Wednesday, June 15, 2011


Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ

By Yasser Latif Hamdani

The basic proposition here is whether or not writ against a private party is maintainable under Pakistani law (and by association Indian law). Here are some indicative cases for readers:

Citation: P L D 2009 Supreme Court 507 (Before Zia Perwez, Sahihuddin Ahmed and Sarmad Jalal Osmany, JJ)
At the end of Para 33 on Page 528:
“…it was held that though some of the fundamental rights imposed negative obligation on the part of the state not to encroach upon individual's liberty etc., there were others, which were positively enforceable against the whole world. We are therefore clearly of the view that' the High Court has plenary powers to positively enforce fundamental rights not merely against public authorities but even private parties. Accordingly direction for positive enforcement of fundamental rights against private parties could only be given by the High Court in respect of rights guaranteed, inter alia, by Articles 11, 22 etc. which might in most cases require enforcement against such parties.”
2.       THE STATE and others v. DIRECTOR-GENERAL, FIA and others
Citation: P L D 2010 Lahore 23 (Before Khawaja Muhammad Sharif, C.J., and Ijaz Ahmad Chaudhry, J)
At Para 6 on Page 28:
(about Article 199 c)…This clause does not restrict the jurisdiction to the extent of Government functionaries but extends it to any person or authority
At the end of Para 6 on Page 29:
…Since the very object of the public interest litigation is to ensure public interest and protection of legal or constitutional right of disadvantaged and oppressed groups of individuals and to render social and economic justice to them there cannot be any reason why in a fit and proper case the Court would hesitate to entertain a public interest action against any non-governmental institution or any person invested with statutory or public duties or public obligations, when their omission or commission affects the rights of disadvantaged groups or individuals who do not find any way for vindication of their grievance.
At the end of Para 7 on Page 29:
…We, therefore, overrule that the objection of the learned counsel that this Court in exercise of Constitutional Jurisdiction cannot look into the grievances of the affectees of Zarco Exchange Company and pass any direction for safeguarding and securing the interest of the affectees.
3.       Peoples Union for Democratic Rights v. Union of India
Citation: AIR 1982 SC 1473 (before Bhagwati, J and Islam, J)
At Para 12 on Page 1485:
Now many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State. But there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24
(Article 17 is the Abolition of untouchability, Article 23 is Prohibition of traffic in human beings and forced labour, Article 24 is Prohibition of employment of children in factories etc)

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