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Madras High Court: Interim Bail in Habeas Corpus can be granted in unprecedented conditions
Habeas corpus writ is issued to test the legality of the detention. In A.K.Gopalan V. the District Magistrate, the court stated that “Habeas Corpus is a high prerogative right and it is a great constitutional remedy for all manner of illegal confinement.”[i]The importance of habeas corpus writ can be felt since the time of independence, as the architects of the Indian constitution were aware of the significance of liberty in individual life and how the authorities can use their power to illegally curb the liberty of citizens for their selfish motives. However to safeguard the law and order the authorities can put a reasonable restriction on individual liberty, by fulfilling certain conditions prescribed in the law. The Hon’ble Supreme Court in one of its judgments held that preventative detention is reasonable when it is done for the benefit of the society, and the executive has the power to restrain the liberty of the individual to maintain the peace in the society. [ii]
Madras Act I of 1947 is the act which expressly restrains the personal liberty of the individual and for the welfare of the society. The Act itself provides the safeguard to the detenu by providing various measures to them in the order to protect their right under article 22 of the Indian constitution. [iii]The Act provides the guidelines for the Advisory Board; the detenu can approach the Advisory Board for the personal hearing to present the case of his side. And then the advisory board can submit the report to the state within the 7 weeks of detention. Here the advisory board acts as the other courts and has the discretion to give its decision after strictly adhering to the rule prescribed under the Indian constitution and the statute.
In Tamil Nadu v S.Indramoorthy, the state filled the miscellaneous petition in the Madras High Court for reconsidering the judgment passed where the detenu was given the interim bail because the detenu was not produced before the Advisory Board. In the Act, it is not mentioned that it is mandatory to produce the detenu before the advisory board. Due to the pandemic situation, the detenu was not given the hearing personally. Besides this detenu received the detention order wherein para 6&7 it was mention that he is entitled to be heard in person by the advisory board and he is requested to intimate it to the Additional chief secretary to the government, especially in writing whether he wants to be heard in person or not in front of the Advisory Board. Despite the advice, detenu made no requested to be heard by the Advisory board. In one of the judgment, Hon'ble Supreme Court held that despite providing with the advice of personal hearing in front of the advisory board the detenu is failed to show his desire for personal hearing; the detenu cannot be granted bail because he had no personal hearing in front of the Advisory Board to present his side of the case.[iv]Neither the petitioner nor the detenu made any attempt to take the opportunity of personal hearing. The material about the detentions of detenu was placed before the Advisory board and it unanimously held that the detenu should be kept in detention as the sufficient causes are available against detenu.
The court was also made aware of its jurisdiction in this type of case is narrow and limited. As for the temporary release the detenu can approach the state government and get a release order subject to certain conditions prescribed under the act and there is no provision to grant the interim bail in the act. One of the judgments of the apex court stated that before granting the bail to the detenu the court should also consider the reason for the detention, as courts are generally anxious to know the reason behind the detention as they consider the individual liberty as the important aspect. But before granting the bail the court should consider all the outcomes of its order and its effect on the community at large. Here the court also stated that the court has not come across where bail has been granted against the Habeas Corpus and apprehend that the reluctance of the courts to pass orders of bail in such proceedings is based on the fact that they are fully conscious of the difficulties — legal and constitutional, and of the other risks involved in making such orders. [v]
It is clear that the high court while dealing with the Habeas Corpus writ under Article 226 of the Indian Constitution has the jurisdiction to grant the interim bail only in certain exceptional circumstances as the aim of the detention should not be ignored by the court. Interim bail in Preventive Detention can be granted by imposing certain restrictions on the detenu and certain guidelines to be fulfilled by him. In one of the decisions of Hon'ble Supreme Court stated that the high court can recall its judgment if it feels that justice is not received by delivering the previous judgment. The high courts are the courts of record set up under article 215 of the Indian constitution; they are the constitutional body, being the court of records they have the jurisdiction to recall its order by the inherent virtue that they are the superior court of record, undoubtedly it is competent to determine the scope of its jurisdiction. Hence if the error is noticed by the High Court it has the jurisdiction to recall its order and correct the judgment for the benefit of the society[vi]. In this case, the Madras High Court recalls its judgment and directed detenu to surrender.
Accordingly, it is made clear by the court that it cannot normally entertain the interim bail in habeas corpus petition, until and unless it is made clear that the intervention of the court is indispensable at that stage.
[i] A.K.Gopalan V. the District Magistrate and Others, AIR 1949 Mad 596
[ii] State of Punjab V. Sukhpal Singh, 1990 SCC (Cri) 1
[iii] A.K. Gopalan vs The State Of Madras AIR 1950 SCR 88
[iv] SK.Hasan Ali V. State of West Bengal, (1973) SCC (Crl) 73
[v] State of Bihar V. Rambalak Singh and Others, AIR 1966 SC 1441
[vi] Municipal Corporation of Greater Mumbai and Others V. Pratibha Industries Limited and Others, (2019) 3 SCC 203
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