“5 writs & PIL with examples in reference to Bangladesh”
Introduction:
Writ Petition islegalinstrumentof the superior courts for remedies to persons, natural or jurally, against the arbitrary or illegal actions of any authority or the lower court. There are five kinds of writs, namely certiorari, habeas corpus, mandamus, prohibition and quo warranto. Originated first in England, these writs were exercised by the Judges of the King’s Bench and called prerogative writs exercised by that Court on behalf of the King. Article 102 of the Constitution of Bangladesh provides for granting remedies similar to that of the above writs, though it does not speak of any of such writs in specific terms. Sub-clause (i) of clause (a) of sub-article (2) of article 102 provides for remedies similar to that of writs of prohibition and mandamus. Sub-clause (ii) of clause (a) of the same article provides for remedy similar to writ of certiorari. Sub-clause (i) of clause (b) of the sub-article (2) of article 102 provides for remedy similar to that of habeas corpus and sub-clause (ii) of the same clause (b) provides for remedy similar to that of quo warranto.
· HABEAS CORPUS
(a) General :
The writ of habeas corpus is one of the most ancient writs known to the common law of England. The Latin phrase ‘habeas corpus’ means ‘have the body’. This is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal jurisdiction for the imprisonment. In other words, by this writ, the court directs the person or authority who has detained another person to bring the body of the prisoner before the court so that the court may decide the validity, jurisdiction or justification for such detention.
(b) Object:
The writ of habeas corpus provides a prompt and effective remedy against illegal restraints. The principal aim is to provide for a swift judicial review of alleged unlawful detention. As Lord Wright states, “the incalculable value of habeas corpus is that it enables the immediate determination of the right of the appellant’s freedom”. ‘if the court comes to the conclusion that there is no legal jurisdiction for the imprisonment of the person concerned, the court will pass an order to set him at liberty forthwith’. Thus, the object of the writ of habeas corpus is to release a person from illegal detention and not to punish the detaining authority. “the question for a habeas corpus court is whether the subject is lawfully detained. If he is, the writ cannot issue, if he is not, it must issue.”
(c) History:
In England, habeas corpus is of common law origin. This is a British Law for the protection of liberty of a subject against his illegal detention in public or private custody since 1640. The King’s Bench issues writ of habeas corpus to examine as to whether a person was illegally detained in custody. In India, the jurisdiction to issue prerogative writs came with the establishment of Supreme Courts at Calcutta, Bombay and Madras under the Regulating Act, 1773. On abolition of Supreme Courts and establishment of High Courts, the said power had been conferred on High Courts. Under the Constitution of India, the supreme court (Article 32) and all High Courts (Article 226) have power to issue a writ of habeas corpus.
(d) Who may apply:
An application for the writ of habeas corpus may be made by the person illegally detained. But if the prisoner himself is unable to make such application, it can be made by any other person having interest in the prisoner. Thus, a wife, a father, or even a friend may in such circumstances make an application for the writ of habeas corpus. He should not, however, be a total stranger.
(e) Against whom habeas corpus would lie:
A writ of habeas corpus may be issued against any person or authority who has illegally detained or arrested the prisoner.
(f) Procedure:
Every application for the writ of habeas corpus must be accompanied by an affidavit stating the facts and circumstances leading to the making of such application. If the court is satisfied that there is a primafacie case for granting the prayer, it will issue a rule nisi calling upon the detaining authority on a specific day to show cause as to why the rule nisi should not be made absolute. On the specific day, the court will consider the merits of the case and will pass an appropriate order. If the court is of the opinion that the detention was not justified, it will issue the writ and direct the detaining authority to release the prisoner forthwith. On the other hand, if according to the court, the detention was justified, the rule nisi will be discharged. Where there is no return to the rule nisi, the prisoner is entitled to be released forthwith. The court has jurisdiction to grant interim bail pending disposal of a petition. In exceptional circumstances, a petition is maintainable even if the person is not actually detained.
(g) Delay in applying:
Delay by itself in applying for a writ of habeas corpus does not disentitle the petitioner for the relief. The right of personal liberty is one of the fundamental rights guaranteed in Part III if the constitution and it cannot be waived. Moreover, a wrongful detention or arrest of a person is a continuous wrong and the injury subsists till it is remedied. A petition for a writ of habeas corpus, therefore, cannot be dismissed on the ground of delay.
(h) When may be refused:
Since the object of the writ of habeas corpus is remedial and not punitive, the legality or otherwise of the detention must be decided by the court with reference to the date of return of the rule nisi and not with reference to the date of making such application. Thus, the writ would not be issued if at the time of the rule nisi, the prisoner was not illegally detained, even though at the time of detention the order was illegal. Similarly, if during the pendency of the petition for the writ of habeas corpus the prisoner is released, it will become in fructuous.
(i) Duty of state:
Whenever an action of detaining or arresting any individual is challenged, it is the duty of the state to place to place before the court all relevant and material facts leading to the impugned action truly, faithfully and with utmost fairness.
(j) Duty of courts:
The liberty of an individual is the most cherished of human freedom and in cases of gravest emergencies, Judges have played a historic role in guarding that freedom with zeal and jealously. Where allegations are made that a person is in illegal custody, it is the duty of the Court to safeguard his freedom against any encroachment on life or liberty. The duty of the court is to strike a balance between the need to protect community on the one hand and the necessity to preserve the liberty of a citizen on the other.
(k) Successive applications:
For many years it was accepted in England that an unsuccessful applicant could go from judge to judge and court to court successively and get his application renewed on the same evidence and on the same grounds for the writ of habeas corpus. Thus, the applicant “could go from one judge to another until he could find one more merciful than his brethren”. But Hastings, the earlier view was over-ruled. Today, a person has no right to present successive applications for the writ of habeas corpus. But if there are new or fresh grounds, subsequent petition will not be barred.
(l) Compensation:
Ordinarily, while exercising powers under Article 32 or under Article 226 of the Constitution, the court will not award compensation. In appropriate cases, however, the court may award monetary compensation to the person who has been illegally arrested or detained. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of the court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation.
(m) Execution:
A writ of habeas corpus issued by the Supreme Court or by a High Court must be obeyed by the person to whom it is issued. A willful interference by the person to whom it is issued would amount to contempt of court and court and would be punishable with attachment of property and even imprisonment of the condemner.
(n) General principles:
From the leading decisions, the following principles regarding a writ of habeas corpus emerge,
1. A writ of habeas corpus is a remedial writ, which can be used in all cases of wrongful deprivation of individual freedom and personal liberty.
2. It, however, cannot be employed to impeach or otherwise shallenged the correctness propriety of a decision rendered by a court of competent jurisdiction unless the decision is void or without jurisdiction.
3. An order to release by habeas corpus dose not per se amount to discharge or acquittal of the prisoner or detenu.
4. Since a writ of habeas corpus is not punitive in nature, it cannot be utilized as an instrument of punishment of one who has wrongfully arrested or detained another person or parted with his custody.
5. A prisoner himself or his relative or his friend or any other person interested in the prisoner can move the court for a writ of habeas corpus. He should not, however, be a total stranger.
6. A writ of habeas corpus is available not only for release from detention by the state but also from release from private detention.
7. Mere delay in applying for a writ of habeas corpus will not bear the prisoner from challenging arrest or detention.
8. A writ of habeas corpus is required to be heard and disposed of an expeditiously as possible.
9. When the prisoner contends that he is wrongfully detained, the burden is on the authority to justify the detention. However, if the prisoner takes a particular plea, the burden is on him to establish it.
10. The approach of the court in habeas corpus proceedings has to be one of eternal vigilance. The court must strike a balance between the need to protect the society in one hand and the necessity to safeguard the liberty of a citizen on the other hand.
11. In habeas corpus proceedings, it is the duty of the state to place before the court all the material facts and relevant record truly, faithfully and with utmost fairness.
12. As a general rule, a writ of habeas corpus cannot be granted ex parte. In exceptional circumstances, however, the court has power to issue a writ even ex parte.
13. Usually, no bail can be granted in case of prevention detention. Of course, in exceptional cases, the court can grant bail or parole pending the proceedings.
14. in exceptional cases, even before actual detention or writ of mandamus against an order of detention is maintainable.
15. Willful or intentional disobedience of a writ of habeas corpus will amount to contempt of court.
16. While issuing a writ of habeas corpus, the court can award compensation or damages as a consequential or ancillary relief.
17. Once an order of detention has expired, revoked or is quashed and set aside, no fresh order can be passed on the same facts and for the same grounds.
18. If, however, after expiry, revocation or setting aside of an order of detention, new facts or fresh grounds come into existence, a fresh order can be passed.
19. General principles of res judicata apply even to habeas corpus proceedings, but on fresh grounds a subsequent petition for the same relief is maintainable even after dismissal of the earlier one.
20. Even during emergency, a writ of habeas corpus for the enforcement of the fundamental rights is maintainable.
· Habeas Corpus Writ in Bangladesh:
Under sub-clause (i) of clause (b) of sub-article (2) of article 102 of the Bangladesh Constitution, the High Court Division, on the application of any person, directs that a person in custody be brought before it to satisfy itself as to whether he is being held in custody with or without lawful authority. If the Court finds that he is being illegally held in custody by the authority, it then can declare the same to be without lawful authority. Section 491 of the Code of Criminal Procedure also authorizes the High Court Division to issue a direction in the nature of a writ of habeas corpus to bring before it a person detained in public or private custody in order to see as to whether he is being detained illegally or improperly. If the High Court Division finds that such a person is being held in custody, illegally or improperly, it then directs the detaining authority or person to set him at liberty.
Ø Example:
In Bangladesh, for example, if a person is arrested or imprisoned for any false reason, then his family or friends can file a writ of habeas corpus under Article 102 of constitution of Bangladesh. Suppose, a person imprisoned for a murder which he didn’t do, then his family can file a writ of habeas corpus for his liberty. But if it is proved in the court that he did commit the crime, the writ fails.
· MANDAMUS
(a) Nature and scope:
Mandamus means a command. It is an order issued by a court to a public authority asking it to perform a public duty imposed upon it by the constitution or by any other law. Mandamus is a judicial remedy which is in the form of an order from a superior court (the Supreme court or a High court) to any government, court, corporation or a public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of a public duty and in certain cases of a statutory duty.
(b) Mandamus distinguished from other writs:
Mandamus differs from prohibition and certiorari in that while the former can be issued against administrative authority, the latter the available against judicial and quasi-judicial authorities. Mandamus acts where the authority declines jurisdiction; prohibition and certiorari act where the courts and tribunals usurp jurisdiction vested in them or exceed their jurisdiction. Whereas mandamus demands activity, prohibition commands inactivity. While mandamus compels, certiorari corrects.
(c) Conditions:
A writ of mandamus can be issued if the following conditions are satisfied by the petitioner.
(i) Legal right:
The petitioner must have legal right. Thus, when a petitioner contended that his junior had been promoted by the government and he had been left out, and it was found that the petitioner was not qualified for the post, his petition was dismissed.
(ii) Legal duty:
A legal duty must have been imposed on the authority and the performance of that duty should be imperative, not discretionary or optional. There must be in the applicant a right to compel the performance of some duty cast on the opponent. Thus, if at its own discretion, government makes a rule to grant dearness allowance to its employees, there is no legal duty and the writ of mandamus cannot be issued against the government for performance of that duty. Such a duty must be statutory, i.e. one imposed either by the constitution, or by any other statute, or by some rule of common law, but should not be contractual in certain circumstances, however, even if discretionary power is conferred on the authority and the statutory provisions are made for such exercise of the said power, the writ of mandamus can be issued for the enforcement of that duty. Such a duty must be of a public nature. If the public authority invested with discretionary power abuses the power, or exceeds it, or acts malafide, or there is non-application of mind by it, or irrelevant considerations have been taken into account, the writ of mandamus can be issued.
(iii) Demand and refusal:
The petition for a writ of mandamus must be preceded by a demand of justice and its refusal. In Halsbury’s Laws of England, it is stated: “as a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply., and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that demand was met by a refusal.”
The above principles are also accepted in India.
(iv) Good faith:
An application for mandamus must have been made in good faith and not for any ulterior motive or oblique purpose. A petition for mandamus albeit made in good faith, will not be granted if designed to harass the respondent or with a view to wreak personal grievances.
(d) Who may apply:
A person whose right has been infringed may apply for the writ of mandamus. Such right must be subsisting on the date of filling the petition. Thus, in case of an incorporated company, the petition must be filed by the company itself. In case any individual makes an application for the enforcement of any right of an institution, he must disclose facts to relate what entitled him to make an application on behalf of the said institution.
(e) Against whom mandamus would lie:
A writ of mandamus is available against parliament and legislatures, against courts and tribunals, against the government and its officers, against local authorities like municipalities, against state-owned or state-controlled corporations, against Universities and other educational institutions, against election authorities and against other authorities falling under the definition of “state”.
(f) Against whom mandamus would not lie:
A writ of mandamus will not lie against the president or the government of a state for the exercise and performance of powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. It will not lie against the state legislature to prevent them from considering enacting a law alleged to be violative of constitutional provisions.
(g) Alternative remedy:
A writ of mandamus will not be refused on the ground of alternative remedy being available if the petitioner approaches the court with an allegation that his fundamental right has been infringed. As discussed above, it is the duty of the high court to safeguard the fundamental rights of the petitioner and the writ of mandamus will be issued. But if the complaint is not about the infringement of any fundamental right, the availability of an alternative remedy may be a relevant consideration. And if an equally efficacious, effective and convenient remedy by way of appeal or revision is available against the impugned order, the court may refuse to issue a writ of mandamus. This prerogative remedy is not intended to supersede other modes of obtaining relief provided in statutes.
· Mandamus in Bangladesh:
Sub-clause (i) of clause (a) of sub-article (2) of article 102 of the Constitution of Bangladesh 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.
Ø Example:
Suppose, if an government employee working under Bangladesh Tele-Communication Limited (BTCL), for any reason, claims that his right has been violated, can file a writ of Mandamus against that company. But his complaint lacks sufficient information and is proved wrong, the writ petition will fail.
(h) Conclusion:
It is the most popular writ extensively and successfully used by aggrieved persons. Since the object of public law is to make functioning of administrative bodies in an efficient manner yielding the best result to the state, society and the individuals without undue delay or costs, it is the duty of courts to hold this process through the instrumentality of writs, more particularly by a writ of mandamus.
· PROHIBITION
a) Nature and scope:
A writ of prohibition is a judicial writ. It can be issued against the judicial or quasi-judicial authority. When such authority exceeds its jurisdiction or tries to exercise jurisdiction not vested in it. When a subordinate court or an inferior tribunal hears a matter over which it has no jurisdiction, the high court or the Supreme Court can prevent it from usurping jurisdiction and keep it within its jurisdictional boundaries.
b) Prohibition distinguish from other writs:
Certiorari and prohibition are judicial writs though they differ. The former applies to a decision which is fate accompli, the latter seeks to prevent the fate from becoming accompli. Prohibition is converse to mandamus in that, while mandamus compels the authority to do something, prohibition prevents a court or tribunal from doing something which it has no jurisdiction to do so. In other words, mandamus demands activity, prohibition commands inactivity.
c) Grounds:
Essentially, both the writs of certiorari and prohibition can be issued when an inferior court or tribunal acts without or in excess of its jurisdiction, or acts in violation of principles of natural justice, or acts under a law which is ultra vires or acts in contravention of fundamental rights.
i. Absence or excess of jurisdiction
ii. Violation of natural justice
iii. Unconstitutionality of statute
iv. Infringement of fundamental rights
d) Who may apply:
Where the defect of jurisdiction is apparent on the face of the proceedings, an application for prohibition can be brought not only by the aggrieved party but also by stranger. The principle underlying this rule is that usurpation of jurisdiction is contempt of the crown and encroachment upon royal prerogative. Consequently it is immaterial by whom the court is informed about the usurpation.
e) Against whom prohibition lie:
A writ of prohibition is a judicial writ. T may be issued against courts, tribunals and other quasi-judicial authorities. Such as, tax authorities, not custom authorities, settlement officers, statutory arbitrators etc.
f) Against whom prohibition does not lie:
Prohibition, however, does not lie against administrative authority from discharging administrative, executive, or ministerial functions. Likewise, it would not lie against legislature, restraining it from enacting or enforcing a law.
g) Limitations:
1. The object of the writ of prohibition is to prevent unlawful assumption of jurisdiction. Therefore, it can be issued only when it is proved that a judicial or quasi-judicial authority has no jurisdiction or it acts in excess of jurisdiction vested in it. Prohibition cannot lie in cases where such authority having jurisdiction exercises it irregularly, improperly or erroneously.
2. If the proceedings before a judicial or quasi-judicial authority are partly within and partly without jurisdiction, the writ of prohibition may be issued in respect of latter.
· Prohibition in Bangladesh:
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.
Ø Example:
Any person, who cites or experience that any order given by a lower court is not legal or outside the jurisdiction of that lower court, can file a writ petition against the court. And if Supreme Court finds the complaint to be true then it can apply the writ of prohibition against lower court.
h) Conclusion:
A writ of prohibition lies where there is absence of jurisdiction or excess of jurisdiction. Hence, if defects of jurisdiction are apparent, it is not only the power but the duty of superior court to issue this writ to prevent a sub ordinate court or inferior tribunal from usurping jurisdiction not vested in it or from exceeding it. A superior court should not be chary of exercising power of prohibition if judicial or quasi-judicial authorities attempt to exercise jurisdiction beyond the power given to them by parliament.
· CERTIORARI:
a) Nature and scope:
‘Certiorari’ means ‘to certify’. It is so named as in its original Latin form it required “the judges of any inferior court of record to certify the record of any matter in that court with all things touching the same and to send it to the king’s court to examine.” If it is an order issued by the high court to an inferior court or any authority exercising judicial or quasi-judicial functions to investigate and decide the legality and validity of the orders passed by it.
b) Object:
The object of the writ of certiorari is to keep inferior courts and quasi-judicial authorities within the limits of their jurisdiction and if they act in excess of their jurisdiction their decisions can be quashed by superior courts by issuing this writ.
c) Certiorari distinguish from other writs:
A writ of habeas corpus reaches the body but not the record. A writ of certiorari always reaches the body and never the records. Certiorari differs from mandamus in that while mandamus acts where the tribunal declines jurisdiction, certiorari acts in cases of usurpation or excess of jurisdiction. Certiorari corrects while mandamus compels to act. Where certiorari can be issued by judicial or quasi-judicial authorities, mandamus is available against administrative authorities also. Both prohibition and certiorari are judicial writs and are available against subordinate courts and inferior tribunals. There is, therefore, no difference in principle between certiorari and prohibition except in respect of timing of the remedy; one before while the other after the decision. Prohibition and certiorari are two complementary writs and frequently go hand in hand. A writ of certiorari is corrective or remedial whereas a writ of prohibition is preventive. Certiorari applies to a decision which is fait accompli; prohibition seeks to prevent the fait from becoming accompli.
d) Conditions:
A writ of certiorari can be issued if the following conditions are fulfilled.
1. The judicial or quasi-judicial must have legal authority;
2. Such authority must be an authority to determine questions affecting rights of subjects;
3. It must have duty to act judicially; and
4. It must have acted in excess of its authority.
e) Grounds
A writ of certiorari may be issued on the following grounds:
1. Error of jurisdiction
When an inferior court or tribunal acts without jurisdiction, in excess of its jurisdiction or fails to exercise jurisdiction vested in it by law, a writ of certiorari may be issued against it.
2. jurisdictional fact
Lack of jurisdiction may also arise from absence of some preliminary facts, which must exist before a tribunal exercises its jurisdiction. They are known as ‘jurisdictional’ or ‘collateral’ facts. The existence of these facts is a sine qua non or condition precedent to assumption of jurisdiction by an inferior court or tribunal.
3. Error apparent on face of record
If there is an error of law, which is apparent on the face of the record, a decision of an inferior court or a tribunal may be quashed by a read of certiorari.
4. Violation of natural justice
A writ of certiorari can be issued when there is violation of the principles of natural justice.
f) Who may apply:
Normally the party whose rights are affected may apply for a writ of certiorari. But if the question affects the public at large, any person may apply. The distinction, however, is that where the application is made by the aggrieved party, the court should grant relieved ex.debito justitiae, but if it is made by a party not directly affected in the litigation, grant of writ is entirely in the discretion of the court.
g) Against whom certiorari would lie:
A writ of certiorari is a judicial writ. It lies against subordinate courts, inferior tribunals, quasi-judicial bodies and adjudicating authorities. Even if the court or tribunal ceases to exist or becomes functus officio, certiorari can still be issued against it.
h) Alternative remedy:
A writ of certiorari is a discretionary remedy and the fact that the aggrieved party has another adequate remedy may be taken into consideration and it may not be issued on that ground. But as discussed above, it is a rule of policy, convenience and discretion and not of jurisdiction and in spite of alternative remedy been available it may be issued where the order is on the face of it erroneous or the inferior court or tribunal has act without jurisdiction or in excess of its jurisdiction or contrary to the principles of natural justice or there is infringement of a fundamental right of the petitioner.
· Certiorari in Bangladesh:
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.
Ø Example:
A writ of certiorari is also a judicial writ and can be filed by either the aggrieved party or in certain case, can be filed by anyone against the lower court or authority.
i) Conclusion:
A writ of certiorari controls all courts, tribunals, and other authorities when they purport to act without jurisdiction, or in excess of it. It is also available in case of violation of the principles of natural justice or where there is an error of law apparent on the face of record. Over and above judicial and quasi-judicial bodies, now this writ is also available against administrative orders.
· QUO WARRANTO
(a) Nature and Scope:
‘Quo Warranto’ literary means ‘what is your authority’. It is judicial remedy against an occupier or usurper of an independent sustentative public office, franchise or liberty. By issuing this writ the person concerned is called upon to show to the court by what authority he holds the office, franchise or liberty. If the holder has no authority to hold the office he can ousted from its enjoyment. On the other hand, this writ also protects the holder of a public office from being deprived of that to which he may have a right.
(b) Object:
The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public officers against the relevant statutory provisions; it also protects a citizen being deprived of public office to which he may have a right.
(c) Conditions:
Before the writ of quo warranto can be issued the following conditions must be satisfied:
i. The office must be of a public nature. By public office is meant an office in which the public has an interest. Before the writ can be issued the court must be satisfied that the office in question is a public office and the holder thereof has no legal authority to hold the said office. This writ will not lie in respect of office of a private nature, e.g. a managing committee of a private school.
ii. The office must be of a substantive character. The words ‘substantive character’ means the office in question must be an independent office. The holder of such office must be an independent official and not merely a deputy or servant to others.
iii. The office must be statutory or constitutional. Thus, a writ of quo warranto may be issued un respect of offices of the Prime Minister, Advocate General, Judge of a High Court, Public Prosecutor, Speaker of a House of the State Legislature etc.
iv. The holder must have asserted his claim to the office. Mere making of a claim is not enough. But defective swearing can warrant quo warranto.
(d) Who May Apply:
The object of the writ of quo warranto is to prevent a person who has wrongfully usurped a public office from continuing un that office. Therefore, an application for a writ of quo warranto challenging the legality and validity of an appointment to a public office is maintainable at the instance of any private person even though he is not personally aggrieved or interested in the matter.
(e) When may be refused:
Quo warranto is a discretionary remedy and the petitioner can’t claim this writ as of right. The court may refuse to grant this writ taking into account the facts and circumstances of the case. This may include instances where the issues of a writ would be vexacious, or where there was acquiescence the part of the petitioner, or where it would be futile as the holder of an office has crased to hold the office in question. It may also be refused if there is mere irregularity in election.
A writ of quo warranto may also be refused in the ground that alternative statutory remedy is available to the petitioner. Thus, when a writ of quo warranto was sought to be enforced against a member of the State legislature, it was refused on the ground that there was an alternative remedy by way of making an election petition.
(f) Alternative remedy:
If an alternative and equally effective remedy is available to the applicant, a writ court may not issue quo warrento and relegate him to avail of that remedy. Existence of alternative remedy, however, is not an absolute bar and a writ court has discretion to issue quo warrento not withstanding availability of alternative remedy.
(g) delay:
Cause of action for a writ of quo warrento is a continuous one. If the appointment of an officer is illegal, every day that he acts in that office, a fresh cause of action arises and a petition cannot be dismissed on the ground of delay.
· Quo warrento in Bangladesh:
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.
Ø Example:
This writ can be filed by the Supreme Court against any company or individual, if the court finds no legal right of that company of individual to hold the position they had. Suppose, if a garment industry lack any legal authorization to hold the industry, the court might file a writ of Quo Warrento against that industry.
(h) Conclusion:
From the above discussion, it becomes clear that a usurper or an intruder cannot be allowed to retain a public office anymore. As soon as the attention of the court is drawn to this fact, it is not only the power but the duty of the court to declare that he is not entitled to hold such office and restrain him from acting as such.
· Public Interest Litigation (PIL)
In Indian law, public interest litigation means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. Public interest litigation is the power given to the public by courts through judicial activism. However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation by a busy body.
Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognizance of the matter and precede suo motu or cases can commence on the petition of any public-spirited individual
· ORIGIN of PIL
Prior to the 1980s, only the aggrieved party could approach the courts for justice. However, post 1980s and after the emergency era, the apex court decided to reach out to the people and hence it devised an innovative way wherein a person or a civil society group could approach the supreme court seeking legal remedies in cases where public interest is at stake. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PIL’s in the court. Filing a PIL is not as cumbersome as any other legal case and there have been instances when even letters and telegrams addressed to the court have been taken up as PIL’s and heard by the court.
· PIL in Bangladesh: a short history
PIL in Bangladesh is a post-democratic (i.e. post-1991) phenomenon, and its entrenchment in-Bangladeshi constitutional jurisprudence in the mid-1990s was significantly influenced by this political change.’ However, in the process of PIL’s much-labored birth, Bangladeshi judges, unlike their Indian counterparts, have not been optimally instrumental. Rather, they pursued” a parsimonious jurisprudential path for quite some time and refused to look beyond their own world, not because they were ignorant of PIL developments elsewhere but because, ‘for various reasons, they delayed implanting it until the pressure from established legal quarters became overwhelmingly strong’.”Indeed, the primary reason behind Bangladesh’s belated embrace of PIL appears to have been judicial unwillingness to break away from colonial legal thinking and abandon constitutional textualism or legal formalism. Moreover, while the emergence of PIL owes much to the judicial adoption of an autochthonous mode of Constitutional interpretation, there has hardly been any articulated urge for socially relevantjurisprudence in Bangladesh, nor is (here much realization about the inadequacyof the inherited, age-old British legal traditions.
There was an early decision (1974) in Kazi Mukhlesur Rahman v Bangladesh (hereafter Berubari) that had a strong PIL flavor, and went very close to establishing the principle of judicial review in the public interest. This decision is sometimes proudly characterized as the precursor of South Asian PIL. However, although Beruburi made the rule of standing a matter of judicial discretion,” it did not authoritatively establish PIL in the sense understood today. In Beruburi, a citizen was given standing to challenge the constitutionality of the Dhaka-Delhi Treaty (involving territorial cession) because it involved an ‘outstanding’ constitutional issue ‘affecting the rights of the people of Bangladesh as a whole’.
Unfortunately, as subsequent judicial inertia shows, the Berubari type of flexible judicial attitude failed to dislodge the usual legal formalism and a high threshold of standing. Nor did this decision sufficiently enlighten even the greatest minds in the judiciary. Consider the following 1991 orthodox observations in Bangladesh Sangbadpatra Parishad v Bangladesh (hereafter Sangbadpatra), which were surprisingly made by the very judge who later took the lead in entrenching PIL in Bangladesh:
In our Constitution the petitioner seeking enforcement of a fundamental right must be a ‘person aggrieved’. It seems that the court rejected the possibility of PIL in-Bangladesh because its Constitution, unlike India’s, required a petition by ‘a person aggrieved’ for constitutional remedies (Article 102).
We are often advised not to interpret these remarks as having meant to retard PIL in Bangladesh but, rather, to understand them only in the context of non-PIL Sangbadpatra. ‘True, Sangbadpatra, where an associational standing was refused on some rather unconvincing technical grounds” was not a PIL in the classical sense of the term. But where are the justifications for the above-quoted sweeping remarks against PIL? Unsurprisingly, then, by constructing a ‘formidable barrier’ for the later development of PIL in Bangladesh, Sangbadpatra did more harm than was initially perceived by the optimists and also by the judges themselves.
A number of interlocked factors made this change in Bangladesh’s legal history possible. First, in the context of the newly-found judicial freedom and the heightened public expectations of the judicial intervention in the post-democratic transition era, the judiciary could not help changing its mindset vise-a-vise an inherited, unresponsive legal process. Second, internal pressure from the established legal circles for a paradigm shift in the Supreme Court’s jurisprudence mounted, and the civil-society-driven public interest movement gathered pace in the new democratic environment. This was reflected in a 1994 HCD decision where N. Ahmed misapplied Sangbadpatra in granting an associational standing to an organization pursuing a cause of public rather than private interest. Breaking new grounds, the judge noted that the Constitution is a living instrument, and should be interpreted in the light of the changing socio-economic conditions of society, as well as to meet the ‘needs of those who are incapable, on account of poverty or otherwise, to seek assistance of the court which exists for safeguarding rights and interests of all citizens’. This social interpretation of the Constitution armed the civil society groups to rejuvenate their vigor in their struggle for PIL. Third, judicial change-mindedness regarding PIL was also influenced by the development and successes of PIL in other South Asian countries, particularly India, although impacts of other jurisdictions on the emergence of Bangladeshi PIL is hardly recognized in the literature. There is evidence that cross-jurisdictional learning and exchange of experiences among the judges have contributed to the birth of PIL in Bangladesh.
It must, however, be recognized that the significant shift in constitutional interpretations that FAP 20 installed was informed by the ‘autochthonous’ nature of the Constitution of Bangladesh. The Court in FAP 20 held that the Constitution was ‘not the outcome of a negotiated settlement with a former colonial power’, but ‘the fruit of a historic war of independence, achieved with the lives and sacrifice of a telling number of people for a common cause’; namely, a just society. Noting that ‘people feature as a dominant actor’ in the Constitution, the Court pledged to make the people ‘the focal point’ of its concerns.” This line of reasoning led Kamal to employ a pro-people, holistic and teleological interpretation to the Article 102 phrase ‘a person aggrieved’, thereby throwing the judicial door open to ‘the people as a collective personality’ rather than keeping it reserved only for a lexicographically understood ‘aggrieved’ person. Judicial re-articulation of the constitutional mandate for social justice and judicial consciousness about the exclusion of the majority from remedial justice resulted in a liberal regime of locus standi, to which contemporary Bangladeshi judicial activism owes a great deal.
This is how PIL in Bangladesh took off; probably a not-so-radical start in comparison with other successes elsewhere, but nevertheless historic. The stage for actions having been set, one could expect more PILs. The judiciary and legal circles, including the human rights groups, needed time to construct a sustainable support base for future actions, which today appears to remain under-construction. This initial phase of Bangladeshi PIL revealed a state of jurisprudential uncertainty and a general hesitation among legal activists. This is evident from the paucity of PIL actions, as well as their being framed as actionable civil rights claims filed mostly by, or conjointly with, more directly affected petitioners.39 However, there were also cases concerning civil-political rights and constitutional principles beyond the classic pattern of actions on behalf of the ‘most disadvantaged’. Along with civil-society groups and public-minded individuals/lawyers, political litigants or litigation for political interests also began to appear as an emerging, if not ultimately dangerous, feature of this period. Bangladeshi PIL entered this advanced phase of ‘the middle class usurpation’ of PIL techniques rather rapidly, and without passing through the desirable ‘pioneer stage’ of focusing on issues of serious violations of most basic fundamental rights. Nonetheless, the recent orientation of PIL towards more genuine, wider constitutional causes has largely minimized the risk of its misuse for selfish interests.
· Example:
Following the development phase, the number of PIL cases and successful decisions began to emerge after 2000. Most of these modern rights-based PILs, like their predecessors, involved the field of environmental justice, which seemingly attracted the court’s spontaneous and relatively assertive interventions. Indeed, the continued judicial environmental activism has been one of the central features of Bangladeshi PIL jurisprudence. For example, in a number of cases, acts of conversion by relevant government agencies of open spaces into housing plots or commercial buildings were voided for violating the fundamental rights of local people and causing detriment to their health and well-being.” In a commendable anti-vehicular-pollution decision in Dr Mohiuddin Farooque v Bangladesh the first of its kind in Bangladesh and passed following a rather short discussion of relevant constitutionalissues not informed by scientific reports, (he court issued a directive toimprove the condition of air pollution in Dhaka city. Keeping thecase ‘pending for the purpose of monitoring’,” it directed the government,among other things, to convert the existing polluting vehicles into a compressed-natural-gas-run environmentally friendly means of transport, give a month-long publicity to the court-directives in the media on two consecutive days in a week, and submit half-yearly reports of compliance. In another famous public interest environmental litigation decision, Dr Mohiuddin Farooque v Bangladesh (hereafter Industrial Pollution), relevant state officials, having been put under a ‘reportage obligation’, were likewise directed to take action compelling polluting industries to adopt sufficient anti-pollution measures within 1-2 years and to refuse to give licenses to new industries without first requiring them to take such measures.
It seems that the Bangladeshi Supreme Court is increasingly aware of the limits of law on paper, and of the need to engender a duty-based legal regime by fostering a sense of public duties among the general public” and enforcing the constitutional and statutory duties of the state functionaries concerning the ‘welfare’ of the citizens; sometimes by assuming a rights-enhancing and constitution-forcing role. For example, in Prof Nurul Islam vs Bangladesh the HCD exercised some measure of policy/law-making activism while imposing a ban on advertisements of cigarette and cigarette-related products in furtherance of the people’s right to life. There was no law prohibiting tobacco advertisements, but an innovative court found that such prohibition was in-built in the ‘self-executory’ constitutional right to life. Informed by the implications of the Fundamental Principles of State Policy, particularly those relating to the promotion of public health and associated state obligations, the court asserted its authority to issue appropriate declarations/directions such as this banning order in remedying any violation of the people’s right to life./Similarly, in the Industrial Pollution decision, the Court rightly found an enforceable ‘constitutional guarantee for a pollution-free environment’ in Article 32; that is, in the right to life.
· Conclusion
It can be concluded that judicial public interest and constitutional activism in Bangladesh has begun to make progress and reach achievements, but has not yet lived up to its promises. It seems that much of the future of this PIL-based judicial activism depends on an ongoing fine-tuning process of the PIL movement in Bangladesh, which has still a long way to go towards realizing constitutionally promised social and political justice. The under-performance of Bangladeshi PIL has been attributed to its elitist use. While this accusation is largely well founded, a purely social-rights-based functional definition of PIL lurked behind this. This article has showed that PIL’s underperformance is rooted not in its elitist use per se or in excessive judicial activism, but in the traditional mould of Bangladeshi judicial activism, both procedural and substantive. Furthermore, the judiciary has failed to build and increase its capacity to effectively implement its decisions and bring the executive to account. For the Bangladeshi (as well as any other) judicial system, this is a more challenging and daunting task than merely passing good orders. The lack of a collectivized judicial philosophy as to justice-conscious jurisprudence is arguably also a major hindrance. These problems are partially but significantly explicable by the judges’ general inclination to legal positivism; that is, their unwillingness to continue to innovate in the field of justice, barring, of course, some notable exceptions. Decisions turning down meritorious petitions on the ground of lack of standing, judicial conservatism in awarding remedies, the reluctance to enforce rights horizontally, and the hesitation to actively engage with the ‘non-enforceable’ FPSP are but some instances that reflect the persistence of judicial inhibitions.
It is argued here that increased judicial activism could have enhanced the confidence of real, non-elitist public interest litigants to utilize the judicial avenue for justice. Having said this, and urging for an increase in rights-based PIL cases, this paper applauds and strongly supports the emerging trend of constitutionalism, based PIL as a means of ensuring public accountability. Based on a broader rather than a merely social-rights-centric concept of social justice, it is argued that enforcing principles of constitutionalism through PILs, even if filed by elites, could be a viable avenue for social-constitutional justice. The Bangladeshi context demonstrates that an assertive, socially active and justice-conscious judiciary, along with other extrajudicial factors, is critical if the Constitution has to work as an instrument of social transformation.The debate as to whether PIL serves the elites or the marginalized should he directed towards the issue of whether wider constitutional principles or” justice are being adhered to the holders or public power.