Unearthed archives shed light on 1869 case that redefined Cal HC’s Habeas Corpus jurisdiction

Kolkata: Archive material revealed a famous political prisoners’ case in the British era that shaped the Habeas Corpus jurisdiction of Calcutta High Court which in recent times has often heard cases of alleged illegal detention in the wake of a chain of protests triggered by the RG Kar rape and murder incident.

Habeas Corpus is a Latin term meaning “you may have the body”. This writ is issued in the form of an order, calling upon production of a detained person in court and answering by what authority that person was detained.

An annual court report highlighting certain ‘memorable cases’ of the oldest High Court (Calcutta) in India, sought to bring up from its archive a 19th century case which concerned two political prisoners, Ameer Khan and Hashmadad Khan.

In 1869, Ameer Khan (75), a merchant, suspected of being a Wahabi — a group at the forefront of the 1857 Mutiny — was arrested from his Calcutta home and detained outside the jurisdiction of the High Court in a provincial jail without formal charges for 14 months. He sought relief through a Habeas Corpus petition, requesting disclosure of his detention grounds but was denied. The sole justification for the denial was that he was detained under the provisions of Bengal Regulation III of 1818, a law permitting detention without trial for an unlimited period. The government had resisted his petition on grounds that the act of the Governor was not subject to challenge before the Court and that habeas corpus writ would not be issued to produce the body of Ameer Khan from Alipore Jail which was be yond original jurisdiction of the High Court.

Justice Norman, who heard the case, rebutted both the issues and held the writ of habeas corpus could not be denied on ground of immunity of the Governor.

The judge also held that the writ could be issued to produce a detenu beyond the original jurisdiction lest its efficacy be lost. This principle of extraterritorial operation of a habeas corpus was later relied upon in the amici brief before US Supreme Court in Boumediene v. Bush where the court issued habeas corpus against illegal detentions in Guantanamo Bay.