WRIT JURISDICTION---HISTORY, CONCEPT, NATURE AND SCOPE

WRIT JURISDICTION HISTORY, CONCEPT, <!--[if gte mso 10]> WRIT JURISDICTION‑‑‑HISTORY, CONCEPT, NATURE AND SCOPE By Mahmood Ahmad Chaudhary, Advocate, Jhelum "You May Have The Body ";‑‑‑‑the fiat will now also issue from the Sessions Court! Although basic and fundamental human rights and their safeguards are enshrined in and guaranteed by the Constitution of Pakistan, 1973, viz; (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be, and of every other person for the time being in Pakistan; ‑‑‑ (Article 4); "No person shall be deprived of life or liberty save in accordance with law." (Article 9) yet it is common knowledge that the minions of the law have, of late, become accustomed to showing flagrant disregard for them. Verily, it is vox populi (sans exaggeration) that they ride fough shod over the citizens rights at will. Treatment of the poor, citizen, in violation of law is so rampant that he is resigned to accepting it as fait accompli. The fact that the Government has, on the recommendation of the Law Commission I believe, decided to confer powers of the nature of writ of habeas corpus on the Sessions Court bears testimony to the contumacious and recalcitrant conduct of the police and bureaucracy. I think it opportune to have here a skeleton account of the nature, history, purpose, procedure and effect of the writ. NATURE: There cannot be, I believe, a better description of the writ than the following passage from Blackstone: "The great and efficacious writ, in all manner of illegal confinement is that of habeas corpus ad subjiciendum, directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad fuciendum, subjiciendum et recipiendum, to do, submit to and receive whatsoever the Judge or Court awarding such writ shall consider in that behalf. This is a high prerogative writ, and therefore, by the common law issuing out of the Court of King's Bench not only in term time, but also during the vacation by a fiat from the Chief Justice or any other of the Judges and running into all parts of the King's dominions; for the King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted." Again Broom, says: "This great Constitutional remedy rests upon the common law declared by Magna Carta and the statutes which affirm it rests, likewise, on specific enactments ensuring its efficiency, extending its applicability, and rendering more firm and durable the liberties of the people and the right to claim it cannot be suspended, even for one hour, by any means short of an Act of Parliament." Dicey: View on Habeas Corpus: "The net result of the habeas corpus procedure is that, "while the Habeas Corpus Act is in force, no person committed to prison on a charge of crime can be kept long in confinement, for he has the legal means of insisting upon either being let out upon bail, or else of being brought to speedy trial." HISTORY: In origin the writ of habeas corpus enabled a Court to bring before itself persons whose presence was necessary for some legal proceedings pending before it. The writ could be used for many purposes; for example to assert jurisdiction against a rival court and to release persons imprisoned by order of such a court in excess of jurisdiction. Thus it came to be a writ by which persons unlawfully imprisoned could be released. Constitutional statesmen of the seventeenth century saw in this writ and particularly in the variety known as habeas corpus ad subjicienduin effective for protecting the liberty of the subject by providing for speedy inquiry into the legality of imprisonment on a criminal charge and for speedy trial of a person remanded in custody on such a charge, The Act of 1679 only applied to detention on a criminal charge. Later the writ became commonly used, but without the benefit of the provisions of this Act, to secure relief from imprisonment by private person or on other than criminal charges. The Habeas Corpus Act of 1816 provided that the Act of 1679 should apply to persons deprived of their liberty otherwise than by reason of a charge of crime, unless they were imprisoned for debt or on a process in a civil suit. PROCEDURE: The writ of habeas corpus is obtainable by any person on behalf of the prisoner if access to the prisoner is denied so that instructions can be received from him. This is an important safeguard. The procedure is as follows: Application is made ex parte. Supported by an affidavit to the Divisional Court or in vacation or in a case concerning the custody of an infant to the Judge in Chambers. If prima facie grounds are shown, the Court or Judge ordinarily directs that notice of motion be given or a summons issued. Argument on the merits of the application then take place on the day named. If the Court decides that the writ should issue, it orders the release of the prisoner or the handing over of the infant to the applicant, and this order is sufficient warrant for the release. Under this practice there is no need to produce the prisoner in Court at the hearing and no return to the writ is actually made. The Judge or Court has, power on the ex parte application to order the issue of the writ forthwith. This power it uses in exceptional cases. Particularly where there is danger of the person detained being taken outside the jurisdiction. Where this is ordered, argument as to the legality of the detention takes place on the return to the writ. EFFECT OF THE WRIT. Until the Act of 1960 if any Court had ordered the release of the applicant from custody after hearing the merits of the case, there was no appeal from the order of that Court available to the respondent, i.e. the person who is ordered to obey the writ by discharging the prisoner, and this was so whether the person detained in custody had actually peen released under the order or was still detained. An. appeal by the respondent has been available in those cases where habeas corpus proceedings are employed as a means of determining which of two or more persons has the right to the custody of a child. Disobedience to the writ is punishable by tine or imprisonment for contempt of Court, and the offender may be exposed to heavy penalties recoverable by the person injured. "(An outline of the procedure in the writ of Habeas Corpus in England)." Constitutional Law by E.C.S Wade & A.W.Bradley." Though in Pakistan there is no codified law of habeas corpus nonetheless provisions pari materia and akin to those stated above are to be found in sections 491 and 552 of the Code of Criminal Procedure. The remedy provided in section 552 has a limited scope as it is available only in case of the abduction or unlawful detention of a woman, or of a female child under the age of sixteen years for any unlawful purpose. The District Magistrate has the jurisdiction to order, on complaint, immediate restoration of such woman to her liberty or so such female child to her husband, parents, guardian or other person having the lawful charge of such child and may compel such compliance with such order, using such force as may be necessary. The remedy appears to be quite effective but one does not see this too often being pressed into service. However, section 491 is frequently invoked by making application to the High Court. Powers under this section are a specie in themselves and are summary in nature. Article 199 of the Constitution of 1973 provides in the writ of habeas corpus (not named as such, though) a process by which a person who is confined without legal justification may secure release from his confinement. The Constitutional remedy is, it is axiomatic, much wider in scope than the remedy stated supra. The High Courts were for the first time conferred Constitutional jurisdiction to issue writs in the nature of habeas corpus by the insertion of section 223‑A in the Government of India Act, 1935 and Government of India (Amendment) Act, 1954. This jurisdiction was continued in the same form by Article 170 of the Constitution of 1956 and is to be found in Article 98 of the 1962‑‑Constitution. Now coming to the proposed conferring of powers of the nature of writ of habeas corpus on the subordinate judiciary (Sessions Court in all probability), it is a welcome decision. The poor citizen who in the past could not secure his release from illegal confinement/detention for lack of means to approach the High Court for reasons of distance and expenses will now be able, if needed, to obtain quick relief without much difficulty. The Sessions Court should be able to take cognizance of the matter' on a simple application' (without any court‑fees) or may be just on a letter from the detenue or from any person on his behalf. Informing the Court of his detention, or illegal confinement. The new measure is expected to be quite efficacious and efficient keeping in mind that access to the. Sessions Court is easier and that compliance with its order locally will also be quicker. Let us hope that the new law will prove as it were, a bulwark of the society giving it security not only against police‑excesses but also protection against bureaucratic‑tyranny and wrath of the high and mighty. The proposed measure should prove to be a potent deterrent for the obsequious servants of the executive and a venal police who are responsible, mainly, for creating, in the country, a climate of illegality conducive only to the practising of such beliefs as : might is the sole measure of right : battle goes to the strong; where everyone is a judge in his own cause; where there is no prohibition of private vengeance; where force is the ultima ratio where corruption gets legitimacy and where no holds `are barred. Without a power to keep them all in awe, civilization is unattainable, injustice is unchecked and triumphant, and the life of man is, as Hobees, the author of that great masterpiece Leviathan tells us, "Solitary, poor; nasty, brutish and short". (Honest, God fearing and patriotic public‑servant has nothing to worry as he still enjoys the confidence of the citizen). However, one would rightly expect the learned Sessions Judges to be: able to give an equal "Crack of the Whip" to the parties before them and will meet out even‑handed justice, without fear or favour without distinction between high and low, rich and poor, mighty and weak. It is hoped that with the addition of the latest weapon in their armoury, they will be able to control, effectively, the growing menace of abuse of powers by 'the administration in the mufassel. However, I believe that in the interest of safe administration of justice and for providing guide‑lines to the worthy members of the subordinate judiciary, the law of habeas corpus must needs be enacted and codified. In the end, we must, in all fairness to the Government, acknowledge its sincere efforts in honouring its pledge of providing justice to the common man at his door‑step. Surely, it augurs well for its idee‑fixe of devolution of power to the grass‑roots.