What is a writ and its various types
A writ is generally used to protect the rights of an individual or to ensure the proper functioning of the system of justice. When a writ petition is filed, a court of higher rank demands the lower court to take a particular action to preserve the rights of a country and its citizens. Broadly classifying, there are several of types of writs in the judicial system; a few of these are discussed below.
The general Writ of Habeas Corpus definition states that a person should be released from detention if a writ is filed to present the defendant in court so as to argue the petitions filed in the charge sheet. The writ preserves the right of a citizen from being arrested unlawfully.
The phrase ‘Habeas Corpus’ is derived from the Latin language which means ‘You have the body”. If the detention does not have any legal basis, it will be annulled by the court, which should be respected by the detaining person or authority. It is also used when the life of a person is in danger following improper jail conditions or other risks during detention.
Definition of the writ of habeas corpus
As the name suggests, the writ of prohibition is used by a body with administrative or judicial jurisdiction to prohibit a lower court from taking action on a particular case. The higher court will consider the case following this. This writ is used when it occurs that the lower court is outside jurisdiction to handle the particular case.
This writ is used to make sure that the Government system and its officers are following their duties properly. An administrative body of higher rank gives the writ of Mandamus to a subordinate court, corporation or public authority to demand additional care to be given on their duties and functions. The concerned authorities are required to forbear from doing certain acts that are unlawful.
Unlike the above-mentioned writs, this writ is filed by the lower court. It is used when a subordinate court finds that the decision made by a superior court appears to be inapt. The higher court will then be asked to review the decision it made and take required actions to fix it or take it back.
The parliament sometimes exercises the ‘dropping the writ’ where the parliament dissolute and begins an election campaign to form a new writ. The writ of habeas corpus definition is the most referred writ in the judiciary system.
How to file a writ of Habeas corpus petition
Habeas Corpus is a writ or procedure that protects a person from illegal detention by another person(s) or other authorities by being ordered to appear in court to argue their case against such a detention. In such case, the holding authority has to comply with the court’s ruling and present the detainee failing which he or she could be tried for contempt. Although usually used in criminal cases, this procedure can be also used for family law disputes. The writ of habeas corpus is a protection force against violation of a person’s fundamental right of freedom.
For example, a parent can try to secure the custody of a minor child if it happens that the other parent has taken illegal custody of the same. Thus, according to the writ of habeas corpus definition, the dispute will have to be taken to court and the arguments of both parents will be heard.
Given below are the guidelines to file a family law based writ of habeas corpus:
Steps for filing the writ in family law cases
- Consult a lawyer and discuss your case. The lawyer will then prepare a case and decide how the petition will be filed.
- Verify which court has jurisdiction to hear your writ. The Supreme Court has jurisdiction to hear the writ in New York and the Superior Court in Georgia.
- Fill the writ with all the required details. The case petition is to be written at the top of the writ defining the various fields. The writ of habeas corpus definition should include the name of the court, the county and the state from where you are filing the petition.
- In the “Petitioner” field, write your name. Fill in the “Respondent” field as “v. [Person wrongfully detaining child]“.
- Center the title and write it under the case caption. Label the title as “Petition for Habeas Corpus.
- Mention the reasons for filing the writ. Write in detail the events the occurred that made you file the case. Mention about yourself and how your child was wrongfully detained.
- Take a copy of the petition and send it to the clerk in the court who has jurisdiction.
- Along with the petition, mention the details of the current location of the respondent so that the court can send a notice and a copy of the document.
A minimum of ten days is granted to the defendant to appear before the court along with the detainee.
How to File a Petition for Habeas Corpus
The term Habeas Corpus is a Latin word which actually means “you have the body.” Nowadays it guards the rights of each citizen when it comes to unlawful custody. No one has the right to hurt your physical integrity by keeping you in custody without fair and solid evidence. The writ of habeas corpus definition is a legal instrument that proves time and again to be confusing to most of us. The accused prisoner or his lawyer files a petition of habeas corpus when he would like the court to issue hear a case against the detention of a person. The court will then have to decide if the detention is permissible under law. Habeas corpus petitions are treated by court with higher priority than any other civil case and are placed at the top of court dockets.
Learning how to file a habeas corpus petition is simple once you familiarize yourself with how the legal system works. In this article, you will learn step by step procedure to file a habeas corpus petition!
Instructions to file a petition for habeas corpus:
introduction to habeas corpus
- First you need to make sure that the habeas corpus form you have acquired is authentic. You can purchase the original habeas corpus form from either the federal court or the state court.
- Study the form thoroughly. In the form you will find provisions to enter the details of the prisoner and those of the person representing him.
- The habeas corpus petition can be filed in cases where a person has had to suffer illegal imprisonment, when probation is unfairly denied or when bail is due. Depending on the issues of the case, prepare a statement that is to be addressed to the court.
- As the next step the court will either issue a writ of habeas corpus definition that includes a hearing of the petition filed with the presence of the detaining authority and the detainee or decline the petition altogether. The authority against which the writ has been issued needs to respond within 10days.
So it is always safe to have a good idea of the legal system before applying habeas corpus petition and in fact, any other legal adventure for that matter. You can avail more information about the topic online. Students of law need to go through this very important aspect of law in detail by going through previous judgments on the same.
The basics of Habeas Corpus
Habeas Corpus is a writ or procedure that protects a person from detention by other person or other authorities by being ordered to appear in court to argue their case against such a detention. The detention, if not having any legal basis will be annulled by the court which should be respected by the detaining person. The phrase ‘Habeas Corpus’ is derived from the Latin language which means ‘You have the body”.
This is the general summary of the writ of Habeas Corpus definition. The law includes various guidelines and protocols which have been detailed through successive judgments. These should be strictly followed; only when the petition has valid arguments will the defendant be allowed free and only with cause will the court allow the detention to be extended. The defendant may seek the help of an attorney to file the petition. The writ is a fundamental right of freedom for the defendant to act against the arbitrary and lawless state action.
Writ of Habeas Corpus definition
The writ is the part of a person’s fundamental right against unjust actions taken against him by the state or any other person. The law originated during the 1400’s in the English common law. The law preserves the right of convicted persons to act against any forced detentions that are influenced using the powers of the Government and Politics.
The petitioners are not allowed freedom with the help of the writ unless they can establish that the detention happened following errors from the judiciary or the government authorities. This law is sometimes misused by convicted criminals to bail out after successfully establishing a false view of the case with the help of a lawyer.
Habeas Corpus in US
The writ of Habeas Corpus has been allowed to all prisoners under the Federal government. All jurisdictions under the Federal government are required to strictly allow defendants to file the writ under almost all conditions. The writ is suspended in a few cases including the ones that affect the security of the nation or political imbalances.
The Federal court has no supervisory authority over the criminal proceedings in State courts. The State courts have the power to reject the intervention of Federal Courts in a writ. There have been a number of cases in the U.S in recent years where the Habeas Corpus writ was passed and the petitioner was granted freedom from detention.
The Habeas corpus is a constitutional right and is one of the most fundamental laws that protect the rights of a citizen. More articles on the writ of Habeas Corpus definition will be posted later. Keep reading!
more on Habeas Corpus suspension
Writ of Habeas Corpus Definition-Habeas Corpus is an important legal formality that protects the individuals from unauthorized or unlawful detainments. It is an important fundamental right of a citizen. An individual who is detained or put in jail without credible reasons can file a writ petition to the court demanding the reason for detainment. After going through the writ petition, the court sends a statement to the authorities regarding the reason for detainment. The legal order or statement is known as the Habeas Corpus writ. This article will let you know more about the different aspects of Habeas Corpus.
After issuing of Habeas Corpus
The authorities can no longer detain an individual after court has issued a Habeas Corpus. The authorities should produce the individual before the court in order to conduct a trial regarding the reason for detainment. The trial is very crucial for both the individual and the authorities. The authorities should place valuable and credible evidences to support the act of detainment. If the court finds the act of detainment unlawful, it can declare the release order of the individual. This is how Habeas Corpus safeguards the rights of the individual. It is the duty of the detaining authority to present the individual before the court, after he/she has been caught for an illegal activity.
The Source of Habeas Corpus
The law is clearly stated in the Article 1 of constitutional laws of United States of America. According to the law “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”. The law is against all the unauthorized imprisonments but hints about an act of suspension of the law at the end of the statement.
Suspension of Habeas Corpus
various aspects of Habeas Corpus
The benefits of the law cannot be utilized when it comes to acts like terrorism. A person detained for the indulging in terror activities cannot file a Writ petition before the court. The Antiterrorism and Effective Death Penalty Act was implemented to support this cause. In 2006, the Bush Government signed the Military Commissions Act. According to the act, the President has the supreme authority to look over the matters related to the detainment of an individual who is suspected for indulging in terror activities.
Hope you like the article. Now send in your feedbacks related to the same in Writ of Habeas Corpus Definition topics.