Writ, Judicial Review and PIL

Judicial Review
Judicial review is the power of the Court to hold any
action by a executive, judicial or quasi judicial
authority illegal and hence unenforceable and to
enforce their performance of the statutory duty. The
power has been extended in written constitutions to
cover the power of the Court to declare a law or
even a constitutional amendment unconstitutional
on the ground of inconsistency with or repugnancy
to the constitution. Judicial review also embraces
the power of the court to enforce fundamental
rights and to declare a law or an official action to be
invalid if it contravenes a fundamental right.
In Jamil Huq v. Bangladesh 34 DLR (AD) 125, it was
held that the supreme judiciary has been conferred
with the power of judicial review of executive action
and other judicial acts and proceedings of
subordinate courts or tribunals under Article 102.
Under Clause 1 of Article 102 (read with the Article 44),
the High Court Division may issue directive or order
against 'any person or authority including any person
performing any function in connection with the affairs
of the Republic' for the enforcement of fundamental
rights guaranteed in Part III of the Constitution. Under
Clause 2 of Article 102 of the Constitution, the
Supreme Court is endowed with the writ jurisdiction.
 Writ

General Meaning - a formal order in

Writing issued under seal, in the name
of a sovereign, government, Court or
other authority, commanding an
officer or other person to whom it is
issued, to do or refrain from doing
some act specified therein.
Writ
There are five kinds of writs, namely
certiorari, habeas corpus, mandamus,
prohibition and quo warranto. Originated
first in England, these writs were exercised
by the Judges of the King's Bench and called
prerogative writs on behalf of the King.
• The writ is issued for correcting an error of law
apparent on the face of records. It cannot be
issued to correct an error of fact.
Habeas Corpus means 'have his body'. This is a
British Law for the protection of liberty of a
subject against his illegal detention in public or
private custody since 1640. The King's Bench
issued writ of habeas corpus to examine as to
whether a person was illegally detained in
custody.
 Writ of Habeas corpus
A person, when arrested, can move the Court for the
issue of Habeas Corpus. It is an order by a Court to the
detaining authority to produce the arrested person
before it so that it may examine whether the person
has been detained lawfully or otherwise. If the Court is
convinced that the person is illegally detained, it can
issue orders for his release.
 Who can apply?
General rule is that an application can be made
by a person who is illegally detained. But in
certain cases, an application of habeas corpus
can be made by any person on behalf of the
prisoner, i.e., a friend or a relation.
Mandamus means 'we command'. By writ of
mandamus, the superior court directs any person,
corporation, lower court or government to do
something, specified therein, which pertains to
his or their office and is in the nature of a public
duty. This writ is issued when the lower tribunal
has declined to exercise jurisdiction vested in it or
any public authority declined to do what he is
required by law to do.
 Writ of Mandamus
• Mandamus is a Latin word, which means "We
Command".
• Mandamus is an order from a superior court to a
lower court or tribunal or public authority to perform
an act, which falls within its duty.
• Simply, it is a writ issued to a public official to do a
thing which is a part of his official duty, but, which,
he has failed to do, so far. This writ cannot be
claimed as a matter of right. It is the discretionary
power of a court to issue such writs.
Writ of mandamus does not lie against a
private individual or any private organisation
because they are not entrusted with a public
duty.
• The writ is issued in both cases where there is
excess of jurisdiction and where there is
absence of jurisdiction.
Prohibition means 'to forbid' from doing
something. In other words, it is a writ issued by
the superior court to a lower court, tribunal or
administrative authority prohibiting it from
doing something which it is not authorized by
law to do. Prohibition is a preventive writ and
issued to stop illegal exercise of power of
jurisdiction to the detriment of any legal right of
a person.
 Writ of Prohibition
• Writ of prohibition means to forbid or to stop and it
is popularly known as 'Stay Order'.
• This writ is issued when a lower court or a body tries
to transgress the limits or powers vested in it.
• It is a writ issued by a superior court to lower court
or a tribunal forbidding it to perform an act outside
its jurisdiction. After the issue of this writ,
proceedings in the lower court etc. come to a stop.
• The writ is issued in both cases where there is
excess of jurisdiction and where there is
absence of jurisdiction.
Certiorari means 'be certified'. In a writ of certiorari,
superior court interferes when the lower court or
tribunal acts without any jurisdiction or in excess of
its existing jurisdiction or in cases where it fails to
exercise its jurisdiction - for example, when it
decides a case without giving an opportunity to the
parties to be heard or violates the principle of
natural justice or if there is an error apparent on the
face of the record of such proceedings.
• The writ is issued for correcting an error of law
apparent on the face of records. It cannot be
issued to correct an error of fact.
• Apply both Prohibition and Certiorari -
Prohibition to prevent the court to proceed
further with the case and Certiorari for
quashing what had already been decided.
Quo Warranto means 'by what warrant or
authority'. Writ of quo warranto provides remedy
against illegal occupation or usurpation of any
public office or franchise or liberty. It enables
inquiry into the legality of the claim, which a
person asserts to an office or franchise and to
oust him from such position, if he is a usurper. The
holder of the office has to show to the court
under what authority he holds office.
 Writ of Quo-Warranto
• The word Quo-Warranto literally means “on what
authority one is holding the public office"
• It is a writ issued with a view to restraining a person
from acting in a public office to which he is not
entitled.
• For example, a person of 62 years has been
appointed to fill a public office whereas the
retirement age is 60 years. Now, the High Court has a
right to issue a writ of quo-warranto against the
person and declare the office vacant.
Article 102: Writ Jurisdiction of the HCD
Under Article 102 of the Constitution, the High Court Division
exercises its power of judicial review by issuing writs in the nature
of prohibition, mandamus, certiorari and quo warranto, against
the concerned public functionaries and a writ of habeas corpus
against anyone, including a private individual, if there is a violation
of any relevant provision of this Article. The jurisdiction under this
Article is known as Special Original Jurisdiction or Writ Jurisdiction.
Under Article 102(2)(i)(a) of the Constitution, if the High Court
Division on an application by the 'person aggrieved' is 'satisfied
that no other equally efficacious remedy is provided by law', it
may direct a person performing functions in connection with the
affairs of the Republic or a local authority to do what he is
required by law to do. This remedy is available when any right of a
person, arising from any law and not from any contract, is
violated.
Under Article 102(2)(a)(ii) of the Constitution, not only
the legality of a proceedings but also any act done by a
person, performing functions in connection with the
affairs of the Republic or a local authority, can be
declared to have been done without any lawful
authority and with no legal effect.
Under Article 102(2)(b)(i) of the 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.
Relief afforded in the Writ Petitions
The High Court Division, if it does not reject an application summarily may issue
a Rule Nisi calling upon the respondent to explain as to why the order and/or
action, should not be declared to have been made or taken without lawful
authority and is of no legal effect.-
• If the petitioner can make out a strong prima facie case the High Court
Division might even pass an interim order by staying the operation of the
Impugned Order for a certain period or until the disposal of the Rule.
• Relief in most of the Public Interest Litigation cases is obtained through
interim orders. Alternatively the High Court Division may also order to
maintain status quo.
• The court may appoint a committee, or commissioner to look into the matter,
and submit its report. Such committee or commissioner may also be given
power to take cognizance of grievances and settle it right in the public intent.
• The court may give final orders by way of direction to comply within a
stipulated time.
• The Court also has the discretionary power, under the Supreme Court Rules,
of awarding cost of the application however the rules are not detailed.
• Public Interest Litigation
• Till 1960s and seventies, the concept of litigation
was still in its rudimentary form and was seen as a
private pursuit for the vindication of private vested
interests. Litigation in those days consisted mainly
of some action initiated and continued by certain
individuals, usually addressing their own
grievances/problems. Thus, the initiation and
continuance of litigation was the prerogative of the
injured person or the aggrieved party. However,
this entire scenario changed during 1980s with the
Supreme Court of India leading the concept of
Public Interest Litigation (PIL).
A PIL is not defined in any statute. Where a legal wrong or a
legal injury is caused to a person or to a determinate class
of persons and such a person or determinate class of
persons is by reason of poverty, helplessness or disability
or socially or economically disadvantaged position,
unable to approach the court for relief, any member of
the public can maintain an application for appropriate
direction.
The right considered sufficient for maintaining a proceeding
of these nature is not necessarily a right in the strict
juristic sense but it is enough if the applicant discloses
that he has personal interest in the matter which involved
loss of some personal benefit or advantage or the
curtailment of a privilege or liberty of franchise.
Thus while the concept of legal injury and its redress still
remains, the change brought about is by re-
interpretation of jurisprudential concept of Locus Standi
by ignoring who moves the court and taking note of the
people who have suffered injury and for whom redress
or relief is called for.
Liberalising the Locus Standi
Whenever someone complains of another’s action, the
first question asked is “what is it to you?” In a pedestrian
sense that is the issue of standing. Traditional rule was
that the right to move the Supreme Court is only
available to those whose fundamental rights are
infringed. But this traditional rule was considerably
relaxed by the Courts in their innovative rulings.
EVOLUTION Of PIL
In England, Mr. Raymond Blackburn, once a Member of
Parliament, came to the court with as many as four cases
involving issues of public interest at large.
• In R v. Commissioner of Police of the Metropolis ex parte
Blackburn (1968) 2 QBD 118 he complained of violation of law
by the big gambling clubs of London. He sought mandamus for
the strong enforcement of law. It was held that every citizen
has an interest in seeing that the law is enforced.
• In Blackburn v. Attorney General 1972 1WLR 1037 he
challenged the Government’s right to join common market by
signing the Treaty of Rome. Though the Court rejected his
argument, it did not rule him out on the issue of standing
because he said that he felt strongly and that it was a matter
in which people of England are concerned.
• In R v. Police Commissioner ex parte Blackburn (1973) QB 241
he complained that laws against pornography were not being
enforced. He had no interest except that his children might
see the publications. The Court held that he served a useful
purpose in drawing the matter to the Court’s attention.
• In R v. GLC ex parte Blackburn 1976 1WLR 550 he complained
of inaction on the part of the Greater London Council. Lord
Denning regarded it as a matter of high constitutional
principle that if there is good ground for supposing that a
government department or a public authority is transgressing
the law, or is about to transgress it in a way which offends or
injures thousands of subjects, then anyone of them offended
or injured can draw it to the attention of the courts of law and
seek to have the law enforced, and the courts in their
discretion can grant whatever remedy is appropriate.
In India as well ‘standing’ has been liberalized to a great extent.
The role of the Indian Supreme Court in granting remedies in a
wide range of grievances liberalizing the locus standi is a
commendable one. Below are some examples:
• In SP Gupta v. Union of India AIR 1982 SC 149 (Judges Transfer
Case), the Court held that Public Interest Litigation can be filed
by any member of public having sufficient interest for public
injury arising from violation of legal rights so as to get judicial
redress.
• In the case of MC Mehta v. Union of India (1988) 1 SCC 471
the petition was brought to prevent any further pollution of
Ganga. The Supreme Court held that petitioner although not a
riparian owner is entitled to move the court for the
enforcement of statutory provisions, as he is the person
interested in protecting the lives of the people who make use
of Ganga water.
In Bangladesh though we have got the earliest
example of taking liberal view on locus standi long
back in 1974 in Kazi Muklesur Rahman v. Bangladesh
26 DLR (AD) 44, the judiciary has been reluctant to
utilize the scope widely. One of the reasons behind
such reluctance may be the presence of the term
‘person aggrieved’ in Article 102, while absence of
the term in Article 32 or 226 of the Indian
Constitution has facilitated the liberalization of locus
standi in India. Traditionally, a person aggrieved is
deemed to have a personal grievance. However,
with the passage of time, the Supreme Court has
done to the concept what it deserves.
• Kazi Mukhlesur Rahman v. Bangladesh 26 DLR (SC) 44
• The agreement between the Governments of the Prime
Ministers of Bangladesh and India widely known as Delhi
Treaty of 16 May 1974 demarcated the land boundary
between Bangladesh and India in certain areas, especially
the Berubari. One Kazi Muklesur Rahman challenged the
Treaty being ultra vires the powers of the Prime Minister.
• The appellant not being a resident of any part of the
territories involved in the Delhi treaty, the Government
contended that the appellant could have no interest therein
which could be affected by the treaty and as such he was
not a person aggrieved within the meaning of the Article
102(2) of the Constitution. The appellant relied on the
argument that ‘person aggrieved’ should be construed
liberally and given a wide meaning.
• Relying on Blackburn v. Attorney General (1971) IWLR 1037,
the Court hold:
The fact that the appellant is not a resident of the southern half
of the south Beruabri Union No 12 or of the adjacent enclaves
involved in the Delhi treaty need not stand in the way of his
claim to be heard in this case. We heard him in view of the
constitutional issue of grave importance raised in the instant
case involving an international treaty affecting the territory of
Bangladesh and his complaint as to an impending threat to his
certain fundamental rights guaranteed by the Constitution
namely, to move freely throughout the territory of
Bangladesh, to reside and settle in any place therein as well as
his right to franchise. Apparently these rights attached to a
citizen are not local. They pervade and extend to every inch of
the territory of Bangladesh stretching upto the continental
shelf.
• Dr. Mohiuddin Farooque v. Bangladesh 49 DLR (AD) 1
The issue of locus standi came directly under
consideration in this writ petition. Here accepting the
grievance of Mr Mohiuddin Farooque against the
Flood Action Plan (FAP) of the government, the
Appellate Division held that in view of the
pronounced scheme and objectives of the
Constitution, it is difficult to accept that the framers of
the Constitution intended to allow any public wrong
to go without any remedy and used the expression to
adhere the traditional view of standing. Since then it
has been accepted that person aggrieved means a
person who without being personally effected has
sufficient interest in the matter in dispute.
• Anwar Hossain Khan v. Speaker, Jatya Sangsad 47 DLR(HCD) 42
• During 1995, the combined opposition parties were boycotting
the Parliament in demand of the introduction of non-party
caretaker government. Anwar Hossian Khan filed this writ
petition challenging the continuous and unabated abstention of
the respondents namely Awami League, Jatya Party and Jamaat
Islami and prayed for mandamus ordering them to attend the
sessions of Parliament. As to whether the petitioner had locus
standi or not, the respondents claimed that the petitioner was
not a person aggrieved. The petitioner, on the other hand,
stated that as a citizen and voter of Bangladesh he has a right to
call in question the breach of a constitutional obligation
committed by a MP. Since the Constitution is a solemn
expression of the will of the people, any of its violation by
anybody including the members of the parliament can be called
in question by each and every citizen of Bangladesh.
• Taking inspiration from Article 7, the Preamble, the
concept of ‘popular sovereignty’ and referring to the
people’s burden to observe, protect, upheld and safeguard
the Constitution in the Preamble, the Court held that he
has got the standing. However the Appellate Division in
Appeal rejected the standing. Taking into consideration,
the political motive of the petitioner behind this petition,
the Appellate Division held:
• The writ petitioner initiated the proceeding not to
vindicate the cause of the general people in general or that
of a group in the society who are for some reason not in a
position to vindicate their cause before the Court but for
serving the cause of somebody else for some purpose
other than that of public nature or for cause of a
vulnerable group in the society.
Saiful Alam Dilder v. Government of Bangladesh 50 DLR 318
The petitioner Saiful Islam Dilder, the Secretary-General of
Bangladesh Human Rights Commission sought issuance of a
Rule on the Government to show cause as to why handing
over of Anup Chetia alias Golap Barua, Secretary General of
United Liberation Front of Assam (ULFA) to Indian
Government should not be stayed.
It was claimed that the petitioner was actively involved with
the issue of Human Rights at home and abroad. He was
concerned for violation of Human Rights viz, torture,
arbitrary arrest, extra-judicial killings, involuntary
disappearance which was being carried out by the Indian
Government against the freedom fighters struggling for
right to self determination of the Assamese people since
1979.
Rejecting the claim of the petitioner, the Court held that to be a person
aggrieved one’s heart must bleed for the cause of justice and for
nothing else. The Court held:
There is statement in the petition that Anup Chetia is a ‘less fortunate
fellow’ of the petitioner. Nowhere within the four corners of the
petition, it is stated that Anup Chetia is also unable to vindicate his own
right………From the statement made in this petition we do not find that
the petitioner or his organization has been contributing to the cause of
the people….. Merely because one is a Secretary General or a member
of any Human Rights Commission is not sufficient ground to hold that
he has a sufficient interest in the field….. Anup Chetia was charged with
treason in his own country for leading his people for ‘self
determination’. Can the Court hold that the petitioner is a ‘person
aggrieved’ only because his ‘heart bleeds’ from reading news published
in the newspaper about the handing over of Anup Chetia to Indian
Authority? We refrain taking such view by stretching the meaning of
‘person aggrieved’ and hold that the petitioner has no ‘locus standi’ to
maintain this petition as he is not an ‘aggrieved person.’
• SN Goswami v. Govt of Bangladesh 55 DLR (HCD) 332
In this case the appointment of Justice Muhammad Golam Rabbani
and Justice M Ruhul Amin in the Appellate Division by
superseding two other Judges (Justice K M Hasan and Justice
Syed J R Mudassir Hossain) was challenged. To hold that the
petitioners (SN Giswami and Saiful Alam Dilder) were not
persons aggrieved, the Court observed:
The petitioner no 1 Mr SN Goswami is an unknown junior member
of the Supreme Court and No 2 is said to be the Secretary
General of a NGO whose name we didn’t know earlier.
As no prominent Members of the Bar has come out with a
challenge, two unknown and insignificant citizens have seized
the opportunity and filed this petition to catch the public eye and
to come to prominence. The petition has been filed for their
personal gain or private profits coupled with political motivation
and oblique considerations.
Advocate Sultana Kamal v. Bangladesh 14 MLR (HCD) 105
In this PIL, three eminent citizens of the country - Advocate Sultana
Kamal, Nurul Kabir Shahin, Editor New Age and Sheik Hafizur Rahman
Karzon, Assistant Professor, University of Dhaka challenged the
constitutionality of certain provisions of the Emergency Power
Ordinance, 2007 and the Emergency Power Rules, 2007.
The Attorney General challenged their locus standi by claiming that due
to the emergency, the petitioner No 1 didn’t face any problem in
running his organization, petitioner No 2 didn’t face any problem in
publishing his news paper, the petitioner No 3 didn’t face ay problem in
teaching in his University. In fact they all were busy body with their
personal agenda and they were not representing the disadvantaged
class of the society. To uphold the standing of the petitioners, the Court
observed:
It is an established truth that the Constitution of Bangladesh belongs to
all the citizens of Bangladesh. It is the hairloom of the peoples of
Bangladesh and all citizens have a claim over this. For this reason every
citizen of the country has the right ot be aggrieved in its violation.
Exclusion of Judcial Review
A close scrutiny would reveal, inter alia, that there are some notable
limitations in the abovementioned clauses. Firstly an application
under Article 102 can only be made by the 'person aggrieved' with
the exception of a writ of habeas corpus and quo warranto.
Someone who has got some kind of relationship with the detainee
can bring an application for a writ of habeas corpus and an
application for a writ of quo warranto can be brought by anybody.
In other occasions the petitioner must prove locus standi (who has
suffered a legal grievance) to come before the writ jurisdiction.
The other notable limitation of Article 102 is that an application
under the Clause 2 of the Article will not be entertained if there is
any other equally efficacious remedy provided by some other law.
Thirdly, by operation Article 45, 47 and 102(5), some laws and some
authorities are constitutionally excluded from the purview of
judicial review/writ jurisdiction of the Supreme Court.
Laws exempted from Judicial Review
Article 45 of the Constitution excludes a provision of a disciplinary
law from Judicial Review of the Supreme Court:
Nothing in this Part shall apply to any provision of disciplinary law
relating to members of a disciplined force, being a provision
limited to the purpose of ensuring the proper discharge of their
duties or the maintenance of discipline in that force.
 Article 152 defines "disciplinary law" as a law regulating the
discipline of any disciplined force. "Disciplined force" again
means- (a) the army navy or air force; (b) the police force; and (c)
any other force declared by law to be a disciplined force.
Article 45 bar is not absolute in its terms. It is attracted only when
fundamental right is invoked by a member of a disciplined force in
an application under 102. A member of a disciplined force has no
fundamental rights when he is being dealt with by any provision
of a disciplinary law ‘regulating the discipline’ of his force.
Again, Article 47 prohibits judicial review of new laws or amendment of existing
laws dealing with the subject matters outlined in clauses (a) to (f) of Article
47(1). These shall not be deemed to be void on the ground that these are
violative of fundamental rights. 
As per Article 47(2) the laws specified in the First Schedule, and the action taken
under theses laws, shall be excluded from judicial review.
Notwithstanding anything contained in this Constitution the laws specified in the
First Schedule (including any amendment of any such law) shall continue to have
full force and effect, and no provision of any such law, nor anything done or
omitted to be done under the authority of such law, shall be deemed void or
unlawful on the ground of inconsistency with, or repugnance to, any provision of
this Constitution; Provided that nothing in this article shall prevent amendment,
modification or repeal of any such law.
Article 47(3) and 47A protect legislations providing for detention, prosecution or
punishment of persons accused of genocide, crimes against humanity or war
crimes. These deny the accused of these crimes certain fundamental rights and
bar ‘any remedies under this constitution’.
 
Authorities exempted from Judicial Review
Article 102(5) includes and excludes from the operation of Articles
102 (1) and (2), certain authorities:
In this article, unless the context otherwise requires, "person"
includes a statutory public authority and any court or tribunal,
other than a court or tribunal established under a law relating to
the defence services of Bangladesh or any disciplined force or a
tribunal to which article 117 applies.
Therefore it includes within the ambit of judicial review –
a) a statutory public authority and
b) any court or tribunal.
And, it excludes from the ambit:
a)a court or tribunal established under a law relating to the defence
services of Bangladesh or any disciplined force
b)a tribunal to which Article 117 applies (i.e., the Administrative
Tribunal)
Writ against Statutory Public authority
BSI Corporation v. Mahbub Hossain 29 DLR (SC) 41
Mahbub Hossain was dismissed from Bangladesh Small Industries Corporation under
some departmental procedure. The HCD quashed his order of dismissal. In the
Appellate Division the government challenged the maintainability of the petition under
Article 102 of the constitution on the ground that BSI Corporation was not ‘a person
performing functions in connection with the affaires of the Republic or of a local
authority.’ The Court held:
The constitutional power of the superior court can be invoked and the necessary direction
or declaration can be given or made only against a person performing functions in
connection with the affairs of the Republic or of a local authority. ……The term ‘local
authority’ has not been defined in the constitution but according to the definition as
given in Section 3(31) of the General Clauses Act it is clear that such term implies a
public duty authorized by law or by the Government to carry on some administrative
functions. A public corporation, as we have already noticed, is entrusted with some
portion of the sovereign function of the government which is to be performed by the
Corporation for the benefit of the public and such a corporation is undoubtedly a person
performing functions in relation to the affaires of the republic within the meaning of
Article 102(2) of the constitution. Whatever uncertainty there might have been in
regard to such an interpretation has now been removed by an amendment of the
definition clause to the effect that ‘a local authority’ includes a ‘statutory body.
• Writ against Military authorities
• Under Article 102 of the Constitution, the
Supreme Court has got jurisdiction to entertain
an application questioning the legality of any
orders of Military Authorities other than a Court
Martial, provided the orders are not in respect of
conditions of services of military personnel. For
example illegal orders of military authorities,
seizing properties of citizens or arresting or
detaining them are amenable to the court’s
jurisdiction.
Major Hafizur Rahman v. Bangladesh 29 DLR (1977) 35
Shahbuddin Ahmed J and Abdul matin Khan Chowdhury J. The petitioner
was appointed as Officiating Judge Advocate General of the Army. But
after his retirement the Chief of Army Stuff by his order cancelled his
appointment as officiating Judge Advocate General. He was disentitled
from pay and status of an Officiating Judge Advocate General. He
challenged that order as without jurisdiction and highly discriminatory.
It was first of its kind in Bangladesh where the legality of an order of the
Army Chief of Stuff relating to the service of a military officer had been
question. After a plain reading of the Article 102 the Court held:
It appears that orders of Army authorities are not immune from judicial
review under Article 102 of the Constitution, but the only exception is
an order of a court or tribunal established under any law relating to
the defence services, such as the Bangladesh Army Act, 1952. The
impugned order is not an order of any Court Martial or of any tribunal
of this nature. This being the position the application is quite
maintainable.