Plea to 'trace' jailed Arvind Kejriwal stirs debate

NEW DELHI: Arvind Kejriwal's decision to challenge his detention in Tihar through a habeas corpus petition has triggered a debate in legal circles.

A habeas corpus (seeking the body of a person) is filed in a case of illegal detention when the person has gone missing and court's intervention is needed to trace him. However, in Kejriwal's case he was dispatched to Tihar Jail by a judicial order because he refused to fill bail bonds.

Although the Delhi high court resolved the immediate crisis for AAP by nudging the former chief minister to furnish bail bonds and gain his freedom, the wider issue of approaching the court by way of a habeas corpus has come in for criticism.

Legal experts TOI spoke to said Kejriwal's plea sets a bad precedent because it will mean every person sent to judicial custody by a court order may question his jail term as illegal and file a habeas corpus. It is settled law that habeas corpus petitions are not maintainable against an order passed by a court. They also wondered why the HC bench entertained his plea and granted a detailed hearing on the issue.

"A habeas corpus (produce the body) is filed when the whereabouts of a person are unknown and either he is missing or the petitioner has reason to believe the person is in illegal confinement. But in Kejriwal's case he himself offered to go to jail by refusing to furnish the bond. By no stretch of imagination can it be termed illegal confinement because he appeared and submitted to the magistrate's jurisdiction," former Delhi HC judge, Justice S N Dhingra said.

Justice Dhingra was also critical of the HC for entertaining the AAP leader's plea. "Our courts it seems have a lot of time. They are unable to hear appeals pending for years but just because a former chief minister filed a plea, so much time is devoted to it," he remarked.

Senior advocate Sanjay Jain also expressed surprise that Kejriwal filed a habeas corpus instead of challenging the lower court's order to deny him bail.

"He is not in illegal custody nor is he missing. He voluntarily went to jail. His petition should have been dismissed at the outset and he should have been asked to approach the magistrate. That is the normal procedure courts adopt in the case of a common man," Jain explained.