ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Habeas Corpus and Preventive Detention

The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth by David Clark and Gerard McCoy; Oxford University Press, £ 50; pp 316.

"The he habeas corpus is the single advantage which our government has over that of other countries”, Samuel Johnson told James Boswell in 1769. Far more extravagant praises combined to build a myth that concealed the limitations of the great and ancient writ. David Clark of Flanders University in Australia and Gerard McCoy, a Q C of the New Zealand Bar, did not set out to debunk the myths. Their work, the first of its kind, explores the writ against a Commonwealthwide canvas. India receives full attention and Indian statutes and case law are insightfully discussed.

They write: “The writ of habeas corpus is famous not least because of its part in the important constitutional struggles in England in the 17th century but also because ever since then famous people have applied for the remedy – and in some cases ordinary people have become famous by having done so. Part of the fame that attaches to habeas corpus may be attributed to its continuing role in conflicts that are often political in origin. One thinks of its centrality during wartime and other emergencies, and in matters that naturally tend to attract publicity such as deportations, refugee matters, and in the US, its role in death penalty cases... the remedy is almost guaranteed to be at the centre of disputes where extensive powers to detain are created and used, and although a Latin term, it seems to have slipped into popular consciousness. The remedy, or at least the phrase ‘habeas corpus’ has featured in films, plays, and literature – though it should be observed that the term as used in these media often has nothing to do with either the securing of a person from illegal detention or with an inquiry into the legality of custody.”

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