The Hindu : Tamil Nadu News : Habeas corpus petitions bring out police, executive negligence

Online edition of India's National Newspaper
Saturday, Jan 22, 2005

Tamil Nadu

Tamil Nadu

Habeas corpus petitions bring out police, executive negligence

By Our Staff Reporter

MADURAI, JAN. 21. Habeas corpus petitions (HCPs) before the Madurai Bench of the Madras High Court have brought out the negligent activities of executive authorities and the police in matters of protection of personal liberty.

Beginning with the rapping of the Madurai City Commissioner of Police for passing an "erroneous" detention order under the Goondas Act and subsequently the Inspector General, South Zone, for the "inability" of the Dindigul police in tracing a man missing for more than ten months, the Bench expressed its concern to the Director General of Police over the functioning of the force, particularly in the southern districts. He appeared before it this week in the case of a missing woman registered by the Kulithalai police in Karur district.

In all the instances, the Bench was hearing three different habeas corpus petitions.

Executive functionaries

The executive functionaries are also not spared. The District Collectors-cum-District Magistrates generally pass detention orders under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Goondas, Immoral Traffic Offenders, Slum grabbers and Video Pirates Act, only to be quashed by the court, hearing HCPs, either for non-application of mind by the detaining authorities or for an unexplained delay in considering the detenus' representations.

While hearing a HCP this week, a Division Bench took exception to a statement made by a Collector that video piracy created confrontation between sections of the public, and said: "Mr. APP, ask your officers to apply their mind while passing such orders; how can video piracy create confrontation between sections of the public?"

Article 226 of the Constitution accords powers to the High Courts to issue certain writs, within their jurisdiction, in the nature of habeas corpus (to secure the release of a person detained illegally), mandamus (ordering a lower court or any other person to perform a public or statutory duty), prohibition (forbidding a lower court from proceeding in a suit deemed beyond its cognisance), quo warranto (directing a person occupying an independent substantive public office or franchise or liberty to show by what right he claims it) and certiorari (calling for records from a lower court for review).

The jurisdiction to issue writs is broader with High Courts, as they are entitled to issue them in instances when even a basic legal right has been infringed unlike the Supreme Court, exercising power under Article 32, which issues writs only when a fundamental right has been infringed.

Though petitions to issue the writ of mandamus outnumber other writs before the Madurai Bench, the court usually does not interfere with the duties of the executive, unless it is satisfied that the office in its entirety failed to perform the statutory duties. Sufficient time is also given to the authorities to reply and comply with the orders. The Bench deems it fit to adjudicate habeas corpus petitions at the earliest, as has been worded by the Chief Justice, Markandey Katju, in the open court here, since protection of life and personal liberty guaranteed under Article 21 is involved. The court does not tolerate any lethargy by officials in these cases.

The misuse of the jurisdiction by the litigant public too ends up in imposing heavy costs on the petitioners. The Bench views seriously the wasting of the time of the court in frivolous habeas corpus petitions and taking it for a ride to avenge family disputes.

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