The writ
jurisdiction of the High Court is invoked frequently for securing the release
of a person form an illegal confinement in the private custody. The cases may
pertain to an illegal confinement by one of the parents of his or her [1]child
or by a guardian of his ward or by husband of his [2]wife
or any other person etc. The law on this issue is little obscure and needs
elimination of the said obscurity. It is now a well established position of law
that barring a few, all other fundamental
rights guaranteed under Part III of the Constitution of India (hereafter
‘Constitution’) are available against the State or instrumentality of the State
or any other authority which is ‘State’ within the meaning of Article 12 of the
Constitution. If a person is deprived of any fundamental right by a person who,
does not fall within the definition of ‘State’ under Article 12, his remedy
will be under the ordinary civil or criminal law. The constitutional remedy
under Article 226 of the Constitution is not appropriate in this type of
situations. In [3]ADM
Jabalpur v. Shivakant Shukla the Supreme Court has held that
“Article 21 of the Constitution of India is the sole repository of rights to
life and personal liberty against the State. Any claim to a writ of habeas
corpus is enforcement of Article 21...” In the case of [4]Vidya
Verma v. Dr. Shiv Narain the Supreme Court considered the question
whether a writ under Article 32 of the Constitution could be issued against a
private party if he violates the fundamental right of any other person. The
Court referred to its decisions in the case [5]A.
K. Gopalan v. State of Madras and [6]P.
D. Shamdasani v. Central Bank of India
“Patanjali Sastri J.
(as he then was) in A K Gopalan’s case said at p. 74 that as a rule constitutional safeguards are directed against the State and
its organs and that protection against violation of rights by individuals must
be sought in the ordinary law; and S. R. Das J. dealing with the question
of preventive detention said at pp. 120-121 that Article 21 protects a person
against preventive detention by the executive without the sanction of a law
made by the legislature.
This principle was applied to
Articles 19(1) (f) and 31(1) by a Bench of five Judges in P. D. Shamdasani v.
Central Bank of India who held that violation of rights of property by a
private individual is not within the purview of these Articles therefore, a
person whose rights of property are infringed by a private individual must seek
his remedy under the ordinary law and not under Article 32. Article 21 was not
directly involved but the learned Judges referring to Article 31(1) said at
page 60."It is clear that it is a declaration of the fundamental right of
private property in the same negative form in which article 21 declares the
fundamental right to life and liberty. There is no express reference to the State
in Article 21. But could it be suggested on that account that article was
intended to afford protection to life and personal liberty against violation by
private individuals? The words 'except by procedure established by law' plainly
exclude such a suggestion.
They held that the
language of Article 31(1) was similar and decided that Article 31(1) did not
apply to invasions of a right by a private individual and consequently no writ
under Article 32 would lie in such a case. For
the same reasons we hold that the present petition which is founded on Article
21 does not lie under Article 32.”
[7]Despite the above
stated dictum of the Supreme Court, where a case involves the question of the
deprivation of liberty (which is essentially a violation of Article 21 as held
above by the Supreme Court) of a subject by any other private person, we have
noticed that High Courts do take cognizance of such cases and issue the writ of
habeas corpus to set at liberty the person who is in private custody or illegal
confinement. The question therefore might arise in one’s mind that under what
jurisdiction or power such writ is issued by the High Court against a private
person? The answer to this question apparently may seem simple, but it is
slightly difficult to answer. The answer
to the above mentioned question requires an expedition in to the history of the
law relating to habeas corpus. But before we delve in to the history and
development of this branch of law it is necessary note that the above said law
was laid down in the context of the power of the Supreme Court of India under
article 32 of the Constitution. Since the power conferred on the High Courts
under Article 226 are much wider than the power conferred on the Supreme Court
under Article 32, the writ of habeas corpus against the illegal confinement by
a private individual cannot be refused under Article 226 on the ground that a
person is not entitled to claim fundamental rights against another private
individual. Article 226 confers power of issuing writs, orders or directions in
the nature the specified writs(known as prerogative writs) for ‘any other
purpose’ also. The words ‘any other purpose’ will include issuance of orders,
directions or writs in the nature of the prerogative writs for its traditional
purposes. The traditional purposes
include issuance of the writ of habeas corpus to set at liberty a person illegally or improperly detained, in
public or private custody. Therefore, even though there is no violation of Article
21 of the Constitution in the case of an illegal confinement by a private
person, the High Court is entitled to issue the writ of habeas corpus in
exercise of its traditional jurisdiction.
In England
“I have emphasized the use of
the writ to secure freedom from arbitrary or unlawful arrest by the government,
but besides these public occasions, it
was employed in connection with private arrests and detainments, so that
the writ applies to indefinitely wider and more exigencies and indeed to any
case whatever in which the liberty of the subject is unlawfully interfered
with... the procedure is not limited to the acts of public or judicial
officers, or acts of administration. It extends to purely personal matters.
Thus, for instance, in R v. Jackson
In India
“The writ of habeas corpus
issues not only for release from detention by the State but also for release from private detention. At Common Law a writ
of habeas corpus was available to the husband for regaining the custody of his
wife if she was wrongfully detained by anyone from him without her consent.
What amounts to wrongful detention of the wife is, of course, a question for
the Court to decide in each case and different circumstances may exist either
entitling or disentitling a husband to this remedy... Exigency of the writ
at the instance of a husband is very rare in English Law, and in India the writ
of habeas corpus is probably never used by a husband to regain his wife and the
alternative remedy under S. 100 of the Code of Criminal Procedure is always
used. Then there is the remedy of a civil suit for restitution of conjugal
rights. Husbands take recourse to the latter when the detention does not amount
to an offence and to the former if it does. In both these remedies all the
issues of fact can be tried and the writ
of habeas corpus is probably not demanded in similar cases if issues of fact
have first to be established. This is because the writ of habeas corpus is
festinum remedium and the power can only
be exercised in a clear case...”
In India [10]Section
491 of the Code of Criminal Procedure, 1898 (old Code) made provision for issue
of a writ of habeas corpus in the situations mentioned therein. Clause (b) of
Section 491 of the said Code specifically provided for issuance of the writ of
habeas corpus in the case of an illegal detention in private custody. Thus,
before the enactment of 1898 Code the writ of habeas corpus was governed by the
Common Law as applicable in England
“ It
will be noticed that Article 226 of the Constitution confers wide and
comprehensive powers on the High Courts of States ‘to issue to any person or
authority, including in appropriate cases any Government, directions , orders,
or writs including writs in nature of habeas corpus, mandamus, prohibition, ,
quo warranto and certiorari’ for any
purpose. In view of this provision, Clauses (a) and (b) of Section 491(1) have
been practically rendered superfluous and can be safely omitted.”
The Law Commission recommended
omission of the other clauses of S.491 also for the reasons mentioned therein.
The provision contained in Article 226 for issuance of a writ in nature of
habeas corpus without specifying the circumstances in which such writ could be
issued and the omission of the provision for issuance of a writ of habeas
corpus while enacting the Code of Criminal Procedure, 1973 has brought pre-1898
legal position in force. This means that in India
Apart from the above
judgments of the Supreme Court and the legislative development there is
intrinsic evidence in Article 226 that a writ of habeas corpus will lie in the cases of an illegal confinement or
detention in a private custody. It is beyond any doubt that Article 226 can be
invoked by a person for the purposes other than the enforcement of fundamental
rights also. The other purposes will cover within its sweep the issue of writs
in the nature of habeas corpus, certiorari, mandamus etc for their traditional
purposes. From the foregoing discussion it is clear that in England India
At this stage it is
necessary to note that in the case of [12]ADM
Jabalpur it was contended that the High Courts as well as the Supreme Court had
the same jurisdiction to issue writs of Habeas Corpus as English Courts had to
issue such writs at common law. The said argument was however not accepted by
the Court in the background of the controversy raised in that case. In the
Writer’s view the above said observations of the Supreme Court must be viewed
in the peculiar facts of the case and it can not be applied out of context in
general situation. Further it is doubtful whether the said observations could
be said to have laid down correct law in view of the historical and legislative
development which has taken place in India
Recently, the Supreme Court has
in the case of [13]U.P. State Co-op.
Land
“The language of Article 226
does not admit of any limitation on the powers of High Court for the exercise
of jurisdiction thereunder though by various decisions of this Court with
varying and divergent views it has been held that jurisdiction under Article
226 can be exercised only when body or authority, decision of which is
complained, was exercising its power in the discharge of public duty and that
writ is a public law remedy... It may not be necessary to
examine any further the question if Article 226 makes a divide between public
law and private law. Prima facie from the
language of the Article 226 there does not appear to exist such a divide...
It does appear to us that Article 226
while empowering the High Court for issue of orders or directions to any
authority or person does not make any such difference between public functions
and private functions... When the language of Article
226 is clear, we cannot put shackles on the High Courts to limit their
jurisdiction by putting an interpretation on the words which would limit their
jurisdiction. When any citizen or person
is wronged, the High Court will step in to protect him, be that wrong be done
by the State, an instrumentality of the State, a company or a co-operative
society or association or body of individuals whether incorporated or not, or
even an individual. Right that is infringed may be under Part III of the
Constitution or any other right which the law validly made might confer upon
him...”
From the above
discussion it becomes abundantly clear that while issuing habeas corpus to set
at liberty a person illegally confined or restrained in private custody, the
high court exercises its traditional jurisdiction and therefore it is
immaterial whether the act of illegal confinement or restraint in private
custody infringes the fundamental right of that person under Article 21 of the
Constitution or not. In such a case the high court issues the writ of habeas
corpus for ‘any other purpose’ as envisaged in Article 226 and not for the
enforcement of the fundamental rights.
[1] Rajesh
K. Gupta v. Ram Gopal Agarwala AIR 2005 SC 2426
(para 3,4,7,9) followed Dr. (Mrs.) Veena Kappor v. Shri Varinder Kumar
Kapoor, (1981) 3 SCC 92: AIR 1982 SC 795 : 1982 Cri LJ 580 and Syed Saleemuddin
v. Dr. Rukhsana and others, (2001) 5 SCC 247: AIR 2001 SC 2172 : 2001 AIR SCW
1789, Dushyant Somal, Capt. v. Sushma
Somal AIR 1981 SC 1026 (para 3, 7), Sarita Sharma v. Sushil Sharma AIR 2000
SC 1019 (para 4 to 6)
[2] Mohd.
Ikram Hussain V. State of U.P. AIR 1964 SC 1625 (para 12,13), Madhu Bala v.
Narender Kumar AIR 1982 SC 938
[3]
ADM Jabalpur v. Shivakant Shukla
Majority view expressed through
Ray CJ (para 127)
[4] Vidya Verma v. Dr.
Shiv Narain Verma AIR 1956 SC 108 (para 3,6,7)
[5] A K Gopalan v.
State of Madras
AIR 1950 SC 27
[6] P. D. Shamdasani v.
Central Bank of India',
AIR 1952 SC 59
[7] Writer’s view
Any High Court may, whenever it
thinks fit, direct-
(a) that a person within the limits of
its appellate criminal jurisdiction be brought up before the court to be delt
with according to law;
(b) that a person illegally or improperly detained, in public or private custody within such
limits, be set at liberty;
(c) that a prisoner detained in any
jail situate within such limits be brought before the court to be there
examined as a witness in any matter pending or to be inquired into in such
court;
(d) that a prisoner detained as
aforesaid be brought before a Court-martial or any Commissioners for trial or
to be examined touching any matter pending before such Court-martial or
Commissioner respectively;
(e) that a prisoner within such limits
be removed from one custody to another for the purpose of trial; and
(f)
that the body of a defendant within such limits be brought in on the Sheriff’s
return of cepi corpus to a writ of attachment.
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