The
jurisdiction to issue orders of the nature of habeas corpus has been with High
Courts for a very long time. Originally when the present Code of Criminal
Procedure (Act V of 1898) was passed in 1898, jurisdiction to pass an order under section 491 thereof was
conferred only on three High Courts, namely, those of Calcutta, Bombay and
Madras, which were called Presidency High Courts. By an amendment brought about
in the section 1923, by means of section 5 of the Criminal Procedure
Code (Amendment) Act, 1923 (XII of 1923), the power to issue orders under section 491 of the Code
of Criminal Procedure was conferred on all High Courts.
Another change which
was brought about by the above-mentioned amending Act of 1923 was that whereas in the
beginning an order under section 491 of the code of Criminal Procedure could be passed only
with regard to person within the ordinary original civil jurisdiction of the
three High Courts that had power to act, the amending Act conferred
jurisdiction on all High Courts to pass with regard to person in places within
the limits of their criminal appellate jurisdiction.
The marginal notes of
section 491 of
the Code of Criminal Procedure is to the effect that the High Courts could
issue directions in the nature of habeas corpus. The position continued like
this till the Partition of British India to which territory the Act was
applicable, but sometime in 1953, section 223-A of the Government of India Act, 1935, which Act continued to be
the Constitution of Pakistan for quite some nine years after its establishment,
was added. This section gave the High Court powers to issue some writs
including that of habeas corpus and the power continued till the 23 of March 1956, when the
Constitution of the Islamic Republic of Pakistan came into force with Act of 1956, conferred
powers of issuing writs on the High Court.
This Act of 1956 was abrogated on the night of
the 7th October 1958, when the
whole of Pakistan was placed under Martial Law but even during the Martial Law
regime powers of the High Court to issue writs of habeas corpus continued
because a provision to issue those and some other specified writs was made in
the Laws (Continuance in Force) Order, 1958.
Then came the Constitution which is now in force, namely,
the Constitution of the Republic of Pakistan, of which the commencement day was
the 8th June 1962. This
Constitution placed the matter on a footing which would make it clearly
understood by everyone including person who do not possess any knowledge of
technical expressions used in laws of some countries.
By this I mean that while
section 223-A of
the Government of India Act, as amended from time to time, and Article 170 of the
Constitution of the Islamic Republic Pakistan, as well as the Laws (Continuance
in Force) Order, 1958, said that a writ of habeas corpus; and certain other
writs could be issued, the new Constitution in the 98th Article confers the power
to pass precisely the same orders but is couched in a language which is easily
understood and does not require knowledge of difficult expression used in some
laws to understand what jurisdiction was being conferred and at the same time
makes it unnecessary that the formalities which attach to the issuing of writs
in countries the Court of which have had powers to issue writs for many a
decade.
By its 98th Article, the new Constitution confers on High Courts
the power to set free person detained in unlawful custody and its is noticeable
that while with regard to certain other orders mentioned in the said Article,
the High Courts can grant relief only at the instance of a person aggrieved, no
such restriction with regard to the person who can move the High Court is
placed when the matter brought before the Court relates to setting at liberty a
person detained without lawful authority. Law is here not confined to state law
alone but is used in its generic sense as connoting all that is treated as law
in this country including even the judicial principles laid down from time to
time by the Superior courts.
It means according to the accepted forms of legal
process and postulates a strict performance of all the functions and duties
laid down by law. It may well be, as has been suggested in some quarter, that
in this sense it is as comprehensive as the American "due process"
clause in a new garb. It is in this sense that an action which is mala fide or
colourable is not regarded as action in accordance with law.
ConversionConversion EmoticonEmoticon