WRIT OF HABEAS CORPUS CANNOT BE INVOKED FOR THE PREMATURE RELEASE OF CONVICTED PRISONERS

The Writ of Habeas Corpus is generally filed to enquire about the whereabouts of a person. It has been misused by some litigants as a useful tool to try and get release of the detained person from prison. The primary purpose of moving a writ of Habeas Corpus is more in the nature of “search and detection” of a missing person. What most people are not aware of is that even when a writ of Habeas Corpus is issued, it does not routinely acquit the detained person or waive off his liability under the law.

A criminal appeal titled THE HOME SECRETARY (PRISON) & ORS. v/s H. NILOFER NISHA having Criminal Appeal No. 145 of 2020 was decided on 23^rd January, 2020 in the Hon’ble Supreme Court of India, in which the main issue which arose before the Court for decision was:

“Whether a writ of habeas corpus would lie, for securing release of a person who is undergoing a sentence of imprisonment imposed by court of competent jurisdiction praying that he be released in terms of some Government orders / Rules providing for pre­mature release of prisoners?”

In this case the Bench of Justice S. Abdul Nazeer and Justice Deepak Gupta observed that “it is not for the writ Court to decide whether a prisoner is entitled to parole or remission and these matters squarely lie in the domain of Government.”

It was contended on behalf of the State that by directing for the release of the prisoners and allowing their Habeas Corpus petitions, the High Court overstepped its powers and jurisdiction under Article 226 of the Constitution of India. Under the scheme, the High Court could have directed the concerned authorities to consider the representation but could not have ordered for the release of the prisoners, the State contended.

After hearing arguments the Hon’ble Supreme Court noted that in the instant case, the Petitioners were all sentenced to life imprisonment and most were convicted of offences as serious as those under Section 302 of the Indian Penal Code mainly murder. The Supreme Court held the High Court did not have the power to release prisoners and that the Government is responsible for the decision on parole and remission.

GOVIND GUPTA

ASSOCIATE

THE INDIAN LAWYER