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Public Interest Litigation
INTRODUCTION
The term public interest litigation (PIL), a new phenomenon in our legal system, is used describe
cases where conscious citizens or organisations approach the court bow fide in public interest.
This is a significant new development from at least two standpoints. First, the courts are for the first
time concerned with public interest matters. This is beyond the traditional role of the judges who
previously adjudicated private disputes only. Second, it involves a public law approach with respect to
the rules of standing, procedure and remedies so that private citizens can advance public aims through
the courts.
What prompted this new advancement and how? What are the meaning, scope and basis of PIL? What
is the constitutional position of PIL? What are the new rules of standing, procedure and remedies? The
present book is an attempt to answer these questions in the Bangladeshi context.
The basis of legitimacy of the law courts is impartiality. In the Common law based legal systems,
including that of Bangladesh, this impartiality is safeguarded through an adversarial model of litigation.
Thus the judge is a neutral umpire and is not supposed to intervene while the parties debate their case in
front of him. So sacred is this impartial stance that it is believed that ‘bias even for a good cause is bias
all the same’.
This system works well in most of the cases as long as they involve private disputes where the strengths
of the parties are more or less evenly balanced. But when one of the parties is disproportionately poor
and powerless, it becomes very difficult to litigate on equal terms. The disadvantaged party can afford
neither the best lawyers nor the other resources available to his adversary. In private interest cases, this
is the basis for providing legal aid to The poor The some problem crops un in public interest matters as
well, those who are suffering, the people as a whole or a segment of the society, are often poor,
ignorant, unorganized or afraid to approach the court. Since indifference and absolute reliance on the
adversarial model would cause injustice, social activists advance PIL believing that ‘equal treatment of
unequal is inequality’.
The concept and practice of PIL is thus an exception to the general rules of our Common law based
legal system. It is not a revolution in the sense that it does not attempt to overthrow the entire existing
system. But it is not a mere tinkering with the system either. It brings along with it a new set of
principles and procedures that negate the traditional approach when public interest is concerned.
Accordingly, the courts act suo motu,liberally interpret the rules of standing, treat letters as writ
petitions, appoint commissioners, enlist aid from volunteers, award compensation to the victim and
provide for continuous monitoring of the situation. PIL thus is a major reformation at both conceptual
and practical levels.
Advancement of PIL in Bangladesh coincided with the restoration of democracy. Some attempts to
introduce PIL in Bangladesh started since 1992 Initially, it was difficult to overcome the threshold
problem. However, lentless efforts of the social activists enabled the progressive minded judges
interpret the Constitution liberally through a series of cases. When success rally came in 1996, the
Supreme Court not only found that PIL is valid under is constitutional scheme, but that the Constitution
mandates a PIL approach.
WHAT IS PIL: AN EXAMINATION
There is no confusion as to the general meaning of PIL – that it is litigation in the interest of the
public. Yet the more one attempts to be specific about the scope of PIL, the less satisfactory
becomes this general description. Terms like litigation’, ‘public1 or ‘interest’ have different
meanings and scope in different situations. Further complications arise when the term ‘public
interest’ is the issue. Since the term is culture specific, no single definition can satisfy everyone.
Hence the scope of the term depends, to a great extent, on the point of view chosen.
In practice, there has been a compromise of different viewpoints about the scope of PH. The
activists and jurists accept the general meaning of PIL and leave the details to the discretion of the
individual judge. Thus the scope of PIL in any particular jurisdiction depends more on practical
experiences as demonstrated by judicial pronouncements than on any particular theoretical
framework.
Yet there are a few general components that help us to determine whether a particular issue is of
public interest and whether a particular litigation is PIL. These general components of the meaning
and scope of PIL have been discussed in the present chapter, along with a number of associated
terms that one can not avoid while attempting to understand PIL.
MEANING OF THE TERM ‘PUBLIC INTEREST LITIGATION’
While the concept of PEL was just taking shape, Bhagwati J., one of the pioneers of PIL in India,
observed in People’s Union of Democratic Rights v. Union of India:
Public interest litigation is essentially a co-operative effort on the part of the petitioner, the State or
public authority and the Court to secure observance of the constitutional or legal rights, benefits and
privileges conferred upon the vulnerable section of the community and to reach social justice to
them.
PIL started to evolve and develop with great speed and the judges extensively applied the concept to
different areas. This wider scope of PIL was ensured by defining it from a very broad angle, by
describing PIL simply as litigation in the interest of the public. Kirpal J. said in People’s Union for
Democratic Rights v. Ministry of Home Affairs:
As I understand the phrase “Public Interest Litigation”, it means nothing more than what it states
namely it is a litigation in the interest of the public. Public interest litigation is not that type of
litigation which is meant to satisfy the curiosity of the people, but it is a litigation which is instituted
with a desire that the court would be able to give effective relief to the whole or a section of the
society.
Like the Indians, Pakistani judges and writers have generally considered PIL as a purpose-
oriented idea. PIL is described as a task of the eradication of social evils through the medium of
law as is enjoined by the Constitution. Hussain says:
Public interest litigation means what it says namely litigation in the interest of the public. … it
must be emphasised that the raison d’etre of public interest I litigation is to break through the
existing legal, technical and procedural constraints and provide justice, particularly social justice
to a particular individual, class or community who on account of any personal deficiency or
economic or social deprivation or state oppression are prevented from bringing a claim before
the Court of law.
PIL may be distinguished from ordinary litigation in the following way, First, PIL is for the
benefit of the people as a whole or a segment of the society. It aims to enhance social and
collective justice and there must be a public cause involved as opposed to a private cause. This
includes several situations:
a. Where the matter in question affects the entire public or the entire community, e.g. illegal
appointment of an unfit person as a government servant;
b. Where the issue involves a vulnerable segment of the society, e.g. eviction of slum-
dwellers without any alternative arrangement;
c. Where the matter affects one or more individuals but the nature of the act is so gross or
serious that it shocks the conscience of the whole community, e.g. rape of a minor girl in police
custody.
Second, in the situations mentioned above, any individual or organisation may approach the
court. In other words, PIL involves liberalisation of the rules of standing.
This includes cases initiated suo motu; because the judge himself is a concerned citizen in such a
case.
Third, the court adopts a non-adversarial approach as opposed to an adversarial system of
litigation. This includes procedural aspects as well as the aspects of granting relief. As a result,
the court may treat letters as writ petitions, appoint commissioners, award compensation or
supervise and monitor the enforcement of its orders.
In short, PIL may be described as a type of litigation where the interest of the public is given
priority over all other interests with an aim to ensure social and collective justice, the court being
ready to disregard the constraints of the adversary model of litigation. Thus when conscious
citizens or organisations, withbonafide intentions, approach the court for the interest of the
public in general or a disadvantaged or under-privileged segment of the society and not for any
private, vested, special or group interest, it is termed as ‘public interest litigation1. An injury to
the public interest will be apparent only when some constitutional or legal rights, privileges or
benefits are affected or where a constitutional or legal duty or obligation has not be performed.
PIL becomes a necessity when protection of law is unavailable to the public or a segment of it
due to ignorance, poverty, fear or lack of organised endeavor.
‘LITIGATION’ AND FORUM OF PIL
One important aspect of PIL is that it entails ‘litigation’ – the process of settling legal disputes in
a court of law under appropriate procedures. From a wider viewpoint, it includes cases not only
in law courts but also at the instance of quasi-judicial or administrative authority. Yet, PIL being
a specific type of litigation and nothing more it excludes legislative activities and other extra-
legal means of promoting public interest, e.g. lobbying, negotiation, etc.
As it is a type of litigation, PIL has all the constraints and limitations of the litigation process.
However, to promote public interest, the constraints of the litigation process have been liberally
construed where PIL is involved.
In general, PIL indicates a petition in public interest in the nature of writ under Article 102 of the
Constitution of Bangladesh. Development of PIL inBangladesh so far has revolved around this
constitutional jurisdiction. But PIL is not confined only within the constitutional jurisdiction.
There is scope for PIL in Civil and Criminal courts as well as in special courts and tribunals
provided that such litigation fulfills the criterion of PIL. Thus for example, Order 1 rule 8
relating to representative suits or section 91 regarding public nuisance of the Civil Procedure
Code are relevant.However, the present book
WHAT IS ‘PUBLIC INTEREST’
The terms ‘public1 and ‘interest’ are by no means easy to define. When they combine to form
the term ‘public interest’ – we have a fertile ground for confusions and competing ideas.
The word ‘public’ literally means pertaining to the people of a country or locality. In other
words, “the community as an aggregate, but not in its organised capacity, hence the
members of the community”. The term can be used for either all members of the community
or groups of members or any section or class of that community. It is a term of uncertain
import and must be limited in every case by the context in which it is used. The term
‘interest’ is a relation of being objectively concerned in something by having a right or title
to, a claim upon or a share in that thing. It includes varying aggregates of rights, privileges,
powers and immunities. Here also, the word has different implications in different contexts.
When the words ‘public’ and ‘interest’ combine to form the term ‘public interest’, it becomes
difficult to define due to a number of factors. The phrase is used in different disciplines
including political science, economics and law with different connotations and from different
perspectives. It again depends on the user and one’s purpose; from democrats to autocrats
everybody uses it. Finally, it also varies from one jurisdiction to another. This confusion has
led writers to say that ‘no general agreement exists about whether the term has any meaning
at all and that the concept ‘makes no operational sense
Generally, public interest means a commonality of interest, a single interest that a certain
group of people or citizens are presumed to share. Barry and Rees actually extend this
still further: The concept of public interest … is a device which permits us to treat the
human interests of all men as a function of human interests within a given political
region. It has considerable value as a weapon for criticizing selfish private interests or
class interests, and its advantages in a highly individualistic and often savagely
competitive society are obvious.
Thus, while a special interest furthers the ends of some part of the public, public interest
ultimately serves the ends of the whole public.18 Even in the case of a conflict among
different private or special interests, the public interest lies in the best and most just
solution of the conflict which ensures that the public as a whole gain a better environment
after the conflict is resolved. Thus, for example, it is a matter of public interest to protect
minority rights because, although a major portion of the public might lose something, the
community as a whole would gain by the progress made in terms of human and
fundamental rights.
As to how this commonality of interest might be determined, there is no agreement. It is
often supposed that public interest suggests a consensus among the ‘preponderance’ of
the people or the dominant portion of the public. Public interest has also been seen as the
sum total of all interests in the community balanced for the common good. Some idealists
believe that public interest consists of the course of action that is best for society as a
whole according to some absolute standard of values regardless of whether any citizens
actually desire them. practical purposes, however, the courts have attempted to describe
‘public interest1 with more certainty. Thus a principle emerged in early English law that a
matter of ‘public interest is one in which a class of the community have a pecuniary
interest, or some interest by which their legal rights 01 liabilities are affected. This
principle of common law appears to have been generally followed in the sub-continent
including Bangladesh. In a Bangladeshi case, while borrowing from the English
jurisdiction, Anwamlj Hoque Chowdhury J. held:
The expression public interest is nowhere defined in the Passport Order. It hast however
received judicial interpretation years ago from the courts of English Jurisdiction. In South
Hetton Coal Company case, reported in 1894 1 QB at 133 Lord Esher MR while dealing
with the question of fair comment in mastiff of public interest observed that when so
many people of a particular locality! affected by failure of sanitation, a fair comment is in
public interest. Public interest [sicl thus, connotes matter of interest in which a class of
community would have pecuniary interest or any other interest by which legal right or
liabilities are effected.
This description depicts the traditional and well established attitude ta by the courts both
in England and in the sub-continent.
The term ‘public interest’, has some other traditional meanings as well. J often equated
with national interest, national security or even justifiability. It has also been
acknowledged that “the expression interest the general public embraces public security,
public order and public morality”
THE CONCEPT OF PIL: THEORETICAL APPROACHES
‘Whether PIL is essentially a revolution or a reformation depends on the perspective of
the observer rather than on any theoretical paradigm. Yet, being radical development, PIL
requires to be justified by its proponents, explained by the activists and understood by the
lawyers. As a result, various attempts have been made to theories the concept of PIL.
However, it must be stressed that a single precise ‘theory’ of PIL, accepted by everyone,
is neither available nor possible. Instead of a ‘theory of PEL’, the following discussion
attempts to follow the patterns of some of the theoretical approaches taken by the
proponents of PEL. It needs to be mentioned that our discussion is in no way exhaustive.
CAPPELLETITS ANALYSIS: MASSIFICATION THEORY
PEL has been explained as a consequence of the ‘basification phenomena’ of modern
societies. In other words, due to the ever-increasing size, concerns and complexity of
modern societies, certain rights can not be attained through traditional means. PIL is one
attempt to solve this problem. Thus PIL is considered as a reflection, in the field of law,
of the emerging, growing and lasting need of modern societies.
In 1978, Appellate advanced the so-called ‘basification theory’ He used comparative
analysis and assumed that some basic socio-economic and political needs are shared by
all advanced societies and on this premise he examined the legal answers given to those
common needs.
According to Cappelletti, our contemporary society or more ambitiously, our civilisation,
may be characterised as a mass-production mass-consumption civilisation. But this
massification extends far beyond the economic sector and embraces all spheres of our
lives, including the field of law. Cappelletti says:
More and more frequently, because of the “massification” phenomena,! human actions
and relationships assume a collective, rather than a merely individual character; they refer
to groups, categories and classes of people, rather than to one or a few individuals alone.
Even basic rights and duties are no longer exclusively the individual rights and duties of
the 18th or 19th century declarations of human rights inspired by natural law concepts, but
rather meta-individual, collective, “social” rights and duties of associations, communities
and classes. This is not to say that individual rights no longer] have a vital place in our
societies; rather, it is to suggest that these rights are practically meaningless in today’s
setting unless accompanied by the social rights necessary to make them effective and
really accessible to all.
Cappelletti says that the complexity of modern societies generates! situations in which a
single action can be beneficial or prejudicial to a large number of people. This makes the
traditional scheme of litigation as a two party affair quite inadequate because an
individual alone is unable to protect himself efficiently in these cases. His interest is
either too small, so that a I legal action would not pay, or too diffuse, so that his rights are
denied by the court or he may even be unaware of his rights. To protect his new social,
collective and diffuse rights, therefore, it is necessary to abandon the individualistic
traditional approach. New social, collective, diffuse remedies and procedures are
required. The quest for these new remedies and procedures is responsible, among other
things, for the development of1 public interest law and PIL.
SOCIAL ACTIVISM FOR SOCIAL JUSTICE
Of all the perspectives from which PIL has been examined, the social justice preach,
accompanied with social activism, is perhaps the most significant me for the sub-
continental proponents of PIL. The social responsibility of the citizens, including the
legal professionals, which stems out of their social consciousness, is considered to be
responsible for the development and success of PIL.
Although the promoters of PIL in Pakistan shared the notion of social consciousness with
their Indian counterparts, one distinguishing element was apparent from the very
beginning – the emphasis on Islam. In Pakistan, Mamisation has its roots in the very
creation of the State. However, effective Islamisation of the laws of Pakistan started in
the late 1970s. Social justice, as promoted by the Pakistani judges, is Islamic social
justice. While introducing PIL, as they were under the Islamisation process, a most
important issue for the pioneering judges was whether PIL conforms with Islamic
principles. They established this conformity and proceeded further by showing that the
inspiration and rationale of PIL can be drawn from Islam itself.
The social activism advocated by the sub-continental activists proceeded with the
assumption that judges are law makers, insisting that traditional view that they merely
interpret the law is fundamentally wrong. Baxi observed that while the elaboration of
certain values in the Constitution assists the process of legitimisation of the ruling elite, at
the same time, it tends to expose them to new demands and fresh challenges to their
legitimacy. The scope for judicial law-making widens when the legislature and the
executive fail to perform their socio-economic functions. He further said:
In other words, an activist judge will consider herself perfectly justified in resorting to
lawmaking power when the legislature just doesn’t bother to legislate. … in almost all
countries of theThird World such judicial initiatives are both necessary and desirable.
For a detailed analysis see mansoor Hassan Khan (1993) public imerest litigation
growth of the concept and its meaning in Pakistan Karachi Pakistan law House at
48-53.
Upendra Baxi (1987) “On the shame of not being an activist” in Neelan
Tiruchelvam andRadhika Coomaraswamy (eds.) The Role of the Judiciary in
Plural Societies, London, Frances Pinter, pp. 168-178 at 168 claims that one does
not attain jurisprudencial adulthood unless one accepts that judges are law makers.
For details of Bhagwati’s argument on this point, see Bhagwati, as above note 13
at 562-563. Prasad shows that even in the pre-PIL period, the Indian Supreme
Court has created not only ordinary law but also constitutional law in the course of
the exercise of its interpretative powers; see Anirudh Prasad (1980) “Imprints of
Marshallian judicial statesmanship on Indian judiciary” in Vol.22JILJ,pp 240-258.
BACKGROUND AND DEVELOPMENT OF PEL
A scrutiny of PIL in various jurisdictions demonstrates a very interesting pattern.
PIL first emerges as a result of expressions of social commitment of conscious
individuals. Then it faces an initial period of recognition problem. Eventually, it
breaks down the traditional constrains. Once successful, it is treated as a major
development and becomes a permanent feature of the legal system. Finally, this
success in its part inspires other jurisdictions to follow the same route. PIL thus
travels from one jurisdiction to another.
However, development of PIL is closely dependent on the constitutional culture
and historical experience of the people. Therefore, its history in each jurisdiction
is unique. The present chapter outlines the development of PIL in USA, England,
India and Pakistan. These have immensely influenced the Bangladeshi
developments, which will be examined in the next chapter.
EMERGENCE OF PUBLIC INTEREST LAW IN AMERICA
The term PIL, as it is now known, and the associated term ‘public interest law 1,
were first coined in the United States. While arrogant capitalism and
excessive individualism often typifies the American society, there is also a strong
tranquil current of collectivism and social mindedness. This concern for the
society has brought many changes during this century. In the legal field, it has
brought new techniques, mechanisms, approaches and procedures in favour of the
collective interest. Public interest law includes a number of these developments
including legal aid, research, formation of public opinion, lobbying and litigation
conducted by specialized lawyers and organizations. PIL, litigation in the interest
of the public, is thus only one of the various methods of the greater movement of
public interest law.
Roots
There are a number of movements that may be identified as the roots of public
interest law and have shaped its ‘patterns of organization, modes of financing and
choices of strategies’
The first major root of public interest law may be traced to the legal aid movement
that started during the 1870s. Legal aid movement brought two new features to the
established system. One is that pro bono work became institutionalized. The other
is that it reflected not an individual lawyer’s concern but the concern of the
community that was often subsidized by a third party benefactor. By the first half
of the century, legal aid became a regular and established feature. Public interest
lawyers borrowed the organizational form of legal aid firms. On the one hand,
there was commitment and enthusiasm to serve the people. On the other hand,
they were professionals with independent offices, salaried staff and full time
devotion.
The second root of public interest law lies in the works of the Progressive Era
Reformers. At the turn of the twentieth century, during the time of rapid
industrialization and social and political changes, a movement aimed to check the
evils of unregulated business enterprises achieved remarkable success. New
legislation aimed to protect the workers and consumers and monitoring
institutions like the Federal Trade Commission came up to defend collective
rights.
Progressive Era Reform helped to advance the philosophical basis of public
interest law as it proceeded with the assumption that the Government
should intervene in the economic life of the society so that the market does not
operate in a way injurious to public welfare. Another contribution of the
progressive legacy is that it focused on the self-realization of the lawyers; their
commitment and obligation to the society.
The third root directly antecedent of public interest law is the American Civil
Liberties Union (ACLU) and its offshoot the National Association for the
Advancement of Colored People Legal Defense and Education Fund
(NAACP/LDF). ACLU was founded during the World War I and was mainly a
citizens’ lobbying group. It worked to protect the democratic rights of the
citizens including rights to free speech and due process. With the help of a
network of volunteer lawyers, ACLU acted as a watchdog of governmental
corruption and abuse of power.
Expansion
In American history, the 1960s and 1970s were people’s decades. It was a time
when Post World War II technological advancements tended to dehumanize
the society and Cold War/ Vietnam issue galvanized conservatism. At the
same time, however, social movements reached to astonishing peaks. Socially
conscious activist individuals and organisations proceeded to advance the
causes of unrepresented constituencies like the poor and the helpless,
consumers, minorities, women and sought to eliminate a plethora of
discrimination and inequality. While so doing, they found the mechanisms of
public interest law, especially PIL, as one of their main tools.
Support came from several quarters. First, charitable organisations, often in the
form of private foundations, came forward offering financial assistance to the
PIL lawyers. Contribution from organisations such as Sierra.
Club Legal Defense Fund and the Ford Foundations was crucial in the
expansion of public interest law.
Second, the Federal Government took an increasingly liberal view that was, to
a considerable extent, the result of successful PIL cases. Consequently,
government funded legal aid organisations were given more support and
financial assistance; new laws relating to social and civil justice were passed;
administration became more open to the citizens with respect to its decision
making process; and public interest law firms were recognised as tax-exempt
charitable organisations.
Third, the private bar and the law schools began to stress on pro
bono activities. Young bright lawyers often voluntarily ignored the lure of
commercial law firms. Lawyers found involvement in PIL cases a good way of
discharging their social responsibilities.
Eventually, due to gradual progress throughout the late 1960s and 1970s,
public interest law and PIL became a part of the American legal system. By
1985, Fred Stressed could declare:
Fifteen years after the new generation of public interest law was born, the
turbulent practice has survived to become a permanent fixture on the American
legal landscape.
DETERMINING PUBLIC INTEREST IN A PIL CASE
In PIL, the litigation must involve some clearly ascertainable public
interest which is given due recognition and conscious preference with an
aim to ensure collective justice. Apparently, three stages are involved in an
ideal case:
a. Public interest is given priority over special interests, private
interests, group interests and vested interests. In other words, in a free
competition of interests of different kinds, the interest of the public
prevails;11
b. It is the judge who decides what is public interest by exercising his
discretion.This thus is predominantly a matter of fact and is decided in a
case to case basis;
c. The discretion of the judge is exercised judiciously and not
arbitrarily or whimsically.It may appear that ‘public interest’ is a vague and
fluid concept, the meaning of which changes from time to time depending
on the problem at hand. Accusations of vagueness, however, may be
countered in several ways.
First, in most cases, we instantly know whether a matter involves public
interest or not when we encounter it. Nobody needs special legal training to
I appreciate that unhindered importation and distribution of radio-active
milk is against public interest. In other words, in a good case, it is almost
automatic that the element of public interest is recognised and appreciated.
Second, there is a whole body of PIL case laws already accumulated in
India and Pakistan. We must also add the growing number of Bangladeshi
cases to the list. We now have a considerable number of decided cases
which the judges can follow in determining public interest elements in
similar situations.
Third, evidence of public awareness and reaction, especially through
popular protests and newspaper reports, is a good indication for the judge
that the matter at hand is one of public interest. However, a matter would
not be a case of public interest merely because the public are interested in
it.
Fourth, the court may also lay down its own guidelines for entertaining PL
cases.28 In India, the High Courts constituted PIL cells back in the 1980s to
deal with PIL by distinguishing the good cases from the bad ones before
the process of admission. In fact, rigidly specifying acts and issues as
public interest matters would actually hamper the interest of the public,
stifling the future growth of PL Public interest can be properly served only
if there is a level of elasticity in the concept so that it can change its shape
to meet the demands of time and social changes without rigors.
In recent times the civil society movement for enjoyment of rights took a
new dimension with the judiciary being increasingly occupied with public
interest cases seeking relief against administrative anarchy and ignorance.
It is interesting to note that the concept of PIL is developing in Bangladesh
as a performance of public duty by civil society groups advocating in
support of progressive ideologies. In 1994 a petition was first taken before
the High Court by BELA on behalf of the people of a given locality where
a disputed development action was being implemented. The petition was at
first rejected by the court on the ground of standing of the organization. An
appeal was preferred from that rejection where the core question was
whether groups like BELA with dedicated and sincere record of activism
can claim to have acquired sufficient interest to seek judicial redress
against anarchy in its own field of action. The question was vital as it was a
constitutional requirement under Article 102 that it is only “a person
aggrieved” who can file petitions for enforcement of fundamental rights.
Being positively responded by the Supreme Court this case became the
turning point in the history of PIL in Bangladesh. The concept of public
interest litigation as has emerged into the judicial administration of
Bangladesh is yet to mature with the concept of justice as guaranteed by
the Constitution. This is a crucial concept in a country like ours where 65%
of the total populace have no or less access to judiciary although the
constitution commits for equality before law, justice, right to life and equal
enjoyment of fundamental rights by all citizens. With obvious socio-
economic constraints and a long history of feudal past, the realization of
legally recognized rights is at its nascent stage.
BELA that led the movement for opening up the horizon of PIL in
Bangladesh has filed the following cases noted below:
This is not an exhaustive list of the cases filed by BELA
1. Dr. Mohiuddin Farooque Vs Election Commission & Others WP
No.186/1994 (Nuisance during Election Campaign)
The first ever-environmental litigation was filed in 1994 in the form of a
Writ Petition in the High Court Division of the Supreme Court of
Bangladesh by a group of environmental lawyers called the Bangladesh
Environmental Lawyers Association (BELA). It was filed against the four
authorities of the Government responsible for the enforcement of various
civic rights, and accordingly, the respondent was the State. The election of
the four Municipal Corporations of the country, held at the beginning of
this year, evidenced gross violation of some legal obligations and,
consequently, interfered with the various rights of the people. The unlawful
activities created by the election campaign resulted in encroaching on
public properties, restricting and depriving the rights to life, property,
enjoyment of public resources, etc. of the city dwellers. The footpaths and
other public places were saturated with election camps; incessant use of
loudspeakers and other noisy instruments rendered life miserable; the walls
of the four major cities of the country where the elections were being held
were all covered with election slogans; unscheduled and unregulated
processions created serious traffic jams, and so on. Repeated appeals by the
Election Commission for showing respect to the laws of the country were
virtually ignored. All this anarchy prompted the institution of a petition
where the Hon’ble Court issued rule nisi upon the respondents asking them
to show cause as to why they should not be directed to comply with the
directive issued by the Election Commissioner touching upon the various
acts and laws and rules. The Court also considered the prayer of the
petitioner to restrain the Election Commissioner from holding the election
till full compliance with the respondents. The rule, however, was disposed
of, following assurance from the Attorney General that the Government
would take all necessary steps to implement all the directives of the
Election Commission.
2. Dr. Mohiuddin Farooque Vs Bangladesh & Others WP No.891/1994
(Industrial Pollution Case)
In 1994 BELA filed this Writ Petition seeking relief against indiscriminate
pollution of air, water, soil and the environment by 903 industries of 14
sectors identified as polluters by the Ministry of Local Government, Rural
Development and Cooperatives (LGRDC) vide Gazette notification dated 7
August 1986. The 14 sectors include Tanneries, Paper and Pulp, Sugar
Mills, Distilleries, Iron and Steel, Fertilizer, Insecticide and Pesticide
Industries, Chemical Industries, Cement, Pharmaceuticals, Textile, Rubber
and Plastic, Tyre and Tube and Jute.
The Notification of 7th August 1986 directed the Department of
Environment (DoE), the Ministry of Environment and Forests (MoEF) and
the Ministry of Industries to ensure within three years that appropriate
pollution control measures were undertaken by those industries. The
Notification also required the said authorities to ensure that no new
industry could be set up without pollution fighting devices. But
unfortunately, even after the lapse of eight years when no measure was
taken the above Petition was filed.
After seven years since the date of filling of the petition on the 15 July of
2001, the court has directed the Directed General, Department of
Environment to implement the decision taken with regard to mitigation of
pollution by 903 industries identified as polluters within the time frame of
six months from the date of the judgment.
The Petitioner pleaded that the ecological system of the country more
particularly the air and water including the major rivers (Buriganga, Surma,
Karnaphuli and so on) are being severely affected by the identified 903
industries and that no affirmative action has been taken in furtherance of
the decisions of the Gazette dated 7thAugust, 1986. Rather the number of
polluting industries has multiplied as the recent list prepared by the DoE
shows that the number of polluting industries have risen up to 1176. The
Court earlier issued Rule Nisi to the Respondents including the LGRDC,
Ministry of Environment and Forest, Ministry of Industries and
Department of Environment to show cause as to why they should be
directed to implement the decisions of the Government dated 5 June, 1986
which was published in the official Gazette. After hearing the Petitioner,
the Rule has been made absolute today and the DG, DoE has been directed
to “Report to this Court after six months by furnishing concerned affidavit
showing that compliance of this Order of this Court”. To ensure
implementation of the Court directions, the Hon’ble High Court further
held that “It will be imperative on the part of the Director General to take
penal action against such department for persons who are responsible for
not implementing the letter of the Environment Conservation Act, 1995.”
3. Dr. Mohiuddin Farooque Vs Bangladesh & Others WP No.
1783/1994 (Doctor’s Strike Case)
This Writ Petition was filed on 3.10.94 by Dr. Mohiuddin Farooque in the
Vacation Bench of the High Court Division of the Supreme Court praying
intervention of the Hon’ble Court in restoring the public medical services
and care all over the country disrupted by the continuous strike of BCS
(Health) Cadre doctors. The petition was filed against the following
respondents: (1) Bangladesh, represented by the Secretary, Ministry of
Health and Family Welfare, (2) the Director General of Health Services,
(3) the Bangladesh Medical and Dental Council and (4) the Bangladesh
Medical Association.
In this writ petition the petitioner challenged the continuance of strike by
the doctors of all the GovernmentMedicalHospitals, Health Complexes and
Centres since September 21, 1994. It was submitted that due to long strike
by the Government Doctors BCS (Health Cadre) in the Government
Medical Hospitals, Health Complexes and Centres the entire system for
getting treatment by the people has become paralysed and the sufferings of
the people knew no bounds. News of sufferings of the people was being
published in the several daily Newspapers everyday for the indefinite strike
by the Government doctors BCS (Health Cadre) through out the country.
Since it was a case of great public importance and since it involves the
interest of the nation as whole, Court issued Rule and grant mandatory
injunction calling upon the respondents to show cause why their failure to
perform their statutory and Constitutional duties to ensure health services
and medical care to the general public, arising out of the abstention from
duties by the striking doctors, since 21 September, 1994 should not be
declared illegal and why they should not be directed to restore, provide and
ensure the public medical services immediately through out the country in
all Government Medical Hospitals, Complexes and Centres and why their
call for an indefinite strike began on 21 September, 1994 resulting thereby
wilful absence of the doctors of BCS (Health Cadre) as members of the
Association from their statutory and public duties causing threat to life and
body should not be declared to have been made against public interest,
without any lawful authority and is of no legal effect.
Pending hearing of the Rule, the Respondents were directed by way of
mandatory injunction to call off the strike of the doctors BCS (Health
Cadre) of all the Government Medical Hospitals, Complexes and Centres
immediately with effect within 24 hours from the date of service of notice
and to join their offices respectively.
4. Dr. Mohiuddin Farooque Vs Bangladesh & Others WP
No.300/1995 (Vehicular Pollution Case)
This writ petition was filed by BELA seeking appropriate direction upon
the Respondents to perform their statutory public duties and functions for
controlling environmental pollution created by motor vehicles and to take
effective measures to ensure the most appropriate mitigative measures,
devices and methods to prevent further aggravation and danger to life and
public health. The petition was filed against 13 Respondents, namely, (1)
The Secretary, Ministry of Communications; (2) The Chairman,
Bangladesh Road Transport Authority; (3) The Secretary, Ministry of
Home Affairs; (4) The Commissioner, Dhaka Metropolitan Police; (5) The
Secretary, Ministry of Environment and Forest; (6) The Director General,
Department of Environment; (7) The Dhaka City Corporation; (8) The
Secretary, Ministry of Health & Family Welfare, (9) The Secretary,
Ministry of Commerce, (10) The Secretary, Ministry of Energy and
Mineral Resources, (11) Chairman, Bangladesh Petroleum Corporation,
(12) The Secretary, Ministry of Industries, and (13) The Bangladesh
Standards and Testing Institution.
In his submission the petitioner stated that the air pollution from faulty
motor vehicles has been universally identified as a major threat to human
body and life. Such pollution in DhakaCity is acute and incompatible with
the conditions required for the growth of human life and ecology. The lives
of the City dwellers and its environment are endangered and the failures of
the respondents in the performance of their statutory and public duties are
depriving people of their fundamental rights disturbing the public peace
creating public annoyance. He submitted that the lead-laced gas emitted
because of the use of leaded petroleum were severely affecting the lungs,
liver, brain and the nervous system, resulting to high blood pressure, IQ
and memory-retention damage among children and damage to foetuses
leading to deformed babies. The high sulphur content in the petroleum, and
hence in the smoke, causes severe damage to the ecology.
The main thrust of Dr. Farooque’s submission was that although the right
to a safe and healthy environment has not been directly specified in the
Constitution as a fundamental right, such a right is inherent and integrated
in the “right to life” as enshrined in Article 32 of the Constitution. Hence,
the right to a sound environment was also a fundamental right under
Article 32 being supported by Article 31 that ensures that no action
detrimental to life, body, property could be taken. Therefore, the failures of
the Respondents in their duties denied the people of their basic
fundamental right.
Upon hearing the Petition, the Court issued a rule nisi upon the Respondent
to show cause as to why they should not be directed to take all adequate
and effective measures to check pollution caused due to the emissions of
hazardous smokes from the motor vehicles and the use of audible signaling
devices giving unduly harsh, shrill, loud or alarming noise.
The matter was pending for a long time and after a lapse of 7 years, on the
27thMarch of 2002 the High Court has directed the government to phase out
all two stroke vehicles from city street by December 2002.
The court also directed that all petrol and diesel-fuelled government
vehicles have to be converted into Compressed Natural Gas (CNG)
powered within six months and pneumatic horns being discarded within 30
days.
It asked the Bangladesh Road Transport Authority (BRTA) to check fitness
of vehicles, using computerized system with immediate effect. The court
also asked the government to ensure international standard of fuel by
reducing or eliminating toxic elements.
The High Court further directed the government to set up adequate number
of CNG filling stations within six months and to ensure that all cars
imported since July 2001 be fitted with catalytic converter.
The government was also asked to strictly comply with its decision to ban
two stroke vehicles of over nine years old.
BELA also prayed for ensuring that the exemption of motor cycles from
the requirement of certificate of fitness under the Motor Vehicles
Ordinance, 1983 be withdrawn immediately which was also directed by the
Court.
On behalf of the government BRTA, Dhaka Metropolitan Police,
Environment Ministry, Department of Environment, Commerce Ministry
and Ministry of energy and mineral resources submitted testimony
(affidavit) in opposition before court.
The matter is pending for further monitoring.
5. Sharif Nurul Ambia Vs Bangladesh & Others WP No.937/ 1995
(Unlawful Construction)
The Petition was filed with legal assistance from Bangladesh
Environmental Lawyers Association (BELA) by Mr. Sharif Nurul Ambia,
Joint General Secretary of Jatiya Samajtantric Dal (JSD).
The Petition was moved by the Secretary General of BELA, Dr.
Mohiuddin Farooque submitting that the DCC has undertaken the
construction of the multi-storied building at the site earmarked for public
car park in the RAJUK Master Plan unlawfully and without the latter’s
approval and hence liable to be demolished. It was further submitted that
the construction was continuing defying DoE’s finding that the said
building would create a disruption to the environment of the area and the
neighbourhood depriving them the right to life, body and healthy
environment against hazardous pollution and obstruction to air and light as
being endangered by the unauthorised construction by the Respondents.
Upon hearing the petitioner, the Court stayed the said construction till
disposal of suit. The rule was ultimately disposed of against which an
appeal is pending before the Appellate Division.
6.Dr. Mohiuddin Farooque Vs Bangladesh & Others WP No. 92/1996
(Radiated Milk)
This petition was filed by Dr. Farooque as a potential consumer seeking
redress against the failure of the authorities in taking effective and
efficacious measures in dealing with the consignment of 125 metric tons
Skimmed Milk Powder which was imported to Bangladesh and was found
by the Atomic Energy Commission to be containing high concentration of
radioactivity.
It was argued that the consumers must be protected against all
unscrupulous activities aiming to release the said consignment of radiated
milk to give meaning to the Constitutional right to life.
The Judgement addressed some vital issues for the first time. While the
authorities were directed to adopt necessary measures to ensure proper
testing of milk, the scope of constitutional right to life was given a broader
meaning. Right to environment was expressly recognised as being included
in “right to life”.
7. Master Issa N.Farooque & Others Vs Bangladesh and Others WP
No.278 of 1996 (Use of Children as Camel Jockey)
Three children filed a Writ Petition before the High Court Division of the
Supreme Court against Bangladesh represented by the Secretary, Ministry
of Foreign Affairs, the Secretary, Ministry of Home Affairs, the Secretary,
Ministry of Social Welfare and the Secretary, Ministry of Women and
Children Affairs questioning the failure of the Government to prevent
camel race using Bangladeshi children as jockeys in United Arab Emirates.
It was submitted that the Petitioners being minors were expressing their
grievances and those of their generation yet unborn for judicial redress
from the adult generation. The Petition pointed out that since 1989 there
have been too many reports in the national and international media that
children and minors of our country were being smuggled out of
Bangladesh illegally to some gulf countries specially the United Arab
Emirates (UAE) for engaging them as jockeys for camel race which
continues for weeks and long distances with the technique of using the
panicking screams of the children as the scary force that makes the camels
run faster. Many children died during such races and in captivity. These
children are kept mal-nourished to ensure their under weight. This inhuman
sport and facts are the end results of a chain of heinous criminal activity
and are shocking for the nation and is especially frightening to the children
of our country.
It was mentioned that the children of Bangladesh have become the subject
of the sports of the rich in violation of their fundamental rights as citizens
of Bangladesh. The law and the Constitution have failed to protect them
and to prevent recurrence of such horror. Once some of these kidnapped,
abducted and trafficked children have been located in the UAE no effective
step has been taken by the authorities including the Foreign Service
officials in Bangladesh diplomatic missions abroad having extravagant life
at the expense of tax-payers money. A number of international media
including the BBC telecasted horrifying visual reports on the Bangladeshi
children presenting dreadful scenario, which psychologically affects the
children. Yet no satisfactory evidence exists to suggest that these children
have been brought back or that no children were being smuggled out to
UAE for the said purpose although there are penal laws both national and
international. Rather in recent newspaper reports it has been stated that a
week long dreadful camel race using the Bangladeshi children were held in
UAE from 31 December, 1995, titled as Grand Zayed Race which has
further shocked the common people specially the younger generation.
It was further submitted that the alleged incidents were threat to the
children of Bangladesh and are clear manifestation of inefficiency of
government in discharging statutory duties and obligations under various
laws of the country and the Constitution of Bangladesh and also the
Convention on the Rights of the Child ratified by Bangladesh on 3 August
1990. But the inaction of the authorities made the future generation panic-
ridden, unsafe, vulnerable and commodities for sports of the rich nations.
Hence, the petitioners have the right to ask for intergenerational justice,
responsibility and equity.
Upon hearing the matter the High Court Division directed the Secretary,
Ministry of Home Affairs to submit a Report on kidnapping, abduction and
trafficking of Bangladeshi children outside Bangladesh especially
regarding their engagement in the Middle East countries as camel jockeys
contrary to the provisions of the Constitution and the International
Convention on the Rights of the Child as has been alleged in the writ
petition and also asked for measures taken by the Government to ensure the
safety of the children of Bangladesh. The Court heard and considered the
Report that Dr. Farooque alleged to be totally vague and incomplete and an
admission of their failure. On hearing the matter the learned Court asked
the Respondents to show cause, why they should not be directed to perform
their respective and collective duties in preventing the kidnapping,
abduction and trafficking of Bangladeshi children outside Bangladesh
specially to engage them in the United Arab Emirates as camel jockeys.
The show cause also alleged that such events were contrary to the
provisions of law, the Constitution and the International Convention on the
Rights of the Child, 1990, for ensuring safe and protected conditions
necessary for the children to live and grow up in Bangladesh. It further
stated that why the Respondents should not be directed to take all
necessary measures to repatriate all Bangladeshi children engaged as camel
jockeys in the United Arab Emirates to Bangladesh and rehabilitate them
with their parents and/or guardians.
It is worth mentioning that following severe protest from the global
community, the Government in UAE in 1993 banned the use of children
under 14 or less than 45 kg as camel jockey. The news upto 2002 suggest
that the Government of UAE has failed to enforce the ban. There has
been recent development, please find it???
8. Dr. Mohiuddin Farooque Vs Bangladesh and Others CA No
24/1995 (Case on Standing)
This Appeal arose from the judgement of the High Court Division
dismissing a writ stating that BELA had no right to sue on behalf of the
people of Tangail where the Flood Action Plan-20 was being implemented.
On Appeal, the Appellate Division granted standing to BELA on 25th July
1996.
The main thrust of the appeal was to get a judicial verdict as to whether a
person or group of persons could be “aggrieved” in ways beyond the strict
traditional concept, which are now emerging in many legal systems, like
suits by evidently public-spirited persons or bodies having proven
dedication. The appeal being allowed is a landmark decision in addressing
the Constitutional knot and riddle that have been prevailing on the
threshold question as to who is an “aggrieved person” for last twenty four
years history of our constitution.
9. Dr. Mohiuddin Farooque Vs Bangladesh & Others (WPNo.998/94)
Sekandar Ali Mondol Vs Bangladesh and Others (WP No.1576/1994)
(Challenging Flood Action Plan-20: Direction for Payment of
Compensation)
In 1994, a Petition was filed by BELA challenging the implementation of
Flood Action Plan-20 in Tangail. The Petition, first rejected by Court on
the ground of Standing of the Petitioner was subsequently sent for hearing
on merit to the High Court after the Appellate Division granted standing
(Bangladesh Legal Decisions, (BLD) 1997 Appellate Division (AD), pg.1).
In the petition, the authorities were accused of violating a number of laws
that provide for compensating affected people for all sorts of loss and
protecting the national heritage. The Court delivered Judgment on 28
August ’97 and observed that “… in implementing the project the
respondents cannot with impunity violate the provisions of law . We are of
the view that the FAP-20 project work should be executed in complying
with the requirements of law.”
10. Dr. Mohiuddin Farooque Vs Bangladesh & Others WP No. 867/97
(Contaminated Drink)
The petitioner Dr. Mohiuddin Farooque, Secretary General of BELA,
bought a 1000 ml bottle of soft drink brand name PEPSI produced by the
Bangladesh Beverage Industries Limited for consumption from a shop in
Dhanmondi. After going back home while he was about to open the said
bottle he found that the liquid in it contained various foreign materials and
substances including dead insects, sediments etc. He, therefore, without
opening the bottle went to various statutory bodies and got the bottle
physically examined and the fact was admitted and recorded by everyone
including BSTI and Institute of Public Health. The petition is filed and
moved alleging that the presence of such materials and substances were the
result of utter failure and negligence in maintaining the acceptable quality,
preventing adulteration, in performing statutory duties, and a detrimental
act to human and public health under various laws of the country and the
Constitution of Bangladesh. It is also stated that although the authorities
were informed including the Respondents, no satisfactory step was taken to
protect the right of the petitioner and the public health and interest at large.
The right to life of the people was endangered by such actions and
inactions of the Respondents. The acts and omissions that had led to such
contamination and the presence of foreign substances and materials were
also criminal offence under various penal laws, stated Dr. Farooque.
After hearing the matter the High Court Division issued show cause notice
on the Ministry, BSTI and the Institute of Public Health for their failure to
take appropriate action against the Pepsi Cola manufacturer. The Court
also asked the Bangladesh Beverage Industries Ltd to show cause why its
license to manufacture Pepsi Cola should not be cancelled. The Matter is
now pending before the Court.
Subsequently, the Petitioner also lodged a criminal case against the
Bangladesh Beverage Industries Ltd. since such contamination and
adulteration were crime. The Chief Metropolitan Magistrate Court also
issued summons upon judicial enquiry and the criminal case was also
pending.
11. Dr. Mohiuddin Farooque Vs Bangladesh & Others WP No.
948/1997 (Uttara Lake Fill-up)
A division Bench of the High Court Division issued an injunction of the
filling up of UttaraLake for housing purposes. The injunction was issued
on an application of Dr. Mohiuddin Farooque, Secretary General, BELA
upon the Secretary, Ministry of Housing and Public Works, Chairman,
Rajdhani Unnayan Kartripakhya (RAJUK) and DG, DoE. The petition was
filed on an appeal from the local residents of Uttara, who accused RAJUK
of creating an environmental hazard in the area by filling up part of the
lake in violation of the original Master Plan of Uttara. The injunction
would remain effective till disposal of the case.
The matter is pending hearing.
12. Dr. Mohiuddin Farooque Vs Bangladesh & Others WP No.
1252/1997 (Unregulated Operation of Brick Fields)
The indiscriminate operation of 19 brickfields in Senbag of Noakhali
District in violation of applicable legal provisions and circular was brought
to the notice of the High Court through the above petition. The petition
filed by BELA on behalf of a local group called Senbag Thana Pollution
Free Environment Committee accused the local administration for being
indifferent towards the environmental havoc created by the brick furnaces.
The management of the brickfields were not conducting their business with
due regard to the legal provisions mandating in favour of sound
environment and health state. Moreover, leasing agricultural land to brick
fields in violation of existing land management laws and manual resulted
in a tremendous pressure on the available stock of agriculture land, as after
a given period the lands do not remain fit for agricultural purposes.
Upon hearing the petitioner BELA, the Court issued a Rule Nisi calling
upon Secretary, Ministry of Land, Deputy Commissioner, Noakhali and
DG, DoE to show cause “as to why the issuance and renewal of licences
permitting operations of 19 brick manufacturing kilns in the Senbag Thana
under Noakhali District causing threat to the natural environment and
health of the neighbouring residents of the area should not be declared to
have been done without any lawful authority and be directed to implement
the circular.”
The matter is now pending for hearing.
13. Dr. Mohiuddin Farooque Vs Bangladesh & Others WP No.
6020/1997 (Hill Cutting Case)
The indiscriminate, unlawful and unauthorized cutting and raising of hills
within the Chittagong City Corporation and its adjoining areas was brought
to judicial notice by BELA through the above petition. The Court on
hearing the petitioner, Dr. Mohiuddin Farooque, directed the DG, DoE to
submit a report on alleged illegal and indiscriminate cutting of hills,
contributing to ecological imbalance and degradation of environment of the
city. The Court further ordered that the report should contain the measures
taken by the Government to prevent such illegal activities. Subsequent
application has been filed under the petition.
The matter is now pending for hearing.
Conclusion
Over the years, Public Interest Litigation (PIL) has emerged as an effective
tool for seeking judicial responses and subsequent government actions to
the socio-economic challenges of the unorganised, powerless and those
segments of the society who are precluded from resorting to legal redress
owing to resource or knowledge constraints. PIL has enabled public-
spirited individuals, groups and conscious citizens to litigate in the interest
of the poor and disadvantaged; and widened the scope for NGOs and civil
society to participate in formulation of pro-people policies and laws.
A PIL (a petition brought before the High Court Division of the Supreme
Court of Bangladesh in the nature of writ under Article 102 of the
Constitution) is generally instituted for the enforcement of the
constitutional and legal rights of the poor and excluded groups as well as
ensuring accountability of concerned government and public authorities
towards issues of public importance. Persistent efforts by NGOs and social
action groups through PIL has, in many occasions, prompted the High
Court Division to issue directives and orders that in turn addressed the
socio-economic concerns of the poor and the marginalized groups.