The purpose of a writ petition in Bangladesh
The purpose of a writ is to provide recourse for the enforcement of the law against governmental or statutory public bodies. A writ is a written document that commands or obligates a public body to do or refrain from doing something. Writ is applicable only to public entities. In the Supreme Court case Abu-al-Siddique (Md.) vs. Bangladesh and Others, Writ Petition No. 7074 of 2012, a public body is defined as “any authority, body, corporation, or institution constituted or established by or under any law, and includes any other body, authority, or institution owned, managed, or established by the government.” Subject to the uniform grades and scales and uniform terms and conditions of service are the terms and conditions of any person holding a position in a public organization.
This scenario for applying for a writ may occur if a government body takes unjustifiable action against individuals. Article 102 of the Constitution addresses the writ jurisdiction of the High Court Division, while Article 104 addresses that of the Appellate Division. In accordance with Article 102 of the Constitution of Bangladesh, the High Court Division may issue a variety of orders in the exercise of its writ jurisdiction.
Categorization of writ petition in bangladesh
According to the Bangladeshi constitution, there are five available writ petition in bangladesh: Prohibition, Habeas Corpus, Certiorari, Mandamus, and Quo Warranto.
(a) General :
The writ of habeas corpus is one of the oldest known writs in English common law. Habeas corpus is the Latin phrase for “have the body.” This is a writ in the nature of an order requiring the person who has detained another to bring him before the court, explain the reason for his confinement, and release him if there is no legal authority for his detention. In other words, by issuing this writ, the court directs the person or authority that has detained another person to bring the prisoner’s body before it so that it may determine the legality, jurisdiction, or justification for the detention.
The writ of habeas corpus provides a prompt and effective remedy against illegal restraints. The principal aim is to provide for a swift judicial review of alleged unlawful detention. As Lord Wright states, “the incalculable value of habeas corpus is that it enables the immediate determination of the right of the appellant’s freedom”. ‘if the court comes to the conclusion that there is no legal jurisdiction for the imprisonment of the person concerned, the court will pass an order to set him at liberty forthwith’. Thus, the object of the writ of habeas corpus is to release a person from illegal detention and not to punish the detaining authority. “the question for a habeas corpus court is whether the subject is lawfully detained. If he is, the writ cannot issue, if he is not, it must issue.”
The origin of habeas corpus in England is common law. Since 1640, this law has protected the liberty of British subjects against their unlawful detention in public or private custody. The King’s Bench issues a writ of habeas corpus to determine whether an individual was unlawfully detained. Under the Regulating Act of 1773, the Supreme Courts of Calcutta, Bombay, and Madras were granted the authority to issue prerogative writs within India. With the abolition of Supreme Courts and the establishment of High Courts, the aforementioned authority was transferred to High Courts. Article 32 of the Indian Constitution grants the Supreme Court and all High Courts the authority to issue a writ of habeas corpus.
(d) Who may apply:
An application for the writ of habeas corpus may be made by the person illegally detained. But if the prisoner himself is unable to make such application, it can be made by any other person having interest in the prisoner. Thus, a wife, a father, or even a friend may in such circumstances make an application for the writ of habeas corpus. He should not, however, be a total stranger.
(e) Against whom habeas corpus would lie:
A writ of habeas corpus may be issued against any person or authority who has illegally detained or arrested the prisoner.
Every request for a writ of habeas corpus must be accompanied by an affidavit detailing the facts and circumstances that led to the request. If the court determines that there is a prima facie case for granting the petition, it will issue a rule nisi directing the detaining authority to show cause on a specific date why the rule nisi should not be made absolute. The court will consider the merits of the case and issue an appropriate order on the specified date. If the court determines that the detention was unjustified, it will issue the writ and order the detaining authority to immediately release the detainee. Conversely, if the court finds that the detention was justified, the rule nisi will be lifted. In the absence of a return to the rule nisi, the prisoner is entitled to immediate release. The court has the authority to grant interim bail pending a petition’s disposition. In exceptional cases, a petition may be filed even if the individual is not actually detained.
(g) Delay in applying:
Delay by itself in applying for a writ of habeas corpus does not disentitle the petitioner for the relief. The right of personal liberty is one of the fundamental rights guaranteed in Part III if the constitution and it cannot be waived. Moreover, a wrongful detention or arrest of a person is a continuous wrong and the injury subsists till it is remedied. A petition for a writ of habeas corpus, therefore, cannot be dismissed on the ground of delay.
(h) When may be refused:
Since the purpose of the writ of habeas corpus is remedial and not punitive, the court must determine the legality or otherwise of the detention with reference to the date of return of the rule nisi and not the date of the application. Thus, the writ would not be issued if, at the time of the rule nisi, the prisoner was not unlawfully detained, even if the detention order was unlawful at the time of the detention. Similarly, if the prisoner is released during the pendency of the habeas corpus petition, it will become ineffective.
(i) Duty of state:
Whenever an action of detaining or arresting any individual is challenged, it is the duty of the state to place to place before the court all relevant and material facts leading to the impugned action truly, faithfully and with utmost fairness.
(j) Duty of courts:
The liberty of an individual is the most cherished of human freedom and in cases of gravest emergencies, Judges have played a historic role in guarding that freedom with zeal and jealously. Where allegations are made that a person is in illegal custody, it is the duty of the Court to safeguard his freedom against any encroachment on life or liberty. The duty of the court is to strike a balance between the need to protect community on the one hand and the necessity to preserve the liberty of a citizen on the other.
(k) Repeated applications:
For many years, it was accepted in England that an unsuccessful applicant for the writ of habeas corpus could go from judge to judge and court to court and have his application renewed based on the same evidence and grounds. Consequently, the applicant “could go from judge to judge until he found one more merciful than his brethren.” However, Hastings, the earlier viewpoint was overturned. A person currently has no right to submit multiple applications for the writ of habeas corpus. However, if there are new grounds, subsequent petitions will not be denied.
Ordinarily, a court will not award compensation when exercising powers under Article 32 or Article 226 of the Constitution. In appropriate circumstances, however, a court may award monetary compensation to an individual who has been unlawfully arrested or detained. Article 21, which guarantees the right to life and liberty, would lose its significance if the court’s authority were restricted to issuing orders of release from unlawful detention. The payment of monetary compensation to those who violate this right is one of the most effective means of preventing the violation of this right and ensuring compliance with Article 21’s mandate.
The recipient of a writ of habeas corpus issued by the Supreme Court or a High Court must comply with the order. Willful interference by the person to whom it is issued would constitute contempt of court and court, punishable by property seizure and even imprisonment of the convict.
(n) General principles:
From the leading decisions regarding habeas corpus, the following principles emerge:
A writ of habeas corpus is a remedial writ that can be used in all cases of unlawful deprivation of personal freedom and liberty.
- It cannot, however, be used to impeach or otherwise challenge the correctness or propriety of a decision rendered by a court of competent jurisdiction, unless the decision is null or void or the court lacks jurisdiction.
The release of a prisoner or detainee pursuant to a habeas corpus order does not equate to his or her discharge or acquittal.
Since a writ of habeas corpus is not of a punitive nature, it cannot be used to punish someone who wrongfully arrested or detained another individual or released him from custody.
The prisoner, a relative, a friend, or anyone else with an interest in the prisoner may petition the court for a writ of habeas corpus. However, he should not be a complete stranger.
Habeas corpus is available not only for release from state detention, but also for release from private confinement.
The mere delay in filing a habeas corpus petition will not prevent a prisoner from challenging his or her arrest or detention.
A habeas corpus petition must be heard and resolved as quickly as possible.
When a prisoner asserts that he is unjustly detained, it is the responsibility of the authority to justify the detention. However, if the defendant enters a particular plea, the burden of proof lies with him.
In habeas corpus proceedings, the court must adopt an attitude of eternal vigilance. The court must strike a balance between the need to protect society on the one hand and the need to protect a citizen’s liberty on the other.
In habeas corpus proceedings, it is the state’s responsibility to present the court with all material facts and relevant records in a truthful, honest, and impartial manner.
A writ of habeas corpus cannot be granted ex parte as a general rule. In exceptional cases, however, the court has the authority to issue writs ex parte.
Ordinarily, bail cannot be granted in cases of preventive detention. In exceptional circumstances, the court may grant bail or parole pending the outcome of the case.
- in exceptional circumstances, even before actual detention or writ of mandamus against a detention order is maintainable.
Willful or deliberate disobedience of a writ of habeas corpus constitutes court contempt.
- While issuing a writ of habeas corpus, the court may award damages or compensation as incidental or consequential relief.
Once a detention order has expired, been revoked, or been declared null and void, a new order cannot be issued on the same facts and for the same reasons.
- If, however, after the expiration, revocation, or setting aside of a detention order, new facts or new grounds emerge, a new order may be issued.
- The general principles of res judicata apply even to habeas corpus proceedings, but a subsequent petition for the same relief can be filed if it is based on new grounds.
A writ of habeas corpus for the enforcement of fundamental rights is maintainable even in times of emergency.
· Habeas Corpus Writ in Bangladesh:
Under sub-clause (i) of clause (b) of sub-article (2) of article 102 of the Bangladesh Constitution, the High Court Division, on the application of any person, directs that a person in custody be brought before it to satisfy itself as to whether he is being held in custody with or without lawful authority. If the Court finds that he is being illegally held in custody by the authority, it then can declare the same to be without lawful authority. Section 491 of the Code of Criminal Procedure also authorizes the High Court Division to issue a direction in the nature of a writ of habeas corpus to bring before it a person detained in public or private custody in order to see as to whether he is being detained illegally or improperly. If the High Court Division finds that such a person is being held in custody, illegally or improperly, it then directs the detaining authority or person to set him at liberty.
In accordance with clause (2) (b) I of Article 102 of the Bangladesh Constitution of 1972, the High Court Division is authorized to order that a detainee be brought before him to ensure that he is not being held without legal authority or unlawfully.
Habeas Corpus is a writ that is issued to protect liberty, especially liberty that is regarded as crucial. It is awarded against unlawful detention or deportation by the police authority. Habeas Corpus is a type of court order that directs the authorities to hold an individual in custody until he or she is brought to court. The authorities must then explain why he is being detained. If the explanation is inadequate, the court may order the release of the individual. Habeas corpus is therefore a means to ensure the subject’s liberty.
This individual must hold a government position. A public office implies a constitutional office or a law pertaining to the affairs of the Republic or a local authority. It will only be awarded when a government official has a public duty under the law and refuses to fulfill it. It could be administrative, quasi-judicial, or judicial.
Thus, the writing of habeas corpus lies when an individual is arrested without lawful authority or in an illegitimate manner. If the law requiring imprisonment is unconstitutional or invalid, or if the law is valid but the order is illegitimate or exceeds its authority, the order will be granted. An action is unlawful if it is ill-intentioned, a shady use of authority, done for insignificant or foreign reasons, or if the detaining authority does not apply its mind. In the case law Abdul Latif Mirza vs. Bangladesh, the detention period ordered by the Deputy Commissioner expired and a new detention order issued by the government was served on the detainee two days later, while the detention was declared unlawful for the subsequent two days.
Quo-Warranto is a writ issued by the High Court that confirms a person’s title to an office, evicting any unlawful occupants. When an individual illegally holds a law-created public office, the High Court may, by issuing quo-warranto, require the individual to demonstrate on what authority he holds the office and prohibit him from holding it in the future. Article 102 (2)(b)(ii) of the Bangladeshi Constitution of 1972 grants the High Court Division the authority to issue quo warranto orders. A person holding or claiming to hold a government office may be required to demonstrate the authority under which he claims to hold that office. If there is a request for the same thing and no other similarly effective legislative solution exists, this document may be issued. As with habeas corpus, it should be noted that an aggrieved individual is not required to file a quo-warranato petition. Unlike habeas corpus, however, the former is discretionary despite its obligatory nature.
It grants the judiciary the jurisdiction and authority to monitor executive action in matters of appointing government officers against the applicable statutory provisions. A person will be found to hold a public office without legal authority if he is ineligible to hold the office or if certain mandatory provisions of the law were violated when he was appointed or entered office. Additionally, the quo-warranto prevents a citizen from being denied a public office to which he is entitled.
(a) Character and range:
Mandamus refers to an order. It is an order issued by a court to a public authority requiring it to carry out a constitutional or other statutory obligation. Mandamus is a judicial remedy that takes the form of an order from a superior court (the Supreme court or a High court) to any government, court, corporation, or public authority to perform or abstain from performing a specific act that body is required by law to perform or abstain from performing, as the case may be, and which is in the nature of a public duty and in some cases a statutory duty.
(b) The distinction between mandamus and other writs:
Mandamus differs from prohibition and certiorari in that it can only be issued against administrative authorities, whereas prohibition and certiorari can be issued against judicial and quasi-judicial authorities. Mandamus operates when the authority declines jurisdiction; prohibition and certiorari operate when the courts and tribunals usurp or exceed the jurisdiction vested in them. While mandamus requires action, prohibition mandates inaction. While mandamus compels, certiorari corrects.
A writ of mandamus may be issued if the petitioner meets the following requirements.
I Legal privilege:
The petitioner must possess legal standing. Thus, when a petitioner claimed that he was passed over for promotion by the government and it was determined that he was not qualified for the position, his petition was denied.
(ii) Legal duty:
A legal obligation must have been imposed on the authority, and the performance of that obligation must be mandatory, not optional or discretionary. There must be a right for the applicant to compel the opponent to perform some obligation. Therefore, if the government grants dearness allowance to its employees at its own discretion, there is no legal obligation and a writ of mandamus cannot be issued against the government for performance of that duty. Such a duty must be statutory, i.e. imposed by the constitution, another statute, or some rule of common law, but should not be contractual in certain circumstances. However, the writ of mandamus may be issued for the enforcement of such a duty if discretionary power is conferred on the authority and statutory provisions are made for the exercise of such power. This obligation must be of a public nature. The writ of mandamus may be issued if the public authority vested with discretionary power abuses the power, exceeds it, acts maliciously, fails to apply its mind, or takes irrelevant considerations into account.
(iii) Request and denial:
A demand for justice and its denial must precede the petition for a writ of mandamus. In Halsbury’s Laws of England, it is stated: “as a general rule, the order will not be granted unless the party complained of knew what he was required to do, so that he could weigh whether or not to comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus wishes to enforce, and that demand was refused.”
The aforementioned principles are also recognized in India.
(iv) Good faith:
A request for mandamus must have been made in good faith and without any ulterior motive or covert objective. Even if a petition for mandamus is filed in good faith, it will not be granted if it is intended to harass the respondent or exact personal revenge.
(d) Eligible applicants:
A person whose rights have been violated may file a petition for a writ of mandamus. This right must be in effect on the date the petition is filed. In the case of a corporation, the petition must be submitted by the corporation itself. In the event that a person submits a request for the enforcement of an institution’s right, he must disclose the circumstances that entitle him to submit the request on behalf of the institution.
Mandamus would lie against:
A writ of mandamus may be issued against parliament and legislatures, courts and tribunals, the government and its officers, local authorities such as municipalities, state-owned or state-controlled corporations, universities and other educational institutions, election authorities, and other state-related authorities.
Mandamus would not lie against:
A writ of mandamus cannot be issued against the president or the government of a state for the exercise and performance of powers and duties of his office, or for any act done or purported to be done in the exercise of those powers and duties. The state legislature cannot be prevented from considering enacting a law that is alleged to violate constitutional provisions.
(g) Alternative remedy:
If the petitioner approaches the court with an allegation that his fundamental right has been violated, a writ of mandamus will not be denied on the grounds that alternative remedies are available. As stated previously, it is the responsibility of the high court to protect the petitioner’s fundamental rights, and the writ of mandamus will be issued. However, if the complaint does not involve a violation of a fundamental right, the availability of an alternative remedy may be relevant. Moreover, the court may refuse to issue a writ of mandamus if an equally efficient, effective, and convenient appeal or revision remedy is available against the challenged order. This prerogative remedy is not intended to supersede other statutory means of obtaining relief.
· Mandamus in Bangladesh:
In accordance with subclause I of clause (a) of subclause (2) of article 102 of the Constitution of Bangladesh, the High Court Division is authorized to direct a person performing functions related to the affairs of the Republic or a local authority to comply with the law. This remedy is available when a person’s legal rights, as opposed to contractual rights, are violated. The applicant must demonstrate that he has a legal right to the performance of a legal obligation by the individual or entity against whom the writ is sought.
If a government employee working for Bangladesh Tele-Communication Limited (BTCL) claims that his rights have been violated for any reason, he can file a Writ of Mandamus against that company. The writ petition will fail, however, as his complaint lacks sufficient information and is proven to be false.
(h) In summary:
It is the most frequently and effectively used writ by aggrieved parties. Since the purpose of public law is to ensure that administrative bodies function in a way that produces the best results for the state, society, and individuals without undue delay or expense, it is the responsibility of the courts to oversee this process through the use of writs, specifically a writ of mandamus.
a) Nature and breadth:
A prohibition writ is a judicial writ. It can be issued against judicial and quasi-judicial authorities. When such authority exceeds its authority or attempts to exercise authority that is not its own. When a subordinate court or inferior tribunal hears a matter over which it does not have jurisdiction, a superior court or the Supreme Court can prevent it from usurping jurisdiction and keep it within its jurisdictional boundaries.
b) Distinguish Prohibition from other writs:
While both certiorari and prohibition are judicial writs, they are distinct. The former refers to a decision that has already been made, while the latter seeks to prevent the decision from being made. Prohibition is the opposite of mandamus in that, whereas mandamus compels the authority to act, prohibition prevents a court or tribunal from acting when it lacks the authority to do so. In other words, mandamus requires action while prohibition mandates inaction.
In essence, both the writs of certiorari and prohibition may be issued when an inferior court or tribunal acts without or beyond its jurisdiction, in violation of the principles of natural justice, in accordance with a law that is ultra vires, or in violation of fundamental rights.
i. a lack or excess of authority
ii. Transgression of natural justice
iii. Statute found unconstitutional.
iv. violation of fundamental rights
d) Eligible applicants:
When the lack of jurisdiction is apparent on the face of the proceedings, not only the aggrieved party but also a third party may file a motion for prohibition. The principle underlying this rule is that usurpation of jurisdiction constitutes a breach of the royal prerogative and an insult to the crown. Therefore, it is irrelevant who informs the court about the usurpation.
e) Opponents of prohibition:
A prohibition writ is a judicial writ. Against courts, tribunals, and other quasi-judicial authorities, T may be issued. Including, but not limited to, tax authorities, settlement officers, and statutory arbitrators.
f) Whom prohibition does not apply:
However, administrative authority is not prohibited from performing administrative, executive, or ministerial duties. Similarly, it would not lie against the legislature to prevent it from passing or enforcing a law.
- The purpose of a writ of prohibition is to prevent the unauthorized assumption of jurisdiction. Therefore, it can only be issued when it is proven that a judicial or quasi-judicial authority lacks or exceeds its jurisdictional authority. In cases where a judicial authority exercises its authority in an irregular, improper, or erroneous manner, there is no basis for prohibition.
- If proceedings before a judicial or quasi-judicial authority are partially within and partially without jurisdiction, a prohibition order may be issued for the latter.
· Prohibition in Bangladesh:
Prohibition is a preventive writ issued to stop the illegal exercise of jurisdictional power to the detriment of a person’s legal rights. In accordance with subclause I of clause (a) of subclause (2) of article 102 of the Constitution, the High Court Division may order a person performing functions related to the affairs of the Republic or a local authority to refrain from acting contrary to the law.
A person may file a writ petition against a court if he or she has evidence or personal knowledge that an order issued by a lower court is unlawful or beyond the lower court’s jurisdiction. And if the Supreme Court determines that the complaint is valid, it can issue a writ of prohibition against the lower court.
A prohibition writ may be issued when there is insufficient or excessive jurisdiction. Consequently, if jurisdictional defects are apparent, it is not only the authority but also the obligation of the superior court to issue this writ to prevent a subordinate court or inferior tribunal from usurping or exceeding its jurisdiction. If judicial or quasi-judicial authorities attempt to exercise jurisdiction beyond their Congressionally-granted authority, a superior court should not hesitate to use its power of prohibition.
a) Nature and breadth:
Certiorari is Latin for “to certify.” In its original Latin form, it required “the judges of any inferior court of record to certify the record of any matter in that court with all things touching the same and to send it to the king’s court for examination.” If it is an order issued by the high court to an inferior court or any authority exercising judicial or quasi-judicial functions to investigate and determine the legality and validity of the orders passed by it.
The purpose of the writ of certiorari is to keep inferior courts and quasi-judicial authorities within the limits of their jurisdiction; if they act outside of their jurisdiction, their decisions can be overturned by superior courts through the issuance of this writ.
c) Differentiating certiorari from other writs:
The body is served with a writ of habeas corpus, but not the record. A writ of certiorari is always delivered to the body, never to the records. Mandamus acts when the tribunal declines jurisdiction, whereas certiorari acts in cases of usurpation or excess of jurisdiction. Certiorari corrects, whereas mandamus requires action. Where judicial or quasi-judicial authorities can issue certiorari, administrative authorities can also issue mandamus. Both prohibition and certiorari are available against subordinate courts and inferior tribunals as judicial writs. The only difference between certiorari and prohibition is the timing of the remedy, with one occurring before the decision and the other following it. Certiorari and prohibition are complementary writs that frequently go hand in hand. A writ of certiorari is remedial or corrective, while a writ of prohibition is preventative. Certiorari applies to a decision that is a fait accompli, whereas prohibition attempts to prevent the fait accompli from occurring.
The following requirements must be met for the issuance of a writ of certiorari:
- The judiciary or quasi-judiciary must be authorized by law;
- This authority must be able to determine questions affecting subject rights;
- It must be obligated to act judiciously; and
- It must have acted beyond its scope of authority.
A writ of certiorari may be issued on the basis of the following:
- Error of authority
A writ of certiorari may be issued against a lower court or tribunal that acts without jurisdiction, exceeds its jurisdiction, or fails to exercise the jurisdiction vested in it by law.
- jurisdictional fact
Insufficient jurisdiction may also result from the absence of certain preliminary facts that must exist before a court exercises its authority. These facts are referred to as “jurisdictional” or “collateral.” The existence of these facts is a condition precedent or sine qua non for an inferior court or tribunal to assume jurisdiction.
- Error evident on the face of the record
By issuing a writ of certiorari, a decision of a lower court or a tribunal can be overturned if there is an obvious error of law on the face of the record.
Transgression of natural justice
A writ of certiorari may be issued when the principles of natural justice have been violated.
f) Eligible applicants:
Typically, the party whose rights are at stake may file a petition for certiorari. If the question affects the general public, however, anyone may apply. The court should grant ex.debito justitiae relief if the application is made by the party directly affected by the litigation. However, if the application is made by a party not directly affected by the litigation, the court has complete discretion to grant the writ.
g) Who certiorari would lie against:
Certiorari is a type of judicial writ. It is brought against subordinate courts, inferior tribunals, quasi-judicial bodies, and deciding authorities. Certiorari can be issued against a court or tribunal even if it ceases to exist or becomes functus officio.
A writ of certiorari is a discretionary remedy, so it may not be issued if the aggrieved party has access to another adequate remedy. However, as discussed previously, it is a rule of policy, convenience, and discretion, not of jurisdiction, and despite the availability of alternative remedies, it may be issued if the order is manifestly erroneous or if the inferior court or tribunal acted without jurisdiction, in excess of its jurisdiction, contrary to the principles of natural justice, or in violation of the petitioner’s fundamental rights.
· Certiorari in Bangladesh:
Certiorari entails the investigation by a superior court of the proceedings of any lower court or tribunal. The High Court Division of the Supreme Court of Bangladesh may request records of any pending or concluded proceedings before any authority or court, including a tribunal, for the purpose of examining the legality or otherwise of said proceedings. Under subclause (ii) of clause (a) of article 102, not only the legality of a proceeding, but also any act done by a person performing functions related to the affairs of the Republic or a local authority, may be declared to have been done without any legal authority and without legal effect. Thus, the remedy provided by the aforementioned subclause (ii) is broader than the remedy provided by a writ of certiorari. In a writ of certiorari, a superior court intervenes when a lower court or tribunal acts without jurisdiction or in excess of its existing jurisdiction, or when it fails to exercise its jurisdiction – for instance, when it decides a case without affording the parties an opportunity to be heard, or when it violates the principle of natural justice, or when there is an obvious error in the record of such proceedings. But under subclause (ii) of clause (a) of article 102, the High Court Division may also declare any act performed by a non-judicial or quasi-judicial authority to be unlawful.
A writ of certiorari is also a judicial writ that can be filed by the aggrieved party or, in some cases, by anyone against a lower court or authority.
A writ of certiorari governs all courts, tribunals, and other authorities that purport to act without or beyond their jurisdiction. It is also available when the principles of natural justice have been violated or when there is an obvious error of law on the face of the record. In addition to judicial and quasi-judicial bodies, administrative orders can now be challenged with this writ.
· QUO WARRANTO
(a) Character and Range:
The literal translation of “Quo Warranto” is “what is your authority?” It is a legal remedy against an occupier or usurper of an independent, self-sustaining public office, franchise, or liberty. By issuing this writ, the court requires the defendant to demonstrate by what authority he holds the office, franchise, or liberty. If the incumbent lacks the authority to hold office, he can be removed from his position. Alternatively, this writ protects the holder of a public office from being deprived of his rights.
The quo warranto procedure confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public officers contrary to applicable statutory provisions; it also protects a citizen who has been wrongfully denied a public office to which he may be entitled.
Before the quo warranto can be issued, the following prerequisites must be met:
i. The position must be public in nature. Public office refers to a position in which the general public has an interest. Before issuing the writ, the court must be convinced that the office in question is a public office and that the incumbent lacks the legal authority to hold said office. This writ will not lie in relation to a private office, such as a private school’s governing board.
ii. The position must be substantive in nature. The phrase “substantive character” indicates that the office in question must be independent. This office must be held by an independent official, not merely a subordinate or servant.
iii. The office must be created by statute or the Constitution. Thus, a quo warranto can be issued with regard to the offices of the Prime Minister, Advocate General, High Court Judge, Public Prosecutor, Speaker of a House of the State Legislature, etc.
iv. The incumbent must have made a claim to the office. The mere assertion of a claim is insufficient. However, improper swearing can justify quo warranto.
Who Might Apply:
The purpose of the writ of quo warranto is to prevent a person who has illegitimately seized a public office from remaining in that position. Therefore, an application for a writ of quo warranto challenging the legality and validity of an appointment to a public office may be filed by any private individual, even if he has no personal stake in the matter.
(e) When refusal is permitted:
Quo warranto is a discretionary remedy, and the petitioner has no inherent right to obtain this writ. Taking into account the facts and circumstances of the case, the court may refuse to grant this writ. This may include situations where the issues of a writ would be vexatious, where the petitioner has consented, or where it would be futile because the holder of the office in question has resigned. It may also be denied if there is a simple election irregularity.
A writ of quo warranto may also be denied on the grounds that the petitioner has access to alternative statutory remedies. Thus, when it was sought to enforce a writ of quo warranto against a member of the State legislature, it was denied on the grounds that an election petition provided an alternative remedy.
If the applicant has access to an alternative and equally effective remedy, the writ court may not issue quo warranto and compel him to pursue that remedy. Existence of alternative remedy is not, however, an absolute bar, and a writ court has the discretion to issue quo warranto despite the existence of alternative remedy.
A writ of quo warrento has a continuous cause of action. If an officer is illegally appointed, each day that he acts in that office creates a new cause of action, and a petition cannot be dismissed on the basis of delay.
The status quo in Bangladesh:
Quo Warranto means “by what authority or warrant” The Writ of Quo Warranto is a remedy for the illegal occupation or usurpation of any public office, franchise, or liberty. It permits an investigation into the legality of a person’s claim to an office or franchise and his removal from such a position if he is a usurper. The incumbent must demonstrate to the court under what authority he holds office. In accordance with clause (ii) of clause (b) of subparagraph (2) of article 102 of the Constitution, this remedy is available from the High Court Division.
The Supreme Court may file this writ against any company or individual if it determines that they lacked the legal authority to hold their position. Suppose that a court would file a writ of Quo Warrento against a garment industry if it lacked the legal authority to operate.
(h) In summary:
From the preceding discussion, it is evident that a usurper or an intruder can no longer hold a public office. As soon as the court is made aware of this fact, it has not only the authority but also the responsibility to declare that he is ineligible to hold such an office and prevent him from acting as such.
Public Interest Lawsuits (PIL)
Public interest litigation in Indian law refers to litigation aimed at protecting the public interest. It is the introduction of litigation in a court of law not by the aggrieved party but by the court or another private party. It is not necessary for the court’s jurisdiction to be exercised that the individual whose rights have been violated personally appear before the court. Judicial activism grants courts the authority to litigate in the public’s best interests. However, the petitioner must demonstrate to the court’s satisfaction that the petition is filed in the public interest and not as a frivolous lawsuit filed by a busybody.
Such situations may arise when the victim lacks the financial means to file a lawsuit or when his right to access the courts has been restricted or violated. Cases may be initiated upon the court’s own initiative or upon the petition of any concerned citizen.
ORIGIN of the ILL
Prior to the 1980s, only the aggrieved party could seek justice in court. However, after the 1980s and the end of the emergency era, the apex court decided to reach out to the people, so it devised an innovative way for individuals or civil society groups to seek legal remedies in cases involving public interest. Justices P. N. Bhagwati and V. R. Krishna Iyer were among the court’s first judges to accept PILs. There have been instances in which letters and telegrams addressed to the court were taken up as PILs and heard by the court. Filing a PIL is not as difficult as filing any other legal case.
PIL in Bangladesh: a brief historical overview
PIL in Bangladesh is a post-democratic (i.e. post-1991) phenomenon, and its entrenchment in-Bangladeshi constitutional jurisprudence in the mid-1990s was significantly influenced by this political change. However, unlike their Indian counterparts, Bangladeshi judges have not been optimally instrumental in PIL’s laborious birth. In fact, the main reason for Bangladesh’s late adoption of PIL appears to have been judicial reluctance to abandon colonial legal traditions. In addition, while the emergence of PIL owes much to the judicial adoption of an autochthonous mode of Constitutional interpretation, there has been little articulated demand for socially relevant jurisprudence in Bangladesh, nor is there much awareness of the inadequacy of the inherited, ancient British legal traditions.
1974’s Kazi Mukhlesur Rahman v. Bangladesh (henceforth Berubari) decision had a strong PIL flavor and came close to establishing the principle of judicial review in the public interest. Despite the fact that Beruburi “made the rule of standing a matter of judicial discretion,” it did not definitively establish PIL in the sense that it is understood today. A citizen in Beruburi was granted standing to challenge the constitutionality of the Dhaka-Delhi Treaty (involving territorial cession) because it involved a “outstanding” constitutional issue “affecting the rights of the entire population of Bangladesh.”
Unfortunately, as subsequent judicial inertia demonstrates, the Berubari style of flexible judicial attitude was unable to dislodge the prevalent legal formalism and a high threshold for standing. This decision did not even sufficiently enlighten the most brilliant jurists. Consider the following orthodox observations made in Bangladesh Sangbadpatra Parishad v. Bangladesh (henceforth Sangbadpatra) in 1991, which were surprisingly made by the same judge who later led the charge in establishing PIL in Bangladesh:
The petitioner seeking enforcement of a fundamental right must be a “person aggrieved” under our Constitution. It appears that the court rejected the possibility of PIL in Bangladesh because, unlike India, Bangladesh’s Constitution required a petition from a “person aggrieved” in order to access constitutional remedies (Article 102).
Ofttimes, we are cautioned not to interpret these remarks as intended to impede PIL in Bangladesh, but rather to view them in the context of non-PIL Sangbadpatra. True, Sangbadpatra, where an associational standing was denied on rather flimsy technical grounds, was not a PIL in the traditional sense. However, where are the justifications for the above-quoted generalizations about PIL? Sangbadpatra, by erecting a “formidable barrier” to the later development of PIL in Bangladesh, did more damage than the optimists and the judges themselves initially believed.
Several interdependent factors made possible this change in Bangladesh’s legal history. First, in the context of newly-acquired judicial freedom and heightened public expectations of judicial intervention during the post-democratic transition period, the judiciary could not help but change its attitude toward an inherited, unresponsive legal procedure. Second, internal pressure from established legal circles increased for a paradigm shift in the Supreme Court’s jurisprudence, and the civil society-driven public interest movement gained momentum in the new democratic environment. This was reflected in an HCD decision from 1994 in which N. Ahmed improperly applied Sangbadpatra by granting associational status to a group pursuing a cause of public interest rather than private interest. The judge broke new ground by stating that the Constitution is a living document that should be interpreted in light of the changing socio-economic conditions of society, as well as to meet the ‘needs of those who are unable, due to poverty or other circumstances, to seek the assistance of the court that exists to protect the rights and interests of all citizens.’ This social interpretation of the Constitution empowered civil society organizations to renew their vigor in their fight for PIL. Thirdly, the development and success of PIL in other South Asian nations, particularly India, also influenced the judicial shift in attitude regarding PIL, although the influence of other jurisdictions on the emergence of PIL in Bangladesh is rarely acknowledged in the literature. There is evidence that cross-jurisdictional learning and the exchange of experiences among judges in Bangladesh contributed to the emergence of PIL.
However, it must be acknowledged that FAP 20’s significant shift in constitutional interpretations was influenced by the “indigenous” nature of the Constitution of Bangladesh. In FAP 20, the Supreme Court ruled that the Constitution was “not the result of a negotiated settlement with a former colonial power,” but rather “the fruit of a historic war of independence, won with the lives and sacrifices of a significant number of people for a common cause,” namely a just society. Noting that ‘people feature as a dominant actor’ in the Constitution, the Court pledged to make the people “the focal point” of its concerns.” This line of reasoning led Kamal to employ a pro-people, holistic and teleological interpretation to the Article 102 phrase ‘a person aggrieved’, thereby opening the judicial door to ‘the people as a collective personality’ as opposed to keeping it reserved only for a lexicographically understood ‘aggrieved’ Contemporary Bangladeshi judicial activism owes a substantial debt to the liberal regime of locus standi that resulted from judicial re-articulation of the constitutional mandate for social justice and judicial awareness of the exclusion of the majority from remedial justice.
This is how PIL writ petition in bangladesh in Bangladesh took off; a relatively conservative beginning in comparison to other successes, but nonetheless historic. Having set the stage for action, one could anticipate more PILs. The judiciary and legal circles, including human rights groups, required time to build a sustainable support base for future actions, which appears to be in the process of being constructed at this time. This initial phase of Bangladeshi PIL revealed a state of jurisprudential ambiguity and a pervasive reluctance among legal activists. This is evident from the paucity of PIL actions, as well as their framing as actionable civil rights claims filed primarily by, or jointly with, more directly affected petitioners.39 However, there were also cases involving civil-political rights and constitutional principles that went beyond the traditional pattern of actions on behalf of the’most disadvantaged’ In addition to civil-society organizations and public-spirited individuals/lawyers, political litigants or litigation for political interests began to emerge as a new, if not ultimately perilous, aspect of this period. Bangladeshi PIL entered this advanced phase of ‘the middle class usurpation’ of PIL techniques rather quickly, bypassing the desirable ‘pioneer stage’ of focusing on issues of grave violations of the most fundamental human rights. Nonetheless, the recent reorientation of PIL towards more genuine, broader constitutional causes has substantially diminished the possibility that it will be abused for private gain.
After 2000, the number of PIL cases and successful decisions began to increase following the development phase. As with their predecessors, the majority of these modern rights-based PILs involved environmental justice, which attracted the court’s spontaneous and relatively assertive interventions. In fact, continued judicial environmental activism has been one of the defining characteristics of Bangladeshi PIL law. In a number of cases, acts of conversion by relevant government agencies of open spaces into housing plots or commercial buildings were voided for violating the fundamental rights of local people and causing harm to their health and well-being.
It appears that the Bangladeshi Supreme Court is becoming more cognizant of the limitations of law on paper and the need to engender a duty-based legal regime by “fostering a sense of public duties among the general public” and enforcing the constitutional and statutory duties of state functionaries regarding the ‘welfare’ of the citizens; sometimes by assuming a rights-enhancing and constitution-enforcing role. In Prof Nurul Islam v. Bangladesh, for instance, the HCD exercised some policy/lawmaking activism by banning cigarette and cigarette-related product advertisements in order to protect the right to life of the people. There was no law prohibiting tobacco advertising, but an innovative court determined that such a ban was implicit in the’self-executing’ right to life. Informed by the implications of the Fundamental Principles of State Policy, particularly relating to the promotion of public health and associated state obligations, the court asserted its authority to issue appropriate declarations/directions such as this banning order to remedy any violation of the people’s right to life./Similarly, in the Industrial Pollution decision, the Court correctly found an enforceable “constitutional guarantee for a pollution-free environment.”
Conclusion: judicial public interest and constitutional activism in Bangladesh have begun to make progress and achieve successes, but have not yet fulfilled their potential. It appears that a significant portion of the future of this PIL-based judicial activism will depend on the ongoing process of adjusting the PIL movement in Bangladesh, which has a long way to go before achieving the constitutionally guaranteed social and political justice. The ineffectiveness of Bangladeshi PIL has been attributed to its elitist application. This accusation is largely true, but a functional definition of PIL based solely on social rights hid behind it. This article has demonstrated that the underperformance of PIL is rooted not in its elitist use per se or in excessive judicial activism, but in the traditional procedural and substantive pattern of Bangladeshi judicial activism. In addition, the judiciary has failed to build and expand its capacity to effectively enforce its decisions and hold the executive accountable. This is a more difficult and daunting task for the Bangladeshi (and any other) judicial system than issuing good orders. The absence of a collectivized judicial philosophy regarding justice-conscious jurisprudence may also be a significant barrier. The judges’ general propensity for legal positivism, i.e., their reluctance to continue innovating in the field of justice (with a few notable exceptions), partially but significantly explains these problems. Decisions rejecting meritorious petitions on the basis of lack of standing, judicial conservatism in awarding remedies, the reluctance to enforce rights horizontally, and the reluctance to actively engage with the ‘non-enforceable’ FPSP are examples of the persistence of judicial inhibitions.
In this paper, it is argued that increased judicial activism could have bolstered the confidence of genuine, non-elitist public interest litigants to pursue justice through the courts. Having said that, this paper applauds and strongly supports the emerging trend of constitutionalism-based PIL as a means of ensuring public accountability. On the basis of a broader conception of social justice than one that focuses solely on social rights, it is argued that enforcing constitutional principles through PILs, even if filed by elites, could be a viable avenue for social-constitutional justice. The Bangladeshi context demonstrates that an assertive, socially active, and justice-conscious judiciary, along with other extrajudicial factors, is essential if the Constitution is to function as an instrument of social transformation.The debate over whether PIL serves the elites or the marginalized should be directed toward the question of whether the holders of public power adhere to broader constitutional principles or” justice.
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