Notes

The case for habeas corpus in every court

Alok Prasanna Kumar's central claim is that every court in India should have the power to issue habeas corpus. This would mean that the remedy for unlawful detention would not be limited to the Supreme Court and High Courts.

The argument starts from access. Most judges in India sit in district courts, and most litigants never reach the High Courts or Supreme Court. If habeas corpus protects the basic civil right against detention without legal authority, then the remedy should be available from the courts people can actually reach.

Alok frames the idea as a question of making constitutional protection practical:

"You would want people to be able to file cases for the most basic civil right, that no one shall be detained without the authority of law, to be accessible from their nearest court."

The point is not that higher courts are unimportant. It is that a right becomes weaker when the remedy is concentrated in institutions that most people cannot access in ordinary life.

Why more High Court benches are not enough

One possible response is to expand access by creating more High Court benches. Alok argues that this would be resource-intensive and still less effective than empowering existing district courts.

He uses Karnataka as an example. The state has many districts but only a few High Court benches. If benches were created wherever they were actually needed, the state might require twenty or more benches. That would demand large institutional investment and would still reproduce the same centralized model.

The alternative is to use the district court apparatus that already exists across the country. District courts are already the first point of contact for most litigation. Giving them habeas corpus powers would use an existing institutional network instead of building a parallel one.

This makes the proposal both normative and administrative. It is about constitutional access, but it is also about choosing the mechanism that can realistically reach people.

The constitutional and statutory routes

Alok identifies more than one possible path for implementing the idea. The first route is constitutional. Article 32(3) allows Parliament to vest the Supreme Court's writ powers in other courts. This means the Constitution already contains space for expanding writ jurisdiction beyond the Supreme Court.

A second route would be legislative. Parliament could amend criminal procedure to give magistrates the power to issue habeas corpus and allow affected persons to approach the concerned magistrate.

A third route is interpretive. Alok points to Section 151 of the Code of Civil Procedure, which preserves the inherent power of civil courts to make orders necessary for justice. He suggests that lawyers could argue for a broad interpretation of this power.

Alok explains the basic nature of habeas corpus:

"It is asking with what authority of law have you taken someone into custody?"

This matters because habeas corpus is often treated as part of criminal process, but Alok describes it as a civil remedy. It asks whether a person's detention has legal authority. On that view, civil courts may already have conceptual room to entertain such claims.

Why Article 32 and Article 226 need not be exclusive

The discussion then turns to statutory interpretation. The interviewer raises the maxim expressio unius est exclusio alterius, which asks whether explicitly giving writ powers to the Supreme Court and High Courts implies excluding all other courts.

Alok rejects that reading. He argues that Articles 32 and 226 do not say that writ powers vest only in those courts. The Constitution expressly allows Parliament to vest writ powers elsewhere in relation to the Supreme Court. More broadly, constitutional rights are not created by court procedure. The Constitution recognizes and protects rights, while procedure provides paths for enforcing them.

This distinction is important. If the underlying right is freedom from unlawful detention, then procedural rules should not be read to eliminate every possible route for enforcing that right.

Alok's position is that nothing in the constitutional text absolutely prevents a lower court from demanding that a detained person be produced before it. The argument is not that district courts already exercise full writ jurisdiction in the same way High Courts do. It is that the existing legal materials should not be read as closing the door.

Enforcement and contempt

The next problem is enforcement. Even if a district court issues a habeas corpus order, a police officer or public authority might refuse to comply. Alok treats this as a serious but familiar problem.

Civil courts already face defiance of their orders. The legal system has mechanisms for dealing with non-compliance, especially contempt. District courts are not courts of record in the same way as High Courts and the Supreme Court, so they cannot punish for contempt of themselves directly. But they can refer contempt to the High Court.

Alok argues that this existing mechanism is enough for many cases. Some officials may defy orders, but many will comply if non-compliance could personally involve them in contempt proceedings.

The point is not that enforcement problems disappear. It is that they are not unique to habeas corpus. Courts already operate with imperfect but real mechanisms for ensuring compliance.

District court independence and structural pressure

The conversation then moves to judicial independence. District judges do not have the same removal process or institutional protections as High Court and Supreme Court judges, but Alok argues that they are still constitutionally protected.

He stresses that the Constitution contains provisions for district and magistrate courts. Article 22, which requires production before a magistrate within 24 hours of detention, appears before the Constitution's provisions on the Supreme Court. This supports the idea that lower courts are also constitutional institutions.

The more difficult issue is structural pressure. District judges are overseen by High Courts, but police and intelligence inputs can influence assessments of judges. This can affect independence, especially when judges are asked to scrutinize police action.

Alok treats this as an existing problem rather than a reason to reject expanded habeas corpus powers. If police influence already affects judicial independence, that problem should be addressed directly. It should not be used to deny lower courts the ability to protect personal liberty.

Making constitutional remedies more accessible

The episode ends by returning to the practical stakes. Prisoners, including people held under laws such as UAPA, may remain in jail without timely hearings. In such situations, accessible habeas corpus powers could matter.

Alok's final point is that the Constitution does not enforce itself. Lawyers and judges have to keep finding ways to implement constitutional values. That requires creativity, initiative, and a willingness to push the boundaries of what the Constitution permits in favour of rights.

The proposal is therefore not only about one procedural reform. It is about changing how constitutional remedies are imagined. If fundamental rights are meant to protect people in practice, then the power to enforce them should be distributed through the courts that people can actually reach.

Supplementary Resources

• Article 142: Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. by Centre for Law and Policy Research (Web Article)
• Article 226: Power of High Courts to issue certain writs by Centre for Law and Policy Research (Web Article)
• Section 151, The Code of Civil Procedure, 1908 by Government of India (Web Article)
• District courts are not subordinate in judiciary, they are just a rank below to High Courts, says Chief Justice of India by Sambasiva Rao M. (Web Article)

The complete transcript file is available to download below.