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1 - 4 of 4 (0.43 seconds)Article 21 in Constitution of India [Constitution]
T. C. Basappa vs T. Nagappa And Another on 5 May, 1954
The practice followed in the United States of releasing a
person found to be illegally detained without requiring him
to be brought before the Court disloses a pragmatic approach
to the problem, for, it concerns itself more with the
accomplishment of the primary purpose of the proceeding than
with compliance with its superfluous element.
This was the practice and procedure in an application for a
writ of habeas corpus and this is how the jurisdiction in
regard to writ of habeas corpus was exercised by the courts
in England as well as in United States when the Constitution
makers framed Art. 32 of the Constitution. It is,
therefore, reasonable to assume that when the Constitution
makers provided in Art. 32(2) that the Supreme Court shall
have power inter alia to issue a writ in the nature of
habeas corpus, they had in mind the writ of habeas corpus as
administered in England and the United States at that time.
The Constitution makers could never have intended that while
dealing with an application for a writ of habeas corpus
under Art. 32, the Supreme Court should shut its eyes to the
development in the law in regard to the writ of habeas
corpus in the last two hundred years, in the country of its
origin and the manner in which the jurisdiction in regard to
the writ of habeas corpus is exercised in the country of its
adoption across the Atlantic, and ignoring the facts of
history, allow itself to be petrified in the age of the
Tudors and the Stuarts when the writ was struggling to
emerge as an effective weapon in the protection of personal
liberty. There can be no doubt that in enacting Art. 32(2)
the Constitution makers meant to give to person illegally
restrained of his liberty the same kind of remedy, fashioned
and developed over the years, which is counterpart enjoyed
in England and the United States. It would indeed be highly
anomalous and strange that when in England and the United
States the remedy by way of a writ. of habeas corpus is
shown of its superfluous element and made
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more Convenient and effective from a functional view point
by dropping the requirement of production of the person
detained, we in India should still hold ourselves bound by
the old form of procedure and pay homage to a superfluity
which has been discarded a long ago in those, two countries.
Why, should the ghost of the past and that too not ours but
that of another country-be allowed to continue to haunt us
and cloud our vision of rationality. It has been held by
this Court in T. C. Basappa v. T. Nagappa & Anr. (1) that
"in view of the express provisions in our Constitution we
need not now look back to the early history or the
procedural technicalities of these writs in English law, nor
feel oppressed by any difference or change of opinion
expressed in particular cases by English Judges. We can
make an order or issue a writ in the nature of dertiorari in
all appropriate cases and in appropriate manner, so long as
we keep to the broad and fundamental principles that
regulate the exercise of jurisdiction in the matter of
granting such writs in English law." (the underlining is
ours) When we find, both on a priori reasoning as also on
the basis of the practice in England and the United States,
that the production of the body of the person detained is
not a basic or essential requirement of a proceeding for a
writ of habeas corpus-it is a superfluous element which can
be discarded without effecting the utility, and effec-
tiveness of the remedy-there is no reason or justification
why we should insist upon it while- dealing with an
application for a writ of habeas corpus. The broad and
general principles that regulate the exercise of
jurisdiction to issue a writ of habeas corpus in English law
have been discussed by us and they do not require that the
body of' the person detained must be produced before the
legality of the detention can be inquired into and
determined by the court. We must, therefore, hold that
while dealing with an application for a writ of habeas
corpus under Art. 32, the Supreme Court may not require the
body of the person detained to be brought before the Court.
The production of the body of the person detained is not
essential to the jurisdiction of the Supreme Court to deal
with the application. The Supreme Court can examine the
legality of the detention on the hearing of the rule nisi
without requiring that the person detained be brought before
the Court, and if the detention is found unlawful, order him
to be released forthwith. This, in fact, is the procedure,
set out in order XXXV, Tr. 4 & 5 read with Order Y.LVII, Tr.
1 and 6 of the Supreme Court Rules. Order XXXV, T. 4
provides that if on the preliminary hearing the Court is of
opinion that a prima facie case for granting the petition is
made out-and granting the petition would mean passing an
order of release of the person detained-a rule nisi shall
issue calling upon the respondent to appear and show cause
why the order sought, namely, order for release of the
person detained, should not be made and at the same time to
produce in Court the body of the person detained "then and
there, to be dealt with according to law". It would appear
that according to this Rule the body of the person detained
must be produced in Court on the, day fixed for the hearing
of the rule nisi. But Order XLVII, r. I empowers the Court,
for sufficient cause shown, to dispense with this
requirement of Order XXXV,
(1) [1955] S. C. R. 250.
Article 3 in Constitution of India [Constitution]
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