Writ Jurisdiction and Public

Interest Litigation
 Writ
• Writ means a written document by which one is
summoned or required to do or refrain from
doing something. A writ is remedial right for the
enforcement of substantive law. A writ literally
means a written order. “Writ means” a written
command, precept, or formal order issued by a
court, directing or enjoying the person or
persons to whom it is addressed to do or refrain
from doing some act specified therein.
 Writ Jurisdiction
• The Constitution has conferred on the High Court
Division (HCD) original jurisdiction only in one case
and that case is the field of writ matters. The basis
of writ jurisdiction is Article 102 of the Constitution
of Bangladesh. Writ jurisdiction means the power
and jurisdiction of the HCD under the provisions of
the Constitution whereby it can enforce
fundamental rights as guaranteed in part III of the
Constitution and can also exercise its power of
judicial review.
 Constitutional Recognition
• In England, the writs are issued by the Crown as the head of the judicial
system. Where there is no statutory source and the Crown issued it by virtue
of prerogative, it was called the prerogative writ e.g. the writ of habeas
corpus, mandamus, prohibition, certiorari, and quo-warranto. In Bangladesh,
there is no prerogative power belonging to any organ of government. But
power to sue the writ corresponding to the English prerogative writ has been
rested in the High Court Division under Article 102 of the constitution. Since
these writs are founded on the express provisions of the constitution, the
High Court Division is also free to issue appropriate orders in the nature of
those writs, embodying their essential principles. However, these writs are
available not only for the enforcement of fundamental rights but also for the
enforcement of non-fundamental legal rights created by various statutes and
other Laws in force for the time being. This jurisdiction to enforce the legal
rights is vested in the High Court Division under Article 102 of the
constitution.
Writ Jurisdiction of HCD: Article 102
Under Article 102 of the Constitution, HCD
exercises its power of judicial review by issuing
writs in the nature of prohibition, mandamous,
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. This jurisdiction under
this Article is known as Special Original
Jurisdiction or writ jurisdiction.
The High Court Division may, if satisfied that no other
equally efficacious remedy is provided by law –
(a)on the application of any person aggrieved, make an
order-
(i) directing a person performing any functions in
connection with the affairs of the Republic or of a
local authority, to refrain from doing that which he is
not permitted by law to do or to do that which he is
required by law to do ; or
(ii)declaring that any act done or proceeding taken by a
person performing functions in connection with the
affairs of the Republic or of a local authority, has
been done or taken without lawful authority and is
of no legal effect ; or
(b) on the application of any person, make an order-

(i) directing that a person in custody be brought before

it so that it may satisfy itself that he is not being held
in custody without lawful authority or in an unlawful
manner ; or
(ii)requiring a person holding or purporting to hold a
public office to show under what authority he claims
to hold that office.
 Efficacious Remedy (Rule of Exhaustion of
Other Remedy)
• Shafiqur Rahman vs Certificate Officer 29 DLR
• Jobon Nahar vs Bangladesh 49 DLR
• Dhaka Warehouse vs Assistant Collector 1991-
11 BLD
• Farzana Hoque vs Dhaka University 42 DLR
 Dhaka Warehouse Ltd. & ors. Vs. Assistant
Collector of Customs and others, reported in 11
B.L.D. (AD) 227
• Writ petition without exhausting alternative remedy: The Appellate Division
held:-
• In principle, where an alternative statutory remedy is available, an application
under Article 102 may not be entertained to circumvent a statutory procedure.
There are, however, exceptions to the procedure. There are, however,
exceptions to the rule. Without attempting an exhaustive enumeration of all
possible extraordinary situations we may note a few of them. In spire of an
alternative statutory remedy, an aggrieved person may take recourse to Article
102 of the Constitution where the vires of a statute or a statutory provision is
challenged, where the alternative remedy is not efficacious or adequate, and,
where the wrong complained of is so inextricably mixed up that the High Court
Division may, for the prevention of public injury and the vindication of public
justice, examine that complain. It is needless to add that the High Court Division
is to see that the aggrieved person must have good reason for by passing an
alternative remedy.
Different Types of Writs: Habeas Corpus
• Habeas Corpus means 'have his body' i.e.to have the
body before the Court. So it is a kind of order of the
Court that commands the authorities holding an
individual in custody to bring that person before Court.
The authorities must then explain in the Court why the
person is being held. Under sub-clause (i) of clause (b)
of sub-article (2) of article 102 of the Bangladesh
Constitution, the High Court Division, on the application
of any person, directs that a person in custody be
brought before it to satisfy itself as to whether he is
being held in custody with or without lawful authority.
 Objective, Procedure and Condition
• 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.
Sec. 491 of the Code of Criminal Procedure also authorizes the High
Court Division to issue a direction in the nature of a writ of habeas
corpus to bring before it a person detained in public or private
custody in order to see as to whether he is being detained illegally or
improperly. If the High Court Division finds that such a person is being
held in custody, illegally or improperly, it then directs the detaining
authority or person to set him at liberty. The writ of ‘Habeas Corpus’
is a process for securing the personal liberty of the subjects by
affording an effective means of immediate release from unlawful or
unjustifiable detention, whether in prison or in private custody. There
is no judicial process more familiar or important than this.
 Mandamus
• 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. Sub-
clause (i) of clause (a) of sub-article (2) of article 102 of the
Constitution authorizes the High Court Division to 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. The applicant must show that he has a
legal right to the performance of legal duty by the person or authority
against whom the writ is prayed for.
 Elements of Mandamus
• Petitioner has some rights.
• That right must be public right.
• It is authority’s statutory duty to enforce that
right.
• Petitioner has claimed to enforce that right
but authority refuse to enforce it.
• it is clear that when a court or tribunal or an
authority or a person has refused or failed to
perform his statutory obligation, it is the writ
of mandamus by which the higher court can
compel the authority or court or person to do
his statutory obligation. So mandamus is a
positive remedy
 Prohibition
• . 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. Sub-clause (i) of clause (a) of sub-article (2) of article 102 of
the Constitution authorizes the High Court Division to direct a person
performing any functions in connection with the affairs of the Republic or
local authority to refrain from doing what he is not permitted by law to do.
Prohibition has been defined as the name of a writ issued by a superior
court, directed to the judge and parties to a suit in an inferior court,
commanding them to cease from the prosecution of the same, upon a
suggestion that the cause originally, or some collateral matter arising
therein, does not belong to that jurisdiction, but to the cognizance of
some other court.
• Writ of Prohibition is a judicial order issued by
the High Court to any constitutional, statutory
or non-statutory agency to prevent these
agencies from continuing their proceeding in
excess or abuse of their jurisdiction or in
violation of the principles of natural justice or
in contravention of the law of the land.
 Certiorari
• Certiorari means 'be certified' of the proceedings of any lower
court or tribunal to be investigated by the superior court. Records
of any pending or concluded proceedings before any authority or
court including a tribunal can be called for by the High Court
Division of the Supreme Court of Bangladesh for its examination
as to the legality or otherwise of the said proceedings. Under sub-
clause (ii) of clause (a) of article 102, not only 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. Thus remedy under the
aforesaid sub-clause (ii) is wider than that of the remedy
available in a writ of certiorari.
• 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. But under sub-clause (ii) of clause (a) of article 102, the
High Court Division can also declare any act done by any authority,
which is neither a judicial nor a quasi-judicial, to be without lawful
authority. Writ of certiorari is a judicial order operating in personam
and made in original legal proceedings, directed by the High Court to
any Constitutional, statutory or non- statutory body or
person ,requiring the records of any action to be certified by court or
dealt with according to law.
 Quo Warranto
• 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 an usurper.
The holder of the office has to show to the court under what
authority he holds office. such remedy is available under sub-
clause (ii) of clause (b) of sub-article (2) of article 102 of the
Constitution from the High Court Division. Writ of quo warranto is
a judicial order issued by the High Court by which any person who
occupies or franchise or liberty is asked to show by what right he
claims it, so that the title to the officer, franchise or liberty may be
settled and any unauthorized person ousted.
• This writ of Quo warranto is issued to show by what
authority a person is holding or purporting to hold a
public office. The High Court Division can enquire into
the legality of the claim of a party to an office. A writ
of quo-warranto may be applied at the instance of
any person even who has no personal or special
interest. A stranger can also file such writ petition. It
is discretionary relief which the Supreme Court may
grant or refuse according to the facts and
circumstances of each case.
Relief afforded in the Writ Petitions
• The HCD if it does not reject an application
summarily may issue a Rule Nisi calling upon the
respondent to explain as to why the order 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 HCD 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 PIL cases is obtained
through interim orders. Alternatively the HCD
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 SC Rules of awarding cost of the
application however the rules are not
detailed.
Scope and Grounds where this writ can be
issued
• Protection of Fundamental Rights
• Enforce constitutional provisions; correct
errors of law; correct violation of natural
justice; correct defect jurisdiction; compel
authority exercise jurisdiction; compel public
official do their statutory duties.
Writ Jurisdiction against Whom Available
• Writ of certiorari, mandamus and prohibition lie against ‘any person’
performing functions in connection with the affairs of the Republic or
of a local authority and not against a private individual or body. Thus
the ‘person’ must be a public functionary. A writ petition will not lie
even against a public functionary in respect of functions performed
not in connection with the affairs of the Republic or a local authority,
but in his private capacity. Writ of Habeas Corpus lies against any
person, be he a public functionary or private person, while quo-
warranto lies against a person holding or purporting to hold a public
office. Article 102(5) stipulates that the expression person in art 102
includes a statutory authority and any court or tribunal except (i) a
court or tribunal established under a law relating to defense service
or any discipline force and (ii) a tribunal to which art.117 is applicable.
 no writ shall lie
• However in following circumstances no writ
shall lie before Court. For instance the reason
of exclusionary clause no writ shall lie against
a court or tribunal established under a law
relating to the defense services or any
disciplined force or a tribunal to which art.117
applies. However, writ petition will lie against
the military authorities other than a court or
tribunal of the specified kind.
 Writ against Military Authorities
• Under Article 102 of the Constitution, the SC 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 vs Bangladesh (1977) 29 DLR
 Writ against BDR
• In Fazlur Rahman vs Secretary of Home Affairs
41 DLR, it was held that BDR is a disciplined
force and Riflemen are governed by the
Bangladesh Rifles Order 1972. If Riflemen are
discharged from service by an order of an
individual officer and not by a court or tribunal
constituted by the Bangladesh Rifles Order
1972, they can maintain writ petition and the
embargo of Article 102 does not apply.
 Writ against the Police Authority
• In Bangladesh vs. Md. Abdur Rob 33 DLR (AD) an
Inspector of Police was dismissed from service by
the Second Screening Board constituted under the
government of Bangladesh Ordinance 1972. The
AD held, As the law which has set up the Screening
Board permits it to exercise jurisdiction in relation
to a member of any disciplined force, it must be
considered a court or tribunal under a law in
relation to a disciplined force, though such law is
not exclusively meant for it.
 Public Interest Litigation
• Public interest litigation is a proceeding in which an
individual or group seeks relief in the interest of the
general public and not for its own purpose. Public
interest litigation has enlarged and enriched the
traditional doctrine of lucas standi and had opened new
remedies and procedures. Public interest litigation
means a legal action initiated in a Court of Law for the
enforcement of public interest or general interest in
which the public or a class of the community have
pecuniary interest or some interest by which their legal
rights or liabilities are affected.
At present, many changes are taking place in the
judicial process and the problems of the deprived
section of the community are coming on the
forefront. The Courts in various countries have to
innovate new methods and devices, new strategies
for the purpose of providing access to justice to large
masses of people who are deprived and to whom
freedom and liberty have no meaning, Considering all
these developing judicial trends, the Supreme Court
of Bangladesh should strongly come forward to allow
public interest litigation (PIL).Normally the person
aggrieved may bring writ petition. In case of public
interest litigation, any interested person may bring
writ petition for the interest of public.
 FAP 20
• The various functionaries and institutions created by the
Constitution exercise people’s power, not their indigenous or
native powers. J. Mostafa Kamal regards this article as a
cornerstone of the Constitution and a proud expression of
the constitutionalism. Justice Latifur Rahman observed
recently in the FAP 20: This supremacy of the constitution is
a special and unique feature in our Constitution. Neither in
the constitution of India nor in the Constitution of Pakistan
there is reassertion of the supremacy of the constitution.
This is a substantive provision which contemplates exercise
of all powers in the Republic through the authority of the
Constitution.
 8 Amendment case
th

• The case that first provided a conceptual groundwork for PIL is the 8 th
Amendment case of 1989 where it was declared that the Parliament
cannot alter the basic structure of the Constitution and decentralize
the Supreme Court. This was not a case on social justice, but related
to the power relations debate. It came as an inspiration to the judges
and lawyers favoring activism and a greater role for the judiciary. The
judges declared the need for progressive and dynamic interpretation
of the Constitution. They re-affirmed and re-established the principle
that while interpreting the Constitution, the intention of its makers
and its spirit must be taken into consideration and an Article should
not be looked into in isolation. Accordingly an interpretation requires
consideration of the so called ‘unique features’ of the constitution,
one of which is its autochthonous nature.
 An Early Development of Public Interest
Standing: The Berubari case (1974)
• In Kazi Mukhlesur Rahman vs. Bangladesh (Berubari Case),
when the applicant challenged an international treaty, he
actually came to vindicate his own rights. His right to move
freely throughout the territory and to reside and settle in any
place therein as well as his right of franchise was threatened.
But the judgement clearly reinterpreted a citizen’s right vis-à-
vis the power of the state. CJ Sayem said, It appears to us
that the question of locus standi does not involve the court’s
jurisdiction to hear a person but of the competency of the
person to claim a hearing, so that the question is one of
discretion which the court exercises upon due consideration
of the facts and circumstances of each case.
 The Berubari case (1974)
• Although the Berubari emphasised the court’s discretionary
power to determine each case on the basis of its merits, it
did not altogether reject the old rules or declare that the
question of fact is the sole determining factor. So, in effect,
standing remains both a question of law and fact but in
certain cases a broader approach could be taken. When a
fundamental right of a citizen is infringed or threatened, it is
enough if he shares the right in common with the public in
general, he need not have a special grievance. Also, if a
constitutional issue of grave importance affecting one’s
fundamental rights is raised, he qualifies as aggrieved.
 The Berubari case (1974)
• The Berubari remained an exception even though one or two
attempts were made to use public interest standing arguments. It is
often regarded as the first Bangladeshi PIL case and was relied upon
by the PIL petitioners in almost all subsequent attempts to attain
standing. But from a PIL perspective, the Berubari has its limitations.
First, the Berubari case involves the constitutional question of grave
importance– not all public interest matters. Second, it is involved
with fundamental rights only and does not relate to non-
fundamental rights. Third, it does not deal with cases where a public
spirited petitioner, not himself affected, seeks to move the court to
protect the fundamental rights of others. Fourth, since there can not
be any specific definition of the term constitutional question of grave
importance—it remains problematic for the petitioners to get relief
as long as the court is conservative.
 New Rules of Public Interest Standing
• There are two broad categories of public interest
standing:
• Representative public interest standing: The
petitioner approaches for a person or class of persons
who by reason of helplessness, disability or economic
inability can not move the court for relief.
• Citizen standing: A breach of public duty results in
violation of collective right of the public at large.
• Both of these aspects of standing developed in
Bangladesh gradually through a number of cases.
 Welfare Association case 46 DLR 1994
• An association of retired govt. servants challenged a
discriminatory law involving pensions. The government
pleaded the traditionally accepted principle that an association
can not represent its members in a writ. Here the judge
granted standing using two tests. First the subject matter
should be a matter of public interest as opposed to private
interest. When someone is unable to come to court due to
poverty or otherwise, his representative should not be denied
standing on merely technical grounds. The second test is that
as long as an association looks after the welfare and common
interest of its members, it is entitled to ventilate this interest
before this court in the form of public interest litigation.
 Parliament Boycott case 47 DLR
• When the opposition MPs started continuous abstention from
parliamentary sessions, a prayer for Mandamous was brought
by an advocate claiming to represent the rights of the public.
He claimed that this mass abstention is anti constitutional and
the MPs must go back to the parliament and pay back all the
salaries and other allowances received during the period of
their unauthorized absence. The petitioner came as a citizen
and a voter. He claimed that the MPs represent the whole
nation and as such any constitutional breach or violation
committed by any member of parliament can be questioned
by any citizen. The other side argued that he was not a person
aggrieved under article 102.
 Parliament Boycott case 47 DLR
• While granting standing, the judge canvassed the
liberal rules to interpret the constitution and relied
on the peoples power idea. He discussed the
preamble and article 7 and pointed out that all
powers of the Republic are the powers of the
people delegated to relevant authorities. These
authorities must exercise the power
constitutionally. If there is any violation any citizen
can challenge this since he is a source of power
along with all other citizen’s of the country.
 Procedure and Remedies
• Since it is opposed to the adversary model of Private Interest
Litigation, PIL brings with it a number of innovative changes in
relation to procedure and remedies.
• PIL petitioners are concerned citizens. It can not be expected in all
cases that they will bear all the expenditure, time and energy
required to properly present and pursue the cases initiated.
• The poor and the helpless are often no match for powerful
opponents such as vested interest groups.
• Public interest matters often involve thinly spread out rights and
diffused rights. So, traditional private interest model fails to provide
appropriate and adequate relief.
• Safeguarding public interest demands a wider version, which is not
concerned merely with settling of disputes.
 Epistolary Jurisdiction
• The court has power to treat letters and
telegrams sent to it as writ petitions and initiate
PIL cases on the basis of such communications.
Termed as epistolary jurisdiction, this has been
an invention of the Indian Courts in epoch-
making cases including Sunil Batra vs. Delhi
Administration and Ichhu vs. UOI. The practice
of application of epistolary jurisdiction is
comparatively new in Bangladesh.
• Acceptance of letters and telegrams as writ petitions
does not mean that it makes all sorts of procedural
rules and requirements redundant. Once the
communication is accepted as a petition, the court
follows all rules and procedures which are applicable in
a writ case.
• Power of court to treat letters and telegrams as writ
petitions is not unfettered. It is mainly a matter of
discretion of the court which is to be considered
according to the facts and circumstances of each
particular case.
• It must be apparent from the circumstances
that justice will be denied unless the letter is
given consideration.
• Epistolary jurisdiction applies mainly to
violation of fundamental rights.
• It applies to very grave, inhuman and serious
situations only, e.g. habeas corpus matters
including police atrocities and torture.
 Suo Moto Intervention
• Where public interest is concerned, the judge can act
suo moto and initiate a PIL case. The words suo moto
mean ‘on his own motion’ as opposed to ‘on an
application by a party’. E.g. Newspaper reports prompt
the judges to act suo moto. The judges source of
information may be anything other than newspapers
including letters, news item in any communication
media including television, report given by a friend,
somebody knocking at his door or the judge coming
across some injustice in his daily life.
 Investigate Commissions

• In a PIL case, the court can appoint commissioners

for the purpose of carrying out an inquiry or
investigation and presenting reports and
recommendations to the court. The court can
appoint a judge of a lower court, a journalist, a
specialist in this field, an advocate or a social
scientist as a commissioner. The main purpose of
appointing commissioners is to establish a fact-
finding mechanism.