The Common Law in India - College of Social Sciences and ...

88 The Common Law in Indiaoutlawed or exiled or in any manner destroyed butby the lawful judgment of his peers or by the lawof the land." 4I The writ has been described as " thekey that unlocks the door to freedom." It has itsorigin in the common law though its effectiveness hasbeen increased by statutory provisions. It will beinteresting to follow the development of this characteristicfeature of the common law in India.The jurisdiction to issue this writ appears to havebeen first conferred on the courts in India when theSupreme Courts were established by the RegulatingAct of 1773. Clause 4 of the Charter of the SupremeCourt at Fort William in Bengal gave such jurisdictionto the justices as the Court of King's Bench maylawfully exercise in England by the common law whichincluded a power to issue this writ.Ameer Khan, a Mahomedan subject of the Crown,having been arrested in Calcutta and taken into themofussil, a question arose in 1870 in the High Courtof Bengal whether the power of the Supreme Courtto issue writs of habeas corpus was confined to thePresidency Towns or extended to the mofussil. Thematter depended on a construction of the Charter of1774. Justice Norman asserted that " The mostprecious of all rights which a British subject possesses,is the right of personal liberty, and if the Charterhad contained no words providing any machinery bywhich that right could be vindicated, it could hardlyhave been said to provide for the due administrationof justice, in such manner as the condition of theCompany's Presidency at Fort William in Bengal« Greene v. Secretary of State [1942] A.C. 254, at 301.