Habeas corpus
Latin: You may have the body
Also called: Writ of habeas corpus, Great writ of liberty
A writ directing a person or authority holding someone in custody to produce him before the court and show lawful authority for the detention, failing which he is set free. Issued under Articles 32 and 226.
Explained
Habeas corpus is the writ by which a court commands a person or authority detaining another to produce the detained person before it and to justify the detention. If the detention is not according to law, the court orders release. Under Article 32(2) of the Constitution the Supreme Court may issue writs in the nature of habeas corpus for enforcing the fundamental rights in Part III, and under Article 226 every High Court may issue them for enforcing Part III rights and for any other purpose. The right to move the Supreme Court under Article 32 is itself a fundamental right.
The writ protects the right to life and personal liberty under Article 21 and the safeguards against arrest and detention in Article 22. It lies against the State and also against private persons, as where a child or spouse is held unlawfully. The usual requirement of locus standi is relaxed: a relative, friend or even a public spirited person may apply for a detainee who cannot. The court examines whether the detention was made by a competent authority, under a valid law and in compliance with the procedure prescribed, as in preventive detention cases. In Ram Manohar Lohia v. State of Bihar (1965) the Court ordered release because the detention was for maintaining law and order, while the rule permitted detention only to maintain public order.
The writ is generally not issued where the person is in custody under a judicial order of a competent court, or has been lawfully convicted, the remedy then being appeal or revision. Courts have used habeas corpus beyond release: in Rudul Sah v. State of Bihar (1983) the Supreme Court, in a habeas corpus petition, ordered the State to pay compensation for illegal detention after acquittal, and in the Sunil Batra cases it was used to protect prisoners against ill treatment inside jail.
Since the Forty-fourth Amendment, a Presidential order under Article 359 cannot suspend enforcement of Articles 20 and 21, so habeas corpus remains available during an emergency. In K.S. Puttaswamy v. Union of India (2017) the Supreme Court expressly overruled ADM Jabalpur v. Shivkant Shukla (1976), which had held otherwise. Examiners test against whom the writ lies, who may apply, and Articles 32, 139, 226 and 359.
What the law says
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
Supreme Court's power to issue habeas corpus for Part III rights
[(1) Notwithstanding anything in article 32 ***, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.]
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
[(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—
High Courts' power to issue habeas corpus
Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of article 32.
Parliament may confer wider writ powers on the Supreme Court
(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of [the rights conferred by Part III (except articles 20 and 21)] as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
[(1A) While an order made under clause (1) mentioning any of [the rights conferred by Part III (except articles 20 and 21)] is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:]
[Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.]
Articles 20 and 21 cannot be suspended during an emergency
Example
For example, a man is held at a police station for four days without being produced before a Magistrate. His brother may file a habeas corpus petition, and the High Court will order his production and release, as the detention breaches Article 22(2).
For the exam
- Issued by the Supreme Court under Article 32 and by High Courts under Article 226.
- Lies against public authorities and private persons alike.
- Locus standi is relaxed; anyone may apply on behalf of the detenu.
- Not ordinarily issued against detention under a valid judicial order or conviction.
- Articles 20 and 21 cannot be suspended under Article 359 since the 44th Amendment.
29 questions in the Law Maker question bank use this maxim. Practise Constitutional Law questions
Judgments
- Rudul Sah v. State of Bihar (1983)In a habeas corpus petition under Article 32, the Supreme Court can order the State to pay monetary compensation for a clear violation of the right to liberty under Article 21, without first sending the victim to a civil suit.
- Ram Manohar Lohia v. State of Bihar (1965)A detention order under Rule 30(1)(b) of the Defence of India Rules made to prevent acts prejudicial to 'law and order', rather than 'public order', was outside the Rule, and the detenu was ordered to be released.
Related terms
- MandamusA writ commanding a public authority, body or official to perform a public or statutory duty that it has failed or refused to perform. Issued under Articles 32 and 226.
- CertiorariA writ by which a superior court calls up the record of an inferior court, tribunal or authority and quashes a decision made without jurisdiction, against natural justice, or with an error of law apparent on the record.
- Quo warrantoBy what authority. A writ requiring the holder of a public office to show the legal authority under which he holds it, and removing him if he has none.
- Locus standiThe right of a person to bring an action or be heard before a court, traditionally limited to a person aggrieved, and relaxed in India for public interest litigation.
- Proclamation of EmergencyA Proclamation issued by the President under Article 352(1) declaring that the security of India or any part of it is threatened by war, external aggression or armed rebellion. Article 366(18).
Further reading
Checked 6 November 2026. Statutory text is quoted from the Bare Acts library, taken from India Code. See the full glossary.