Bangladesh and others Vs. Nurul Amin and others, 4 LNJ AD (2015) 270

Case No: Civil Appeal Nos. 89-93 of 2000

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Moudud Ahmed,Mr. Murad Reza,Mr. Saifuzzaman,,

Citation: 4 LNJ AD (2015) 270

Case Year: 2015

Appellant: Government of Bangladesh and others

Respondent: Nurul Amin and others

Subject: Writ Petition, Monetary Compensation,

Delivery Date: 2012-05-29


APPELLATE DIVISION
(CIVIL)
 
Md. Muzammel Hossain, CJ.
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Md. Imman Ali, J
Md. Shamsul Huda, J
 
 
Judgment on
29.05.2012
  Government of Bangladesh and others
... Appellants
(In all the cases)
Versus
Nurul Amin and another
... Respondents
(In C.A. No. 89 of 2000)
Bilkis Akter Hossain and others
... Respondents
(In C.A. No. 90 of 2000)
Afroza Abbas and others
... Respondents
(In C.A. No. 91 of 2000)
Jharna Roy and others
... Respondents
(In C.A. No. 92 of 2000)
Nilufor Mannan and others
... Respondents
(In C.A. No. 93 of 2000)
 

Constitution of Bangladesh, 1972
Article 102
The interpretation of Article 102 should be guided by the paramount object and purpose for which the Article has been enacted and its interpretation is inextricably  linked with the (i)  emergence of Bangladesh and framing of its Constitution, (ii) the preamble and Article 7, (iii)  Fundamental Principles of State Policy, (iv) Fundamental rights and (v) the other provisions of the Constitution. ... (38)

Constitution of Bangladesh, 1972
Articles 7 and 102
Article 7 bestows all powers of the Republic with the people and the various functionaries and institutions including the High Court Division exercise the people’s power on their behalf. The power of the High Court Division under Article 102 is very wide and is not fettered by any legal constaints in the enforcement of the fundamental rights inasmuch as the High Court Division has powers to issue such directions and orders as may be appropriate for the enforcement of fundamental rights conferred by Part III of the Constitution.... (38)

Constitution of Bangladesh, 1972
Article 102
The power of the High Court Division under Article 102(1) is not only injunctive in ambit but also remedial in scope to provide any relief against a breach of fundamental right already committed which may include the power to award compensation in appropriate cases. . . . (38)

Constitution of Bangladesh, 1972
Article 102
In awarding and determination of compensation the High Court Division, in an appropriate case if it deems necessary, may take evidence to clear any disputed question of facts or pass any direction or orders to hold an inquiry  by a District Judge for removing any controversy. . . . (38)

Constitution of Bangladesh, 1972
Article 102
The paramount object and purpose for which Article 102 has been enacted and the relevant factor and provision on which the interpretation of the Article 102 has been linked, the High Court Division in exercise of its jurisdiction under Article 102 of the Constitution, which is an instrumentality and a mechanism, containing both substantive and procedural provisions “ to realise the objectives, purposes, polices, rights and duties which [the people] have set out for themselves and which they have strewn over the fabric of the Constitution,” can award monetary compensation or compensatory cost mostly in appropriate cases for violation of fundamental rights which must be gross and patent i.e. incontrovertible and ex-facie glaring  or that violation should appear unjust, unduly harsh or oppressive on account of the victims disability or personal circumstance. . . . (38)

Constitution of Bangladesh, 1972
Article 102
The High Court Division should bear in mind the social conditions and circumstances of the country where sometimes wild allegations are being made against the law enforcing agencies, for no fault of their own, alleging gross violation of fundamental rights but at the same time in certain cases excess committed by the law enforcing agencies thereby causing gross violation of fundamental rights cannot be ruled out. . . . (38)

Constitution of Bangladesh, 1972
Article 102
It is only in the exceptional cases of the nature indicated above that compensation or compensatory cost may be awarded to a victim in a petition properly drawn under Article 102 of the constitution. The violation must be gross and its magnitude must be such as “to shock the conscience of the Court” and it would be gravely unjust to the person whose fundamental right was violated to require him to go to the Civil Court for claiming compensation. . . . (38)

Constitution of Bangladesh, 1972
Article 102
There was no malice on the part of the appellants as alleged by the writ petitioners in the writ petitions and the violation of fundamental right was not being gross and patent and ex-facie glaring or the violation was not unjust and unduly harsh or oppressive the High Court Division erred in law in awarding monetary compensation and compensatory cost which cannot be passed unless it is specifically proved and claimed in an appropriate case as stated in the judgment. The writ petitioner failed to make out an appropriate case and as such the impugned decision of the High Court Division in awarding a lump sum monitory compensation in each of these cases must be held to have been made without lawful authority. It is expected that a court should not make any sweeping remark or irrelevant observation in a case and identify itself to the cause of any of the parties to a case on which it is adjudicating.  . . .(40)

Constitution of Bangladesh, 1972
Article 102
In the instant cases, it appears that neither in the writ petitions, nor in the Supplementary Affidavits nor in the Affidavits-In- Reply the writ petitioners made any statement regarding the so-called inhuman mental and physical torture of the detinues in the jail custody as alleged by Mr. Moudud Ahmed the learned Senior Advocate for the petitioners, in his submissions. The High Court Division acted without lawful authoring in taking into consideration such submissions in the absence of any basis or statements to that effect made by the petitioners in the writ petitions and connected affidavits. . . . (42)

Constitution of Bangladesh, 1972
Article 102
The Court should assign a reason in awarding cost or compensation otherwise it may appear to be arbitrary or indiscreet exercise of power or discretion with regard to realization of the same. Compensation or relief must be specifically prayed for in the writ petition but not in the name of general or other relief. . . . (43 and 44)

Dr. Mohiuddin Farooque Vs. Bangladesh and others, 49 DLR (AD)1 at page 13 Para 40; Khandakar Delwar Hossain and others Vs. Bangladesh Italian Marble Works Ltd and others, 2010 BLD (Spl)1 at page 48, 8th Amendment Case 1989 BLD (Spl)1 at page 61; Government of Bangladesh Vs. Ahmed Nazir 27 DLR (AD)417]; Mahraja Vs. Attorney General of Trinidad and Tobago (1978) 2 All ES 670; Government of East Pakistan Vs. Roushan Bijoya Shawkat Ali Khan, 18 DLR (SC) 214; Government of West Pakistan and others Vs. Begum Agha Abdul Karim Sherish Kashmiri, 21 DLR (SC) 1 page 16; Khatri Vs. State of Bihar, (1981) 1 SCC 627; Saint Bir Vs. State of Bihar (1982) 3 SCC 131; Veena Sethi Vs. State of Bihar (1982) 2 SCC 583; Rudul Shah Vs. State of Biha,r AIR 1983 SC 1086; Rudul Shah Vs. State of Bihar AIR 1983 SC 1086; Mehta and another Vs. Union of India and others, AIR 1987 SC 1086; Bandhua Mukti Morcha’s Case, (AIR 1984 SC 802) (supra), Rudul Shah Vs. State of Bilhar, AIR 1983 SC 1086; Rudul Shah Vs. State of Bilhar, AIR 1983 SC 1086; State Vs. Ryan (1965) IR 70 (122); Byrne Vs. Ireland (1972) IR 241 at page to 64; Maharaja Vs. Attorney General of Trinidad and Tobago, (1978) 2 All ER 670; Jaundoo Vs. Attorney General of Guyana 1971 AC 972; Simpson Vs. Attorney General (Baigent’s Case) 1994 NZLR 667; Nilabati Behera Vs. State of Orissa (1993)2 SCC 746; Bandhua Mukti Morcha Vs. U.O.I,. AIR 1984 SC. 412; AIR 1987 SC 1086, (1993) 2 SCC 746; Hefzur Rahman (Md) Vs. Shamsun Nahar Begum and another, 51 DLR (AD) page 172; Bangladesh Vs. Sheikh Hasina 60 DLR (AD) 90 at Para 44-46 ref.

For the Appellants: Mr. Murad Reza, Additional Attorney General with Mr. Saifuzzaman, Assistant Attorney General, instructed by Mr. B. Hossain, Advocate-on-Record.
For the Respondent No. 1: Mr. Moudud Ahmed, Senior Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record.
For the Respondent No. 1: None Represented
For the Respondent No. 2-3: None Represented

Civil Appeal Nos. 89—93 of 2000
 
JUDGMENT
Md. Muzammel Hossain, CJ:

Civil Appeal  Nos. 90 to 93 of  2000, by leave, are directed against the judgments and orders dated 07.04.1997 passed by a Division Bench of the High Court Division in Writ Petition Nos.1662 of 1997, 1661 of 1997,1660 of 1997 and 1663 of 1997 respectively and Civil Appeal No. 89 of 2000,  by leave, is directed against the Judgment and Order dated 29-09-1999 passed by a Division Bench of  the High Court Division in Writ Petition 3489 of 1999 wherein all the  detunes were released after making the  Rules  absolute  with directions to pay monetary compensation of Tk. 1,00,000/-(Taka one lakh only) to each of the detenues  in the former 4 (four) Writ Petitions and Tk. 10,000/- to the detenue  in Writ Petition No. 3489 of 1999. All these Civil Appeals are being disposed of by this single judgment as common questions of law and facts are involved in all these appeals.
 
Since common questions of law and facts are involved in all the Writ Petitions, for the sake of brevity, it would be convenient to state the facts of Writ Petition No. 1662 of 1997 instead of Writ Petition Nos. 1661 of 1997, 1660 of 1997 and 1663 of 1997 and separately to state the facts of Writ Petition No.3489 of 1999.
 
Writ Petition No. 1662 of 1997
 
The writ petitioner, Bilkis Akhter Hossain, is the wife of the detenue, Mr. Khandakar Mosharaf Hossain, who was arrested on 20-03-1997 under Section 54 of the Code of Criminal Procedure. At the relevant time he was a Member of Parliament from the Constituency No. 249, Comilla-2.  Thrice he was elected a Member of Parliament from the said Constituency. He was a Member of the Standing Committee of Bangladesh Nationalist Party (BNP). He was the Minister in-charge of the Ministry of Energy and Mineral Resources and the Ministry of Home Affairs. The detenue obtained his PhD degree from the Imperial College, the University of London. He was a teacher of the University of Dhaka. On 20-03-1997 in the morning he was picked up from his residence by the police without any order or warrant of arrest and then he was sent to Dhaka Central Jail. When he was arrested and sent to jail neither the order of detention nor the grounds of detention were served upon him. By a Supplementary-Affidavit the order of detention as well as the grounds of detention was submitted to the High Court Division by the respondent No. 1 wherein it has been revealed that the order of detention was served upon the detenue on 20.03.1997 and the grounds of detention were served upon the detenue on 28-03-1997. It is stated that the detenue was detained under the Special Powers Act, 1974  unlawfully and without jurisdiction. He was detained to suppress his political movement and also for political victimization. The detaining Authority has exercised its power with malafide intention and there is no nexus in between the order of detention and the grounds of detention. The order of detention was violative of the fundamental rights guaranteed under the Constitution.
 
The present appellant as respondent no. 1 filed an Affidavit-In-Opposition to the writ petition denying the allegations made therein stating, inter alia, that the detenue was arrested on 20-03-1997 under section 54 of the Code of Criminal Procedure and on the same day an order of detention was issued and served upon him. The detenue was provided with all facilities in the custody as per Jail Code.  A procession of unruly people numbering about 1500/1600 on 24-2-1996 at 4.40 P.M. led by the detenue and others without provocation attacked 4/5 police constables causing serious bleeding injuries. They also damaged a running mini bus bearing No. Dhaka Metro Ja-11-688 by throwing brick bats and bombs breaking the glass of the said mini bus and thereby they assaulted Kamruzzamn, a Photo Journalist of ‘The Daily Dainik Bangla’. While the detenue and other persons were proceeding towards BNP Office, Naya Paltan, at the instance of the detenue some persons of the said procession assaulted one pedestrian causing injury at 5-30 P.M. and when police on duty tried to rescue the said injured man the detenue along with others threw hand bombs, cocktails, brick bats etc to the police and created lawlessness in the area causing prejudicial activities and they also damaged several vehicles namely, Motor cars bearing Nos. Dhaka Metro- Ja-63-6960, Dhaka Metro Ga-11-3886, Dhaka Metro Ga-2155, Dhaka Metro Cha-7419 and Dhaka Metro Cha-8694 and caused damages to the private and government properties. The detenue held a meeting on 19-3-1997 between 4 to 6 P.M. in front of the National Press Club and with malafide intention delivered exciting and provocative speech and thereby the audience became excited and unruly and threw brick bats and damaged several hotels of the locality including the Hotel Century and also damaged sign board and window glass of the Clinic of the Central Secretariat.  They   also assaulted a local photographer who tried to take photograph of the said incident. The detenue and other leaders tried to dislocate the power generating plants in order to disrupt the electricity supply of the northern part of the country to lower down the image of the government. The detenue also instigated the workers of the Textile and Spinning Mills to create displeasure among them and thereby caused financial loss to the country and for this purpose in their party office the detenue and others held secret meetings with the workers of Bangladesh Biman, Power Supply and Textile and Spinning Mills on 03-03-1997, 10-03-1997 and 12-03-1997 respectively. The detenue by prejudicial activities caused sabotage on 14-3-1997 dismantling a gigantic electric tower of Manoher Khaghapara Power Grid at Pabna. Thus, the deteune indulged in prejudicial acts under the provisions of section 2 (f) (iii), (vi) and (vii) of the Special Powers Act, 1974.
 
The writ petitioner -respondent No. 1 filed supplementary-Affidavit and Affidavit-In- Reply denying the allegations made in the Affidavit –In- Opposition filed by the Writ Respondent No. 1-Appellant.
 
Writ Petition No. 3489 of 1999
 
The present respondent No.1, Nurul Amin being the younger brother of the detenue, Azaduddin, as the writ petitioner challenged the detention of the detenue stating, inter alia, that the detenu,  Azaduddin, is a freedom fighter and a University Graduate.  Twice he was elected Chairman of No. 7, Char Alexander Union Parishad under Ramgoti Police Station in the District of Laxmipur. Detenu was arrested on 30-08-1999 under Section 54 of the Code of Criminal Procedure with a prayer for detention and while in custody a detention order being No. 11 of 1999 was made by the District Magistrate, Laxmipur on 01-09-1999 and on the same day grounds of detention were served upon the detenue. Since 1986 there had been political rivalry between the BNP leaders and the J.S.D. leader A.S.M. Abdur Rab who was then the leader of the opposition and at his instance the detenu Azaduddin was arrested under the Special Powers Act, 1974 in 1989.  His detention was declared illegal by the High Court Division. The detenue Azaduddin was arrested under the Special Powers Act, 1974 on 14-10-1996 and his detention was declared illegal by the High Court Division.  Then the detenue Azaduddin was illegally and unlawfully removed from his office as Chairman of the local Union Parishad. Again he was re-elected the Chairman in December, 1997 and took over the charge of the Office of chairman in February, 1998. Then the detenue Azaduddin was falsely implicated in an arms Case on 12.8.1989. But he was acquitted by the Special Tribunal. In the grounds of detention dated 1.9.1999 a list of 14 specific cases and 9 G.D. entries was mentioned. Some cases were dismissed and some ended in final reports. It would be seen that last 8 cases and 7 G.D. entries were related to the period of Parliamentary Elections held in February and June, 1996. In all these cases he was released on bail. It is because of this fact that the detenue was arrested under Section 54 of the Code of Criminal Procedure on 30-8-1999 and to remove the detenue from the post of Chairman, and to prevent or obstruct the detenue in arranging his defence in the aforesaid criminal cases the impugned order of detention was passed which is illegal and void. No Affidavit- In- Opposition was filed on behalf of the writ respondent- appellant.
 
The High Court Division after hearing all the parties by Judgment and Order dated 7-4-1999  made the Rules Absolute in Writ Petition Nos. 1660 to 1663 of 1997 with direction  upon the writ respondent Nos.1 and 2-appellants to pay compensatory cost of Tk. 1,00,000/- to each of these detenues of 4 writ petitions and by judgment and order dated 29-09-1999 made the rule absolute in Writ Petition No. 3489 of 1999 with direction  upon the writ respondent Nos.1 and 2-appellants to pay compensatory cost of  Tk. 10,000/- to the Detenue and to  release them forthwith.
 
The appellants being aggrieved by the impugned judgments and orders of the High Court Division so far as those relate to orders for payment of monetary compensation or compensatory cost exercising jurisdiction under Article 102 of the Constitution, preferred these appeals by leave of this Court.
 
Leave was granted in all these appeals to consider the submissions of the learned Attorney General appearing for the appellants that a Court exercising jurisdiction under Article 102 of the Constitution cannot pass an order for payment of compensation or compensatory cost as no such provision has been made in Article 102 of the Constitution and determination of such compensation is dependant  on evidence which is not taken in writ jurisdiction and that the High Court Division exercises writ jurisdiction only on application of  parties and the writ petitioners having not prayed for compensation or compensatory cost  in the writ petitions the High Court Division was wrong in granting the relief of monetary compensation or compensatory cost without such prayer.
 
Mr. Murad Reza, the learned Additional Attorney General, in all these appeals made identical submissions to the effect that the High Court Division exercising jurisdiction under Article 102 of the Constitution is not competent to pass an order for payment of compensation or compensatory cost as the constitution itself does not authorise the Court to grant such compensation or compensatory cost and there is no such provisions in Article 102 of the Constitution. He then submits that the awarding and determination of compensation being dependent upon taking evidence which is not taken in writ jurisdiction the High Court Division erred in law in awarding monetary compensation and as such the appeals are liable to be allowed. The learned Additional Attorney General finally submits that the High Court Division having exercised jurisdiction upon application of the parties and the said parties having not prayed for any cost or compensation the High Court Division erred in law awarding compensation.
 
Mr. Moudud Ahmed, the learned Senior Advocate appearing for the respondents in Civil Appeal Nos.90-93 of 2000 submits that the High Court Division passed the impugned judgments and orders in exercising jurisdiction under Article 102 of the Constitution for passing orders of monetary compensations or compensatory costs and as such the appeals are liable to be dismissed. Mr. Moudud Ahmed then submits that since the detenues’ fundamental right to freedom  of assembly, right to protection of life and personal liberty as guaranteed by the Constitution have been invaded by the Detaining Authority  under the garb of Special Powers Act, 1974 and that the detention of the detenues is absolutely  illegal and without  lawful authority and that the detenues have been depicted as  leaders of the terrorists and instigators of the saboteurs and thereby caused irreparable damage to their reputation, honour and dignity and that they were deprived  of their normal avocation of life for several  days and that the detentions were malafide and made for political victimization and they have been forced to spend huge sum of money as litigation costs and as such the High Court Division rightly awarded the monetary compensations and compensatory costs to be paid by the appellants to the detenues  and the appeals are liable to be  dismissed.
 
We have perused the leave petitions, impugned judgments and orders passed by the High Court Division, leave granting order, concise statements filed by the appellants and other materials on record. The first question to decide is whether, the High Court Division in exercise of its jurisdiction under Article 102 of the Constitution is empowered to award monetary compensation or compensatory cost to a victim in a case of the violation of fundamental rights. If the answer is in the affirmative then the next question to answer, is whether on the facts and in circumstances of the instant cases the writ petitioners have made out a case for demand of monetary compensation or compensatory cost. Finally, the question is whether the detenues are entitled to get such compensation or compensatory cost. Generally, the recognized principle of law is that the victims are entitled to get compensation enforced through the civil Court.   The victims can claim compensation in tort for the injury caused to their persons or property. But it takes long time for a victim to get a decree for damages or compensation through civil Courts. The Constitution of Bangladesh guarantees fundamental rights under Part III of the Constitution providing remedies for enforcement of such rights. The preamble of the Constitution envisages the fundamental aim of the state for ensuring rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, through democratic process for all citizens. It means substantial degree of economic, political and social equality is to be ensured to the citizens. The Constitution, as stated in the preamble, contemplates a welfare state which has been further strengthened by the fundamental principles of State Policy set out in part II of the Constitution incorporating the economic, social and political objectives of the State which may be described as the conscience of the Constitution. These principles shall be fundamental to the governance of Bangladesh and a guide to the interpretation of the Constitution and other laws of Bangladesh but these shall not be judicially enforceable as contemplated in Article 8 of the Constitution. The right to move the High Court Division in accordance with clause (1) of Article 102 for enforcement of the rights conferred by Part III is guaranteed as per provisions of Article 44(1) of the Constitution.
 
At this juncture we are required to expound the ambit and scope of the powers of the High Court Division under Article 102 of the Constitution. In the case of Dr. Mohiuddin Farooque Vs Bangladesh and others reported in 49 DLR (AD)1 at page 13 Para 40 while interpreting the powers of the High Court Division under Article 102 and dimension of such powers this Court observed as under: ‘‘....................................................................................Article 102 of our Constitution is not an isolated island standing above or beyond the sea-level of the other provisions of the Constitution. It is a part of the over-all scheme, objectives and purposes of the Constitution. And its interpretation is inextricably linked with the (i) emergence of Bangladesh and framing of its Constitution. (ii) the Preamble and Article 7, (iii) Fundamental Principles of State Policy, (iv) Fundamental Rights and (v) the other provisions of the Constitution.’’
 
While discussing on point (i) emergence of Bangladesh and framing of its Constitution, this Court in unequivocal terms opined that ‘‘It is the fruit of a historic war of independence, achieved with the lives and sacrifice of a telling number of people of a common cause making it a class part from other Constitutions of comparable description. It is a Constitution in which the people feature as the dominant actor. It was the people of Bangladesh who in exercise of their own self-proclaimed native power made a clean break from the past unshackling the bondage of a past statehood and adopted a Constitution of its own choosing. The Constitution, historically and in real terms, is a manifestation of what is called “the People’s power”. The People of Bangladesh, therefore, are central, as opposed to ornamental, to the framing of the Constitution.’’
 
In discussing point (ii) the Preamble and Article 7 this Court observed ‘‘It is in our Constitution a real and positive declaration of pledges, adopted, enacted and given to themselves by the people not by way of a presentation from skilful draftsmen, but as reflecting the ethos of their historic war of independence. Among other pledges ............... .............................................. a pledge to secure for all citizens a society in which the rule of law, fundamental human rights and freedom, equality and  justice, political, economic and social and the affirmation of the sacred duty to safeguard, protect and defend the Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh are salutary in indicating the course or path that the people wish to tread in the days to come. Article 7 of the Constitution bestows the powers of the Republic with the people and the exercise of the people’s power on behalf of the people shall be affected only under and by the authority of the Constitution. Article 7 does not contain empty phrases.
 
It means that all the legislative, executive and judicial powers conferred on the Parliament, the Executive and the Judiciary respectively are constitutionally the powers of the people themselves and the various functionaries and institutions created by the  Constitution exercise not their own indigenous and native powers but the powers of the people on terms expressed by the Constitution. The people, again, is the repository of all power under Article 7.”
 
As regards point (III) fundamental principles of State policy this court observed that Article 8(2) of the Constitution envisages that the principles set out in Part II of the Constitution shall be a guide to the interpretation of the Constitution and the other laws of Bangladesh. While discussing point (iv) fundamental rights it has been observed that part III of the Constitution enumerates fundamental rights of citizens and other residents of Bangladesh.  On the application of any person aggrieved the High Court Division under Article 102 of the Consititution is empowered to give directions or orders as may be appropriate for the enforcement of fundamental right. The right to move the High Court Division in accordance with Article 102 (1) for the enforcement of fundamental rights is guaranteed as per provision of Article 44 (1). Article 102 (1) is, therefore, termed as mechanism for the enforcement of these rights and Article 102 (1) cannot be divorced from part III of the constitution. As regards point (v) the other provisions of the Constitution it has been observed that these may also come to play a role in interpreting Article 102. Having considered all these forgoing  points this court observed: ‘‘ Article 102 therefore is an instrumentality   and a mechanism, containing both substantive and procedural provisions, by means of which the people as a collective personality, and not merely as a conglomerate of individuals, have devised for themselves a method and manner to realise the objectives, purposes, policies, rights and duties which they have set out for themselves and which they have strewn over the fabric of the Constitution.”
 
While discussing the ambit and scope of the powers of the High Court Division under Article 102 of the Constitution we have already pointed out that it is a part of the overall scheme, objective and purposes of the constitution and its interpretation is in inextricably linked with the emergence of Bangladesh and framing of the Constitution, the preamble and Article 7, fundamental principles of State policy, fundamental rights and other provisions of the Constitution. The emergence of Bangladesh is the fruit of a historic struggle for national liberation   achieved with the lives and sacrifices of millions of people starting from the Language Movement of 1952, Movement Against the Education Commission’s Report, 1962, Six-Points Movement of 1966 led by Bangabandhu, Eleven Points Movements of Students, 1969, Declaration of Independence on 26th March, 1971 followed by the National War of Independence, 1971. In our Constitution people feature as the dominant actor and it is the manifestation of the peoples power. In the preamble of the Constitution, real and positive declaration of pledges adopted and given to themselves by the people reflecting the ethos of the historic struggle for national liberation which is culminated in the national war of independence, 1971. Among other pledges a pledge to secure for all citizens a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social and the affirmation of the sacred duty to safeguard, protect and defend the Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh are salutary in indicting the cause that the people wish to tread in the days to come.  In the 8th Amendment Case 1989 BLD(Spl)1 at page 61 this Court while analysing Article 7 found that it declares the supremacy of the Constitution and that the Supreme Court has “plenary judicial power for maintenance of the Supremacy of the Constitution.” This clearly refers to the plenary power of the High Court Division of the Supreme Court under Article 102 of the Constitution for maintenance of the supremacy of the Constitution by judicial review. In Khandakar Delwar Hossain and others –Vs- Bangladesh Italian Marble Works Ltd and others, 2010 BLD(Spl)1 at page 48 this Court observed that Article 7 is “the touch-stone in the Construction of the Constitution and provides for undoubted supremacy of the Constitution”. Article 7 bestows the power of a Republic with the people and the exercise of the people’s power on behalf of the people shall be exercised only under and by the authority of the Constitution. All the powers conferred on the three organs of the State are constitutionally the people’s power and the various functionaries and institutions created by the Constitution exercise the powers of the people on terms expressed by the Constitution only under and by the authority of the Constitution. Fundamental principles of State policy contained in part II of the Constitution shall be a guide to the interpretation of the Constitution. On the application of any person aggrieved under Article 102(1) of the Constitution the High Court Division is empowered to give directions or orders as may be appropriate for the enforcement of fundamental rights. The right to move the High Court Division in accordance with Article 102(1) for enforcement of fundamental rights is guaranteed as per provisions of Article 44(1) of the Constitution. The other provisions of the Constitution may also come to play a role in interpreting the Article 102 of the Constitution. The powers of the High Court Division under Article 102 of the Constitution to enforce fundamental rights as enshrined in Part III of the Constitution is very wide [Government of Bangladesh –Vs-  Ahmed Nazir 27 DLR (AD) 417] . As discussed above it may be termed as the plenary power of the High Court Division. Though the Constitution does not expressly state the nature of the relief which may be granted yet it has been left to the High Court Division to grant the relief according to the circumstances of a given case by exercising its plenary powers under Article 102 of the Constitution to give directions and orders as may be appropriate for the enforcement of fundamental rights. Because Article 102 is an instrumentality and a mechanism by means of which the people   have desired for themselves a method and a manner to realise the objectives, rights and duties which have been set out and strewn over the fabric of the Constitution. The power to grant compensation or compensatory cost is not barred by any provision of the Constitution or any law of the land. The Privy Council in the case of Mahraja -Vs- Attorney General of Trinidad and Tobago (1978) 2 All ES 670 held that an order for monetary compensation by way of redress for contravention of the basic human rights and fundamental freedoms can be permitted even though it has not been expressly provided in Section 6 of the Constitution of Trinidad and Tobago. In this case Lord Diplock observed:- “ The jurisdiction  to make such an order is conferred on the High Court by Para (a) of Section 6(2), viz, jurisdiction to hear and determine any application made by any person in pursuance of Sub-section (1) of this Section.” His Lordship finally observed:  “The claim is not a claim in Private Law for damages for the tort of false imprisonment under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in Public Law for compensation for deprivation of liberty alone.”   
 
Article 102(1) read with Article 44 (1) of the Constitution of Bangladesh and Article 32 of the Indian Constitution convey identical provisions in respect of power of the High Court Division of the Supreme Court of Bangladesh and the Supreme Court of India respectively for enforcement of the fundamental rights for awarding relief for breach of the fundamental rights committed by the government or any statutory authority. Articles 32 and 226 of the Indian Constitution contemplate the authority and power of the Supreme Court and the High Courts of India respectively to issue whatever direction, order or writs that may be appropriate in a given case for the enforcement of fundamental rights and further under Article 226 for any other purpose which will include the enforcement of public duties by public bodies. Under Article 32(1) of the Indian Constitution right to move the Supreme Court for enforcement of fundamental rights is guaranteed which is itself a fundamental right and Article 32 (2) empowers the Supreme Court to issue orders, directions or writs including writs in the natural habeas corpus, mandamus, prohibition, quo-warrant, certiorari for the enforcement of any of the rights conferred by Part III of the Indian Constitution. On a meticulous examination of the provisions of Article 102 read with Article 44 (1) of the Constitution of Bangladesh and along with the provisions of Article 32 of the Constitution of India it can be seen that Article 32 (1) provides for the right to move the Supreme Court for enforcement of fundamental rights conferred by Part III is guaranteed which is identical with the provisions contained in Article 44 (1) of the Constitution of Bangladesh. The provisions of Article 32 (2) of the Constitution of India in effect convey in full the identical provisions of Article 102 of the Constitutions of Bangladesh so far as it relates to the enforcement of the fundamental rights as conferred by Part III of the Constitution of Bangladesh.
 
We shall have to examine the case laws to find out whether this Court has affirmed the decisions of the High Court Division disposing of writ petitions by granting any award of monetary compensation or compensatory cost to a victim for violation of fundamental rights. In the case of Government of East Pakistan –Vs- Roushan Bijoya Shawkat Ali khan, 18 DLR (SC) 214 special leave was granted to consider the Constitutional questions raised subject to the conditions that all the costs of the respondents will be borne by the appellant-government and that the question of restoring the detention under the impugned order would be excluded altogether, whatever the result of the appeal. Accordingly, the Supreme Court held that the appeal would be dismissed and that the appellant would be required to pay the costs of the appeal as already provided for in the admitting order.
 
In the case of Government of West Pakistan and others –Vs-Begum Agha Abdul Karim Sherish Kashmiri: 21 DLR (SC) 1 page 16 the Supreme Court observed :-

“35. For the reasons, I have given, this appeal must in my view , be dismissed, but having regard to the fact that government has already undertaken to bear the expenses of the respondent for the hearing at Karachi, I would order that costs assessed at Rs. 2,000/00 only be allowed to the respondent in respect of this appeal.
36. A question was also raised as to validity of the order of the High Court directing the payment of Rs. 50,000/00 to the respondent for her expenses in this case. Since the transfer of the case to Karachi was at the request of the Government of West Pakistan and the Government had agreed to pay such expenses, I see no necessity of making any order in that behalf. The actual expenses, I have no doubt, will be worked out at the appropriate time on the basis of the relevant rules relating to the taxation of costs in the High Court and adjusted against the amounts, if any, advanced.”    
 
But it is difficult to find out any decision exactly to that point in our jurisdiction. However, any such question was raised for the first time before the Supreme Court of India in the case of Khatri –Vs- State of Bihar reported in (1981) 1 SCC 627 wherein Bhagwati, J, as he then was, observed “why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty ’’. In Saint Bir -Vs- State of Bihar (1982) 3 SCC 131 the question of granting compensation to the victim of the lawlessness of the State was left open. The Supreme Court of India in Veena Sethi –Vs- State of Bihar (1982) 2 SCC 583 echoed the same views holding that the question of compensation would still remain open. From the above discussions it can be said that the court had underlined the need for the protection of life and liberty against the violation of the right guaranteed under Article 21 of the Constitution by the State but did not grant any compensation.
 
The power of the Indian Supreme Court to pay compensation for infringement of fundamental rights was for the first time recognized in the case of Rudul Shah –Vs- State of Bihar AIR 1983 SC 1086 wherein monetary compensation was granted to a victim of State lawlessness on the part of the Government of Bihar for wrongfully detaining him   in custody for over 14 years after his acquittal from a conviction of murder. He filed a habeas corpus petition in the Supreme Court for his release from illegal detention. He further contended that he was entitled to be compensated for his illegal detention and that the Supreme Court ought to pass an appropriate order for the payment of compensation in the habeas corpus petition itself. The Supreme Court held that his detention in the prison after his acquittal was wholly unjustified and illegal and accordingly released him from detention. Having considered his prayer  for compensation for illegal detention  the Supreme Court further held that the state is liable to pay monetary compensation to the tune of Rs. 30,000/00 as an the interim measure in addition to the sum of Rs 5,000 already paid by it.  While passing the judgment of the Court Chandrachud, C.J. observed as under:

“The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner’s rights. It may have recourse against those officers.”
 
While describing the compensation as in the nature of a palliative for giving a better meaning to the right to life under Article 21 Chandrachud C.J. observed in the following terms :-

‘‘This order will not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring officials. The order of compensation passed by us is, as we said above, in the nature of a palliative. We cannot leave the petitioner penniless until the end of his suit, the many appeals and the execution proceedings.’’
 
In the case of M.C. Mehta and another -Vs- Union of India and others reported in AIR 1987 SC 1086 the Supreme Court of India held that under Article 32(1) it is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right and under Article 32(2) the court has the implicit power to issue whatever direction, order or writ is necessary in a given case i.e. apart from issuing direction it is empowered under Article 32 to forge new remedies and fashion new strategies designed to enforce the fundamental right. The Court further held that the power under Article 32 is not only confined to preventive measures to injunct infringement of fundamental rights but also includes remedial measures to  entertain  claims for damages for violation of fundamental rights to award compensation in appropriate cases.
 
In this case while considering the ambit and scope of the power conferred on the Supreme Court under Article 32 of the Constitution of India, Bhagwati, C.J. observed:

         ‘‘It may now be taken as well settled that Article 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitutional obligation that this Court has in the past innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights.’’
 
Bhagwati, C.J. further observed as under:

         ‘‘We are also of the view that this Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right and under Article 32 (1) the Court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. The power of the Court is not only injunctive  in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already committed vide Bandhua Mukti Morcha’s Case, (AIR 1984 SC 802) (supra). If the Court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated Article 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the Court can injunct such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32. That would, to a large extent emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile.  We must therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words “in appropriate cases” because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the Court in a petition under Article 32. The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex-facie glaring and either such infringement should be on a large scale affecting the fundamental right of a large number of persons or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the Civil Courts.  Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of Civil Court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32. This is the principle on which this Court awarded compensation in Rudul Shah Vs. State of Bilhar, AIR 1983 SC 1086. So also, this Court awarded compensation to Bhim Singh, whose fundamental right to personal liberty was grossly violated by the State of Jammu and Kashmir. If we make a fact analysis of the cases where compensation has been awarded by this Court, we will find that in all the cases, the fact of infringement was patent and incontrovertible, the violation was gross and its magnitude was such as to shock the conscience of the Court and it would have been gravely unjust to the person whose fundamental right was violated to require him to go to the Civil Court for claiming compensation.’’
 
Article 32 of the Constitution of India lays a constitutional obligation on the Supreme Court to protect the fundamental rights of the people and for that purpose the Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights, especially in the case of the poor and the disadvantaged people who are deprived of their fundamental human rights and to whom freedom and liberty have no meaning. There is no limitation in regard to the kind of proceedings envisaged in Article 32(1) except that the proceedings must be ‘appropriate’- not in terms of any particular form but appropriate with reference to the purpose of the proceedings viz. enforcement of fundamental rights. On a fair construction of Article 32(1), the expression ‘appropriate proceedings’ has reference to proceedings which may be appropriate having regard to the nature of the order, direction or writ which the petitioner seeks to obtain from the court.  Under Article 32 the court has power to award compensation in appropriate cases. However, it is only in exceptional cases of breach of a fundamental right that compensation may be awarded under Article 32. The Supreme Court in exercise of its jurisdiction under Article 32 can pass an order for payment of money if such order is in the nature of compensation consequential upon the deprivation of a fundamental right. There is no express provision in the Constitution of India for grant of compensation for violation of a fundamental right. But the Supreme Court has judicially evolved a right to compensation in cases of established unconstitutional deprivation of  life or personal liberty in “appropriate cases” where infringement of the fundamental right is gross and patent, that is, incontrovertible  and  ex-facie glaring or unjust or unduly  harsh or oppressive and its  magnitude was such as to shock the conscience of the Court and  where it would have been gravely unjust to the person whose fundamental right was violated to require him to go to court for claiming compensation.
 
Ireland has a written constitution guaranteeing fundamental rights without having any provision of remedy of compensation for the infringement of those rights. The Courts in Ireland  have adapted the same principle like  that of the Indian Courts in awarding monetary compensation against the State for its failure to protect the fundamental rights of the citizen thereby  the Courts of Ireland developed remedies including the award of damages, not only against individuals guilty of infringement, but also against the State itself. In the case of State Vs. Ryan (1965) IR 70 (122) the learned Chief Justice observed:

         ‘‘It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at naught or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of those rights. As a necessary corollary, it follows that no one can with impunity set these rights at naught or circumvent them, and that the Court’s powers in this regard are as ample as the defence of the Constitution requires.’’  
 
In Byrne V. Ireland (1972) IR 241 at page to 64, Walsh, J. while speaking about the Constitution of Ireland in respect of the rights of the citizens observed in the following terms:

         ‘‘In several parts of the Constitution, duties to make certain provisions for the benefit of the citizens are imposed on the State in terms which bestow rights upon the citizens and, unless some contrary provision appears in the Constitution, the Constitution must be deemed to have created a remedy for the enforcement of these rights. It follows that, where the right is one guaranteed by the State, it is against the State that the remedy must be sought if there has been a failure to discharge the constitutional obligation imposed.’’
 
The Privy Council in the case of Maharaja Vs. Attorney General of Trinidad and Tobago, (1978) 2 All ER 670 held that Section 6 of the Constitution of Trinidad and Tobago does not contain any express provision for payment of monetary compensation but it permitted an order for monetary compensation, by way of redress for contravention of the basic human rights and fundamental freedoms. Lord Diplock observed as under:

         “It was argued on behalf of the Attorney General that Section 6(2) does not permit of an order for monetary compensation despite the fact that this kind of redress was ordered in Jaundoo Vs. Attorney General of Guyana 1971 AC 972. Reliance was placed on the reference in the sub-section to ‘enforcing, or securing the enforcement of, any of the provisions of the said foregoing sections’ as the purpose for which orders etc. could be made. An order for payment of compensation, it was submitted, did not amount to the enforcement of the rights that had been contravened. In their Lordships’ view an order for payment of compensation when a right protected under Section I ‘has been contravened is clearly a form of redress’ which a person is entitled to claim under Section 6(1) and may well be the only practicable form of redress, as by now it is in the instant case. The jurisdiction to make such an order is conferred on the High Court by Para (a) of Section 6(2), viz. jurisdiction ‘to hear and determine any application made by any person in pursuance of sub-section (1) of this section’. The very wide powers to make orders, issue writs and give directions are ancillary to this.”
 
Lord Diplock further observed:

         “Finally, their Lordships would say something about the measure of monetary compensation recoverable under Section 6 where the contravention of the claimant’s constitutional rights consists of deprivation of liberty otherwise than by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone.”
 
In the case of Simpson Vs Attorney General (Baigent’s Case) 1994 NZLR 667 the Court of Appeal of New-Zealand while dealing with the enforcement of rights and freedoms as guaranteed by the Bill of Rights for which  no specific remedy was provided, having considered a catena of authorities from different jurisdictions, observed that “the courts are not only to observe the Bill in the discharge of their own duties but are able to grant appropriate and effective remedies where rights have been infringed.” Hardie Boys, J, observed: “ I see no reason to think that this should depend on the terms of a written Constitution. Enjoyment of the basic human rights are the entitlement of every citizen, and their protection is the obligation of every civilized State. They are inherent in and essential to the structure of society. They do not depend on the legal or constitutional form in which they are declared. The reasoning that has led the Privy Council and the Courts of Ireland and India to the conclusions reached in the cases to which I have referred (and they are but a sample) is in my opinion equally valid to the New-Zealand Bill of Rights Act if it is to have life and meaning”.
 
In the case of Nilabati Behera Vs. State of Orissa (1993)2 SCC 746 the Supreme Court of India held that its powers of enforcement of fundamental rights imposed a duty to “forge new tools,” of which compensation was an appropriate one where that was the only mode of redress available and this was a remedy in public law based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply. In this case damages were awarded by the Supreme Court of India against the State of Orissa to the mother of a victim beaten to death in police custody. The Supreme Court formed the opinion that in awarding a remedy in writ jurisdiction, the Court is required to consider not only the interests of the petitioner and the respondent but also those of the public as a whole with a view to ensuring that public bodies, officials or instrumentaties do not   violate law in discharging their public duty and do not commit any wrong in performing their public duty to protect the fundamental rights of the citizens.  In this case the Supreme Court gave a caution to identify  the situation to which separate proceedings and public law principles apply but with certain amount of circumspection and self restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law.
 
The Court of Appeal, New Zealand having relied upon the judgments of the Irish Courts and the Privy Council, referred to the principle of law enunciated in Nilabati Behera –Vs- State of Orissa and unanimously held regarding the grant of pecuniary compensation to the victim for the contravention of his rights guaranteed under the Bill of rights Act although there was no express provision to that effect in the Bill of rights.
 
From the foregoing discussions and findings it is well established that under Article 32 of the Constitution of India the Court has power to award compensation in appropriate cases. The expression ‘‘appropriate proceedings’’ contemplated in Article 32(1) means a proceeding which may be appropriate having regard to the nature of the order, direction or writ which the petitioner seeks to obtain from the Court. Article 32 envisages a constitutional obligation on the Supreme Court to protect the fundamental rights of the people and to that end in view the Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights, especially in the case of the poor and the disadvantaged people who are deprived of their basic human rights and to whom freedom and liberty have no meaning. The power of the Supreme Court is not only injunctive in ambit, that is, preventing the infringement of a fundamental right, but is also remedial in scope and provides relief against a breach of the fundamental right already committed. The power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases. Of course, the infringement of the fundamental rights must be gross and patent, that is, incontrovertible and ex-facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of person, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil Courts. Generally, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of Civil Court. It is only in exceptional cases of the nature indicated above, that compensation may be awarded in a petition under Article 32. The Supreme Court has wider power under Article 32(2) to issue whatever direction, order or writ that may be appropriate in a given case for the purpose of enforcement of a fundamental right. There is no express provision in the Constitution of India for grant of compensation for violation of a fundamental right. However, the Supreme Court has judicially evolved a right to compensation in cases of established unconstitutional deprivation of life or personal liberty. The power of the Supreme Court of India under Article 32 and that on the High Courts under Article 226 are plenary powers and are not fettered by any legal constraints. The expressions used in Articles 32 and 226 of the  Constitution of India are very wide and the power of the Supreme court as well as of the High Courts in India extend to issuing   orders, writs, or directions including writs in the nature of habeas corpus, madamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and further in the case of High Courts, for other purposes as well which means amongst others the enforcement of public duties by public bodies. Article 32 provides in some respects, for effective remedy than Article 226 but the scope of the remedy is clearly narrower because it is restricted solely to enforcement of fundamental right. In the case of Bandhua Mukti Morcha –Vs- U.O.I. reported in AIR 1984 SC. 412 the Supreme Court of India held that the interpretation of Article 32 should be guided not by any verbal or formalistic canons of construction but by the paramount object and purpose for which the article has been enacted and it should be interpreted in the light of the preamble, the fundamental rights  and the Directive Principles. Article 226 is framed/written in a wide language in order not to confine the power conferred by it on the High Courts only to the power to issue prerogative writs. The High Courts exercising jurisdiction under Article 226 can issue ‘directions, orders or writs’ so as to enable the High Courts to reach injustice wherever it is found and to grant the reliefs to meet the peculiar and complicated requirements of the country. The High Court’s power under Article 226 can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the  provisions of the Act for the appropriate relief.
 
In view of foregoing observations and findings we are of the view that the provisions of Article 102 read with Article 44(1) of the Constitution of the People’s Republic of Bangladesh are identical with those of the Article 32 of the Indian Constitution so far as those relate to the enforcement of fundamental rights.  We have already pointed out  that the interpretation of Article 102 should be guided by the paramount object and purpose for which the Article has been enacted and its interpretation is inextricably  linked with the (i)  emergence of Bangladesh and framing of its Constitution, (ii) the preamble and Article 7, (iii)  Fundamental Principles of State Policy, (iv) Fundamental rights and (v) the other provisions of the Constitution. In the Judgment delivered by this Court in the 8th Amendment Case,  Article 7  has been termed, as the Pole-Star  of our Constitution  which declares “the supremacy of the Constitution” because  the Supreme Court has been equipped  with plenary  judicial power for maintenance of the  supremacy of the Constitution. In the 5th Amendment case this Court has declared Article 7 as the “touch-stone in the construction of the Constitution” which provides for undoubted Supremacy of the Constitution.  Article 7 bestows all powers of the Republic with the people and the various functionaries and institutions including the High Court Division exercise the people’s power on their behalf. The power of the High Court Division under Article 102 is very wide and is not fettered by any legal constaints in the enforcement of the fundamental rights inasmuch as the High Court Division has powers to issue such directions and orders as may be appropriate for the enforcement of fundamental rights conferred by Part III of the Constitution. Moreover, Article 44(1) provides that right to move High Court Division under Article 102(1) for the enforcement of fundamental right is also a fundamental right. Therefore, it is the constitutional obligation of the High Court Division to give directions, orders as may be appropriate for the enforcement of fundamental right. The power of the High Court Division under Article 102(1) is not only injunctive in ambit but also remedial in scope to provide any relief against a breach of fundamental right already committed which may include the power to award compensation in appropriate cases.  In this context we reiterate with approval the observation of the Supreme Court of India in the case reported in AIR 1987 SC 1086 to the following effect:  “ We are deliberately using   the words ‘in appropriate cases’ because we must make it clear that  it is not  in every case where there is a breach of a fundamental right committed by the violator that compensation would be  awarded by the Court in a petition under Article 32.” In awarding and determination of compensation the High Court Division, in an appropriate case if it deems necessary, may   take evidence to clear any disputed question of facts or pass any direction or orders to  hold an inquiry  by a District Judge for removing any controversy as  was done in the case reported in (1993) 2 SCC 746. Having considered the development of the law regarding compensatory jurisprudence with reference to the experience in India,  Ireland, Privy Council and the Court of  Appeal in New-Zealand, we have no hesitation in holding that  the paramount object and purpose for which Article 102 has been enacted and the relevant factor and provision on which the interpretation of the Article 102 has been linked, the High Court Division in exercise of its jurisdiction under Article 102 of the Constitution, which is an instrumentality and a mechanism, containing both substantive and procedural provisions “ to realise the objectives, purposes, polices, rights and duties which [the people] have set out for themselves and which they have strewn over the fabric of the Constitution,” can award monetary compensation or compensatory cost mostly in appropriate cases for violation of fundamental rights which must be gross and patent i.e. incontrovertible and ex-facie glaring  or that violation should appear unjust, unduly harsh or oppressive on account of the victims disability or personal circumstance. Therefore, the High Court Division should bear in mind the social conditions and circumstances of the country where sometimes wild allegations are being made against the law enforcing agencies, for no fault of their own, alleging gross violation of fundamental rights but at the same time in certain cases excess committed by the law enforcing agencies thereby causing gross violation of fundamental rights cannot be ruled out. That is why the Court has to act firmly but with certain amount of circumspection and self-restraint, lest proceedings under Article 102 are misused as “appropriate cases” or “a disguised substitute for civil action in private law”. It is only in the exceptional cases of the nature indicated above that compensation or compensatory cost may be awarded to a victim in a petition properly drawn under Article 102 of the constitution. The violation must be gross and its magnitude must be such as “to shock the conscience of the Court” and it would be gravely unjust to the person whose fundamental right was violated to require him to go to the Civil Court for claiming compensation. As we have already found the answer to the question No. 1 is in the affirmative then the next question to answer is whether on the facts and in the circumstances of the instant cases, the detenues are entitled to get such compensations or compensatory costs as awarded by the High Court Division.
 
On careful scrutiny of the impugned judgments and orders passed by the High Court Division and other materials on record the following discrepancies and mistakes have been found:
  1. The Court’s observation on confidential report is wrong in facts and law. It appears that such observations of the Court is based on surmises and conjectures, which is not supported   by any evidence or materials on record.
  2.  There was no allegation of inhuman physical and mental torture of the detenues in the writ petitions and the related affidavits. The High Court Division fully relied on the submissions of the learned Senior Advocate for the writ petitioners and as there was no such allegation the Respondent-Government had no opportunity to refute the same allegations of   physical and mental torture in jail custody. The writ petitioners neither in the writ petitions nor in the Supplementary Affidavits nor in the Affidavits-In-Reply made any specific statement regarding inhuman mental and physical torture on the detenues in jail custody with supporting materials and as such the High Court Division acted without lawful authority in taking such submissions into consideration in passing the impugned judgments and orders in the absence of such statements made by the writ petitioners.
  3. There was no statement in the writ petitions, Supplementary–Affidavits and Affidavits-In-Reply to the effect that the detenues were not provided with minimum facilities according to their status in jail custody for several days. This allegation was for the first time made by the learned Senior Advocate for the writ petitioners in his submissions before the High Court Division. Moreover, the writ respondent-appellant had no opportunity to controvert those statements as the same was not made in the writ petitions and the related affidavits.
  4. As no prayer was made regarding exemplary monetary costs or monetary compensations in the writ petitions and related affidavits, the High Court Division erred in law in fully relying on the submissions of the learned Senior Advocate for the writ petitioners in passing the orders for monetary compensation or compensatory costs and as such they said orders have been made without lawful authority and are liable to be set aside. 
On careful scrutiny of the writ petitions, impugned judgments, Affidavits-In-Opposition and other relevant documents on record it appears that there was no allegation of physical and mental torture. Apart from the vague and indefinite allegations without any supporting documents that the detenues were in inhuman condition in the Jail there was no other statement in the writ petitions. The submission of Mr. Moudud Ahmed before the High Court Division is bereft of any merit and without having any basis or statement to that effect in the writ petitions it raised disputed question of facts not being supported by any sworn affidavit or admitted facts or material evidence on record.  However, considering the facts and circumstance of the case, we are of the view that there was no malice on the part of the appellants as alleged by the writ petitioners in the writ petitions and the violation of fundamental right was not being gross and patent and ex-facie glaring or the violation was not unjust and unduly harsh or oppressive the High Court Division erred in law in awarding monetary compensation and compensatory cost which cannot be passed unless it is specifically proved and claimed in an appropriate case as stated above. The writ petitioner failed to make out an appropriate case and as such the impugned decision of the High Court Division in awarding a lump sum monitory compensation in each of these cases must be held to have been made without lawful authority. It is unfortunate to note with utter disgust that the learned Judges of the High Court Division have taken upon themselves the responsibility in purportedly making out a case of inhuman physical and mental torture without any basis. This kind of misadventure of the concerned Judges of the High Court Division while passing and making such orders with total non-application of mind is fully disapproved. In these cases the conduct of the learned Judges is highly disapproved. It is difficult to reconcile why the High Court Division has invented causes of compensations or compensatory costs in these cases where the writ petitioners had not made out such cases and even no such basis or statements and prayers were ever made in  all of the  writ petitions. It is expected that a court should not make any sweeping remark or irrelevant observation in a case and identify itself to the cause of any of the parties to a case on which it is adjudicating. In the writ petitions no statement was made on the issue of allegedly not providing minimum facilities to the detenues while in custody for several days. Such submissions of the learned Senior Advocate for the petitioners were not supported by any evidence and statement to that effect made in the writ petitions is nothing but after thought.
 
In the case of Hefzur Rahman (Md) -Vs- Shamsun Nahar Begum and another reported in 51 DLR (AD) page 172, this Court observed as follows:

         “The law requires that the relief must be specifically claimed either simply or in the alternative. It is true that general or other relief which the Court may think just may be granted although not specifically asked for. But the essential conditions are that, the averments in the plaint must justify such relief and the defendant must get an opportunity to contest such relief. In the name of granting general or other relief the Court cannot and would not mount any surprise on the defendant and make him liable for something which does not arise out of the plaint and, as such, he had no occasion to answer the same. This is merely an extension of the principle of natural justice.”
 
In the instant cases, it appears that neither in the writ petitions, nor in the Supplementary Affidavits nor in the Affidavits-In- Reply the writ petitioners made any statement regarding the so-called inhuman mental and physical torture of the detinues in the jail custody as alleged by Mr. Moudud Ahmed the learned Senior Advocate for the petitioners, in his submissions. The High Court Division acted without lawful authoring in taking into consideration such submissions in the absence of any basis or statements to that effect made by the petitioners in the writ petitions and connected affidavits. The High Court Division erred in law in making the observation that the learned State lawyer did not even dare to refute such allegations brought by Mr. Ahmed where there was no such case was made out and no such statements were ever made in the writ petitions. It is unfortunate to note that the High Court Division failed to take notice of the fact that the detenues were not the petitioners in those cases and that the learned Additional Attorney General appearing for the Government had no obligation to refute any allegation of fact disclosed in the submissions of the learned Senior Advocate for the writ petitioners unless the same was stated in the writ petitions, the Supplementary-Affidavits and the Affidavits-In-Reply with supporting materials. The High Court Division therefore acted without jurisdiction in relying on the submissions of Mr. Moudud Ahmed as the basis for awarding compensation. In the case of Bangladesh-Vs- Chairman, Court of Settlement and others reported in 51 DLR (AD) 87 at page 88 Para 2 this Division  approved the submission of the writ respondent to the following effect:

“In awarding cost, particularly, if it be a very heavy one like in the present case, the Court should give reasons otherwise it may appear to be an arbitrary or indiscreet exercise of discretion.”

In view of the  established principle of law that the Court should assign a reason in awarding cost or compensation otherwise it may appear to be arbitrary or indiscreet exercise of power or discretion with regard to realization of the same, the impugned order directing the defendant-Government mainly the respondent Nos. 1-2  to pay compensation or compensatory cost to the detenues in the writ petitions  for detaining them with the alleged ground of malafide intention is arbitrary or indiscreet exercise of power or discretion and as such the impugned orders have been passed without lawful authority. In the case of Bangladesh –Vs. Sheikh Hasina 60 DLR (AD) 90 at Para 44-46, this Court held that the relief must be specifically claimed but in the name of “general or other relief” the Court cannot and would not mount any surprise on the defendant and make  him liable for something which does not arise out of the plaint and, as such, he had no occasion to answer the same. On the facts and in the circumstances of these instant cases, neither the appellant Government nor the Government servants be specially made liable to pay compensations to the detenues.

We have already found that in these instant cases,  there was no foundation in the writ petitions or prayer for exemplary, monetory compensation and compensatory costs was ever made in the writ petitions  and connected  affidavits rather on the prayer of the learned Senior Advocate for the writ petitioners the  learned Judges of the High Court Division on mere surmises and conjectures wrongly observed “We being satisfied upon the material on record hold the view that it is a fit case where justice demand an exemplary monetary compensation for the detenue from the Respondent Nos. 1 and 2.” But the learned Judges of the High Court Division failed to refer to any such material on record because there was no such foundation in the writ petitions and connected affidavits and in fact no such material on record was found in the instant cases. It is well established that compensation or relief must be specifically prayed for in the writ petition but not in the name of general or other relief. For the aforesaid reasons, we are of the view that the impugned judgments and orders passed by the High Court Division have been made without any lawful authority.

Accordingly, we find merit in all these appeals.

In the result, all these appeals are allowed. The impugned Judgments and Orders passed by the High Court Division in the aforesaid writ petitions so far as those relate to the payment of lump sum monetary  compensation of Tk. 1,00,000/-(Taka One lakh only) to each of the detenues in writ petition Nos. 1960 to 1963 of 1997 to be paid by the Writ Respondent Nos. 1 and 2 and compensatory cost of Tk.10,000/- (Taka ten thousand only) to the detenue in Writ Petition No. 3489 of 1999  to be paid by the Writ Respondent No. 2 are hereby set aside. 

Ed.