Child Custody and Detention

CHILD CUSTODY AND

DETENTION

Liberty and Release

CHILD CUSTODY AND

DETENTION

Liberty and Release

Prashant Chandra

Published by Zorba Books, March 2022

Website: www. zorbabooks.com

Email: [email protected]

Author Name & Copyright © Prashant Chandra

Title :- Child Custody and Detention

Printbook ISBN: - 978-93-93029-16-4

Ebook ISBN:- 978-93-93029-06-5

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The publisher under the guidance and direction of the author has published the contents in this book, and the publisher takes no responsibility for the contents, its accuracy, completeness, any inconsistencies, or the statements made. The contents of the book do not reflect the opinion of the publisher or the editor. The publisher and editor shall not be liable for any errors, omissions, or the reliability of the contents of the book.

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Dedicated to my wife, Smita and the three most adorable children, Bhavya, Radhika and Raghav who have always been extremely loving, understanding and cooperative.

CONTENTS

Acknowledgements

About The Author

Preface

Law of Detention and Child Custody

Rights and Duties Under the Constitution

Child Custody and Private Detention

Public Order - Law and Order

Bail

ACKNOWLEDGEMENTS

A fine education is the most important requisite for the achievement of worthwhile goals. The value of a good education was brought home to me by my mother, the late Mrs Sarojini Srivastava, a postgraduate and later Head, Department of Economics, Mahila Vidyalaya College, Lucknow. Based on her convictions, which flew in the face of convention, she ensured that my older siblings and I were educated in the best school possible, where the medium of teaching was English. Her decision was unusual in a large and conservative Hindu joint family, and the only support she had was from my grandfather, the late Mr. Hargovind Dayal Srivastava, Senior Advocate (former Chairman, Bar Council of India), who was of a progressive temperament, and in his thinking far ahead of his time. It was with his support that my mother braved all opposition, including ridicule and scorn from several in our family. She took up a job and spent everything she earned on the education and rearing of her three children. Her sacrifice and vision have been in my life of inestimable value. Whatever little I have achieved is primarily attributable to her selfless efforts.

I fondly acknowledge the invaluable contribution of my late grandfather (with whom I started practising) in grooming me as a lawyer. He instilled in me the basic values of honesty, sincerity, and diligence which he believed were an inextricable part of the virtue of practising law.

I will forever be indebted to my father, the Late Dr Ramesh Chandra Srivastava, who retired as Head, Department of History, D.A.V. College, Kanpur University. Without his encouragement and advice I would never have taken to writing. He was himself a prolific writer and taught me the basic skills involved in shaping sentences. It was he who also introduced to me the idea of presenting material in the form of a text supplemented by footnotes. He felt it was necessary to eliminate legal jargon and obscurity of phrasing when trying to make books on law more readily comprehensible to the vast majority of people who have no legal background, even while writing them to serve the needs of the legal fraternity. Being a scholar of legal history himself, he insisted that such books be well researched.

My English teacher, the late Mr. Elton deSouza, who in his middle age became Principal, La Martiniere College, Lucknow, helped tremendously by making me understand the basics of the English language. His suggestions were followed and duly incorporated while writing this book; I am grateful to him.

I am also grateful to my uncle, Mr Umesh Chandra, Senior Advocate and former Advocate General of Uttar Pradesh, who consistently guided and inspired me. This has enabled me to improve the present book very significantly.

I must thank my typist, Mr Abhay Srivastava, who patiently spent long, tedious hours typing the manuscript and making innumerable corrections, page after page. Without his co-operation it would have been most difficult to arrive at a good copy of this book.

Last but not the least, this acknowledgement would be incomplete without mentioning the unequalled support of my wife Smita, who joined me in my journey through life long after I started my journey in the legal profession, yet never once complained about the long hours I spent away from her in my office, deprived though she was of the comfort and friendship she needed from her husband. Despite my immersion in a time-consuming profession, she has always been a source of encouragement and support to me and has contributed in her own way in providing an impetus to my professional life.

ABOUT THE AUTHOR

The author is a designated senior advocate and one of the most respected and sought after professionals of the Uttar Pradesh High Court. After his schooling and college from La Martiniere College, Lucknow, he graduated from the University of Lucknow with a professional degree in law. He joined the Bar at the High Court, Lucknow, in 1979 and has ever since been a consistent and valued lawyer known for his integrity and fair dealing. He has had the benefit of appearing in the Supreme Court of India as well as in most High Courts of the country.

PREFACE

The right to liberty and the right to live with human dignity are fundamental rights most solemnly guaranteed by our Constitution. Often, it is the lack of awareness of fundamental rights and duties among citizens which leads to the failure to ensure welfare and well-being – more so in the case of minor children. The fundamental right to liberty of a human being cannot, ideally, be violated at any cost, except in accordance with the law. Children caught between warring parents are the worst sufferers. The trauma to which they are subject on account of parental estrangement incurably impairs their psychological make-up and overall personality development. Scars inflicted by parents on their offspring when young and impressionable have a detrimental and irreversible effect. Every effort must therefore be made by quarrelling spouses to ensure that their differences with each other do not become inflictions on their children. A congenial atmosphere, even if superficial, needs to be maintained, at least over the period of a child’s formative years. The basic vindictive instinct often witnessed in marital situations needs to be curbed. Children, born supposedly of a sacred union, cannot be tossed from one parent to the other via legal battles and, all too often, by the deployment of extra-judicial means.

In the present book an endeavour has been made to inculcate a sense of responsibility in every parent to ensure the healthy and proper development of his or her child, and to give paramountcy to the setting aside, when reconciliation proves impossible, of their differences and disputes. The book deals with various legal remedies which can help secure a congenial and healthy atmosphere during the upbringing of children, and inculcate the values of basic civility and decency in parents. Children need the love, care, and affection of both parents. Without it they are deprived of a proper and healthy development. This book, read carefully, can I believe lead to improved parental attitudes with children, and to the ensuring of family happiness.

The right to liberty has been recognised as fundamental from time immemorial, and the concept has consistently developed across the world at a rapid pace. It is for this reason that, despite several enactments such as the Guardians and Wards Act having been promulgated, High Courts in the exercise of their extraordinary powers – conferred under the writ jurisdiction – have all too readily interfered in child custody and illegal detention matters. The welfare of the child is of paramount consideration in the exercise of jurisdiction by High Courts. Likewise, in matters relating to the detention of a subject without following due process of law, and for taking recourse to detention against one’s wishes, constitutional courts are prompt in acting and have zealously safeguarded the liberty of every subject.

After over four decades of experience at the Bar, it dawned upon the present author that a concept of such overwhelming magnitude had failed to attract the attention it has long deserved. In view of the lack of understanding between warring parents, the actual sufferers have been their poor children. Excluding the judicial precedents established as a consequence of the pragmatic approach of our courts in curbing parental warfare – which was done by exercising the inherent extraordinary jurisdiction vested in these constitutional courts – there has remained a paucity of material which could serve as a source of awareness on this important aspect of family life. Despite sufficient constitutional safeguards against detentions by the state, it is often found that the detenue is not aware of his legal rights. It has therefore been the humble effort of the present author to spread awareness and apprise people of their legal rights and duties, as also to inform the reading public of the need to protect and safeguard the well-being and welfare of a child. Equally, the effort here is to raise the awareness of every detenue by making him realize he possesses the right to take expeditious legal remedial measures to be set free from incarceration or restraint, so that he is able to cherish and enjoy in the most real sense his fundamental right to liberty.

Keeping all this in mind, the text of the present book has been supplemented with detailed footnotes, making it as handy as it is comprehensive to persons unfamiliar with the law. This book is expected to serve as a work of reference. It is also expected to provide assistance to colleagues in the legal profession.

In order that the material with regard to constitutional rights may be better appreciated and have uniform and effective implementation throughout the country, an endeavour has been made to refer mostly to the decisions of the Supreme Court of India, supplemented by the views of foreign courts that have placed emphasis on the concept of liberty, and that have emphasized the welfare of the minor as being of paramount importance. References have also been made to most of the important cases decided by the Privy Council. However, there have been areas in which the pronouncements of the Apex Court of the country could not be found, and in lieu of these, references have been made to decisions by the High Courts.

The rule of law and its meaningful application must be known to every citizen; without such knowledge, it is not really possible to enforce fundamental rights and secure the welfare, rights, and well-being of minor children. This book seeks to create such awareness. Ignorance of the law, though not a defence in legal parlance, has certainly led to exploitation and miscarriages of justice. The entire situation has, consequently, led to many lives being needlessly ruined. This book is, in the end, an effort to put an end to a massive and manifest scenario of social injustice.

LAW OF DETENTION AND CHILD CUSTODY

Right to Liberty

Right to liberty and freedom of movement without restraint is fundamentally a natural right. This right has been recognised since time immemorial as a human right, and is known to have been cherished even in the most ancient civilisations. The need for a subject to maintain one’s quality of life and enjoy it in an unfettered manner has given this right the status of a fundamental right which, in turn, has resulted in the origination of the prerogative writ of habeas corpus. Today, habeas corpus has become an integral part of the system of law in every civilised society. The writ of habeas corpus is an ancient writ and is woven deep in antiquity; its prerogative nature makes it the most illustrious and enviable of all legal remedies available for enforcement of the right to freedom and liberty through the process of law. The ancient writ was adopted by the Common Law of England as one of the most important legal remedies and a saviour of the fundamental right to liberty. The writ is not only effective but extremely powerful and even the king cannot stand in the way of the writ; in fact, any endeavour to do so has been met with grave opposition to an extent that the mightiest of the monarchs have succumbed and aligned in favour of the supremacy of the writ, while simultaneously and unconditionally surrendering to its process. Antiquity of the writ is reflected in the two mandatory words ‘habeas’ and ‘corpus’ which have their origin in Latin. The general purpose assigned to this writ is to restore the liberty of a subject expeditiously and without technicalities coming in the way of issuance of this writ.

The writ is founded on one of the most precious and fought-over principles of justice and is undoubtedly the bulwark against any violation of personal liberty. Evidence is not lacking that the writ is neither of native British origin nor of Teutonic origin¹ but has come from the fountain head of modern jurisprudence, the Roman law. It seems probable that Rome gave us this process, as it has given us so many tenets of law. Roman legions and Roman law are known to have conquered most of the then-known world. Whereas the legions withdrew upon the invasion by Barbarians², the law remained, then, as today, the source of rights and duties of the common people. In the early days of Rome, the Tribunus³ and Magistratus⁴ appointed to protect plebians against oppression were conferred with great power. They had complete power over the people and could summon any citizen before them for trial and/or could discharge the debtor from arrest. The concern is reflected in the protection of liberty of the citizen.

In the condensation and codification of the Roman court decisions, it is found that a writ similar to habeas corpus had its true origin in Rome. The writ must have been used in England during the four centuries of Roman occupancy to free a person deprived of their liberty unreasonably or without following the due process of law. After the Romans withdrew, a period of confusion and chaos followed — but the writ was never extinguished and was effectively revived upon the restoration of order when it went on to become an integral part of English Law; and liberty of any citizen continued to be cherished and zealously safeguarded.

Six centuries elapsed between the coming of Augustine of Kent⁵ in 596 AD and the signing of the Magna Carta⁶ in 1215. During these years, the Roman and the Norman influence⁷ could be felt as all-pervading, and Roman law — which is the fountain head of all laws — came to dominate the civilised society of the world. The contribution made by Rome to the Western world led to the development of a vast and splendid system of law. In fact, Roman law introduced the concept of the study of the science of law, which is commonly known as jurisprudence. For several centuries, jurisprudence was synonymous with Roman law. In fact, even in modern times, jurisprudence will remain indebted to Roman law which, to a greater extent, has given substance or direction to all systems of law and is the greatest factor in the creation of modern civilisation. The Roman Empire and the Church together created the idea of common law for all the subjects, which later extended to Christianity and found its application in the form of courts of civilised society. In fact, we find phrases of natural law philosophers in the jurisprudence of Rome. By the middle of the 16th century, Roman law had found its dominance in the legal practice of many European countries. It heralded the development of a legal system inextricably connected with canon law, Germanic custom and feudal principles, and gradually developed into the present system of laws known as civil laws in English-speaking countries.

England and Nordic countries did not admit to the adaptation of the Roman law and in a way, the English legal system, which is usually regarded as more developed than other European countries, prevailed till Roman law was rediscovered as the foundation of the English legal system. The English practitioners found the Roman law to be of less practical advantage, as opposed to the view of the continental lawyers. This resulted in the English common law system developing in parallel to Roman-based civil law. However, elements of Romano-canon law were present in England in the ecclesiastical courts and the principles of Roman law made their way into the common law.

Roman law is often a prerequisite to a basic understanding of the legal norms — and an understanding of Roman law assumes significance in critically evaluating the legislative spirit. In weighing the pros and cons of different legal systems and their application, a basic understanding of the Roman legal system becomes imperative. The modern legal system of today is based primarily on Roman law. It is for this reason that the legal terminology used in Roman law is sometimes used synonymously in the other legal systems as well. Roman law has its own historical importance, which is aptly reflected in the continued use of Latin legal terminology in several legal systems influenced by it and more predominantly the common law. As the Roman law has been uniformly applied in most of the Western European continent right up to the turn of the 18th century, it served the basis of legal practice in all countries which had European influence and the legal terminology of Roman law has been in common use by all legal systems. The common language of Roman law has led to the attainment of uniformity in statutes and is a factor in the decision-making process in international organisations. The Roman jurist’s exemplary method of decision-making still has relevance and is a guiding factor for the modern jurist. The Roman legal texts are both fascinating and enlightening.

The words ‘habeas corpus’ were making their way into various writs, but it was not until many years later that they became a customary means of investigating imprisonment. Based on the principles of Roman law, it can be said that the writ of habeas corpus found its development. Habeas corpus gradually formed part of the genesis of the common law courts of England, and was used to command the production of prisoners, whether they be confined in private custody or imprisoned, and enquire into the causes of their detention. After the production of a prisoner before the court and after examining the justification for detention, the court would determine if there was any valid ground for detention and if not, the person so brought before the court was ordered to be released.

The writ of habeas corpus derives its present name from the adaptation of the writ in the Magna Carta and is, in fact, of immemorial antiquity and the first threads of its origin are woven deeply within the ‘seamless web of history’ and they are concealed and perhaps untraceable among countless incidents that constituted the total historical pattern. There seems to be some inconsistency in the opinions of different authorities as to the exact period of time when the writ of habeas corpus was devised. "Originally, in its earliest period, during the twelfth and thirteenth centuries, the writ of habeas corpus was used in mesne process."⁸ Habeas corpus has been described as a writ antecedent to statute, and throwing its roots deep into the genus of our Common Law.⁹

The writ corpus cum causa is one of the names assigned to habeas corpus and was used extensively by the people as between themselves. It was issued in the name of the king and during the reign of Henry VI¹⁰ it was understood as a writ to investigate the cause for deprivation of liberty. It does not appear to have been very effective in setting free a prisoner from custody who had been placed there by the king’s special command. The royal prerogative continued to prevail even after the Magna Carta, and the supremacy of courts only came to be recognised after the Petition of Right in 1628¹¹.

Magna Carta marks a milestone in English legal history, not because of any great administrative or judicial reform but because it gave in detail the duties and powers of those living under the feudal laws. It did not inaugurate any revolutionary policy, nor did it promulgate any new theory of the rights of any subject — but merely laid emphasis on cardinal principles upon which rested the feudal system.

The Magna Carta, known to be the Great Charter of English liberties, was the result of an effort on the part of barons¹² and nobles¹³ of the kingdom to ease some of the burdens imposed on them by King John.¹⁴ During King Richard’s¹⁵ long absence in foreign land, a mockery of justice prevailed — giving vent to a triumph of the mighty and the strong. At the time, no one was safe from violence or had security of one’s possessions. Administration of justice knew its implementation in graft, corruption and violence. This led some of the barons — who took note of the plight resulting from the collapse of the judicial system — to press for certain reforms which came to be implemented by the Great Charter and were seemingly made for the betterment of the lot of the commons.

The charter embodies clauses which were perceived in eradicating mal administration in England and give to the individuals certain rights which could not be denied, even by the king. The document was signed by King John at Runnymede near Windsor on 15 June 1215. In Magna Carta, we find the first attempt to the expression in somewhat legal terms of some of the leading ideas of constitutional government. It was something new and there was definitely no attempt to destroy the foundation of law and the orderly government which the Crown had established. In other words, the king himself was restrained but the law remained. Certain clauses written down for the first time in Magna Carta have found place in some form or another ever since, in almost every modern constitution. Wade and Godfrey Phillips, while referring to Magna Carta, 1215 AD, have stated: "The famous clauses which laid it down that no man should be punished except by the judgment of his peers or the law of the land and that to none should justice be denied, have been described as the origin or trial by jury and the writ of habeas corpus. Trial by jury is, however, to be traced to another source, and the writ of habeas corpus had not yet been devised."¹⁶

After the Magna Carta, for a couple of centuries or more, the writ of habeas corpus became the battle ground of the courts. At times, the strength of the sovereignty was found so strong that the judges would succumb to it and one who was in prison by command of the king would perish in the prison. At other times, the writ was freely granted by the judges throughout England in spite of the king’s displeasure. Over a period of time, the writ became an instrument of daily use in English daily life and the setbacks which were predominantly prevailing on account of royal power started disintegrating. Whether the commitment be by the King or others, this Court is a place where the King doth sit in person, and we have power to examine it, and if it appears that any man hath injury or wrong by his imprisonment, we have power to deliver and discharge him, if otherwise, he is to be remanded by us to prison.¹⁷

In 1679, Charles II¹⁸ was on the throne when Parliament, in solidification and protection of rights, enacted the Habeas Corpus Act, 1679. The Act provided, amongst other things, that the writ could be granted at times other than the legal term, by the Lord Chancellor who could expeditiously call for a return and liberate the prisoner upon security for said prisoner’s appearance in court. It also provided that persons so released would not be recommitted for the same offence except by the court having cognisance of the case. Provision was made to impose heavy penalty upon the judges who delayed the issuance of the writ or wilfully violated the terms of the Habeas Corpus Act, 1679¹⁹.

In 1816, the statute extended the writ to cover cases where persons were unlawfully restrained in private custody. The provisions inter alia were that the writ should be issued for persons restrained of liberty by other than criminal or civil process, and the judges should examine the truth regarding reasonability and legality of the imprisonment — failing which, the person should be released. Significantly, the writ was made to cover all waters, ports, harbours, etc., on the coast of England. This was to take care of the illegal detention on board the ship. No one could be deprived of one’s liberty without legal sanction on ship or on shore.

The application of the writ, which was limited to Great Britain, was permitted to run from the English court throughout the British Empire in 1861 and was implemented, except for those colonies and dominions where the local courts had authority to issue the writ. Today, the writ of habeas corpus must be granted in any land under the British flag and in fact, in all countries all over the world. Freedom and liberty are cherished not only within but beyond the British Empire as well.

The American colonies, while under the rule of England, regarded the writ as one of their guarantees to freedom; and although no colonial charter specifically mentions the writ, all of them granted to the colonists all the rights and privileges enjoyed by the British Isles.²⁰ In the Corpus Juris Secundum,²¹ while tracing the origin and history of habeas corpus, a somewhat different view was expressed. It was laid down: "The origin of the writ of habeas corpus is lost in antiquity. It may have antedated Magna Carta, but it seems that until Magna Carta was assented to by King John, June 15, 1215, and for some time thereafter, various other writs were used for the purpose of enforcing the right of personal liberty. …. After the date of Magna Carta, these ancient writs were gradually superseded by the more summary and effective writ of habeas corpus. …. Traces of its existence are found in the reign of Edward III, 1326-1377, and in the time of Henry VI, 1422-1461, it seems to have been well known and in common use; but at that time, and until the reign of Henry VII, 1485-1509, it was used only in cases where a subject was restrained of his liberty by another subject, that is, it was a remedy only for private restraints. In the last mentioned reign occur the first instances of its use as between the subject and the Crown. …."²²

Generally, during colonial history, the writ was granted without question in the United States. In some cases, particularly under the governorship of Sir Edmund Andros,²³ the writ was suspended, though not for long. Under his administration, Magna Carta did not offer any protection against abolition of the right of habeas corpus. When the writ was denied, it aroused great resentment and the disapproval of protection guaranteed by Magna Carta found full weight in public opinion and legal circles. However, there was application and withdrawal of the writ alternatively for several years thereafter.

The federal constitution does not provide a method for suspending the writ of habeas corpus. At the beginning of the civil war in America, President Lincoln²⁴ by proclamation suspended the writ. At once, resentment could be felt and it was questioned as to which branch of the government, executive or legislative, is vested the power to suspend the writ. The legal luminaries in the said controversy were joined by laymen and a tirade was started with distribution of pamphlets and articles, some of which directly attacked the president’s act as usurpation of power. But there was a sizeable faction of the public and even those in governance contrary who were supporting the act of the president, as being one necessitated on account of security of the state.

The Supreme Court of India recognises that the clauses of Magna Carta were not a direct ancestor of the writ of habeas corpus, as is apparent from the following observations: There is no direct descent but there can be no doubt that there is an indirect connection between the writ and the Magna Carta, because far more effectively than any other remedy, the writ helped to vindicate the right of freedom guaranteed by the famous words of Magna Carta.²⁵

Clause 39 of Magna Carta, which was, at that time, written in Latin, upon translation reads: No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

Magna Carta, which was wrung out of King John by the Barons in 1215, was annulled by Pope Innocent III²⁶ in August just a couple of months after it came into existence. Henry III²⁷ succeeded King John, who died soon after the Magna Carta came into existence. At the time that Henry III became the king he was only nine years old and he was known to have a very pious disposition. Edward I,²⁸ son of Henry III, joined his father in recognising Magna Carta — which led to the Statute of West Minister 1275 affirming Clause 39 of Magna Carta with the express sanction of King Edward I. It was during the time of the reign of Stuarts who succeeded King Edward I that a struggle ensued between the parliament and King Charles I.²⁹ This resulted in the Petition of Right being introduced in 1628. Ever since, the importance and use of habeas corpus has never been overshadowed and its recognition and popularity has continued to swell. In 1617, Sir John Vaughan³⁰, CJ opined that the writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it³¹

Notwithstanding the divergent opinions of different authorities regarding the origin of the writ of habeas corpus, one thing is certain — up to the early part of the 14th century, this writ was used merely in mesne process.³² Till that time, by means of this writ, the court commanded a person to produce before it the body of another person whose presence was required in some judicial proceedings pending before it. The writ for the purpose of production of a person in such a case was issued, irrespective of whether that person was free or in actual detention. The new development, which subsequently but gradually took place, was that this writ required the person to whom it was directed to show cause of the arrest and detention of the person so detained at the time of the production of his body before the court. The writ, known as habeas corpus cum causa gradually became a well-acclaimed judicial process for testing the validity of detention. Thus, it can justifiably be regarded as the precursor of the modern writ of habeas corpus. By the end of the 15th century, however, this writ began to be utilised by the common law courts to assert their jurisdiction over other rival courts.³³ This object was achieved, in practice, by the common law courts by requiring the persons imprisoned by another court to be produced before them. Upon enquiry, if the court found that the imprisonment was in excess of the jurisdiction of the court which had ordered it, the person so produced was immediately set at liberty. The situation is thus elucidated: "The struggle took the form of the assertion of jurisdiction by the combatant courts over matters as well as persons. Now the corpus cum causa was essentially a personal writ in the sense that the person of the party named was the subject matter to be had and dealt with by the Court. It will at once be apparent that if the Chancery³⁴ or Exchequer or the special courts could not retain control over the bodies of parties and suitors before them, and further could not control their actions upon the determination of the suit so as to ensure execution of their judgments, their power would be seriously impaired. This was precisely what the King’s Bench³⁵ and Common Pleas had in mind when they issued writs of habeas corpus to applicants held under the process of some rival tribunal."³⁶

It is true that in cases of illegal deprivation of liberty, persons detained are entitled to claim damages under the ordinary civil law. This remedy is hardly adequate to meet the real ends of justice. Moreover, persons detained either by an order of an official or by a private individual may not be in a position to take recourse to any legal proceedings. Their detention, therefore, ought not to continue. In any case, as civil litigation takes its own time, the English law has provided a prerogative process of securing release of a person from illegal detention by way of a writ of habeas corpus. The provisions made by the English law for securing release of the subject, through the medium of summary right to a writ of habeas corpus, from illegal detention has been found long effectual to an extent never known in any other country.³⁷

It may well be observed that a writ of habeas corpus ad subjiciendum, which is commonly known as the writ of habeas corpus, is a prerogative process for recovering the liberty of a subject.³⁸ Blackstone³⁹was right when he called habeas corpus a high prerogative writ …. running into all parts of the King’s dominions; for the King is at all times entitled to have an account why the liberty to any of his subjects is restrained, wherever that restraint may be inflicted.⁴⁰

The remedy of habeas corpus is undoubtedly one of the most distinctive and valuable contributions of the English law. It is because of its efficacy and promptitude that it finds a significant place in the international vocabulary of constitutional law.

The writ of habeas corpus is the most effective means for setting free any person whose liberty is restrained unlawfully or unjustifiably or without any delay. The court issuing this prerogative writ has a right to enquire into the causes for which any subject is deprived of their liberty. By it, the high court or the Supreme Court or the judges of the court, at the instance or on behalf of an aggrieved person, may issue a command for the production of the detained person and investigate the cause of the latter’s detention. If no justifiable reason or cogent cause is shown, the person so detained is ordered to be set at liberty forthwith. Release on a writ of habeas corpus is not an acquittal. The writ cannot be used as a means of appeal and it certainly cannot be used for punishment. It is a writ of remedial nature, and is not to be used as an instrument of punishment. It is inapplicable if the legal detention is ceased before the application for the writ is made.⁴¹ Wade and Phillips state: The person responsible for the detention is not thereby punished, but the person imprisoned is set free and may pursue such further remedies for compensation or punishment as may be available.⁴² Habeas corpus is a great and efficacious writ in the sense that it is available in every manner of illegal confinement and securing the liberty of a subject. It envisages, in the liberal sense, issuance of a direction to the person detaining another, commanding them to produce the body of the detained person on a specified day when the cause of their capture and detention is also to be shown. If the judge or the court issuing the writ considers that the cause of detention shown was insufficient or mala fide or perverse, the person whose liberty is restrained is immediately ordered to be released.

The writ of habeas corpus cum causa, which dealt with the release of a person illegally detained, came to be known as habeas corpus ad subjiciendum.⁴³ It not only became an effective means of securing release of a person from illegal confinement but also came to be well recognised as an equally effective measure to check any arbitrary action of the executive ordering detention. Thus, it assumed great constitutional importance and became the most effectual protector of the liberty of the subject that any legal system has ever devised.⁴⁴

There was a slight deviation, as regards the investigation into the causes of detention in cases where the king ordered preventive arrest. Arrest in pursuance of the power of preventive detention conferred by the king could not be questioned by the courts. An illustration can be found in Darnel’s or Five Knight’s case.⁴⁵ In this case, it was held that it was sufficient that a prisoner was detained per special mandatum regis (or, by special order of the king). But the Petition of Right, 1628, laid down a contrary mandate and empowered the courts to enquire into the validity of the detention even if it had been ordered by the special command of the king. Followed by Petition of Right, the Habeas Corpus Act, 1640⁴⁶ and the Habeas Corpus Act, 1679 advanced and gave considerable emphasis to the concept of human liberty.

While the law of habeas corpus did not define the cases in which arrest was legal, the common law had precisely defined the jurisdiction of constables and justices to arrest or issue warrants of arrest in certain circumstances. However, certain cases⁴⁷ showed that there were still uncertainties in the law. Consequently, the courts defined the powers of the executive to arrest, which added an important safeguard to the right of personal liberty. In Entick Vs Carrigton, Lord Camden⁴⁸ stated that the grounds put forward to justify the wide powers of arrest claimed by the Secretary of State were baseless and showed: "(1) That an individual privy councilor could not arrest in any case except a case of high treason; and (2) That the Secretary of State could not virtute officii claim to possess the powers of arrest belonging to conservators or justice of peace."

The said judgment settled that the only power to arrest that the Secretary of State possessed was a power, as privy councillor, to arrest in cases of high treason. In all other cases, he must act through the instrumentality of judicial officers, who were bound to observe the formalities of common law, enacted or unenacted. The effect of this judgment was similar to the effect of the Act abolishing the court of Star Chamber and the jurisdiction of Privy Council in England and the effect of Habeas Corpus Act of 1679.⁴⁹ Lord Camden further held that issuance of a warrant by the secretary of state to seize the papers of a person accused of a seditious libel was violative of principles of common law. In Leach Vs Money⁵⁰, the whole court of King’s Bench held that a general warrant⁵¹ issued by the secretary of state was illegal.⁵²

In the case of infringement of the liberty of the subject, the court would not interfere with the assessment of damages by jury.

The Petition of Right, 1628⁵³ is a recorded milestone in the development of human rights. The Petition of Right was produced by the British Parliament as a follow-up measure to a conflict between the Crown and Parliament; and sent to Charles I as a statement of civil liberties. It was meant to curb the autocratic authority of the king and to assert the supremacy of Parliament in a number of fields such as taxation without the consent of Parliament, the issue of commissions of martial law in times of peace, billeting of soldiers upon property of private persons and arbitrary imprisonment. The Petition of Right, initiated by Sir Edward Coke⁵⁴ was based upon earlier statutes and charters⁵⁵ and asserted these basic principles.

The significance of the petition was to a certain extent minimised by Charles I whose reign witnessed the fiercest struggle between authoritarianism and constitutionalism. Charles I left nothing to chance to ensure that the Petition of Right did not in any way impair or diminish his prerogative powers.⁵⁶

The Habeas Corpus Act, 1640 was passed by the Long Parliament⁵⁷ shortly after the impeachment and execution of Thomas Wentworth, 1st Earl of Strafford⁵⁸ in 1641 and before the English Civil War.⁵⁹ It abolished the Star Chamber⁶⁰ and gave to any person deprived of their liberty, even by the command of the monarch or the Privy Council, a statutory right to petition the court for the issuance of a writ of habeas corpus. The writ was addressed to the official or the person who had custody of an illegally detained person to produce the said person before the court and to state the cause of caption and detention. On return of the writ, the court adjudicated upon the legality or otherwise of the impugned detention. If the cause shown was not found sufficient, the prisoner was ordered to be set at liberty immediately, irrespective of the authority which had passed the order of detention.

The Habeas Corpus Act, 1679 was a further improvement upon the Act of 1640 and is a parliamentary enactment during the reign of King Charles II⁶¹. It was passed by what became known as The Habeas Corpus Parliament⁶² to define and