The Home Secretary (Prison) vs H. Nilofer Nisha

 

Case Commentary

The Home Secretary (Prison) vs H. Nilofer Nisha on 23 January, 2020

Author: L. Nageswara Rao

 

THE HOME SECRETARY (PRISON) & ORS.      ...APPELLANT(S)

 

                         VERSUS

 

H. NILOFER NISHA                      ...RESPONDENT(S)

Bench: L. Nageswara Rao, Deepak Gupta

Citation- 2020 SCC Online SC 73, decided on 23.01.2020

Introduction

The writ of habeas corpus is available as a remedy in all cases of wrongful deprivation of personal liberty. It is a process for securing the liberty of the subjects by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. The Constitution confers ample powers on the Supreme Court and all High Courts in the matter of issue of a writ of habeas corpus. The right to move the Supreme Court under Article 32 for the enforcement of fundamental rights is itself a fundamental right, while the right to move a High Court under Article 226, though not a fundamental right, is still a constitutional right.

Detention should not contravene Article 22, as for example, a person who is not produced before a magistrate within 24 hours of his detention is entitled to be released. The power of detention vested in an authority, if exceeded, abused or exercised mala fide makes the detention unlawful. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was needed to examine the question of illegal detention with utmost promptitude.

 The writ of habeas corpus has been described as a writ of right is grantable ex debito Justitia. When physical restraint is put upon a person under a law there is no right to habeas corpus unless the law is unconstitutional or the order is ultra vires the statute.

Laws involved-

Article 142 of the constitution of India.

Issues involved-

The main issues presented before the honorable court were as follows:

1.       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?

2.       Whether premature release can be granted to a person who is under life imprisonment as a right?

Facts of the Case-

If the facts of the case are to be taken into consideration, respondent H Nilofer Nisha identifying himself as a detenus. Challenging the order of high court on premature release of prisoner under a government scheme. The only question with which we are concerned within the above backdrop is whether the petitioner can be said to be in the unlawful custody. Our answer to that question is in the negative. The record which we have carefully perused shows that the petitioner is an accused facing prosecution for the offences, cognizance whereof has already been taken by the competent court. He is presently in custody pursuant to the order of remand made by the said Court. A writ of habeas corpus is, in the circumstances, totally misplaced. This Court referred to the development of law in the United States of America and held that the writ in the nature of habeas corpus could be issued going beyond the conventional blinkers and the Court must examine the manner in which the inmate is held and treated during the currency of a sentence. One must remember that any person can be deprived of his liberty only in accordance with the procedure established by law. Therefore, when a person is sent to prison; whether during the investigation under an order of remand, issued under Section 167 of the Code of Criminal Procedure,1973, or as an under trial by denying him the facility of bail, or after conviction; he is behind bars because of the orders of the Court.

Contentions

petitioner’s argument:

1.    It is a settled principle of law that a writ of habeas corpus is available as a remedy in all cases where a person is deprived of his/her personal liberty. It is processual writ to secure liberty of the citizen from unlawful or unjustified detention whether a person is detained by the State or is in private detention.

2.    We feel that a quietus has to be given to this matter and the legal issue must be decided. As far as the objection of selective filing of petitions by the State against orders of release by the High Court is concerned, that objection is meaningless.

3.     It has been urged on behalf of the State that the High Court has transgressed the jurisdiction conferred upon it under Article 226 of the Constitution of India while issuing the writ of habeas corpus. It is contended that in all the cases the petitioners were convicted of the offences of murder which conviction was upheld till this Court.

Respondent’s argument:

         

1.    This Court does not, as a general rule, go into such controversies in proceedings for a writ of habeas corpus. Such a writ is not granted where a person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal and we are not satisfied that the present is not such a case.” 6 (1972) 3 SCC 256.

2.    It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty.

3.    It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal.

Rationale-

Habeas corpus is the writ which was visualized as an effective means to provide a quick remedy to a person who has lost his personal liberty without any legal justification. Therefore, it cannot be used for complaining against past illegal detention. But the Supreme Court in India has expanded its dimension and compensation is being paid not only for past illegal detention but also for loss of life. Initially, the state was asked to pay special cost to the prisoner. This happened in Rudul Shah v. state of Bihar. But now the payments are ordered to be given as compensation. This is probably done for the reason that in a regular civil suit for damages for false imprisonment, the state may successfully put the defense of Sovereign immunity.

Judgement-

The High Courts are empowered to frame rules in terms of Article 225 of the Constitution of India but this power is subject to the provisions of the Constitution of India and to the provisions of any law of the appropriate legislature. Article 225 reads as follows: ­ “225. Jurisdiction of existing High Courts.­ Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution: Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.”

As already mentioned above, it is well settled law that even if the detenus is in private detention then also a writ of habeas corpus would lie. If the Rules are to be the masters and not the Constitution, then, probably in the Madras High Court no writ of habeas corpus would be entertained in the case of private detention. This would be against the spirit of the Constitution of India. Therefore, we are clearly of the view that reference to the Rules is of no aid whatsoever.

The appeals are disposed of in the aforesaid terms. Pending application(s), if any, stand(s) disposed of.