Every person must be able to secure his liberty through remedies made available by law. In a world where police have extreme powers to detain a person and where these powers can be misused by the police, habeas corpus is an effective remedy provided by Constitution of India to protect personal liberty of person. It is a writ which is issued to a person or authority to bring the body (corpus) of a person before the court. The very basis of the writ is that the person who is detaining another does not have right to do so and the detention therefore is unlawful and illegal.
Apart from that, Punjab and Haryana are known for human rights violations by police authorities and honour killings by casteist people. In such cases also, Punjab and Haryana High Court at Chandigarh gives relief to persons who have been illegally detained by violation of their basic human rights by police authorities or private individuals.
International Child Abduction International Child Custody
In recent times, the writ of habeas corpus has been used to protect legal right for the custody of minor children and to stop illegal detention of persons except with the explicit permission of law. Under article 32 of the Constitution of India, writ of habeas corpus lies only against authorities as defined under article 12 of the petition of India and not against private person. However under article 226 of the Constitution of India, writ of habeas corpus lies even against a private person who has illegally detained another – for example illegal detention of a minor in case of international child abduction.
The use of writ of habeas corpus for child custody in case of parental Child abduction is on steep rise in Punjab and Haryana High Court at Chandigarh. On several grounds, the judges are more inclined towards grant of writ of habeas corpus in case it is shown that the custody of the child is illegal and unlawful and also that child himself or herself does not want to reside with the parent who has illegally detained him or her. In such cases, welfare of the child is the primary consideration before the court.
In a writ of habeas corpus, and illegal order of detention can also be challenged on the grounds that on the grounds of Mala fides, violation of article 14 and several other provisions of law which can be categorised under doctrine of ultra vires