HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
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Mirza Hussain Haider, J. And Muhammad Khurshid Alam Sarkar, J Judgment on 31.07.2013 |
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Mohammad Emrul Kayes and others …Petitioners (in W.P. No. 5267 of 2013) With Syed Ejaz Kabir …Petitioner (in W.P. No. 5247 of 2013) And Md. Noor Us Sadik ...Petitioner (in W.P. No. 5276 of 2013) -Versus- Government of the People’s Republic of Bangladesh and ...Respondents (in all the writ petitions.) |
Constitution of Bangladesh, 1972
Article 102
A lawyer has a vital interest in the field
of independency of judiciary and if the integrity and interest of the judiciary
is threatened by an act of a State functionary, it shakes the conscience of a
lawyer. The lawyers have been imposed with a heavy duty of prote-ction of
interest of judiciary when it appears some scheme and design to demoralize
judges of the highest Court. Hence the petitioners are ‘persons aggrieved’
within the meaning of Article 102 of the Constitution.
A
lawyer has a vital interest in the indepen-dence of the judiciary as the legal
profession is an integral part of the judicial system and, further, a lawyer is
an Officer of the Court who sits and practises in the Court and, therefore, he
has a legitimate interest in preserving the integrity of independence of the
judicial system and if the integrity and interest of the judiciary is
threatened by an act of a state functionary, naturally, it shakes the
conscience of a lawyer. . . .
(57)
When
there appears some scheme and a design to demoralize Judges of the highest Court,
lawyers feel perturbed as they are always serious in maintaining the high
standards of fearless, impartial and unbending justice. . . .(58)
The
lawyers are considered to have their status in the judiciary as members of the judicial
fraternity and, in our modern judicial system, by virtue of their active
engagement in legal profession in the Court, they are considered and believed
to be the inseparable part of the judiciary and, accordingly, they have been
imposed with a heavy duty of protection of the interest of the judiciary.. . .
(64)
Any
public spirited conscious citizen may, bona fide, come forward for resolution
of a grievance of a public nature through the Court of law for the benefit of
the public, as opposed to the personal benefit, and our inevitable conclusion
is that the petitioners are ‘person aggrieved’ within the meaning of Article
102 of the Constitution. . . . (67)
Constitution of Bangladesh, 1972
Article 102
When there is no other forum for the
adjudication of the grivances relating to the benefits and interest of the
judges of the Supreme Court, this Court being bestowed with the power of
judicial review is not debarred from the taking up the present cases for its
consideration. The present writ petitions are maintainable and this Court is
competent to adjudicate the same.
While
there is no separate forum for the adjudication of grievances related to the
benefits and interests of the Judges of the Supreme Court, this Court being bestowed
with the power of judicial review is not debarred to take up the present cases
for its consideration. . . . (68)
As a
citizen of this country the judges are entitled to enjoy their lawful rights
guara-nteed in the Constitution and other laws of the land and if their rights
are invaded by any state functionary or individual, they are entitled to have
recourse to the competent Court of law. . . . (69)
A
Supreme Court Judge himself is an institution who can not act unscrupulously
for his personal gain and, for this reason, all the citizens including the
members of the executive branch are duty bound to pay homage to them. . . .(70)
The
Judges of this Court are under the legal obligation to protect, preserve and
defend the Constitution and to dispense justice in accordance with law without
any fear or favour, ill will or affection, be it the subject matter of
adjudication involving our own interest or the interest of any near and dear
one. The Judges, thus, can never act selfishly to personally benefit from the
judgment or order passed by them. Rather, they act upon the dictates of their
conscience which invariably leads them to act according to their oath. . . .(73)
The
present Writ Petitions are maintainable at the instance of the petitioners and
we also find that this Court is competent to adjudicate upon the cases. .
. . (79)
Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978
Section 4 (1) (a)
When a judge of the High Court Division has
asked for some residence, the allocation letter should have been revoked as a
judge of the Supreme Court holds a much higher post that of a Secretary.
Moreso, when the said application was recommended by the highest person of the
Republic, the respond-ents had to deal with the same first and comply with it
but, instead they showed the audacity of holding over the residence to
respondents Nos. 3 on 15.05.2013 i.e. after issuance of the instant Rules,
which demon-strate the deliberate disregard to a judge of the Supreme Court and
the Hon’ble President of the Republic and thus the conduct of the respondent
Nos. 1 and 2 appears to be malafide.
It
appears from annnexures 1, 2 & 3 that the application of Mr. Justice Md
Jahangir Hossain has been shown to have been received by respondent no. 1 on
20.11.2012 though the same has been forwarded from the Office of the Honourable
President on 10.11.2012, which appears to be an inordinate delay inasmuch as
usually all the correspondences from the Office of the Honourable President
reaches the concerned Ministries within a day or two. Even, if it was received
on 20.11.2012, allocation of the house in favour of respondent No. 3 on
20.11.2012 (on the day of receiving of Mr. Justice Jahangir’s application)
cannot escape from being exposed to question in the light of the fact that
after receiving the letter from the Office of the President, the dispatch of
the said allocation letter could well have been stopped. In any event, when a
Judge of the High Court Division has asked for the same, the allocation letter
should have been revoked inasmuch as a Judge of the Supreme Court holds a much
higher post than that of a Secretary. Moreover, when the said application was
recommended by the highest person of the Republic, the respondents had no
option but to deal with the same first and comply with it but, instead, they
showed the audacity of handing over of the residence to respondent No. 3 on
15.05.2013 i.e. after issuance of the instant Rules, which demonstrates the deliberate
disregard to a Judge of the Supreme Court and the Honourable President of the
Republic. Thus, the conducts of respondent nos. 1 & 2 clearly appears to be
malafide. . . .(82)
Constitution of Bangladesh, 1972
Article 147 (1)
Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978
Section 4 (1) (a)
It transpires that the entitlement to a
furnished house of a Supreme Court Judge is a statutory right stemming from the
Supreme law, the Constitution. Therefore, making allocation of an accommodation
to a Supreme Court Judge is an unbreachable duty of the State. . . .(87)
Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978
Section 4 (1) (a)
In the Warrant of Precedence the position
of the High Court Judges is at serial no. 9 and it is worthy of mentioning here
that the said Warrant of Precedence is framed and used for carrying out all
sorts of functions of the State, not for ceremonial occasions only. If the
provisions of the warrant of Precedence, for the arguments’ sake, is taken to
be not applicable for the affairs of house allocation, nonetheless, by dint of
statutory right, as enshrined in the Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978, the Supreme Court Judges shall get preference over
the Secretaries to the Governments. .
. .(88)
Constitution of Bangladesh, 1972
Article 147 (1)
While the source of entitlement of the
Supreme Court Judges to an accommodation is an Act of Parliament being a
compliance to Article 147(1) of the Constitution, the source of entitlement to
the accommodation of the Secretaries is Rules such as, Bangladesh Service Rules
(BSR) and the Bangladesh Allocation Rules 1982 etc. . . . (90)
Constitution of Bangladesh, 1972
Article 147 (1)
Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978
Section 4 (1) (a)
For the Secretaries to the Government,
there is nothing to be jealous with the privileges and remuneration of the
Judges of the Supreme Court, rather the state functionaries are expected to
look after the Judges and should never disturb the Judges in enjoying their
normal privileges and benefits, let alone providing any extra privileges. . . .(91)
Bangladesh allocation Rules, 1982
Rule 4
Thus, it appears that the actions of the
respondents in allocation of the bungalow type houses or superior type flats
have been taken in sheer violation of the obligation imposed upon them by the
Constitution and the Statute. Therefore, the allotment of House No. 12 at Minto
Road in favour of respondent no. 3 and the allocations of other bungalow type
houses situated at Minto Road, Bailey Road, Dhanmondi, Gulshan and Banani to
the Government servants, which have not been earmarked for any persona
designate, are declared to have been done illegally
It is not understood as to why the
Secretaries, who have been occupying the bungalow type houses at Minto Road,
Bailey Road and other places, have not chosen to stay in the flats earmarked
for them as listed in annexure X(1) where a good number of Joint Secretary to
Additional Secretaries are living. Those are F type accommodations and as per
Rule 4 of the Bangladesh Allocation Rules, 1982, those are reserved and
earmarked only for Senior Secretaries to Joint Secretaries and the Senior
Secretaries/Secretaries would obviously get preference in getting allocation of
the said earmarked flats as per the Rules, norms and practice. Until a single
Secretary to the Government is in pipe line to get the said flat, the other
officers with the rank below the Secretary should not be accommodated therein
until the said earmarked type flats becomes available to them. . . . (104)
It appears that the actions of the
respondents in allocation of the bungalow type houses or superior type flats
have been taken in sheer violation of the obligation imposed upon them by the
Constitution and the Statute. Therefore, the allotment of House No. 12 at Minto
Road in favour of respondent no. 3 and the allocations of other bungalow type
houses situated at Minto Road, Bailey Road, Dhanmondi, Gulshan and Banani to
the Government servants, which have not been earmarked for any persona
designate, are declared to have been done illegally. . . . (105)
Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978
Section 4 (1) (a)
The presence of the words “and, until such
residence is provided”, in Section 4(1) (a) of the Ordinance frustrates the
spirit of the statute which intends to actually provide a furnished residence
for the Supreme Court Judges. .
. .(108)
Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978
Section 4 (1) (a)
A Judge receives only Tk.26,600/- as
residence allowance because of non-availability of the furnished house, which
appears to be a striking unequal treatment and, thus, ridiculous given that the
very purpose of incorporation of residence allowance is to allow and enable the
non-allottee Judges to privately arrange for their accommodation but the said
amount, cannot even meet half the costs of a suitable house.
In figuring out the amount of residence allowance,
the concerned authority should have taken into consideration if the Government
has to hire or requisition houses or flats of 4200-4500 square feet for the
High Court Judges at a sparsely populated residential area in terms of being
conducive to their security, it would cost around 1 lac taka, inclusive service
charges and bills. Thus, it appears that the amount of residence allowance of
Tk. 26,600/- is too low to arrange for a suitable accommodation for the Judges
privately.
In absence of any guidelines for assessment
and determination of the amount of house allowance, there is always a serious
likeliness of deprivation of enjoying rational amount of house allowance by
which a Judge may be able to cope up with the expenses of privately rented
house. .
. .(108 and 109)
Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978
Section 4 (1) (a)
The executive cannot be allowed to enjoy
the absolute authority in the matter of fixation of remuneration and/or with
providing other privileges for the Supreme Court Judges as its ‘royal
privilege’ or prerogative. If such a process is allowed to continue, the
independence of judiciary will remain a distant dream.
Presence of an alternative option in
Section 4(i)(a) of the Ordinance, 1978 in the event of failure by the
respondents to provide the Judges with houses defeats the scheme of the law
that “A Judge shall be entitled to, and provided with” in a three-fold
way. Firstly, it paves the way for the concerned authorities to refrain from
providing the Judges with furnished government houses, secondly, the residence
allowance figured therein does not become of any use for the Judges to arrange
for privately rented house and, thirdly, threatens the independence of the
judiciary as the judiciary is pushed to be dependent upon the members of the
executive for increase of the amount of the residence allowance by making
overturns to them. . . .(112 and 118)
Constitution of Bangladesh, 1972
Article 147 (2)
Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978
Section 4 (1) (a)
From a plain reading of Article 147(2) it
appears that the State shall not make any legislation to the disadvantage of
the Supreme Court Judges. But it has clearly been found by our minute
examination and elaborate discussion made hereinbefore that the payment of
house allowance of Tk. 26,600/- have been fixed to the disadvantage of the
Supreme Court Judges. . . .(124)
Constitution of Bangladesh, 1972
Article 147 (2)
Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978
Section 4 (1) (a)
The Supremacy of the said Article
147(2) has been flouted by incorporation
of the impugned part of Section 4(1) of the Ordinance, 1978. It follows that
the second part of Section 4(1)(a) of the Ordinance, 1978 is violative of
Article 147(2) of the Constitution. .
. .(140)
Constitution of Bangladesh, 1972
Article 27
All the Judges of the High Court Division
are similarly situated dignitaries, irrespective of their age or date of
elevation in the Bench and, as such, they being the members of same class
deserve to be treated equally and no law should make any discriminatory
provision for which one judge will enjoy some benefit and other Judge will be
deprived of the same. . . .(179)
Constitution of Bangladesh, 1972
Article 27 and 29
Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978
Section 4 (1) (a)
It appears that the presence of the second
part of Section 4(1)(a) “–and until such residence is provided—-” makes the
deprived Judges victim of hostile and unequal treatment, thus, being the same
inconsistent with Article 27 and 29 of the Constitution is required to be
declared to be void for being ultra vires the Constitution. . . .(183)
Constitution of Bangladesh, 1972
Article 27, 29, 31 and 147 (1)
Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978
Section 4 (1) (a)
Accordingly, we declare the second part of
Section 4(1)(a) of the Supreme Court Judges (Remuneration and Privileges)
Ordinance, 1978 in the language of “ …….and until such residence is
provided, a judge shall be paid a residence allowance of Taka, 26,600/- per
month” void for being the same ultravires of
Article 27, 29, 31 and 147(2) of our Constitution. . . .(187)
SP Gupta Vs. Union of India, AIR 1982
(S.C)
149; The Secretary, Ministry of Finance Vs. Masdar Hossain and others.
(52 DLR
(AD) 82); Bangladesh and others Vs Md. Idrisur Rahman (17 BLT (AD) 231);
Bangladesh Vs Advocate AKM Shafiuddin (64 DLR 508); Government of
Bangladesh Vs
Advocate Manzil Morshed (CP No. 1172 of 2012, case relating to the
medical
allowances of the Judges of the Supreme Court of Bangladesh); Advocate
Manzil
Murshid Vs Bangladesh and others 33 BLD (HCD) 121; Advocate Manzil
Morshed V
Government of Bangladesh and other (Writ Petition No. 100027 of 2011);
National
Board of Revenue Vs Abu Sayeed Khan and others (18 BLC (AD) 2013); the
Secretary, Ministry of Finance Vs. Masdar Hossain and others (52 DLR
(AD) 82);
Bangladesh and others Vs Md. Idrisur Rahman (17 BLT (AD) 231);
Bangladesh Vs
Advocate Manzil Morshed 33 BLD 121 (CP No. 1775 of 2013); Ataur Rahman
(Md) Vs Bangladesh and others (62 DLR 329); All
Indian Judges’ Association vs Union of India (1993) 4 JT (SC) 618 SP
Gupta Vs
President of India. (AIR 1982 SC 149); Fazlul Qader Chowdhury Vs
Muhammad Abdul
Haque. (PLD 1963 SC 486); Ministry of Finance Vs Masdar Hossain (2000)
(viii)
BLT (AD) 234; Marbury Vs Madison (1803); Special reference Case No. 1 of
1964
(AIR 1965 SC 745); Asma Jihani Vs Government of Punjab. (PLD 1972
SC139);
Khandaker Delwar Hossain -Vs- Italian Marble Company Limited reported in
2010
BLD Special, (the 5th amendment case); Siddique Ahmed –Vs- Bangladesh
(2013
Counsel (Special); Md. Abdul Mannan Khan –Vs- Bangladesh. (“The 13th
Amendment
Judgment” published by the CCB foundation); Sultana Kamal Vs Bangladesh
(14 BLC
(2009); M. Samsul Haque and others -Vs- Bangladesh and others. (17 BLT
(HCD)
523); Monzur Ahmed Bhuiyan and others Vs Adilur Rahman Khan and others.
(18 BLC
(AD) 47); Idrisur Rahman –Vs- Bangladesh. (60 DLR 714); Southern Rly Co.
V.
Grane, (216 U.S. 400); Shujat Ali Vs. Union of India, (AIR 1974, SC
1631);
Bhoomi Vikash Bank Ltd Vs its workmen (AIR
1990 SC 495); State of West Bengal v. Anowar Ali Sarkar, (AIR 1952, SC
75);
Dhirendra Kumar Vs. Government of West Bengal, (AIR 1954, SC 424);
Panduranga
Rao Vs. Andhra Pradesh Public Service Commission, (AIR 1963, SC 268);
Bank Nationalization (AIR 1970 SC 564); Indira Gandhi Vs. Raj
Narayan (AIR 1975 SC 2299); Hamidul Huq Chowdhury Vs Bangladesh (34 DLR
190); Zainul Abedin Vs
Bangladesh (34 DLR 77); Bangladesh
Krishi Bank -Vs- Meghna Enterprise and others
(50 DLR (AD) 194); SA Sabur Vs Returning Officer (41 DLR (AD) 30); Malpe
Viswanath vs Moharashtra (1998) 2 SCC 1; Sayeda Rizwanna Hasan Vs
Bangladesh
reported in 18 BLC (AD) 54 ref.
Mr. Aneek R Haque, Advocate,
…For the petitioners. (in
Writ Petition No. 5267/2013).
Mr. A.M. Aminuddin with
Mr. S.M. Mahbubul Islam
Mr. Riead Mahmud and
Mr. Mohammad Imran Miah, advocates,
…For the petitioner (in
Writ Petition No. 5247/2013).
Mr. S.M. Rezaul Karim with
Mr. B.M. Elias and
Mr. Jotirmoy Burua, advocates,
…For the Petitioner (in
Writ Petition No. 5276/2013)
Mr. Mahbubey Alam, Attorney General with
Mr. Al Amin Sarker, D.A.G
Mr. Zakir Hossain Ripon, A.A.G and
Mr. K.M. Masud Rummy, A.A.G,
…For respondents (in
all the Writ Petitions).
Writ Petition Nos. 5267, 5247
and 5276 of 2013
JUDGMENT
MUHAMMAD KHURSHID ALAM SARKAR, J:
1.
All these three writ petitions have taken up
simulteneously for hearing as common questions of law and fact are involved
and, accordingly, they are being disposed of altogether by this single
judgment.
2.
Initially, on 20.05.2013, Rules were issued
in all the above writ petitions in the following terms:
Let a Rule Nisi be
issued calling upon the respondents to show cause as to why the overall actions
of the respondents in allocating the Government houses for the dignitaries
positioned at serial no. 5 (Cabinet Ministers) to 16 (Secretaries to the
Government) of the Warrant of Precedence, including their action in the
allotment of House No. 12, Minto Road, Dhaka in favour of respondent no. 3 in
defiance to the recommendation of the Hon’ble President of the People’s Republic
of Bangladesh for allocation of the said house in favour of a Judge of the
Supreme Court of Bangladesh, being in violation of the Supreme Court Judges
(Remuneration and Privileges) Ordinance, 1978, the Bangladesh Allocation Rules,
1982 and the Warrant of Precedence, shall not be declared to have been done
without lawful authority and of no legal effect.
And why the respondents
shall not be directed to arrange “a
furnished residence free from the payment of any rent and charges on account of
municipal taxes and local rate and of the use of electricity, water and gas”
(bungalow type or similar accommodation) for all the persons holding
Constitutional positions, specially for the dignitaries under Serial No. 5 to
10 of the Warrant of Precedence;
And, further, to show
cause as to why the respondents shall not be directed to periodi-cally review
the said provisions of Section 4(1) (a) of the Supreme Court Judges (Remuner-ation
and Privileges) Ordinance, 1978, so far as it relates to the amount of the
money for house allowance, in order to update and harmonize the same with the
socio-economic conditions of the country;
And also to show cause
as to why, in case of failure of making such residential allotment in favour of
the aforesaid dignitaries, the respondents shall not be directed to bear the
costs incurred from the house rents, bills, charges and all other expenses at
actual, in addition to the fixed house allowance, and/or pass such other or
further order or orders as to this Court may seem fit and proper.
At the time of issuance
of the above Rules on 30.05.2013 the following interim orders were passed upon
the respondents:
Respondent nos. 1 and 2
are directed to submit a list of total number of bungalow type houses including
the number and names of allottees/present occupants of the same within 2(two)
weeks from the date of receipt of this order.
Pending hearing of the
Rule, the respondents are directed not to allot any bungalow type house/similar
accommodation to anyone without providing the same to the dignitaries under
Serial No. 5 to 10 of the Warrant of Precedence.
Further, the
respondents are restrained by an order of injunction from handing over the
possession of 12, Minto Road, Dhaka to respondent no. 3.
3.
On 20.06.2013, upon the prayer of the
petitioners, a supplementary Rule was issued along with interim order in the
following terms;
4.
Let a supplementary Rule Nisi be issued
calling upon the respondents to show cause as to why the 2nd part of Section
4(1)(a) of the Supreme Court Judges (Remuneration and Privileges) Ordinance,
1978 shall not be declared to be ultra vires as the same is violative of
Article 27, 29, 31 and 147(2) of the Constitution and, also, for being
contradictory and repugnant to the first part of the said provisions of Section
4(1)(a) of the said Ordinance, 1978.
5.
Pending hearing of the Rule, respondent no.
1 is directed to submit a list of total number of flats/houses of the superior
category which have been allotted to the Joint Secretaries to Secretaries with
number and particulars of the present occupants before this Court within 10
(ten) days.
6.
Succinctly, the background of the case is
that the writ petitioners in all the above three writ petitions are the
practising advocates of the Supreme Court of Bangladesh and, day before the issuance
of the instant Rules, they together with a handful young advocates approached
this Court in the form and style of “mentioning” a particular matter by placing
some news clippings/reportings which state that the Government has allotted
House No. 12, Minto Road, Dhaka, in favour of the Secretary, Ministry of
Industry despite the same being recommended by the Hon’ble President of the
People’s Republic of Bangladesh for an Hon’ble Judge of the High Court Division
and submitted that the said news, having caught sight of the petitioners,
prompted them to engage in investigation into the matter and it was revealed
that while a number of Hon’ble Judges’ applications for accommodation, after
the same being forwarded by the Hon’ble Chief Justice of Bangladesh, are lying
unnoticed in the Ministry of Public Works and Housing, the members of the
administrative branch, ranking from Joint Secretary to Senior Secretary, are
being regularly endowed with luxurious apartments and bungalows and, thus, the
cases of Hon’ble Judges are being purposely ignored. Then, they submitted that
they felt dismayed at the deplorable treatment of the state function-aries in
providing the Judges of this Court with their legal entitlements and, hence,
they consider the matter as a fit case for issuance of a Suo motu Rule and,
accordingly, prayed for the same. However, this Court, instead of issu-ance of
a Suo motu Rule, asked the petitioners to come up with a formal application, if
they find themselves to be aggrieved with the actions of the respondents.
7.
At this juncture, on the following day, the
petitioners filed 3 (three) applications under Article 102 of the Constitution.
All of the petitions are almost with the same contentions and prayers. It is
stated in all the writ petitions that the state functionaries, who are
responsible for fixation of remunerations, privileges and other benefits,
including allocation of suitable accommodation for the Judges of the Supreme
Court, are discriminating against the latter in allocation of the residence in
violation of the relevant laws of the land. It is stated that the Judges of
this Court are not supposed to approach anyone in the Republic other than the
Hon’ble President of the Republic, the highest authority of the land, and when
the application of Mr. Justice Md. Jahangir Hossain for allotment of House No.
12 at Minto Road was recommended by the Hon’ble President, respondent Nos.
1&2 were duty bound to comply with the said recommendation, but, instead,
they allotted the House to respondent no. 3. It is stated that the respondents
have committed a serious misconduct by defying the recommendation of the
Hon’ble President of the Republic and thereby allotting the said house to
respondent no. 3. The underlying concern of the petitioners is that unless the
impugned actions of the respondents are adjudicated upon at an earliest
convenience, it shall, at the very least, establish a dubious precedent of
action arbitrarily and peremptorily taken with impunity against the legitimate
rights and interests of a member of the Bench of the Superior Judiciary,
thereby, operating inimically to the interests and image of the Supreme
Judiciary as a whole.
8.
It is stated that lawyers are the integral
part of the judiciary and as the conscious citizens of the country and members
of the legal profession the petitioners believe in the independence of the
judiciary and they are tirelessly working towards the establishment of the rule
of law as they hold the Constitution of Bangladesh in high esteem as sacred
inviolable superior law of the land. The petitioners stated that they consider
the said incident to be a degrading treatment for the Hon’ble Judges of the
Supreme Court with a perilous consequence to the state which consists of
the Executive, the Legislative and the
Judiciary and, as such, the petitioners felt the urge to come up with these
applications in the form of public interest litigation (PIL) for vindication of
a public grievance related to the greater interest of the judiciary with a view
to strengthening the position of the judiciary and, thereby, ensure the
independence of the judiciary. Hence, these Rules.
9.
For illuminating the facts of these writ
petitions stated hereinbefore and also of the discussions, observations and
orders to be made/passed in these cases hereinafter and, further, for the ease
of reference, let the respondents’ identities be known. In all the writ
petitions respondent no. 1 is the Secretary, Ministry of Housing and Public
Works, respondent no. 2 is the Director, Directorate of Government Accommodation,
respondent no. 3 is the Secretary, Ministry of Industry, respondent no. 4 is
the Secretary, Ministry of Law, Justice and Parliamentary Affairs and
respondent no. 5 is the Secretary, Ministry of Finance. All of them entered
appearances by filing affidavits-in-opposition.
10.
The affidavit-in-opposition filed on behalf
of respondent nos. 1 and 2 contends, inter-alia,
that there are, in total, 124 superior type of houses (bungalows) and out of
them 20 houses have been earmarked for the Judges of the Supreme Court and the
Registrar of the Supreme Court of Bangladesh is in charge of allocation of all
the said 20 houses and, currently, all these earmarked houses are being
occupied by the Hon’ble Judges of the Supreme Court of Bangladesh. It is stated
that normally no bungalow type house, except the aforesaid 20 earmarked houses,
is allotted to the Judges of the Supreme Court of Bangladesh by respondent no.
2. However, on special consideration, in addition to the said 20 earmarked
houses, 27 extra superior types of Government houses have been allotted to the
Judges of the Supreme Court and, thus, presently total 47 superior type of
houses, being situated at Minto Road, Bailey Road, Dhanmondi Residential Area,
Mohammadpur Residential Area and Gulshan Residential Area, are being occupied
by the Judges of the Supreme Court. It is stated that the Government has
undertaken a project at 67, Circuit House Road, Ramna, Dhaka for construction
of 76 apartm-ents of 4200 Square feet for the Judges of the Supreme Court and
the construction of the same is going on at full speed.
11.
It is stated that most of the bungalow type
houses at Minto Road, Bailey Road and Hare Road are earmarked for the
Ministers, State Ministers, Deputy Ministers, Commissioners of Election
Commission, Inspector General of Police (IGP), Auditor and Comptroller General
of Bangladesh, Governor of Bangladesh Bank, District Judge, DC, SP of the Dhaka
District and some other special designated officers. It is stated that as per
the Bangladesh Government Allocation Rules, 1982 Government Officers with the
scale of Tk. 32,300/- and above, ranking from Joint Secretary to Senior
Secretary, are entitled to get allotment of the superior type of houses and, at
present, there are 6 (Six) earmarked buildings for the said officers having 195
superior type of flats of above 4000 square feet. Nevertheless, there is an
acute shortage of accommodations of the high-ranking Government servants and in
order to cope up with the situation a good number of bungalow houses at Minto
Road and Bailey Road and 9 (nine) bungalow type of houses outside the said
areas have been allotted in favour of the Government servants with the rank of
Secretary, Senior Secretary and Cabinet Secretary. It is stated that House No.
12 at Minto Road, Dhaka is a bungalow type house and the said house has been
allotted to respondent no. 3 on 20.11.2012 upon his application dated
25.10.2012 and handed over to him on 15.05.2013. It is stated that Mr. Justice
Md. Jahangir Hossain made his application to the Hon’ble President of the
Republic for allocation of the said house on 08.11.2011 and the same, being
recommended by the august office of the Hon’ble President of Bangladesh on
10.11.2012, was received only on 20.11.2012 and 21.11.2012 by respondent nos. 1
and 2 respectively and, thus, it could not be allotted to the Hon’ble Mr.
Justice Md. Jahangir Hossain as the said house, by then, was allotted to
respondent no. 3 on 20.11.2012. It is stated that Mr. Justice Md. Jahangir
Hossain has been living in a superior type of house at House no. 71/1, Circuit
House upon getting it allotted on 02.01.2012.
12.
By filing a separate affidavit-in-opposi-tion
respondent no. 3 contends, inter-alia, that currently he is living in a
superior type house in Gulshan area allotted by the Government but his office
being in Motijheel area, he was encountering severe traffic jam everyday on the
way to and from his office and, under the situation, he applied for House no.
20 at Minto Road, Dhaka on 20.11.2012 and the same was handed over to him on
15.05.2013.
13.
By filing another affidavit-in-opposition
respondent no. 5 contends, inter-alia, that as per the Supreme Court Judges
(Remuneration and Privileges)(Amended) Act, 2010 at present the Hon’ble Judges
of the Supreme Court gets Tk.26,600/- per month as their residence allowance.
It is stated that previously the residence allowance was Tk. 20,000/-and
recently the “Committee on Pay and Privilege of the Judges of the Supreme Court
of Bangladesh” has been formed by the Government to place recomm-endation
regarding revised remuneration of the Judges of the Supreme Court and the said
Committee recommended for free furnished residence with all other facilities
and a monthly payment of Tk. 35,000/- as residence allowance, in the event of
its non-availability. It is stated that the Finance Division will do the
needful to increase the amount of the residence allowance, if any such proposal
is made by the Ministry of Law and Parliament.
14.
Mr. A.M. Aminuddin, Mr. S.M. Rezaul
Karim, Mr. B.M. Elias and Mr. Aneek R. Haque, all of the learned advocates
appeared for the petitioners. They, at the very outset, submit in one voice
that the petitioners are the conscious citizens of the country and are
committed to the welfare of the Republic and to uphold the Rule of Law and our
society expects that the lawyers, such as the petitioners, should always be
vigilant against any action of the state taken to the disadvantage of the
judiciary and, thus, all these Public Interest Litigations (PIL) are being
moved in the interest of the public at large as pro-bono publico.
15.
They submit that the statements/ discus-sions
by those holding high office and wielding state power, the elite class or the
members of the civil society in different seminars and in the electronic/print
media as to the establishment of rule of law in the country would be regarded
by the common men to be a farce, if, at first, an environment for the judiciary
to work indep-endently is not created. They submit that members of the
judiciary must be allowed to work uninterruptedly being free from any anxiety
about maintaining their personal and family life. They submit that if the
Judges of the Supreme Court are to be dependent on the kindness of the members
of the executive branch for their various legal entitlements such as, here in
this case, allocation of houses, they will not be in a position to demonstrate
their impartiality at the time of adjudication upon a case against the
concerned authority of the government. They submit that if the Judges of the higher
judiciary is to be engaged in satisfying the members of the executives, the
judiciary as an organ of the state shall never be independent.
16.
Then, they placed Section 4(1)(a) of the
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978 (hereinafter
referred to as the Ordinance, 1978) and
submit that it is a mandatory duty of respondent nos. 1 and 2 to arrange for
furnished residences with free electricity, gas, water and other facilities,
which may either be bungalow type houses or flats in view of the words “provided
with” employed in the said Section in furtherance to the words “shall be
entitled to”. They submit that by using the phraseology “a judge shall be
entitled to, and provided with”, the legislature intended to ensure that all
the Judges of the Supreme Court must be provided with a suitable accommodation
just after entering into their office.
17.
Then, they refer to the amount of money
figured in the second part of Section 4(1)(a) of the Ordinance, 1978 which
makes the provisions for monthly payment of Tk. 26,600/- in the event of the
failure by the Government for arranging furnished houses for the Judges of the
Supreme Court and term the said figure to be completely impractical and
unreasonable as well as inconsistent with the provisions as prescribed in the
same Section of the said Ordinance as to providing furnished residence for the
Judges. They submit that the amount of money spent for providing a Judge with a
furnished residence, together with the rent, charge and bills of electricity,
water and gas does cost the Government nearly Taka 2, 00000/- (two lacs) per
month and, on the other hand, only Tk. 26,600/- is being paid to the Judges
living in privately rented accommo-dation. They submit that anyone with minimum
prudence will get bewildered at the comparison of the above figures. They,
therefore, submit that the provisions made in the Ordinance, 1978 for payment
of Tk. 26, 600/- is violative of Articles 27 and 29 of the Constitution
inasmuch as all the Judges of the Supreme Court being at par, some of them
cannot be subjected to discrimination by the respondents by purposely not
providing a furnished residence. They, thus, submit that the said provision is
required to be declared ultra vires the Constitution.
18.
The learned advocates, by sketching out a
comparative rent schedule of the different areas of the Dhaka City, submit that
most of the Judges of the Supreme Court, who are yet to get Government
accommodation, are living in the privately rented houses of 4 to 5 bed rooms
and they are monthly spending for their house rent Tk. 40,000/- to Tk.70,000/-,
based on the area/location and size of the flat and, in addition to that, they
are paying Tk. 10,000/- to Tk. 20,000/- per month as service charges and for
bills of electricity, water and gas and, therefore, the learned advocates for
the petitioners assailed the second part of Section 4(1)(a) of the Ordinance,
1978 to be repugnant to the provisions of the first part of the said Section on
the ground of lacking any basis in fixation of Taka 26,600/00. They submit that
incorporation of the said part in Section 4(1)(a) of the Ordinance, 1978 has
created scope for the respondents to act arbitrarily in allocation of
accommodations for the Hon’ble Judges and, thereby, deprive them of getting their
residence and, as such, the said part is an unreasonable legislation and
requires to be deleted from the said Section 4(1)(a) and an alternative
provisions should be incorporated therein to defuse the respondents’ tendency
of being actuated by their whims, arbitrariness and malice in fixation of the
amount of money as the residence allowance for the Judges of the Supreme Court
in case of non-availability of the Government accommodation.
19.
They submit that it is the foremost
responsibility of the State to ensure the hassle-free enjoyment of the
privileges of the Judges as prescribed in the Supreme Court Judges
(Remuneration and Privileges) Ordinance, 1978 as the Judges are entitled to get
protection of Article 31 of the Constitution which guarantees that everyone
will be treated in accordance with law. They refer to annexures X & X(1)
series appended to the affidavit-in-compliance where superior types of flats
and bungalow houses have been listed. They assail the said list to be incorrect
as the petitioners have come to know that there are some more superior type of
accommodations presently lying vacant but the respondents do not intend to
allot the same to the Judges and, thence, those have not been shown in the
aforesaid 2 (two) lists. In this context, they refer to the statements made in
Writ Petition no. 5276 of 2013 where, at the investigation of the petitioners,
the House no. 8/15 at Sir Syed Ahmed Road has been surfaced to be vacant. They
also referred to another news clipping which reports that a house in Dhanmondi
area, for which the Government is litigating for years to dispossess the
alleged owners, has been allotted to an Hon’ble Judge of the Supreme Court with
an ulterior motive of maligning the image of the judges of the higher
judiciary. They, then, refer to a number of decisions of our Apex Court where
an Article or a part of the Constitution or a piece of legislation was struck
down for being repugnant to the other provisions of the same statute or for
being ultra vires the Constitution.
20.
They referred to Section 2(a) of Bangladesh
Allocation Rules, 1982 and submit that when it does not become possible for the
Government to make arrangement of accom-modation for the Government servants
from the houses/flats owned by the Government, it hires or requisitions
houses/flats for the Government servants for mitigating the demands and, thus,
by drawing an analogy from the said provisions of the Bangladesh Allocation
Rules, 1982 the learned advocates for the petitioners submit that the
respondents ought to have hired or requisitioned the required number of houses
or flats of 4,200 square feet for the Judges of the Supreme Court until the
project of construction of 76 flats of 4200 square feet at 67, Circuit House
Road, Ramna, Dhaka is completed inasmuch as it is the imperative for the
respondents to provide accommodation. They, in the manner of placing a
suggestion to the respondents through this Court, submit that the location of
the hired or requisitioned flats should be within the proximity of the Supreme Court
premises, such as Eskaton, Siddheshwari, Kakrail and Bailey Road areas and, in
the case of non-availability of the required number of houses/flats in the said
area, secured residential areas like, Dhanmondi, Gulshan and Banani should be
selected. They put a further suggestion that the hired or requisitioned flat
should not be of less than 4,200 square feet as they submit that the said
residence for the Judges of the Supreme Court should have sufficient space with
an internal arrangement of a study room, in addition to having at least 4 bed
rooms, one dining room and one guest room. In a bid to compare the residential
arrangements of the Judges of the Supreme Court with that of the members of the
executive, they placed the fact before this Court that the flats earmarked for
the Joint Secretaries to Secretaries at Eskaton, Bailey Road, Gulshan,
Dhanmondi and other areas of the City are of 4,000 square feet and, further,
the Ministers’ Flats situated at Minto Road earmarked for the State Ministers
are of 5,200 square feet and submit that in comparison to the above facts and
figures the Judges of the Supreme Court, being positioned in the Constitutional
post, must deserve allotment of the flats of larger space than those of the
Secretaries to the Government.
21.
Per contra Mr. Mahbubey Alam, the learned
Attorney General appearing for all the respondents, submits that fixation of an
amount of money as the residence allowance for the persons holding the
Constitutional posts or for the Government servants is completely a policy
decision and the power of making the policy decision has been vested in the
legislature and in the executive and, as such, the same is not judicially
reviewable. To augment the submissions, he draws our attention to the maxim “No
man should be judge in his own cause (Nemo debet esse judex in propria causa)”
and adds that since the issue is related to the self-interest of the honourable
Judges of this Court, it may be fair to leave the dispute upon the policy
makers for their considerations instead of adjudication upon the same by
itself.
22.
He submits that the legislature in their
wisdom have intended to provide furnished residence together with the rents,
charges and bills for the Judges of the Supreme Court and if the said
arrangement cannot be made due to the non-availability of the houses or flats,
provisions have been made in the same piece of legislation for making payment
of a fixed amount of money for the Judges of the Supreme Court as the residence
allowance. He submits that previously the amount was Tk. 20,000/- which has,
recently in 2010, been increased to Tk. 26,600/- and the Government is actively
considering to increase it to Tk. 35,000/- and, as such, it will be illogical
to say that the Government is not reviewing the provisions laid down in the
second part of Section 4(1)(a) Ordinance, 1978.
23.
He submits that this Court is empowered to
declare an Act of Parliament to be void only if it is clearly found that the
same is inconsistent with any part of the Constitution and, in the case at
hand, as he submits, there being no inconsistency of the provisions of second
part of Section 4(1)(a) of the Ordinance, 1978 with any Article of the
Constitution, there is no ground for declaring the same to be ultra vires the
Constitution.
24.
He, by referring to the news clippings
centering house no. 12 at Minto Road, Dhaka, submits that the adjudication upon
these types of disputes by this Court may give rise to an unwanted unhappiness
among the members of the executives and, thereby, may create an unhealthy
working environment with the higher judiciary. He refers to Rules 3, 4 and 8 of
the Bangladesh Allocation Rules, 1982 and submits that only the Government
Servants are entitled to the superior type of houses and the Government has the
power to reserve the required number of accommodations in order to allot the
same to the holders of specific posts and the Judges of the Supreme Court being
not in the service of the Republic cannot claim the houses/flats managed and
controlled by respondent nos. 1 and 2. He submits that the Judges of the
Supreme Court, being the Constitutional post holders, should be provided with
accommodation at a specified place where only the Judges exclusively may live
with their families and, keeping this view in mind, the Government previously
has constructed 20 independent bungalow type houses within the vicinity at
Kakrail and in view of the increasing appointments in the higher judiciary the
Government has already undertaken a project to construct a building with 76
flats of 4,200 square feet each and the project is due to be completed in the
next couple of years and, after completion of the said project, it is expected
that there will be no shortage of accomm-odation for the Judges of the Supreme
Court.
25.
The learned Attorney General endeavors to
indicate that the present writ petitions are aimed at making a particular Judge
of the Supreme Court, who was trying to get allotment of a bungalow type house
in Minto Road area, happy and submits that this sort of phenomenon should be
discouraged by this Court as it may lead to bridging up an unsolicited rapport
of the petitioners with the said Judge. He submits that the House in question
should not be allotted to the said Hon’ble Judge in the light of the fact that
he might feel indebted towards the petitioners for their co-operation in
encountering the concerned members of the Executive branch, if the said house
is allotted to him consequent to the verdict of these writ petitions. He does
not concede to the claim of the petitioners that the instant writ petitions are
directed bona fide and aiming at vindication of a public concern and, thus,
submits that the petitioners do not have any locus standi to file the instant
applications under Article 102 of the Constitution.
26.
We have heard the submissions advanced by
the learned advocates for the petitioners and the learned Attorney General at
length and perused the writ petitions, affidavits-in-opposition and the
annexures appended thereto. We have also looked at the relevant provisions of the
law and gone through the decisions placed before us and considered them with
great care.
27.
Since the learned Attorney General for
Bangladesh has raised the question of maintainability of these writ petitions
on the ground of the standing of the petitioners as well as the competency of this Court in adjudic-ation upon the
matter, for being the same related with the self-interest of the Judges of this
Court, this Court is required to deal with the said issues at first before
entering into the task of examining the constitutionality of the impugned part
of Section 4(1) (a) of the Supreme Court Judges (Remuneration and Privileges)
Ordinance, 1978 as well as the impugned actions of the respondents.
28.
In order to carry out the said examin-ation,
we should look at the wordings of Article 102 of our Constitution in tandem
with the decisions of our jurisdiction and foreign jurisdictions.
29.
Since we are a new born nation and have been
bestowed with our Constitution only since 42 years, let us first look at the
old jurisdiction, such as UK, India and Pakistan, for the interpretation made
and hold on the point of standing of a petitioner in judicial review cases by
their Constitutional Courts.
30.
In India, the concept of public interest
litigation was imported by Mr. VR Krishna lyer, J in the case of Mumbai Kamgar
Sabha, Bombay vs Ms Abdul Bhai reported in AIR
1976 (SC) 1466 and, eventually, in the celebrated case of SP Gupta vs President
of India reported in AIR 1982 (SC)
149 (known as Judges case) the jurisprudential basis was laid down. In that
case several advocates of different Bars challenged the Government’s action
transferring some Judges of the High Courts and Justice Bhagwati approved the locus
standi in paragraph 17.
“Where
a legal wrong or a legal injury is caused to a person or to a determinate class
of persons by reason of violation of any constitutional or legal right or any
burden is imposed in contravention of any constitutional or legal provision or
without authority of law or any such legal wrong or legal injury or illegal
burden is threatened and such person or determinate class of persons is, by
reason of poverty, helplessness or disability or socially or economically
disadvantaged position, unable to approach the Court for relief, any member of
the public maintain an application……. seeking judicial redress for the
legal wrong or injury caused to such person or determinate class of persons”.
31.
In Indian jurisdiction the locus standi has
been enlarged to such an extent that now it is left completely upon the
discretion of the Courts on the basis of the fact of the each case. In the
cases of BALCO Employees Union (Regd) V.
Union of India, 2001 AIR SCW 5135,
S.P. Gupta V. Union of India, 1981 (Supp) SCC
87, Janata Dal V. H.S. Chowdhury, (1992) 4 SCC
305 and in many other latest cases, the standing of a petitioner was accorded
giving liberal meaning of the “person aggrieved”.
32.
In Pakistan, in the year of 1956, in the
case of Tariq Transport Company, Lahore vs Sargodha-Bhera Bus Service, Sargodha
reported in 11 DLR (SC) 140, the Supreme Court of Pakistan observed.
“……..
a person seeking judicial review must show that he has a direct personal
interest in the act which he challenges before his prayer for review is
entertained.”
33.
In the case of Mian Fazal Din vs Lahore
Improvement Trust reported in 21 DLR (SC) 225, the Pakistan Supreme Court took
somewhat liberal view stating—
“……..the
right considered sufficient for maintaining a proceeding of this nature is not
necessarily a right in the strict juristic sense; but it is enough if the
applicant disclose that he had a personal interest in the performance of the
legal duty, which if not performed or performed in a manner not permitted by
law, would result in the loss of some personal benefit or advantage or the
curtailment or the curtailment of a privilege or liberty or franchise.”
34.
However, the development in this field took
place in Pakistan only in the recent past. In the case of Benazir Bhutto vs
Federation of Pakistan, PLD 1988
(SC) 416, the Pakistan Supreme Court held that as the provision of Article
184(3) is open-ended, the proceedings could be maintained by an individual
whose fundamental rights are infracted or by a person bona fide alleging
infraction of the fundamental rights of a class or a group of persons, as there
is no rigid incorporation of the notion of ‘aggrieved party’ in Article 184(3).
35.
In England, no written Constitutional or any
statutory provision as to the locus-standi of a petitioner to file judicial
review application, like the words “any person aggrieved” as used in our
Constitution, was in existence before 1981. The English Courts have, de facto made the legislation as to the locus-standi.
In the English jurisdiction, the leading English case on locus standi is ex
parte Sidebotham, (1880) 14 Ch D 458 where the Court held that a person
aggrieved is a man “who has suffered a legal grievance, a man against whom a
decision has been pronounced which has wrongly deprived him of something, or
wrongfully refused him something, or wrongfully affected his title to
something.”
36.
After the said judgment, there have been
significant developments in the English jurisdiction as to the rule of locus
standi and shifted from restrictive view of standing.
37.
In the case of RV Metropolitan Police
Commissioner ex P Blackburn [1968] 1 All ER 763 and, subsequently, in the case
of P Blackburn vs Attorney-General [1971] 2 all ER 1380 and, then, in the case
of RV Metropolitan Police Commissioner ex P Blackburn [1973] All ER 324 the
petitioners were accorded standing as the Courts found that the petitioners had
‘sufficient interest’ in the performance of the public duty.
38.
Thereafter, by the enactment of the Supreme
Court Act, 1981 the issue has finally been settled.
39.
To return to our jurisdiction, the
observations made by our Appellate Division in the case of Bangladesh Sangbadpatra Parishad Vs
Bangladesh reported in 43 DLR(AD) 126 (para 9), having compared the standing of
a petitioner in the context of our Constitution to that of UK and India, may be
quoted which is as under:
“In
our Constitution the petitioner seeking enforcement of a fundamental right or
constitutional remedies must be a “person aggrieved”. Our Constitution is not
at pari materia with the Indian Constitution on this point. The Indian
Constitution, either in Article 32 or in Article 226, has not mentioned who can
apply for enforcement of fundamental rights and constitutional remedies. The
Indian Courts only honoured a tradition in requiring that the petitioner must
be an “aggrieved person”. The emergence in Indian of pro bono publico litigation, that is litigation at the
instance of a public-spirited citizen espousing causes of others, has been
facilitated by the absence of any constitutional provision as to who can apply
for a writ. In England, various tests were applied. Sometimes it was said that
a person must be “aggrieved” or he must have “a specific legal right” of or, he
must have a “sufficient interest”. Now, after the introduction of the new Rules
of the Supreme Court, Order 53 Rule 3, any person can apply for “judicial
review” in England under the Supreme Court Act, 1981 if he has a “sufficient
interest”.”
40.
Let us first look at Article 102 of our
Constitution, the repository power of this Court to review the actions of any
person, reads as follows:
“Powers of High Court Division to issue
certain orders and directions, etc. (1) The High Court Division on the
application of any person aggrieved, may give such directions or orders
to any person or authority, including any person performing any function in
connection with the affairs of the Republic, as may be appropriate for the
enforcement of any of the fundamental rights conferred by Part III of this Constitution.
(2) 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- (underlined by
us)
41.
Under Article 102(1) of our Constitution,
our Court exercises the power of judicial review if an impugned action is made
in violation of fundamental rights on the application of “any aggrieved
person”. Under Article 102(2), in order to have locus standi to invoke the
jurisdiction, an applicant has to show that he is an aggrieved party in an
application for certiorari, mandamus or prohibition but not in an application
for habeas corpus or quo warranto, where Writ Petitioner is not required to be
a ‘person aggrieved’.
42.
In our jurisdiction the question of locus
standi of the petitioners was examined for the first time in the Beru Bari Case
reported in 26 DLR (SC) 44. In the aforesaid case their Lordships of the
Supreme Court held as follows:
“We
have given the respondents’ objection as to the Appellants’ locus standi to
move the High Court Division our anxious consideration. 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 circum-stances of each case. The appellant has complained that
he is under impending threat of deprivation of his fundam-ental rights under
Article 36 of the Constitution and his right of franchise. Because of this as
well as of the excep-tional and extra-ordinary Constitutional issues raised in
this case involving consideration of an international agre-ement between this
country and the friendly Republic of India, we decided to hear the appellant.”
43.
In Dr. Mohiuddin Farooque Vs. Bangladesh, 49
DLR (AD) 1, (popularly known as BELA’s case) Mr. B.B. Roy Chowdhury, J,
observed:
“In
such harrowing conditions of our people in general if socially conscious and
public-spirited persons are not allowed to approach the court on behalf of the
public or a section thereof for the enforcement of their rights the very scheme
of the Constitution will be frustrated. The inescapable conclusion, therefore,
is that the expression “person aggrieved” means not only any person who is
personally aggrieved but also one whose heart bleeds for his less fortunate
fellow beings for a wrong done by the Government or a local authority in not
fulfilling its constitut-ional or statutory obligation. It does not, however,
extend to a person who is an interloper and interferes with things which do not
concern him. This approach is in keeping with the constitutional principles
that are being evolved in the recent times in different countries”.
44.
In the said BELA’s case, his Lordship Mr.
Justice Mostafa Kamal of the Appellate Division held in paragraph 40:
“We now
proceed to say we interpret Article 102 as a whole. We do not give much
importance to the dictionary meaning or punctuation of the words ‘any person
aggrieved.”
45.
It was further held in BELA’s case in
paragraph 47:
“The
Supreme Court being a vehicle, a medium or mechanism devised by the
Constitution for the exercise of the judicial power of the people on behalf of
the people, the people will always remain the focal point of concern of the
Supreme Court while dispensing justice or propounding any judicial theory or
interpreting any provision of the Constitution. Viewed in this context,
interpreting the words “any person aggrieved” meaning only and exclusively
individuals and excluding the consider-ation of people as a collective and
consolidated personality will be a stand taken against the Constitution. There
is no question of enlarging locus standi or legislation by Court. The enlargement is writ large on the face of
the Constitution.”
46.
Ultimately Mr. Justice Mostafa Kamal held in
the same case in paragraph 48:
“The
traditional view remains true, valid and effective till today in so far as
individual rights and individual infraction thereof are concerned. But when a
public injury or public wrong or infraction of a fundamental right affecting an
indeterminate number of people is involved, it is not necessary, in the scheme
of our Constitution, that the multitude of individuals who have been
collectively wronged or injured or whose collective fundamental rights have
been invaded are to invoke the jurisdiction under Article 102 in multitude of
individual writ petitions, each representing his own portion of concern. In so
far as it concerns public wrong or public injury or invasion of fundamental
rights of an indeterminate number of people, any member of the public, being a
citizen, suffering the common injury or common invasion in common with others
or any citizen or an indigenous association, as distinguished from a local
component of a foreign organization, espousing that particular cause is a
person aggrieved and has the right to invoke the jurisdiction under Article
102.”
47.
In the case of Ekushey Television Ltd. vs Dr. Chowdhury Mahmood Hasan reported in
54 DLR (AD) 130 (popularly known as ETV
case), it was held in paragraph 48:
“What
is meant by ‘sufficient interest’ is basically a question of fact and law which
shall have to be decided by the Court. None of the fundamental rights like rule
of law is subject to mechanical measurement. They are measured by our human
institutions i.e. the Courts and by human beings i.e. the Judges, by applying
law. Therefore, there will always be an element of discretion to be used by the
Court in giving standing to the petitioner. From the above, it appears that the
Courts of this jurisdiction have shifted their position to a great extent from
the traditional rule of standing which confines access to the judicial process
only to those to whom legal injuries are caused or legal wrong is done. The
narrow confines within which the rule of standing was imprisoned for long years
have been broken and a new dimension is being given to the doctrine of locus
standi.”
48.
In the Case of Bangladesh and others Vs
Idrisur Rahman (10 Judges Case) reported in 17 BLT
(AD) 231 the petitioner, Mr. Idrisur Rahman, was an advocate and the subject
matter of the writ petition was reinstatement of some High Court Judges under
Article 95 of the Constitution. Thus, though the petitioner was not found to be
personally aggrieved but his standing was accorded on the ground that the
petitioner, as a lawyer, has an intensive interest in the establishment of the
independence of the Judiciary.
49.
In the case of Bangladesh Vs Advocate AKM
Shafiuddin 1 LCLR [2012] HCD339 (which has subsequently been disposed of by the
Appellate Division in CP No.2212 of 2012), the petitioner, who is a lawyer of
this Court, challenged the proceedings of the Parliament where a derogatory
remark was made about an Hon’ble Judge of this Court and, further, a “Ruling”
was passed by the Parliament demoralising the position and jurisdiction of this
Court. In adjudication upon the said case, the competency of the petitioner in
filing the writ petition was not viewed by this Court negatively.
50.
In the case of Advocate Manzil Morshed and
others vs Government of Bangladesh and others (Writ Petition No. 2427 of 2011)
the petitioners’ standing was not questioned albeit the subject matter of the
case was related to the Supreme Court Judges’ remuneration (the matter being
appealed by the Government as CPLA No. 1775 of 2013 is awaiting disposal by our
Appellate Division).
51.
In all the above Stare Decisis (Starred
Decisions), the standing of the petitioner was approved by our Courts.
52.
However, in the case of Bangladesh
Sangbadpatra Parishad Vs Bangladesh reported in 43 DLR(AD) 126, the locus
standi of the petitioner was denied. Later on, A.T.M. Afzal, J. in Dr.
Mohiuddin Farooque Vs Bangladesh, 49 DLR (AD) 1, in according locus standi to
the petitioner, laid down some principles to be observed by our High Court
Division:
“A
person pleading sufficient interest may be able to cross, what is called, the
threshold stage on the averments made in the writ petition but it will always
remain open for a prospective respondent to contest the said claim on facts and
also to assail the bonafides on even the appropriateness in a particular case
of the petitioner for seeking a relief invoking the constitut-ional
jurisdiction of the High Court Division under Article 102 of the Constitution.
For example, standing was denied to the Bangladesh Sangbad Patra Parishad to
represent its opulent members, namely, the newspaper owners who were directly
affected by the Wage Board Award but even then none of them moved personally,
but the consideration would have been different if any organization
representing a weaker section of the society had come to complain about a
breach of any fundamental right of its members or any public wrong done to the
members generally in breach of any provision of the Constitution or law. The
Court will have to decide in each case, particularly when objections is taken,
not only the extent of sufficiency of interest but also the fitness of the
person for invoking the discretionary jurisdiction under Article 102 of the
Constitution. Ordinarily, it is the affected party which is to come to the
Court for remedy. The Court in considering the question of standing in a
particular case, if the affected party is not before it, will enquire as to why
the affected party is not coming before it and if it finds no satisfactory
reason for non-appearance of the affected party, it may refuse to entertain the
application.”
53.
In the Case of BRAC Vs Professor Mozaffar
Ahmed reported in 54 DLR (AD) 37 (popularly known as BRAC Bank Case) our Apex
Court did not approve the standing of Professor Mozaffar Ahmed in availing the
jurisdiction of this Court as the Court did not find any element of Public
Interest in the case and also the petitioner was not found personally aggrieved
due to not having his connection with any existing bank.
54.
Thereafter, in a recent case of National
Board of Revenue Vs Abu Sayeed Khan and others reported in 18 BLC (AD) (2013) 116, our Appellate Division, after
reviewing the views taken in the above cited series of decisions, has directed
the High Court to be vigilant in entertaining the PIL cases in the following
words:
“Now-a-days,
it is noticeable that a group of lawyers have developed a tendency of filing
PIL petitions on behalf of persons or organizations challenging the propriety
of the Government in taking decision relating to policy matter, its development
works, orders of promotion and transfer of public servants, imposition of taxes
and fixation of tariff value by the authority for achieving dubious goal for
generating publicity for themselves or to create public sensation. The High
Court Division has been taking cognizance of those petitions without looking at
whether or not such petitions are at all maintainable in the light of the
principles settled by this Division in Mohiuddin Farooque, Professor Mozaffor
Ahmed and Ms. Syeda Rizwana Hasan. It is also noticeable that after seeking an
order from the High Court Division by filing a PIL, the lawyers are appearing
before the electronic and print media propagating that the Court has made such
and such directions, which suggest that those petitions have not been made for
the cause of the needy or underprivileged or less fortunate people, who could
not seek redress for a wrong done by the Government or a local authority,
rather it were moved for achieving dubious goal for generating personal
publicity.”
55.
Then, in the said case, our Apex Court took
the pain of formulating guidelines for the High Court Division which is as
under:
1.
“We reemphasize the parameters within which
the High Court Division should extend its discretionary jurisdiction in
entertaining a PIL.
2.
Before entertaining a petition the Court
will have to decide the extent of sufficiency of interest and the fitness of
the person invoking the discretionary jurisdiction.
3.
The Court while considering the question of
bonafide in a particular case will have to decide as to why the affected party
has not come before it and if it finds no satisfactory reason for
non-appearance of such affected party, it may refuse to entertain the petition.
4.
if a petition is filed to represent opulent
members who were directly affected by the decision of the Government or Public
Authority, such petition would not be entertained.
5.
The expression ‘person aggrieved’ used in
Article 102(1) means not any person who is personally aggrieved but one whose
heart bleeds for the less fortunate fellow beings for a wrong done by any
person or authority in connection with the affairs of the Republic or a
Statutory Public Authority.
6.
If the person making the application on
enquiry is found to be an interloper who interferes with the action of any
person or authority as above which does not concern him is not entitled to make
such petition.
7.
The Court is under an obligation to guard
that the filing of a PIL does not convert into a publicity interest litigation
or private interest litigation.
8.
Only a public spirited person or organ-ization
can invoke the discretionary jurisdiction of the Court on behalf of such
disadvantaged and, helpless person.
9.
The Court should also guard that its processes
are not abused by any person.
10.
The Court should also guard that the
petition is initiated for the benefit of the poor or for any number of people
who have been suffering from common injury but their grievances cannot be
redressed as they are not able to reach the Court.
11.
It must also be guarded that every wrong or
curiosity is not and cannot be the subject matter of PIL.
12.
No petitions will be entertained challenging
the policy matter of the Government, development works being implemented by the
Government, Orders of promotion or transfer of public servants, imposition of
taxes by the competent authority.
13.
The Court has no power to entertain a
petition which trespasses into the areas which are reserved to the executive
and legislative by the Constitution.
14.
A petition will be entertained if it is
moved to protect basic human rights of the disadvantaged citizens who are
unable to reach the Court due to illiteracy or monetary helplessness.
15.
Apart from the above, the following are some
categories of cases which will be entertained:
a)
for protection of the neglected children.
b)
non-payment of minimum wages to workers and
exploitation of casual workers and complaints of violation of labour laws
(except in individual case).
c)
petitions complaining death in jail or police
custody, or caused by law enforcing agencies.
d)
petitions against law enforcing agencies for
refusing to register a case despite there are existing allegations of comm-ission
of cognizable offences.
e)
petitions against atrocities on women such
as, bride burning, rape, murder for dowry, kidnapping.
f)
petitions complaining harassment or torture
of citizens by police or other law enforcing agencies.
g)
petitions pertaining to environmental
pollution, disturbance of ecological balance, drugs, food adulteration,
maintenance of heritage and culture, antiques, forest and wild life.
h)
petitions from riot victims”.
56.
Now, let us vet the competency of the
present petitioners in the light of the provisions of our Constitution, other
laws and the decisions of the Apex Court of our and foreign jurisdictions
discussed hereinbefore.
57.
It is evident that the petitioners are the
practising advocates of the Supreme Court of Bangladesh and the subject matter
of these applications is not related to their personal issues, rather it is
related to the interest of the Judges of the Supreme Court and, that being the
scenario, we are to examine how they are aggrieved by the incorporation of the
impugned provision of Section 4(1)(a) of the said Ordinance, 1978 and by the
impugned actions of the respondents. It is the contentions of the petitioners that
they are public spirited advocates and have come forward to remedy the injury
caused to the administration of justice when they noticed that Judges of this
Court are attempted to be maligned with a likely consequence of weakening the
position of the judiciary. We find substance in the said contentions in that a
lawyer has a vital interest in the independence of the judiciary as the legal
profession is an integral part of the judicial system and, further, a lawyer is
an Officer of the Court who sits and practises in the Court and, therefore, he
has a legitimate interest in preserving the integrity of independence of the
judicial system and if the integrity and interest of the judiciary is
threatened by an act of a state functionary, naturally, it shakes the
conscience of a lawyer.
58.
When there appears some scheme and a design
to demoralize Judges of the highest Court, lawyers feel perturbed as they are
always serious in maintaining the high standards of fearless, impartial and
unbending justice. One may be able to live in a world of logic detachment when
unjustified abuses are hurled at one’s self personally, but when the question
is of injury to an institution, such as the highest Court of justice in the
land, one cannot overlook its effect upon national honour and prestige. It
becomes a matter deserving consideration of all serious minded people who are
interested in seeing that democracy does not flounder or pale in this
country.
59.
In this connection it may be mentioned that
in the celebrated judgment of the case of SP Gupta Vs. Union of India, AIR 1982(S.C) 149, (popularly known as Judges’
case, which is a 524-page judgment), it was observed by their Lordships that
the profession of lawyers is an essential and integral part of judicial system
and the lawyers may figuratively be described as priests in the temple of
justice. They have special interest in preserving the integrity and
independence of the judicial system, and if the integrity and independence of
judiciary is threatened by any act of State or any public authority, they would
naturally be concerned about it because they are equal partners with the
Judges.
60.
In our jurisdiction, in the land mark cases
of the Secretary, Ministry of Finance Vs. Masdar Hossain and others
reported in
52 DLR (AD) 82, Bangladesh and others Vs Md. Idrisur Rahman reported in
17 BLT (AD) 231 (popularly known as 10 Judges Case) Bangladesh
Vs Advocate AKM Shafiuddin reported in 64 DLR 508 (which has
subsequently been
disposed of by the Appellate Division through the CP No.2212 of 2012),
Government
of Bangladesh Vs Advocate Manzil Morshed (CP No. 1172 of 2012, case
relating to
the medical allowances of the Judges of the Supreme Court of
Bangladesh) and Advocate Manzil Murshid Vs Bangladesh and
others 33 BLD (HCD) 121 (case on
the increase of the remuneration of the Supreme Court Judges where Rule
having
been made absolute, CP No. 1775 of 2013 is awaiting final disposal),
Advocate
Manzil Morshed V Government of Bangladesh and other (Writ Petition No.
100027
of 2011, where the circular of the Biman Bangladesh Airlines was
challenged to
be discriminatory on the ground of non-incorporation of the provisions
for the
judges to upgrade their tickets like other dignitaries below the
Judges), the
members of the judiciary i.e. the advocates and the judicial Officers
were the
petitioners who have been held to be competent to approach this Court in
the
event when an injurious action to the judiciary was taken by the state
functionaries.
61.
In Kamini Kumar Datta Memorial Lectures
(supra, pages v, vi) Mostafa Kamal, J said “Constitutional development is no
doubt an evolution of the Constitution through judicial decisions, but judicial
decisions on the Constitution are the outcome of dedicated lawyering backed by
intensive academic studies. The role of the Judges is no doubt important, but
it is the practising lawyers who open the multiple keys to the Constitution and
show to the Judges the wealth contained in it. A responsive Judge picks up the
wealth thus exposed, although there have been and are Judges in all
jurisdictions who need no keys. The wealth of the Constitution is stored in
their wisdom. The lawyer has to know to pick it up bits and pieces”.
62.
On top of getting support from the above
landmark case laws and lexis of the jurists on the locus standi of the
advocates of our country in PIL Cases in approaching this Court in the interest
of the judiciary, “The Bangladesh Bar Council Canons of Professional Conduct
and Etiquette” encourages the lawyers to take a standing in the establishment
of social justice, which declares that “And whereas by their efforts Advocates
are expected to contribute significantly towards the creation and maintenance
of conditions in which a government established by law can function fruitfully
so as to ensure the realization of political, economic and social justice by
all citizens”(Fourth Paragraph of the Preamble).
63.
Also Paragraph 1 of Chapter III of the said legal instrument prescribes the
duty of a lawyer to the Court in the following words “It is the duty of an
Advocate to maintain towards the courts a respectful attitude, not for the sake
of the temporary incumbent of the judicial office, but for the maintenance of
its supreme importance”.
64.
Thus, upon reading through the above laws of
the land and careful analysis of the Stare Decisis (Starred Decisions) of our
Apex Court, it is our plain understanding that the lawyers are considered to
have their status in the judiciary as members of the judicial fraternity and,
in our modern judicial system, by virtue of their active engagement in legal
profession in the Court, they are considered and believed to be the inseparable
part of the judiciary and, accordingly, they have been imposed with a heavy
duty of protection of the interest of the judiciary.
65.
In the past as well, the members of the Bar
could not turn a blind eye and shrug off their Constitutional responsibilities
in the matters related to the independence of the judiciary, rather they have
risen to the occasion being above all political bias joining hands with others to
resist any unholy attempt to pollute and/or to ruin the highest judiciary which
is the repository of the public.
66.
That being the position of the lawyers in
the judiciary, we see the petitioners’ present move in seeking redress for the
alleged wrong done by the respondents in the matters of allocations of the
houses for the Hon’ble Judges of Supreme Court as an innate reaction inasmuch
as we are satisfied that their conduct, in moving these petitions, are not for
personal gain or political motivation or for any other oblique purpose. We find
that it was a bona fide step of all these writ petitioners to bring to the
notice of this Court that there has been a violation of laws and norms in
allocation of a particular bungalow type house to a particular Judge of the
High Court Division of the Supreme Court and, later on, during the course of
hearing of these writ petitions, the petitioners’ further exertion with a
prayer for issuance of supplementary Rule to challenge the vires of the second
part of Section 4(1(a) of the Supreme Court Judges (Remuneration and
Privileges) Ordinance, 1978 also demonstrate their bona fides inasmuch as we
find their subsequent march as an effort to make out a fit PIL case on the
ground that a handful of the Judges of the Supreme Court are persistently being
victimized due to the operation of the said part of the law, hence, it is their
contention that the same is liable to be declared ultra vires to Article 27 of
the Constitution and a guideline should be given by this Court in the form of
directions upon the respondents so that there will not be any scope for the
respondents to allocate Government accommodations at their sweet will, whims
and self-interest. Thus, we do not find any element of making any particular
judge happy by moving the instant applications. Rather, we are satisfied that
these are directed at endeavouring the establishment of the independence of the
judiciary and rule of law.
67.
Furthermore, apart from being lawyers, the
advocates are conscious citizens of the country. In our way of understanding
the spirit of our Constitution, as mirrors in the above cited Berubari’s case,
the BELA’s case, the BRAC Bank case, the ETV
case and the case of National Board of Revenue Vs Abu Sayeed Khan and others reported
in 18 BLC (AD) 116, is that any
public spirited conscious citizen may, bona fide, come forward for resolution
of a grievance of a public nature through the Court of law for the benefit of
the public, as opposed to the personal benefit, and our inevitable conclusion
is that the petitioners are ‘person aggrieved’ within the meaning of Article
102 of the Constitution. In coming to our conclusion we have taken into our
consideration the cautionary principles laid down by Mr. ATM Afjal, J in BELA’s
case 49 DLR (AD) 1 and also the guidelines given by our Apex Court in the case
of National Board of Revenue Vs Abu Sayeed Khan and others reported in 18 BLC (AD) (2013) 116 on top of other scores of
decisions of our jurisdiction and that of India, Pakistan and U.K.
68.
With regard to the issue of competency of
this Court in adjudicating upon the instant cases, we may again profitably
refer to the cases of the Secretary, Ministry of Finance Vs. Masdar Hossain and
others reported in 52 DLR (AD) 82, Bangladesh and others Vs Md. Idrisur Rahman
reported in 17 BLT (AD) 231
(popularly known as 10 Judges Case), Bangladesh Vs Advocate AKM Shafiuddin 1
LCLR [2012] HCD 339 (which has subsequently been disposed of by the Appellate
Division in CP No. 2212 of 2012), Government of Bangladesh Vs Advocate Manzil
Morshed (CP No. 1172 of 2012, case relating to the medical allowances of the
Judges of the Supreme Court of Bangladesh)
and Bangladesh Vs Advocate Manzil Morshed 33 BLD
121 (CP No. 1775 of 2013), Advocate Manzil Morshed V Government of Bangladesh and
other (Writ Petition No. 100027 of 2011). We may sum up the issue by noting
that in course of dealing with the issue of standing of the present
petitioners, it has been divulged and perceived that in all the cited cases the
direct interests of the Judges of this Court were involved, nevertheless, the
same were decided by this Court without being blamed as to getting predisposed.
It is our considered view that while there is no separate forum for the
adjudication of grievances related to the benefits and interests of the Judges
of the Supreme Court, this Court being bestowed with the power of judicial
review is not debarred to take up the present cases for its consideration.
Furthermore, in a case where a judge’s criminality is required to be tried,
there being no special forum consisting of non-judicial persons, we the Judges
of this Court have never hesitated to award sentence, if found guilty. The
maxim Nemo debet esse judex in propria causa, thus, hardly has the scope of
application in such like cases in that the judiciary is an organ of the state
and the said organ is staffed and run by human beings who may commit sin and,
thereby, face trial and the outcome of the trial may be against or in favour of
a single member of the judiciary or as a whole of the judiciary. Also, side by
side, as a citizen of this country the judges are entitled to enjoy their
lawful rights guaranteed in the Constitution and other laws of the land and if
their rights are invaded by any state functionary or individual, they are entitled
to have recourse to the competent Court of law.
69.
Article 31 of our Constitution guarantees
that it is an inalienable right of every citizen to be treated in accordance
with law and to enjoy the protection of law.
Article 31: “Right to protection of law.
To enjoy the protection of law, and to be treated in accordance with law, and
only in accordance with law, is the inalienable right of every citizen,
wherever he may be, and of every other person for the time being within
Bangladesh, and in particular no action detrimental to the life, liberty, body,
reputation or property of any person shall be taken except in accordance with
law”.
70.
The Judges, thus, being the citizens of this
country are entitled to benefit from the above Constitutional protection. Further,
a Supreme Court Judge himself is an institution who can not act unscrupulously
for his personal gain and, for this reason, all the citizens including the
members of the executive branch are duty bound to pay homage to them.
71.
In the case of State V Abul Hossain reported
in 14 BLC (HCD) 223 it has been
observed that:
“Let
it be known to everybody, if it is not already known, that a Judge of the
Supreme Court is an upholder of the Rule of Law and is a Justice of the Peace
for and of the whole of Bangladesh. Any
disrespect shown to him, constitutes disrespect towards the Supreme Court and
also to the Republic itself, because the Supreme Court wields the power of the
Republic.”
72.
The essence of the said maxim Nemo debet
esse judex in propria causa, thus, is that no judge should try his own case
and, further, in conducting the trial of a case where interest of other Judges,
be that expressly or impliedly, are involved, the Judges should maintain
impartiality. We can recall that we had indicated to the learned Attorney
General, in course of making his submissions on the said issue, that this Court
is not dealing with an isolated complaint regarding allocation or
non-allocation of a house for a particular Judge, rather the onerous task
devolved upon this Court is to examine the position of the impugned statute in
line with our Constitution and other relevant laws of the land and, further, to
see as to whether there is any need to frame a guideline for the executive to
be observed in allocation of the superior type of houses to the dignitaries,
particularly to the persons holding the Constitutional posts, as submitted by
the learned advocate for the petitioners.
73.
Judges interpret the law as they find it
and, thus, not as they would like to do it. They are inherently conditioned by
the training that they would undertake their judicial functions with
dispassionate objectivity without being influenced by personal and individual
predilections. The Judges of this Court are under the legal obligation to
protect, preserve and defend the Constitution and to dispense justice in
accordance with law without any fear or favour, ill will or affection, be it
the subject matter of adjudication involving our own interest or the interest
of any near and dear one. The Judges, thus, can never act selfishly to
personally benefit from the judgment or order passed by them. Rather, they act
upon the dictates of their conscience which invariably leads them to act
according to their oath.
74.
The law is reason unaffected by desire or
free from passion as propounded by the great philosopher Aristotle.
75.
Lord Mansfield sees the duties of a Judge in
the following words:
“I
will not do that which my conscience tells me is wrong, upon this occasion, to
gain the hurrah of thousands, or the daily praise of all the papers which come
from the press: I will not avoid doing what I think is right; though it should
draw on me the whole artillery of libels; all that falsehood and malice can
invent, or the credulity of a deluded populace can swallow.”
76.
John Adams said:
“Judges
are deaf as an adder to the clamours of the populace”
77.
Judge Hiller B. Zobel comments:
“Must
follow their oaths and do their duty, heedless of editorials, letters,
telegrams, picketers, threats, petitions, panelists and talk-shows. In this
country, we do not administer justice by plebiscite.”
78.
Thus, we see the present applications to be
one of our routine cases which we are dealing everyday as a Court of law
without being partial to any parties to the litigations.
79.
Accordingly, we find that the present Writ
Petitions are maintainable at the instance of the petitioners and we also find
that this Court is competent to adjudicate upon the cases.
80.
The resolution of the above technical issues
in the affirmative leads this Court to undertake the core issues of the case
namely, (i) the impugned actions of the respondents in allocation of the
Government accommodation to the person holding Constitutional posts and (ii)
the constitutionality of the second part of Section 4(1)(a) of the Supreme
Court Judges (Remuneration and Privileges) Ordinance, 1978.
81.
Let us first take up the actions of the
respondents which have allegedly been taken in violation of the laws and norms
of the land. The alleged actions are (i) illegal allocation of House no. 12 at
Minto Road in favour of respondent no. 3, (ii) non-compliance of the
recommendations made by the Hon’ble President of the Republic, (iii)
withholding of the Supreme Court Judges’ applications for residence and
non-cooperation of respondent nos. 1 and 2 in allocation of the residence to
the Supreme Court Judges and (iv) illegal allotments of a number of bungalow
type houses in favour of Secretaries to the Government or other officials below
serial no. 9 of the warrant of precedence.
82.
It is alleged by the petitioners that when
Mr Justice Md Jahangir Hossain’s application for obtaining allotment of House
no. 12 at Minto Road was lying before respondent nos. 1 & 2, they ignored
the same and volunteered to allot the said house infavour of respondent no. 3. It is further alleged that
since the said application was recommended by the Honourable President of the
Republic for allocation of the said house, the respondents have committed a
serious illegality by not complying with the recommendation of the highest
functionary of the Republic. It appears from annnexures 1, 2 & 3 that the
application of Mr. Justice Md Jahangir Hossain has been shown to have been
received by respondent no. 1 on 20.11.2012 though the same has been forwarded
from the Office of the Honourable President on 10.11.2012, which appears to be
an inordinate delay inasmuch as usually all the correspondences from the Office
of the Honourable President reaches the concerned Ministries within a day or
two. Even, if it was received on 20.11.2012, allocation of the house in favour
of respondent no. 3 on 20.11.2012 (on the day of receiving of Mr. Justice
Jahangir’s application) cannot escape from being exposed to question in the
light of the fact that after receiving the letter from the Office of the
President, the dispatch of the said allocation letter could well have been
stopped. In any event, when a Judge of the High Court Division has asked for
the same, the allocation letter should have been revoked inasmuch as a Judge of
the Supreme Court holds a much higher post than that of a Secretary. Moreover,
when the said application was recommended by the highest person of the
Republic, the respondents had no option but to deal with the same first and
comply with it but, instead, they showed the audacity of handing over of the
residence to respondent no. 3 on 15.05.2013 i.e. after issuance of the instant
Rules, which demonstrates the deliberate disregard to a Judge of the Supreme
Court and the Honourable President of the Republic. Thus, the conducts of
respondent nos. 1 & 2 clearly appears to be malafide.
83.
Also, it is the allegation of the
petitioners that while the applications for accommodation of a number of High
Court Judges are not being dealt with for years, quick disposal of the
application of respondent no. 3 on 20.11.2012, which was received only on
25.10.2012, demonstrates the arbitrariness and self-interest of respondent nos.
1 & 2. Furthermore, the petitioners have unveiled the fact that while a
handful High Court Judges are kept in the pipeline for suitable residences, a
number of Senior Secretaries, Secretaries and Additional Secretaries of the
Government are occupying bungalow type houses.
84.
Now, let us see what their duty is and what
they have done. Respondent nos. 1 & 2 are entrusted with the functions of
constructions of Government houses and thereafter maintain and allot the same
to the deserving applicants from the Constitutional post holders and Government
servants. In discharging their duties, they are required to act in accordance
with the laws of the land and, thus, not being actuated by their sweet will and
interest. Now, let us see what the law prescribes in the matters of allocation
of residence to the Constitution post holders and whether the said respondent
nos. 1 and 2 have acted lawfully.
85.
Article 147(1) of the Constitution reads as
follows:
“ (1) The remuneration, privileges and
other terms and conditions of service of a person holding or acting in any
office to which this article applies shall be determined by or under Act of
Parliament, —
86.
In compliance to the above mandatory
provisions the legislature in their wisdom have enacted the Supreme Court
Judges (Remuneration and Privileges) Ordinance, 1978 and Section 4 (1) (a) of
the same deals with the matters of accommodation of the Judges of the Supreme
Court which reads as under:
i)
A Judge shall be entitled to, and
provided with
(a) a
furnished residence free from the payment of any rent and charges on account of
municipal taxes and local rate and of the use of electricity, water and gas and
until such residence is provided, a judge shall be paid a residence allowance
of Taka, 26,600/- per month.
87.
Thus, it transpires that the entitlement to
a furnished house of a Supreme Court Judge is a statutory right stemming from
the Supreme law, the Constitution. Therefore, making allocation of an
accommodation to a Supreme Court Judge is an unbreachable duty of the State.
88.
Furthermore, in the Warrant of Precedence
the position of the High Court Judges is at serial no. 9 and it is worthy of
mentioning here that the said Warrant of Precedence is framed and used for
carrying out all sorts of functions of the State, not for ceremonial occasions
only. If the provisions of the warrant of Precedence, for the arguments’ sake,
is taken to be not applicable for the affairs of house allocation, nonetheless,
by dint of statutory right, as enshrined in the Supreme Court Judges
(Remuneration and Privileges) Ordinance, 1978, the Supreme Court Judges shall
get preference over the Secretaries to the Governments.
89.
Invoking the provisions of the Note 1 of the
Warrant of Precedence which provides: “the order in the Warrant of Precedence
is to be observed for State and ceremonial occasions as well as for all purpose
of the Government” and agreeing with the view taken in the case of Ataur Rahman
(Md) Vs Bangladesh and others reported in 62 DLR 329 it is our considered view
that the provisions of Warrant of Precedence is applicable for all the purposes
including the matters of house allocation and, thus, it is the duty of the
respondents to ensure that the houses are provided for dignitaries listed
therein as per their serial and positions and, accordingly, when the allocation
of the superior type of houses for the dignitaries positioned at serial no. 5
to 8 in the Warrant of Precedence is completed, the High Court Judges shall be
entitled to the same. However, the lists of the superior type of houses
(annexures-x & x (1) portray an opposite scenario as these record that a
good number of Secretaries to the Government have been allocated bungalow type
houses. Without, first, accommodating the High Court Judges in bungalow type
house or superior flats in any secured place, allotments of the same to the
Government servants appear to be a bizarre action by the respondent nos. 1
& 2. If the same are left over and available after all the Judges have been
provided with their houses, there might have been an option for them but until
a single Judge or any other Constitutional post holder is left without
residence, no Government servant shall be eligible for the said bungalow type
houses in that the Judges of the Supreme Court are Constitutional post holders
and their remuneration and privileges are guaranteed in the Constitution but
the Secretaries to the Government are Government servants and their terms and
conditions of services are governed by the ordinary law and rules.
90.
Here, in the cases at hand, the respondents
failed to comprehend that while the source of entitlement of the Supreme Court
Judges to an accommodation is an Act of Parliament being a compliance to
Article 147(1) of the Constitution, the source of entitlement to the
accommodation of the Secretaries is Rules such as, Bangladesh Service Rules
(BSR) and the Bangladesh Allocation Rules 1982 etc.
91.
As per the words of the statute “A Judge shall
be entitled to, and provided with”, respondent nos. 1, 2 & 5 are under a
mandatory duty to arrange for accommodation, be that a hired or Government
owned property. Entitlements prescribed in a statute shall always override and,
thus, get preference to that of a Rule. An obligation imposed upon the
Government functionaries vide the provisions of the Constitution may be
compared with and termed as “Farj”, the highest obligation imposed by the holy
Quran. If it is imposed by an act of Parliament, the same may be termed as
“Wazib”, if the same is imposed by any Rule, it may be compared to “Sunnah” and
if the source of obligation is any “Government Circular”, then the same may be
considered as “Nafal”. The respondents are, thus, found to be more fanciful to perform
“Sunnat” and “Nafal” leaving the “Farj” and “Wazib”. Islam being the state
religion, as enshrined in Article 2A of our Constitution, the comparison is
made for ease of understanding and aimed at simplif-ication of the duties and
obligation of the respondents and, thus, without any prejudice to the Islamic
law.
92.
For the Secretaries to the Government, there
is nothing to be jealous with the privileges and remuneration of the Judges of
the Supreme Court, rather the state functionaries are expected to look after
the Judges and should never disturb the Judges in enjoying their normal
privileges and benefits, let alone providing any extra privileges.
93.
In the cases of All Indian Judges’
Association vs Union of India (1993) 4 JT (SC) 618 the following observations
were made:
“The
judicial service is not service in the sense of employment of the judiciary;
they exercise the sovereign judicial power of the State. They are holders of
public offices as the ministers and the members of the legislature. When it is
said that in a democracy such as ours, the executive, the legislature and the
judiciary constitute the three pillars of the State, what is intended to be conveyed is that the
three essential functions of the State and each one of them in turn represents
the authority of the State. However, those who exercise the State power are the
ministers, the legislators and the judges, and not the members of their staff
who implement or assist in implementing their decisions. The council of
ministers or the political executive is different from the secretarial staff or
the administrative executive which carries out the decisions of the political.
Similarly, the legislators are different from the judicial staff. So also the
judges from the judicial staff. The party is between the political executive,
the legislators and the judges and not between the judges and the
administrative executive. In some democracies like the USA, members of some
State judiciaries are elected as much as the members of the legislature and the
heads of the State. The Judges, at whatever level they may be, represent the
State and its authority unlike the administrative executive or the members of
other services. The members of the other services, therefore, cannot be placed
on par with the members of the judiciary, either constitutional or functional.
It is high time that all concerned appreciated that for the reasons pointed out
above there cannot be any link between the service conditions of the judges and
those of the members of the other service”.
94.
Let it be known to the people what a Supreme
Court Judge gets after his elevation and what he is to sacrifice. Before being
elevated as a Judge from the Bench or subordinate judiciary, all the Judges of
the Supreme Court were financially better off in terms of earnings given that
as a District Judge they used to enjoy comfortable accommodation arrangement in
an independent bungalow type house in the District Headquarters and also, in
addition to their monthly salaries, there were various benefits in their service
life such as, judicial allowance and some ancillary allowances for attending
Government meetings, seminars and trainings. And the judges who have been
elevated from the bar used to earn a significant and considerable amount of
money in their legal profession. People from both the arenas by the strength of
their solvent background do accept the offer of holding a position of a Judge
of the Supreme Court only in an expectation of getting honour from the society,
otherwise, the offer for accepting the post of a Judge of the Supreme Court
hardly could entice them, if it is to be considered in terms of payment of
remuneration. The Judges of the Supreme Court, thus, do not get financially
anything or any other privileges, which make this post too precious to be
lured, rather they accept the offer of elevation for the greater interest of
the nation with an interest to contribute something in the development of the
jurisprudence. The lure, thus, is of the dignity and esteem attached to the
position of a Judge and not of enjoyment of a sound financial position or any
other pecuniary interest.
95.
Though the Judges require the state of solitude
in preparing their verdicts, unfortunately still today the judges have not been
provided with full logistic support that they need and the working condition of
the judges also has not been upgraded as they have never been provided with
adequate facilities and privileges besides raising the level of salary. The
concerned organs of the State never give their attention and make earnest
endeavour to this aspect of the case. The state functionaries should conceive
and concede to the fact that in pronouncing a judgment, a Judge does everything
on his own without taking assistance from his colleagues but the other state
functionaries carries out their job being assisted or advised by their bosses
or assistants, advisors or colleagues. Unlike other state functionaries, the
Supreme Court Judges can never accomplish their works between 9 am to 5 pm, rather their work volume compels them to
work day-night, even, during the vacations. They hardly find any time to go for
social outings for recreation and with the passage of time in the said process
they eventually become workaholics.
96.
In accepting the position of a judge, thus,
the lawyers of the Supreme Court as well as the District Judges are to
sacrifice huge financial benefits and other equally lucrative prospects. The
Judges of the Supreme Court are entrusted with the duties of a sacred nature
and after being positioned as a Judge of the Supreme Court, they place
themselves in an isolated and aloof environment having remained incommu-nicado
where they find themselves to be in a fragile condition, a state of being
overwhe-lmingly professional preoccupation that others may find difficult to fathom.
97.
To portray the painstaking duty of a Judge,
Chief Justice Harlan Fiske Stone expressed his feelings to the President Truman
of the United States in the following words;
“Few
are aware that neither my predecessor, nor 1, in more than twenty years since I
have been a Justice of the Supreme Court, have been able to meet the daily
demands upon us without working nights and holidays and Sundays. The
administrative duties of the Chief Justice have increased and many other duties
have been imposed on him by acts of Congress which my predecessors were not
called on to perform………….. Unlike the functions of an executive
officer, practically none of these can be delegated (13th February 1946: cited
at page 125 of the book titled “Judges and Justices”, supra).”
98.
Justice William Brenan Jr narrated the
Judges’ function in the following language;
“The
writing of opinion is not easy work. It always takes weeks, and som-etimes,
months. The most painstaking research and care go into the task. Research, of
course, concentrates on relevant legal materials-precedents particularly. But
Supreme Court cases often require also some familiarity with other
disciplines-history, economics, the social and other sciences-and the
authorities in these area are, too consulted” (An Affair with Freedom Supra,
page 336-338, also reproduced at page 192-193 of the book, “Judges and
Justices”, supra).
99.
Justice Blackburn of the United States
Supreme Court relates the work load of a Judge of the Supreme Court in the
following words;
“I have
never worked harder and more concentratedly than since I came to Washington
Just five years ago. I thought I had labored to the limits of my ability in
private practice, in my work for a decade as a member of the Section of
Administration of the Mayo organization, and as a Judge of the Court of
Appeals. Here, however, the pressure is greater and more constant, and it
relents little even during summer months. One, therefore, to a large extent
relies on experience and an innate and, hopefully, developed proper judicial
reaction. One had better be right! Good health is an absolute requisite. The
normal extracurricular enjoyment of life becomes secondary, if it can be said
that they exist at all. “(Page 185, Judges and Justices, supra)”.
100.
Justice Mostafa Kamal, in describing his own
experiences of the job of judgeship, states;
“Snatching
sometimes away from my days’ (and nights’) Court work, I have prepared these
lectures all alone in my study”. (Kamini Kumar Dutta Memorial Law Lectures
1994: Bangladesh Constitution: Trends and Issues: Page VIII).
101.
The Supreme Court Judges are highly
dignified persons whose appointments are made as per the provisions of the
Constitutions and they are not subordinate and, thus, accountable to any
authority including the Chief Justice, Prime Minister and President of the
Republic in discharging their functions. Our Constitution, as provided in
Article 94(4), has guaranteed the above position of the Judges. Moreover,
Article 112 has asked all the authorities of the Republic to act in aid of the
Supreme Court. Considering the above dignity of the position of the Judges of
the Supreme Court, legislature in their wisdom have honoured the Judges of the
High Court Divisions to hold the social status equivalent to a State Minister
but it is curious enough that though there is no shortage as to the allocations
of accommodations for other Constitutional post holders, either equivalent to
the status of Supreme Court judges such as State Ministers or Election
Commissioners or below to the Judges
such as Deputy Ministers, MPs etc, respondent nos. 1 & 2 are
habitually coming out with a ready excuse of non-availability of accommodation
for the Judges of the Supreme Court, which
seems to be dubious and implausible and these actions of respondents
have hardly ever been under any scrutiny.
102.
There are two vital reasons for allocation
of residence to a Judge immediate after his elevations, which are (1) leading a
community life is beneath the dignity of a Judge and (2) it will expose him to
the members of the public. People will have easy excess to him which is bound
to tarnish his image and in such situation a Judge may even be sold behind his
back. Many of the judges of this Court reside in private houses and flats where
there is no arrangement for safety and security. Besides, it exposes the judges
to the members of the public who have easy excess to a judge. This kind of
situation is not desirable. This makes the position of the judges vulnerable.
In a developing country like ours, judges should maintain a distance from all
and lead a secluded life for the reason that a judge should keep himself above
all suspicion. In this regard we may follow the example of former Chief Justice
Mr. Justice Shahabuddin Ahmed who, during the terms of office as a judge of
this Court and the Chief Justice of Bangladesh, never allowed any one including
his close relatives to visit his residence. He maintained a high degree of
seclusion and that is ideal for our society.
103.
The Judges of this Court are oath bound to
impart justice to all people, including the members of the executive branches
and legislature, according to law without fear or favour, affection or
ill-will. Regrettably, the members of the Executive, without apprising
themselves of the nature of tasks of the Judges, very often take a hostile
stand against this Court and the Judges which is most unfortunate. The
executive must try their best to rise above self-interest and parochial
consideration and extend co-operation to Supreme Court Judges with their legal
entitlements and privileges instead of being jealous of them.
104.
It is not understood as to why the
Secretaries, who have been occupying the bungalow type houses at Minto Road,
Bailey Road and other places, have not chosen to stay in the flats earmarked
for them as listed in annexure X(1) where a good number of Joint Secretary to
Additional Secretaries are living. Those are F type accommodations and as per
Rule 4 of the Bangladesh Allocation Rules, 1982, those are reserved and
earmarked only for Senior Secretaries to Joint Secretaries and the Senior
Secretaries/Secretaries would obviously get preference in getting allocation of
the said earmarked flats as per the Rules, norms and practice. Until a single
Secretary to the Government is in pipe line to get the said flat, the other
officers with the rank below the Secretary should not be accommodated therein
until the said earmarked type flats becomes available to them.
105.
Thus, it appears that the actions of the
respondents in allocation of the bungalow type houses or superior type flats
have been taken in sheer violation of the obligation imposed upon them by the
Constitution and the Statute. Therefore, the allotment of House No. 12 at Minto
Road in favour of respondent no. 3 and the allocations of other bungalow type
houses situated at Minto Road, Bailey Road, Dhanmondi, Gulshan and Banani to
the Government servants, which have not been earmarked for any persona
designate, are declared to have been done illegally.
106.
We may now turn to the final issue of the
instant Rules as to whether the impugned part of Section 4(1)(a) of the
Ordinance, 1978 is liable to be deleted therefrom upon declaring the same ultra
vires of Article 27, 29, 31 and 147 (2) of the Constitution and also repugnant
to the scheme of the Supreme Court Judges (Remuneration and Privileges)
Ordinance, 1978.
107.
The apparent reasons for attack on the
impugned part of Section 4(1)(a) of the Supreme Court Judge’s (Remuneration and
Privileges) Ordinance, 1978 are that, firstly, in case of non-availability of the
houses/flats for the Supreme Court Judges, the concerned state functionaries
get an extensive license not to provide the Judges with the accommodation
despite the availability of bungalow type houses or superior type flats.
Secondly, with the excuse of non-availability of the accommo-dation, the amount
of money are being paid to the judges as residence allowance is too petty to
compare with the facilities and benefits of the first part of the said Section
4(i)(a) of the Ordinance, 1978. And, thirdly, keeping the provisions of the
payment of a specific amount of money as house allowances makes the Supreme
Court Judges dependable on the executive and legislature as it requires a
review to increase the amount of house allowances from time to time.
108.
Now, let us take up the first point as to
whether incorporation of the words “and until such residence is
provided———”, meaning “in the case of non-availability of the furnished
houses”, creates a scope for the respondents to act arbitrarily in dealing with
the Supreme Court Judges’ application for accommodation. It appears from the
statements made in the supplementary affidavit of Writ Petition No. 5276 of
2013 that a bungalow type house at Mohammadpur is available for allocation but
the same has not been shown in the list supplied by the respondents, which
indicates that the concerned authorities who are entrusted with the duties of
allocation of the houses for the Supreme Court Judges, are not earnest in
tracing out the vacant bungalow type houses or superior flats for the Supreme
Court Judges. Rather, they simply tend to avoid their duties by informing the
Judges that houses are not available for allocation. It means that taking
advantage of the second part of Section 4(1)(a) of the Ordinance, 1978, they instead
of earnestly carrying out their duties as imposed upon them by the statutes in
the following words “ shall be entitled to and provided with”, come out with
the excuse of non-availability of the house and thereby abuse and exploit the
provisions of the statute. Thus, we are of the view that the presence of the
words “and, until such residence is provided”, in Section 4(1) (a) of the
Ordinance frustrates the spirit of the statute which intends to actually
provide a furnished residence for the Supreme Court Judges. It is our
considered view that incorporation of any word/s in a statute, if gives
unfettered discretionary power to the authority in taking a decision on a
matter of statutory obligation, then, the presence of the said words is
repugnant to the scheme of the said law and, consequently, deserves to be
deleted therefrom. In the case of Dr. Nurul Islam vs Bangladesh reported in 33
DLR (AD) 201, the unfettered discretionary power of the Government as to
sending any public servant on compulsory retirement was held to have been
illegal being vitiated by malice in law.
109.
Now, let us pick up the second point as to
the payment of money to the Supreme Court Judges as residence allowance. All
the Judges of the High Court Division of the Supreme Court do stand on similar
footings and when a High Court Judge is allowed to enjoy a furnished residence
free from any rent and charges of electricity, water and gas”, he enjoys a
benefit of around Tk. 2(two) lacs and, on other hand, a Judge receives only Tk.
26,600/- as residence allowance because of non-availability of the furnished
house, which appears to be a striking unequal treatment and, thus, ridiculous
given that the very purpose of incorporation of residence allowance is to allow
and enable the non-allottee Judges to privately arrange for their accommodation
but the said amount, cannot even meet half the costs of a suitable house
because most of the judges live in 4 to 5 bedroom flats which incurs costs of,
inclusive of service charges, bills of gas, water and electricity, around
seventy to eighty thousand taka and, similarly, the judges who live in their
own flat or house, if those are rented out, would get a rent of around Taka
seventy to eighty thousand from their tenants. In figuring out the amount of
residence allowance, the concerned authority should have taken into
consideration if the Government has to hire or requisition houses or flats of
4200-4500 square feet for the High Court Judges at a sparsely populated
residential area in terms of being conducive to their security, it would cost
around 1 lac taka, inclusive service charges and bills. Thus, it appears that
the amount of residence allowance of Tk. 26,600/- is too low to arrange for a
suitable accommodation for the Judges privately.
110.
In this context, it becomes a pertinent
question that on what objective basis or standard the amount of house allowance
is assessed and determined. We did not get any clue to the said question from
the respondents. In absence of any guidelines for assessment and determination
of the amount of house allowance, there is always a serious likeliness of
deprivation of enjoying rational amount of house allowance by which a Judge may
be able to cope up with the expenses of privately rented house.
111.
In our view, “the Committee on Pay and
Privilege of the Supreme Court Judges” formed by the Government, as stated by
respondent no. 5 in its affidavit in opposition, should have its authority from
the Ordinance, 1978, which may be constituted by incorporating a Section in the
Ordinance, 1978. The said Committee may be headed by the Auditor and
Comptroller General of Bangladesh and the Finance Secretary, the Law Secretary,
the Housing and Works Secretary, the Registrar of the Supreme Court and the
Chief Executives of both the City Corporations of Dhaka should be the members
of the Committee. The said Committee shall mandatorily sit, at least twice in
every calendar year, may be in the last week of each June and December, for
carrying out the following tasks (i) to decide as to whether there is any need
to hire the flats/houses for the non-allottee judges, a better resolution of
the accommodation problems in case of non-availability of the Government owned
houses, (ii) to get the data and information as to living costs of a dignitary
with his family including the amount of prevailing rates of house rent from the
Dhaka City Corporations and from the Councilors of the Wards of the areas where
the Supreme Court Judges are supposed to be housed such as the residential
areas within the proximity of the Supreme Court or Dhanmondi, Gulshan and
Banani and the areas where the Judges live in their own accommodation (iii)
approve the rent agreements of the non-allotee judges entered with their
landlords and their bills of electricity, gas, water and service charges (iv)
to assess the rental value of the flats/houses of the judges who are living in
their own acco-mmodation and to periodically review the said rental value on
their own or upon the request of judges made through the Registrar and, if required,
increase the amount of house allowance in order to adapt to the costs of
living.
112.
Now, let us take up the third point that
incorporation of a specific amount of money as house allowance in the second
part of Section 4(1) (a) of the Ordinance, 1978 makes the judges dependable on
the executives as the concerned authorities never feel urge to spontaneously
increase the same enabling the Judges to cope with the changed socio-economic
condition. The past experiences lead us to believe that above contention is not
a mere apprehension of the petitioners but, in true sense, it is a reality.
Though the Judges should not be expected to approach the executive for their
privileges which they are legally entitled to but unfortunately, in practice,
the Judges do not get anything without approaching them. While, in this 21st
century, the Judges of the Supreme Court are dealing with a huge number of
litigations where the executives are the parties, it is not desirable that the
Judges of the Supreme Court would be placed in a situation to keep contacts
with the parties of the litigations, here the executive, pending before them.
In other words, since the State in the present day has become the major
litigant and the superior courts have become centers of turbulent controversies,
some of which with a flavour of political repercussion, and the Courts have to
face tempest and storm because their vitality and neutrality is a national
imperative, and, in such circumsta-nces, the Government, namely the major
litigant, cannot be justified in enjoying absolute authority as to sanctioning
any particular privilege to its arbitrator. The executive cannot be allowed to
enjoy the absolute authority in the matter of fixation of remuneration and/or
with providing other privileges for the Supreme Court Judges as its ‘royal
privilege’ or prerogative. If such a process is allowed to continue, the
independence of judiciary will remain a distant dream.
113.
It is often forgotten why a Court and its
Judges are so important in comparison to other state functionaries and why they
must be independent even while remaining otherwise a co-equal organ of the
State. The reason is that all rights are rights against the State. The Supreme
Court Judges must be able to overturn unconstitutional law passed by Parliament,
it must overrule the illegitimate actions of the police, the bureaucrats, and
the Army and even the President or the Prime Minister if they go against the
law of the land. Only when the Supreme Court Judges have this power they can
protect the citizen from the arbitrariness of the State. Moreover, the Court
must protect bureaucrats against the Parliament, the Parliament against
undemocratic forces. The Court must be able to protect the Military so that it
can preserve national security. The Court must protect the rights of policemen
and so on.
114.
In the case of SP Gupta Vs President of
India AIR 1982 SC 149, to describe
the position and importance of the Judges and Judiciary, Justice P.N. Bhagwati
articulated that :
“………….The
concept of independence of the judiciary is a noble concept which inspires the
constitutional scheme and constitutes the foundation on which rests the edifice
of our democratic polity. If there is one principle which runs through the
entire fabric of the Constitution, it is the principle of the rule of law and
under the Constitution, it is the judiciary which is entrusted with the task
of keeping every organ of the State within the limits of the law and thereby
making the rule of law meaningful and effective. It is to aid the judiciary
in this task that the power of judicial review has been conferred upon the
judiciary and it is by exercising this power which constitutes one of the most
potent weapons in armory of the law, that the judiciary seeks to protect the
citizen against violation of his constitutional or legal rights or misuse or
abuse of power by the State or its officers. The Judiciary stands between the
citizen and the State as a bulwark against executive excesses and, misuse or
abuse of power by the executive and therefore, it is absolutely essential that the
judiciary just be free from executive pressure or influence and this has been
secured by the Constitution makers by making elaborate provisions in the Constitution
to which detailed reference has been made in the judgments is Sankalchand
Sheth’s case (AIR 1977 SC 2328)
(supra). But it is necessary to remind ourselves that the concept of
independence of the judiciary is not limited only to independence from
executive pressure to independence from executive pressure or influence but it
is a much wider concept which takes within its sweep independence from many
other pressures and prejudices. It has many dimensions, namely fearlessness of
other power centres, economic or political, and freedom from prejudices
acquired and nourished by the class to which the Judges belong. It we may again
quote the eloquent words of Justices Krishna Iyer:
“Independences
of the Judiciary is not genuflexion; nor is it opposition to every proposition
of Government. It is neither judiciary made to opposition measure nor
Government’s pleasure….
……
Judges should be of stern stuff and tough fibre, unbending before power,
economic or political and they must uphold the core principle of the rule of
law which says “Be you ever so high, the law is above you”. This is the principle
of independence of the judiciary which is vital for the establishment of real
participatory democracy, maintenance of the rule of law as a dynamic concept
and delivery of social justice to the vulnerable sections of the community. It
is this principle of independence of the judiciary which we must keep in mind
while interpreting the relevant provisions of the Constitution.”
115.
Justice AR Cornelius in the case of Fazlul
Qader Chowdhury Vs Muhammad Abdul Haque PLD
1963 SC 486 said about the duty of the Court:
“The
duty of interpreting the Constitution is, in fact a duty of enforcing the
provision of the Constitution in any particular case brought before the courts
in the form of litigation.”
116.
In the case of Secretary, Ministry of
Finance Vs Masdar Hossain (2000) (viii) BLT
(AD) 234 Chief Justice Mustafa Kamal said about the functions of the Judiciary:
“60…….When
Parliament and the executive, instead of Chapter II of Part VI follow a
different course not sanctioned by the Constitution, the higher Judiciary is
within its jurisdiction to bring back the Parliament and the executive form
constitutional derailment and give necessary directions to follow the
constitutional course. This exercise was made by this Court in the case of
Kudrat-E-Elahi Panir Vs Bangladesh, 44 DLR (AD) 319. We do not see why the High
Court Division or this Court cannot repeat that exercise when a constitutional
deviation is detected and when there is a constitutional mandate to implement
certain provisions of the Constitution.
117.
It is, thus, fundamental for the
establishment of the rule of law that the judiciary should be allowed to
function uninterruptedly without being influenced by the executives.
118.
The above threadbare examinations leads us
to hold that presence of an alternative option in Section 4(i)(a) of the
Ordinance, 1978 in the event of failure by the respondents to provide the
Judges with houses defeats the scheme of the law that “A Judge shall be
entitled to, and provided with” in a three-fold way. Firstly, it paves the way
for the concerned authorities to refrain from providing the Judges with
furnished government houses, secondly, the residence allowance figured therein
does not become of any use for the Judges to arrange for privately rented house
and, thirdly, threatens the independence of the judiciary as the judiciary is
pushed to be dependent upon the members of the executive for increase of the
amount of the residence allowance by making overturns to them.
119.
Thus, the facts and figures portrayed
hereinbefore reveals that due to the aforesaid flaws and negative aspects of
the incorporation of the impugned part of Section 4(1)(a) of the Ordinance,
1978, the non-allottee Judges are being victim of unequal treatment. Now, the
question is whether the said victimization of the deprived Judges may be a
ground for declaring the impugned law ultra vires. To find the answer, we have
to first search for the authority and power of this Court to declare a law
void.
120.
Article 7 of our Constitution heralds the
Supremacy of the Constitution.
All powers in the republic belong to the
people, and their exercise on behalf of the people shall be effected only
under, and by the authority of, this Constitution.
This Constitution is, as the solemn
expression of the will of the people, the supreme law of the Republic, and if
any other law is inconsistent with this Constitution that other law shall, to
the extent of the inconsistency, be void”. (underlined by us)
121.
Is the impugned law inconsistent with any
provisions of the Constitution and thereby requires the same to be declared
void under the authority and power of Article 7(2). Here, the impugned part of
Section 4(1)(a) of the Ordinance, 1978 has been branded to be contradictory
with Article 27, 29, 31 and 147(2) of the Constitution. Since Article 27, 29
and 31 are grouped in the same Part (Part iii) of our Constitution and their modus
operandi being same, for convenience of our discussion, we will take up those
Articles later on.
122.
We, therefore, undertake Article 147 (2),
first, to see whether the impugned legislation is inconsistent with the same
and thereby attracts the treatment of the scheme of Article 7(2) of our
Constitution. We fancy to undertake the said scrutiny by examining the case
laws of our jurisdiction and foreign jurisdiction with the spirit of Article
7(2) of our Constitution.
123.
Article 147 (2) of our Constitution declares
that:
(2) The remuneration, privileges and
other terms and conditions of service of a person holding or acting in any
office to which article applies shall not be varied to the disadvantage of any
such person during his term of office” (underlined by us).
124.
From a plain reading of Article 147(2) it
appears that the State shall not make any legislation to the disadvantage of
the Supreme Court Judges. But it has clearly been found by our minute
examination and elaborate discussion made hereinbefore that the payment of
house allowance of Tk. 26,600/- have been fixed to the disadvantage of the
Supreme Court Judges.
125.
In the case of Marbury Vs Madison (1803),
Chief Justice Marshal recorded the supremacy of the Constitution in the
following language:
“Thus,
the particular phraseology of the Constitution of the United states confirms
and strengthens the principle, supposed to be essential to all written
constitutions, that a law repugnant to the constitution is void; and that
courts, as well as other departments, are bound by that instrument.”
126.
In the Special reference Case No. 1 of 1964
(AIR 1965 SC 745), Chief Justice
of India PB Gajendragadkar said :
In a
democratic country governed by a written Constitution, it is the Constitution
which is supreme and sovereign. It is no doubt true that the Constitution
itself can be amended by the Parliament, but that is possible because Art. 368
of the Constitution itself makes a provision in that behalf, and the amendment
of the Constitution can be validly made only by following procedure prescribed
by the said article. That shows that even when the Parliament purports to amend
the Constitution, it has to comply with the relevant mandate of the
Constitution itself. Legislators, Ministers, and Judges all take oath of
allegiance to the Constitution, for it is by the relevant provisions of the
Constitution that they derive their authority and jurisdiction and it is to the
provisions of the Constitution that they owe allegiance. Therefore, there can
be no doubt that the sovereignty which can be claimed by Parliament in England,
cannot be claimed by Legislature in India in the literal by absolute sense.
127.
In the case of Asma Jihani Vs Government of
Punjab, PLD 1972 SC139 (relevant
page-199) Chief Justice Hamoodur Rahman said :
“………General
Agha Mohammad Yahia Khan had, according to me, no authority to pass such
legislation taking away the powers of the Courts in his capacity as President
under the Provisional Constitution Order. The Martial Law introduced by him was
illegal and, therefore, even as Chief Martial Law Administrator he was not
competent to validly pass such laws …”
128.
In our jurisdiction also, scores of the
judicial pronouncements are available where the vires of an Act of Parliament
was challenged on the ground of the supremacy of the Constitution.
129.
In the case of A.T. Mridha Vs State 25 DLR
(1973) 335 (relevant page–344) Justice B. Haider Chowdhury noted the Supremacy
of the Constitution in this way-
“10……The
Constitution is the supreme law and all laws are to be tested in the touch
stone of the Constitution (vide article 7). It is the supreme law because it
exists, it exits because the Will of people is reflected in it.”
130.
In the case of Md. Shoib Vs Government of
Bangladesh 27 DLR 315 (relevant page-325) Justice D.C. Bhattacharya, J
commented-
“In
a country run under a written Constitution, the Constitution is the source of
all powers of the executive organs of the State as well as the other organs,
the Constitution having manifested the sovereign will of the people. As it has
been made clear in Article 7 of the constitution of the People’s Republic of
Bangladesh that the Constitution being the solemn expression of the will of the
people, is the Supreme law of the Republic and all powers of the Republic and
their exercise shall be effected only under, and by the authority of, the
Constitution. This is a basic concept on which the modern states have been
built up”
131.
In the case of Anwar Hossain Chowdhury -Vs-
Bangladesh reported in 41 DLR (AD) 165 (the 8th Amendment case), Article 100,
as amended by the 8th amendment of our Constitution, and the notification of
the Chief Justice towards implementation of the said amendment were challenged
as ultra vires by two writ petitions. Our Apex Court by a majority of 3 to 1
declared the 8th amendment of the Constitution so far as it relates to the
creation of permanent benches outside the Dhaka by substitution of Article 100
to be void on the ground that the amended Article 100 changed the character and
nature of the functions and jurisdiction of the High Court Division as
envisaged in our Constitution changing the basic structure of the Constitution.
Thus, it was held ultra vires the Constitution. Since the birth of Bangladesh,
our Supreme Court for the first time struck down an amendment to the
Constitution made by the Parliament, the supreme and sovereign law making body
under the Constitution relying upon the ratio decidendi of the following Indian
cases; Keshavanda reported in AIR
1973 SC 1461, Indira Gandhi reported in AIR
1975 SC 1590, Minarva Mills reported in AIR
1980 SC 1789 and Woman Rao reported in AIR
1981 SCR 1 to base its decision.
The Court held in particular:
“The
Constitution stands on certain fundamental principles which are its structural
pillars which the parliament cannot amend by its amending power for, if these
pillars are demolished or damaged, then the whole constitutional edifice will
fall down.
If
any provision can be called the ‘pole star’ of the Constitution, then it is the
preamble. The impugned Amendment is to be examined on the touchstone of the
preamble with or without resorting to the doctrine of basic structure. The
preamble is not only a part of the Constitution, it now stands as an entrenched
provision that cannot be amended by parliament alone. When parliament cannot by
itself amend the preamble, it cannot indirectly by amending a provision of the
Constitution impair or destroy the fundamental aim of our society. One of the
fundamental aims of out society is to secure the rule of law for all citizens
and in furtherance of that aim part VI and other provisions were incorporated
in the Constitution. By the impugned Amendment that structure of the rule of
law has been badly impaired and as a result the High Court Division has fallen
into sixes and sevens-six at the seats of the permanent Benches and the seven
at the permanent seat of the Supreme Court.
132.
In the case of Khandaker Delwar Hossain -Vs-
Italian Marble Company Limited reported in 2010 BLD
Special, (the 5th amendment case), the Supreme Court declared all Martial Law
Proclamations, orders, regulations, rules issued and executed under the first
martial law regime, ratified by the 5th amendment of the Constitution,
unconstitutional as it found that some basic structures of the constitution
were destroyed through the 5th amendment of the Constitution.
133.
In the 7th Amendment Case (the case of
Siddique Ahmed –Vs- Bangladesh) reported in 2013 Counsel (Special), our Supreme
Court declared all Martial Law Proclamations, order, regulation, rules issued
and executed under the second martial law regime, ratified by the 7th amendment
of the Constitution, unconstitutional as it found that some basic structures of
the constitution were destroyed through the 7th amendment of the
Constitution.
134.
In the case of Md. Abdul Mannan Khan –Vs-
Bangladesh reported in the book “The 13th Amendment Judgment” published by the
CCB foundation, the Appellate Division of the Supreme Court declared the
provisions of the Amendment Act ulrta vires the Constitution.
135.
In the case of Sultana Kamal Vs Bangladesh
reported in 14 BLC (2009) 141,
Section 5 of the Emergency Power Ordinance, 2007 was declared to be ultra vires
the Constitution.
136.
In the case of M. Samsul Haque and others
-Vs- Bangladesh and others reported in 17 BLT
(HCD) 523 an Ordinance namely, Av`vjZ
Aegvbbv Aa¨v‡`k, 2008, was declared to be ultra vires the Constitution
by the High Court Division as the impugned legislation was found to have been
promulgated in contravention of Article 93 and 58 (D) of the Constitution.
137.
Also, in the case of Monzur Ahmed Bhuiyan
and others Vs Adilur Rahman Khan and others reported in 18 BLC (AD) 47, the Apex Court uphold the judgment of
the High Court Division which declared the ¯^cÖ‡bvw`Z Z_¨ cÖKvk Aa¨v‡`k, 2008
to be ultra vires the Constitution.
138.
In the case of Idrisur Rahman –Vs-
Bangladesh reported in 60 DLR 714 where the vires of an ordinance namely,
Supreme Judicial Commission Ordinance, 2008 was challenged and by a majority
decision of a Special Bench of the High Court Division Section 9(4) of the said
Ordinance was declared to be ultra vires the Constitution.
139.
In all these cases either an Act of
Parliament or a particular Section/provision thereof was challenged on the
ground of being inconsistent to any Article of the Constitution and it was
declared that there can be no Act/law, be that an amendment of the Constitution
or enactment of a statue, which defies the supremacy of the Constitution and
destroys the basic feature of the Constitution.
140.
Like the above-discussed cases, to here, in
this case as well we find that the Supremacy of the said Article 147(2) has
been flouted by incorporation of the impugned part of Section 4(1) of the
Ordinance, 1978. It follows that the second part of Section 4(1)(a) of the
Ordinance, 1978 is violative of Article 147(2) of the Constitution.
141.
Above were the case laws involving the
challenges of the various Acts of Parliament for being inconsistent mainly with
the scheme and spirit of the different provisions of the Constitution, other
than Article 27, 29 and 31.
142.
Now let us now take up the said Articles in
tandem with Article 26 of our Constitution and some case laws of our
jurisdiction and foreign jurisdiction, where a number of Acts of Parliament
were struck down for being inconsistent with the provisions of Part III of our Constitution.
143.
Article 26 declares that Laws inconsis-tent
with fundamental rights to be void.
1) All
existing laws inconsistent with the provisions of this Part shall, to the
extent of such inconsistency, become void on the commencement of this
Constitution.
2) The
State shall not make any law inconsistent with any provisions of this part, and
any law so made shall, to the extent of such inconsistency, be void”.
144.
Article 27 :
All citizens are equal before law and
are entitled to equal protection of law.
145.
Article 29 :
1) There
shall be equality of opportunity for all citizens in respect of employment or
office in the service of the Republic.
2) No
citizens shall, on grounds only of religion, race, caste, sex or place of
birth, be ineligible for, or discriminated against in respect of, any
employment or office in the service of the Republic.
3) Nothing
in this article shall prevent the State form-
a)
making special provision in favour of any
backward section of citizens for the purpose of securing their adequate
representation in the service of the Republic;
b)
giving effect to any law which makes
provision for reserving appointments relating any religious or denominational
institution to persons of that religion or denomi-nation;
c)
reserving for members of one sex any class
of appointment or office on the ground that it is considered by its nature to
be unsuited to members of the opposite sex. (underlined by us)
146.
Let us also consider the meaning and scope
of Article 5(1) and Article 15 of the Constitution of Pakistan of 1956 and 1962
respectively and Article 14 of the Constitution of India (Corresponding Article
27 to our Constitution) which reads thus:
“The
State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India”.
147.
This again corresponds to the last Clause of
the first section of the Fourteenth Amendment of the American Constitution
which reads as follows:
“All
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States, nor shall any
state deprive any person of life, liberty, or property without due process of
law; nor deny to any person with its Jurisdiction the equal protection of the
laws”.
148.
Now, the question before us is whether the
above guarantees of the Constitution, as engraved in Article 26, 27 and 29,
have been disregarded in the impugned legislation, namely second part of
Section 4(1)(a) of the Ordinance, 1978.
149.
Let us first understand what ‘the equality
before law’ means.
150.
Sir Ivor Jennings in his “The Law and the
Constitution” has stated:
“Equality
before the law means that among equals the law should be equally administered,
that like should be treated alike”.
151.
Dicey in his “law of the Constitution’,
stated:
“Equality
before the law does not mean absolute equality of men which is a physical
impossibility, but the denial of any special privileges by reason of birth,
creed or the like, in favour of any individual and also the equal subjection of
all individuals and classes to the ordinary law of the land administered by the
ordinary law Courts”.
152.
In the “Limitations of Government Power” by
Rotundy and others “equal protection of the laws” has been described as:
“The
equal protection clause guarantees that similar individuals will be dealt with
in a similar manner by the government. It does not reject the government’s
ability to classify persons or draw lines in creation and application of laws,
but it does guarantee that those classifications will not be based upon
impermissible criteria or arbitrarily used to burden a group of individuals.
Such a classific-ation does not violate the guarantee when it distinguishes
persons as ‘dissi-milar’ upon some permissible basis in order to advance the
legitimate interest of society”.
153.
Professor Wills who in his book
“Constitutional Law” Edn. 1 p. 578, viewed the Fourteenth Amendment in the
following expressions:
“It
forbids class legislation, but does not forbid classification which rests upon
reasonable grounds of distinction. It does not prohibit legislation, which is
limited either in the objects to which it is directed or by the territory
within which it is to operate. It merely requires that all persons subjected to
such legislation shall be treated alike under like circumstances and conditions
both in the privileges conferred and in the liabilities imposed’. The
inhibition of the amendment was designed to prevent any person or class of
persons from being singled out as a special subject for discriminating and
hostile legislation”. It does not take from the States the power to classify
either in the adoption of Police laws or tax laws,, or eminent domain laws, but
permits to them the exercise of a wide scope of discretion, and nullifies what
they do only when it is without any
reasonable basis. If any state of facts can reasonably be conceived to sustain
a classification, the existence of that state of facts must be assumed. One who
assails a classification must carry the burden of showing that it does not rest
upon any reasonable basis”.
154.
Mahmudul Islam in his “Constitutional Law of
Bangladesh” (3rd Edition, Page 227) comments that
“Discrimination
in the matter of condition of service of the same category of employees is a
violation of Articles 27 and 29”.
155.
The sum and substances of the above
commentaries by the distinguished Authors is that Article 27 and 29 of our
Constitution and Article 14 of Indian Constitution and the First Section of the
fourteenth Amendment mainly mandates as to equality before law, meaning
enjoying the guarantee of equal treatment with others with same footing in all
the spheres of life, in particular, in enjoyment of equal opportunity in the
event of entry in the public office/employment as well as after holding the
public office or being employed therein.
156.
Let us cite some American Cases on Article
27 and 29 (therein First Section of the fourteenth Amendment).
157.
The United States Supreme Court in Middleton
Vs. Texas P & L Co, 248 U.S. 152, observed:
“It
must be presumed that a Legislature understands and correctly appreciates the
needs of its own people, that its laws are directed to problems made manifest
by experience and that its discriminations are based upon adequate grounds”.
158.
Bruen J, in Gulf colorado Rly. v. Ellis, 165
U.S. 150, however, warned against carrying this presumption too far and
observed:
“To
carry the presumption to the extent of holding that there must be some
undisclosed and unknown reason for subjecting certain individuals or
corporations to hostile and discri-minatory legislation is to make the protection
clause of the 14th Amendment a mere rope
of sand”.
159.
In Southern Rly Co. V. Grane, 216 U.S. 400
Day-J observed:
“Equal
protection of the laws means subjection to equal laws, applying alike to all in
the same situation”.
160.
American Judges regard this provision of
‘equality before law, and ‘equal protection of law’ as the “basic principle of
republicanism’ and the American Judges and Jurists made ‘a pledge of the
protection of equal laws’ as their subject of interest in numerous cases.
161.
We may now refer to some case laws of Indian
jurisdiction on Articles 14 and 16 of the Constitution of India being akin to
Articles 27 and 29 of our Constitution.
162.
Bhagawati J, in Shujat Ali Vs. Union of
India, AIR 1974, SC 1631 observed:
“The
doctrine of classification should not be carried to a point where instead of
being a useful servant it becomes a dangerous master”.
163.
In Lachmon Das Vs. State of Punjab (supra)
Subha Rao J, observed:
“Over-emphasis
on the doctrine of classification or an anxious and sustained attempt to find
some basis for classification may gradually and imperceptivity deprive the
article of its glorious content. That process would gradually and
imperceptivity substitute the doctrine of classification for the doctrine of
equality”.
164.
Chandrachud-J, in “Smt. Indira Gandhi V. Raj
Narayan”, AIR 1975, SC 2279
described his idea of equality as:
“All
who are equal are equal in the eye of law”, meaning that it will not accord
favoured treatment to persons within the same class”.
165.
In the Case of Bhoomi Vikash Bank Ltd Vs its
workmen reported in AIR 1990 SC
495 it was held that payment of higher emolument to the staff of one unit as
against that of other units is discriminatory.
166.
In the case of State of West Bengal v.
Anowar Ali Sarkar, AIR 1952, SC
75, the Supreme Court of India struck down S.5(1) of the West Bengal Special
Courts Act, 1950 as vocative of Article 14 of the Indian Constitution. The
impugned section of the law provides that a special court shall try offences or
classes of offences or cases or classes of cases as the State Government may
direct. Contention of the accused-respondent was that this provision gave
arbitrary power to the Government to choose any accused person for trial before
the Special Court which follows a harsher procedure than the ordinary courts
and as such it offended Article 14 of the Constitution. This contention was upheld with the observation
that “the Act has completely ignored the principle of classification followed
in the Cr. P.C. and has laid down a new procedure without making any attempt to
particularize or classify the offences or cases to which it is to apply”.
167.
In Dhirendra Kumar Vs. Government of West
Bengal, AIR 1954, SC 424, a
similar question arose and the Supreme Court upheld the contention of the
accused-applicant that the impugned Notification of the State Government
revoking its previous Notification, by which the accused was granted trial by
Jury under section 269(1) Cr. P.C., and directing his trial with the aid of
Assessors, offended the equality provision in Article 14 given that the
classification of cases and offences to be tried with the aid of Assessors as
per Government Notification was not based on any substantial distinction.
168.
In Panduranga Rao Vs. Andhra Pradesh Public
Service Commission, AIR 1963, SC
268, a rule made by the Government of the Province laying down certain special
qualifications for recruitment of District Munsifs was challenged on the ground
that it made arbitrary classification between Advocates of one High court and
those of other High Courts of India. The rule says that a candidate for the
post of District Munsif, among other things, must be an advocate of the High
Court of Andhra Pradesh. The Supreme Court found that this rule introduced a
classification between one class of advocates and the rest and that this
classification was irrational inasmuch as there was no nexus between the basis
of the classification and the object intended to be achieved by the relevant
rule. The Court observed:
“When
any impugned rule or statutory provision is assailed on the ground that it
contravenes Art, 14, its validity can be sustained if two tests are satisfied.
The classification… must be based on an intelligent differentia which
distinguished persons or things grouped together from others left out of the
group, and the second is that the differentia must have a reasonable relation
to the object sought to be achieved by the rule of statutory provision.”
169.
In the case of Bank Nationalization reported
in AIR 1970 SC 564, the Supreme
Court, while deciding the question of violation of the right to equal treatment
in Article 14 of the Indian Constitution, struck down section 15(2) of Banking
Companies (Acquisition and Transfer of Undertaking) Act, 1969. Under the
aforesaid enactment undertakings of fourteen Commercial Banks in India were
taken over by the State and vested in the Union of India, and the Banks were
prohibited from engaging in the business of banking in India. The Supreme Court
of India struck down the offending provision of the Act on the ground that
there was hostile discrimination against the Banks in that they were prohibited
from carrying on banking business whereas other banks, Indian and foreign, were
permitted to carry on the banking business. It was termed by their Lordships as
a flagrant hostile discrimination against the fourteen named Banks.
170.
The case of Indira Gandhi Vs. Raj Narayan (AIR 1975 SC 2299) is a glaring instance of
discriminatory legislation offending “equality before law”. There, amended Art.
329-A(4) of the Indian Constitution was assailed, among other things, on the
ground of arbitrary classification. Indira Gandhi’s election to Lokshabha held
in March 1971 was held void by the Allahabad High Court and against that
decision she preferred an appeal before the Supreme Court. During pendency of
the appeal, Indian Parliament amended the Constitution inserting therein
Article 329-A. Clause (4) of this Article made the existing Election Laws
retrospectively inapplicable to Parliamentary elections of the Prime Minister
and the Speaker; it kept the election of these two personages, who are members
of Parliament, beyond the reach of any law past or present; it declared the
disputed election of Indira Gandhi valid.
171.
And further declared that the judgment of
the Allahabad High Court was void and the election petition challenging her
election abated. Existing election laws were however kept alive to be
applicable to elections of all other members of the Parliament. The Supreme
Court struck down clause (4) as grossly discriminatory.
172.
The above Indian cases are some
illustrations where the Courts found the impugned legislations to be
inconsistent with provisions akin or similar to those in Part III of the Bangladesh Constitution and declared the
same to be void under authority vested in a manner similar to Article 26 of our
Constitution.
173.
The broad principles governing the
application and extent of the Article 14 (ours in Article 27 and 29) have been
interacted and reiterated in so many Indian cases that “it would be an idle
parade of familiar learning to review the multitudinous cases in which the
constitutional assurance of equality before the law has been applied” observed
Mathew, J. in AIR 1974 SC 1300. In
later decisions AIR 1979 SC 478
and AIR 1981 SC 2138 Chandrachud
C.J. and Bhagwati, J. (as he then was) respectively observed that the proposit-ions
applicable to cases arising under Article 14 have been repeated so many times
during the last 30 years in course of “the avalanche of the cases which have
flooded this court” since the commencement of the Constitution that they now
sound almost platitudinous.
174.
From the discussions of the above laws and
cases on Article 14 of Indian Constitution and the last Clause of the first
section of the Fourteenth Amendment of the American Constitution (which are
similar to Article 27 of our Constitution), it can be summed up that there
cannot be a single law to be applied uniformly to all persons disregarding
their basic differences with others. Once the differences are indentified, then
the persons or things may be classified into different categories according to
those distinctions, which are known as ‘permissible criteria’ or “intelligible
differentia”. The legislatures in the process of making law with certain object
in view, which is either to remove some evil or to confer some benefit, are
empowered to make classification on reasonable basis. Class legislation is
forbidden but classification of persons for the purpose of legislation is
permitted. To pass the test of ‘equality’ a classification, besides being based
on intelligent differentia, must have logical relation with the object the
legislature intends to achieve by making the classification. A classification
is reasonable if it aims at giving special treatment to a backward section of
the population. It is also permissible to deal out distributive justice by
taxing the privileged class and subsidizing the poor section of the people.
What is of fundamental importance in law-making is that while making a
classification the legislature shall not act arbitrarily but make selection on
rational basis.
175.
In our Jurisdiction, in the case of Hamidul
Huq Chowdhury Vs Bangladesh reported in 34 DLR 190, Section 6 of the
Government-owned Newspapers (Management) Act, 1975 was declared to be
inconsistent with Article 27 of the Constitution as the impugned section had
granted unfettered and arbitrary power to enlist the printing and press
companies for vesting their ownerships in the Government among the similarly situated
companies.
176.
In the case of Zainul Abedin Vs Bangladesh
reported in 34 DLR 77, the Government Servants (Seniority of Freedom Fighters)
Rules, 1979 was knocked down on the ground of being violative of Article 27 and
29 of the Constitution.
177.
On the other hand, there are innumerable
cases of our jurisdiction where the challenges to the vires of specific laws
were found to be without merit and substance by the Courts such as the case of
Bangladesh Krishi Bank -Vs- Meghna Enterprise and others reported in 50 DLR
(AD) 194, SA Sabur Vs Returning Officer 41 DLR (AD) 30, Chandpur Textile Mills
Ltd Vs Subordinate Judge reported in 2 BLC
50, Anisur Rahman Vs Bangladesh 12 BLC
22 and so on.
178.
In the case of S.A. Sabur Vs- Returning
Officer reported in 41 DLR (AD) 30, the vires of Section 7(2)(g) of the local
Government Ordinance, 1983, was challenged on the ground that the said Section
7(2)(g) is discriminatory and thereby violative of Article 27 of the
Constitution inasmuch as the said section though makes a provision
disqualifying the loan defaulters to be a candidate of the Union Parishad but
there being no such provision for disqualifying the MP candidates, the law was
blamed to be discriminatory and our Appellate Division after reviewing a number
of cases from India, Pakistan and U.S.A. rejected the contentions of the
petitioners on the ground that the impugned piece of legislation had not been
hit by Article 27 of the Constitution inasmuch as the Union Parishad Chairmans
and the Members of Parliament are not similarly situated persons and the
provision of equal treatment is applicable only when there will be unequal
treatment among the same class being at par.
179.
But, in the case at hand, all the Judges of
the High Court Division are similarly situated dignitaries, irrespective of
their age or date of elevation in the Bench and, as such, they being the
members of same class deserve to be treated equally and no law should make any
discriminatory provision for which one judge will enjoy some benefit and other
Judge will be deprived of the same.
180.
In the said SA Sabur’s case at page 55 (Para
69), his Lordship A.T.M. Afjal, J (as he then was) elaborated the principles
governing the scope, nature and parameters of Article 27 in the following
language.
1.
The
principle of equality does not mean that every law must have universal
application for all persons who are not by nature, attainment or circumstances
in the same position, and the varying needs of different classes of persons
require separate treatment.
2.
It
requires that all persons shall be treated alike, under like circumstances and
conditions, both in the privileges conferred and in the liabilities imposed.
3.
it
forbids class legislation but it does not forbid reasonable classification for
the purpose of legislation. In order, however, to pass the test of permissible
classification two conditions must be fulfilled, namely, (i) that the
classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out
of the group and (ii) that the differentia must have a rational relation to the object sought to
be achieved by the statute in question. The classification may be founded on
different bases, namely, geographical or according to objects or occupations or
the like, what is necessary is that there must be a nexus between the basis of
classification and the object of the Act under consideration.
4.
The
State, in the exercise of its government power, has of necessity to make laws
operating differently on different groups or classes of persons to attain
particular ends in giving effect to its policies, and it must possess for that
purpose large powers of distinguishing and classifying persons or things to be
subjected to such laws. The laws can make and set apart the classes according
to the needs and exigencies of the Society and as suggested by experience. It
can recognize even degree of evil, but the classification should never be
arbitrary, artificial or evasive.
5.
To
overdo classification, however, is to undo equality. The doctrine of
classification should not be carried to a point where instead of being an
useful servant, it becomes a dangerous master, for otherwise, the guarantee of
equality will be submerged in class legislation masquerading as laws meant to
govern well marked classes characterized by different and distinct at
attainments.
6.
The
Courts should not insist on delusive exactness or classification in any given
case. Classification is justified if it is not palpably arbitrary.
7.
There
is always a presumption in favour of the Constitutionality of a Statute and the
burden is upon him who attacks it to show that there has been a clear
transgression of the Constitutional principles. This rule is based on the
assumption, Judicially recognized and accepted, that the Legislature
understands and correctly appreciates the needs of its own people, its laws are
directed to problems made manifest by experience and its discriminations are
based on adequate grounds.
181.
Upon consideration of the philosophies
propounded by these noble Judges and Philosophers as to the meaning of the
“equality before law and equal protection of the law” it is this Court’s
considered view that “Equality before law” should not be taken in its absolute
sense to hold that all persons are equal in all respects irrespective of their
different conditions and circumstances in which they are placed or special
qualities and characteristics which some of them may possess and others may
lack. By the term ‘protection of equal law’, it is not meant that all persons
or things are equal in all cases, rather it is to mean that the persons
similarly situated should be treated alike. Provisions of equal protection, as
engraved in our Constitution, guarantees that similar people will be dealt with
in a similar way and people of different circumstances will be treated in a
dissimilar way.
182.
In the instant cases, the main ground for
challenging the constitutionality of the second part of 4(1)(a) of the
Ordinance, 1978 is that the Judges of the Supreme Court are being unequally
treated albeit all of them are similarly situated. It appears to be a startling
provision of law that while a Supreme Court Judge being provided with
government accommodation is without any worries about maintaining the costs of
accommodation, the non-allottee Judges are pushed in a situation to strive
mitigating the awful state of affairs as to the same given that it is not
possible for a non-allotee Judge to manage his accommodation affairs with a
cost of Taka 26600/00, which is a grossly discriminatory part of the Ordinance,
1978 and, thus, repugnant to the object intended to be achieved by the relevant
law.
183.
From the above threadbare examination it
appears that the presence of the second part of Section 4(1)(a) “–and until
such residence is provided—-” makes the deprived Judges victim of hostile and
unequal treatment, thus, being the same inconsistent with Article 27 and 29 of
the Constitution is required to be declared to be void for being ultra vires
the Constitution.
184.
Furthermore, in enactment of any
legislation, the test of reasonableness is to be passed. Article 31 prohibits
Parliament from passing an unreasonable or arbitrary law, both from the
substantive and procedural points of view. From the substantive point of view a
law will be violative of Article. 31 if the Court finds that it is so
demonstrably unreasonable or arbitrary that the members of Parliament acting as
reasonable men could not pass that law. In view of our findings made
hereinbefore that the amount of Tk. 26,600.00 as residence allowance is clearly
to the disadvantage of the privileges of a Judge, the fixation of the said
amount is, thus, an unreasonable and arbitrary law.
185.
In the case of Malpe Viswanath vs
Moharashtra (1998) 2 SCC 1, it was
held that a law when passed may be justified, but may later on become arbitrary
or unreasonable with the lapse of time and change of circumstances.
186.
Here, in these cases, it transpires from the
chronology of the facts of fixation of the amount of house allowance that
before 1990 when there was only 20-30 High Court Judges, there was hardly any
shortage of bungalow type houses for the Judges and the provision regarding
payment of money as was fixed as house allowance before 1990 was not so
unreasonable as it stands today.
187.
Accordingly, we declare the second part of
Section 4(1)(a) of the Supreme Court Judges (Remuneration and Privileges)
Ordinance, 1978 in the language of “ …….and until such residence is
provided, a judge shall be paid a residence allowance of Taka, 26,600/- per
month” void for being the same ultravires of
Article 27, 29, 31 and 147(2) of our Constitution.
188.
It, thus, emerges from the discussions and
observations made hereinbefore as well as from the mandates of the Constitution
and other laws of the land that all the three Rules are destined to be made
absolute.
189.
Before we part with this judgment, we wish
to quote the last Para of the case of Sayeda Rizwanna Hasan Vs Bangladesh
reported in 18 BLC (AD) 54 which
reads as follows:
“Courts
have always been considered to have an overriding duty to maintain public
confidence in the administration of justice-often referred to as the duty to
vindicate and uphold the majesty of law. Due administration of justice has
always been viewed as a continuous process, not confined to determination of
the particular case, protecting its ability to function as a court of law in
the future as in the case before it. Doing justice is the paramount
consideration and that duty cannot be abdicated or diluted by reason of
improper application. It is recognized in the public interest that the
authority acting by virtue of statutory powers cannot exceed his authority’’.
190.
Having been enlightened by the ratio decidendi of the above case, we
feel it appropriate to make some directions in this case upon the concerned
authorities in order to ensure that the painstaking efforts of the petitioners
do not go in vain. As in the case above, we make the following directions upon
the respondents and others authorities;
1)
Respondent nos. 1 and 2 are directed to vacate
all the bungalow type houses which are being occupied by the persons below the
serial 9 of the Warrant of Precedence within thirty days from the date of
receipt of this judgment and order and allot the same to the dignitaries
positioned above serial No.16 of the Warrant of Precedence as per their
exigencies as may be ascertained from the date of receiving their applications
taking an exception to the case of Mr. Justice Md. Jahangir Hossain for being
recom-mended by the Hon’ble President of the Republic.
2)
Since it is apparent that there is an acute
shortage of bungalow type of houses and superior type flats and the respondents
previously have not hired required number of flats/houses of 4,200 square feet
(the size of flats which are being constructed for the Judges) to house the
Supreme Court Judges temporarily until completion of the project of
construction of 76 flats of 4,200 square feet for the Judges, therefore, in
order to cope with the prevailing situation, respondent nos. 1 and 2 are
further directed to hire the required number of flats/houses of 4,200 square
feet within the secured residential
areas such as, Kakrial, Siddheshwari, Bailey Road, Eskaton Road, Dhanmondi,
Gulshan, Banani and Baridhara and thereby allot the same in favour of the Judges
of the Supreme Court at their earliest convenience.
3)
In the event that the Government wishes to
replace the impugned part of Section 4(1) (a) of the Ordinance, 1978, “The Committee on Pay and Privilege of the
Judges of the Supreme Court” should be made a perpetual statutory body,
which must be constituted consisting of (i) Auditor & Comptroller General
of Bangladesh, (ii) Secretary, Ministry of Finance (iii) Secretary, Ministry of
Law and Justice, (iv) Secretary, Ministry of Housing and Works, (v) Registrar
of the Supreme Court and (vi) the Chief Executives of both the Dhaka City
Corporations. They will sit at least twice a year and the duty of the said
Committee will be, among others, to approve the rent agreements of the
non-allottee Judges with their landlords, to assess and approve the rental
value of their property as claimed by the Judges who live in their own
houses/flats upon submission of a written letter/invoice by the concerned
judges and to okay the service charges, bills of electricity, gas and water
incurred. The rough draft of the proposed law in the sum and substance may be
in the following language: and until such
residence is provided, a Judge of the Supreme Court shall be paid a monthly
residence allowance of an amount of Taka as agreed with the land lord or the
rental value of the properties of the Judges who live in their own properties
and the bills of electricity, gas, water and service charges at actual under
the approval of the “Committee on Pay and Privilege of the Supreme Court Judges”.
4)
Until the required number of superior types
of flats are hired for the Supreme Court Judges or the second part of Section
4(1)(a) of the Ordinance, 1978 is reenacted in the light and form of the above
Direction no. 3, the non-allottee Judges shall be entitled to claim their house
allowance at actual, which will include their respective house rent as per
their respective rent agreement with their landlords, service charges and bills
of electricity, gas and water. Their invoices and vouchers would be submitted
through the Registrar of the Supreme Court to the Auditor and Comptroller
General of Bangladesh who, upon making an assessment on the prevailing costs of
house rents together with bills and charges with assistance from the Dhaka City
Corporations (South and North), will approve the same.
5)
In the absence of the aforesaid statutory
Committee, for the Judges who live in their own properties the residence
allowance should be fixed by the judges themselves in collaboration with the
Dhaka City Corporation and concerned Ward Councilor. The maximum claimed
allowance would be equivalent to the rent of a house of 4200 square feet in
their respective areas together with all charges and bills at actual. After
verifying the assessment of the house rent by the Dhaka City Corporation, the
invoice of the rental value of the property together with charges and bills may
be submitted through the Registrar of the Supreme Court to the Office of the
Auditor and Comptroller General for his approval.
6)
The respondents are directed to comply with
the aforesaid directions within one month from the date of receipt of this
order and file affidavit of compliance before this Court within one week of the
said compliance.
191.
With the above directions all the three
Rules are made absolute.
192.
The Office is directed to send a copy of
this judgment and order to (i) the Auditor and Comptroller General of
Bangladesh, (ii) the Secretary, Cabinet Division, (iii) the Secretary, Ministry
of Finance, (iv) the Secretary, Ministry of law and justice (v) the Registrar
of the Supreme Court and (vi) the Chief Executives of both the City
Corporations of Dhaka in order to apprise them with their duties and
responsibilities which have been conferred upon them by the above directions of
this Judgment and order and, thereby, to enable them to comply with these
directions.
There will, however, be
no order as to costs.
Ed.