Pankaj Bhattacharya and others Vs. Bangladesh and others 2017 (2) LNJ 203

Case No: Writ Petition No. 12042 of 2014

Judge: Gobinda Chandra Tagore. J.

Court: High Court Division,

Advocate: Mr. Subrata Chowdhury, Mr. A.S.M. Nazrul Haque,

Citation: 2017 (2) LNJ 203

Case Year: 2016

Appellant: Pankaj Bhattacharya and others

Respondent: Bangladesh and others

Subject: Writ Jurisdiction

Delivery Date: 2017-11-15

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION) 

Gobinda Chandra Tagore, J.

And

Abu Taher Md. Saifur Rahman, J.

Judgment on

08.09.2016

}

}

}

}

}

}

Pankaj Bhattacharya and others

. . .Petitioners

-Versus-

Bangladesh, represented by the Secretary, Ministry of Liberation War Affairs and others

. . .Respondents

Jatiya Muktijoddha Council Ain (VIII of 2002)

Section 7(Jha)

The council is authorised to make any recommendation to the government for cancellation of any forged and false certificate or verification as freedom fighter only. However, the impugned notification does not disclose that the list of the members of the said special Guerrilla Force published in the earlier notification dated 22.07.2013, was either forged or false; rather it was published after scrutiny. The law does not bar to certify jointly all the members of the freedom fighters, who fought under a command. Since there is no provision in the law as to whether each and every freedom fighter has to apply individually or jointly, we do not find any illegality in publishing the notification dated 22.07.2013. Accordingly, there is no cogent reason in canceling the earlier notification dated 22.07.2013 by the impugned notification dated 29.10.2014 published in the Gazette notification on 05.11.2014.                                       ...(33 to 34 and 36)

Mr. Subrata Chowdhury with

Mr. Md. Zahedul Bari,

Mr. Tabarak Hossain,

Mr. S.M.A. Sabur,

Mr. Golam Mohammad Chowdhury,

Mr. Nafis Ahmed Chowdhury,

Mr. Md. Shafiqur Rahman,

Ms. Masuda Rehana Begum,

Mr. Md. Rajab Ali,

Ms. Fatema Sultana,

Mr. Md. Nasimul Hasan, Advocate

. . . For the petitioners

Mr. A.S.M. Nazmul Haque,  D.A.G. with

Mr. Bibhuti Bhushan Biswas, A.A.G.

Mr. Sadhan Kumar Banik, A.A.G.

. . . For the respondent Nos.1-2

Mr. S.M. Rezaul Karim,  Advocate

. . . For the respondent No.3

JUDGMENT

Gobinda Chandra Tagore, J: On an application under Article 102(2)(a)(ii) of the Constitution of the People’s Republic of Bangladesh, the Rule Nisi was issued calling upon respondents to show cause as to why the Notification vide Memo No. 48.00.0000. 004. 75.105 (Angsha-2)2012-1488 dated 29.10.2014 published in the Bangladesh Gazette on 05.11.2014 under the signature of respondent No.2, Annexure-C cancelling the Gazette Notification under Memo No. 48.00.0000.004 .37.149.2013-439 dated 22.07.2013 containing the name of 2367 Freedom Fighters of theeÉ¡f-L¢jE¢eø f¡¢¡VÑ-R¡œ CE¢eue ¢h­no ®N¢lm¡ h¡¢qe£”, Annexure-B by virtue of the power conferred at serial No.6 of list No.41, Schedule No.1 to the Rules of Business (Allocation of Business), 1996 as per the recommendation of the 25th meeting of the Jatiya Muktijoddha Council held on 13.10.2014 purporting to act under section 7 (Jha) of the Jatiya Muktijoddha Council Ain, 2002 should not be declared to have been done without lawful authority and is of no legal effect and/or why such other or further order or orders as to this court may seem fit and proper, should not be passed.

2.            Pending hearing of the Rule Nisi, the operation of the Notification vide Memo No. 48.00.0000.004.75.105 (Angsha-2)2012-1488 dated 29.10.2014 issued under the signature of respondent No.2 published in the Bangladesh Gazette dated 05.11.2014 as contained in Annexure-C was stayed initially for a period of 3(three) months. The order of stay was subsequently extended from time to time.

3.            After issuance of the Rule Nisi, the other petitioners were added as co-petitioners upon their respective applications.

4.            The averments made by the petitioners in the Writ Petition as well as their in the Supplementary Affidavit are, in brief, as follows:

         The petitioner No.1 is a Freedom Fighter and a political leader. During the War of Liberation 1971, he was a member of the Central Committee of the National Awami Party (NAP). After the Independence of Bangladesh, the petitioner No.1 was elected as the General Secretary of the Central Committee of the NAP. At present, he is the President, Central Committee of the United National Awami Party. From his student life, the petitioner No.1 took an active role in the student movement of the 1960’s against the Marshal-Law-Regime of Ayub Khan. At that time he was the Executive President of the then East Pakistan Students’ Union, after the independence of Bangladesh, Bangladesh Students’ Union (BSU). For his leading role in the student movements and also in the mass movements, he was imprisoned in jail on several occasions by the then Pakistani Autocratic Regime. From the 1st March 1971, when General Yahia Khan, the then President and Chief Marshal-law-Administrator of Pakistan postponed the Session of the National Assembly sine die, the petitioner No.1 and other leaders of the NAP, the Communist Party of the then East Pakistan, after the independence of Bangladesh, the Communist Party of Bangladesh (CPB) and the BSU had been taking preparation for armed resistance against the Pakistani Army and for formation of armed forces for the liberation struggle. On the 26th March 1971, Bangabandhu Sheikh Mujibur Rahman formally declared the Independence of Bangladesh and called upon the peoples of Bangladesh to resist the occupied Pakistani Army through armed struggle and to liberate Bangladesh.

5.            The history of our liberation has been a history of prolonged struggles of the people of Bangladesh to achieve the right of their emancipation since before and after the establishment of Pakistan, which culminated into a bloody War of Liberation in 1971. NAP, CPB and BSU had also glorious and  sacrificing history of struggles in the then Pakistan to establish democracy, including right of adult franchise, freedom of press, speech, and formation of organization, and also for economic liberty of the down trodden people  and toiling masses. These organizations visualizing a society free from exploitation organized peasants, workers and made tremendous sacrifice. The ‘Hajong Movement’ in the then Mymensingh, ‘Tebhaga Movement’ in northern Bengal and ‘Nankar Movement’ in the greater Sylhet are few examples of their fights for the common people. In 1947 the Indo-Pak Subcontinent was divided into two States namely India and Pakistan in the name of independence. The State named Pakistan was formed with two territories with a distance of 1000 miles intervened by the territory of India. The western territory of the country was comprised of 4 provinces, namely Punjab, Sind, Baluchistan and North-West Frontiers province, while the eastern territory comprised of the East Bengal. Subsequently, the then rulers of Pakistan designated the two territories as West Pakistan and East Pakistan transforming the western provinces into the West Pakistan and the Eastern Province as the East Pakistan. The Sub-continent was divided on the basis of religious communalism known as two- nation theory, i.e. Pakistan was for the Muslims and India as the State for the believers in the other religions. Thus, the State of Pakistan was an unnatural State from the time of its birth. All India Muslim League and Indian National Congress were the main two players in dividing the subcontinent in this manner. On the 14th August, 1947 the two countries, Pakistan and India were established.

6.            The Communist party of India was established in 1920 by the communists in the Soviet Union, which was a great political event in the History of India and the leaderships of the said party subsequently organized various workers and peasants’ movements in India for which the party became one of the big political party. At the time of the division of the then India, The Communist Party found it difficult to resist the division as the religious sentiment dominated the masses of the country, but they applying the theory of National Emancipation supported the division of India into two countries, which they subsequently found to be a wrong decision and as such just after the partition of India, the Communist Party came to believe that the independence in the name of religion was not an independence within its meaning and they declared ‘Ye Azadi Dhoka Hai, Lakho Insan Bhuka Hai” and to establish a proper liberation, started armed struggles. The ‘Nankar Movement’ in Sylhet District, the ‘Hajong Movement’ in Mymensing and the ‘Tebhaga Movement’ in the northern districts of the country are the instances of the armed struggles of the Communists. After the partition, the Communist Party of India was also divided and Communist Party of Pakistan was established and in the territory now comprising of Bangladesh, the Communist Party was named as the Communist Party of East Pakistan. After the creation of Pakistan, the Muslim League rulers started oppressing on the Communists ruthlessly. Although the student-wing of the Communist Party was very active, they were not allowed to function publicly and as such they had to go into hiding.

7.            Though the partition already took place, the secular forces of present Bangladesh particularly the youths were not satisfied with the Partition of India on the basis of two-nation theory  and as such, soon after the establishment of Pakistan, the progressive and non-communal youth leaders like Kamaruddin Ahmed, Shamsul Haque, Taj Uddin Ahmed, Moahammad Toaha, Oli Ahad started discussion sitting in Calcutta to start new political movement in the changed situation and to that end they agreed to hold a conference in Dhaka to adopt the manifesto and started visiting various parts of the East Bengal. They held a youth conference on 6-7 September in 1947 and formed a youth organization named Democratic Youth League. In this conference Tasadduque Ahmed was made the president, but because of the rule of oppression this organization could not flourish and in 1948 the organization was abolished. On the other hand, on the 4th of January, 1948 the East Pakistan Muslim Chatra League was established in Dhaka. Sheikh Mujubur Rahman, subsequently designated, recognized and honoured as Bangabandhu played a vital role in establishing the said  Muslim Chatra League, which later played very important roles in various struggles and movements in the then Pakistan. But soon after its establishment it was found that the East Pakistan was being deprived of its legitimate shares in power, economy and developments and as such felt necessity for forming a new Political Party and to that end on 23-24 January, 1949 East Pakistan Awami Muslim League was established with Moulana Abdul Hamid Khan  Bhasani as its President and Shamsul Haque as its General Secretary. Bangabandhu was elected Joint Secretary although he was in jail for supporting the strike of the Dhaka University workers. However, Awami Muslim League included many popular demands of that time in the manifesto, including the framing of a democratic constitution, granting  the right of all the citizens to get food, shelter, education, clothing and treatment so that they could live with dignity, separation of the Judiciary from Executive and to guarantee the rights of speech and the press etc. The manifesto also included upholding the Islamic education and high moral values etc.

8.            Before the establishment of Pakistan, the debate on the State Language started growing within the students’ community as because a muslim scholar of Alighar University declared that Pakistan should adopt Bangla as the State Language. The first session of Pakistan Constituent Assembly took place on the 23rd February at Karachi when a motion was initiated for making Urdu as the state language from the Treasury Bench against which  Dhirendra Nath Dutta, a Member of the Constituent Assembly from the then East Pakistan moved an amendment to the said motion demanding  inclusion of Bangla as one of the State Languages, which was bitterly opposed by the Ruling Party members including those from this part of the country. Liakat Ali Khan criticized the proposed amendment stating that this was a move to divide and destroy Pakistan. On getting the news the student community of Bengal became furious and on the 26th of February the students of Dhaka University, Dhaka Medical and Engineering colleges observed strike in protest of the decision. Subsequently, during the visit of Mohammed Ali Jinnah, Governor General of Pakistan in a public meeting at the then Racecourse Maidan on 21st March 1948 while delivering a speech again he declared that Urdu to be the State Language of Pakistan and subsequently, he repeated the same in the Special Convocation of Dhaka University on the 24th of March 1948 and there was a protest in the meeting from the audience. The Bangalee intellectuals, Dr. Muhammad Shahidullah, Syed Muztaba Ali, Ajit Guha, Ranesh Dasgupta and others started writing in favour of the demand of making Bangla as a State Language of Pakistan as Bangla was the mother tongue of the majority of the citizens of Pakistan, while Urdu was spoken by a very negligent percent of people. Thereafter, following a speech by the then Prime Minister of Pakistan, Khwaja Nazim Uddin reiterating the decision to implement Urdu as the State Language of Pakistan, the students and political leaders separately formed two All Parties Action Committees and the Communist Party involved itself in the movements from behind as the party was not allowed to function publicly.

9.            On the 21st day of February, 1952 the students created a history by sacrificing blood and becoming martyrs for the sake of recognition of Bangla as the mother language and as such this day  became the red letter day in the History. After creation of a State on the basis of religious nationalism, the language movement was the beginning of growing Bangalee Nationalism at the cost of the lives of Rafique, Shafique, Barkat, Salam, and others. In the Language Movement the secular student forces took pivotal role, including the student-supporters of the Communist Party, Awami Muslim League and others. After the 21st February, 1952 the students of the country felt necessity for forming a secular students’ organization as they understood that for uniting all the students a secular organization was the demand of the time and accordingly, East Pakistan Students’ Union (now Bangladesh Students’ Union, shortly, the BSU) was formed on the 26th of April, 1952. Almost all the veterans of the Language Movement Students’ Action Committee took the initiative to establish this organization. Following its birth, the BSU took part in all the democratic movements individually or with other students’ organizations unitedly. In 1953 the Students Union contested the Dhaka University Central Students’ Union election jointly with the Chatra League and came out with a victory and that gave rise to enthusiasm among the democratic political leaders to form a unity to contest in the 1954 election to the East Pakistan Provincial Assembly. The Communist Party started motivating political parties to form a United Front to contest the election in order to defeat the ruling party and the students played a very important role to compel the political forces to form the United Front on the basis of 21-point program under the leadership of Sher-e-Bangla A.K Fazlul Haque, Moulana Bhasani and Hussain Shahid Suhrawardi, three stalwarts of that time. In order to keep the United Front working smoothly for the greater interest to establish Democracy,  inspite of being the architect  of the unity to  from the Front,  the Communist Party kept itself outside the Front and nominated their own candidates in the name of the party in the election. The United Front defeated Muslim League, which got only 9 seats against 309 seats. In this election 26 members of the Communist Party were elected with the ticket from the Awami Muslim League and 5 others in the name of the party itself and thus, the Communist Party played a glorious role in the election of 1954.

10.        But the political history of Pakistan was a history of conspiracy by the West Pakistani rulers against the people of the then East Pakistan and after a few days of forming the Provincial Government by the United Front, the Central Government dismissed the Provincial Government and declared emergency and many political leaders including, Bangabandhu Sheikh Mujibur Rahman and the Communist leaders were arrested and kept in the prisons. Subsequently, a series of conspiracies went on in the political arena of Pakistan and in 1956 a Constitution for Pakistan was adopted. Though the Constitution did not reflect the aspiration of the people of the then East Pakistan, a possibility was there that a democratically elected Government would be formed and minimum democratic rights would be achieved.

11.        During the election of 1954, the United Front obtained the mandate of the people on the 21-Point program which included provincial autonomy and also, to quit SEATO and CENTO- two treaties, which were signed by Pakistan under the influence of the ‘US Imperialism’. But Hussein Shahid Suhrawardi, a prominent Awami League Leader was made Prime Minister of Pakistan on the 12th October, 1956 and after becoming the Prime Minister, he gave go bye to those two important programs of the United Front and there arose differences of opinions within the party. Moulana Abdul Hamid Khan Bhasani, President of Awami league convened a conference of Awami League at Kagmari, Tangail, where the differences of opinions between the followers of Moulana and Suhrawardi became sharp and as Suhrawardi claimed that with the assumption of power by him the then East Pakistan attained 98 percent of autonomy and he also differed with the demand of quitting SEATO and CENTO on the ground of his 0+0 theory. Ultimately, Awami League was divided into two parties and a new party emerged with the name of National Awami Party (NAP) in a conference of the democratic workers held on the 25th and 26th July 1957. Thus, the NAP came into being. Most of the members of the Communist Party, who were in the Awami League joined the party.

12.        Though Hussain Shahid Suhrawardi was expecting a democratic election in Pakistan in 1959, he was dismissed from the office of the Prime Minister in October, 1957 and thereafter, there was political instability in the country and taking advantage of the situation on the 7th October, the then President of Pakistan, Iskandar Mirza declared Martial law and abrogated the Constitution and he appointed General Ayub Khan as the Chief Martial Law Administrator. Subsequently, on the 27th of October, Ayub Khan declared himself as the President of Pakistan. All political parties were banned and the leaders, including Moulana Bhasani and Bangabandhu Sheikh Mujibur Rahman were arrested and in this manner the hope for democracy in Pakistan was frustrated. Ayub Khan after four years of rule gave a Constitution, namely, the Basic Democracy and the one man rule of Ayub Khan continued by taking repressive measure. The students’ community again came forward to restore democracy. After the arrest of Hussain Shahid Suhrawardi, the students started continuing strike in Dhaka, which lasted up to 12 days. The Political Leaders also started activities for restoration of democracy. Leaders, including Bangbandhu Sheikh Mujibur Rahman and NAP leader Mahmud Ali signed a statement demanding the lifting of Martial law, which boosted up the political workers to come forward. In this manner the NAP participated in the movement of restoration of Democracy in 1962. In the meantime the students’ organization, namely the then East Pakistan Students’ Union took the lead in this movement and the Students’ League also actively participated in the movement.

13.        In 1966, Bangabandhu declared the 6-Pint Program for the Bangalee people and the Students’ Union supported the program holding that the program would not fulfill the demands of emancipation of the toiling masses and release from the clutches of the Imperialism. The Students’ Union participated in the movement with that reservation and subsequently, the Students’ Union, along with other students’ organizations formed All Party Students Action Committee, which framed 11-Point Demand and started the movement and the movement culminated to the mass upsurge in 1969. After the declaration of the 6-Point Program, a lot of cases were filed against Bangabandhu and ultimately the Agartala Conspiracy Case was started against him and others. The students’ movement popularly known as the 11-Point Movement was successful to get release of the Bangabandhu and withdrawal of the said cases. In 1966, when the movement of 6-Point Demand was in the peak eight political parties formed Democratic Action Committee shortly, the DAC with Awami League, NAP and others. Though eight parties were there, the political leaders of Awami League and NAP mainly got the peoples’ confidence. Thus, NAP became very much a mass party of the then East Pakistan. Similarly, Students’ Union also became the biggest students’ organization having its participation and pioneering role in all the students and democratic movements. Though the Communist Party though was not allowed to function publicly, they were very active in organizing other political forces to form unity and to accelerate the movements. The upsurge of 1969 compelled Ayub Khan to quit the power. But without handing over the power to the people he handed over the power to Yahiya Khan, Chief of the Army of Pakistan, who on the face of the mass upsurge declared the date of election on the basis of one man one vote and promised to handover the power to the elected representatives of the people. After the election of 1970, when Awami League emerged as the absolute majority political party of Pakistan, it was expected that they would be allowed to form the Government. But the conspiracy went on. The Army without handing over the power started moving. Though the session of the National Assembly was called on the 3rd of March, 1971, Yahiya Khan cancelled it on lame excuse.

14.        When it became clear that Army would not hand over the power to people’s representatives, it became impossible to remain united with Pakistan and the people had no other alternative but to free the country from the Pakistani Rule. The Students’ Union in a farsighted manner realized that armed struggle was indeed needed and as such, motivated its workers to undergo training and the workers of Students’ Union, including lady members started taking training. Similarly, the NAP and CPB also advised theirs workers to be vigilant and prepare for the armed struggle and after the crack down on the 26th March, 1971, the workers of the NAP, CPB and Students’ Union started organizing their forces for the Liberation War locally and created resistance to the occupation forces. After the declaration of Independence by Bangabandhu, the workers of these three organizations prepared themselves for the ultimate sacrifice in order to achieve the independence of the country. Thus, these three organizations directed their workers to get themselves recruited in the Liberation Forces as was organized under the leadership of Awami League wherever possible and a good number of workers got themselves recruited in the Freedom Fighters (FF). At the beginning, the Awami League leadership was not organized and as such, the workers of the NAP, CPB and Students’ Union could get entrance in the FF. But subsequently, when the Awami League leaderships were organized one section of them started creating obstruction to the recruitment of the workers of NAP, CPB and Students’ Union as the FF. From the beginning of the War of Liberation, the NAP, CPB and Students’ Union termed the War as the National Liberation War and were trying to convince the Awami League leaderships to form a National Liberation Front and also to form an All Party Government to fight the Pakistani Occupation Force. Though the Prime Minister of the Provisional Government of Bangladesh was convinced to form a United Liberation Force, he could not succeed in convincing his colleagues and as a result, that did not happen. There were many streams within the Awami League leaderships and some were opposing to the entrance of the workers of the NAP, CPB and Students’ Union in the Liberation Forces.

15.        At the atrocities and genocide committed by the Pakistani Occupied Army and their local collaborators, about ten million of people had to leave their residences and took shelter in the liberated areas of Bangladesh and in the neighbouring Country, India. Since the beginning of the War of Liberation, the NAP, CPB and Students’ Union workers were coming to India. In March 1971, the leaders of the NAP, CPB and Students’ Union formed an armed liberation force in the name of Òb¨vc-KwgDwbó cvwU©-QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ, hereinafter referred to as the said Guerrilla Force. The central leadership of the said Guerrilla Force was composed of Mohammad Farhad, Chowdhury Harunur Rashid, Commander Abdur Rouf, Pankaj Bhattacharya -  petitioner No.1, Mujahidul Islam Selim, Colonel Reza, Osman Gani, Manzurul Ahsan Khan, Mortuza Khan, Shahadat Hossain, Shah Alam, Yafes Osman, Nizamuddin Azad, Abdul Quasem and others. Mohammad Farhad, a CPB leader was the Commander, while, from each of the three organizations one was made Deputy Commander. Thus, the petitioner No.1 was the Deputy Commander from the NAP, Osman Gani was the Deputy Commander from the CPB and Mujahidul Islam Selim was the other Deputy Commander from the BSU. In many places at the local levels with the approval and help of the Indian Administrative youth camps were set up  to look after those, who went to India and to organize the guerrillas for training. In Tripura -Agartala Crafts Hostel, Agartala Karta Bari, Agratala Bordewali School BB Hostel, Gokul Nagar, Sonaimura, Dharmanagar; in Assam-Karimgonj Hindi School; in Meghalaya - Barengapara, Chandu Bhui, SisingPara, Balat and Mailam; in West Bengal - Kolkata, Ashoke Nagar, Gangarampur, Shiliguri, Atiabari Hekimgonj are the names of few camps. About 17 thousand members of these three organizations were Freedom fighters.

16.        Apart from taking part in the fight in the war front, these 3 organizations played the most significant role to mobilize the Indian Left Forces and also the world opinion particularly that of the socialist bloc in support of the Liberation War.  It may be mentioned that the then  Chatra Union President urged the International Union of Students to support the War of Liberation of Bangladesh and similarly, Comrade Moni Singh, Communist Party Leader issued a statement urging the Soviet Government to support the War of Liberation and recognize the Provisional Government. When it became clear that the Pakistani Junta was being backed by the ‘US Imperialism’, the necessity for the supports of the Soviet Union, Socialist Camp and Non-Allied and Western Countries were felt very much. Accordingly, many leaders of the NAP, CPB and BSU visited the Socialist, Non-allied and Western countries, attended meetings in the international forums, including Afro-Asians People’s Solidarity Organizations, World Peace Council and United Nations Organization. They made an appeal to the Government and peoples of the member countries of those organisations to support the Independence of Bangladesh.To inform the world that the War of Liberation was the peoples’ war, Professor Mujaffar Ahmed, President of NAP was included in the team sent to the UNO under the leadership of Justice Abu Sayeed Choudhury and a delegation of Bangladesh was also sent to the Convention of the World Peace Council and Dewan Mahbub Ali and Dr. Sarwar Ali from the Communist Party were included therein. It may be mentioned that on the way to the returning from the World Peace Council Convention, Dewan Mahbub Ali breathed his last in the Delhi Airport. The communists and secular forces of India were also advocating for the united flight. However, under such circumstances the Indian Government extended its support for creating a combined Guerilla Force of NAP, CPB and BSU and these three organizations apart from inducting their members in regular forces started separate training in separate training camps and formed separate Special Guerilla Force with Comrade Mohammad Farhad as its Commander. The force so formed inducted their fighters inside the country and they fought heroically and many accepted the martyrdom, for instance, a group of valiant fighters laid their lives in Betiyara in the District of Comilla. They also took the initiatives that the NAP would publish a weekly newspaper, namely, the Notun Bangla and CPB would publish the Weekly Muktijudda to organize peoples’ opinion and to inspire the people within the occupied country in favour of the War of Liberation.

17.        The Bangladesh Provisional Government ultimately on 08.09.1971 formed a National Advisory Committee consisting of Mr. Tazuddin Ahmed, the Prime Minister of the Provisional Government, Khandoker Mustaq Ahmed, a Cabinet Minister of the said Government, Moulana Abdul Hamid Khan Bhasani of NAP (Bhasani Group), Comrade Moni Singh of the CPB, Professor Muzaffar Ahmed, President, NAP (Muzaffar), Mr. Monoronjan Dhar of Bangladesh National Congress and two representatives of the Cabinet. The Prime Minister Tajuddin Ahmed was the Convener of the Advisory Committee. The purpose of formation of this committee was to unite the all pro-liberation political parties and organizations and to advise the Provisional Government of Bangladesh in recommending various policies and strategies. The formation of this Committee made an important impact on getting the supports of the International Communities in favour of the National Liberation Struggle of Bangladesh.

18.        For participation of the Special Guerrilla Force of the NAP-CPB-BSU in the armed struggle against the Pakistani occupied army and their local collaborators and for international campaigns made the leaders of these three organisations in support of the Liberation Struggle, the international communities, particularly the Socialist and Non-allied countries, recognized the struggle of Bangladeshi People for national emancipation as the National Liberation Struggle. The Provisional Government of the People’s Republic of Bangladesh in September 1971 formally recognized the Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ as one of the Liberation Forces of Bangladesh. The formation of the National Advisory Committee and the recognition of the Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ as one of the Liberation Force of Bangladesh by the Provisional Government of Bangladesh made an important turning point in the history of the Liberation of Bangladesh. Immediately after the formation of the National Advisory Committee, the Republic of India and the then Union of Soviet Socialist Republic (USSR) signed a Peace, Friendship and Cooperation Treaty for 25 years. Thereafter, in the last week of October 1971, a Joint Force consisting of Bangladesh Liberation Forces and Indian Armed Forces was formed. The petitioner No.1 and other members of the said Special Guerrilla Force actively participated in front fight of the War of Liberation and in Gerrilla Operations against the Pakistani occupied army and their collaborators. For the historic role of the National Liberation Forces and the Joint Forces, the country was ultimately liberated from the Pakistani Occupied Army on the 16th December, 1971. The role of Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ is an inevitable part of the history of the Independence of Bangladesh. The role of this Special Liberation Force has been recognized at home and abroad.

19.        After the Independence of Bangladesh, the Father of the Nation, Bangabandhu Sheikh Mujibur Rahman called upon all the Freedom Fighters and their groups to surrender their arms and ammunitions. At the call of Bangabandhu Sheikh Mujibur Rahman, the Commander and the Deputy Commanders of Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ on 30.01.1972 ceremonially surrendered their arms and ammunitions to Bangabandhu Sheikh Mujibur Rahman at the National Stadium, Dhaka. As a Deputy Commander of Òb¨vc-KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ the petitioner No.1 surrendered the arms and ammunitions on behalf of the Freedom Fighters belonging to the NAP, Osman Gani on behalf of the Communist Guerrillas and Mujahidul Islam Selim on behalf of the BSU Guerrillas surrendered their arms and ammunitions. The news with photographs regarding the surrender of arms and ammunitions by the petitioner No.1 and other Deputy Commanders of the said Liberation Force was published in almost all the national daily newspaper on 31.01.1972. The photograph was also published in many of the historical books and documents containing the authentic history of our National Liberation Struggle and its subsequent events. A photograph showing surrendering of arms by the petitioner No.1to Bangabandhu Sheikh Mujibur Rahman, while, Comrade Mohammad Farhad, Commander of the Special Gerrilla Force was standing to the left side of Bangabandhu collected from such documents has been annexed and marked as Annexure-‘A’. The guerillas formally offered Guard of Honour to the President of the Republic. Bangabandhu, while addressing the Special Guerrilla Force of the NAP, CPB and BSU praised them for their heroic role in the War of Liberation.

20.        The authority of all the Governments from the Provisional Government of 1971-1972 to this present Government have recognized the role and contribution of the Òb¨vc KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ and the list of the members of the said Liberation Force was published in various newspapers and Official Gazette.

21.        After the Independence, the Government of Bangladesh prepared the List of Freedom Fighters and published in the official Gazette wherein a great number of the Freedom Fighters belonging to the said Special Guerilla Force were included. Those three organizations were in the hope that the names of the left out Freedom Fighters would be published in the Gazette, but that did not happen. In order to secure the recognition of the Freedom Fighters of these three organizations a committee was formed with the petitioner No.1, Mujahidul Islam Selim, President of CPB, Mrs Amina Ahmed, a Presidium Member of the NAP and 3 others. They submitted a list of the left out Freedom Fighters to the concerned authority to publish the same in the official Gazette, but that was of no result. By a letter dated 3rd June 2009 the said six leaders, including the petitioner No.1 approached the State Minister of the Ministry of the Liberation War Affairs and submitted a list of the Freedom Fighters, but that also did not work and again on 14.3.2012 the same leaders made another approach by a letter. Due to the repeated approaches and persuasion the Government was pleased to publish an incomplete list of the said Freedom Fighters vide the Notification issued under Memo. No. 48.00.0000. 004. 37.149.2013-439 dated 22.7.2013 in the official Gazette on 04.08.2013 as contained in Annexure-B. Although the names of 3491 persons were given, the Government published the list of 2367 Freedom Fighters, according to them, after scrutiny. The name of the petitioner No.1 has been published in the said Gazette at Serial No. 112 of District Chittagong at page No.6917, Annexure-‘B’. The Gazette dated 22.07.2013 contained the names of two members of the National Advisory Committee of the Provisional Government of Bangladesh namely, (1) Comrade Moni Singh at Serial No. 47, Police Station- Durgapur, District- Netrakona at Page 6865 and (2) Professor Muzaffar Ahmed, Serial No. 137, Police Station -Ramna, District- Dhaka, at page 6875. In pursuance of the aforesaid Gazette Notification the members of the b¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbx have been enjoying the honour, status and privileges as the Freedom Fighters.

22.        But from the very beginning of the National Liberation Struggle an influential group of Awami League headed by Khandaker Mostaque Ahmed had been conspiring against the National Liberation Struggle. This group was identified as Pro-Pakistani and Pro-American fraction of Awami League. This fraction had been trying to harass the leaders and members of the Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ and had been trying to undermine their role in the National Liberation Struggle. For the conspiracy of this fraction of Awami League the process of recognition of the Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ as one of the Liberation Forces of Bangladesh by the Provisional Government of Bangladesh was delayed. The members and followers of the aforesaid group of Bangladesh Awami League is still active in undermining the role of the Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ in the National Liberation Struggle. At the instance of this group, Minister, Ministry of Liberation War Affairs sent DO No. 48.00.0000.100.01.001. 2014.605 dated 24.09.2014 to the petitioner No.1 and other leaders of the said Liberation Force stating that as per the resolution of the Jatiya Muktijhoddha Council adopted at it’s 23rd Meeting held on 06.08.2014, the enlistment of the members of the said Special Guerrilla Force as Freedom Fighters was not in conformity with the Rules and each and every one would have to apply separately online by 31.10.2014 and remain present before the Upazilla Scrutiny Committee with all evidences. The DO has been quoted in the Writ Petition.

23.        Having received the said DO, the leaders of the Òb¨vc KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ met the Minister, Ministry of Liberation War Affairs and verbally told him that the Provisional Government of the Bangladesh and the Government of the People’s Republic of Bangladesh headed by Bangabandhu Sheikh Mujibur Rahman officially recognized the Òb¨vc KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ as one of the Liberation Forces of Bangladesh and that nobody or authority, including Jatiya Muktijhoddah Council has any authority to raise any question about the recognition of the said Liberation Force and about the enlistment of its members as Freedom Fighter in the official Gazette. The leaders of the said Liberation Force further told the Minister that the publication of the names of the Freedom Fighters of the Òb¨vc KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ in the official Gazette in no way violates any provision of the Jatiya Muktijhodda Council Ain, 2002. The Minister, Ministry of Liberation War Affairs, assured the leaders of the said Liberation Force that he would take proper step for maintaining the list of the Freedom Fighters of the said Liberation Force published in the official Gazette under Memo No. 48.00.0000.004.37.149.2013-439 dated 22.07.2013 and that the same would not be changed or disturbed in any manner. But all on a sudden, respondent No.2 published the impugned Notification under Memo No.48.00.0000.004.75.105 (Angsha-2).2012-1488 dated 29.10.2014 in the Bangladesh Gazette on 05.11.2014, Annexure-C cancelling the Gazette Notification issued under Memo No. 48.00.0000.004.37.149.2013-439 dated 22.07.2013 containing the names of 2367 Freedom Fighters of the Òb¨vc-KwgDwbó cvwU©-QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ, including the names of the petitioners, Annexure-B in exercise of his authority conferred at Serial No.6 of list No. 41, Schedule No.1 to the Rules of Business (Allocation of Business), 1996 pursuant to the recommendation purportedly made under section 7(Jha) of Jatiya Muktijhoddah Council Ain, 2002 at the 25th meeting of the Jatiya Muktijoddha Council held on 13.10.2014, Annexure-‘C’. By publishing the impugned notification the respondents have denied the status of the said Special Guerrilla Force as one of the National Liberation Forces as was recognized by the Provisional Government of Bangladesh and the subsequent Governments, including the Government headed by Bangabandhu Sheikh Mujibur Rahman. The impugned notification has been published with a mala fide intention to deprive the members of the said Special Guerrilla Force of enjoying the honour, status and privileges as Freedom Fighters. As a recognized Liberation Force by the Government the names of the Freedom Fighters of the said Special Guerrilla Force have been correctly and lawfully published in the official Gazette and the statement made in the impugned notification that the said Gazette was wrongly published is misconceived and erroneous. The impugned Gazette Notification cancelling the earlier Gazette dated 22.07.2013 was published without serving any show cause notice to the petitioners and other members of the said Special Guerrilla Force and without affording them any opportunity of being heard. In the impugned notification, the respondents did not mention as to why the Gazette Notification under Memo No. 48. 00. 0000.004.37.149.2013-439 dated 22.07.2013  was said to have been wrongly published. The provision of section 7 (Jha) of the Jatiya Muktijoddha Council Ain, 2002 is not at all applicable to the enlistment of the Freedom Fighters of the said Special Guerrilla Force and to the cancellation of the official Gazette dated 22.07.2013 containing their names. As per the provision of section 7(Jha) of the Jatiya Muktijhoddah Council Ain 2002, Jatiya Muktijhoddah Council has no authority to make any recommendation for cancelling the official Gazette containing the list of the Freedom Fighters of the said Special Guerrilla Force. On 04.12.2014 the petitioner No.1 through his learned Advocate sent a notice demanding justice upon the respondents requesting them to rescind, cancel or withdraw the notification dated 29.10.2014 immediately, but they did not respond thereto. Accordingly, the petitioners having no other alternative and efficacious remedy filed the instant Writ Petition and obtained the Rule and the order of stay.

24.        Respondent No.1 i.e. the Government of Bangladesh, represented by the Secretary, Ministry of Liberation War Affairs contested the Rule by filing an Affidavit-in-Opposition contending, inter alia, that the role played by the said Special Guerrilla Force is admitted and recognized historically, but the Gazette Notification dated 22.07.2013 was not published in accordance with the Jatiya Muktijoddha Council Act, 2002 and as such, the defective Gazette Notification was cancelled by another Gazette Notification dated 29.10.2014 while, the active role played and contribution made by and on behalf of the said Special Guerrilla Force as one of the Liberation Forces of Bangladesh was recognized by the Government of Bangladesh. Since the earlier Gazette Notification dated 22.07.2013 was not published in accordance with law, the Minister of the Ministry of Liberation War Affairs requested the members of that organization to apply individually in accordance with Jatiya Muktijoddha Council Ain inasmuch as, no organization can apply for enlistment of its fellow member as the Freedom Fighter as per the provision of law. The Muktijoddha Council found mainly the defects in the earlier Gazette Notification dated 22.07.2013 such as, (i) the Gazette was published under the name of a political organization, (ii) no resolution was taken to include the list, (iii) no individual application was found, (iv) some of them was enlisted earlier vide Gazette Notification in the year 2005 on their respective applications. Then the Jatiya Muktijoddha Council at its 23rd meeting held on 06.08.2014 discussed that the Gazette Notification dated 22.07.2013, which included the list of the members of the said Special Guerrilla Force namely, Òb¨vc-KwgDwb÷ cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ was not published in accordance with law and as such, the impugned Gazette Notification was published with a view to enlist the members of the said organization in accordance with law. In such view of the matter, there being no cogent reason and cause of action in the Writ Petition, the Rule is liable to be discharged.

25.        Having placed the Writ Petition, Mr. Subrata Chowdhury along with Mr. Md. Zahedul Bari,Mr. Tabarak Hossain and Mr. S.M.A. Sabur, learned Advocate appearing for the petitioners submits that in the Jatiya Muktijoddha Council Ain, 2002, there is no provision that each and every Freedom Fighter has to apply individually and independently for enlistment as Freedom Fighter and as such, the impugned Gazette Notification having no legal basis is liable to be declared to have been made without lawful authority and is of no legal effect.

26.        The learned Advocate for the petitioners further submits that it is the phenomenal spirit of any war that each and every warrior has to fight under a command or under a sector and as such, in view of the spirit of the War of Liberation, 1971, the petitioners and others still hold the commanding phenomena of the War of Liberation inasmuch as all three organizations are disciplined organization and accordingly, they prepared and submitted the list maintaining the phenomenal spirit of the War.

27.        The learned Advocate for the petitioners then submits that even it appears from the Affidavit-in-Opposition that certain members, who have already applied individually and independently for enlistment as Freedom Fighter, had to obtain Certificates from their respective Commander and as such, if the Commander without issuing any certificate separately issues the same jointly, there cannot be any legal defect inasmuch as, by issuing such joint certificate, the work of issuance of such certificate separately will be reduced and less laborious.

28.        Mr. A.S.M. Nazmul Haque, learned Deputy Attorney General along with Mr. Bibhuti Bhushan Biswas and Mr. Sadhan Kumar Banik, both are learned Assistant Attorney General having appeared on behalf of respondent No.2 does not dispute and controvert the role played by the Òb¨vc-KwgDwb÷ cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ, but he only submits that the Gazette Notification dated 22.07.2013 was not prepared in accordance with law and accordingly, the subsequent Gazette Notification i.e. the impugned Gazette Notification was issued and published with a view to rectify the legal defect in preparing and publishing the earlier Gazette Notification and also to publish a fresh Gazette Notification upon individual application and hence, there being no mala fide intention or legal infirmity in issuing the impugned Gazette Notification, the Rule is liable to be discharged.

29.        Mr. S.M. Rezaul Karim,  learned Advocate appearing on behalf of respondent No.3 also does not deny the role played by the said Òb¨vc-KwgDwb÷ cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ in the War of Liberation and he also submits that there cannot be legal difficulties if all the members file such application individually for enlisting as Freedom Fighter and accordingly, the Rule is liable to be discharged.

30.        We have perused the Writ Petition along with the Supplementary Affidavit filed on behalf of the petitioners and the Affidavit-in-Opposition filed on behalf of the respondents along with the annexure thereto and heard the learned Advocates from both the sides.

31.        As per the cases of both the parties, the Òb¨vc-KwgDwb÷ cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ played a great role in the War of Liberation, 1971. It has not been denied that the status of the said Special Guerrilla Force as one of the National Liberation Forces was recognized by the Provisional Government of Bangladesh and the subsequent Governments, including the Government headed by Bangabandhu Sheikh Mujibur Rahman. But the only dispute is whether the commanding members of said †Mwijv evwnbx can issue any joint certificate recognizing all the members, who fought under their commands as Freedom Fighters and also can apply for their enlistment or whether it is required by law that the members of the said Special Guerrilla Force should be individually recognized and certified and they are to apply individually for enlistment as Freedom Fighter.

32.        Since the Òb¨vc-KwgDwb÷ cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ was admittedly a separate Liberation Force, nobody other than its commanding members can recognize and certify the members, who fought under their commands. Accordingly, the other Freedom Fighters, who fought under the command of any other Liberation Force or Forces may not properly and neutrally recognize and certify the members of the said Special Guerrilla Force organized by NAP, CPB and BSU as Freedom Fighters, while, the Affidavit-in-Opposition does not disclose that even any representative of the said Special Guerrilla Force has ever been included in the Muktijoddha Council or even in any the Upazilla Scrutiny Committee.

33.        It appears from the impugned Gazette Notification dated 05.11.2014, Annexure-C that the impugned Notification dated 29.10.2014 was issued pursuant to the recommendation made by the Jatiya Muktijoddha Council at its 25th meeting held on 13.10.2014 as per section 7(Jha) of the Jatiya Muktijoddha Council Ain, 2002. The relevant portion of Section 7 i.e. section 7(Jha) of the said Ain runs as follows:

ÔÔ7| KvDw›m‡ji Kvhv©ejx|- KvDw›m‡ji Kvhv©ejx nB‡e wbæiƒc, h_vt

(K) .….….….….….….….….….….….

.….….….….….….….….….….….….

.….….….….….….….….….….….….

(S) cÖK…Z gyw³‡hv×v‡`i ZvwjKv cÖYqb, mb`cÎ I cÖZ¨qbcÎ cÖ`v‡b Ges Rvj I f~qv mb`cÎ I cÖZ¨qbcÎ evwZ‡ji Rb¨ miKv‡ii wbKU mycvwik ‡cÖiY;

(T) ……………………………….

34.        From the language of section 7(Jha) of the said Ain it appears that thereby the Council is authorised to make any recommendation to the Government for cancellation of any forged (Rvj) and false (f~qv) certificate or verification as Freedom Fighter only. But the impugned Notification does not disclose that the list of the members of the said Special Guerrilla Force published in the earlier Notification dated 22.07.2013, Annexure-B was either forged or false; rather it was published after scrutiny.

35.        We have meticulously examined the other provisions of the Jatiya Muktijoddha Council Ain, 2002. Upon such examination, we do not find any such provision in the said Ain that each and every Freedom Fighter must have to apply individually for enlistment as Freedom Fighters. Thus, even there is no directory provision, let alone any mandatory provision in the said Ain precluding the commanding members of any Liberation Force from jointly recognizing and certifying all the members of the Force as Freedom Fighter. In the other words, the law does not bar to certifying jointly all the members of the Freedom Fighters, who fought under a command.

36.        Moreover, the impugned Gazette Notification does not disclose any reason as to why the earlier Gazette Notification was cancelled, while, the submission made by the learned Advocate for the petitioners that by the earlier Gazette Notification dated 22.07.2013, all the freedom fighters enlisted therein accrued a valuable right, which cannot be taken away even without giving them any chance of being heard, deserves consideration.

37.        It appears that Mr. A.K.M. Mozammel Haque, Minister of the Ministry of Liberation War Affairs issued two DOs dated 24.09.2014 under his own hand addressing the petitioners and others as theirpq­k¡Ü¡wherein the Minister also recognized the petitioners and others that they fought in the War of Liberation under the command of the Òb¨vc-KwgDwb÷ cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ as the Freedom Fighter as well as thepq­k¡Ü¡”. It would be worthy to mention here that the Minister himself is a Freedom Fighter. Since there is no provision in the law as to whether each and every Freedom Fighter has to apply individually or jointly, we do not find any illegality in publishing the Notification dated 22.07.2013. Accordingly, there is no cogent reason in cancelling the earlier Notification dated 22.07.2013, Annexure-B by the impugned Notification dated 29.10.2014 published in the Gazette Notification on 05.11.2014, Annexure-C.

38.        Nevertheless, the earlier Notification dated 22.07.2013, Annexure-B being neither forged nor false, the respondents exceeded their authority under section 7(Jha) of the said Ain in cancelling the said Notification dated 22.07.2013. Accordingly, the impugned Notification dated 29.10.2014 published in the Gazette Notification on 05.11.2014, Annexure-C cancelling the earlier Notification dated 22.7.2013 published in the Gazette Notification on 04.08.2013, Annexure-B is liable to be declared to have been made without lawful authority and is of no legal effect.

39.        Hence, we find merit in the Rule.

40.        Accordingly, the Rule is made absolute.

41.        The impugned Notification issued vide Memo No. 48.00.0000.004.75.105 (Angsha-2) 2012-1488 dated 29.10.2014 published in the Bangladesh Gazette on 05.11.2014 under the signature of respondent No.2, Annexure-C cancelling the Notification issued under Memo No. 48.00.0000.004.37.149.2013-439 dated 22.07.2013 published in the Gazette Notification on 04.08.2013 containing the names of 2367 Freedom Fighters of the “eÉ¡f- L¢jE¢eø f¡¢¡VÑ-R¡œ CE¢eue ¢h­no ®N¢lm¡ h¡¢qe£”, Annexure-B is hereby declared to have been made without lawful authority and is of no legal effect.

42.        Consequently, the earlier Notification dated 22.07.2013 is deemed to have been revived and accordingly, the petitioners and others, whose names were published therein as Freedom Fighters are entitled to the status, recognition, honour and prestige as well as to the allowance, benefits and privileges as the Freedom Fighter from the very beginning of the introduction of such allowance, benefits and privileges.

43.        However, there would be no order as to costs.

Ed.