What are some examples of when a Habeas Corpus petition can be filed in Court?

Here are some examples of situations in which a person can file a Habeas Corpus petition:

  • When a person is arrested, arrest law states that a person should be produced before the Magistrate within 24 hours. The police are required to produce every arrested person before the Magistrate to ensure that there have been legal grounds for the arrest of the person. However, if the police fail to bring that person to the Magistrate then it could amount to illegal detention. In this case, the person arrested or family/friends of the arrested person can file a Habeas Corpus petition in the High Court or the Supreme Court.
  • Under certain special detention laws such as the Armed Forces (Special Powers) Act, 1958 a person can be detained up to 3 months without being produced before the Magistrate. The detention laws have longer periods of detention as they relate to crimes in sensitive areas. These detention laws have broad criminal provisions and thus, the possibility of abuse in these cases is higher. The Habeas Corpus writ is a recourse for people illegally detained under this law.

What are constitutional remedies?

The Constitution of India, 1950 grants certain rights to the citizens of India. If these rights are violated, citizens should also have the right to enforce them or remedy the violation. The Constitution provides for certain remedies that people can use to enforce their fundamental rights. A person can file a writ petition before the Supreme Court or concerned High Court to enforce their fundamental rights. 1 The petition can be for the issue of any of the five types of constitutional remedies. The right to apply to the Supreme Court for constitutional remedies is also a fundamental right. 

  1. Articles 32(1) and 226,  Constitution of India, 1950.[]

What are the different types of constitutional remedies?

There are five kinds of constitutional remedies available. 1 These are:

  1. Habeas Corpus 

The term ‘habeas corpus’ literally means ‘produce the body’. In this context, it refers to a direction from a court to bring a person before the court. If a person is illegally restrained and deprived of their liberty, a writ petition for habeas corpus can be filed to ask the court to secure their release. The court can issue the writ of habeas corpus to any public authority having a person unlawfully in their custody and order the authority to bring the person before the court. In this manner, the court inquires into the circumstances of any person’s detention and can give the necessary judgement against unlawful restraint.2 The court can also issue the writ of habeas corpus in cases of illegal inhuman treatment of prisoners.3 The application for habeas corpus can be filed by the imprisoned/detained person or by anyone else who is not an absolute stranger to them.

For example, if a prisoner is being ill-treated in prison, they can file a habeas corpus petition against such treatment.  

 

2. Mandamus 

The court issues a writ of mandamus to order an authority to perform their public duty as required by law.4 To get this remedy, it is necessary to show that the public authority has a mandatory legal duty and the petitioner has a legal right to enforce its performance.5 However, people cannot file for a writ of mandamus against the President of India or the Governor of a State6, or officers in legislatures. 7 Before applying for mandamus, the petitioner should have first approached the authority with a distinct demand which the authority refuses to enforce.8 

For example, if, despite repeated complaints, a Municipal Corporation refuses to perform its legal duty of supplying water to an area, a person living in that area can file a mandamus petition to make the Corporation perform its duty. 

 

3. Certiorari  

The writ of certiorari is applicable when someone with legal authority and a judicial duty to make decisions affecting the rights of people, exceeds their legal authority. The court can issue this remedy to cancel the order of any lower judicial authority which has exceeded its legal powers and made a decision despite not having the power to do so.9

For example, if an Industrial Tribunal delivers a judgement on a non-industrial dispute without having the authority to do so, an aggrieved person can approach the concerned High Court/Supreme Court with a petition for certiorari to cancel the Tribunal’s decision.    

 

4. Prohibition 

The court can issue the writ of prohibition to order any lower court/tribunal to stop legal proceedings on a certain matter.10 This remedy is used to restrain a lower judicial authority from exceeding its legal authority and to confine lower courts/tribunals within their judicial boundaries. Prohibition can also be used in case a lower judicial authority has not obeyed the rules of natural justice i.e. if the authority shows bias or does not hear out both parties.11

For example, if an Industrial Tribunal takes up a non-industrial dispute without having the authority to judge the dispute, an aggrieved person can approach the concerned High Court/Supreme Court with a petition for prohibition to stop the ongoing legal proceedings before the Tribunal.     

 

5. Quo Warranto

The writ of quo warranto is a remedy that allows the court to ask any person who holds a public office to prove their right to hold the office. In case they don’t have the right to hold the public position, they will be removed from that office by judicial order. This remedy controls the executive from making illegal appointments to a public office and protects citizens from people who illegally hold public office depriving citizens of their rights. To claim quo warranto, a petitioner has to show the court that the office is a public office and that the person holding it has no legal authority to hold the office. This will lead to an inquiry on whether their appointment has been made legally.12

For example, if someone feels that the Speaker of a Legislative Assembly does not have the qualifications to hold this public office, they can approach the  Court to issue a writ of quo warranto to inquire about the appointment.

 

  1. Article 32(2), Constitution of India, 1950. []
  2. Kanu Sanyal v. District Magistrate, Darjeeling, 1973 AIR 2684.[]
  3. Sunil Batra v. Delhi Administration, 1980 AIR 1579.[]
  4. State of Mysore & Anr. v. K.N. Chandrasekhara & Anr., 1965 AIR (SC) 532.[]
  5. Rai Shivendra Bahadur v. Governing Body of Nalanda College, AIR 1962 SC 1210.[]
  6. Article 361, Constitution of India, 1950.[]
  7. Articles 122(2) and 212(2), Constitution of India, 1950.[]
  8. Saraswati Industrial Syndicate Ltd. v. Union of India, 1975 AIR 460.[]
  9. Province of Bombay v. Kusaldas S. Advani & Ors., 1950 AIR 222.[]
  10. East India Commercial Company Ltd. v. The Collector of Customs, 1962 AIR 1893.[]
  11. S. Govinda Menon v. Union of India, 1967 AIR 1274.[]
  12. The University of Mysore v. Govinda Rao, 1965 AIR 41.[]

Who can apply for constitutional remedies?

Any aggrieved person whose fundamental rights have been violated can avail constitutional remedies by filing a writ petition before the Supreme Court or the High Court.1 

For habeas corpus2 and mandamus3, people other than the aggrieved person can also file a petition to seek a particular remedy. 

It is important to understand that not all fundamental rights are available to all people. For instance, the right to equal opportunity in employment4 and freedom of speech and expression 5 are available only to citizens. On the other hand, fundamental rights such as the right to life6 and the right to be treated equally before the law 7 are available to all people, irrespective of whether they are citizens or non-citizens. A person can file a writ petition seeking constitutional remedies to enforce any fundamental rights which are available to them.

  1. Articles 32 and 226, Constitution of India, 1950.[]
  2. Sunil Batra v. Delhi Administration, 1980 AIR 1579.[]
  3. Bandhua Mukti Morcha v. Union of India, 1984 AIR 802.[]
  4. Article 16, Constitution of India, 1950.[]
  5. Article 19(1)(a), Constitution of India, 1950.[]
  6. Article 21, Constitution of India, 1950.[]
  7.  Article 14, Constitution of India, 1950.[]

Who are the authorities for seeking constitutional remedies?

A person can file a writ petition before the Supreme Court of India or the concerned High Court of that state to enforce their fundamental rights.

The Supreme Court has the power to provide constitutional remedies to any person whose fundamental rights need to be protected. The right to seek constitutional remedies before the Supreme Court is by itself a fundamental right of any person. However, the right to seek relief with the Supreme Court can be suspended during a period of emergency.1 

High Courts also have the power to provide constitutional remedies. Apart from fundamental rights, the High Courts also have the power to issue constitutional remedies for other purposes as well, such as protecting other legal rights. (( Article 226(1), Constitution of India, 1950.))  However, the right to seek constitutional remedies before any High Court is not a fundamental right. There are territorial restrictions and a writ petition for constitutional remedies should be filed only to the concerned High Court which has authority in the area where the legal violation occurs.2

  1. Article 32, Constitution of India, 1950.[]
  2. Article 226(2), Constitution of India, 1950.[]

What are the limitations in getting constitutional remedies?

  1. If someone files a writ petition before a High Court for a particular matter, they cannot file another petition seeking relief under the same writ before the Supreme Court. 1
  2. Though there is no specific time limit for filing a writ petition, the Supreme Court or High Court can refuse to grant relief to a petitioner if there is an avoidable delay in filing the petition which affects the merits of the claim. 2
  1.  Tilokchand Motichand & Ors. v. H.B. Munshi & Anr., 1970 AIR 898.[]
  2. Tilokchand Motichand & Ors. v. H.B. Munshi & Anr., 1970 AIR 898.[]

What are the reliefs under right to constitutional remedies?

The five constitutional remedies provide for different kinds of relief. These are mentioned below:

 

  1. Habeas Corpus: Under this, a petition can be filed by any aggrieved person or anyone on behalf of the aggrieved person for the relief to not be illegally kept in police custody.1 A petition can also be filed on behalf of a prisoner who is being ill-treated in prison.1
  2. Mandamus: Under this, a petition can be filed by any aggrieved person who seeks a public authority to do something that they are supposed to do or not do something that they are not supposed to do. For instance, if a person has not been appointed to a position they were supposed to be in, relief can be sought by such an aggrieved person by filing a petition.2 
  3. Certiorari– This is filed by a person whose case is decided by a court which does not have the necessary power to do so. Such a person may seek the relief of their case being decided by an appropriate court after the existing decision is quashed.3 
  4. Prohibition– This is filed by a person whose case is being decided by a court which does not have the power to decide it. Such a person may seek the relief of their case being transferred to the appropriate court while the case is still going on.4 
  5. Quo Warranto– Relief under this can be sought by a person who is aggrieved by a person being appointed to a position in a government office which they do not have the requisite qualification to hold.5

Relief can also be sought by an aggrieved person against the appointment of any High Court judge.6

  1. Sunil Batra v. Delhi Administration, 1980 AIR 1579.[][]
  2. State of Mysore & Anr. v. K.N. Chandrasekhara & Ors., 1965 AIR (SC) 532.[]
  3. Province of Bombay v. Kusaldas S. Advani & Ors., 1950 AIR 222.[]
  4. S. Govind Menon v. Union of India, AIR 1954 Pat 297.[]
  5. The University of Mysore v. C.D. Govind Rao, 1965 AIR 491.[]
  6. Shiam Sundar v. State of Punjab, Civil WP No. 607 of 1956.[]

Payment for filing writ petitions

  • Supreme Court

For writ petitions except for habeas corpus, the court fee is Rs. 500.1 However, if the writ petition is filed in a criminal case, then no court fee is required.1 

 

  • High Court

The court fee varies for different High Courts. Information on the court fee for individual High Courts can be found on the concerned court’s website. 

High Court Court fee 
Delhi 2 Rs. 100 (except a habeas corpus petition for which fee is Rs. 250). 
Andhra Pradesh3 Rs. 100 (except a habeas corpus petition for which fee is Rs. 2).
Guwahati4  Rs. 50
Punjab & Haryana5  Rs. 50
Patna6 Rs. 1,000
Calcutta7 Rs. 100 (except a habeas corpus petition for which there is no fee).
Bombay8  Rs. 250
Chennai9  Rs. 200 (except a habeas corpus petition for which fee is Rs. 10).
Chhattisgarh10 Rs. 100
Allahabad11 Rs. 100
Karnataka12  Rs. 100 (except a habeas corpus petition).
Jammu & Kashmir 
Orissa13 Rs. 50
Rajasthan14 Rs. 25 (except a habeas corpus petition for which fee is Rs. 2).
Madhya Pradesh15 Rs. 100
Kerala16 Rs. 25  (except a habeas corpus petition for which fee is Rs. 2).
Gujarat17 Rs. 50
Himachal Pradesh18 Rs. 50  (except a habeas corpus petition for which fee is Rs. 2.65).
Sikkim19 Rs. 250 (except a habeas corpus petition).
Uttarakhand13 Rs. 50
Jharkhand13 Rs. 50
Tripura13  Rs. 50
Manipur13 Rs. 50
Meghalaya20 Rs. 95
Telangana21 Rs. 100  (except a habeas corpus petition for which the fee is Rs. 2).
  1. Supreme Court of India, Handbook on Practice and Procedure and Office Procedure, accessed at https://main.sci.gov.in/pdf/LU/ppop2017.pdf[][]
  2. Government of National Capital Territory of Delhi, Revenue Department, The Court- Fees (Delhi Amendment) Act, 2012, accessed at http://delhihighcourt.nic.in/writereaddata/upload/Notification/NotificationFile_FCEDT9TW.PDF[]
  3. Andhra Pradesh Court Fees and Suits Valuation Act, 1956, accessed at https://districts.ecourts.gov.in/sites/default/files/Andhra_Pradesh_Court_Fees_And_Suits_Valuation_Act__1956_1.pdf[]
  4. The Court Fees (Assam Amendment) Act, 1972, accessed at https://www.indiacode.nic.in/bitstream/123456789/5085/1/the_court_fees_%28assam_amendment%29_act%2C_1972_._recognized.pdf[]
  5. https://highcourtchd.gov.in/sub_pages/left_menu/Court%20Fees/Court%20Fee%20Table.pdf[]
  6. The Court Fees (Bihar Amendment) Act, 1995, accessed at https://districts.ecourts.gov.in/saharsa/court-fee-strucutre[]
  7. The West Bengal Court Fees Act, 1970, accessed at http://www.wbja.nic.in/wbja_adm/files/The%20West%20Bengal%20Court-Fees%20Act,%201970.pdf[]
  8. The Maharashtra Court Fees Act, accessed at https://bombayhighcourt.nic.in/libweb/acts/1959.36.pdf[]
  9. Tamil Nadu Court Fees and Suit Valuations Act, 1965, accessed at https://districts.ecourts.gov.in/sites/default/files/Courtfee%20TN.pdf[]
  10. Chhattisgarh High Court Rules, 2007, accessed at http://highcourt.cg.gov.in/other/filinginstruction/FilingInstructions.pdf[]
  11. Schedule II (e)(2), Court Fees Act, Uttar Pradesh.[]
  12. The Karnataka Court Fee and Suits Valuation Act, 1958, accessed at http://dpal.kar.nic.in/pdf_files/16%20of%201958%20(E).pdf[]
  13. Schedule II(e)(i), Court Fees Act, 1870.[][][][][]
  14. The Rajasthan Court Fees and Suits Valuation Act, 1961, accessed at https://www.indiacode.nic.in/bitstream/123456789/13049/1/the_rajasthan_court_fees_and_suits_valuation_act%2C_1961.pdf[]
  15. Court Fees Act, 1870, accessed at https://www.latestlaws.com/bare-acts/state-acts-rules/madhya-pradesh-state-laws/courts-fees-act-1870/[]
  16. The Kerala Court Fees and Suits Valuation Act, 1959, accessed at https://www.indiacode.nic.in/bitstream/123456789/12325/1/10.pdf[]
  17. The Gujarat Court Fees Act, 2004, accessed at https://gujcourts.guj.nic.in/acts/gujarat_court_fees_act2004.pdf[]
  18. The Himachal Pradesh Court Fees Act, 1968, accessed at https://www.indiacode.nic.in/bitstream/123456789/5357/1/the_himachal_pradesh_court_fees_act%2C_1968.pdf[]
  19. Sikkim High Court (Practice and Procedure) Rules, 2011, accessed at https://hcs.gov.in/hcs/sites/default/files/rules/hc_pp_rules.pdf[]
  20. The Court Fees (Meghalaya Amendment) Act, 2012, accessed at https://districts.ecourts.gov.in/sites/default/files/Meghalaya%20Court%20Fee%20Act%202012%20%28Amendment%29_0.pdf[]
  21. Schedule II, Article 11(s), Telangana Court-Fees and Suits Valuation Act, 1956.[]

How to file a writ petition online?

1. Go to the website of the Supreme Court of India here.

2. Click on the E-FILING menu below the HOME menu.

3. On the extreme right hand corner of the page, click on ‘New Registration’ if this is the first time a petition is being filed. If registration has already been done, proceed to step no. 7.

4. When ‘User Type’ is asked, choose ‘Petitioner in Person’ upon which a form will appear.

5. After filling the required information, click on the ‘Sign Up’ button at the end of the page.

6. After completing registration, go back to the ‘E-FILING’ page here.

7. Click on the ‘Login’ option

8. The following menu will appear. Fill in the required details.

9. After logging in, a menu will appear. Click on ‘New eFiling’.

10. The following page will be displayed. Fill in the required details. If the petition is against any decision by a lower court, then click on the ‘Lower Court’ button. Similarly, click on every category and fill in the required information.

11. Click on ‘Petition with Other Document’, if additional documents are to be submitted along with the petition. 

12. After all the required information has been filled in and the payment is completed, an application number will be given.

How to file a writ petition offline?

  • Obtain form for filing writ petition

 

A person seeking to protect their fundamental right can file a petition before the appropriate court i.e., Supreme Court or a High Court. The petition should be filed in the prescribed form as given by the particular court. The prescribed format for a writ petition in the Supreme Court can be found here. For High Courts, there are different forms prescribed by each High Court which can be accessed by visiting the concerned High Court’s website.

 

  • Draft the petition

 

After obtaining the prescribed form for the appropriate court, the following information should be mentioned in the petition 1:

  • Name and description of the person filing the petition.
  • Name and description of the person/body against whom the petition is being filed.
  • The violated fundamental right of the aggrieved person. 
  • The remedy sought by the aggrieved person. 
  • The reasons for seeking the remedy. 
  • (If the petition is being filed to the Supreme Court) Whether a petition for the matter has already been filed before any High Court and if yes, the order passed by the High Court. 

 

  • Attach documents, if applicable 1

 

  • If the petition is against a lower court’s order, the original or certified copy of such order should be attached to the petition. 
  • The affidavit of the facts led to the filing of the petition. 
  • Any other necessary documents. 

 

If any document is not in the physical possession of the petitioner, then a list of such documents should be attached to the petition.

 

  • Submit the petition

 

After completely drafting the petition, it should be submitted at the filing counter of either the Supreme Court2 or concerned High Court3, according to the petitioner’s preference.

 

  1. Supreme Court of India, Handbook on Practice and Procedure and Office Procedure, accessed at https://main.sci.gov.in/pdf/LU/ppop2017.pdf[][]
  2.  Supreme Court of India, Handbook on Practice and Procedure and Office Procedure, accessed at https://main.sci.gov.in/pdf/LU/ppop2017.pdf[]
  3. Delhi High Court (Original Side) Rules, 2018, accessed at http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/DownloadFile_ACT21XZ4IP9.PDF[]