Provision relating to illegal detention in Nepal

Illegal detention refers to the unlawful confinement or imprisonment of an individual without legal justification or proper legal procedure. It occurs when a person is detained by authorities without the necessary legal grounds, such as a warrant, probable cause, or a court order. Illegal detention is a violation of basic human rights, primarily the right to personal liberty, which is protected under international human rights laws, including the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Both documents emphasize the right of individuals to be free from arbitrary detention and guarantee the right to challenge the lawfulness of one's detention in court.

The consequences of illegal detention can be severe, affecting the physical, mental, and emotional well-being of the detainee. It also undermines the integrity of the legal system, as it represents a failure to uphold the rule of law. Illegal detention can take various forms, including arbitrary arrests, unlawful detention without charge, incommunicado detention, and detention without judicial oversight. In many cases, governments or authorities may use illegal detention as a tool of political repression or to suppress dissent, especially in authoritarian regimes. Combating illegal detention is critical for the protection of individual freedoms and the promotion of justice and accountability in societies worldwide.

Legal Provision relating to illegal detention in Nepal

Muluki Penal Code 2074, has mentioned provisions relating to illegal detention in sec 200-205.

1. Secret confinement - (Secret Confinement refers to the unlawful detention of an individual in a hidden or undisclosed location, typically without their knowledge or consent. This type of confinement is often conducted incommunicado, denying the detainee access to legal counsel, family, or the ability to challenge their detention, violating their fundamental rights.)

   Punishment: up to 4 years imprisonment and up to 40 thousand fine

2. Simple confinement - (Simple Confinement refers to the act of holding or detaining a person in a restricted space, typically without proper legal authorization or due process. It involves restricting an individual's freedom of movement, often in a confined area, but without the aggravating factors like malicious intent or unlawful conditions.)

   Punishment: up to 3 years imprisonment and up to 30 thousand fine

3. Inhumane confinement (it includes solitary confinement, handcuffing, foot cuffing of the victim, keeping him/her in a noisy place so that s/he is unable to sleep, not providing adequate food and water, etc.)

   Punishment: up to one and a half years imprisonment and up to 15 thousand fine.

4. Continuation of confinement even after release order- (Continuation of Confinement after release order occurs when an individual remains in detention despite a court's order for their release. This illegal act violates the detainee's rights and undermines the judicial process. It can lead to legal consequences for the authorities responsible for disregarding the court's directive.)

   Punishment: Up to 1 year imprisonment and up to 10 thousand fine.

5. Obstruction in free movement- (Obstruction in Free Movement refers to the unlawful act of preventing or hindering an individual's right to move freely. This can involve physical barriers, restrictions, or interference by authorities or others, violating personal liberty. Such obstruction is prohibited unless legally justified, as it infringes upon basic human rights.)

   Punishment: up to 6 months imprisonment or up to 5 thousand fine or both. (Use of force in the name of a call for a strike)

Remedy for illegal detention

In Nepal, the Writ of Habeas Corpus is a powerful legal remedy used to challenge illegal detention. It allows a person who is unlawfully detained to petition the court for their immediate release. The writ commands the authorities to present the detainee before the court, explaining the legality of their detention.

According to Article 22 of the Constitution of Nepal, any individual who is unlawfully detained has the right to file a petition for habeas corpus. The court is required to review the detention, ensuring that it complies with legal standards and human rights protections. If the detention is found to be unlawful, the court orders the detainee's release.

Art 133, 144, 151 has provided jurisdiction to the district, high, and supreme court to hear the cases of habeas corpus.

The writ serves as a crucial safeguard against arbitrary or illegal confinement, protecting an individual's right to personal liberty and freedom. The remedy is swift, and the court usually acts urgently to prevent further harm to the detainee, ensuring that authorities uphold legal procedures. This reflects Nepal's commitment to protecting human rights under both domestic law and international obligations.

Element of Habeas Corpus

• Who detained the individual, when, and under what circumstances?
• The location where the detainee was held.
• Whether the detainee was deprived of food or water, or subjected to any form of physical or mental torture.
• Whether any application has been filed in any court regarding this matter, and if so, what the outcome was.

In conclusion, illegal detention is a severe violation of an individual's fundamental rights, particularly the right to personal liberty, as enshrined in both national and international law. It undermines the rule of law and can have serious consequences for the physical, mental, and emotional well-being of the detainee. Nepal has provisions in its Muluki Penal Code 2074 that criminalize various forms of illegal detention, such as secret confinement, simple confinement, inhumane confinement, continuation of confinement after release orders, and obstruction of free movement, each carrying specific penalties.

To counter such violations, Nepal's Writ of Habeas Corpus serves as an important legal remedy, allowing individuals who are unlawfully detained to seek immediate release by petitioning the court. This remedy, supported by constitutional and legal provisions, ensures that authorities cannot infringe on personal liberty without a lawful justification. It represents Nepal's commitment to upholding human rights and maintaining justice, providing a vital safeguard against arbitrary detention and reinforcing the protection of fundamental freedoms.