Emergency Petition For Writ Of Habeas Corpus: Fill & Download for Free

First and foremost thing before understanding the meaning & scope of HABEAS CORPUS,it is mandatory to have a knowledge of two important articles of Indian Constitution,they are ARTICLE-32 & ARTICLE-226.The ARTICLE-32 (known as SOUL OF INDIAN CONSTITUTION called by Dr. B.R. Ambedkar) of THE INDIAN CONSTITUTION deals with “Remedies for enforcement for enforcement of fundamental right including writs(याचिकायें )”.ARTICLE 226 deals with the “Power of HIGH COURTS to issue certain writs”.Under these two articles 32&226 Honourable Supreme Court & Honourable High Court respectively can emerge the WRITS of HABEAS CORPUS(बंदी प्रत्यक्षीकरण),MANDAMUS (परमादेश),PROHIBITION(प्रतिषेध लेख),QUO-WARRANTO(अधिकार पृच्छा) & CERTIORARI(उत्प्रेषण).Alongside under ARTICLE 32 Parliament can also empower any other court to issue these 5 writs.The writs are borrowed from ENGLISH LAW where they are known as PREROGATIVE WRITS (“विशेषाधिकार याचिकायें )”.In U.K. still they described as THE FOUNTAIN OF JUSTICE.There's a difference (basically in 3 major ways) between SC & HC as far as WRIT JURISDICTION(याचिका क्षेत्राधिकार) is concerned.Now come to the main theme of the question ; HABAES CORPUS is a LATIN word which generally means- “TO HAVE THE BODY OF”.It is a type of order issued by HONOURABLE COURT to a person who has detained another person, to produce the body of the latter before it.The court then examines the cause & legality of detention.It would set the detained person free,if the detention is found to be illegal.Habeas Corpus can be issued only in the following cases:-When the person is arrested without any violation of a law.When a person is arrested under a law which is Unconstitutional.When detention or imprisonment is done to harm the person or is Insincere or Malafide(दुर्भावपूर्ण ).When the person is detained and not produced before the Magistrate within 24 hours.Thus, Habeas corpus writ is called “Bulwark or Barrier of Individual Liberty Against Arbitrary Detention”.A general rule of filing the petition is that - A person whose right has been infringed must file a petition. But Habeas corpus is an exception and anybody on behalf of the detainee can file a petition.Habeas corpus writ is applicable to preventive detention also.This writ can be issued against both public authorities as well as individuals.On the other side this writ can't be issued where -The detention is LAWFUL.The procedure is for contempt of a LEGISLATURE or a COURT.Detention is outside the JURISDICTION of the court.Detention is by a COMPETENT COURT.REFERENCE - GK TODAY MAGAZINE & INDIAN POLITY by M. LAXMIKANTTHANKS FOR READING.._/\_…..Cheers..!!!

Abraham Lincoln, perhaps the United States’ most beloved president, widely adored for ushering the country through the trying times of the American Civil War and abolishing slavery……also suspended habeas corpus.Now, let’s lay the groundwork. First we’ll define what habeas corpus is, for anyone who isn’t aware. In the United States, when a person is arrested by the police on suspicion of a crime, a court can issue a writ of habeas corpus—a piece of paper which requires the arresting authority to either demonstrate ample cause for the arrest (say, by filing charges) or release the detainee.Second, let’s look and see where the state of Maryland is on a map, in relation to the northern and southern United States:Yup. Smack dab in the middle.April, 1861.[1] War had broken out between the Union in the north and the Confederacy in the south. Abraham Lincoln called for the northern states to send militia troops to Washington, D.C. Naturally, any troops coming from Pennsylvania, Delaware, New Jersey, New York, Maine, Connecticut, Massachusetts, Vermont, New Hampshire, or Rhode Island had to pass through Maryland on their way to the nation’s capital. Quite a number of Marylanders were against the idea of making war on the South, and riots broke out. Mobs of angry Marylanders even attacked federal troop transports.A number of Maryland politicians were leery of war with the South. These included Thomas Hicks (the governor), George Brown (the mayor of Baltimore), and almost the entire Maryland state legislature. Fearful of further rioting and violence, the legislature voted against opening rail lines to the North. The legislature also officially petitioned President Lincoln to remove the growing numbers of federal troops piling up in their state. Lincoln refused. Governor Hicks and Mayor Brown then asked Lincoln to prevent the crossing of any more troops through Maryland. Lincoln again refused.Not long after this little incident, Lincoln asked Attorney General Edward Bates whether it would be possible to suspend habeas corpus.Edward BatesNow, I’ll grant you that Lincoln’s back was against the wall. Washington, D.C. is quite close to Virginia. The Confederate capital was in Virginia—Richmond, just a hundred miles south. Almost everything south of D.C. was Confederate territory—and the Confederate armies were massing for an attack, too. Lincoln had to get those troops to Washington. He had no time for pettifogging Maryland politicians obstructing the movement of his precious blue-clad soldiers.On April 27, 1861, Lincoln authorized Union troops to suspend habeas corpus if they encountered any resistance on the “military line” throughout Maryland.On April 29, the Maryland legislature voted against allowing federal troops to use Maryland as a highway to Washington. Governor Hicks then allegedly authorized the Maryland state militia to destroy several key railroad bridges that the Union was using to move its troops southward.Militia lieutenant John Merryman was arrested on May 25 for his role in destroying railroad bridges at the Bush and Gunpowder Rivers. He was charged with treason, taken to Fort McHenry in Baltimore, and there imprisoned.John MerrymanMerryman’s lawyers lost no time. They headed straight to Washington and barged into the offices of Roger B. Taney, Chief Justice of the Supreme Court (and author of the infamous Dred Scott decision), demanding a writ of habeas corpus. Taney issued the writ the day after Merryman’s arrest, May 26. The writ ordered General George Cadwalader, the commander of the military district wherein Fort McHenry was located, to bring Merryman before Taney the next day, without fail.Roger B. TaneyGeneral Cadwalader sent one of his colonels to Justice Taney on May 27. The colonel bore a letter from Cadwalader explaining to Taney that, under orders from President Lincoln, the Federal Army had suspended habeas corpus in Maryland for the time being, that Merryman was being held for treason, doncha know, and for being illegally in possession of U.S. government arms, dude, and, like, advocating armed hostility against the federal government and all that jazz. Cadwalader advised Taney that these were dark and dangerous times, and it was perhaps better to err on the side of national security. Due to the complex nature of the issues at stake and the dire nature of the charges being leveled against Merryman, Cadwalader politely asked Taney for an extension so he (Cadwalader) could seek clarification from President Lincoln.George CadwaladerWell, one doesn’t just say “no” to the Chief Justice of the Supreme Court. Taney fired back the 1861 equivalent of a “Oh hell NAW you didn’t” to Cadwalader. Then the incensed Taney went one step further: he held Cadwalader to be in contempt of court. Taney ordered a U.S. Marshal to arrest Cadwalader and haul his sorry carcass up in front of Taney the next day.The marshal dutifully knocked on the door of Fort McHenry on May 28, but the sentries refused to let him in. Rumor has it that Cadwalader, earlier that day, had received orders from U.S. Army headquarters telling him to keep holding Merryman at all costs, Chief Justice Taney be damned. Whether that’s true or not, Cadwalader had decided to stand his ground. He ordered his sentries to turn the marshal away.Taney filed a written opinion with the United States Circuit Court for the District of Maryland on June 1, 1861. In it, he put Lincoln on blast for bestowing unlimited power on himself. His wording was quite strong:These great and fundamental laws, which Congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the Constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.The crux of Taney’s argument was that only Congress, not the President, had the right to suspend habeas corpus, and then only in the most dire of circumstances.Now, technically, Lincoln hadn’t done anything wrong. Not according to the Constitution, anyway. As Article I, Section 9 of the United States Constitution says:The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.Lincoln clearly thought that habeas corpus was indeed a privilege and not a right, and it could be suspended if the public safety required it, and that in this particular case, the public safety most certainly did require it. And he resented Taney for putting up a stink.Lincoln defended his suspension of habeas corpus in a speech he gave to Congress on July 4, 1861, framing the question as he saw it: a choice between strict interpretation of constitutional law, or the dissolution of the Union.The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution that “the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it” is equivalent to a provision—is a provision—that such privilege may be suspended when, in cases of rebellion or invasion, the public safety does require it. It was decided that we have a case of rebellion and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.On July 10, a grand jury in Baltimore indicted Merryman for treason. The allegations were damning. Merryman was accused of “wickedly, maliciously, and traitorously” waging war upon the United States, with the assistance of 500 armed men. He was charged with destroying no fewer than six railroad bridges as well as telegraph lines, with the aim of hindering Union troops from crossing the state and severing their lines of communication. Merryman posted his $20,000 bail and was released, pending trial.But the case never came to trial. Since treason was punishable by death, it would have to be tried in a federal circuit court. At that time, Supreme Court justices also served as circuit court judges. There were only two federal judges for the U.S. Circuit Court in the District of Maryland: our good friend Roger B. Taney and another man named William F. Giles (who, interestingly enough, had had one of his own writs of habeas corpus ignored by William W. Morris, the commander of Fort McHenry, just a short time prior to the Merryman affair).But the vindictive Taney would have none of it. Though repeatedly asked to schedule hearings for the accused, Taney declined time and time again. Taney justified his obstructionism by proclaiming that neither Merryman nor anyone else who’d been indicted would get a fair trial in Maryland. (He also claimed his health was poor and this was a really bad time for him to be handing down orders from the bench, cough cough.) Taney resisted all attempts made by federal authorities to replace him and put enough pressure on Judge Giles to ensure that Giles wouldn’t hear the case by himself.This brouhaha dragged on for years. In 1864, Taney wrote: “I will not place the judicial power in this humiliating position nor consent to degrade and disgrace it, and if the district attorney presses the prosecutions I shall refuse to take them up.”Taney died in 1864, still bitter. For whatever reason, Salmon P. Chase, who became Chief Justice and circuit court judge for Maryland after Taney’s death, also refused to conduct any Merryman hearings.I’d love to be able to tie a neat bow around this story and wrap it up for you, but this is where it ends. Everything just sort of fizzled out. The war ended. Lincoln was assassinated. Merryman never saw the inside of a federal prison, let alone a gallows, and later became Maryland’s State Treasurer.But let’s stop and think about this for a moment. This is Abraham Lincoln we’re talking about. Freer of the slaves. Preserver of the Union. Savior of America. Inspirational leader, speaker, and writer. Millions of Americans’ favorite American.You can almost see the halo around his head.And yet, despite his sterling reputation as a lover of freedom, democracy, and unity, Lincoln somehow believed that he had the right to throw a man in jail indefinitely, without charges, representation, due process of law, trial, or possibility of parole. Because, in his sainted opinion, an abstract noun (“public safety”) was in jeopardy.Take a minute to let that sink in. The man who often gets the credit for freeing the slaves, the beneficent patriarch who preserved the Union and led the young United States through arguably what was its greatest moral, legal, and existential crisis, basically believed that he had the right to interpret the Constitution as he saw fit, tell the judiciary to go pound sand, and imprison anyone for any length of time during a national crisis. At his sole discretion.It’s really quite disturbing when you allow yourself to contemplate it.Footnotes[1] President Lincoln suspends the writ of habeas corpus during the Civil War

Bravest judge in Indian history was undoubtedly Hon'ble Justice H. R. Khanna. In the darkest time of India’s democracy, at a time when the Constitution itself seemed under attack, Justice H. R. Khanna held his nerve to ensure that he stood for what's right, and did not give in to pressure.The time I speak of is the Emergency under the Prime Ministership of Indira Gandhi. In order to prevent herself from being disqualified as an MP, and to ensure absolute control in her hands, the Emergency was proclaimed, citing ‘internal disturbances’. The proclamation of Emergency was followed by an unprecedented crackdown on any kind of opposition to the Government.On various flimsy pretexts, almost all major opposition political leaders such as Jai Prakash Narayan, Atal Bihari Vajpayee, Morarji Desai, Charan Singh etc were arrested and held without bail or production before Magistrates for indefinite periods.There was only one weapon still available to the opposition, which was resorted to by them. The writ of Habeas Corpus, which protects an individual from arbitrary arrest and illegal detention, was resorted to by several opposition leaders by filing writ petitions in different High Courts, seeking the Court's protection against the Government. Obviously, the Indira Gandhi Government was not keen on the Court's interference in their agenda, so in every case, the Government strongly contested the writ petitions, claiming that the protection of the writ of Habeas Corpus was unavailable during Emergency.This matter was bound to reach the Supreme Court, and sure enough, soon an appeal from High Court’s orders reached the Supreme Court. The Advocates of the Supreme Court had been active opponents of the Emergency, and feared that the then Chief Justice A. N. Ray, who was promoted as CJI superseding three senior judges owing to his favouring the government in the Keshavananda Bharati case [(1973) 4 SCC 225], would constitute a bench of judges favourable to the Government. The legendary Advocate C. K. Daphtary convinced the CJI to constitute a bench of the 5 senior most judges of the Court to hear the matter, citing precedent set by Chief Justice A. N. Ray’s mentor, Chief Justice S. R. Das. As a result, a bench comprising the CJI, Justice M. H. Beg, Justice H. R. Khanna, Justice Y. V. Chandrachud and Justice P. N. Bhagwati, the 5 senior most judges of the Supreme Court, was constituted to hear the Habeas Corpus case [A. D. M. Jabalpur vs Shivkant Shukla AIR 1976 SC 1207] , as it later came to be known.The Supreme Court Bar was pleased with the composition of the Bench hearing the matter, as it appeared to them that the likes of Justice Khanna, Justice Chandrachud and Justice Bhagwati, who were all known as progressive judges, would not favour the Government in such an important case. Their hopes were raised during the hearing of the case, when at one point the then Attorney General, Niren De, made a shocking submission before the Court. Justice Khanna asked the AG that suppose a man lost his life owing to preventive detention, would the writ remedy still be unavailable? Attorney General Niren De submitted that yes, even where there was loss of life, writ remedy would still be unavailable during Emergency period. His answer shocked the Advocates appearing in the case, and they felt surely now the Bench would rule against the Government.However, the Bar failed to take the judges’ personal ambitions into account. The judges clearly remembered the Keshavananda Bharati case, which was not too long ago. The then Chief Justice S. M. Sikri retired after delivering the judgement in that case, and afterwards, the three seniormost judges of the Supreme Court, who would normally succeed Chief Justice Sikri as CJI in order of seniority - Justice Shelat, Justice Grover and Justice Hegde - were superseded in the order of succession and Justice A. N. Ray was appointed as CJI ahead of them, causing the other three to resign. This was done because Justice Shelat, Justice Grover and Justice Hegde had all ruled against the Government in Keshavananda Bharati and Justice Ray had ruled in favour of the Government. There was no reason to believe the same would not be done after the Habeas Corpus case.Despite this fact, and despite knowing that all the other judges on the Bench had already decided in favour of the Government, Justice H. R. Khanna felt he must write a dissenting opinion. His conscience would not allow him to rule in favour of the Government, ignoring all Constitutional tenets and values. Despite the fact that his dissenting opinion would not have any effect, he felt that he ought to stand up against the oppressive government, and stand in favour of justice and good conscience. Upon writing his judgement, Justice H. R. Khanna reportedly said to his wife, “I have written a judgement which will most likely cost me the Chief Justiceship of India”.And it came to pass, that Justice H. R. Khanna was the sole dissenter. Justice Khanna insisted that writ remedies cannot be abolished owing to proclamation of Emergency, and citizens must have judicial remedy against arbitrary Government action at all times. The four other judges on the Bench decided otherwise, and thus, shortly afterwards, when Chief Justice A. N. Ray retired, Justice M. H. Beg was appointed as CJI, superseding Justice H. R. Khanna, who promptly resigned from his post as Supreme Court judge.The New York Times said it best about this case:“If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H. R. Khanna of the Supreme Court., It was Mr. Justice Khanna who spoke out fearlessly and eloquently for freedom this week dissenting from the Court's decision upholding the right of Prime Minister Indira Gandhi's Government to imprison political opponents at will and without court hearings.”