The court established that while successive writ petitions for habeas corpus are generally discouraged, they are possible if new grounds are raised. However, if the substantial challenge is against the detention order, the court cannot entertain a writ petition challenging the same detention order, even if new grounds have been raised, as the court is precluded from reopening its judgment on the validity of the detention order.

JUDGMENT :

A. MUHAMED MUSTAQUE, J.

1. This writ of habeas corpus was filed by the petitioner challenging a detention order under Kerala Anti-Social Activities (Prevention) Act, 2007 for short the KAA(P)A. This is the second writ petition challenging the very same order. The earlier writ petition, W.P. (Crl) No. 789/2023 was dismissed by this Court by its judgment dated 13.12.2023.

2. The petitioner is the wife of the detenu. The detenu suffered a previous detention order. Thereafter, he was involved in five crimes. One of the crimes was for keeping possession of a commercial quantity of narcotic substances. This Court, while dismissing the writ petition, noted that the detenu was already on bail for the offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). This Court refused to interfere with the detention order. The present writ petition is filed by canvassing an additional ground that was not canvased in the earlier writ petition. The ground is that detenu was not released on bail as stated before this Court in the earlier writ petition and is continued to be in judicial custody as there was a bar under Section 37 of the NDPS Act.

3. The learned counsel for the petitioner Adv. M.H. Hanis argued that the second writ petition is perfectly maintainable on fresh grounds and there is no bar for filing successive habeas. He placed reliance on the judgment of this court Nisha Salim vs. State of Kerala and Others, 2009 (2) KHC 1014.

4. On the other hand, the learned Public Prosecutor argued that there is a bar under Article 226 of the Constitution of India to entertain successive petitions for the writ of habeas corpus and the remedy of the writ petitioner is to approach the Apex Court in civil appeal or to file a writ petition under Article 32 of the Constitution of India before the Apex Court. He placed reliance on the judgment of the Apex Court in Ghulam Sarwar vs. Union of India, 1967 KHC 679.

5. Habeas corpus is the oldest of the prerogative writs. The prerogative writs such as habeas corpus, mandamus, prohibition, certiorari and quo warranto have origin in English common law. In the Magna Carta Chapter 39 1215 AD, it is stated thus:

“No free man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgment of his peers or by the law of the land.”

6. “Habeas corpus” means, under the Black Law dictionary that ‘you have the body’. As we note the meaning of habeas corpus and its origin in English law, it was not treated as a part of the judicial review process. It was only a procedure to enquire into the reason for detention and set the person at liberty, if he was unlawfully detained. The enquiry in that process was originally conceived to determine whether a person is illegally detained or not. Therefore, the English Court never originally considered that a judgment will have to be rendered adjudicating lis to issue a writ of habeas. In re Hasting (No. 2) (1958) 3 All ER 625, Queen's Bench of England rendered a discussion on the nature of orders in habeas reliefs. It narrates the nature of reliefs of habeas, and it was their view that the decision whether or not to issue a writ of habeas corpus is not a judgment so that there is no res judicata. With the passage of time and the emergence of sovereign states, individual liberty has gained constitutional protection. Consequently, any deprivation of personal liberty must meet constitutional scrutiny. Article 22(3) of our Constitution allows preventive detention backed by law. This has given rise to challenges under administrative law, and thus detention order has become part of administrative law. The detention order is intrinsically premised on administrative decisions backed by the statutory provisions. Therefore, relief under the writ of habeas is granted only when it is shown that order of detention is ultra vires, arbitrary, or lacks a logical foundation for orderi