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Habeas corpus: High Court frees Goa protesters, noting no prohibitory order

By CAShorts DeskPublished Sources: The Indian Express, The Times of India, The Goan

Habeas corpus: High Court frees Goa protesters, noting no prohibitory order
Illustration (AI-generated)

The High Court of Bombay at Goa late on 11 October ordered police to release protesters detained at Panaji's Azad Maidan. On habeas corpus petitions, a Division Bench observed that with no prohibitory order under Section 163 of the BNSS in force, the detention "may not have been authorised". The interim order sought affidavits for the 12 October hearing.

Syllabus: GS2 · Constitution; Prelims · Polity & Governance; GS2 · Executive & Judiciary

Why it matters

A person who joins a peaceful gathering can be removed and held only under a power that some law gives. The police relied on a refusal of permission; the Bench's interim view turned on the absence of any Section 163 order, and the detainees were freed within hours of being detained. The case shows habeas corpus at work: judges sat on a Sunday night, had the people released, and asked the officers involved to explain the detention on affidavit before ruling on its legality. The wider question is how the State can keep public order around protests without turning permission rules into a ban on dissent.

Prelims pointers

  • Article 19(1)(b): citizens' right to assemble peaceably and without arms. Article 19(3): reasonable restrictions by law, for sovereignty and integrity of India or public order.
  • Article 21: no person shall be deprived of life or personal liberty except according to procedure established by law.
  • Article 22: an arrested person must be told the grounds, may consult a lawyer of choice, and must be produced before the nearest magistrate within 24 hours.
  • Habeas corpus ('to have the body'): orders a detainee produced and the detention justified; it lies against public authorities and private persons alike.
  • Article 32 is itself a fundamental right, for Part III rights; Article 226 is wider, letting High Courts issue writs 'for any other purpose' too.
  • Section 163, BNSS (formerly CrPC Section 144): a District Magistrate, Sub-divisional Magistrate or specially empowered Executive Magistrate may restrain gatherings in urgent cases.
  • A Section 163 order lasts at most two months; the State Government may, by notification, extend it by up to six months more.
  • Anuradha Bhasin v Union of India (2020): prohibitory orders must be reasoned and proportionate, are open to judicial review, and cannot suppress legitimate expression of grievance.

Practise a UPSC-style question

With reference to the writ jurisdiction of courts in India, consider the following statements:

1. The power to issue writs "for any other purpose", besides enforcing Fundamental Rights, is conferred on the Supreme Court by Article 32.

2. The right to move the Supreme Court under Article 32 for the enforcement of Fundamental Rights is itself a Fundamental Right.

Which of the statements given above is/are correct?

  1. (a) 1 only
  2. (b) 2 only
  3. (c) Both 1 and 2
  4. (d) Neither 1 nor 2
Show the answer

Answer: (b) 2 only

1 is incorrect: the words "for any other purpose" are in Article 226, which gives High Courts the wider writ power; Article 32 covers only the rights in Part III. 2 is correct: Article 32 sits in Part III, so the right to move the Supreme Court is itself a Fundamental Right.

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