Executive Summary
The writ of habeas corpus, a cornerstone of common law, serves as a vital safeguard against illegal and arbitrary detention. This report provides an exhaustive analysis of its application and significance within the legal systems of India, Pakistan, and Bangladesh. While these nations share a common legal lineage rooted in British colonial rule, their post-independence constitutional and statutory frameworks have evolved with distinct jurisprudential nuances. The analysis reveals a profound philosophical shift, transforming the writ from a mere procedural tool of the sovereign into a fundamental, constitutional right of the citizen. The report delves into the purpose, scope, and procedural requirements for the remedy, drawing on recent case examples from 2015 to 2025 to illustrate how courts have adapted the writ to address modern challenges, including private detention. It also outlines common pitfalls and offers strategic considerations for legal practitioners, concluding with recommendations to further strengthen this indispensable bulwark of personal liberty.
Part I: The Philosophical and Historical Foundations of Habeas Corpus
1.1. The Ancient Roots of the “Great Writ”
The term habeas corpus, a Latin phrase meaning “you should have the body,” is a legal command issued by a court to a detaining authority. It requires the authority to produce a prisoner or detainee before the court to justify the legality of their confinement.1 The central purpose of this legal procedure is to provide a swift and effective remedy for individuals who are being held without valid reason or lawful authority.2 It is a protection from confinement without a valid legal basis.4
The origins of this “Great Writ” are deeply rooted in the English common law system. While it is often anecdotally linked to the Magna Carta of 1215, its formal procedural history actually predates it, tracing back to documents like the Assize of Clarendon of 1166.5 Clause 39 of the Magna Carta established the foundational principle that “No Freeman shall be taken or imprisoned, or be disseized of his Freehold… but by lawful judgment of his Peers, or by the Law of the land”.2 However, the procedural mechanism to enforce this principle was formalized much later. The Habeas Corpus Act of 1679 was a pivotal piece of legislation that codified the procedure, enabling judges to issue writs even when courts were not in session and imposing severe penalties for non-compliance, thereby transforming the writ into an effective tool to check the king’s power and protect personal liberty against official authority.1
1.2. The Colonial Legacy and Post-Colonial Constitutionalization
The remedy of habeas corpus was first introduced to the Indian subcontinent by English colonists in Calcutta in 1774, though its jurisdiction was initially limited.2 Over time, the writ’s application was broadened. The High Courts established by the British in the 19th century were granted the authority to issue these writs, and Section 491 of the Code of Criminal Procedure (Cr. P.C.), 1898, became the primary statutory tool for seeking relief from unlawful detention in the region.2 This statutory safeguard remained in place through the colonial era, providing a time-tested procedural avenue for challenging confinement.
Following the partition of 1947, India and Pakistan initially continued to operate under the legal framework of the adapted Government of India Act, 1935.8 A crucial development occurred with the drafting of their respective constitutions. India’s 1950 Constitution, followed by Pakistan’s 1973 Constitution and Bangladesh’s Constitution, elevated the writ’s principles from a mere statutory remedy to a constitutional right.8 This constitutionalization of the writ represents a profound philosophical transition. The original common law writ was conceived as a prerogative of the Crown, a procedural means for the “king to have an account” for the confinement of a subject.6 The post-colonial legal systems, however, repurposed this tool, embedding it as a fundamental right of the citizen that could be invoked
against the state. This shift demonstrates a foundational commitment to individual liberty in the newly formed democratic republics.
While India fully incorporated the writ into its constitutional framework and omitted Section 491 of the Cr. P.C. from its new criminal code 7, Pakistan and Bangladesh retained a dual system. In Pakistan, Section 491 continues to coexist with Article 199 of the Constitution, providing legal practitioners with an alternative route to challenge illegal or improper confinement.7 This approach reflects a judicial tradition that values both a constitutional right and a proven statutory tool, though it also presents questions of procedural redundancy.
Part II: The Legal Frameworks in South Asia: A Comparative Analysis
The legal frameworks governing the writ of habeas corpus in India, Pakistan, and Bangladesh, while sharing a common heritage, have evolved distinctively.
2.1. India: The Constitutional Supremacy of Articles 32 and 226
In India, the writ of habeas corpus is a constitutional remedy primarily enshrined in two provisions. Article 32 of the Constitution guarantees the right to approach the Supreme Court directly for the enforcement of fundamental rights, including the protection against unlawful detention.11 Article 226 grants the High Courts a broader jurisdiction, allowing them to issue writs not only for the enforcement of fundamental rights but also for “any other legal right”.13
The legal basis for a habeas corpus petition is often a violation of Article 21, which secures the right to life and personal liberty.12 This constitutional bedrock has enabled Indian courts to expand the scope of “personal liberty” to encompass a wide range of rights, ensuring that a deprivation of liberty must be under a law that passes constitutional scrutiny.16 A unique feature of Indian jurisprudence is the concept of Public Interest Litigation (PIL).17 Unlike a traditional petition that requires an aggrieved person to file, a “public-spirited individual or group” can file a writ on behalf of another, and the Supreme Court has even treated letters, telegrams, and news reports as formal writ petitions, significantly broadening the concept of
locus standi.17
2.2. Pakistan: The Dual-Track System under Article 199 and Section 491 Cr.P.C.
Pakistan’s legal system operates a dual-track approach to habeas corpus. Article 199 of the 1973 Constitution empowers the High Courts to issue writs of the nature of habeas corpus, making it an extraordinary remedy to check the legality of state actions and inactions.9 Simultaneously, Section 491 of the Code of Criminal Procedure, 1898, remains a key statutory provision.7 This section enables High Courts to direct the production of a person in public or private custody and order their release if the detention is “illegally or improperly” held.7
The writ is particularly relevant in the context of preventive detention laws, such as the Maintenance of Public Order (MPO), 1960. These laws allow the government to detain a person for up to six months to prevent actions “prejudicial to public safety”.21 Habeas corpus challenges in this context require the court to review the legality of such orders and ensure they are not arbitrary. The power to issue directions under Section 491 has also been conferred upon Sessions Judges in some provinces to improve access to justice, particularly for citizens in rural areas.20
2.3. Bangladesh: The Judicial Review Power under Article 102
In Bangladesh, the writ of habeas corpus is a crucial component of the High Court Division’s judicial review power under Article 102 of the Constitution.22 This provision allows the court to direct that a person in custody be brought before it to determine if they are being held “without lawful authority or in an unlawful manner”.23 The power conferred by Article 102 is considered a “basic feature of the Constitution” that cannot be curtailed even by a constitutional amendment, reinforcing the judiciary’s role as a bulwark for fundamental rights.22 If the detaining authority’s explanation for the confinement is deemed “unsatisfactory,” the court can order the individual’s immediate release.22
Similar to India, Bangladesh’s legal system permits a writ to be filed not only by the aggrieved person but also in a “representative capacity” or for public interest, provided the petitioner has a “genuine interest or cause” in the matter.3 This broadened standing allows for the use of the writ to address broader issues of public concern and injustice.3
| Feature | India | Pakistan | Bangladesh |
| Constitutional Article(s) | Article 32 (Supreme Court) Article 226 (High Court) 11 | Article 199 (High Court) 18 | Article 102 (High Court Division) 22 |
| Statutory Provision(s) | N/A (Section 491 Cr.P.C. omitted) 7 | Section 491 Cr.P.C., 1898 (retained) 7 | N/A |
| Primary Jurisdiction | Supreme Court and High Courts 11 | High Courts and Sessions Courts 18 | High Court Division of the Supreme Court 22 |
| Key Procedural Requirement | Petition with supporting documents and affidavit 25 | Application with affidavit stating the nature of restraint 26 | Petition with supporting documents and affidavit 3 |
| Key Case Law Example | ADM Jabalpur v. Shivkant Shukla (1976) 27 | Hafeezullah Lashari v. Province of Sindh (2025) 28 | Habiba Mahmud Vs. Bangladesh (1993) 29 |
Part III: Judicial Trends and Landmark Case Law (2015-2025)
3.1. India: Expanding the Scope and Defining the Limits
The ADM Jabalpur v. Shivkant Shukla case, commonly known as the Habeas Corpus Case, remains a foundational moment in Indian legal history.27 During the Emergency of 1975-77, the Supreme Court’s controversial 4:1 majority decision held that the right to life and liberty could be suspended, preventing individuals from challenging illegal detention.27 This judgment stands as a cautionary tale of judicial deference to executive power. The powerful dissent by Justice H.R. Khanna, who famously argued that “the right to life is not a gift of the Constitution,” has since become a beacon of judicial courage.27 The 44th Constitutional Amendment Act, 1978, later solidified Justice Khanna’s view by ensuring that Article 21 could never again be suspended, thereby reinforcing its inviolable nature.27
This historical context provides a critical lens through which to view recent jurisprudence. The efficacy of the writ is not merely a matter of legal provision but a direct reflection of the judiciary’s institutional strength and willingness to protect fundamental rights. Recent rulings illustrate a robust and independent judiciary. Indian High Courts have demonstrated a clear trend of using the writ to protect adult women from illegal confinement by their natal families, often in cases of inter-caste or inter-religious relationships.32 The courts have held that an adult woman has the right to make her own decisions and cannot be treated as chattel.33 Rulings have also recognized the concept of a “chosen family,” which can provide immeasurable support and may even outlast natal families.33
The writ is also frequently used in child custody disputes, where the court’s paramount consideration is the welfare of the child.33 The detention of a minor by a person not entitled to legal custody is treated as an illegal detention.36 However, the courts have also been clear about the writ’s limitations. A habeas corpus petition is not a substitute for the appellate process and cannot be used to challenge a person’s detention under a valid judicial order, such as a remand order.36 The proper remedy in such cases is an appeal or other statutory mechanism.36
3.2. Pakistan: Habeas Corpus as a Check on Executive Power
In Pakistan, habeas corpus continues to be a critical tool for checking executive power, particularly in cases involving preventive detention. The law allows for detention to prevent “prejudicial activities” or for the maintenance of public order.21 Courts use the writ to ensure that such orders are not arbitrary and are based on lawful grounds. A habeas corpus petition becomes infructuous if a valid order of detention is produced before the court, even if there was no valid cause for the detention previously.38
The recent case of Hafeezullah Lashari v. Province of Sindh (2025) provides a compelling example of a practitioner’s strategic use of the writ to counter alleged illegal police confinement.28 The detainee’s mother filed two successive habeas corpus petitions, forcing the authorities to justify the detention.28 This case highlights how a lawyer can use the writ to compel the police to produce the detainee and ensure that any remand or detention is lawful and not the result of police overreach.
3.3. Bangladesh: The Writ as a Bulwark for Fundamental Rights
Recent jurisprudence in Bangladesh demonstrates the judiciary’s willingness to use the writ as a bulwark against infringement on fundamental rights. The dismissal of a seven-year-old case against photojournalist Dr. Shahidul Alam in August 2025 is a significant example.39 The case, filed under a now-repealed law for “spreading provocative false statements,” was dismissed by the High Court Division, reinforcing the judiciary’s role in protecting freedom of expression against executive overreach.39 This case, set against the backdrop of recent political events and a rise in politically motivated arrests 40, underscores the writ’s increasing importance as a remedy for individuals seeking protection from arbitrary state action.
The common law writ was traditionally conceived to challenge detention by state actors such as prison officials or the police.1 A notable evolution in modern South Asian jurisprudence is the expansion of the writ’s use to include private citizens, particularly family members in domestic disputes. Indian and Pakistani courts have used the writ to protect adult women from illegal confinement by their natal families.32 This demonstrates that the courts are reinterpreting the writ’s purpose, broadening its application to challenge new forms of social control and power dynamics that threaten individual autonomy. It is no longer just about challenging wrongful imprisonment; it is about challenging wrongful confinement in any form, by any party.
Part IV: Practical Considerations and Strategic Advice for Legal Practitioners
4.1. Procedural Requirements for Filing
A petition for a writ of habeas corpus can be filed by the person illegally detained. If they are unable to do so, it can be filed by a relative, friend, or any other person with a genuine interest in the matter, as long as they are not a “total stranger” to the detenu.3
The filing process requires meticulous attention to detail. A well-drafted petition must include a statement of facts and an affidavit verifying the facts relied upon.3 In Pakistan, the accompanying affidavit must explicitly state that the application is made at the restrained person’s instance, and if they are unable to make it, another person can provide an affidavit to the same effect, explaining the reason for the detenu’s inability.26 An essential legal document is the Vakalatnama, which authorizes a lawyer to represent the client.25 The petition must be filed with the appropriate High Court or the Supreme Court, depending on the jurisdiction and the nature of the case.11 The effectiveness of this remedy is often contingent upon a lawyer’s ability to navigate these procedural requirements correctly, as technical errors can lead to delays or dismissal.
4.2. Common Pitfalls and Grounds for Dismissal
Practitioners must be aware of several common pitfalls. A critical error is filing a habeas petition to challenge a person’s detention under a valid judicial order, such as a remand order.36 The courts have repeatedly clarified that the writ is not a substitute for an appeal or other statutory remedy to challenge a judicial function, even if the order itself is alleged to be flawed.36
Petitions filed with “mala fide” intentions, such as to further an “illicit love affair” or to seek the premature release of a convicted person, may be dismissed by the court.36 Furthermore, the central requirement is that the detention must be unlawful. If the detaining authority can produce a valid detention order or otherwise justify the confinement, the petition will fail, even if the detention was initially without valid cause. In such cases, the writ becomes “infructuous”.6
4.3. Strategic Best Practices
The most powerful strategic consideration for a legal practitioner is to understand the shifting burden of proof. The initial burden is on the applicant to establish that they have been deprived of their liberty.6 This is typically done through an affidavit from a person with knowledge of the detention. Once this is established and a legitimate ground is raised to question the legality of the confinement, the onus shifts entirely to the detaining authority to prove that the detention was lawful.3 The practitioner’s primary goal is to frame the petition to effectively trigger this burden shift, thereby compelling the state or private detainer to justify their actions.
Habeas corpus proceedings are of a “summary character” and are required to be heard “expeditiously”.3 In cases of private detention, particularly those involving natal family members, courts have developed specific procedures to protect the detenu. This includes in-camera proceedings where the court can ascertain the wishes of the detained person in a private, non-coercive environment, away from the alleged detainer.34
For legal practitioners in the region, taking on human rights cases can pose significant risks, including threats and harassment from opposing parties or even state authorities.46 The lack of a strong regional human rights mechanism means that lawyers often struggle to find institutional support.46 Practitioners must be aware of these dangers and proceed with caution. The core strategic value of a lawyer is not just in knowing the legal theory but in meticulously navigating these procedural and contextual hurdles to ensure the writ remains an effective tool for justice.
Part V: Conclusion and Recommendations
5.1. Commonality and Divergence: A Synthesis
The analysis of habeas corpus in India, Pakistan, and Bangladesh reveals a shared legal tradition but a distinct path of evolution. Despite their common origins in English common law, the three nations have constitutionally enshrined the writ in ways that reflect their unique legal and political histories.47 India’s innovative use of Public Interest Litigation and its reliance on a broad constitutional framework contrasts with Pakistan’s dual-track system of constitutional and statutory remedies and Bangladesh’s emphasis on a robust judicial review power.7 This divergence, however, reinforces a shared commitment to personal liberty. The historical trajectory, from the ADM Jabalpur case to the recent protection of marginalized communities, demonstrates that the writ’s efficacy is not static; it is a dynamic instrument that adapts to new forms of coercion, serving as a direct measure of a judiciary’s independence and resolve.
5.2. Recommendations for Legal and Judicial Reform
Based on the analysis, several recommendations can be proposed to further strengthen the writ’s efficacy and ensure its accessibility.
- Formalizing Protection Against Private Detention: Given the judicial trend of using the writ to address private confinement, particularly in domestic disputes involving adult women and LGBTQ+ individuals, a formal recognition of this expanded scope through legislative amendment or judicial guidelines would provide greater clarity and consistency. This would reinforce the writ as a remedy for confinement by any party, not just the state.32
- Expediting Habeas Proceedings: While a prompt hearing is a theoretical requirement, practical delays can undermine the writ’s purpose. Implementing specialized benches or fast-track procedures, especially for cases of illegal detention, could ensure the remedy remains expeditious and effective.3
- Enhancing Protection for Legal Practitioners: The dangers faced by human rights lawyers in the region are a direct threat to the writ’s effectiveness. States must embed United Nations standards on the role of lawyers and the independence of the judiciary at the national level to protect those who defend the rights of the accused.46
- Improving Access to Justice: The cost and logistical inconvenience of filing petitions, particularly in rural areas, can act as a significant barrier.7 Expanding the jurisdiction to lower courts, as seen in some provinces of Pakistan 20, and providing free legal aid for vulnerable populations would make the writ more accessible to all citizens.17
In conclusion, the writ of habeas corpus remains an indispensable bulwark against arbitrary power in South Asia. Its continuing relevance lies in its historical adaptability and the unwavering commitment of the judiciary to uphold its fundamental purpose: to protect individual liberty by demanding that every instance of confinement be justified by the rule of law.
