Habeas Corpus Jurisprudence - Committee for Information and Initiative on Punjab (CIIP)

E. Habeas Corpus Jurisprudence

The writ of habeas corpus is an extraordinary remedy, and petitioners can only legitimately invoke it when they have exhausted all other administrative and legal remedies. Articles 32 and 226 of the Indian Constitution define the writ jurisdiction of the Supreme Court and the intermediate courts, such as the Punjab and Haryana High Court. These articles allow these courts to use the writ of habeas corpus to enforce the fundamental rights guaranteed in Part III of the Constitution, such as equality and the protection of life and liberty.[51] The petitioner generally files a writ or sends a telegram to the Supreme Court or High Court. If the justice of the High Court feels that the petitioner has prima facie established a case of disap-

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pearance, he orders a district court magistrate, police official, or other person to conduct an inquiry into the facts. Harjinder Kaur and Pritam Singh v. Punjab stresses that the inquiry is a fact-finding process, not a criminal trial requiring proof beyond a reasonable doubt.[52]

The magistrate or official then submits an inquiry report to the High Court, and the High Court justice decides whether to recommend that the CBI apply for prosecution sanction under Sections 45 or 197 of the CCP. These sections require consent from the state or central government for the arrest or prosecution of public servants and members of the Armed Forces for actions undertaken in their official capacity. If the government sanctions prosecution, the CBI files a charge sheet against the accused, and prosecution begins at the special CBI court in Patiala, Punjab.[53]

The High Court cannot refuse to consider a habeas corpus petition because of disputed facts, inability and inconvenience, or inappropriate prayer for relief.[54] The only requirement is that the petitioner establish a prima facie case of a disappearance. As Justice K. K. Srivastava wrote in paragraph 15 of Karnail Singh v. Punjab:

[The] standard of proof, as is required at the criminal trial, is not to be adopted. If the evidence . . . prima facie shows the allegations leveled by the petitioner to be believable, the matter requires to be thoroughly probed [sic], as it involves the life and liberty of a citizen in a democratic setup.[55]

No concept of laches limits the writ of habeas corpus.