Table of Contents
Unlawful detention refers to the act of holding an individual in custody without legal justification or authorization. It occurs when a person is deprived of their liberty without being properly charged, without consent, or without the legal grounds required by law. Unlawful detention violates an individual's fundamental rights, particularly the right to personal freedom, and can lead to serious legal consequences for the authorities involved.
The right to personal liberty is considered a fundamental human right in nearly all legal systems and international human rights frameworks. As such, any action that involves the detention of a person must adhere to strict legal standards to ensure that the detention is lawful, justified, and transparent.
Legal provision relating to Unlawful Detention
International laws
- Universal Declaration of Human Rights (UDHR), Article 9: No one shall be subjected to arbitrary arrest, detention or exile.
- International Covenant on Civil and Political Rights (ICCPR), Article 9: This article stipulates that everyone has the right to liberty and security of person and that no one shall be subject to arbitrary arrest or detention. It also requires that anyone arrested be informed of the reasons for their arrest and be allowed to challenge their detention before a court.
National laws
1. Constitution of Nepal, 2072, Article 20(3)
Any person who is arrested shall be produced before the adjudicating authority within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to such authority; and any such person shall not be detained in custody except on the order of such authority.
2. National Penal Code, 2074, Chapter 15 – Offenses Relating to Unlawful Detention
Types of Unlawful Detention
- Secret Confinement
- Simple Confinement
- Inhuman Confinement
- Continuation of Confinement even after release order.
- Obstruction in free movement
a. Secret Confinement (Sec 203 of National Penal Code, 2074)
An authority shall not hold any person in detention secretly in such a manner that the detention of such person or the place of such detention may not be known or discovered.
Punishment
A sentence of imprisonment for a term not exceeding four years and a fine not exceeding forty thousand rupees.
b. Simple Confinement (Sec 200 of National Penal Code, 2074)
No person shall maliciously subject another person to detention in any other manner except in accordance with law.
Punishment
A sentence of imprisonment for a term not exceeding three years and a fine not exceeding thirty thousand rupees.
c. Inhuman Confinement (Sec 201 of National Penal Code, 2074)
An Authority who is competent by law to make detention shall not detain any person by depriving him or her of such facilities as required to be provided in accordance with law or of such minimum humane facilities as are available in the place of his or her detention.
Punishment
A sentence of imprisonment for a term not exceeding one and half years and a fine not exceeding fifteen thousand rupees.
d. Continuation of Confinement even after release order. (Sec 202 of National Penal Code, 2074)
No person shall keep on detaining any person held in detention in accordance with law after receiving an order issued by a competent authority under law for the release of such person from detention.
Punishment
A sentence of imprisonment for a term not exceeding one year and a fine not exceeding ten thousand rupees.
e. Obstruction in free movement (Sec 200 of National Penal Code, 2074)
No one other than the competent authority shall obstruct the movement of any person.
Punishment
A sentence of imprisonment for a term not exceeding six months or a fine not exceeding five thousand rupees or both.
Compensation (Sec 204 of National Penal Code, 2074)
Reasonable compensation shall be ordered to be paid by the offender who commits or causes to be committed the offense.
Remedy for Unlawful Detention
Habeas Corpus is a fundamental legal principle that protects an individual's right to personal liberty by allowing them to challenge the legality of their detention. The term habeas corpus comes from Latin, meaning "you shall have the body," reflecting the purpose of the writ: to require that a person who has been detained be brought before a court or judge. This writ ensures that authorities must justify the detention, and if the detention is found to be unlawful, the individual must be released.
The right to habeas corpus is one of the most significant protections against unlawful detention and arbitrary imprisonment. It is a cornerstone of both national constitutions and international human rights laws.
Illegal detention is a serious deprivation of liberty and human rights, which means that the basic freedom of an individual is infringed upon. International and national legal provisions regarding illegal detention are supposed to protect individuals from arbitrary or unjust detention. International human rights frameworks, including the UDHR and ICCPR, articulate a right to liberty and security, ensuring that no one is subjected to unlawful arrest or detention. Complementing these provisions, clear legal safeguards at the national level against unlawful detention are articulated through the Constitution of Nepal and the National Penal Code, which lays down specific procedures to be followed during arrest and detention. These include the requirement to bring the detainee before an adjudicating authority within 24 hours and protection from secret, inhuman, or continued detention. The punishments for illegal detention in Nepal range from fines to imprisonment; victims of illegal detention also have compensatory claims. Above all, the victim has legal recourse--as under the right to habeas corpus--for being detained. These provisions bring into focus cumulatively the protection of individual liberty, while authorities are to be made accountable for unlawful detention.