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

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

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Answer

The question relating to res judicata in the habeas corpus petition was considered by the Supreme Court in several cases. This question was examined in considerable detail by a Constitution Bench in Ghulam Sarwar v. Union of India and Ors. (AIR 1967 SC 1335).

In this case, the petitioner who was detained under Section 3 (2) (g) of the Foreigners Act 1946 filed a petition for issuing a writ of habeas corpus which was dismissed by a learned Single Judge of the High Court, and the said judgment was allowed to become final.

Thereafter the petitioner filed a writ petition under Article 32 of the Constitution in the Supreme Court praying that he may be set at liberty. Subba Rao, CJ, after referring to the Daryao v. State of U.P. (supra), in Re Hastings (2), 1958 3 All ER 625, in Re Hastings (3), 1959 1 All ER 698 and some other English and American cases held, as under:

“The principle of application of res judicata is not applicable in Writ of Habeas Corpus, so far as High Courts are concerned. The principles accepted by the English and American Courts, viz., that res judicata is not applicable in Writ of Habeas Corpus holds good.

But unlike in England, in India the person detained can file an original petition for enforcement of his fundamental right to liberty before a Court other than the High Court, viz., the Supreme Court.

The order of the High Court in such a case will not be res judicata as held by the English and the American Courts because it is either not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order.”

Hence, this principle, namely, the bar of res judicata or principles analogous thereto would not apply to a writ of habeas corpus where the petitioner prays for setting him at liberty.

If a person under detention files a writ of habeas corpus under Article 226 of the Constitution 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 under Article 136 of the Constitution and is allowed to become final, it would still be open to him to file an independent petition under Article 32 of the Constitution seeking a writ of habeas corpus.

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