ASSIGNMENT ON:

CRITICAL ANALYSIS ON THE WRIT OF HABEAS CORPUS

COURSE TITLE: ADMINISTRATION LAW

COURSE CODE: LAW-304

SUBMITTED TO: MS. AZIZUN NAHAR

ASSISTANT PROFESSOR
DEPARTMENT OF LAW AND HUMAN RIGHTS
UNIVERSITY OF ASIS PACIFIC.

DATE OF SUBMISSION: 7 APRIIL, 2021.

 INDEX
NO. REGISTRATION NAME OF PARTICIPATION
NO. THE PARTICIPANTS
1. 18211001 ATEEA SHREEN RATRI MERITS OF WRIT OF HABEAS
CORPUS.
2. 18211002 RUMANA HELALI AZAD DEFINATIONS, FINDINGS AND
REMIDIAL GROUNDS OF THE WRIT OF
LIMA HABEAS CORPUS.
3. 18211003 ANISUR RAHMAN DEMERITS OF WRIT OF HABEAS
CORPUS.
4. 18211004 TANIMA ISLAM ALIF (GL) THE WRIT OF HABEAS CORPUS IN
BANGLADESH CONTEXT,
CONCLUSION AND
RECOMMENDATION.
5. 18211005 MD. SHAREAR SARKER PROCEDURE TO APPLY FOR WRIT OF
HABEAS CORPUS, DUTIES ARISING
FROM THE APPLICATION OF WRIT OF
HABEAS CORPUS AND REMEDY OF
THE WRIT OF HABEAS CORPUS.
6. 18211007 JOITA SARKAR GROUNDS FOR THE WRIT OF HABEAS
CORPUS AND NON-AVAILABILITY OF
THE PROTECTION OF THE WRIT OF
HABEAS CORPUS.
7. 18211008 SHALAHIN TARAQUE HISTORICAL CONTEXT AND
OBJECTIVE OF THE WRIT OF HABEAS
CORPUS.

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CRITICAL ANALYSIS ON WRIT OF HABEAS CORPUS

An American Economist said that “The State is a gang of thieves writ large – the most
immoral, grasping and unscrupulous individuals in any society.”

Writ Petition is a legal instrument of the superior courts for providing remedies to persons
against the arbitrary or illegal actions of any authority or the lower court. The literal meaning of
writ is a written order or a written command or precept or formal order issued by a competing
court in order to direct a person or persons to whom it is addressed to do or refrain from doing
some specific act.

 DEFINITION OF WRIT OF HABEAS CORPUS:

Writ of Habeas Corpus is an ancient writ under Common Law which indicates to have the body
before the Court. It is a kind of protection against unlawful and indefinite imprisonment which has
been developed in the form of order of the Court to release a person who has been detained
unlawfully. Basically it is issued to a detaining authority to submit the detained person before the
court in order to know the cause of detention; and if the detention is found to be illegal, then the
Court has authority to issue an order to set the person free. For Example - A detained person can
file The Writ of Habeas Corpus in The High Court Division of The Supreme Court of Bangladesh
as per Article 102(2)(b)(i) of The Constitution of The People’s Republic of Bangladesh in order
to be brought before the Judge for knowing the reason of detention.

FINDINGS FROM THE CONCEPT OF HABEAS CORPUS:

i) Writ of Habeas Corpus works as a protection in favor of personal liability and freedom
of individual.
ii) It is available against the unlawful and indefinite detention by public authority.
iii) The High Court Division has power to direct the authority for bringing the body of the
prisoner before The Court.
iv) Here the Court decides the legality of detention
v) The Court can direct the authority to release the prisoner if it is unlawful.

REMIDIAL GROUNDS UNDER THE WRIT OF HABEAS CORPUS:

i) An illegal restriction upon the petitioner’s liberty.
ii) Absence of Court Order of detention.
iii) Concealment of identity of the detaining authority.
iv) Hiding the location of custody.
v) Deficiency of plain, speedy and adequate remedy in Law.

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It is found in Aruna Sen vs Government of Bangladesh case that the detention of Chanchal Sen
by the Rakkhi Bahani was challenged through the writ petition under Article 102(2)(b)(i) of the
Constitution of The People’s Republic of Bangladesh by his mother after finding him in miserable
condition in the police custody where The High Court Division set a precedent against unlawful
and preventive detention.

 HISTORICAL CONTEXT OF THE WRIT OF HABEAS

CORPUS:
It is hard to certainly identify the origin of the writ of Habeas Corpus as a variety of writs performed
some of the functions of this Writ before the establishment of Magna Carta in 1215.
The modern history of the writ as an instrument for the protection of personal liberty against the
arbitrary action of public authority was found from the reign of Henry VII (1485–1509) when it is
employed on behalf of persons imprisoned by the Privy Council. In its continuity, the writ was
fully established in the 17th century as the congenial procedure for checking the illegal
imprisonment of people by inferior courts or public officials.
In India, the jurisdiction to issue prerogative writs came with the establishment of Supreme Courts
at Calcutta, Bombay and Madras under the Regulating Act, 1773. On abolition of Supreme Courts
and establishment of High Courts, the said power had been conferred on High Courts. Accordingly,
the Supreme Court and all The High Courts have gotten power to issue a writ of Habeas Corpus
under Article 32 and Article 226 of The Constitution of India.
In Bangladesh, the jurisdiction to issue writ has been vested in the High Court Division under
Article 102 of the Constitution. In the case of filing a writ petition in the High Court Division,
there must be violation of fundamental right which is given in the Part III of the Constitution of
Bangladesh and the same has been emphasized and guaranteed by Article 44 of the said
Constitution. Article 102(2)(b)(i) of The Constitution of The People’s Republic of Bangladesh
is concerned with the Writ of Habeas Corpus for checking the illicit detention of people by the
public authority and illegal imprisonment by the inferior court.
It is found in the case of Sentu vs The Government of Bangladesh that the conviction and
sentence of 10 years imprisonment and fine, passed by the Trial Court under the section 3 of the
Explosive Substance Act, 1908 against Mokles, Mir and other accused in their absence was
declared illegal and unlawful by The High Court Division on Writ Petition filled by the accused
persons by showing the ground that it violated the provision of Section 27(6) of The Special
Powers Act, 1974.

 OBJECTS OF THE WRIT OF HABEAS CORPUS:

The main object of the writ of Habeas Corpus is to provide a quick and effective remedy against
illegal detention in order to release a person from it. Thus Lord Wright states concerning the object

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of the writ of Habeas Corpus that the incalculable value of habeas corpus is that it enables the
immediate determination of the right of the appellant’s freedom. In conclusion of the statement of
Lord Wright, it is found that if the court observe any illegality and unlawfulness in detaining any
person, then it can pass an order to release the person immediately. On the basis of this, it is found
that the writ of Habeas Corpus deals with the Question of Legality.

WRIT OF HABEAS ON QUESTION OF LAW:

When Courts provide a quick and effective remedy against illegal detention, the following issues
are raised in front of the Court:
i) Whether the person can issue the writ or not?
ii) Whether the subject is unlawfully detained by any public authority?
In order to file writ petition under Habeas Corpus, the person must illegally be detained with
showing no cause or with showing inappropriate cause. In such situation, either the prisoner
himself or any other person related to him can file application for the writ of Habeas corpus to The
High Court Division. But, the applicant cannot be a total stranger; rather it can be the Husband,
Wife, Father, Mother, Sister, Brother or a Friend. In addition, writ of Habeas Corpus is also issued
against the order of conviction which is given wholly without jurisdiction.

 GROUNDS FOR THE WRIT OF HABEAS CORPUS:

Writ of Habeas corpus generally file in the following grounds:
i) When a person is detained without any violation of Law.
ii) When a person is detention and not produced before the Magistrate within 24 hours.
iii) When a person gets detention which is unconstitutional.

A PERSON DETAINED WITHOUT ANY VIOLATION OF LAW:

Sometimes a person may be detained without any charge or without any conviction order given by
any competent Court, but on the apprehension in the mind of the Executive Authority that the
person may commit any act which is harmful to the public interest. For example - The government
authority can arrest anyone under The Special Powers Act, 1974 on the basis of their doubt that
the person may be involved in any illegal activities. But if the person is not submitted before the
court thereafter for the justification of his detention, then the opportunity of writ of Habeas Corpus
has created in favor of the detained person.

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A PERSON DETAINED AND NOT PRODUCED BEFORE THE MAGISTRATE
WITHIN 24 HOURS:
When any Law Enforcement Agency of The Government arrest a person, they become dutiful to
represent the person in front of the Magistrate within 24 hours which is reflected in Article 35 and
Article 33 of The Constitution of Bangladesh, Section 154 of The Code of Criminal Procedure,
1898 and in the case of BLAST and Others vs Bangladesh and Others. If the direction is not
followed properly then the opportunity of writ of Habeas Corpus has been created.

A PERSON GETS DETENTION WHICH IS UNCONSTITUTIONAL:

The Right to Life and Personal Liberty is protected as one of the Fundamental Rights in favor of
the citizens of Bangladesh under Article 32 of the Constitution which shall not be violated by
any person or any authority by going beyond Law. Thus, an adult person is authorized to live
his/her life in their own way by maintaining Laws and Order of the State for the time being in
force. In the case of absence of adequate remedy to the violation of any of the Fundamental Rights,
the protection under writ petition shall be disclosed.
It is found in Dr. Shipra Chaudhury vs Bangladesh case that petitioner Shipra, being the cousin
of the detainee, tried to rescue her from emotional and psychological pressure, physical torture and
detention caused by her parents due to be married against their will through the writ of Habeas
Corpus as the administrative authority served no positive action towards her compline where the
Court mentioned freedom of every human being irrespective of sex as universally recognized and
forced marriage as not permissible.

NON-AVAILABILITY OF THE PROTECTION OF THE WRIT OF HABEAS CORPUS:

SUCCESSIVE APPLICATION THE TIME OF EMERGENCY

i) SUCCESSIVE APPLICATION:
It was accepted in England for many years that an unsuccessful application could go from Judge
to Judge and from Court to Court successively and got to be renewed on the same evidence and
on the same grounds for the writ of Habeas Corpus. But, now those earlier view was overruled. In
present time, a person has no right to present successive application for the writ of Habeas Corpus
if there are no new and fresh ground.

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 ii) THE TIME OF EMERGENCY:
At the time of emergency, the violation of fundamental does not arise any authority in favor of the
people to legally fight for it. Accordingly, no person can exercise the right to file an application
for the writ of Habeas Corpus in The High Court Division during the time of Emergency.

 PROCEDURE TO APPLY FOR WRIT OF HABEAS CORPUS:

Habeas corpus is a procedure by which The Court may review the legality of an individual's
incarceration. There are some series of actions which shall be conducted in a certain manner in the
case of claiming protection under the writ of Habeas Corpus.
CONSIDERABLE MATTER IN THE COURT:
When an Application is submitted to the Court for the Writ of Habeas, the Court may take the
following matters under consideration
i) Consider the fact and circumstances from the attachment.
ii) Behold the prima facie case.
iii) Issue Rule Nisi or not.

Every Application for the writ of Habeas Corpus must be attached by affidavit which is stating the
facts and circumstances leading to the Application. Thereafter, the court tries to behold the prima
facie case of the writ on what it is depended to be accepted or not to be accepted. After accepting
the Application for writ, it may further issue the Rule Nisi in order to direct the person or authority
to show cause as to why rule should not be made absolute and the person who are in imprisonment
should not be released from detention. Then the court will figure out the merits of the case and
pass an appropriate judgment on a fixed date. If the court decides that the detention was unlawful,
then it will issue an Order and instruct the detaining authorities to release the detainee immediately.
On the other hand, when the court found that the detention was justified, then the Rule Nisi will
be dismissed. In exceptional circumstance, a petition for writ of Habeas Corpus is maintainable
even if the person is not in the prison. In such case, it will fully be relied on the decision of the
concerned Court taking with extreme care, caution and circumspection.
It is found in Government of Bangladesh vs Ahmed Nazir case that the petitioner Ahmed Nazir
filed an Application for writ petition by challenging the legality of the order of detention of A.K.M.
Golam Kabir under Section 3(1/a) of the Special Powers Act, 1974. The Court had issued a Rule
on 22 July, 1974 calling upon the appellant to show cause within seven days before the Court as
to why an order should not be made by directing that the detainee be brought, so that it may satisfy
itself that he is not being detained without lawful authority or in an unlawful manner. But question
of security of State is a matter of concern to Judiciary as it is an organ of the State through which
it functions. Thus in dealing with an Application for bail of a person, who is detained on account
of his alleged prejudicial activities, The High Court Division dismissed it.

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THE CONSEQUENCE OF DELAYING IN FILLING APPLICATION FOR THE WRIT
OF HABEAS CORPUS:
Delay in applying for a writ of Habeas Corpus does not infringe the right of Applicant from relief.
Our Constitution directs that the Right of Personal Liberty is one of the fundamental rights in Part-
III of The Constitution which will not be waived. Furthermore, a wrongful detention or arrest of a
person is considered as continues wrong against a person and the injury lasts until it is remedied.
Thus the writ petition of Habeas Corpus cannot be dismissed due to delay.
GROUNDS OF REFUSAL OF THE APPLICATION CONCERNING WRIT OF HABEAS
CORPUS:
i) At the point when writ of Habeas Corpus is remedial and not punishable in nature.
ii) At the point when the legality of the detention must be decided by the court with
reference to the date of return of the rule and not with reform on the date of such
application is made.
iii) At the point when detainer does not go under the regional surface of the court.
For example - Someone who is detained in India cannot apply for writ in Bangladesh.
iv) At the point of Emergency.
v) At the point when the court already refused the Application.

DUTIES ARISING FROM THE APPLICATION OF WRIT OF HABEAS CORPUS:

DUTY OF APPLICANT DUTY OF THE STATE DUTY OF THE COURT

i) DUTY OF APPLICANT: When an Application is filed for praying writ of Habeas

Corpus, the full fact must be stated in the Petition.

ii) DUTY OF THE STATE: Whenever any act of detention or arrest of a person is
challenged, it is the duty of the State to direct all the relevant action with a truthful,
honest and ultimately independent manner

iii) DUTY OF THE COURT: An individual’s freedom is one of the most cherished
object of human life and judges have played a historic role in defending such freedom
with initiative and dedication expect in the time of emergency. Where a person is
illegally detained, then the court has a duty to protect him or her liberty against any
seizure. Moreover, the duty of the court is to strike a balance between the need to
protect the community on the one hand and the need to protect the liberty of the citizen
on the other.

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  REMEDY OF THE WRIT OF HABEAS CORPUS:
Ordinarily, while exercising powers under Article 44 or under Article 102 of The Constitution of
The People’s Republic of Bangladesh, the court will not award compensation. In appropriate cases,
the court may award monetary compensation to the person who has been illegally detained.
Basically, this is the discretionary power of the court as there is no legal obligations. If the power
of the court is limited to the order of releasing a person from illegal detention only, then it will be
deprived from its significant content. Violations of that right can be reasonably prevented, and one
of the ways to comply with Article 32 of the Constitution is to indulge violators in providing
monetary compensation. Thus the Court may award monetary compensation to the person who has
been illegally arrested or detained this which is found in the case of Rudal Shah vs State of Bihar
where 35,000 Rupee by way of compensation was given after acquittal order for fourteen years
detention in jail.

IMPACT OF WRIT OF HABEAS CORPUS

MERITS DEMERITS

i) MERITS OF WRIT OF HABEAS CORPUS:

1. It provides security towards the liberty of private individual. As per Article 102 (2)
(b) (i) of The Constitution of The People’s Republic of Bangladesh, it is a
procedure where an individual’s custody must be satisfactory before the court so
that the court can give the direction to the particular person or authority to give an
explanation which shall be valid and not to be vogue, and definite that on what
ground the individual was being detained. In this process, if the explanation
becomes satisfactory and evidential, then the detention will be sustainable,
otherwise such individual has to be released immediately either with reasonable
compensation or to such an extent.

2. It controls the arbitrary power of the executive authority in the case of arrest and
detention. The Executive Authorities are protected against mistake of Fact under
Section 76 of The Penal Code, 1860 by which they may be excused from liability
of arresting, detaining or hurting someone mistakenly. But, the writ of Habeas
Corpus has exposed opportunity to stand against this lawfully which is in some
extend controls the arbitrariness of executive power as they at least become
accountable about the arrest and detention.

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3. It reduces unauthorized arrests. As an individual can seek for legal protection
against unauthorized arrest from The High Court Division of The Supreme Court
of Bangladesh in absence of adequate remedy where the concerned authority will
be bound to furnish the ground before the court, thus they may think twice about
disgrace before executing unauthorized arrest against any innocent person.

4. It works as a safeguard against unreasonable and indefinite detention. The great

writ of Habeas Corpus is a kind of legal remedy where a person or an authority
become bound to disclose the definite reason behind arrest or detention so that no
person has to be imprisoned unlawfully for a very long period of time.

It is found in the case of Shameem vs Bangladesh that the brother of petitioner

namely Shaheen Shorab was detained under The Special Powers Act, 1974 on 9
June, 1994 for being accused under Section 19 (A) and (F) of the Arms Act, 1878
where the detention of him was extended from time to time. The claim of the
petitioner was that his brother was victimizes by double jeopardy as a specific
criminal case had already been started against him for the same issue towards what
he was further detained under The Special Powers Act, 1974. In such case the
grounds of detention of Shaheen was found to be vague, indefinite and done without
lawful authority for what he was ordered to be released forthwith.
The Application for Habeas Corpus got top priority over all other business and be
expeditiously disposed of in the above mentioned case where it is no longer
common to direct the body of the prisoner to be produced before the court only but
the respondents having the custody of the prisoner must specify the cause of
detention and discharge the burden of proof with lawful justification.

5. It acts as shield against ill-motive where a person may be arrested for fulfilling the
financial urge of dishonest executive authority, personal bias, political pressure etc.
as the cause has to be shown before the court if a person pleads for the remedial
right of Habeas Corpus.

6. It in some extend protects people from unauthorized abduction and confinement as

it is not infrequent in our society that some people try to abduct any person because
of personal enmity through acting like Law Enforcement Authority. Such type of
fact can be disclosed and the abducted person may be rescued through seeking
protection of the writ of Habeas Corpus from the competent court where the court
may direct the actual authority to find out such person by using their power and
resource.
There is a monumental factor to be mentioned that the protection of the writ of Habeas
Corpus is only available when any of the fundamental rights of a person is violated or
restricted unlawfully towards which there is no legal remedy to be served or such
remedy is denied to be served.

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 ii) DEMERITS OF WRIT OF HABEAS CORPUS:

1. Sometimes it defeats the right of an individual to be remedied. Although the writ

of Habeas Corpus works as a safeguard against unlawful arrest and detention by
compelling the concerned authority to furnish the reason behind their action,
however, filing application in this ground without locus standi may create blockage
it the way of getting Justice.

2. Sometimes it creates multiplicity of cases in The High Court Division as people

applies for this remedial right lavishly because of its smooth availability even
after possessing other remedial rights.

3. Sometimes it creates hindrance in the investigation process of some sensitive cases

where the Executive Authorities needs to lock up their steps of investigation for
protecting the security of the state and welfare of the citizens as they become
compel to be accountable and produce the body of the accused before the court
because of the writ of Habeas Corpus.

4. The scoop of this right is limited as it only provides protection against unlawful
arrest and detention, but not against unfair trial.

5. The remedy comes out of the writ of Habeas Corpus is not become supportive
sometimes as it may badly impact our social norms, culture and ethical ground at
times through being rigid in its nature.
A great instance of this demerits is the case of Muhammad Latif vs Akbar Ali where it was found
that Mr. Latif tried to recover the custody of his minor daughter Mst. Najma Kausar by applying
for the writ of Habeas Corpus after being ignored by the concerned authority. In such case, he
alleged that his daughter was being confined and detained by Akbar Ali where she was further
found to be married with Akbar Ali. But the court declared that though Najma was in her early
teens, so she was considered to be unlawfully detained by Akbar Ali. Accordingly, she was sent
back to her parents.
Although marrying a minor is not lawful, however, detaching a girl form her husband is not
morally accepted in our society; over and above, the consequence of such decision may not be
good.

 HABEAS CORPUS (BANGLADESH CONTEXT):

Habeas Corpus is a remedial writ where an individual gets legal right of acquittal against
any sort of vague, indefinite and illegal detention. It is not only a process where an

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 individual gets to be discharged form unlawful detention, moreover, it works as a
preventive instrument against unlawful arrest, detention and harassment. In Bangladesh,
the writ of Habeas Corpus has preserved as a Constitutional protection discursively in
Article 102 (2) (b) (i) of The Constitution. It is also ensured by Section 491 of The Code
of Criminal Procedure, 1898. In our country, the Executive Authority has scoop to act
arbitrarily where this writ works like a safeguard against unlawful arrest and detention, and
other kinds of harassment in the police custody as such authority become bound to show
the cause of conduct before the court which has to be reasonable. Basically, the process of
Habeas Corpus is a kind of duty of the state to furnish the proper ground of its action before
the Court as well as before its citizens which supports the principle of Democracy. Further,
the practice of allowing the writ of Habeas Corpus also upholds coordination between the
Executive and Judiciary organs of the Government where they become dutiful to be
accountable and reasonable towards their action and order. Moreover, some cases under
Habeas Corpus has materialized some magnificent Principles; such as – Principle of
Natural Justice which protects the personal liberty of people in many ways has been
established as Case Law by the case of Abdul Latif Mirza vs Government of
Bangladesh. In such case, it was found that Abdul Latif Mirza was detained by the
authority due to denouncing the Fundamental Principles of the Government of Bangladesh
which was established by Law, but when he filed writ petition under Article 102 (2) (b) (i)
of The Constitution, the court declared that the ground of the detention of him was not clear
with mentioning that the Principle of Natural Justice is universal in nature.

 CONCLUSION:
Judicial system has to be a proper mechanism where the citizens of a country get the
rightful Justice. It is needless to say that the writ of Habeas Corpus has been successfully
enshrined in the judicial system of Bangladesh as well as of other countries in the World
because of its remedial nature against unlawful action of the power-holders. In order to
uphold Rule of Law and Good Governance in the society, the judicial system has to be
designed in such a way where no rights of individuals will be defeated. In such case, it is
undeniable that THE GREAT WRIT OF HABEAS CORPUS works as a magic wand in
favor of the protection of Fundamental Rights of individuals; such as - Right to personal
liberty. It also works against the abuse of Law and power.

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 RECOMMENDATIONS:

1. People should be made aware about the nature and jurisdiction of the writ of Habeas
Corpus so that they can restraint them from urging protection in wrong ground.
2. The remedy in the writ of Habeas Corpus should be given by using Equity, Reason and
Justice.

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