his detention, AKG, as he was popularly called, filed a habeas corpus writ petition in the court.

However, the court held in favour of the respondent in this case. In his judgement Chief Justice Kania said:

No extrinsic aid is needed to interpret the words of article 21, which in my opinion, are not ambiguous. Normally read, and without thinking of other Constitutions, the expression “procedure established by law” must mean procedure prescribed by the law of the State … To read the word “law” as meaning rules of natural justice will land one in difficulties because the rules of natural justice, as regards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard.

This judgement was criticised for being restrictive in interpreting the rights guaranteed under the constitution. Nonetheless, it is a landmark judgement in Indian habeas corpus jurisprudence.

B Ramachandra Rao v. State of Orissa[3]

In B Ramachandra Rao v. State of Orissa, the court held: “[A habeas corpus writ] is not granted where a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal and we are not satisfied that the present is not such a case.” (emphasis supplied)

Essentially, the court declared that habeas corpus writs can only be issued in an arrest which is prima facie without jurisdiction or wholly illegal.

Kanu Sanyal v. District Magistrate, 1974[4]

Kanu Sanyal, the petitioner, was a member of a Naxalite group allegedly involved in illegal activities. He was wrongfully detained in a Darjeeling jail for which he moved the Supreme Court.

In this judgement, the Supreme Court held that a court may examine the legality of detention without the person being present before it.

ADM Jabalpur v. Shivkant Shukla, 1976[5]

ADM Jabalpur is perhaps the most infamous judgement of the Supreme Court. The issue at hand in ADM Jabalpur was whether writ petitions could be filed during a period of Emergency.

Delivered at the height of the Emergency declared by Prime Minister Indira Gandhi, the Court in ADM Jabalpur held that the rights under Article 21—including habeas corpus—were suspended during a period of Emergency.

The Janata Party-led government that followed the Indira Gandhi government reversed the judgement through the Forty-fourth Amendment to the Constitution. This amendment ensured that Article 21 could not be suspended even in the event of an emergency proclamation.

The Supreme Court itself in KS Puttaswamy went on to discard the ADM Jabalpur decision, with Justice D Y Chandrachud writing, “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed.”

Sunil Batra v. Delhi Administration[6]

Sunil Batra, the petitioner, was a prisoner who wrote a letter to the court regarding the treatment meted out to a fellow prisoner of his in Tihar Jail.

In this, the Supreme Court allowed letters to be accepted by the court and converted into habeas corpus (or other) writ petitions. This has been legally termed as ‘epistolary jurisdiction’.

Further, the court expanded the provisions of habeas corpus even to prisoners, holding that even prisoners’ rights were to be safeguarded by the provisions guaranteed under the Constitution.

Attested as an English legal borrowing by the 1460s, habeas corpus literally means in Latin “you shall have the body,” or person, in court, and a writ is a formal order under seal, issued in the name of a sovereign, government, court, or other competent authority. So, a writ of habeas corpus is a court order to bring a person who’s been detained to court to determine whether or not their detention is valid. It’s a failsafe to prevent the government from imprisoning people without cause.

The writ of habeas corpus originated in Medieval English common law. It’s difficult to say exactly where it first appeared in writing, but it was most famously codified in the 1215 Magna Carta, which granted all free men protection against illegal imprisonment. This English law was brought over to the North American British colonies. In turn, the US Constitution, which was influenced by the Magna Carta, explicitly charges: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Many other modern countries include writs of habeas corpus in their constitutions.

In 1863, President Abraham Lincoln famously used an executive order during the Civil War to suspend the writ of habeas corpus to keep Maryland, and important train routes between Washington, DC and the North, from falling to Confederate sympathizers. Because the Constitution allows for suspension in the event of rebellion, Lincoln was within rights to do this (England had also suspended the writ during past emergencies). Still, the decision was controversial, as it meant those suspected of being associated with the Confederacy could be imprisoned without trial.

The writ of habeas corpus was also suspended in some instances in World War II, notably by the governor of Hawaii after the attack on Pearl Harbor. In the 2010s, the writ has been the subject of much legal dispute over the detention of suspected terrorists, especially concerning the detainees held in Guantánamo Bay without charge. In 2008, the Supreme Court found the Military Commissions Act of 2006 unconstitutional, which President Bush signed into allowing for the detention of “unlawful enemy combatants” against the US.

In common legal practice, the writ of habeas corpus is invoked in cases where someone believes they’ve been wrongly detained. This applies to both people in prisons and people who are in mental institutions. Essentially, one could petition the court for a writ of habeas corpus, which, if granted, would give them a court date to determine the legality of their imprisonment. Such a trial could result, and has, in release from custody or reduction in sentence.

Habeas Corpus

Latin for "that you have the body." In the US system, federal courts can use the writ of habeas corpus to determine if a state's detention of a prisoner is valid. A writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person's imprisonment or detention is lawful. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody. It can also be used to examine any extradition processes used, the amount of bail, and the jurisdiction of the court. See, e.g. Knowles v. Mirzayance 556 U.S.___(2009), Felker v. Turpin 518 US 1051 (1996) and McCleskey v. Zant 499 US 467 (1991).


The Habeas corpus first originated back in 1215, through the 39th clause of the Magna Carta signed by King John, which provided "No man shall be arrested or imprisoned. except by the lawful judgment of his peers and by the law of the land,"

English courts began actively considering petitions for habeas corpus in 1600. While habeas corpus had initially originated as an instrument in opposition to the king’s “divine right to incarcerate people,” there were many other constables and other authorities during those times, who imprisoned people for various reasons. Accordingly, habeas corpus also developed as the king's role to demand account for his subject who is restrained of his liberty by other authorities.

Deeply rooted in the Anglo-American jurisprudence, the law of habeas corpus was adopted in the U.S. as well, by the early Founding Fathers. James Madison, in 1789, argued for the adoption of the Bill of Rights, including Habeas Corpus. The first Chief Justice of the U.S. Supreme Court, Chief Justice Marshall, emphasized the importance of habeas corpus, writing in his decision in 1830, that the "great object" of the writ of habeas corpus "is the liberation of those who may be imprisoned without sufficient cause." The U.S. Supreme Court has recognized that the "writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" and must be "administered with the initiative and flexibility essential to ensure that miscarriages of justice within its reach are surfaced and corrected.


The sources of habeas corpus can be found in the Constitution, statutory law, and case law. The Suspension Clause of the Constitution (Article I, Section 9, Clause 2), states: “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion the public Safety may require it.” Although the Constitution does not specifically create the right to habeas corpus relief, federal statutes provide federal courts with the authority to grant habeas relief to state prisoners. Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ.

In the First Judiciary Act of 1789, Congress explicitly authorized the federal courts to grant habeas relief to federal prisoners. Congress expanded the writ following the Civil War, allowing for habeas relief to state prisoners if they were held in custody in violation of federal law. Federal courts granted habeas relief to state prisoners by finding that the state court lacked the proper jurisdiction. Post-World War II reforms further expanded the writ: through the incorporation process by which the Bill of Rights was applied to the states, habeas corpus became a tool by which criminal defendants sought to uphold their civil rights against illegal state action. The Warren Court further paved the way for broader habeas corpus rights.

In 1996, Congress narrowed the writ of habeas corpus through the passage of the Antiterrorism and Effective Death Penalty Act ( AEDPA ). AEDPA has three important aspects: first, it imposes a one-year statute of limitations on habeas petitions. Second, unless a United States Court of Appeals gave its approval, a petitioner may not file successive habeas corpus petitions. Third, habeas relief is only available when the state court’s determination was “contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.”

The Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA) further narrowed the scope of habeas relief, providing that prisoners held in Guantanamo Bay may not access the federal courts through habeas corpus instead, they must go through the military commissions and then seek appeal in the D.C. Circuit Court. However, the Supreme Court in Boumediene v. Bush (2008) expanded the territorial reach of habeas corpus, ruling that the Suspension Clause affirmatively guaranteed the right to habeas review. Thus, alien detainees designated as enemy combatants who were held outside the United States had the constitutional right to habeas corpus.

Federal statutes (28 U.S.C. §§ 2241–2256) outline the procedural aspects of federal habeas proceedings. There are two prerequisites for habeas review: the petitioner must be in custody when the petition is filed, and a prisoner who is held in state government custody must have exhausted all state remedies, including state appellate review. Any federal court may grant a writ of habeas corpus to a petitioner who is within its jurisdiction. The habeas petition must be in writing and signed and verified either by the petitioner seeking relief or by someone acting on his or her behalf. The petition must name the custodian as the respondent and state the facts concerning the applicant’s custody and include the legal basis for the request. Federal courts are not required to hear the petition if a previous petition presented the same issues and no new grounds were brought up. Finally, a federal judge may dismiss the petition for the writ of habeas corpus if it is clear from the face of the petition that there are no possible grounds for relief.


Today, habeas corpus is mainly used as a post-conviction remedy for state or federal prisoners who challenge the legality of the application of federal laws that were used in the judicial proceedings that resulted in their detention. Other uses of habeas corpus include immigration or deportation cases and matters concerning military detentions, court proceedings before military commissions, and convictions in military court. Finally, habeas corpus is used to determine preliminary matters in criminal cases, such as: (i) an adequate basis for detention (ii) removal to another federal district court (iii) the denial of bail or parole (iv) a claim of double jeopardy (v) the failure to provide for a speedy trial or hearing or (vi) the legality of extradition to a foreign country.

The writ of habeas corpus primarily acts as a writ of inquiry, issued to test the reasons or grounds for restraint and detention. The writ thus stands as a safeguard against imprisonment of those held in violation of the law, by ordering the responsible enforcement authorities to provide valid reasons for the detention. Thus, the writ is designed to obtain immediate relief from unlawful impeachment, by ordering immediate release unless with sufficient legal reasons and grounds.

As a fundamental instrument for safeguarding individual’s freedom against arbitrary and lawless state action, the writ of habeas corpus serves as a procedural device, by which executive, judicial, or other governmental restraints on personal liberty are subjected to judicial scrutiny. The purpose of the writ of habeas corpus is not to determine the guilt or innocence of a prisoner, but only to test the legality of a prisoner's current detention. In other words, the writ of habeas corpus only functions to test jurisdictional defects that may invalidate the legal authority to detain the person, and the reviewing court only examines the power and authority of the governmental authority to detain the person, and does not review the correctness of the authorities’ conclusion to detain the person.

The habeas corpus is not a narrow, static, and formalistic remedy, and must retain the flexibility to cut through various barriers of forms and procedural complexities by which a person may be imprisoned or detained. Accordingly, the writ of habeas corpus is a flexible writ that can be administered with initiative and flexibility to obtain release from illegal custody. Although the writ of habeas corpus is thus a flexible writ for obtaining a release from custody when one is illegally detained, there are some limitations to the rule of habeas corpus.

For example, circuit precedent cannot refine or sharpen a general principle of Supreme Court habeas corpus jurisprudence into a specific legal rule that the Supreme Court has not yet announced.

Writ of habeas corpus

“Habeas corpus” is part of a broader Latin phrase: habeas corpus ad subiiciendum et recipiendum. Its literal translation would be “keep the body to put it in hand (of law) and re-take it.

Usually the sentence is translated as &ldquobring the body here&rdquo, "you can have your body", &ldquoYou own your body&rdquo almost unintelligible sentences precisely because they are obvious .

Given its Latin form, you may think your origin is in Roman law, so important to the West, but actually it has little or nothing to do directly with the Roman law, in which it is not as such a phrase, but in it we can trace some remote and distant precedent.

Habeas corpus is actually the name of a famous English law, Habeas Corpus Act of May 26, 1679 issued by Charles II, and then the Habeas Corpus Amendment Act it is specific for the English common law, and it is also an essential pillar in the defense of the English civil liberties and countries in which is applied the "common law." Precedents are some provisions of the Magna charta libertatum of 1215.

In Spain there is a precedent in the Aragonese law, with the Manifestation of people which was sanctioned by Alonso III in 1287. The Manifestation of people was a guarantee of personal liberty with a procedure that was pending before the Justice of Aragon, jurisdiction very similar to the current Constitutional Court. Its existence is dated in the Jurisdiction of Aragon since 1428, but then it disappeared when the absolutism of kings was implanted.

The phrase is applied in law to demand the right of the detainee to be brought immediately before a judge or into court to decide on the appropriateness or otherwise of the detention. Therefore it is an instrument or mechanism to ensure freedom of individuals against the acts of public authorities.It was an instrument to avoid the injustices of the feudal lords against their subjects.

It regulates, therefore, the right to not to be arbitrarily detained without cause and therefore anyone who is arrested has the right to know why he was arrested and what he is accused.

Actually the phrase "habeas corpus ad subiiciendum" is an order or command that is directed to jailer or authority who has arrested a person for the submission of him to the competent authority, to brought before a judge or into court, but it is not directed to the detainee, as often is interpreted.

In this sense the phrase is fully intelligible and explanatory translation of the phrase would be: "Take the detainee's body to brought him into court and get him back."

The far and no absolutely equivalent Roman precedent is found in the famous " interdictum de homine libero exhibendo" , which orders a man who unlawfully holds a free man as a slave to produce this man in court..

It is born from the fact that a creditor debt was charged with by the debtor by reducing it to the status of slave before the claim of the debtor or his family, the creditor must "submit" the debtor before the praetor for he decide whether detention it was legal or not. The interdictum or injunction was saying by the Praetor, "if you have the man, show me, submit him and I can decide whether he should be deprived of liberty or not".

Digest, 43.29.0 About showing a free man

Dig. 43.29. 1pr. … Praetor said: show me the free man whom you hold with bad intent

Dig. This injunction intends to defend freedom, ie, that free men are not held by anyone.

Dig. 43.29.0. De homine libero exhibendo.

Dig. 43.29.1pr. &hellip Ait praetor: " quem liberum dolo malo retines, exhibeas".

Dig. &hellip Hoc interdictum proponitur tuendae libertatis causa, videlicet ne homines liberi retineantur a quoquam:

And it explains what is the meaning of &ldquoexhibere&rdquo Provide public (ie in court) so that you can see and touch him."

Dig. &hellip The praetor said: show me him. To show means present him to the public and provide an opportunity for the man to be seen and touched: exhibit means to have him beyond concealment.

Ait praetor " exhibeas". exhibere est in publicum producere et videndi tangendique hominis facultatem praebere: proprie autem exhibere est extra secretum habere.

As you see, it's not exactly like the concept of Anglo-Saxon "habeas corpus", but its similarity allowed Niceto Alcalá Zamora say that the "habeas corpus" is an Anglo-Roman creation.

There are also other phrases in law with the component 'habeas corpus. "thus:

Habeas corpus ad respondendum: bring him into court to answer
Habeas corpus ad testificandum: bring him into court to testify
Habeas corpus ad prosequendum: bring him into court to continue

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Antonio Marco Martínez.

Born in January 1949, professor of Latin at various Institutes, he now has enough time in his retirement to reread the Greco-Latin classics, review their history and culture, and extract information that is of direct interest for the present moment.

The Candid Review: A Blog About Appeals

Any conversation about civil liberty and constitutional law is incomplete without discussing the concept of habeas corpus. This Latin term means “you have the body,” but what does it mean in terms of the law, and why is it important? Read on to know the answers to these questions and more.

What Is Habeas Corpus?

Habeas corpus is a common-law writ issued by the court, commanding a public official to produce a person in custody or restrained before the court. The principle behind the writ is that no person should be confined in prison or restrained before being presented to the court and without following the due process of law. It is the court’s job to decide if there is a valid reason to detain the person.

The History Behind Habeas Corpus

While not much is known about the origin of the concept, historians believe it may have been established during King Charles I’s reign in the 17 th century. It was likely intended to make sure Catholics were not illegally imprisoned in the lower courts. The writ of habeas corpus was established as a statute in the United States through the Judiciary Act of 1789.

How Does the Writ Operate?

A writ of habeas corpus can be filed by the confined or restrained individual or someone on their behalf. The court can demand the public official deliver the individual before to court and determine if such confinement is legal.

An individual in jail and unable to make bond has the right to file habeas corpus. Sometimes people who have made a bail pretrial but are subject to bond conditions like driving restrictions or curfew also have the right to file a writ. If a person has pleaded guilty in a plea bargain and has received a suspended probation sentence with specific conditions, it is also restricted.

Today, the habeas corpus writ is mostly used for post-conviction proceedings by state and federal prisoners, challenging the application of federal laws used during a judicial proceeding. It is also used to challenge immigration and deportation cases, military detentions, and convictions in a military court.

Why Is The Habeas Corpus Important?

A 1992 Supreme Court ruling hailed the writ as a “fundamental instrument that safeguarded individual freedom.” It protects citizens from arbitrary and unlawful state action. It is primarily a writ of inquiry that tests reasons for confinement and restraint and orders immediate release if there is no sufficient legal reason for such confinement.

But it does not examine if the petitioner is guilty or innocent. Instead, the writ restricts its reach to reviewing the correctness of the public official’s decision to detain the person.

If you plan a file a habeas corpus petition for yourself or on behalf of someone else, you need representation from skilled appellate attorneys. We have the experience to help you.

Call 888-233-8895 to speak to a federal appeal lawyer for a free, no-obligation consultation.


Article 32 of the Indian Constitution provides Constitutional Remedies against violation of fundamental rights of individuals. A writ is “A kind of special order sealed to any authority, government or any sovereign body in furtherance of abstinence or execution of a specified act.” [1]Article 32 and Article 226 empowers the Supreme Court and High Courts respectively to issue writs like Habeas Corpus, Quo Warranto, Prohibition, Mandamus, and Certiorari to maintain the true essence of our Constitution. These writs originated in England, where it has a very long history of development.

Thomas Jefferson, Third President of the United States had very rightly said,

“The Habeas Corpus secures every man, alien or citizen, against everything which is not law, whatever shape it may assume.”

Habeas corpus is a Latin term which means, ‘you must have the body.’ It is considered the most important of all the writs as it deals with justice and liberty of an individual, and therefore it is also known as ‘The Great Writ.’ Under this writ, no Government can detain a person without any just cause and has to produce the detained person before the court and mention satisfactory grounds for his/her detention. This writ lies not only against the executive authority but also against private individuals.[2] It is of great significance as the detainee is given the right to preserve his/her liberty. The writ of habeas corpus cum causa or the habeas corpus ad subjiciendum is not the court’s discretionary power but the right granted to individuals. Before 1973, the old section 491 of the Code of Criminal procedure dealt with a writ of habeas corpus.[3]

To invoke jurisdiction under Article 32 of the Constitution without approaching the respective High Court under Article 226, a satisfactory reason has to be given as to why the High Court was not approached or why it is irrelevant to approach the High Court.[4] It was because many dishonest petitioners approached the Supreme Court under Article 32 of the Indian Constitution without seeking a remedy from the High Court first. An ex-parte writ can be issued after proper investigation and ascertainment that the detention is illegal.[5] Also, an Imperfect pleading is no ground for dismissal of habeas corpus petition.

In a habeas corpus petition, the detainee or his/her friend or any relative of his/her can apply. At the same time, the counter-affidavit can be filed by the District Magistrate, who ordered the detention, and if the Magistrate is not present, then a senior officer who deals with the detainees can do the same.[6] In the old English law, when writ petition gets refused, a new petition can be filed before another judge of the same court. But at present, a second petition is not allowed in the same court. Also, the right to file a writ petition of habeas corpus is not granted to enemy aliens and prisoners of war. Habeas Corpus Suspension Acts were passed in England, but these writs could not be suspended at the time of wars.


The research project will focus on the following issues:

1. Origin and development of writ of Habeas Corpus.

2. Dimensions of Writ of Habeas Corpus through various landmark judgments.


The writ of habeas corpus has its origins in England, and it is believed that it was first used in the year 1305. But before it, there were several other similar writs as well in the 12th century. Therefore, it can be said that it precedes Magna Carta of 1215. During the Middle Ages, cases were brought to King’s Court from lower tribunals through habeas corpus. Initially, it was simply used as a writ to bring prisoners in the court for testifying in the trial. Then it came to be used as a measure against arbitrary detention. It was also mentioned in Magna Carta, 1215, as common law. Article 39 of Magna Carta states, “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except judgement of his peers or the law of the land.”[7] To make it out of the purview of the Kings’ whimsical nature, this writ was enshrined in law in 1679. During the rule of Henry VII (1485-1509), this writ was used to protect the liberty of those who were imprisoned by the Privy Council. In the 17th century, during Charles, I’s reign, the writ of habeas corpus was developed more to check illegal detention by the courts and public officers.[8] Then an act called Habeas Corpus Act was passed in 1679 to secure freedom and liberty of its subjects, check illegal and abusive detention of persons, and prevent overseas imprisonment.[9]

The writ of habeas corpus was invoked in 1772 when James Somersett demanded this writ as he was a slave, brought back from Jamaica to the U.K. An Emeritus Professor of Law at the London School of Economics, Michael Zander QC stated, “In reality it is no longer of great practical significance as there are today very few habeas corpus applications, but it still represents the fundamental principle that unlawful detention can be challenged by immediate access to a judge – even by telephone in the middle of the night.” Also, there are many instances where the British Parliament has suspended the writ of habeas corpus. To arrest Parliamentary Reformers, William Pitt, in 1793, suspended it after France declared war on Britain. The Realm Act 1914 was used as a defense by the Home Secretary for the internment of residents. Also, during World War II, many German background people were interned.[10] The then President of the United States, Abraham Lincoln suspended the writ of habeas corpus during the Civil War outbreak in 1861. Paragraph 2 of section 9 of Article 1 of the American Constitution mentions that the privilege of the writ of habeas corpus “shall not be suspended, unless in case of rebellion or invasion of the public safety requires it.”[11] India borrowed the concept of writs from England. It is not the procedure to decide whether a detainee is guilty or innocent, but merely whether the detention is legal or not. Nowadays, the writ of habeas corpus is used rarely but is available to all those who believe that they have been illegally detained.


  1. Additional District Magistrate of Jabalpur v. ShivKant Shukla[12] – Commonly known as the Habeas Corpus case, talked about the issuance and validity of writ of habeas corpus. It stated that even the right to life could be restricted during emergencies, so also the right to file writ and approach the court.
  2. Sheela Barse v. the State of Maharashtra[13] – Setting aside the traditional concept of locus standi, this case affirmed that if the detainee cannot file a writ of habeas corpus himself/herself, it can be filed by someone on his/her behalf.
  3. Sunil Batra v. Delhi Administration[14]- This case extended the protection of writ of habeas corpus to those who have been mistreated in judicial or police custody. It mentioned the legal rights of prisoners and the sanctions to be imposed if the prisoners are mistreated during detention.
  4. Kanu Sanyal v. District Magistrate Darjeeling & Ors.[15] – Focusing on the real scope and meaning of the writ of habeas corpus, this case stated that the writ of habeas corpus is procedural rather than substantial.
  5. R. v. Pell[16]- The writ of habeas corpus can be refused if the proper reason for filing the petition is not mentioned. But it cannot be refused solely on the ground that alternative remedy is available.
  6. Ranjit Singh v. the State of Pepsu[17]- The impact of improper pleadings on the writ petition was looked into. It was decided that the main purpose of the writ petition of habeas corpus is to keep it away from technicalities.
  7. Ram Singh v. the State of Delhi[18] – In this case, it was decided that the burden of proof lies on the detaining authorities to prove that they had justifiable grounds for detention. But the burden shifts to the detainee if the latter alleges that the order of detention was mala fide.
  8. Narayan v. Ishwarlal[19]- Regarding the nature of habeas corpus proceedings, whether civil or criminal, it depends on the nature of proceedings of implementation of jurisdiction.
  9. Arun Kumar v. State of W.B.[20] – In this case, it was decided that unlike in other writ petitions, new issues can be brought up in the case of a writ of habeas corpus. But it can be done only if the respondent has the opportunity of rebuttal.
  10. Lallubhai Jogibhai v. Union of India[21]- With respect to the relation of principle of res judicata with the writ of habeas corpus, the court, in this case, held, “So far as Indian Law is concerned, it is fairly well settled that no second petition for a writ of habeas corpus on the same grounds is maintainable if an earlier petition is dismissed by the court.”

In earlier times, a writ was issued by an administrative and judicial body. But today, courts have taken this position. Habeas Corpus can be understood as a twofold process. Petition for Habeas Corpus is filed by or on behalf of the detainee challenging his detention grounds. Another is Writ of Habeas Corpus, issued by the court to produce the prisoner before the court for examination. Writ of habeas corpus was also termed as ‘The Great Writ’ because it is based on one’s right to liberty, which is the very heart and soul of the Indian Constitution. This writ can be maintained even during the times of national and state emergencies. This writ’s main aim and purpose are not to punish the detainer but to release the individual who has been detained illegally. At times the courts also impose costs and compensation as per its discretion. Also, the courts need to take care that no innocent person is punished under detention laws. The courts should also scrutinize the facts and circumstances of the cases properly. The writ of habeas corpus cannot be granted in the absence of one of the two parties, except in cases where justice and circumstances demand so. If this writ is willfully and intentionally disobeyed, an individual may be charged with the offense of contempt of court, imposing the punishment of property attachment and imprisonment.[22]

There is a long history of the evolution of this writ. It originated in England and was prevalent in America as well. India borrowed this concept of writs from English laws and included this concept under articles 32 and 226 of the Indian Constitution. There were certain instances in the past when this writ was suspended. Any detention that violates one’s fundamental rights, which is not as per the law and the procedure established by law or exceeds the laws made by the legislature, can be termed as illegal detention. As per the Indian Constitution, the courts will decide on the cases of habeas corpus by taking into consideration Article 20 (Protection against Conviction of Offences), Article 21 (Right to life and Personal Liberty), and Article 22 (Protection against Arrest and Detention) of the Indian Constitution. In 1992, the Supreme Court judges elaborated upon the importance of the writ of habeas corpus by stating that this writ is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”

As a coin has two faces, similarly, along with many benefits, the writ of habeas corpus has certain limitations. The right to file this writ is not available in every situation. It is because there are many instances in which the inmates prepare habeas corpus petitions without seeking help from a lawyer.[23]Also, they are restricted from filing repetitive petitions in the same matter. If the Supreme Court feels that the High Court’s order for a conviction of a person is unjust, it orders release of that person. Also, this writ focuses on the aspect of detention only and ignores other aspects like a fair trial, etc.

  • Shriniwas Gupta, 1. Commentary on the Constitution of India (1 ed. 2016).
  • Trimbak Krishna Tope & Sujata V. Manohar, 1 T.K. Topes constitutional law of India (3 ed. 2010).


  • Erwin Chemerinsky, Thinking about Habeas Corpus, 37 Case W. Res. L. Rev. 748 (1986).
  • Saloni Devpura, Writ of Habeas Corpus and Supreme Court, 1 “Udgam Vigyati” – The Origin of Knowledge (2015), http://www.udgamvigyati.org/admin/images/Writ of Habeas Corpus and Supreme Court- Saloni Devpura, Nirma University, Ahmedabad.pdf (last visited Jan 26, 2020).
  • Clark, Joshua Warner, “Habeas Corpus: Its Importance, History, and Possible Current Threats” (2007). University of Tennessee Honors Thesis Projects. https://trace.tennessee.edu/utk_chanhonoproj/1057
  • Habeas Corpus Act 1679, Legislation.gov.uk (1979), http://www.legislation.gov.uk/aep/Cha2/31/2/contents (last visited Jan 26, 2020).
  • The Editors of Encyclopaedia Britannica, Habeas corpus Encyclopædia Britannica (2019), https://www.britannica.com/topic/habeas-corpus (last visited Jan 26, 2020).
  • The Editors of Encyclopaedia Britannica, Johnson v. Eisentrager Encyclopædia Britannica (2015), https://www.britannica.com/event/Johnson-v-Eisentrager (last visited Jan 26, 2020).
  • The Magna Carta Project, Magna Carta Project – 1215 Magna Carta – Clause 39, http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39 (last visited Jan 26, 2020).
  • U.K. | Magazine | A brief history of habeas corpus, BBC News (2005), http://news.bbc.co.uk/2/hi/uk_news/magazine/4329839.stm (last visited Jan 26, 2020).
  • Writ of Habeas Corpus, Findlaw (2019), https://criminal.findlaw.com/criminal-procedure/writ-of-habeas-corpus.html (last visited Jan 26, 2020).

1 Saloni Devpura, Writ of Habeas Corpus and Supreme Court, 1 “Udgam Vigyati” – The Origin of
Knowledge (2015), http://www.udgamvigyati.org/admin/images/Writ of Habeas Corpus andf Supreme Court-
Saloni Devpura, Nirma University, Ahmedabad.pdf (last visited Jan 26, 2020).
2 Kishore Samrite v. State of UP, (2013) 2 SCC 398.
3 Trimbak Krishna Tope & Sujata V. Manohar, 1 T.K. Topes constitutional law of India (3 ed. 2010).

4 Union of India v. Paul Manickam, AIR 2003 SC 4622 : (2003) 8 SCC 342
5 Sebastian M. Hongary v. Union of India, (1984) 1 SCC 339.
6 Mohd. Alam v. State of West Bengal, AIR 1974 SC 917.

7 The Magna Carta Project, Magna Carta Project – 1215 Magna Carta – Clause 39,
http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39 (last visited Jan 26, 2020).
8 The Editors of Encyclopaedia Britannica, Habeas corpus Encyclopædia Britannica (2019),
https://www.britannica.com/topic/habeas-corpus (last visited Jan 26, 2020).
9 Habeas Corpus Act 1679, LEGISLATION.GOV.UK (1979), http://www.legislation.gov.uk/aep/Cha2/31/2/contents
(last visited Jan 26, 2020).
10 UK | Magazine | A brief history of habeas corpus, BBC NEWS (2005),
http://news.bbc.co.uk/2/hi/uk_news/magazine/4329839.stm (last visited Jan 26, 2020).
11 The Editors of Encyclopaedia Britannica, JOHNSON V. EISENTRAGER ENCYCLOPÆDIA BRITANNICA (2015),
https://www.britannica.com/event/Johnson-v-Eisentrager (last visited Jan 26, 2020).

12 1976 SC 1207.
13 1983 SCC 96
14 1980 AIR 1579
15 1974 AIR 510
16 (1674) 3 Keb 279: 84 ER 720
17 AIR 1959 SC 843, 845-46: 1959 Supp (2) SCR 727
18 AIR 1951 SC 270: 1951 SCR 270: 1951 SCR 451

19 AIR 1965 SC 1818: (1966) 1 SCR 190
20 (1972) 3 SCC 893
21 (1981) 2 SCC 427

Watch the video: Habeas Corpus (December 2021).