Does the doctrine of Constructive res judicata apply to the writ of Habeas corpus? Give reasons in support of your answer and also refer to case law, if any, on the point. 

Question: Does the doctrine of Constructive res judicata apply to the writ of Habeas corpus? Give reasons in support of your answer and also refer to case law, if any, on the point.

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Answer

The writ of habeas corpus is an exception to the general rule of res judicata. Thus, where a writ of habeas corpus has been refused by the High Court under Article 226 of the Constitution, the petitioner may file an independent petition before Supreme Court for the same writ under Article 32 of the Constitution.

Similarly, if a person under detention files a writ of habeas corpus under Article 226 before the High Court and the writ petition is dismissed, whether by a detailed order after considering the case on merits or by a non-speaking order and the said decision is not challenged by preferring a special leave petition (SLP) under Article 136 of the Constitution and allowed to become final it would still be open to the petitioner to file an independent petition under Article 32 of the Constitution seeking a writ of habeas corpus. (T.P. Moideen Koya v. Government of Kerala, AIR 2004 SC 4733).

However, in K. Vidya Sagar v. State of Uttar Pradesh, AIR 2005 SC 2911, it was held that if a petition for issuance of the writ of habeas corpus is dismissed by the High Court and the special leave petition against the same is also dismissed, a petition under Article 32 of the Constitution, seeking the same relief would not be maintainable.

In the case of State of Punjab v. Davinder Pal Singh Bhullar, 2011 14 SCC 770, Supreme Court held that a second writ petition for issuing a writ of habeas corpus, when the first writ petition was rejected is barred by res judicata.

However, there may be certain exceptions to the rule that a person was not aware of the correct facts while filing the first petition or the events have arisen subsequent to the making of the first application.

The Court must bear in mind that the doctrine of res-judicata is confined generally to civil action but inapplicable to illegal action and fundamentally lawless order. A subsequent petition of habeas corpus on fresh grounds which were not taken in the earlier petition for the same relief may be permissible.

Hence, in view of the decision given in State of Punjab v. Davinder Pal Singh Bhullar, 2011 14 SCC 770, it can be said that the doctrine of constructive res judicata is not applicable to the writ of habeas corpus.

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