Procedure Of Drafting A Writ Of Habeas Corpus

Have you ever wondered what you can do if someone you know is detained without a valid reason? What if the police arrest someone and refuse to explain why? How can you challenge such unlawful detention? Well, you can do it with the help of a writ of habeas corpus. 

This powerful legal tool protects individual freedom and ensures that no one is held in custody without a lawful reason. Want to know how you can draft a writ of habeas corpus? If yes, this blog is for you! 

Habeas Corpus: What Do You Mean By It? 

The writ of habeas corpus is one of the most critical tools for protecting individual liberty. Derived from Latin, “habeas corpus” means “you shall have the body.” It’s a court order demanding that a person detained be brought before the court. 

The writ requires the detaining authority to justify the detention. If the court finds the detention illegal, it orders the release of the individual. This writ is enshrined in Article 32 and Article 226 of the Indian Constitution.

When Should You File a Writ of Habeas Corpus?

You should consider filing a writ of habeas corpus if:

• Someone is detained without legal justification.
• The detention violates fundamental rights.
• A person is held beyond the period allowed by law without trial.

Who Can File a Writ of Habeas Corpus?

Any person, including the detainee, their family, or friends, can file a writ of habeas corpus. The individual filing the writ need not have any direct relationship with the detainee. This inclusivity ensures that anyone aware of the unlawful detention can act to secure justice.

The Procedure For Drafting The Writ

Now, let us move to the next step and get to know the right procedure to draft one such writ.

• Identify the Jurisdiction

First, determine whether to file the writ of habeas corpus in the Supreme Court or the High Court. Under Article 32, the writ can be filed in the Supreme Court. Under Article 226, it can be filed in the High Court. Usually, people approach High Courts first unless exceptional circumstances justify direct intervention by the Supreme Court.

• Prepare the Petition

The petition should be clear and concise, detailing the facts and grounds for the writ. Here’s a step-by-step guide:

• Title and Address: Begin with the title “IN THE SUPREME COURT OF INDIA” or “IN THE HIGH COURT OF [STATE].” Address it to “The Chief Justice of India” or “The Chief Justice of the High Court.”

• Parties Involved: State the names and addresses of the petitioner and respondent(s). The petitioner is the person filing the writ, and the respondent is the authority or person responsible for the detention.

• Facts of the Case: Provide a brief background of the case. Mention the date, place, and manner of detention. Include any relevant documentation that supports the claim of unlawful detention.

• Grounds for the Writ: Explain why the detention is illegal. This could be due to procedural lapses, violation of fundamental rights, or lack of proper authority.

• Relief Sought: Clearly state what the petitioner is asking the court to do. Typically, this would be to order the release of the detainee.

• Affidavit

Attach an affidavit affirming the facts presented in the petition. The affidavit should be sworn before a notary or an oath commissioner. It ensures the authenticity of the claims made in the petition.

• Supporting Documents

Include copies of any documents that support the petition. This could be arrest records, detention orders, or any correspondence with authorities regarding the detention.

• Filing the Petition

Submit the petition, affidavit, and supporting documents to the court. Pay the requisite court fees. Ensure that you follow the specific filing procedures of the respective court.

Court Proceedings

Once filed, the court will review the petition. It may issue a notice to the respondent to present the detainee before the court and justify the detention. 

The court then examines the legality of the detention. If the detention is found unlawful, the court will order the release of the detainee.

Final Words 

We can say that the writ of habeas corpus is a powerful tool in upholding personal liberty. It ensures that no one is detained unlawfully. Understanding the procedure of drafting this writ is essential for anyone looking to challenge illegal detention. If you want any legal guidance regarding this, you can contact Mr. Rajesh Kshetry, the best lawyer in Kolkata.