What is Habeas Corpus?
Habeas Corpus is a legal order requiring the authorities to bring a detained individual in court. The court determines whether the individual is legally incarcerated. If a person is determined to be in jail illegally, they are released.
This assures that no one’s freedom is revoked without following the law.
Who Can File a Habeas Corpus Petition?
A habeas corpus petition can be filed by the individual imprisoned illegally, as well as their friends, family, and relations. If the court determines that someone is being held illegally, it has the authority to order their release.
Can Habeas Corpus be filed against anyone?
It can be brought against any individual, organisation, or authority that illegally imprisons someone.
Constitutional and Legal Provisions
According to Nepal’s Constitution, personal freedom can only be taken away by legislation.Courts have ruled that if there is no valid grounds for incarceration, the individual must be released.
Key Questions for a Habeas Corpus Application
- Is the detention lawful?
- Does the authority have a legal right to detain?
- Who ordered the detention?
- Were all legal procedures followed while detained?
- Is the statute under which the individual was held constitutional?
Conditions for granting Habeas Corpus
- If there is no lawful basis for detention.
- If there is an error with the jurisdiction.
- If there is no legal basis for the detention.
- If the required legal processes were not followed.
- If the detention was conducted with malice or prejudice.
- If the reason for detention is not explained.
- If incarceration persists despite a court order for release.
- If the statute under which the individual is detained is unconstitutional.
- Conditions for not granting Habeas Corpus
- If the inmate has already been released.
- Detention may be extended legally while continuing legal proceedings.
- If facts must be determined by reviewing the decision’s reasoning.
- If an individual is detained for questioning.
- If alternative legal processes offered by law prove ineffectual.
If the detention centre is changed but the new detention remains legal. - If the imprisonment is carried out by an authorised entity under the law.
If the petition is submitted before the order matures. - If the act does not breach any of the legal provisions claimed.
- If a different court is handling the case under parallel jurisdiction.
Key Points
- The primary goal of habeas corpus is to defend personal liberty and ensure legal detention.
- Anyone linked to the detainee may file a habeas corpus petition.
- Courts will release individuals if their detention is deemed unlawful or intentional.
- Lawful detention requires adhering to specific procedures and restrictions.
Conditions for issuing an order of habeas corpus writ
- Detention without legal authority (Khil Bahadur Giri v. District Police Office, Kathmandu, NeKaPa, p 427, Decision No. 4529; Dal Bahadur Malla v. Myagdi District Court, NeKaPa 2052, p42, Decision No. 5033).
- If there is a jurisdictional error in the detention processes (Ali Akbari V. Sadarkhor department, dillibazar, NeKaPa 2049, p105, judgement numer 4463, Khilal Devkota’s place, his wife).
- Laxmi v. Ministry of Defence and others (NeKaP 2059, p483, decision num 7115).
- If there is no legal justification for detention (Amber Bahadur Gurung v. Tri. Bi. Suraksya police guard, NeKaPa 2049, page 31, decision number 4450).
- In the case of Krishnadhoj Khadka v. Ministry of Law and Justice (NeKaPa 2055, p195, decision numer 6530) and his wife Laxmi v. Ministry of Defence and others (NeKaP 2056, p638, decision num 6775), not following the prescribed procedure can result in legal consequences.
- According to Bikram Malla v. District Administration Office, Kathmandu NeKaP 2051 p847, decision numer 5000 and Tilu Ghale v. District Administration Office, Kathmandu NeKaP 2051, p 890, decision numb. 5007, detention may be motivated by malice or revenge.
- If the basis for detention is not given (Maya Pathak v. Ministry of Defence, NeKaP 2053, p334, judgement no. 6182).
In Sharmila Tripathi v. Ministry of Secretariat and others (NeKaP 2060, P618, Decision numb. 7252) and MinaKumari Waiba v. Ministry of Defence and others (NeKaP 2061, p479, Decision numb. 7371), re-applying the habeas corpus writ is not prohibited. - According to Sitaram Agrawal v. District Administration Office, Kathmandu NeKaP 2052, p597, judgement no. 6038, imprisonment may continue even if it violates the law.
- If the law under which Rajiv Parajuli is detained is unconstitutional (Sanjiv Parajuli v. Bhra. Ni. Sahi Commission, Supreme Court Bulletin 2062, Falgun).
- In the case of Ali Akbari v. Sadarkhor Department, Dillibazar, NeKaPa 2049, p105, judgement numer 4463, and Amber Bahadur Gurung v. Tri. Bi, individuals were detained in prison for asking questions.
- Suraksya police guard (NeKaPa 2049, page 31, decision number 4450), Chandra Bahadur Sharki (Kathmandu District Court, NeKaP 2048, p24, decision number 4248), Newag Lama (Kathmandu District Court, NeKaP 2049, p174, decision number 4477), Tashi (Immigration Department, NeKaP 2050, p260), and Manbahadur Chauhan (NeKaP 2054, p408, decision number 6414).
- If other legal processes are ineffectual (Ali Akbari v. Sadarkhor department, dillibazar, NeKaPa 2049, p105, judgement 4463).
- In Chetnarayan Kharel v. Tax Office (NeKaP 2050, P624, Decision Numb. 4812), the authorised body imposed imprisonment in conformity with the law.
- Because the petition was submitted without the order, it has not reached the mature stage.
- Because the act lacks a provision, it cannot be considered in violation of Thunuwa Purji 121. (Kamal Prasad Bastolla v. Special Polic Offfice, NeKaP 2049, p349, ruling no. 4511).
- Seeking remedies from another court through parallel jurisdiction. If the proceedings are incorrectly mentioned (Appellate Court Directives Rule 23(a) and Supreme Court Directives Rule 40(b)).
