Habeas corpus, popularly called the “great writ of liberty,” is one of the fundamental laws that guarantee individuals protection of personal freedom from any unlawful or arbitrary detention. It is an essential instrument of doing justice according to the rule of law and thus the cornerstone of every constitutional democracy in the world, including Nepal. The phrase originates from the Latin “habeas corpus,” which means literally, “you shall have the body.” By this law, a person who has been unlawfully detained or imprisoned may have recourse to a court of law to challenge that detention. Keeping all the constitutional and other legal provisions provided for the protection of personal liberty in Nepal in mind, habeas corpus is a prominent instrument in the dispensation of justice, human rights, and the accountability of state organs.  

Nepal, as a constitutional democracy, has solemnly ethical considerations of habeas corpus incorporated into the legal arrangement by virtue of Article 133 of the Constitution of Nepal, 2015. Under this provision, every person shall have the right to present a habeas corpus petition before the Supreme Court or the High Courts against illegal detention. 

The primary aim of the doctrine is to protect any authority, be it the government or some private entity, from infringing upon the freedom of the individual without legally acceptable justification. Habeas corpus has always been viewed by the courts in Nepal as a protection against arbitrary detention so that no one is sent to detention unlawfully.

Next to life, personal liberty is perhaps the highest right appreciated by mankind. Article 3 of the 1948 Universal Declaration of Human Rights states: “Everyone has the right to life, liberty and security of person,” which basically underscores this personal liberty. Article 9 of the International Covenant on Civil and Political Rights (ICCPR), to which Nepal is a party, states, “No one shall be subjected to arbitrary arrest or detention” and goes on to say that “anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” These provisions and many others have formed part of Nepal’s law and thus come under the obligations of the state to respect and enforce human rights. The Constitution of Nepal goes a further step in protection of personal liberties. It grants freedom under article 17: “No person shall be deprived of personal liberty without the due process of law.” Article 20 seeks to do justice requiring that persons arrested are informed of the reasons for their arrest and are able to access legal counsel and be produced before a judicial authority within 24 hours of their detention. In addition, article 22 specifically prohibits torture and inhumane treatment and allows for access to remedies for the victims of such wrongful acts. These protections under the constitution find additional expression in the National Penal Code of 2017 making acts such as unlawful detention, secret detention or detention under inhumane conditions punishable. Provisions for compensation to the victims of unlawful imprisonment are proof enough of how Nepal stands for the violations of personal liberty.

Nepal’s habeas corpus mechanism suffers from various hurdles for effective implementation despite these solid legal frameworks. Arbitrary detention has continued to be a concern in times of political unrest or emergencies. The authorities have consequences on dissent and political opponents using preventive detentions as constitutional law in Article 23 allows whereas these purported preventive detentions have not always been justified by evidence or due process constituting a clear violation of the fundamental rights of the individuals. The situation worsened because of the general unawareness of the citizenry about such rights and the habeas corpus mechanism. Many persons more so in rural or marginalized communities- are unaware of their right to seek justice for unlawful detention or have no means to access relevant legal aid. Another major undermining factor is delay in the judiciary. Though the Constitution prescribes that habeas corpus be acted upon without delay, inefficiency effectively causes prolonged detention without recourse. Limited judicial resources, backlogged courts, and procedural complexity would have all had a hand in the delays, thus limiting, if not incapacitating, the efficacy of habeas corpus as a remedy. There have also been recorded incidents of noncompliance of the judicial orders by law enforcement agencies, which further testify to the need for mechanisms that would enhance accountability for and adherence to the rule of law.

The challenges can be addressed by proposing several solutions. The foremost among these solutions relates to public-awareness campaigns geared towards educating the citizenry about their constitutional rights, especially the remedy of habeas corpus against unlawful detention. Legal aid services must extend in rural and economically backward areas to ensure that a person of any economic status has access to justice. Investment by the government to strengthen the judiciary with more judges, court infrastructure, and procedures ensuring the speedy hearing of cases is recommended. In addition to this, there should also be an implementable oversight mechanism to monitor law enforcement agencies and prevent their misuse. Training for policemen and other authorities must promote understanding and respect for human rights and the rule of law. Thus, independent bodies also have to be set up for the investigation of complaints regarding unlawful detention and ensure accountability for violations. In addition, a judiciary needs active enforcement of its own orders and punishment against the non-obedience so that the dignity of the system itself is upheld. 

Consequently, the most vexing problem is to strike that proper balance between civil liberty and national security. In case of disturbances to public order or national sovereignty, preventive detention can be justified by authorities under Article 23 of the Constitution. Such measures should be resorted to only in very exceptional circumstances, and when so warranted, the law must ensure proportionality and due process in their application. Clear guidelines defining the extent of powers that can be exercised in the context of preventive detention will mitigate the risk of misuse of those powers, while an independent and regular system of judicial review should be maintained. For constitutional provisions, legislative framework, and compliance with international human rights standards are indicators of the commitment of the state of Nepal to uphold the rule of law and personal liberty. The realization of these safeguards can only be through the vibrant synergy of government, judiciary, civil society, and the citizens of Nepal. Only collective vigilance will make the promise of habeas corpus as an instrument for justice and the curtailing of abuse a reality.