INTRODUCTION

The primary object of this article is to offer a systematic study of the Writ Jurisdiction of the
Supreme Court of Bangladesh under the 1972 Constitution of the Peoples Republic of
Bangladesh. An attempt has been made to examine the definition of writs, historical basics of
writ, common types of writs, comparison of writs, different types of writs under the constitution,
writ in the international perspective. The article portrays writ jurisdiction of the Supreme Court of
Bangladesh, comprising of the High court Division and the Appellate Division, to be given in the
nature of orders under the 1972 constitution and the Code of criminal Procedure, 1898. Relevant
cases have been cited. Finally, the article summarizes general conclusions making an overall
assessment of the writ jurisdiction of the Supreme Court of Bangladesh.
Definition of Writ
The word Writ means a written document by which one is summoned or required to do or refrain
from doing something.[2] Historically writ originated and developed in British legal system As
defined by Blackstone, writ is a mandatory letter from the king-in- parliament, sealed with his
great seal, and directed to the Sheriff of the country wherein the injury is committed or supposed
so to be requiring him to command the wrongdoer or party caused either to do justice to the
complainant, or else to appear in court and answer the accusation against him.
Initially writs were royal prerogatives. Since only the King or Queen as the fountain of justice
could issue writs, they were called prorogate writs. They were called prerogative writs because
there were conceived as being intimately prerogative writs because they were conceived as
being intimately connected with the rights of the crown. A Prerogative writ was issued only on
some probable cause being shown to the satisfaction of the court. Why the extraordinary power
of the crown is called in to the partys assistance.
The king issued writs through the court of Kings Bench or the Court Chancery. The prerogative
writs were five in numberHabeas Corpus, Certiorari, prohibition, Mandamus, and Quo-
Warranto.[3] The King issued them against his officers to compel them to exercise their functions
properly or to prevent them front abusing their powers.
Subjects being aggrieved by the actions of tile kings officials came to the King and appealed for
redress. And the King through the above mentioned two courts issued them against his officials to
give remedies to his subjects. Gradually as tile governmental functions increased and the
concept of rule of law emerged and the courts became independent. These writs came to be the
prerogatives of the courts instead of the King and lastly they came to be tile prerogatives of the
people, for they are now guaranteed rights in the constitutions (If many countries and citizens can
invoke them as right).
A write is a remedial right for the enforcement of substantive law. A writ literally means a written
order. In England, the writs are issued by the Crown as the head of judicial System. Where there
is no statutory source and the crown issued it by virtue of prerogative, it was called the
prerogative writ e.g. the writ of habeas corpus, mandamus, prohibition, certiourari, quo-warranto.
In Bangladesh, there is no prerogative power belonging to any organ of government. But power
to sue the writ corresponding to the English prerogative writ has been rested in the High court
Division under Article 102 of the constitution. [4]since these writs are founded on the express
provisions of the constitution; the High court divisions are also free to issue appropriate orders in
the nature of those writs, embodying their essential principles.
In Bangladesh, these writs are available not only for the enforcement of fundamental rights
but also for the enforcement of non fundamental legal rights created y various statuses and other
laws enforce for the time being. This jurisdiction to enforce the legal rights is vested in the high
court division under Article 102 of the constitution.
What is writ Jurisdiction?
The Constitution has conferred on the High Court Division (HCD) original jurisdiction only in one
case and that case is the field of writ matters. The basis of writ jurisdiction is Article 102 of the
Constitution of Bangladesh.[5] Writ jurisdiction means the power and jurisdiction of the HCD
under the provisions of the Constitution whereby it can enforce fundamental rights as guaranteed
in part III of the Constitution and can also exercise its power of judicial review. Like Article 32 of
the Indian Constitution and article 22 of the Pakistan constitution of 1956 conferred power on the
Supreme Court to enforce fundamental right and made the right to apply to Supreme Court for
enforcement of fundamental rights itself a fundamental right. Under the constitution, the High
Court Division has power under art.102(1) to pass necessary orders to enforce fundamental
rights under article 44(1) the right to move the High Court Division under article 102(1) is itself
fundamental right.[6] In view of the provision of Art. 44, the High Court Division cannot refuse to
entertain an application under article 102 (1) on the ground that the petition involves resolution of
disputed question of fact. If necessary in appropriate cases, the court will have to take evidence.
The constitution does not stipulate the nature of the relief which may be granted. It has been left
to the High Court Division to fashion the relief according to the circumstances of a particular case.
The constitution has not stipulated any procedure for the remedy and it is for the court to adopt its
own procedure. The high Court Division follows certain rules of procedure and practice in respect
of all writ petitions, whether one involves enforcement of fundamental rights or not.[7] A person
may apply for enforcement of fundamental right when there is a threat to infringe it and need not
wait till the threat is carried out. The threat must be real and mere apprehension that the
petitioner may be deprived of his fundamental right is not sufficient to invoke the jurisdiction of the
court.
Historical Basis Of Writ Jurisdiction
History of writ jurisdiction
In British India a Supreme Court was first established in 1774 under the Regulating Act of 1773.
This court was first empowered to issue prerogative writs. Later two Supreme Courts were
established in Madras (in 1800) and Bombay (in 1823) and these two courts were also given writ
power. In 1862 three Supreme Courts were abolished and in their place three High Courts were
established. These three High Courts were empowered to issue prerogative writs. After the
partition in 1947 India and Pakistan became two independent Dominions. The Indian Constitution
adopted in 1949 gave both the Supreme Court and the High Courts power to issue writs and
specific names of all writs were incorporated in both Articles of 32 (for the Supreme Court) and
226 (for the High Courts). Under the 1956s Constitution of Pakistan both the Supreme Court and
the High Courts were given power to issue writs and specific names of all writs were incorporated
in the Articles 22 for the Supreme Court and 170 for the High Courts. But it was 1962s
Constitution of Pakistan where for the first time a change was introduced in writ matters. Unlike
earlier the Supreme Court was not given any original writ jurisdiction. Only the High Courts were
empowered under Article 98 to issue writs but the particular names of specific writs were not used
in wording of this Article. Provisions were made instead where true contents of each of the major
writs had been set out in self-contained propositions. As to this change Cornelius, C.J.said:
Now in Pakistan we have Article 98, and the ancient names of the writs have been eliminated
from the Constitution, although the categories distinguish themselves easily under those names,
and they will always be used with their specific meanings in judgments. In Article 98 true content
of each of the major writs has been set out in the long form of words. The object probably was to
attain certainty as to the limits within which the courts may act. Previously, in each case the
courts referred to precedents from England, the United States, India and several other countries,
to determine whether they had power to interfere in the case before them. It is perhaps supposed
that this may not be necessary now that the powers are stated not by label, but by full
expression. However, it is to be remembered that the earlier precedents will lose their value as
guidance. In the new article there are verbal changes in respect of the availability of the writ to
public servants, for the protection of their rights in the public service.[8]
Following the instance of the Pakistan 1962 Constitution the Constitution makers of our country
also did not incorporate the specific names of various writs in Article 102 of the Constitution;
rather contents of each of the writs have been kept in self-contained provisions. Why have the
specific names of various writs been omitted?
No specific reasons have been stated by the Constitution makers though it is assumed that for
following two reasons the names of various writs were omitted in 1962 Constitution of Pakistan
and the same applies to the Bangladesh Constitution.
First, in Britain the Administration of Justice (Miscellaneous Provisions) Acts, 1933 and 1938 were
passed whereby mandamus, prohibition, Certiorari and quo-warrnnto were abolished as writs. Of
these mandamus, prohibition, and certiorari have been turned into orders and quo-warranto into
injunction. Thus in Britain there is .only one independent writ and it is habeas corpus. This might
have influenced the Constitution makers of 1962 Constitution of Pakistan in not using the specific
names of various writs.
Second, some writs have limited scope in their application. For
instance, prohibition and certiorari thesetwo writs are basically judicial writs and are applicable
only in respect of judicial and quasi-judicial bodies. Thus if the specific names
of prohibition and certiorari are used, then the courts will not be able to apply them to control
administrative actions for which separate procedure is to be provided for. To avoid this
inconvenience the specific names of writs have not been incorporated; rather provisions have
been inserted so that the contents of those writs are retained and the control of administrative
actions may, as well, be possible by the same device. The words of Munir Qadir, C.J. is pertinent
to mention in this respect
The present Constitution by its 98th Article appears to have made an attempt to reduce
into self-contained propositions. In the course of their evolution some distinguishing incidents
had come to attach separately to some of these writs. Those distinguishing features, it seems,
have not been incorporated in Article 98, apparently because they were not regarded as being of
the essence of the remedy. The conditions of exercise of jurisdiction in relation to the various
writs have thus become more uniform. As a consequence, in some cases the field covered by the
earlier writ has become somewhat enlarged. The writ of certiorari, for example, was available
originally in respect of judicial or quasi-judicial determination only. It was not available in respect
of non-judicial determinations. Article 98 has not preserved any such distinction, with the result
that all orders passed in excess of lawful authority, whether by judicial, quasi-judicial or non-
judicial functionaries, are equally liable to be declared as being of no legal effect.[9]
Now we will investigate Article 102 of our Constitution to see how the true contents of each of the
major writs have been set out into self contained propositions.
As Article 102 proceeds-
 The High Court Division may, if satisfied that no other equally efficacious remedy is provided
by law if on the application of any person aggrieved, make an order-(j)
Directing a person performing any function in the affairs of the Republic or of a local authority to
refrain from doing that which he is not permitted by law to do.
This italic- part of the section contains the true idea of prohibition. Here which he is not permitted
by law means that he may be about to misuse or abuse his power or to act in excess of his
jurisdiction prescribed by law. In such a case the High Court Division, on application, may issue
the writ of prohibition with a view to prohibiting or refraining the person concerned from doing that
act.
The same sub-Article continues:-
to do that which he is required by law to do. This part of the Article contains the true concept
of mandamus, to do that which he is required by law to do means that the person concerned is
under statutory obligation to do something but he has refused or failed to perform his obligations.
In such a case the HCD by issuing the writ of mandamus, can compel the person or authority to
perform his statutory obligation.
Now the sub-Article 102(2) (a)(ii) proceeds-
Declaring that any act done or proceeding taken by a person performing functions in connection
with the affairs of the Republic or of a local authority has been done or taken without lawful
authority and is of no legal effect. Here lies the concept of certiorari.
Now the sub-Article 102(2) (b)(i) proceeds-On the application of any person, make an order-
(i) Directing that a person in custody be brought before it so that it may satisfy itself that he is
not being held in custody without lawful authority or in an unlawful manner. Here the very concept
of the writ of habeas corpus is hidden.
Lastly sub-Article 102(2) (b)(ii) states Requiring a person holding or purporting to hold a public
office to show under what authority he claims to hold that office -this part contains the concept of
quo-warranto.
CLASSIFICATION OF WRITS
There are five types of writs which in details described as follows.
1. Writ of Habeas Corpus
2. Writ of Mandamus
3. Writ of Prohibition
4. Writ of Certiorari
5. Writ of Quo-Warranto
Writ of Habeas Corpus
The word habeas Corpus means have his bodies. To have the body before the court. So it is a
kind of order of the court that commands the authorities holding an individual in custody to bring
that person into court. The authorities must then explain in the court why tile person is being held.
The court can order the release of the individual if the explanation is unsatisfactory.[10] Thus the
writ of Habeas Corpus is a process for securing the personal liberty of the subjects by affording
an effective means of immediate release from unlawful or unjustifiable detention, whether in
prison or in private custody.[11] This writ is the most important weapon forged by the Ingeminate
of man to secure the liberty to the individual. There is no judicial process more familiar or
important than this. Lord Acton points out that it is often said that the British Constitution attained
its find perfection in 1679 when Habeas Corpus Act was passed.
This is a British Law for the protection of liberty of a subject against his illegal detention in public
or private custody since 1640. The Kings Bench issues writ of habeas corpus to examine as to
whether a person was illegally detained in custody.
Under sub-clause (i) of clause (b) of sub-article (2) of article 102 of the Bangladesh Constitution,
the High Court Division, on the application of any person, directs that a person in custody be
brought before it to satisfy itself as to whether he is being held in custody with or without lawful
authority. If the Court finds that he is being illegally held in custody by the authority, it then can
declare the same to be without lawful authority.[12] Section 491 of the Code of Criminal
Procedure also authorizes the High Court Division to issue a direction in the nature of a write of
habeas corpus to bring before it a person detained in public or private custody in order to see as
to whether he is being detained illegally or improperly. If the High Court Division finds that such a
person is being held in custody, illegally or improperly, it then directs the detaining authority or
person to set him at liberty.
Writ of Mandamus
Literally the term mandamus means we command and reminds one of the times when the king
of England as the autocratic head of a vast administrative system had occasion to mandamus
his subjects many times in the course of the day .In Halsburys Laws of England mandamus is
described as follows
The order of mandamus is an order of a most extensive remedial nature, and is in form, a
command issuing from the High Court of Justice directed to any person. Corporation or inferior
tribunal, requiring him or them to do some particular thing therein specified which appertaining to
his or their office and is in the nature of public duty.
Thus it can he said that when a court or tribunal or an authority or a person has refused or failed
to perform his statutory obligation, it is the writ of mandamus by which the higher court can
compel the authority or court or person to do his statutory obligation. So mandamus is a positive
remedy.[13]
This remedy is available when any right of a person, arising from any law and not from any
contract, is violated.[14] The applicant must show that he has a legal right to the performance of
legal duty by the person or authority against whom the writ is prayed for.
In Lakhi Ram v. Haryana[15] the appellant prayed for mandamus challenging the action of the
government expunging adverse remarks in the annual confidential report of an officer claiming
that the judgment would prejudice his chance of promotion. The High Court dismissed the
application on the ground that the appellant had no locus standi.
Mandamus may issue on any person performing functions in connection with the affairs of the
Republic or of a local authority. Such a person must hold office of a public nature, that is, an
office under the Constitution or a law relating to the affairs of the Republic or of a local authority.
[16] It will issue only when that public functionary has a public duty under a law and he refused to
perform his legal duty; the duty may be judicial, quasi-judicial or purely administrative. The duty
sought to be enforced must be a duty of a public nature.
Thus mandamus may issue on the government to implement its own decision under certain
circumstances, to pay leave salary, or allowance, or future salary, to restore seniority of a
government servant or to forward to the President a competent appeal of a government servant
to issue necessary clearance for delivery.
Writ of Prohibition
Prohibition is an original remedial writ, as old as the common law itself. Originally the primary
purpose of prohibition was to limit the jurisdiction of the ecclesiastical courts. Prohibition as a writ
means one which prevents a tribunal possessing judicial or quasi- judicial posers from exercising
jurisdiction over matters not within its cognizance. Thus prohibition is originally a judicial writ
since it can be used against a judicial or quasi-judicial body and not against an administrate e
body or public corporation or body. But no longer ii remains limited to he used only against
judicial and quasi-judicial body. The wording in 1962 Constitution of Pakistan and also in present
Bangladesh Constitution makes it clear that this writ can be used against any public body.
It may, therefore, he said that hen a court, or a tribunal or an authority or a person is about to
violate the principles of natural justice or is about to abuse the power or is about to act in excess
of its jurisdiction, the higher court by issuing a writ of prohibition can prohibit the tribunals, or
court or authority from doing such act. The Principle 0f natural Justice basically means principles
of 1. No one should he condemn unheard: & 2.No one can he a judge of its own Cause.
Prohibition can prohibit the tribunal, court or authority from doing such act. So prohibition is a
preventive remedy.[17]
Prohibition means to forbid from doing something. In other words, it is a writ issued by the
superior court to a lower court, tribunal or administrative authority prohibiting it from doing
something which it is not authorized by law to do. Prohibition is a preventive writ and issued to
stop illegal exercise of power of jurisdiction to the detriment of any legal right of a person. Sub-
clause (i) of clause (a) of sub-article (2) of article 102 of the Constitution authorizes the High
Court Division to direct a person performing any functions in connection with the affairs of the
Republic or local authority to refrain from doing what he is not permitted by law to do. Since both
certiorari and prohibition have the same object in view, the prevention of usurpation of
jurisdiction by judicial and quasi-judicial bodies, the primary difference between the two writs
being as to the stage at which the writ is available, it follows that the grounds on which prohibition
will issue are the same as those on which v will issue (if the Petitioner comes to court after the
tribunal has already made the order without jurisdiction) Thus, prohibition will issue to prevent the
tribunal from proceeding further, when the tribunal
(a) Proceeds to act without or in excess of jurisdiction.
(b) Proceeds to act in violation of the rules of natural justice.
(c) Proceeds to act under a law, which is it.
(d) Proceeds to act in contravention of fundamental rights.
Prohibition will lie only against judicial or quasi-judicial proceedings and not against the exercise
of legislative or executive [18] functions, or against private persons or associations, who cannot
he called an authority In short, a writ of prohibition is available only against such authorities as
are amenable to the jurisdiction.
Writ of Certiorari
The term certiorari means to be certified or to be more fully informed of. The writ of certiorari
is so named because in its original form it required the King should be certified of the
proceedings to be investigated. This writ was drawn up for the purpose of enabling the Court of
Kings Bench to control the action of inferior court and to make it certain that they should not
exceed their jurisdiction; and therefore, the writ of certiorari is intended to bring into the High
Court the decision of inferior tribunal, in order that the High Court may be certified whether the
decision is within the jurisdiction of the inferior courts.
Initially at common law in Englandcertiorari used to be used either forms the Kings Bench or the
Chancery for the purpose of exercising superintending control over inferior courts.
So certiorari was necessarily a judicial writ at initial stage. But gradually, the jurisdiction was
enlarged to include within its fold all authorities performing judicial, quasi-judicial and even
administrative functions. Thus certiorari is no longer a judicial writ. When a court or a tribunal or
an authority or a person has already violated the principle of natural justice, or misused the power
or acted in excess of its jurisdiction, the higher court by issuing certiorari can quash that act can
declare that act illegal. This is Certiorari.[19]
So it can be said that when a court or a tribunal or an authority or a person has already violated
the principle of natural justice, or misused the power or acted in excess of its jurisdiction, the
higher court by issuing certiorari can quash that act i.e. can declare that act illegal.
An administrative officer or authority may be given jurisdiction to determine some facts on proof
of which he can pass an order and in that case he will act in a quasi- judicial manner for the
determination of those facts and his determination validly reached will support his order in
relation to those facts. For instance the government may be empowered to acquire property if it is
satisfied of the existence of a public purpose for such acquisition. If the government validly
reaches a conclusion as to the existence of a public purpose its order will be legal provided of
course that the circumstances which it has found to exist do in law constitute a public purpose.
R v. Lincolnshire Justice Exp,[20] When an adotticer acts illegally, he acts without jurisdiction. An
administrative officer try to pass order or to take action if certain facts exist, If those essential
listed not exist his order or action is void. Writ of certiorari misinterpretation of public purpose.
It is the Court which will decide what is meant by public purpose. In the same way Professor
Wade observed, In administrates prescribed statutory ingredients will more readily he lies
collateral. This is probably because, in contrast to judicial ii.
In Abdur Rahman v. Sultan [21] Where the person complaining knew of holding of local
investigation by Advocate Commissioner, hut did not take step to file any objection against the
report) the authority on receipt of complaint issued a notice to show cause why action to cancel
or suspend the permits should not be taken.
The court found the notice to be bad as the proposed action had to be particularized with
reference to each of the permits detailing particular conditions for breach of which action was
sought to be taken in connection with each of the permits. A bald notice covering all the permits
could not be issued.
Thus whether a judge gave an actually biased judgment is not material, the judgment is vitiated if
there a real likelihood of the judge being biased. We come across three steppes of bias
pecuniary, personal and official and we shall deal with them.
Writ of Quo Warranto
The term Quo warranto means by what warrant or authority. Quo warranto is a writ by which
any person who occupies or usurps an independent substantive public office or franchise or
liberty, is asked to show by what right he claims it, so that the title to the office, franchise or liberty
may he settled and unauthorized occupants ousted by judicial order.
More precisely, it can he said that when a person illegally holds a public office created by law the
higher court, on the application of any person, can, by issuing quo warranto, ask the person to
show Of what authority he holds the office and can make him not to hold such office further.[22]
Writ of quo warranto provides remedy against illegal occupation or usurpation of any public office
or franchise or liberty. It enables inquiry into the legality of the claim, which a person asserts to an
office or franchise and to oust him from such position, if he is a usurper.[23] The holder of the
office has to show to the court under what authority he holds office. Such remedy is available
under sub-clause (ii) of clause (b) of sub-article (2) of article 102 of the Constitution from the High
Court Division.
Art. 102(2)(b)(ii) provides that on the application of any person the High Court Division may
inquire whether a person holding or purporting to hold any public office is holding it under a legal
authority. This is jurisdiction to issue writ in the nature of quo warranto. This writ is used to ensure
that no one can hold any public office without having a valid claim to that office.
The writ lies against a person who claimed or usurped an office, franchise or liberty, to inquire by
what authority he supported his claim, in order that the right to the office or franchise might be
determined. It also lay in cases of non-user, abuse, or long neglect of a franchise.
A writ of Quo warranto will issue in respect of an office only if the following conditions arc
satisfied:
I. The office must be public.[24] It will not lie in respect of office of a private charitable
institution or of a private association. Thus, the Managing Committee of a private school, even
though a small section of the public, the students and their guardians are interested in the school,
is not an office of a public nature of the purpose of Quo warranto.
The test to a public office is whether the ditties of the office are public in nature in which the
public are interested whether it is or is not remunerated. However, payment of remuneration out
of public funds will be a specific test.
II. The office must be substantive in character, i.e., an office independent in title. It is not,
therefore, applicable to ministerial offices that hold office at the pleasure of the master.
Broadly stated, the quo warranto proceeding affords judicial inquiry in which any person holding
an independent substantive public office, or franchise, or liberty, is called upon to show by what
right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder
of the office has no valid title to it. The issue of the writ of quo warranto ousts him from that office.
In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to
control executive action in the matters of making appointments to public offices against the
relevant statutory provisions;[25] it also protects a citizen from being deprived of a public office to
which he may have a right. In order that this writ may issue, the office must he a public office of a
substantive character created by the Constitution, statute or authority power.
A public office is a right under his duty, created and conferred by law, by which an individual with
some portion of the sovereign functions of the government to hi exercised by for the benefit of the
public, for the his the tenure prescribed by law and thus it is an office public have interest.
But the writ will lie in respect of held at pleasure. Provided that the office is one of a public
character. It has been held that the office of Speaker of a public office and writ can issue to him to
inquire by the petitioner prayed for the writ on the allegation that the respondent was not qualified
to be the Advocate-Genial as 1ie exceeded the age limit and the court held that the office of the
Advocate-General is a public office.
The membership of Privy Council was held to be a public office though held at the pleasure of the
Crown. The office of the Chief Justice or a Judge of the High Court is a public office and a writ
may lie against him.
The writ will lie against Ministers, members of Parliament. (Chairman of municipality, members
of Municipal board administrator of Municipal Corporation appointed by the government.
Engineer of Municipal Board member of Bar Council, Chairman or member of Union Parishad,
member of Senate or Syndicate of a University, Dean of a Faculty in a University, Chief
Metropolitan Magistrate, government pleader or against members of civil service. If there was
any complaint about the appointment or promotion of an officer who was not eligible under the
rules to be appointed or promoted, the proper remedy was to make an application for quo
warranto. The writ will not issue to question the claim to any office of a private association,
institution or college or school or a private corporation. Professors and Readers of Major
University were not held to be holding any public office and no writ would lie against them.
Appointment made as stop-gap arrangement such as an appointment of a Chief Minister pending
his election within six months was held not liable to be questioned.
In M. D. WASA v. Superior Builders & Engineers Ltd. [26]a commercial contract was involved.
WASA illegally terminated the contract. The High Court Division held the writ petition maintainable
to give relief. The Appellate Division rejecting the plea of non- maintainability of the writ petition
observed, Basically, the principle is that, a writ petition cannot be founded merely on a contract,
but when a contract is concluded the contractor has a legitimate expectation that he will be dealt
with fairly. The doctrine of fairness was introduced to give aggrieved persons a right to a hearing.
The doctrine of legitimate expectation is a further extension of the fairness doctrine to give a right
to hearing. The doctrine is now being pressed in aid to deal with arbitrary change of policy.
The burden of proof is primarily on the petitioner who is required to bring sufficient materials on
record in support of his case. Like the presumption of constitutionality of law, there is a
presumption that official business has been regularly performed and the burden to prove the
contrary is on the petitioner. Where both the sides have led evidence in support of their
respective cases, the question of onus oh proof fades into insignificance and the court is to take
decision on the preponderance of evidence. In the absence of relevant and reliable materials on
both sides, the court may. In certain circumstances, come to a finding as to whether the
impugned action is arbitrary or not.
Difference between Writ of Prohibition & Writ of Certiorari
I. The grounds of both the writs are same but the distinction lies in that prohibition is a preventive
remedy while certiorari is a curative or corrective remedy.[27] Thus prohibition applies where the
authority is about to misuse the power whereas certiorari applies where the authority has already
abused the proper.
2. A writ of certiorari will be issued when the proceeding is closed, while an order
of prohibition can be issued only so long as the.
Proceeding remains pending. It cannot be issued after the authority has ceased to exist or
becomes functus ofiicio.
3. Prohibition is issued with a view to stop an act lustrating whereas certiorari is to quash or
declare the act illegal.
WRIT UNDER BANGLADESH CONSTITUTION
According to the Article-102 of the Constitution of the Peoples Republic of Bangladesh
(1) The High court division on the application of any person aggrieved may give such directions
or orders to any person or authority including any person performing any function in connection
with the affairs of the Republic, as may be appropriate for the enforcement of any of the
fundamental rights conferred by the part iii of the Constitution.
(2) The High Court Division may, if satisfied that no other equally efficacious remedy is
provided by law.
(a) On the application of the any person aggrieved, make an order.
(i) Directing a person performing any functions in connection with the affairs of the Republic or of
a local authority to refrain from doing that which he is not permitted by the law to do or to do that
which he is required by law to do. [28]
(ii) Declaring that any act done or proceeding taken by a person performing functions in
connection with the affairs of the Republic or of a local authority has been done or taken without
lawful authority and is no legal effect.
(b) On the application of any person, make an order
(i) directing that a person in custody be brought before it so that it may satisfy itself that he is not
being held in custody without lawful authority or in unlawful manner or
(ii) Requiring a person holding or purporting to hold a public office to show under what authority
he claims to hold that office.
(3) Notwithstanding anything contain in the foregoing clause,[29] the High Court Division
shall have no power under this article to pass any interim or other order in relation to any law to
which article 47 applies.
(4) Whereon an application made under clause (1) or sub clause (a) of clause (2) an
interim order is prayed for and such interim order is likely to have the effect of
(a) Prejudicing or interfering with any measure designed to implement any development
programmed or any development work.
(b) being otherwise harmful to the public interest, the High Court Division shall not make
an interim order unless the Attorney General has been given reasonable notice unless the
application and he has been given an opportunity of being heard, and the high court division is
satisfied that the interim order would not have the effect referred to in sub-clause (a) or sub-
clause (b)
(5) In this article unless the context otherwise requires, person includes a statutory public
authority and any court or tribunal, other than a court or tribunal established under a law relating
to the defense service of Bangladesh or any discipline force or a tribunal to which article 117
applies.
Article 44 of the Constitution, Enforcement of fundamental rights:(1): The right to move the High
Court Division in accordance with clause (1) of the article102 for the enforcement of the rights
conferred by this part is guaranteed.
(2) Without prejudice the to the power of the High Court Division, under article 102, parliament
may by law empower any other court, within the local limits of its jurisdiction to exercise all or any
of those powers.[30]
The name of the various writs has not been used in our Constitution but the true contents of each
of the major writs have been set out in self-contained propositions. As Article 102 proceeds-
The High Court Division may, if satisfied that no other equally efficacious remedy is provided by
law
(a) On the application of any person aggrieved, make. An order
(i) Directing a person performing any function in the affairs of the Republic or of a local authority
to refrain front doing that is not permitted hi law to do.
This portion of the section contains the true idea of prohibition. Here which he is not permitted by
law means that he may be about to misuse or abuse his power or to act in excess of his
jurisdiction prescribed by law. Thus in these cases the High Court division, on application, will
issue the writ of prohibition with a view to prohibiting or refraining the person from doing that act.
The same sub-Article continues to do that which he is required by law to do. This part of the
article contains the true concept of mandamus. To do that which he is required by law to do
means that he is under statutory obligation to do something but he has refused or failed to
perform his obligations. In such case the High Court division by issuing the writ of mandamus,
can compel the person or authority to perform his statutory obligation. Now the sub-Article 102(2)
(a) (i) proceeds declaring that any act done or proceeding taken by a person. Directing that a
person in custody he brought court it So that it may satisfy itself that he is not being held in
custody without lawful authority or in an unlawful manner.
And the sub-Article 102(2) (a) (ii) statesrequiring a person holding or purporting to hold a
public office to show under what authority he claims to hold that of the
This part contains the concept of Quo-warranto.
Other Provisions
Section-491 of the Code of Criminal Procedure: Power to issue directions of the nature of
a Habeas Corpus (1) The High Court Division may, whenever it thinks fit, direct-
(a) That a person within the limits of its appellate criminal jurisdiction be brought up before the
Court to be dealt with according to law.[31]
(b) That a person illegally or improperly detained in public or private custody within such
limits be set a liberty.
(c) That a prisoner detained in any jail situate within such limits be brought before the
Court to be there examined as a witness in any matter pending or to be inquired into in such
Court.
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any
Commissioners for trial or to be examined touching any matter pending before such Court-martial
or commissioners respectively.
Enforcement of Fundamental Rights
Article 102 of the constitution empowers the high Court Division to give appropriate directions of
orders to any person or authority for the enforcement of any of the fundamental rights. Persons
performing functions in connection with what affairs of the Republic are also amenable to this
jurisdiction of the High court division.
However, there must be an application by an aggrieved person so that the High Court Division
may pass an order or direction for the enforcement of a fundamental right. If any act or
proceeding violates any of the 18 fundamental rights enumerated in the constitution the order or
direction will be issued to remedy the grievance.[32] In the case of Md. Shoib v.
Bangladesh [33] the petitioner, one of the three partners of a partnership firm, filed a writ petition
at the high court division challenging the validity of a government order staying a proceeding for
release and handing over possession of the said partnership to the petitioners which affected the
petitioners fundamental right to freedom of profession or occupation contained in Article 40 of the
constitution. While disposing of the writ petition D. C Bhattacharya J. observed.
Any person aggrieved by any order or act may move this court for relief against such order or act
and the petitioner being very much affected by the impugned order has every right to move this
court for necessary orders. Therefore, we think that the petition is quite maintainable.
If the infringement of fundamental right is established, the enforcement of the fundamental right
becomes obligatory upon the High court Division and exhaustion of all other equally efficacious
remedy provided by law is not necessary. As in Sarwari Begum v. Bangladesh [34] in which the
petitioner filed a writ petition for the enforcement of fundamental right guaranteed under Article 42
of the Constitution to hold her purchased house alleging that the illegal enlistment of the house
as abandoned property has encroached on her fundamental right, Naimuddin Ahmed, J.
observed;
Since the petitioner has sought remedy by enforcing Clause (1) of Article 42 of the constitution
which is a fundamental right guaranteed under the constitution, this application can also be
treated as an application under Clause of Article 102 of the constitution for enforcement of a
fundamental right guaranteed to the petitioner under Article 42 of the constitution, and as such,
the petitioner being a person aggrieved by enlistment of the disputed house as abandoned
property can maintain an application before this Court irrespective of whether she has other
equally efficacious remedy or not.
The constitution does not mention the relief which may be granted to redress the violation of
fundamental rights. It has been left to the high court division to fashion the relief according to the
circumstances of particular case. It may be one injunctive relief preventing the infringement the
nature of various kinds of prerogative writs.
In this context, the observations made by M.A. Jabir, J. in Bangladesh us. Ahmed Nazir are of
direct relevance; We have, accordingly, no doubt that the framers of the constitution intended to
empower the high court Division to pass appropriate orders and the power to do so is not at all
fettered because of the absence of nomenclature of the nature of write in the constitution.
Violation of the Principles of Natural Justice
An act of a person performing functions in connection with the affairs of the Republic or of a local
authority to be permitted by law must be in consonance with the basic principles of natural
justice. According to these principles, before taking any action against a man, the authority has to
give him notice of the case, a fair opportunity to answer the case against him and to put his own
case.
A notice is the minimum obligatory condition where a stature requires notice to be given. Any
action without service of the notice to the party concerned is not permitted by law. Even when a
stature is silent, notice is to be given if any person is sought to be affected in his right, interest,
property or character. Thus is Abdur Rouf v. Ministry of LGRD[35] the chief election
Commissioner ordered for candidate securing the highest number of the recounting of votes
without giving to the votes notice and opportunity of hearing, Kazi Ebadul Haque J., Held:
When an administrative authority decides a matter bought before it, such authority has to act
fairly and justly. If a person is likely to be affected by such order or decision of such administrative
authority, the person to be affected is to be given an opportunity of being heard. otherwise the
order will be without jurisdiction and void.
In this case we find that the Election commissioner neither notified the respondent No. 10 who
secured the highest number of votes nor be was beard .. As such the order passed by the
Chief Election Commission for recounting of votes is wholly without jurisdiction and void.
But failure to issue notice may not be fatal where the person complaining was aware of the
proceeding and did not take step to file his objection. This point may be illustrated by the facts
of Abdur Rahman v. Sultana [36] wherein the person complaining knew of holding of local
investigation by Advocate Commissioner, but did not take any step to file objection against the
report. Badrul Haider Chowdhury J. Observed: Equity aids the vigilant, when the two parties are
litigating over a matter, equity aids the vigilant, when the two parties are lighting over a matter,
equity will not come to the aid of an indolent party who does not keep track of the course of
proceeding.
`Another requirement of natural justice is that the person likely to be affected by the act of the
person performing functions in connection with the affairs of the Republic or of a local authority
must be given an opportunity of hearing. A hearing to be fair, the authority should (a) receive all
relevant materials which the person concerned products (b) disclose all information, evidence or
materials which the authority wants to use against the person in arriving at his decision, and (c)
afford opportunity to the person to controvert the information or material sought to be used
against him. In this context, Ruhul Islam J. While delivering judgment of the appellate Division
in M. A. Hai v. TCB [37] held: When on employee is sought to be punished on a chare of
misconduct, examination of witness in support of the charge should be in the presence of the
employee and the employee should be given the opportunity of cross examining the witness.
Another principle of natural justice requires that a biased act is not permitted by law. It has
been dealt with in Murari Mohan Das v. Bangladesh[38] The fact of the case was that the same
person who was a witness to the incident that the accused Ticket examiner took fare from the
ticket has travelers also acted as the Inquiry Officer and his decision was influenced by his own
knowledge about the matter in issue. When no evidenced was available against the petitioner,
the Inquiry Officer supplied the deficiency by his personal knowledge violating the principles of
natural justice. It was held by Shahabuddin Ahmed, J. Same person can not be judge and a
witness at the same time.
Writ Jurisdiction of the Appellate Division
Article 104 of the 1972 Constitution of Bangladesh empowers the Appellate Division to issue such
directions, orders, decrees or writs as may be necessary for doing complete justice in any cause
or matter pending before it. In exercising its appellate jurisdiction only, the Appellate Division can
interfere if it can be shown that the exercise of the writ jurisdiction under Article 102 of the
Bangladesh Constitution by the High court Division is plainly arbitrary or unreasonable or is not in
accord with the accepted principles governing its exercise. As in Controller of
Examinations D.U. v. Mabimuddin, [39] the appellate division set aside the judgment of the high
court division as discretion was exercised upon misconception of law relating to availability of
efficacious remedy. In this case on an allegation of adoption of unfair means in the examination,
the appellant controller withheld the results of 425 examinees. Input of availability of alternative
remedy by way of appeal to the Chancellor, the examinees filed a writ petition which was allowed
by the high Court division. In allowing the appeal filed by the controller of Examinations, D.U.
Shahabuddin, C. J. held: High Court Division is fund to have wrongly decided the maintainability
of the writ petition.
WRIT JURISDICTION IN THE INTERNATIONAL PROSPECTIVE
U. K.
In the sense in which judicial review is understood in England, it is the power of a Court to hold
illegal and hence unenforceable any action by a public official or any judicial or quasi-judicial act
or proceeding of Subordinate Courts and tribunals or other administrative bodies and to enforce
their performance of statutory duty. The principle has been extended in written Constitutions to
cover the power of a Court to declare a law and even a constitutional amendment
unconstitutional on the ground of its inconsistency with or repugnance to the Constitution. In later
years, judicial review has come to embrace the power of a Court to enforce the fundamental
rights guaranteed by the Constitution and also to declare a law or an official action to be invalid if
it contravences a fundamental right.[40]
As Dicey demonstrated a century ago, abstract declarations of the rights of man are of little
value unless there are definite means or machinery for such rights in case any of those rights are
violated by the State or its officials. He insisted that even where such rights are guaranteed by a
written Constitution, as in the U.S.A.what is more important is not declaration of the rights in the
Bill of Rights, but the means of enforcing those rights under the American constitutional system.
Conversely, he added, a basic right, such as the right to personal liberty existed in the U.K. even
in the absence of any guarantee by a written Constitution, because the ordinary law provided the
means of redress if an Englishmans personal freedom was violated by government action.
Remedies provided by ordinary law in U. K.
In England, individual rights are safeguarded, even without any declaration that they are
fundamental, by means of the prerogative writs, which have been called the bulwork of English
liberty.
Briefly speaking, they were called prerogative writs because they were extraordinary remedies
which originated in the royal prerogative (discretionary power), namely, the writs of habeas
corpus, mandamus, position, certiorari and quo. warranto.
Prerogative writs, meaning of
As stated above, the writs of habeas corpus, mandamus, prohibition, certiorari and quo
warranto were known in English common law as prerogative writs, as distinguished from writs of
right e. g. a writ of summons, which could be obtained by a suitor as a matter of a right (to
commence on action). A prerogative writ was issued only on some probable cause being shown
to the satisfaction of the Court why the extraordinary power of the Crown is called in to the
partys assistance.
Modernising the Prerogative writs
As observed by the House of Lords, owing to the great increase in the number of administrative
bodies since the second World War, leading to a greater interference with the rights of ordinary
citizen, the law relating to judicial control over these bodies has had to be relaxed, and many of
the technical rules relating to the prerogative writs have been abandoned or modified to pave the
way for judicial relief in a larger number of cases. This change has taken place by stages.
U.S.A
American colonists brought with them the English common law. So, When the Constitution was
drafted, the colonists were already familiar with the use by their Courts of the prerogative writs.
The framers of the Constitution, therefore, assumed the existence of these writs and their only
anxiety was that the power to issue the writs should be above the reach of the Executive and the
Legislature, and so they engrafted in the Constitution [Art. is. 9(2)], safeguarding the writ
of habeas corpus against suspension except in national emergencies, assuming that it was
available without a constitutional guarantee. There is no provision in the Constitution authorizing
the suspension of the writs other than habeas corpus even in emergencies.
But the use of the writs and the Courts which are empowered to issue them are regulated by
legislation. The Judiciary Act of 1789 (5. 14), thus empowered all Courts of the United States to
issue writs of scire facias, habeas corpus and all other writs not specially provided for by statute,
which may be necessary for the exercise of their respective jurisdictions, and agreeable to the
principles and usages of law.
It follows that the power of the American Supreme Court to issue the writs is conferred and
regulated by ordinary law.
The Court will refrain from pronouncing upon abstract, contingent or hypothetical issues. It will
decide a case or controversy between bonafide adversaries. In 1911 the U.S. Supreme Court
gave the leading decision on this maxim in the case of Muskrat v. United States,[42] An Act of
Congress authorised Muskrat and other to bring suit in the U.S. Court of Claim, with an appeal to
the Supreme Court to determine the validity of certain Acts of Congress which altered the terms
of some prior allotments of Cherokee Indian lands. Justice Day, delivering the unanimous
judgment, rejected the appeal for not meeting the case or controversy requirement.
If such actions as are here attempted, to determine the validity of legislation are sustained, he
said, the result will be that this Court, instead of keeping within the limits of judicial power and
deciding cases or controversies arising between opposing parties, as the Constitution intended it
should, will be required to give opinions in the nature of advice concerning legislative action, a
function never conferred upon if by the Constitution.
The Court will not pronounce upon the constitutionality of a statute or of an official action at the
instance of one who has availed himself of the benefits and then turns back to challenge its
legality. In St. Louis v. Prendergast Co.[43] a company connected its premises with a new sewer
and availed itself of its benefits. It then challenged the validity of the statute which provided for a
tax levy against recipient of the services. The U.S. Supreme Court unanimously held that by
accepting and availing himself to the benefits of the construction and zoning involved the
company was estoppled from maintaining a suit on the grounds and under the circumstances.
This is in effect an extension of the principle of not allowing anyone to blow hot and cold at the
same time and to disallow approbation and reprobation. The Court looks askance at any attempt
to have the judicial decision-cake and eat it too.
The cardinal principle of statutory construction, wrote Chief Justice Hugest in United States v.
Carolene Products Co.[44] is to save and not to destroy We have repeatedly held that as
between two possible interpretations of a statute, by one of which it would be unconstitutional
and the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious
doubt the rule is the same.
If the decision of a case can rest on an independent and separate ground, the Court will not
decide questions of a constitutional nature. A5 Justice Frankfurter said, This Court (U.S.
Supreme Court) reaches constitutional issues last, not first. Justice Brandeis succinctly put ii
(the) most important thing we do is not doing.
The Court will not ordinary impute illegal motives to the lawmakers. In Barenblatt v. United
States,[45] Justice Harlan observed, The judiciary lacks authority to interval on the basis of the
motives which spurred the exercise of that power.
India
Fundamental right
When a legal right is created and guaranteed by the Constitution, it is called a fundamental right
because it is secured by the fundamental law, i.e. the Constitution of the State. Art. 19 of the
Indian Constitution thus, confers a number of substantive fundamental rights on every citizen of
India, e. g. the right to freedom of expression, assembly, association, movement, residence and
profession.
The Constitution of India does not rest with the creation of these substantive rights but also
provides for their enforcement, as Art. 32 (and Art. 326) The rights created by Art. 32(1) is a
remedial right.
Earliest writ Jurisdiction of the courts in India
(i) Calcutta.-A Royal Charter, date 26 th March, 1774 was issued by George III in pursuance of the
Act of 1773, which established the Supreme Court at Calcutta.[46] Its Judges were given the
same Jurisdiction and authority as were exercised by the Kings Bench in England. Clause 4 of
the Charter provided as follows-
.and it is our further will and pleasure that the said chief Justice and Puisne Justices shall
severally and respectively .. to have such jurisdiction and authority as our Courts of Kings
Bench have and may lawfully exercise writhing that part of Great Britain called England by the
common Law thereof
Clause 21 of the said charter authorized the Supreme Court of Calcutta, for the first time in the
history of India to issue prerogative writs of mandamus. certiorari, proceeded and error. But it
gave rise to another question whether the jurisdiction of the Supreme Court in the matte of
issuing writs was confined to these four types of writs only. In fact it is well known that the
Supreme Court issued write of habeas corpus, which is also a high prerogative writ. From where
did the Supreme Court derive this authority and power to issue writ of habeas corpus? Justice
Das [47] has pointed out that this power was enjoyed by the supreme court under clause of the
Charter of 1774, which conferred on the chief justice and the puisne Justices severally and
respectively . such jurisdiction and authority as our (English) Justices severally and
respectively such justices of the court of Kings Bench have and may lawfully exercise within
. England. Clause 4 therefore gave to the supreme court of Calcutta very wide powers as the
court of kings Bench enjoyed in England.
ii) Madras and Bombay. In 1800 the Recorders Court at Madras was abolished.
The Charter of 1823 authorised the abolition of the Recorders Court at Bombay and the
establishment of the supreme court of Judicature in its place.. Thus the powers of the Supreme
court at Madras and bombay in issuing high prerogative writs were placed upon an equal footing
with those of the supreme court at Calcutta.
Writs under the Constitution of India
The constitution of India has empowered the Supreme Court and all the high Courts of India to
issue writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari.
Under article 32 any person can move the Supreme Court issue directions or order or writs for
the enforcement of any of the Fundamental Rights as stated in Part III of the constitution. The
right to move the Supreme court is itself made a fundamental Right which even the Government
cannot take away except as provided by the constitution. Under Article 226 all the High courts in
India are empowered to issue writs for the enforcement of any of the Fundamental rights as
guaranteed under Part III of the constitution.
a) Supreme Courts power- The supreme court of India is the highest Court in India. Articles 124
to 145 deal with the constitution and powers of the Supreme Court. Under Article 32 the right to
move the Supreme Court for the enforcement of the fundamental rights is guaranteed and the
Supreme Court has been expressly empowered to issue directions or writs, including writs of
habeas corpus. Mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate. The rights guaranteed under Article 32 cannot be suspended except as provided by
the constitution. The Supreme Court has no power to issue such direction, orders or writs for any
other purpose unless parliament specifically empowers it under Article 139 of the constitution.
 Thus the jurisdiction of the Supreme Court is exercisable only for the enforcement of the
fundamental rights as conferred by part III of the constitution. Article 32 will not apply to all other
matters. The combined effect of clauses (1) and (2) of Article 32 is that if a petitioner makes out a
case for the violation of Fundamental Rights the grant of the appropriate writ under Article 32 is
not discretionary but is a matter of right.
b) High courts power-Article 226 subsequent to the Forty third and Forty fourth Amendment acts
now provides that every high court shall have power throughout the territories in relation to which
it exercises jurisdiction, to issue to any person, authority or Government, directions orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of Fundamental rights conferred by Part III of the
constitution and for any other purpose.
Clause (2) of Article 226 clarifies that the high court will have jurisdiction even in cases where the
cause of action arises within its territorial jurisdiction, but that seat of the government or authority
or residence of the person petitioned against, is not within those territories.
To prevent misuse of the courts power to grant interim order by way of injunction or stay order,
clause (3) makes it clear that no such order will be made without affording full opportunity to the
other side by supply of copies of the petition and documents proposed to be relied upon. This
requirement can be postponed in period of fourteen days only. No interim order will be issued at
all where such an or any investigation or enquiry into an offence punishable with imprisonment or
any action for the executing of any work or project of public utility, or the acquisition of any
property for such execution by the Government or any corporation owned or controlled by the
government.
Where any fundamental right is infringed, an application under Article 226 should not be thrown
out simply on the ground that the proper writ has not been prayed for. The court should give
suitable protection to fundamental Rights.[48] A High court is bound as much as the supreme
court to enforce the fundamental rights guaranteed under the constitution.
Subject to what has been stated above the jurisdiction of the Supreme Court is concurrent with
the high court for the enforcement of Fundamental rights. This is also made clear by clause (4) of
Article 226.
Remedies provided by the constitution of India
Instead of leaving it to the general law of remedies under civil law, the constitution of India has
provided certain special remedies for the enforcement of the rights and liabilities created by the
constitution:
1. Writs issued under Arts. 32 and 226 (Supreme court and high court).
2. Orders of revision under the supervisory jurisdiction of the high court under
Art. 227.
1. Appeal to the supreme court. By special leave. under Art. 236 (besides regular
appeal under Arts. 132, 133, 134)
This jurisdiction under Art. 136 is important in this book because it is a constitutional and
extraordinary remedy at the hands of the supreme court where no other remedy is available
under the constitution against the decision of a court or tribunal [Art. 323A(2) (d); 323 B(3) (d)].
CONCLUSION
Recommendations
The judicial power of the Republic is vested in the judiciary consisting of the Supreme Court and
the subordinate courts. The guardianship of the Constitution is vested upon the Supreme Court,
which is invested with the power of judicial review.
The High Court Division has statutory jurisdiction to entertain suits and petitions and hear
appeals and revisions from the decisions of the subordinate civil and criminal courts and
adjudicative bodies (Art. 101). Save in some specified situations, the High Court Division in
exercise of its power of judicial review, can not only review the state actions to ensure that those
do not contravene any provision of the Constitution or the laws of the land, but can also strike
down any law for inconsistency with any provision of the Constitution including the provisions
guaranteeing fundamental rights (Art. 102).
The High Court Division can, in exercise of this power, issue writs in the nature of certiorari,
mandamus, prohibition, habeas corpus and quo-warranto. Only a person aggrieved by any state
action can file a writ petition before the High Court Division.
But this standing rule has been modified by the Appellate Division in case of public interest
litigation allowing any enlightened person to espouse the cause of the poor and downtrodden to
ventilate their grievance in the court and to bring before the court an issue of great importance
and public interest.
The sole object of Art. 102 is the enforcement of the fundamental rights guaranteed by the
Constitution. Whatever other remedies may be open to a person aggrieved, he has no right to
complain under Art. 102 where no fundamental right has been infringed.
It follows that no question other than relating to a fundamental right will be determined in a
proceeding under Art. 102 including interlocutory relief. A writ under Art. 102 would not lie for
enforcement of government policy or Directive Principle.
Where the Supreme Court will not interfere under Art.102 since Art. 102 is a remedy available
only for the enforcement of fundamental rights, it follows that No question other than relating to
a fundamental right will be determined in a proceeding under Art. 102. So from this research
work I personally find out the followings findings or recommendation about the writ petition in our
country, which is as follows.
01. The remedies of writ are not very close to hand of the general people of our country. Most of
the people of our country are not well-known about the writ provision. They do not know about
the procedure, court fees and in which court the petition should lie. So the Governments itself
and media, voluntary organization should work to inform the general people about writ remedies.
02. In our country the writ petition may filed only to the High Court Division which is situated in
DhakaCity. But the people who live in rural area are a great burden for them to come in Dhaka
city and file a writ petition to the high court division. I personally believe that it is impossible for
the villagers to come Dhaka city just for filing a writ petition to protect their fundamental rights. So
it would be better to give the writ jurisdiction to every District Judge Court like as India.
03. Majority people of our country live under poverty line; they are not able to pay the court fees
for filing writ petition. Therefore, Government should allow the petitioner to file writ petition without
any fees.
04. The procedure of writ petition is more complex than any other procedure. The writ procedure
should make easy that general people can to the court and file petition to protect their rights.
05. The provision of writ remedies is stated in Article -102 of our Constitution. But it is not clearly
mention their different types of writ. It should clearly mention that general people can easily
understand.
06. To grant a writ petition the Court must look at the locus standi of the petitioner. In that case
the Court may grant the writ petition of any body without looking the locus standi. Because all
person are not well known about the writ procedure and remedies. Therefore, the locus standi
should relax.
07. At present the writ petition can filed only against the Government. But government should
make rules that petition can file against any person. It will be more effective to protect the
fundamental rights.
08. The Government, NGOs, all kinds of Media should publish the whole procedure about the
writ matter and make the awareness among general peoples to protect their fundamental rights.
In Village area people even heard the writ remedies ever.
Initially the development of Writ in Bangladesh was show due to the threshold problem. This was
mainly because of the prolonged periods of Martial Laws and autocratic regimes that curtailed the
fundamental rights and disrupted the normal functions of the judiciary. Once the democratic
institutions had a changed to operate the judiciary boldly re-asserted its proper constitutional role.
 As a result, progressive interpretations of the Constitution, including the development of PIL,
became possible.
Finally, it needs to be mentioned that Writ Jurisdiction is an important issue of the High Court
Division. This jurisdiction is for the benefit of the all people, citizen and public interest. Therefore,
the judges should be liberal about granting the writ petition.
Writ as public interest litigation
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 public or interest have different meaning
and scope in different situation. Further complication arises when the term public interest is the
issue. Since the term is culture specific, no single definition can satisfy everyone. Hence the
scope of terms depends, to a great extent, on the point of view chosen.[49]
While the concept of PIL was just taking shape, one of the pioneers of PIL in India, observed
in peoples Union of Democratic Rights v. Union of India.[50]
Public interest litigation is essentially a co-operative effort on the part of the petitioner, the State
or public authority and the Court 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 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 there must be a public cause involved as opposed to a
privet cause. This includes several situations:
1. Where the matter in question affects the entire public or the entire community, Such as illegal
appointment of an unfit person as a government servant.
2. Where the issue involves a vulnerable segment of the society, Such aseviction of slum-
dwellers without any alternative arrangement
3. 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, Such as rape of a minor girl in police
custody.
Second, in the situation mention above, any individual or organization may approach the court. In
other words, PIL involves liberalization 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 aspect as well as writ petition, appoint commissioner, award
compensation or supervisor and monitor the enforcement of its orders.[51]
Early Development of PIL in Bangladesh
On 16 May 1974, the Prime Ministers of Bangladesh and India signed a treaty in Delhi
provided inter alia that India will retain the southern half of South Berubari Union No. 12 and the
adjacent enclaves and in exchange Bangladesh will retain the Dahagram and Angarapota
enclaves.
This treaty was canceled on the ground that the agreement involved cession of territory and was
entered into without lawful authority by the executive head of government. The petitioner Kazi
Mukhlesur Rahaman was an advocate and came to the Court as a citizen and as such his
standing was in Question.
The effect and influence of the Berubari case is enormous. It has often been considered as the
starting point of PIL in Bangladesh where The Court went very close to the doctrine of public
interest litigation. Bing the judgement of the Appellate Division, Berubari was resorted resorted
and referred to whenever a winding of the standing rule was sought. This case may be regarded
as an early achievement of the young Bangladeshi jurisdiction in its attempt to assert its creative
authority.[52]
Concluding Remarks
After the emergence of Bangladesh in 1971, Article 102 of the Constitution of the Peoples
Republic of Bangladesh, 1972 empowered the High Court Division of the Supreme court of
Bangladesh to exercise writ jurisdiction similar to that which had been conferred on the High
courts of Pakistan under Article 98 of the writ have been Constitution of Pakistan 1962. Although
the contents of the writ have been embodied in the constitution it is basically a legacy of the
English Writs and still the Judges of the Supreme Court of Bangladesh look back to the English
and sub continental case laws while exercising the writ jurisdiction. Like other Superior courts of
the subcontinent the supreme court of Bangladesh has been able to fashion a writ system
tailored to meet the needs of the present era.
However, it should be stressed here even after the lapse of a quarter of a century no rules have
been framed for the exercise of writ jurisdiction by the high Court Division under Article 107 of the
Constitution of the Peoples Republic of Bangladesh.
Furthermore, the constitution of Bangladesh under Article 105 has only empowered the Appellate
Division of the Supreme Court to review any judgment pronounced or order made by it. Now
power order passed by it in exercise of its writ jurisdiction.
REFERENCES
Books
1. Naim Ahmed, Public Interest Litigation Constitution Issue & Remedies, 1st ed. (Dhaka:
Bangladesh Legal Aid and Services Trust, BLAST, 1999).
2. Md. Abdul Halim, Constitution, Constitutional law and politics: Bangladesh perspective, 3rd ed.
(Dhaka: CCB Foundation, 2006).
3. Md. Abdul Halim, The legal system of Bangladesh, 1st ed. (Dhaka: CCB Foundation, 2004).
4. Muhammad Sohul Hussain, Cr.PC Today, 1st ed. (Dhaka: Shams Publication, 2007).
5. Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Dhaka: Mullick Brothers, 2003).
6. V. D. Kulshreshtha, Landmarks in Indian Legal and constitutional History, 7th ed. (Bombay:
University Press Ltd. 2001).
7. Justice Siddiqur Rahman Miah, Law of Writs in Bangaldesh, 1st ed. (Dhaka: Mullick Brothers,
2007).