Some Supreme Court judgements in 2001
that impinge upon human rights

[This chapter is from Human Rights in Bangladesh 2001]


The judiciary of Bangladesh, particularly its superior tier, comprising the Supreme Court, has been seen as the most responsible organ of the State to ensure rule of law and justice. There is also a growing expectation that the judiciary, in administering justice, should not confine itself to municipal laws only, but should examine competent issues in the light of universal norms and principles of human rights and freedoms. This expectation has been advanced by the pronouncement of the Appellate Division of the Supreme Court that,
national Courts should not straightway ignore the international obligations, which a country undertakes. If the domestic laws are not clear enough or there is nothing therein, the national courts should draw upon the principles incorporated in the international instruments1.
Since decisions of the Supreme Court set authoritative precedents, they complement statutory legislation. Thus developments in legal discourse, attained each year through interpretation, deliberation or pronouncements of the Supreme Court, demand close study.
This chapter reviews some of the most notable decisions of the Appellate and High Court Divisions of the Supreme Court, either passed or reported in 2001, from a human rights perspective to see how they protect constitutionally guaranteed fundamental rights and human rights principles.

Freedom of Expression: Contempt of Court
The most notable contempt proceedings before the High Court Division in recent years, that stimulated widespread discussion in the press and the political arena, were taken against the former Prime Minister, Sheikh Hasina. The judgment in Mainul Hosein & others vs. Sheikh Hasina2, was delivered on 24 October 2000 by a Division Bench of the High Court. Three petitions were filed seeking the drawing up of contempt of court proceedings against Sheikh Hasina3. The common allegation in these applications was that on 26 July, 2000, Sheikh Hasina, in an interview with BBC, made an objectionable and contemptuous statement that both the lower courts and the High Court Division are the sanctuary of corrupt and accused persons; that whenever they approach the Court, they are released on bail after which they again commit murders; that both, the lawyers seeking bail and the courts granting bail, should be accountable.
Mr. Mozammel Hoque J., disposed of all three applications with a note that, …the Hon’ble Prime Minister shall be more careful and respectful in making any statement or comment with regard to the Judiciary or the judges or the Courts of Bangladesh in future4.
In doing so, he noted that the Court was taking into consideration the greater interest of the country, protection of the prestige and dignity of the highest executive post and avoidance of any possible political unrest over a sensitive issue. He further noted the need to prevent confrontation between the executive and the judiciary and to maintain and preserve harmonious coordination and cooperation between these two important organs of the State.

The other judge on the Bench, Mr. Abdur Rashid, J., in his concurring judgement, made some noteworthy observations with regard to the jurisprudence of ‘contempt of court’. He stated that the object of the proceedings for contempt is not to vindicate the character or conduct of a judge, it is rather to protect the Court from attack and to maintain confidence of the citizens, particularly litigants. He asserted that the true reason for initiating such proceedings ought to be in the public interest. He further observed that the alleged statements, even if based on inaccurate assessments of the situation, however gross and misleading they may be, cannot be tantamount to contempt of court, for without mens rea (a guilty mind), no contempt can be established. The Judge noted that the office of the Prime Minister has a special immunity with regard to the offence of contempt of court. He further noted that reading the questioned statements in the context of the entire interview and in the objective reality of the country, they appeared to be no more than the observations based on the Prime Minister’s own understanding and judgment of the situation. He stated that the judiciary couldn't dictate how the chief executive of the country should exercise his or her discretion. With regard to the filing of application by the members of parliament, the judge critically observed that the aggrieved members of parliament could have more opportunities and better scope to hold their leader to account in the Parliament for her statements. 'Such a novel [sic] step unprecedented in the constitutional history, I am afraid, would not create any good precedent5,' he observed.
Justice Rashid examined the law of contempt of court in the context of freedom of speech and expression, as guaranteed by Article 39 of the Constitution6. While recognising that the limitations imposed in the Article are necessary in the interest of administration of justice, he found it necessary to remember:
…what could readily be read as contemptuous in 1900 or 1912 or 1936 is not so easily read now in the context of expanding rights guaranteed as fundamental to human existence under the Constitution7.
He then observed that the Court must harmonise the constitutional values of free speech and expression with the issue of contempt and concluded this question with an illuminating statement by Lord Denning that addresses the position of the judges vis-à-vis contempt of court.
All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.
This case demonstrates how an imminent tussle between the executive and the judiciary, which was apparently motivated by political considerations, was neutralised by the judiciary. In addition, some observations were made in the concurring judgment regarding the extent of the authority of the head of the executive organ of the State to exercise discretion regarding any particular situation of the country, thereby according the office of the Prime Minister with a degree of immunity against contempt of court proceedings.
In the year 1999, as well, a judgment8 by the Supreme Court had upheld the immunity of the members of the legislature for their statements made on the floor of the parliament. The Court had stated that '… had these statements been made outside the parliament the situation would have been otherwise and it would have been considered in a different way.'

However, these judgements have hardly restrained a recent trend of bringing political opponents to the dock using ‘contempt of court’. After resigning from the office of the Prime Minister, Sheikh Hasina has once again been accused of contempt of court for statements in an interview with a newspaper. The question, therefore, arises as to what should be the demarcation between freedom of expression and contempt of court, between immunity and contempt of court. What transpires from a discussion of these cases is that the notion of con-tempt of court, as it prevailed even a few years back, has undergone a change, and become a political ploy to humiliate opponents before the public and the Court. It is no wonder that the Courts, in the face of such disguised political rivalry, prefer an appeasing conclusion in each case.

Right to Life/ Right to Personal Liberty: Sex Workers’ Rights
The High Court Division, in Bangladesh Society for the Enforcement of Human Rights (BSEHR) and others vs. government of Bangladesh and others9, on 14 March, 2000 addressed a broad spectrum of issues including the fundamental right to life and personal liberty and the rehabilitation of sex workers. The right of sex workers to an occupation, to a residence compatible with the worth and dignity of a human being and their rehabilitation has been viewed from a sensitive perspective in the judgement.
The facts of the case related to the incidents of 23 and 24 July 1999, when the police raided and barged into the rooms of the residents of Nimtoli and Tanbazar brothels in Narayanganj. The residents were asleep at the time, and, without giving them any time to organise their belongings, the police dragged them onto the streets. They abused and beat them and pushed them and their children into waiting buses. They were detained against their will in different vagrant homes and government shelters. According to the government authorities, this wholesale eviction was carried out with a view to 'rehabilitate the sex workers'. In the vagrant homes, the inmates were denied the right to meet their family members and were allegedly tortured both physically and mentally. A writ petition, in the form of a public interest litigation, was then filed in the High Court Division by several voluntary organisations10.
In its judgment, the High Court acknowledged that ‘prostitution’ is not an unknown concept or trade but an age-old profession, 'perhaps as old as the dawn of human civilization', though, it is socially condemned in Bangladesh as in other parts of the world. The Court then held that the sex workers consent to sexual intercourse and while their profession might be socially looked down upon; it is not illegal under the law. The Court, however, cautioned that, 'Even if prostitution is not illegal in Bangladesh, it is never encouraged and State machineries are all out to prevent it by adopting various measures including rehabilitation schemes in consonance with our Constitutional mandate in its directive state policy that the State shall adopt effective measures to prevent prostitution11.'

The Court reiterated the fundamental right to equal protection of law and protection of life and personal liberty enshrined, respectively, in Articles 31 and 32 of the Constitution and unequivocally censured such eviction, since they were citizens of Bangladesh, enrolled as voters and exercised the right of franchise. The Court observed,
Though prostitution is not a socially recognised profession in Bangladesh but implied the prostitutes initially get themselves enrolled with the local administration, sometimes swearing an affidavit expressing the desire to be a prostitute and get themselves confined to the place called brothel and get the required protection to continue in profession by the local civil and police administration, in spite of the provisions of Suppression of Immoral Traffic Act (1933) whereby they are maintaining their earning or livelihood which the State, in absence of any prohibitory legislation, has a duty to protect, and a citizen has the right to enforce the rights enshrined in Articles 31 and 32 of the Constitution12.
The Court also observed that even if Article 11 of the Constitution, which refers to the dignity of the human person, may not be enforceable as a fundamental principle, the sex workers as citizens were clearly entitled to invoke enforceable rights under Articles 31 and 32 of the Constitution. The Court upheld the fundamental right of the protection of privacy of the sex workers, saying, it should be remembered that nobody could violate the privacy of the inmates of any house or trespass into it except in accordance with law.
The Court then referred to the interpretation of the right to life in the Indian case of Olga Tellis vs. Bombay Municipal Corporation13 and stated that the inmates of Nimtoli and Tanbazar have a guaranteed right to life and livelihood. It then stated that an important facet of the right to life is the right to livelihood and the easiest way of depriving a person of a right to life would be to deprive him/ her of the means of livelihood.
The Court emphasized that the wholesale eviction of sex workers from Tanbazar and Nimtoli had deprived them of their livelihood, which amounts to deprivation of their right to life making the act unconstitutional and illegal.
We painfully observe that though the police is the protector of the oppressed, in the instant case they have failed to fulfil their obligation in protecting the rights of the dwellers of Tanbazar and Nimtoli. Even if a particle of the allegations against the police is found to be true or has any basis in the instant case, it is a shame for the nation14.

With regard to the detention of the sex workers in the Vagrants’ Home in Kashimbazar, the Court found that mere roaming around in any area would not bring the sex workers within the mischief of the Vagrancy Act unless they were also found for example, to be asking for alms in a public place. It held, without any hesitation, that these actions by the police, treating some of the evicted inmates of Tanbazar and Nimtoli brothel as vagrants, was done without any lawful authority.
Lastly, with respect to the rehabilitation of the sex workers, the Court observed that any rehabilitation scheme must not be incompatible with the dignity and worth of a human person. Rather it has to be designed to uplift personal morals and family life, to provide for jobs giving them an option to be rehabilitated or to provide facilities for better education and economic opportunities in order to minimize the conditions that give rise to prostitution.
This judgement occasioned much public discussion and was interpreted by the media as declaring prostitution to be a lawful profession. It was, however, acclaimed by human rights organisations for having provided a liberal interpretation to the right to life and personal liberty. The judgment is to be commended not only for expanding the scope of the right to life, but also for reiterating the fact that sex workers have the right to protection of their privacy against any unlawful infringement.

Right to Personal Liberty: Prisoners’ Rights
The High Court Division in its judgment of 22 May 200015 directed the release of some 29 foreign prisoners who had been detained in Dhaka Central Jail, despite the expiry of their respective terms of imprisonment. The Court’s observations in this case regarding the provisions of the Jail Code and more generally, on the rights of prisoners has made judicial history in the country, because it installed a legal device in our judicial system, namely the Epistolary Jurisdiction. This has a potential for protection of the rights of the vulnerable sections of the society. This jurisdiction allows the Court to take cognizance of a matter concerning public interest of grave importance and initiate legal proceedings, not on the presentation of a formal plaint or petition but on receiving a letter or telegram or similar communication.

The facts of this case are that Dr. Faustina Pereira, Advocate of the Supreme Court16 wrote to the Chief Justice of Bangladesh, bringing to his attention a report in the Bangla language national newspaper, Prothom Alo, concerning 29 prisoners of different countries who were languishing in jail for about five years after the expiry of their sentences. The Hon’ble Chief Justice then directed the Registrar of the Supreme Court to place the matter before a Division Bench comprising of Mr Mohammad Hamidul Haque J. and Ms Nazmun Ara Sultana J. The Bench suo motu issued a rule against the government and ASK swore an affidavit to assist the Court in disposing the matter.
The Court stated that it would have been proper for the jail authority and also the Ministry of Home Affairs to take appropriate steps for the release of the prisoners in question at the earliest possible time and it was unfortunate that no such steps were taken. It further stated that it had learnt from a letter of the Inspector General of Prisons that about 822 more prisoners were awaiting release even after the completion of their sentence. The Court apprehended that if timely steps were not taken in future, more prisoners would meet the same fate.
The Court endorsed the statement of ASK’s lawyers that keeping any prisoner in jail after serving their sentences amounted to violation of fundamental rights as guaranteed by the Constitution. The Court then directed the government to take steps for release of such prisoners, at least three months prior to the date of their release, so that such prisoners do not languish in jail for indefinite periods through no fault of their own. The Court expressed its discontent regarding the activities of the concerned government departments, stating that the steps taken by them to solve the problem of repatriation of foreign prisoners after expiry of their terms of imprisonment were not at all sufficient. It noted the government’s absolute duty to ensure the immediate release of prisoners on the expiry of their sentences:

It is natural that some time would be needed to complete formalities of their release because Embassies of the different countries require to be contacted, but even if after a reasonable time such prisoners cannot be released with the help and assistance of the respective Embassy, government should release such prisoners and under no circumstances the prisoners should be kept in jail…Further, we also think that it is the duty of the government to ensure their safety and security after their release17.
The Court, on suggestions made by ASK, recommended that the government communicate with human rights bodies or international bodies such as the International Red Cross Society, the UN High Commissioner for Refugees and the International Organisation for Migration, for repatriation of the prisoners. The Court recommended the setting up of separate cells in the Ministry of Foreign Affairs and the office of the Inspector General of Prisons to facilitate the timely release of the foreign prisoners and their repatriation. The Court further directed the release of 28 prisoners from the Dhaka Central Jail (one of the 29 prisoners had already died) within a month, whether or not the concerned embassies made a response. The Superintendent of the Dhaka Central Jail was directed to submit a report about their release within three months. The Inspector General of Prisons was also directed to furnish full particulars of the remaining 822 foreign prisoners across the country and to take steps for their release and report to the Court.
This judgment demonstrates the pro-active role of the Court in protecting and promoting human rights and fundamental rights of the vulnerable sections of society. In this case, the Court not only proceeded suo motu but also expressed its sincere intention for protection of the human rights of the prisoners, by reaffirming the strict responsibility of the government for the release of the prisoners and also by providing some guidelines for future handling of similar problems.

There has also been some action on the part of the executive in pursuance of the judgement. The government contacted the concerned embassies regarding the release of their respective citizens and was partly successful in convincing them to take back their citizens. The Inspector General of Prisons informed ASK in a letter dated 18 October, 2001 that 136 prisoners had been repatriated or ‘pushed back’ to their respective countries since the pronouncement of the judgment. This information gives rise to another concern because it indicates that the government is resorting to forced repatriation of prisoners to neighbouring countries. There is scope for serious apprehension that if prisoners are ‘pushed back’ across the border, their safety and security may be at stake and they may fall into greater jeopardy. This also contravenes the Court’s observation that; '…it is the duty of the Government to ensure their safety and security after their release18.' Recently the Inspector General of Prisons informed ASK that the number of repatriated prisoners had increased to 25019. The government was granted further time by the Court to complete the repatriation process.
Even before this case, following a report in the Daily Star, the High Court suo motu directed20 the authorities of Dhaka Central Jail to produce a Nigerian citizen, Goddy Ochendo, before the Court. He had been languishing in jail for five years even after serving his sentence, but could not return home because the jail authorities said he had no passport. The Court afterwards directed the Nigerian Embassy to arrange for his repatriation and eventually Ochendo was sent home. This case, in fact, paved the way for the release of all foreign prisoners across the country who had served their term.

Right to Personal Liberty: Detention in Judicial Custody
It has been a long practice in our country to detain victims, particularly women and children, in judicial custody without their consent. Though there is no law, which sanctions such detention, the victims are kept in government shelters, even in jails, for indefinite periods. Only recently the Nari O Shishu Nirjatan Daman Ain, 2000 (Suppression of Cruelty to Women and Children Act, 2000)21 has provided for victims to be kept in shelters, other than jails, on the satisfaction of the concerned tribunal that it is in the interest of the victim. The confinement of victims in judicial custody against their will is contrary to the fundamental right to personal liberty guaranteed in Article 32 of the Constitution. The High Court Division, in Jesmin Nahar vs. the State and another22, accordingly held that keeping the victim-petitioner in judicial custody against her will was illegal.
In this case, the petitioner Jesmin Nahar was kept in judicial custody according to an order passed by the Magistrate under the Nari o Shishu Nirjatan Daman Ain, 2000. It was alleged in the first information report that Jesmin disappeared from SOS Harman Minor School (sic), having been incited by the ayah of the school and some other persons. Police investigated the case and submitted a charge sheet against the accused persons. Later on, the police arrested Jesmin and produced her before the Magistrate and the Magistrate sent her to judicial custody. Thereafter, she recorded a statement under Section 164 of the Code of Criminal Procedure (1898), where she described a short history of her past life and stated that she went to the house of one of the accused voluntarily and that she did not make any allegation against any of the accused persons. Subsequently, a petition was moved for her transfer from jail custody to the custody of one of the accused persons, but it was rejected. This gave rise to the cause of preferring a criminal miscellaneous case under Section 49123 of the Code of Criminal Procedure.
The High Court, after considering the First Information Report, the statement of Jesmin and Section 491, held that the detention of Jesmin in judicial custody against her will was illegal and that the lower Court was wrong in rejecting the prayer for her release. The Court observed,
A young woman at the age of 18 years cannot live in a hostile atmosphere. Every woman of her age has (sic) a dream and aspiration for home, children and a husband who could respect her feelings. But those hopes and aspirations shall be confined within her mind and these hopes will be evaporated if she is allowed to remain in judicial custody for further period. So long she will be in judicial custody, she will be obsessed by fear, tension and anxiety. There is no shadow of doubt that the climate of her life will be conducive if she is released from judicial custody. It is incumbent upon this court to take just and proper decision in this regard taking into account about the well being of the petitioner. In the above ambiance and circumstances, it is neither desirable non[r] acceptable that a young girl of 18 years shall remain in an unwell environment for an indefinite period. Hence we feel that our effort in this regard may [be] able to create awareness in stopping social malady24.

The petitioner, accordingly, was set at liberty and declared free to go wherever she liked. The concerned Deputy Commissioner was directed by the Court to ensure her release.
This judgment not only ended the illegal detention of one particular victim, but also revealed the fact that judicial custody is a place where the detainee becomes more vulnerable and lives in a hostile environment for an indefinite period. It is a precedent, which lays down that the indiscriminate exercise of granting judicial custody without the consent of the victim is illegal.

Right to Fair Trial: Children’s Rights
Children in Bangladesh become victims of unlawful trials leading to illegal conviction and punishment. This is largely because lawyers and judges are not sensitised to juvenile justice or aware about universal child rights embedded in the Convention on the Rights of Child (CRC) and other international conventions, ratified by Bangladesh. The Supreme Court has tried to redress such violations over the years. To further this, the High Court has reiterated in Bangladesh Legal Aid and Services Trust (BLAST) and another vs. Bangladesh and others25 that the trial of a juvenile offender in a court or tribunal other than the Juvenile Court is without jurisdiction and unlawful; and in Monir Hossain (Md.) alias Monir Hossain vs. State26, the High Court has upheld a child’s right to be heard in juvenile courts as provided in the Children Act, 1974 and the CRC.
In BLAST vs. Bangladesh, the child convict Alamgir Hossain was charge-sheeted under Sections 5(Kha) and 5 (Gha) of the Nari o Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 (Cruelty to Women and Children [Special Provisions] Act, 1995), for allegedly throwing acid on a girl. The Nari o Shishu Nirjatan Daman Bishesh Adalat (Special Court for the Suppression of Cruelty to Women and Children), Comilla took cognisance of the case and framed charges against Alamgir Hossain. The Special Court noted that Alamgir Hossain was below 16 years at the time of the commission of the offence; nevertheless the Court proceeded with the trial and he was convicted and awarded a punishment of imprisonment for life. Alamgir preferred appeal in the High Court Division against this judgment with the help of BLAST,a non-profit legal aid organisation.

The High Court held in its judgment that the Special Court erroneously tried and punished Alamgir Hossain as the tribunal itself was convinced that he was below 16 years at the time of occurrence and that the conviction violated the provisions of the Children Act, 1974, the fundamental rights guaranteed in the Constitution and also the directions of the Supreme Court given in various judgments. The Court noted that in Section 5 of the Children Act, it has been clearly laid down that a Juvenile Court has exclusive jurisdiction to take cognisance of the offences committed by a child27, and the jurisdiction of the Nari o Shishu Nirjatan Bishesh Adalat was excluded by this section as Alamgir was admittedly only fourteen or fifteen years at the time of occurrence.
The Court, in support of its decision, endorsed two earlier decisions cited by the advocate for the petitioners. In State vs. Deputy Commissioner, Satkhira and others28 the High Court held that no child is to be charged with or tried for any offence together with an adult. Similarly, it was held in Shiplu and another vs. The State29 that any order of conviction and sentence passed by any court other than the Juvenile Court in respect of an accused below 16 years is liable to be set aside for being without jurisdiction. The Court also took notice of an Indian case Sheela Barse and another vs. The Union of India and others30, where it was observed 'If a child is a national asset, it is the duty of the State to look after the child with a view to ensuring full development of its personality.' In conclusion it declared the trial of Alamgir Hossain by the Special Court as 'without jurisdiction and without lawful authority' and the order of conviction as ‘void ab initio’, and accordingly ordered his release. However, the Court did not constrain itself only in passing the judgment; rather, it took an initiative to restrain such ultra vires exercise by trial courts. It directed the Registrar of Supreme Court to ask for an explanation from the author-judge of the impugned judgment as to how he could award sentence to a juvenile offender and ignore the Children Act, 1974, and further directed to send a copy of the judgment to all Sessions Judges advising them to discuss the Act with judicial officials. The Court also directed the government to instruct law officers to take due care in conducting the cases of juvenile offenders under the Children Act.

In the latter case, Monir Hossain was convicted of raping a 9 year old girl by the Nari o Shishu Nirjatan Daman Bishesh Adalat (Special Court for Suppression of Cruelty to Women and Children), Comilla under section 6(1) of the Nari o Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 (Cruelty to Women and Children [Special Provisions] Act, 1995) and sentenced to life imprisonment. He preferred an appeal to the High Court Division. At this stage, his lawyer submitted that in view of a clear recital in the charge-sheet that the accused was over 15 years and in view of a clear statement by the accused himself that he was below 16 years, the Special Tribunal committed an error of law in not directing an inquiry to ascertain as to whether the accused was below 16 years and in proceeding with the trial. However, the High Court Division found that at the trial stage of the case, no objection was raised on behalf of Monir to the effect that he was a child and that he was entitled to be tried in a juvenile court, although it is an established rule of criminal procedure that the defence must raise specific objections before the trial court.
In these circumstances, the Court stated that with the scant and inadequate materials on record, it was very difficult, if not impossible, for the Appellate Division to ascertain the actual age of the accused at the time of framing of the charge and consequently, any objection before the Appellate Division raised for the first time on the question of the age of the accused must be viewed with disfavour, unless it is found imperative in the interest of justice under given circumstances. It then went onto examine whether there was any basis for the claim that Monir had been a child below 16 years at the time of framing of the charge. The Court took account of the statement in the charge sheet that Monir Hossain was about 15 years on the day of submitting the charge sheet against him. The Court also found, from an order of the trial court, that the prayer for the accused was specifically grounded on the fact of his being a ‘minor’. Therefore, it held that although the question of Monir being a minor was raised before the trial court, it was not specifically pressed for an answer and, given that a life sentence had been imposed and the age of the accused on the date of framing charges was a matter of great importance touching the jurisdiction of the Court, it was necessary in the interest of justice for the trial court to direct an inquiry to satisfy itself as to whether the accused was a child below 16 years. The Court, consequently, set aside the conviction and sent the matter back to the trial court for a fresh hearing of the case, in accordance with law and in light of the observations regarding the assertion that the accused was a child. The Tribunal was also directed to dispose of the matter expeditiously within two months from the date of receipt of the case-records.

This is a case where the Court manifested the need to uphold the right of juveniles in spite of apparent technical disadvantages. Internationally recognised developments in child rights and the rule laid down in the Children Act that a child (within the meaning of the Act) has to be dealt with only under the Children Act, in consonance with principles of juvenile justice, was given utmost importance in this case. It also set a precedent that the trial court had a positive, if not strict, obligation to ascertain, whenever there was a reason to do so, whether an accused was a child or not, regardless of whether it was specifically pleaded by the defence or not.

Workers’ Right to Safety: Fire Accidents in Garment Industries
The High Court Division recognised the case to be in the nature of public interest litigation31, stating that the application had been filed by the petitioner not for any personal relief, but in respect of an issue of public importance relating to workers engaged in factories in the country and, in particular for the safety of the workers in garment factories in cases of fire, accident or emergency. The specific context for the filing of the petition was some reports of fire accidents in the respondent-factories resulting in the death of a high number of workers, due to non-compliance with the provisions of the Factories Act, 1965 and the Fire Services Ordinance, 1959.
The petitioner submitted that in the last few years, more than fifty-five separate incidents of fire in the garment factories had resulted in the deaths of about 134 workers and injury to more than a thousand others. Most of these incidents had been reported in the national media. The petitioning organisation’s independent investigations into the reasons for the outbreak of fire in certain factories pointed to the failure of the respective factory management to comply with safety requirements as laid down by law. They also found that the Chief Inspector of Factories and the Director General of Fire Service and Civil Defence had failed to perform their duties regarding inspection of the factories. Specifically, the investigations revealed that:
the gates of the factories were locked at the time of outbreak of fire, in direct violation of Section 22(3) of the Factories Act;
free passage ways giving access to means of escape in case of fire as required by Section 22(6) of the Act were not maintained;
no measures were taken to familiarise workers with means of escape in case of fire or emergency, in violation of Section 22(7);
no means of warning as required by Section 22(5) of the Act were found in the factories;
no emergency exits in case of fire were found in the factories, which was in violation of Section 22(1) of the Act and Rule 51(1) of the Factories Rules;
no fire bucket, as under Rule 52(1), was found in the factories;
no portable fire-extinguisher, as under Rule 52(2) was found;
fire-extinguishers, as required by Rule 52(4), were not found;
no trained officer was assigned for the proper maintenance and upkeep of fire-fighting equipment, in violation of Rule 52(10);
no ‘Fire Safety Plan’, as required by Rule 52(1), was prepared by the factories;
no drum of water of 40/50 gallons or water bucket was found as required by Section 6 of the Fire Service Ordinance;
the fire service license was not renewed under Section 8(3) of the Ordinance;
and no sand bucket was found in the factories as required by Section 6 of the Ordinance.

The Court accepted these findings of lapses and negligence on the part of several authorities, including the owners of the garment factories, the owners of the premises on which the factories were set up; the Chief Inspector of Factories and the Director General of Fire Service and Civil Defence. It found each of them to be negligent in performing their duties and complying with the requirements of law providing for the safety and security of the workers. The Court also expressed the view that workers' deaths could have been avoided if the Chief Inspector of Factories, the Director General of Fire Service and Civil Defence, their concerned officials and the factory owners had performed their duties and obligations in accordance with the respective laws.
The Court proposed that the Inspection Committee constituted under the Director General of Fire Service and Civil Defence, which was to conduct regular weekly inspections in the factories and to give necessary advice to the management regarding safety and fire protection, should include representatives of workers and financial institutions. It observed that it would require some legal protection or coverage so that its recommendations would receive due weight and the authorities concerned would be bound to implement its recommendations and in default, to suffer consequences.
The Court also proposed the setting up of another committee by the government at the national level to supervise acts and omissions on the part of the factory owners, the factory-premise owners and the employees and officials of the offices of the Chief Inspector of Factories. This National Committee would oversee the implementation of relevant laws, the setting up and operation of factories, with authority to form regional committees if required, with necessary legal coverage binding all concerned to implement its recommendations and directions. Failure to implement the recommendations of the committee, would result in punishments, including disability to obtain loan facility from financial institutions or banks in the form of running capital for carrying on any trade or business or for the operation of any industry. The Court also proposed the composition of the committee, which was to be led by the Director General of Fire Service and Civil Defence to consist of representatives from:
Ministry of Home Affairs,
Ministry of Commerce,
Ministry of Industries,
Board of Investment,
City Corporation,
Federation of Bangladesh Chamber of Commerce and Industries (FBCCI),
Bangladesh Garments Manufacturers and Exporters Association (BGMEA),
Export Promotion Bureau,
Chief Inspector of Factories,
Rajdhani Unnayan Kortripokkho (RAJUK),
Workers' Association and
(xii) Bankers' Association or Bangladesh Bank. However, the Court directed that the office space and the necessary staff, including a full-time secretary of the committee, was to be provided by the BGMEA out of its fund.

This judgment has upheld the workers’ basic right to safety and security, inasmuch as it did not limit its findings within the parameters of the duties and obligations of the respondent government offices and the factory owners only, but also gave directions for the establishment of a mechanism involving all concerned quarters, including both the public and the private sectors.
The judgment has yet to be implemented because in the meantime BGMEA filed a Civil Petition for Leave to Appeal in the Appellate Division. The alleged grounds on which BGMEA has prayed for leave of the Appellate Division, among others, are that the High Court Division was wrong in requiring a valid fire license as a precondition for granting loan or credit; it was also wrong in directing that office space and the necessary staff of the proposed national level committee be provided by BGMEA. The hearing of the petition is still pending due to the huge backlog of cases in the Appellate Division, which will indefinitely defer implementation of the High Court judgment.

Environmental Rights
The Appellate Division in Rajdhani Unnayan Kortripokkho (RAJUK) and another vs. Mohshinul Islam and another32 gave directions for protecting the environment of Dhaka City and providing an environment-friendly interpretation of urban development.
Mohsinul Islam received an allotment of a plot from RAJUK (Dhaka city development authority) in Uttara Model Town on which he constructed a house for his family. The layout plan attached to the lease deed provided for a vacant space to be maintained for a park, playground, community centre and school, but subsequently RAJUK either converted the entire or part of the vacant space into plots, in violation of the promise made to the allottees at the time of allotment. RAJUK, however, contended that Section 40(b) of the Town Improvement Act, 1953 empowered them to alter layout plans at any time and, in the instant case, the layout plan was changed converting some open space into plots in order to meet increased demand for residential plots by the large number of city dwellers. The High Court Division did not accept this contention and declared that the alteration in the original layout plan was made without any lawful authority; it gave a direction to RAJUK not to change the nature and character of the lands earmarked in the original layout plan for community purpose, recreation and other non-residential purposes.
Section 40 of the Town Improvement Act provides for improvement schemes, which may be undertaken by RAJUK. Sub-Section (h) provides for the formation, retention or enlargement of open spaces. The High Court held that it was clear that it was the duty of RAJUK to provide for parks, open spaces, playgrounds or similar amenities for improvement of a new township Uttara Residential Model Town. Therefore, although Sub-Section (b) provides power to RAJUK for the “laying out or relaying out of the land' in the area, it has to be for improvement and it cannot curtail or diminish open spaces kept for common use.
Following an appeal before the Appellate Division, the judges referred to the Indian case Bangalore Medical Trust vs. BS Mudappa33 and to its own earlier judgment, in Giasuddin vs. Dhaka Municipal Corporation34, where it was observed that a public park is necessary for protecting health and hygiene of the inhabitants of the area by providing open space and gardens.

The Appellate Division upheld the decision of the High Court Division and observed that although under Section 2(h) of the Town Improvement Act, RAJUK may alter the layout plan, and this power must be exercised for the purposes of improvement. Parks and open spaces enjoyed by allottees of a planned township cannot be converted into residential plots. The Court also stated emphatically that conversion of such open spaces and parks into residential plots is not an improvement by any means and therefore exercise of such power is contrary to the purpose for which it is conferred under the Town Improvement Act.
This judgment not only provides a guideline for future environment-friendly urban planning but also gives a new interpretation to the term ‘improvement’, which will definitely go a long way in protecting and promoting the environmental rights of the citizens, in general and the inhabitants of the metropolitan areas, in particular. This decision is also an instance that our courts are sensitive to the protection of the environment and that the judiciary has a responsibility to see that administrative decisions are environment-friendly.

Right to Non-Discrimination: Citizenship Rights
The High Court Division, on a number of earlier occasions, has given judgments persistently upholding the right of citizenship acquired by birth and the judgment given in Annada Prosad Das vs. DC, Khulna and others35 reflects this trend.
Annada Prosad was born in village Dasani, Bagerhat Police Station, formerly in Khulna District. His parents were permanent residents of that village. He owned both moveable and immovable property in Bagerhat. He went to India during the War of Liberation in Bangladesh to save his life and returned after independence in December 1971. The defendants alleged that he was an Indian citizen and the Police served a notice upon him directing him to leave the country by 10 July 1972. It was also alleged that Annada Prosad left the country in 1965 with his family members permanently, although it was admitted by the defendant that he returned to the country after the war and was staying in his village home ‘illegally’.
The High Court Division, at the very outset of its judgment, cited Article 6(1) of the Constitution that the citizenship of Bangladesh shall be determined and regulated by law; and Section 2 of the Bangladesh Citizenship (Temporary Provisions) Order, 1972 (President’s Order No. 149 of 1972) prescribes the criteria for obtaining citizenship by birth36. The Court then referred to two decisions determining citizenship, namely Mirza Shaheb Ispahani vs. Bangladesh and Bangladesh37 vs. Professor Golam Azam38 and endorsed the view already taken by the Supreme Court that a person’s citizenship cannot evaporate simply because of a temporary absence from the country.
The Court interpreted the provisions of the President’s Order No. 149 that the law makers had conceived that disputes regarding citizenship would only arise in the case of persons who were absent from Bangladesh on 25 March, 1971 and lived in any other country which was inimical to the War of Liberation in Bangladesh. The Court found that Annada Prosad was residing in India temporarily, so his activities could not be considered at all against the spirit of the war in Bangladesh. It also observed that India was not inimical to the liberation war but had a friendly relationship with Bangladesh.

The Court unequivocally stated that the right of citizenship acquired by birth cannot be lost or destroyed unless it is proved that it has been given up and the person has acquired citizenship of any other country. Citizenship by birth is a complete legal right and a vested constitutional right which cannot be taken away or denied or lost with respect to a particular citizen due to temporary absence from Bangladesh or residence in any other country for a considerable number of years, unless and until it is found that s/he has abandoned or renounced her/his citizenship and acquired citizenship of another country.
The Court referred to the Indian case of Mohammad Ayub Khan vs. Commissioner of Police, Madras39 and endorsed its spirit that unless and until the citizenship of a particular person in the manner as prescribed by rules terminates, the original citizenship cannot be lost or denied to them. It also referred to another Bangladeshi case, government of Bangladesh vs. Abdul Hoque40, where it was held that temporary absence of a person from his country of birth and temporary residence in a foreign country at war or being engaged in military operation against Bangladesh, preventing him from returning home, shall not disqualify him from being deemed to continue to be resident in Bangladesh under the provisions of the President’s Order No. 149 of 1972.

Right to Life: Forced Eviction of Slum Dwellers
The right of urban slum dwellers not to be evicted from their homes without sufficient notice and prior arrangement for their rehabilitation had been upheld by the Supreme Court of Bangladesh in several earlier cases. The case of Kalam and others vs. Bangladesh and Others41 is an instance where the Court, in line with those decisions, took a sympathetic view of slum dwellers’ right to shelter.
The petitioners in this case resided in about 30 thatched shanty houses in Belalabad Bosti, located behind Holy Family Red Crescent Hospital in Dhaka. They had been living in that slum for about 30 years. On 16 April, 1994, the Ministry of Works and Urban Development, without any prior notice or announcement, started demolishing the shanty houses. At that time, a resident of Belalabad Colony and a journalist of repute rushed there, and at her request, the demolition operation was stopped. But the petitioners, being apprehensive of further attempts at forced eviction from the slum, filed a writ petition in the High Court Division.
It was submitted on behalf of the petitioners that they were poor helpless persons, uprooted from different villages across the country, who had found work in Dhaka so as to survive with their families. With the consent of the original owner of the Belalabad Colony, they had raised small shanty huts in order to seek their livelihood. They submitted that they did not claim any proprietary right over the lands on which they raised the shanties and that their only prayer was to allow them to live in those shanties. They cited the High Court’s earlier decision in Ain o Salish Kendra (ASK) and others vs. government of Bangladesh and others42 in support of their contention.

The Assistant Attorney General candidly conceded the plight of the slum dwellers of the Belalabad Bosti and assured the Court that the government was planning to find a suitable arrangement for the petitioners and other slum dwellers so that they were not thrown to the street without shelter. The Court observed that,
Bangladesh came into being as a fulfillment of the dreams of the millions of Bangalis so that they can breathe in an independent country of their own. They knew that their country is not rich, but expected that social justice shall be established and the people shall be provided with the bare minimum necessities of life43.
The Court pointed out that the petitioners were pleading for a place so that they could earn their own livelihood and survive. The Court went on to observe, 'it should not be forgotten that God in His unbounded mercy provides sunshine, air, water, food and all other amenities of life for all, high or low, rich or poor, for every living being, without any discrimination44.' The Constitution of Bangladesh envisaged a welfare state and held all citizens equal in the eye of the law, as such all citizens have got equal rights in every sphere of life including food, shelter, health care and education which are fundamental in nature.
The Court remarked that it is not the fault of the slum dwellers that their government fails to provide them with such bare necessities of life and that,
they are only struggling a losing battle to earn for themselves and to care and provide the bare minimum necessities of life to their children, which are the primary objectives of any democratic government. After all, the slum dwellers, poorest of the poor they may be, without any future or dreams for tomorrow, whose every day ends with a saga of struggle with a bleak hope for survival tomorrow, but they are also citizens of this country, theoretically at least, with equal rights. Their fundamental rights may not be fully honoured because of the limitations of the State, but they should not be treated, for any reason, as slaves or chattels, rather as equal human beings and they have a right to be treated fairly and with dignity, otherwise all commitments made in the sacred Constitution shall prove to be a mere mockery45.

The Court, however, refrained from giving any direction to the government and accepted the assurance given on behalf of it that the petitioners and other slum dwellers of Belalabad Bosti will not be evicted without rehabilitation, according to the programmes of the government in this respect.
This case illustrates that cooperative efforts by the executive and the judiciary may contribute to promoting and safeguarding the right to shelter of slum dwellers and other basic necessities of the vulnerable section of the society. Various human rights' organisations have challenged evictions in the Court for over a decade now. The first writ petition challenging the eviction of Taltola Sweeper Colony at Gulshan was filed in 1989 and a stay order against eviction operation was obtained. Since then several writ petitions have been filed in the High Court challenging forced eviction of slum dwellers without sufficient notice and alternative arrangement for their rehabilitation. In at least two of such cases46, the High Court laid down guidelines for the rehabilitation of the slum dwellers and stated that forced eviction without any alternative accommodation and rehabilitation was unlawful. The executive, however, has failed to heed such directions and successive governments have persisted in evicting slums with use of force and without undertaking any resettlement plan. The judgments against slum evictions thus have become almost infructuous in the face of the defiance and obstinacy of the executive.

Right to Equal Protection of Law: Victim’s Rights
The duty of the court in a criminal proceeding is not only to adjudicate upon the allegations made against the accused, but also to see that the safety of the informants or complainants is not jeopardised because of their involvement in the proceeding. This has been reiterated in Tayazuddin and another vs. The State47, where the High Court Division has endeavoured to view the question of the safety of the victims of an offence from the perspective of their fundamental rights.
Ferdousi Begum, a 15 year-old girl and an examinee of the Secondary School Certificate Examination, was burnt with acid allegedly thrown by Shakawat Hossain. It was alleged in the First Information Report that Shakawat used to proposition her whenever he found her alone. Shakawat’s father and uncle were informed of his behaviour but instead of disciplining him, they instigated him to harass her. Eventually on 10 February 2000, in a pre-planned way, Shakawat entered Ferdousi’s house and poured acid on her head, burning her head, face and different parts of the body. Some parts of the bodies of her brother’s wife and her aunt, who were nearby, were also burnt. Shakawat then fled. A case was filed accusing Shakawat, his father and his uncle. The latter two had filed a Criminal Appeal in which this judgment was given.

During the investigation conducted by the police, three witnesses confirmed that the father and uncle instigated Shakawat to keep propositioning Ferdousi and that they also exerted pressure on Ferdousi’s guardians for her marriage with Shakawat. When her guardians refused to comply, they instigated Shakawat to punish Ferdousi. Accordingly, Shakawat’s father and uncle were also charge-sheeted under the Nari O Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 (Cruelty to Women and Children [Special Provisions] Act, 1995). The uncle was arrested and granted bail by the Nari O Shishu Nirjatan Bishesh Adalat (Cruelty to Women and Children Special Court), Dinajpur. Later the father also surrendered to the court and was granted bail.
However, on the date fixed for framing charges, the informant filed a petition for cancellation of the bail of the two accused, alleging that after their release on bail they were threatening the informant to withdraw the case. The informant also claimed that the father and uncle of Shakawat were threatening to kill anyone who gave evidence against them. Being terrorised by such threats, one of the witnesses filed a G.D. Entry. The trial court having heard both parties then cancelled the bail of the father and the uncle. Aggrieved by this order of cancellation of bail, the defendants preferred an appeal to the High Court, which was contested by the State and also by the victim Ferdousi and her mother.
The High Court observed that the granting of bail in a non-bailable offence is a concession allowed to accused persons and it presupposes that this privilege is not to be abused in any manner. The grant of bail is a sort of trust reposed in an accused person by the Court. If it is found that the trust has been betrayed or the liberty granted has been abused, s/he disentitles her/himself to the privilege so granted. If it appears that it is no longer conducive to a fair trial if an accused person is allowed to retain her/his freedom during trial, the bail is to be cancelled and the accused person is to be committed to custody. The Court cautioned that indiscriminate bail enables the accused to exploit opportunities to interfere with the cause of justice by intimidating and suborning the witnesses.
Regarding the offence that gave rise to the initiation of the criminal proceeding, the Court stated that the crime of acid throwing is a 'a crime against humanity and society. In this type of dehumanising act, society’s cry for justice becomes louder48.' The Court observed, the crime was revolting and the perpetrators of the crime must be dealt with to reflect public abhorrence of the crime.
The Court then observed that Article 27 (guaranteeing the right to equality before the law), Article 31 (the right to enjoy equal protection of law) and Article 32 (the right to life and personal liberty) of the Constitution, read together impose a duty and obligation on the State to protect and safeguard a citizen and ensure his/her security. The Court also cited Article 3 of the Universal Declaration of Human Rights, which states that everyone, has a right to life, liberty and security of person. It noted that the informant, the victim, the mother of the victim and the witnesses in this case were entitled to protection of these rights by the State, acting through its law enforcing agencies and machinery. The Court then observed that in a democratic country governed by rule of law, the government is responsible for ensuring free and fair trial not only to the accused but also to the victims. It emphasised that 'the Court is not only to see the right of the accused persons, but also to see the right of the victim of crime and society at large. The Court is to see that the victim of crime can have a trial free from all fear and insecurity49.' Accordingly, the High Court Division concluded that in the interest of fair play, fair trial and justice, the accused were not entitled to remain free by way of bail but that they were to be put behind prison bars.

In this case, the Court went further and prescribed measures for the safety and security of the victim and witnesses as well. It directed the Secretary, Ministry of Home Affairs, the Inspector General of Police, the Deputy Inspector General of Police, Rajshahi Range and the Superintendent of Police, Dinajpur to take all steps to secure the safety of the informant, the victim and witnesses and to apprehend the absconding perpetrator of the crime.
This judgment promises to impact on the system of the administration of criminal justice in the country, inasmuch as it sets a precedent that the Courts must weigh the rights of both the accused and the complainant in an even manner in order to ensure that the scales of justice are balanced.

Right to Justice: Public Safety Act
The split decision50 by a two-member Division Bench of the High Court on the constitutionality of the Public Safety Act, 2000 (PSA) drew much public attention and was widely covered by the media. This verdict, though divided, might also have an impact on the later political decision to scrap the law in entirety. Although, according to the Supreme Court Rules, the matter was to be finally adjudicated by another single bench constituted by a senior judge, the repeal of the law itself rendered it redundant to continue another hearing regarding the validity of the law.
A total of 48551 writ petitions were filed separately in the Supreme Court challenging the constitutionality of the Public Safety Act, but the submissions were heard together by the concerned bench for convenience. The hearing continued for twenty-four working days52 and every phase of the hearing was extensively reported in the media.
At the very outset of the hearing, the Act was virtually declared ‘clinically dead’ as the government was issued a rule nisi in more than two hundred cases and was directed not to arrest or harass more than two thousand persons accused in relation to those cases53.
One of the most contentious issues raised by the petitioners during the hearing was the passing of the Act as a Money Bill. In his submission, Barrister Syed Ishtiaq Ahmed argued that the government had committed a constitutional fraud by placing the PSA as a Money Bill before the Parliament. He submitted that the PSA had curbed inherent rights of the Court, such as the power of revision, through violating Articles 114, 101 and 7 of the Constitution. The other issues of debate were that the Act contained provisions, which were capable of being applied in a discriminatory manner, against the political opponents of the ruling political party. The police were invested with excessive power, which was capable of being abused, and the Act had denied the right of the accused to get bail.
After a lengthy hearing, Justice M. A. Aziz made his rule ‘absolute’ declaring PSA ultra vires the Constitution and that it should be taken out of the statute book forthwith. He also declared that the pending proceedings against the petitioners were illegal and without lawful authority. He stated in his judgment,
In view of the fact that PSA which was passed as a Money Bill was not in fact a Money Bill under Article 81 [of the Constitution] and the certificate issued by the Speaker that the PSA was a money bill having transgressed the above article and denied the Constitutional Prerogative of the President under Article 80(3), as well as Articles 7, 27, 31, 33, 33, 65(1), 101, 116A of the Constitution, the PSA is found to be and declared ultra vires the Constitution and as such void54.
He also observed the PSA proved infructuous due to its extensive misuse by police55. Citing a few incidents of malicious application on innocent people, the judge stated that the chain of command within the police force was breaking down and the police were being corrupted due to this law. 'The sooner the dead child is buried the better,' he observed.

Justice Shamsul Huda, however, did not declare the law to be unconstitutional as a whole, rather stating in his judgment that only Sections 18(b) and 16 of the Act, dealing respectively with summary recording of evidence and denial of bail, were liable to be repealed. He observed that it is illegal to deprive anybody of his or her right to pray for bail; even in case of non-bailable offences, it is within the court’s jurisdiction to decide about granting or refusing bail and therefore, Section 16 of the PSA restricting the right of bail was against the general principles of criminal trial and also was repugnant to the Constitution.
This split verdict, though different in its implications, did not differ in spirit that the contents of the PSA were not conducive to establishing rule of law in the country. Though the judgments were not sufficient to scrap the law as a whole, they virtually halted the application of the law and thousands innocently accused were set free. These judgments could caution future attempts to enact similar harsh laws. The PSA has been replaced by another restrictive law Ain Srinkhala Bhangakari Oporadh (Druto Bichar) Ain, 2002 (Offences Disrupting Law and Order [Summary Trial] Act, 2002), which claims to address a ‘quick disposal of cases related to disruption of law and order’, but may be used as a tool of oppression.

Pending Matters
The Supreme Court, in 2001, not only delivered notable judgments after finally disposing of the particular cases, but issued rule in some matters involving public interest of grave importance which are pending for disposal and also granted ad interim remedy in some of those cases. The issuance of rules in these matters signified that the Court appreciated the prima facie cause of representing those matters in Court in the form of public interest litigation.

Arsenic Crisis
On 1 July, 2001, the High Court issued a rule nisi against the government to show cause in three weeks as to why the indiscriminate and continuous sinking of deep and shallow tube wells should not be declared without lawful authority. The government was also asked to answer why they should not be directed to earmark, immediately, the arsenic contaminated areas, stop drinking of water containing more than 0.5 mg arsenic per litre and developing alternative sources of drinking water conforming to the guidelines of the World Health Organisation. This rule was issued in a writ petition jointly filed by two arsenic patients, Dhaka Community Hospital and a voluntary organisation named Brotee. The hearing is pending56.

The High Court issued rule nisi against the government to show cause in six weeks as to why it should not be directed to recover arrears telephone bill from defaulting Members of Parliament and also asked to supply a list of those MPs in one month57. Petitioner organisation Bangladesh Legal Aid and Services Trust (BLAST) stated in its petition, that the unpaid arrear telephone bill from 266 Members of the Fifth Parliament amounted to more than Taka 45 million and from 216 Members of the Seventh Parliament amounted to about Taka 35 million. However, the Bangladesh Telegraph and Telephone Board did not take any measure to recover the bill, nor did they disconnect the telephones. This matter awaits disposal.

Hawkers Eviction
The government was asked by the High Court to show cause as to why the eviction of hawkers from different streets without implementing an alternative arrangement by the Dhaka City Corporation should not be declared to be illegal and without lawful authority. The Chhinnamul Hawkers League filed the writ petition58. However, in an earlier case, the High Court judgment directed the government, without prescribing any specific alternative measure, to free the city streets of hawkers. The two contradictory judgments have created confusion.

Prisoners and Prisons
The High Court, upon a writ petition (W.P. No. 3421/2001) by Ain o Salish Kendra (ASK) issued rule asking the government to show cause in three weeks as to why the use of bar fetters in prisons should not be declared illegal59. This organisation obtained rule in two other cases60 to this effect in 1995 and 1997, but these have yet to be disposed of. This delay has caused a serious violation of the prisoners' right to freedom from torture and inhuman treatment.
The same organisation filed another writ petition (W.P. No. 3679/ 2001), in response to which the High Court asked the government to show cause as to why it should not be directed to ensure that the conditions of the prisons across the country and the amenities of the prisoners are maintained in accordance with the provisions of the Jail Code and other standards. The final hearing of the petition is still pending.

While it is very encouraging that the apex court of the country has produced some pro-active and positive judgments and has initiated some public interest proceedings during the span of a year, it is very frustrating to see that a huge number of cases, of which many involve public interest of great importance, are pending for disposal for many years. This large backlog of cases in the Supreme Court poses a threat that the public interest involved in these cases may ultimately be ignored even if a positive judgment comes at end. Very recently it was disclosed in Parliament that a total of more than 10 million61 cases were awaiting disposal in both divisions of the Supreme Court. The Chief Justice himself admitted in a meeting that the judiciary is losing the confidence of people that it had once enjoyed62. Therefore, a strong and effective role of the judiciary in advancing human rights, rule of law and public interest presupposes the timely disposal of matters before it. If the huge backlog of cases cannot be resolved immediately, one way of protecting public interest may be to prioritise such matters in their disposal. However, there is hardly any alternative to swift and effective management of cases as long as we intend to ensure and promote the idea of justice.


ASK, 2001, Human Rights in Bangladesh 2000, Dhaka.
Iyer, J. Krishna, Human Rights, Judicial Process and Public Interest Litigation, in Aminul Huq Memorial Lecture Series, ASK and BLAST, Dhaka 2000.
Laski, Harold J., 1992, Grammar of Politics, Third Indian Reprint.
Sidgwick, H.

(1) Per Bimalendu Bikash Roy Chowdhury, J., 21 BLD (AD) (2001) 69.
 53 DLR (2001) 138. Judgment delivered on 24 October, 2000.
(3) One of these was by Mr. Mainul Husein, the then President of Supreme Court Bar Association, another by Mr. Rafique-ul Huq, Senior Advocate and 338 other Advocates of Bangladesh Supreme Court and a third by Mr. Moudud Ahmed, MP, on behalf of 110 members of the Parliament.
(4) 53 DLR (2001) 138, at p. 142, para. 10.
Ibid., p.151, para. 55.
 Article 39(2) reads, “Subject to any reasonable restrictions imposed by law in the interests of the security of State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence, (a) the right of every citizen to freedom of speech and expression; and (b) freedom of press, are guaranteed.
 In Razina vs. Metropolitan Police Commissioner, Ex Parte Blackburn (1968) 2 All ER 319: (1968) CA 150.
 Ataur Rahman Khan vs. Mohammad Nasim and another, 52 DLR (2000) 16; discussed in Human Rights in Bangladesh 2000, ASK, p. 14 to 21.
 53 DLR (2001) 1.
These included the Bangladesh Society for the Enforcement of Human Rights (BSEHR), the Bangladesh National Women’s Lawyers Association (BNWLA), Bangladesh Manabadhikar Sangbadik Forum (Bangladesh Human Rights Journalists’ Forum) and Ain o Salish Kendra (ASK).
53 D.L.R. (2001) 1, in p. 9, para.10, per Mr. Md. Fazlul Karim J.
 Ibid., in p.10, para.11, per Md. Fazlul Karim J.
 AIR 1986 (SC) 180.AIR 1986 (SC) 180.
(14) 53 DLR (2001) 1, in p. 18, para.35, per Md. Fazlul Karim J.
 Dr. Faustina Pereira, Advocate, Supreme Court vs. State and others, 53 DLR (2001) 414: 21 BLD (HCD) (2001) 499.
(16) Also coordinator of the Advocacy Unit of ASK.
(17) Ibid., at p. 416, para 10, per Md. Hamidul Haque J.
 Supra note 18.
 He gave this information in response to a telephonic enquiry from an ASK lawyer.
(20) On 5 February 2001.
 See Section 31.
 Criminal Miscellaneous Case No. 7782 of 2000. Judgment delivered on 27 March 2001, and published in the Daily Star on 26 August 2001.
 Section 491(1): The High Court Division may, whenever it thinks fit, direct that a person within the limits of its jurisdiction be brought up before the Court; that a person illegally or improperly detained in public or private custody within such limits be set at liberty.
(24) Para 15. Per Mr Altaf Hossain Khan, J.
 7 BLC (2002) 85. Judgment delivered on 6 November, 2001.
 53 DLR (2001) 411, Judgment delivered on 9 July 2001.
(27) According to Section 2 (f) of the Children Act, 1974, a ‘child’ means a person under the age of 16 years.
(28) 45 DLR 643.
49 DLR 53.
(30) AIR 1986 (SC) 1977.
(31) Salma Sobhan, Executive Director, Ain o Salish Kendra (ASK) vs. Government of Bangladesh and others, Writ Petition No. 6070 of 1997, Judgement delivered on 31 May, 2001.
(32) 53 DLR (AD), 2001, 79. Judgement passed on 3 May 2001.
(33) AIR 1991 (SC), 1902. It was held in this case that '…when the law requires an authority to act or decide, if it appears to it necessary or if he is of opinion that a particular act should be done, then it is implicit that it should be done objectively, fairly and reasonably. Decisions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to persons affected yet the exercise of discretion is vitiated if the action is bereft of rationality, lacks objective and purposive approach. The action or decision must not only be reached reasonably and intelligibly, but it must be related to the purpose for which power is exercised. The purpose for which the Act was enacted is spelt out from the preamble itself, which provides for establishment of the Authority for development of the city of Bangalore and areas adjacent thereto. To carry out this purpose, the development scheme framed by the Improvement Trust was adopted by the Development Authority, any alteration in this scheme could have been made as provided in Sub-Section (4) of Section 19 only [if] it is resulted in improvement in any part of the scheme. As stated earlier, a private Nursing Home could neither be considered to be an amenity nor it could be considered an improvement over necessity like a public park. The exercise of power, therefore, was contrary to the purpose for which it is conferred under the statute.'
1997 BLD 577. The Court observed in this case, 'The structure cannot be allowed to occupy the same on the plea of their indispensable accommodation to protect their life to the detriment of health and hygiene of the inhabitants of the area and the corporation is under legal obligations to evict such unauthorised occupants from the park and other facilities meant for public convenience and for maintaining the environment free from pollution and degradation.'
(35) 53 D.L.R. (2001) 496. Judgment delivered on 28 June 2001.
(36)Section 2 of the Order states that every person shall be deemed to be a citizen of Bangladesh whose father or grandfather was born in the territories now comprised in Bangladesh and who was a permanent resident of such territories on the 25th day of March, 1971 and continues to be a resident; or who was a permanent resident of such territories on the 25th day of March, 1971, continues to be a resident and is not otherwise disqualified from being a citizen by or under any law for the time being in force.
(37) 40 DLR (AD) 116.
46 DLR (AD) 192.
(39) AIR 1965 (SC) 1623.
1982 BCR (AD) 143.
21 BLD (HCD) (2001) 446. Judgment delivered on 30 April 2001.
19 BLD (1999) 488. Judgment delivered on 29 July 2001.
21 BLD (HCD) (2001) 446, in p. 448, para. 6 per Mr A.B.M. Khairul Haque J.
One is Ain o Salish Kendra (ASK) and others vs. Government of Bangladesh and others [19 BLD (1999) 488], and the other is Modhumala vs. Government of Bangladesh (W.P. No. 59 of 1994).
21 BLD (HCD) (2001) 503. Judgment delivered on 29 July 2001.
Ibid., in p. 509, para. 25, per A.K. Badrul Huq J.
Ibid. in p. 510, para. 26.
Judgments were delivered on 12 July 2001.
(51) Jugantor, 13 July 2001.
(52) Ibid.
(53) Sangbad, 11 June 2001.
(54) Daily Star, 13 July 2001
(55) Jugantor, 13 July 2001.
(56) Prothom Alo and Ittefaq, 2 July 2001.
(57) Sangbad, 27 May, and Bhorer Kagoj, 28 May 2001.
(58) ttefaq, 20 August 2001.
(59) Sangbad, 7 August 2001.
(60) W. P. No 2678/95 and W. P. No 2852/97.
(61) Jugantor, 4 February 2002.
(62) Daily Star, 9 December, 2001.