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Judicial Activism and Good Governance in India
Judicial Activism in India and Pakistan
Bangladesh's Experience with Judicial Activism
Judicial Activism and Environment in India
Bangladesh: Protection of Environment through Judicial
Activism
Legal Awareness in Bhutan
The History of Political Parties in Pakistan
Geelani and Politics of Accession in Jammu and Kashmir
Floods in PakistanA Brief Overview
Towards Energy Independence in Pakistan
OctoberDecember 2010
Judicial Activism
in South Asia
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Contents
S O U T H A S I A N
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Judicial Activism in South Asia
he judiciary in South Asia has gradually come into its own, and
by the end of the st
first decade of the 21 century, it seems to be playing a very
important role in Tcountering the usual third world trend of
executive laxity in upholding the law. Activism itself has become a
familiar word identifying the judiciary's assertion in
favour of the citizen where the law itself is vague and gives
the executive the leeway to
remain remiss or passive. It also indicates a court's tendency
to encourage public
interest litigation (PIL) through the use of suo motu notice to
highlight and resolve
issues that normally never get raised at the court. There is,
however, some controversy
related to this as jurists differ over the uses and perceived
abuses of this tendency.
One must take note here that judicial activism began in India
and was used by the Indian
courts against the growing high-handedness of the executive and
in favour of the human
rights of the citizens, where the law was imprecise and allowed
the governments to
ignore the rights of the common man. At first the assertion of
the courtfor instance, in
its activism in favour of environment protectionwas seen as
unrealistic by the
general public, but the court's insistence in preventive action
by the government
resulted in a successful lowering of air pollution in the
capital of India. The Indian
court's steady insistence on the right of judicial reviewjudging
also all legislation by
the parliament on the basis of the basic structure of the
constitutionhas been
welcomed by the jurists in India.
The Supreme Court in Pakistan asserted itself gradually against
an executive usually
headed by a military ruler by leaning on the interpretations
offered by the Indian
Supreme Court in its reaction to the growing authoritarian
tendencies of Indian
governments. This trend grew as the assertion of the Court in
India was internationally
seen as an assertion of the rule of law. The activism shown by
the Pakistan Supreme
Court after its induction by General Pervez Musharraf relied on
PIL through the use of
the suo motu initiation of cases involving the various branches
of the executive. This
trend, set by the Chief Justice of Pakistan, is believed to have
led to his dismissal, along
with the judges who stood by him, in November 2007. He returned
to his office after a
lawyers' movement forced the PPP-led government after the 2008
elections to restore
him.
Two elements in the activism of the Supreme Court of Pakistan
should be noted. The
first is the controversy arising out of the excessive incidence
of the suo motu PIL cases
which have equally come under criticism in India, compelling the
judiciary there to pass
strictures of self-correction. The second is the politicisation
of the process of
restoration of the judiciary through public agitation. This sets
the activism of the
judiciary of Pakistan apart from those of India and Bangladesh.
The Supreme Court in
Bangladesh has been consistently upholding the human rights of
the people during
i
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satisfaction test but rather insisting that the government's
decision to detain any 27
person must pass judicial examination of objectivity. By way of
another example, in a
significantly bold assertion of judicial authority, the court in
Sahar Ali v A. R. 28
Chowdhury which concerned s. 30 of the Special Powers Act 1974
that barred any
court from revising any order or judgment of special tribunals
established under this 29
Actfamously held that its constitutional supervisory power could
not be ousted. This
welcome instance of judicial interpretive activism ultimately
triggered legislative 30
removal of the illegality.
However, despite these few instances of upholding the principle
of legality, the
Bangladeshi judiciary on the whole abdicated its constitutional
responsibility of
protecting the rule of law during the martial law regimes and
largely became a partner of 31
usurpers of the constitution.
The Basic Structure Doctrine
The revival of the constitution by the military ruler on 11
November 1986 enriched the
top court judges with a sense of obligation vis--vis
Bangladesh's founding mottos of
constitutionalism and democracy. During the waning hours of
autocracy but still some
time before democratic restoration, the Appellate Division in
its historic 1989 decision 32 th
in Anwar Hossain Chowdhury v Bangladesh invalidated the 8
Amendment to the 33
constitution, thereby entrenching the now famous basic structure
doctrine. In
Anwar Hossain Chowdhury the court held that the parliament's
plenary legislative and
amendatory power under the constitution is limited in that this
power having been a 34
derivative constituent power can not be exercised to alter or
destroy its basic
structures. The court was seemingly motivated to uphold the
greater public interest and
virtues like the rule of law.
The then military authority by various martial law regulations
diffused the High Court
Division into seven permanent benches, and later
constitutionalised this change by
amending Article 100 of the constitution. Some lawyers
challenging the vires of the
amendment successfully convinced the Appellate Division that,
among other things, the
High Court Division's plenary judicial power over the whole
republic was a basic
structure of the constitution which was un-alterable even by a
constitutional 35
amendment. In a three to one majority judgment, the Appellate
Division employed a
holistic interpretation to the constitution and concluded that
the parliament with an
unlimited amending power is inconsistent with the concept of
constitutional
supremacy, a basic pillar of the constitution.
Despite its several shortcomings and ambivalence in the
reasoning of the majority 36 th
judges, the 8 Amendment decision continues to remain the boldest
ever instance of
judicial activism in pursuit of constitutionalism in the
Bangladeshi polity. The judges, by
and large, were alert to the need for protecting the fundamental
aim of society from 37
destruction, and they sought to concretize their reasoning by
relying on comparative
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29
public law besides taking moral-legal guidance from their own
constitution.
There are criticisms, both academic and political, against the
basic structure doctrine, 38
which are mostly akin to general criticisms against judicial
activism. Critics often
ignore the local political specificities and constitutional
imperatives that necessitate a
limitation on the parliament's unbridled amending power. The
Anwar Hossain
Chowdhury decision can indeed be an effective guarantee against
frequent 39
amendments of the constitution in sectarian and party interest
as well as against
omnipotent parliamentary supremacy like the one during the
Emergency or martial law
regimes. Critics of the basic structure doctrine also miss the
reality that even most
activist judges conform to the dictate of conscience and tend to
defer to the
representative organ of the state when the deference is due in
examining the
constitutionality of a law or constitutional amendment. As
against apprehensions that
the basic structure doctrine might be over-applied, the judges
in Bangladesh have shown th th 40
due comity while sustaining the 13 and 14 constitutional
amendments. At the same th th
time, they invoked and duly relied on the doctrine recently,
declaring the 5 and 7 41
amendments to the constitution that legitimised two successive
marital law regimes.
Judicial Activism following Democratic Restoration
Following democratic restoration in 1991, the people's faith in
constitutionalism and the
judiciary increased. A surprising surge of litigations aimed at
realising the legal rights
and governance imperatives became a feature of this period. And,
like the post-
Emergency judicial activism in India, the Bangladeshi judges too
seemed to be
developing a consciousness that the legitimate concerns of
people should be the central
focus of their business. As a result, post-1991 judiciary
embraced public interest
litigation (PIL) and increasingly exercised constitutional
judicial activism. These
developments were the essential consequence of a remarkable
shift in the court's
interpretational jurisprudence towards creative
interpretations.
Progressive judicial interpretations implicating rights,
constitutional safeguards and
constitutionalism ushered in a new beginning of judicial
activism. In the post-1990
period, thus, we see many new developments especially in the
field of right to life and
personal liberty, including a light attempt to construct a
theory of public law 42
compensation for breaches of the constitution and fundamental
rights, and some self-
initiated (suo motu) judicial interventions by socially
sensitive judges who were eager to 43
remove illegality from the country's criminal justice
system.
To cite one such activist decision in the area of prevention
detentions is Korban v
Bangladesh, where the petitioner was re-detained from the jail
gate after his court-
intervened release from earlier detention; the High Court
Division awarded against the
detaining authority compensatory costs of taka 5000, but not
compensation proper, 44
for arbitrary and colourable exercise of public power. In
another exceptional decision, 45
in Bilkis Akther Hossain v Bangladesh (1997) the High Court
Division held the
government liable in damages for arbitrary and unlawful
detention of some political
leaders. This pro-active decision has not, however, yet become a
trend or a precedent,
since it has been pending on appeal in the Appellate Division
for the last 13 years.
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30
Most striking judgment in defence of the people's fundamental
rights was in a case
involving unlawful, lingered incarceration of a young person. In
State v Deputy 46
Commissioner, Satkhira (1993) the first-ever reported suo motu
intervention, the
High Court Division actually set up a trend of activist
adjudication of rights. After having
read a newspaper report, it issued on its own motion a rule in
order to free an illegally
detained person who, charged with some baseless criminal
allegations, had been
languishing in jail for 12 years with bar fetters tied to his
legs since he was first arrested at
the age of 9. On the very first day of hearing, the court
ordered to take off the bars and
quashed all pending criminal proceedings against Nazrul Islam,
which it found void ab
initio as the convict was charged and tried jointly with adults
in contravention of the 47
Children Act 1974, section 6. Nazrul Islam marked the beginning
of suo motu judicial
interventions and explored a so far undiscovered source of
judicial power. Also, this case
set a landmark in the country's judicial history by issuing
various directives to the
government agencies. Quite innovatively, the court directed to
make an investigation
into whether any other children were in situations similar to
Nazrul's, and also ordered a
report of compliance with the said directives.
The post-1990 court was particularly sensitised to the concerns
arising from police
atrocities, custodial death and abuse of police powers. In Alhaj
Md Yousuf Ali v the 48
State the court cautioned the police against misusing their
arresting powers and
torture in the garb of police remand. In a PIL initiated in the
context of a widely
condemned killing of an innocent university student through
torture inflicted by some
members of the police, the High Court Division in BLAST and
Others v Bangladesh and 49
Others (2003) handed down a ground-breaking judgment issuing
directions and
guidelines with a view to stopping largely unchecked police
brutalities and custodial
deaths. The court emphasised the need to bring existing legal
inconsistencies into
conformity with the constitutional safeguards against torture
and unlawful arrest, and
formulated certain strategies and polices to regulate the
arresting power of the police
under widely-framed section 54 of the Criminal Procedure Code as
well as to condition
the magistrates' power to remand an accused to the police.
Unfortunately however, an
appeal against this rights-enhancive decision has since remained
pending before the
Appellate Division.
Another noticeable area where the court followed
justice-promoting interpretation was
that of women's rights. Clearly, paternalistic assumptions in
judicial decisions are on the
decline now. On several occasions, the court has struck down
gender-based
discriminatory actions and laws and has attempted to promote a
substantive concept of 50 51
equality. In Shamima Sultana Seema v Bangladesh the High Court
Division quashed
an administrative notification allocating differentiated
functions and pay to women
commissioners of a city corporation elected from the reserved
seats, calling for a 52
change in societal attitude towards women since mere law may not
often prove enough.
Gender-sensitive judging prominently appeared in some criminal
cases concerning
victims of rape, torture and murder. Considering rape as a
deplorable violation of one's
right to life, the court advised that the violators should
receive serious punishment so 53
that justice be done both to the victim and society.
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31
In the post-democratic transition era, Bangladeshi judges became
aware of their past 54
failings, a realisation that boosted their sense of activism for
justice. Resultantly the
court in a series of cases stood in defence of constitutionalism
by way of expanding the
judicial review power in ordinary and public interest
litigations. Although the court still 55
feels shy to recognise the constant engagement with policy
issues, judicial engagement 56
with policy matters or judicial policy suggestions in Bangladesh
is not uncommon. For
example, governmental inactions including those in the sphere of
foreign affairs are 57
becoming justiciable in abstract or concrete challenges.
To be brief, the post-1990 court has by and large remained alert
to breaches of principles
of constitutionalism. In an instance of strategic activism, the
court in Kudrat-E-Elahi 58
Panir v Bangladesh, concerning the abolition of a tier in the
local government system,
the Appellate Division refused to give legal force to
fundamental principles of state
policy. But, having been inspired by these fundamentals, the
Appellate Division issued
certain directions asking the government, inter alia, to ensure
elections to local 59
government units ensuring representation of women in particular.
In some other
decisions, the court invoked the common law doctrine of public
trust in its modernist
perspective to hold the government and its agencies to account.
For example, in BLAST v 60
State (2008), a PIL, it directed the realisation within six
months of a huge amount of
arrear telephone bills from some 427 members of the parliament,
reinforced the view
that public functionaries are trustees of the people for whose
interest they must act.
The most notable decision furthering the supremacy of the
constitution is Bangladesh 61 th
Italian Marble Works Ltd v Bangladesh (2006) , conveniently
referred to as the 5
Amendment Case. In this case, which in the last few years has
been the centre of heated
debates regarding the proper extent the court can go to in a
democracy, the High Court th
Division declared unconstitutional the 5 constitutional
amendment that validated the
first martial law regime. For the court, the amendment was a
grave legal wrong and
will so remain for all time to come. It held that martial law is
unknown to the 62
constitution let alone being authority to enable changes to the
constitution. There are
some notable weaknesses in the court's reasoning especially for
its stand of sustaining th
the legality of some changes and of rejecting the other changes
brought about by the 5
Amendment. Undeniably, this decision which has recently been
endorsed by the 63
Appellate Division is a bold assertion against unconstitutional
usurpation of state
powers. It seems to have compensated in some way the court's
earlier failing to discard
martial law. As seen above, the court during
extra-constitutional regimes mostly
surrendered its autonomy and judgment to the executive, a legacy
that until this decision 64
made the court's post-1990 activism remain blurred. Most
recently, the High Court th
Division has declared unconstitutional the 7 constitutional
amendment that
legitimised the second martial law regime.
Independence of the judiciary: The Masdar Hossain Case
The post-1990 judicial activism has found spectacular expression
in decisions
concerning the various aspects of independence of the judiciary.
In these decisions the
court was seen optimally activist compared to its activity in
other fields of law.
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32
Apparently, it became extraordinarily self-conscious about its
self-reputation and
status. A landmark decision of this genre was in the case of
Secretary, Ministry of 65
Finance v Md. Masdar Hossain and Others, which stands as
probably the most fine-
grained instance of judicial activism for constitutionalism. In
Masdar Hossain, the
Appellate Division largely agreed with the High Court Division's
judgment in the 66
original judicial review petition and issued some directives
concerning judicial
independence for forthwith implementation by the executive.
Despite several constitutional provisions providing for the
independence of the
judiciary as a whole, independence of the lower judiciary had
long remained a matter of
serious concern. Magistrates exercising judicial functions were
indeed officers of the
executive organ of the state, while judges in the judicial
service, although they were not
members of the executive, used to be appointed and controlled
almost single-handedly
by the administration. These issues of judicial independence
came to be the central
theme of the judgment in this class-action lawsuit by some 223
judges initiated to
reclaim some financial benefits that the government withdrew.
Speaking for the court,
Kamal J treated judicial independence as a basic pillar of the
constitution and held that it 67
could not to be demolished, whittled down, curtailed or
diminished in any manner.
In a well-argued judgment buttressed by comparative
constitutional law decisions from 68
other comparable courts, the court found the executive and
legislative organs to have
committed a constitutional deviation from obligations regarding
independence of the 69
judiciary. It, therefore, set out to undertake a
constitution-reinforcing role, ultimately
directing the government to take necessary steps towards (i-ii)
framing Presidential
Rules regulating appointments of lower court judges and
magistrates and their
posting, promotion, discipline, and pay or allowances; (iii-iv)
establishing a Judicial
Service Commission to recommend recruitments to the judicial
service and a Judicial 70
Pay Commission; and (v) ensuring the Supreme Court's financial
autonomy.
Following its verdict the court took the role of post-decision
monitoring, kept the case
open as a continuous mandamus for any consequential directive
and through several
strategies made the government implement the above directives.
The government
resorted to several dilatory practices to delay the full
implementation of the judgment,
but ultimately fully complied with the decision. Since November
2007, by virtue of new
enactment of new law, the magistrates were separated from the
executive organ of the
state and put under the regulation and governance of the Supreme
Court.
The Masdar Hossain Case led the critics to raise questions about
the propriety of the
court's intervention of the above type as well as about its
policy and lawmaking roles. In
its very judgment, the court offered eloquent and thoughtful
responses to these common
objections against judicial activism. In essence, the kind of
activism the court exercised 71
in this case was not un-contextual, but rather was in defence of
the constitution.
Public Interest Litigation
Public interest litigation that has now become firmly entrenched
in the Bangladeshi
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33
72
jurisprudence is the most noticeable area of judicial activism
in Bangladesh,
accomplishing both practical achievements and normative social
impacts. In Dr. 73
Mohiuddin Farooque v Bangladesh (hereafter the FAP 20 Case), the
first PIL in its true
sense, an environmental organisation was held to have locus
standi to challenge a flood
action project (FAP) on the grounds of violation of the
surrounding people's rights as
well as of the principle of legality. This opening was based on
the court's adoption of what
can be called an autochthonous style of constitutional
interpretation based on the spirit
and dynamics of constitutional foundational values such as
social justice and
democracy. There has since been a steady rise in litigations for
the public good or
interest.
In PIL cases the court has so far been activated to achieve
justice vis--vis a wide array of
issues. For example, the court has issued remedies preventing
the release or import of
radio-active dried milk in order to protect the lives of
children from being endangered, 74
protecting slum dwellers against unlawful eviction, and
preserving the environment, 75
public parks or rivers, and public health and hygiene. In some
other cases concerning a
mixed genre of political rights claims and greater
constitutional principles, the court 76
zealously guarded judicial independence and sought to inculcate
electoral political 77
culture, ensure grassroot-level participation in democracy, stop
police brutalities,
prevent sexual harassment in work-places or educational
institutions, check corruption
by state executives, and protect liberty and other fundamental
rights of vulnerable
people.
Interestingly, environmental justice seems to have drawn the
court's most intensive
attention, and judicial environmental activism has been one of
the central features of the
Bangladeshi PIL jurisprudence. In a long series of cases, the
court has pro-actively
indulged in exercises directed towards the protection of the
environment, mostly by
issuing innovative remedies such as obliging the concerned
government agency to make
rolling reports of progress or by binding the government with
specific positive
obligations or framing obligatory guidelines. To take just a few
more striking 78
examples, the court in Dr. Mohiuddin Farooque v Bangladesh
issued a eight-point
directive to improve the conditions of air pollution in Dhaka,
asking the government to
convert the polluting vehicles into natural gas-run
environmentally friendly transports. 79
In Professor Nurul Islam and Others v Bangladesh the High Court
Division imposed a
ban on advertisements of cigarettes and tobacco-related products
in furtherance of right
to life of the people at large, leading to the enactment of a
legislation. A most recent 80
action in Human Rights and Peace for Bangladesh v Bangladesh
(2009) has
prompted a string of government actions, including evictions of
river-side industries,
regarding the protection of four rivers surrounding the Dhaka
metropolis that are
allegedly the most polluted rivers in the world.
PIL-based judicial activism in Bangladesh has partaken of two
different but conjoined
features: rights-based activism and constitutionalism-inspired
activism. Considered as
a tool to attain social justice most PILs in their early age
sought to implement
socioeconomic rights such as environmental or labour rights via
attempts to enforce
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34
statutory legal duties and constitutional fundamental rights.
However, although the
judges are increasingly extending the enforceable constitutional
right to life to cover 81 82
newer rights as the right to safe drinking water or the right to
a healthy environment,
judicial social rights activism in Bangladesh remains still
rudimentary and lags well
behind activist instances particularly of the Indian Court that
influenced the 83
Bangladeshi PIL most.
By contrast, alongside judicial vigilance in the traditional
public interest rights
litigations, constitutionalism-inspired judicial activism seems
to have increased
significantly in recent times. For example, in Ekushey
Television Ltd v Dr. Chowdhury 84
Mahmood Hasan (ETV Case) and Engineer Mahmud-ul Islam v Govt. of
Bangladesh 85
(Private Port Terminal Case) the court invalidated respectively
a public license
granted to a private television operator and struck down a
permission to a foreign
private company to construct container terminals at the
Chittagong Port on the ground
of opaqueness and non-transparency in public decision-making.
Accordingly, the court
in recent times voided a law that undermined the principle of
governance through 86
elected representatives, directed the government to establish
special courts in the 87
Chittagong Hill Tracts region for the protection of women and
children, invalidated a 88
provision of mandatory death penalty, and required the police to
submit to it
fortnightly reports of the investigation concerning the 2007
terrorist attacks that killed 89
many including two judges.
Also notably, PIL-based activism has been increasingly embracing
legitimate exercises
in judicial lawmaking or policy-setting, a stance that is fed by
imperatives of the
constitution.
This does not, however, lead to a conclusion that PIL-based
judicial activism is free of
imperfections. The court's preparedness in PILs to be vigilant
against executive
violation of the citizens' rights or against any injustice does
not seem to be sufficiently 90
robust, coherent, and pragmatically policy-based. For example,
the court has not yet
established the jurisprudence of public law compensation for
gross constitutional
breaches or misfeasance in public offices. Nor has the court
been able to develop a
cooperative mode of adjudication taking the public officials
within implementation
processes. Despite limitations of judicial public interest
activism, however, the PIL-tool
continues to help the willing and perceptive judges achieve
goals of justice and
constitutionalism.
91
The 2007 Emergency, and Post-Emergency New Judicial Activism
On 11 January 2007 the then interim government in Bangladesh
declared a state of
emergency, which effectively suspended the constitutional rights
of the people and 92
clipped the protective role of the courts. These sweeping
initiates threw the court into
challenges, dilemma and confusions. Resultantly, judicial
aberrations followed, with
far-reaching implications for the agency of the court in which
public confidence came to
be low.
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35
Judicial decisions during the two-year-long Emergency show that
while the Supreme
Court's High Court Division apparently asserted its authority
vis--vis the overweening
government, the Appellate Division seems to have paid undue
deference to the
executive.
Despite hindrances and prohibitions of the regime, ordinary
citizens as well as legal
actors resorted to the instrumentality of legal actions in order
to protect the
fundamental rights and ensure constitutionalism. This
rights-consciousness and civic
assertiveness apparently reflected the people's changing
perception about the judiciary
which the Supreme Court's public interest jurisprudence
generated.
The Emergency foreclosed the possibility of public interest
litigation on constitutional
rights grounds. Public-spirited citizens or interested
politicians, however, invoked the
court's jurisdiction through PIL and ordinary litigations under
the operative part of the
constitutional remedial clause. In these actions challenging the
legality of several
actions by the government, the court's responses were a kind of
mixed bag of assertions 93 94
and abdication. In Masood R. Sobhan v The Election Commission
(2008) , for
example, the High Court Division employed a purposive
interpretation of the
vonstitution's 90 days' timeframe for holding general elections
after the dissolution of 95
the parliament. The court dismissed a constitutionality
challenge to Election
Commission's deferral of general elections beyond this time
limit, and observed that 96
government's pledge for holding elections by December 2008 was
not unreasonable.
At odds with this pragmatic decisions are a number of decisions
in which the Appellate
Division's encounter with sweeping executive interventions with
the liberty of the
people and principles of constitutionalism is acutely deficient
in upholding the 97
supremacy of the constitution. In Moyezuddin Sikder v State
(2008) , for example, the
Appellate Division overruled the High Court Division's decision
that its inherent power
and wider judicial authority to grant bail to the accused can
not be foreclosed even by 98
Emergency laws.
99
In another high-profile case, Bangladesh v Sheikh Hasina, the
Appellate Division
controversially upheld the retrospective operation of the
Emergency Powers Rules 2007
affecting the trial of a criminal charge against a former Prime
Minister for an alleged
offence that pre-dated the promulgation of emergency. In the
original constitutional
challenge, the High Court Division found that the retrospective
operation of the
Emergency Power Rules to conduct trial of pre-Emergency offences
was incompatible
with the constitutional prohibition of ex post facto criminal
laws and hence 100
unconstitutional. The High Court Division reasoned that any
Emergency-law that 101
breaches inviolable fundamental rights is liable to be adjudged
unlawful, a reasoning
that is premised on constitutional values. Encouragingly, by
referring to the judicial
oath, it emphasized an extra duty to examine the
constitutionality of executive actions 102
when citizens' rights are at stake even during emergency.
Standing on a footing
radically different from that of the High Court Division, the
Appellate Division adopted a
merely textual interpretation of the constitution, and found
that the prohibition of ex 103
post facto laws concerned only conviction and not the trial
process. Needless to say,
-
36
this interpretational approach is plainly not in terms with the
judicial duty to do justice.
The strongest assertion of authority by the High Court Division
came just few days
before the withdrawal of Emergency on 17 December 2008. In
Advocate Sultana Kamal 104
and Others v Bangladesh, decided on 4 December 2008, the High
Court Division
invalidated some provisions that precluded judicial review of
executive actions under
any Emergency law and clipped the higher courts' power to grant
bails and suspend 105
sentences or to hear appeals from lower courts' interim orders.
Although the court 106
stopped short of striking down the 2007 Emergency as
unconstitutional, it observed 107
that Emergency can not legally continue for an indefinite period
and that it can not be
stripped off judicial review of emergency laws.
An appeal against the decision in Advocate Sultana Kamal is now
awaiting the disposal
by the Appellate Division which in its interim order stayed the
judgment's efficacy. Full-
fledged challenges to the constitutionality of 2007 Emergency
went to the court only
when the Emergency was about to be withdrawn, which too are
awaiting final 108
determination. In M. Asafuddowla and Others v Bangladesh (2008)
, a PIL,
constitutional provisions enabling the president to declare a
state of emergency
generally and particularly to postpone the enforcement of
constitutional rights were 109
challenged. The court issued a rule calling for explanations
from the government, but
it seems that this challenge will continue to remain unheard in
the context of the
withdrawal of emergency.
The above shows while the High Court Division employed a dynamic
interpretation of 110
the constitution in most if not all cases concerning the
Emergency laws, the Appellate
Division followed a formalistic method of constitutional
construction and sometimes
overly interfered with the former's autonomy. Appreciably
however, in the wake of
return to democracy through 2008 elections the Appellate
Division opened a little space
for liberal interpretations particularly in granting bails of
the accused facing prolonged 111
detention. It remains unclear why the Appellate Division pursued
a policy of not
interfering with the executive. Did it wanted to extend some
measure of legitimacy to the
allegedly extra-constitutional emergency government and its
purportedly noble mission
of institutionalising democracy, or simply become subjugated to
external pressures.
Following the withdrawal of the Emergency and after the
instalment of a new
democratic government in 2009, the Bangladeshi top judges seem
to have regained their
constitutional agency in a bid to overcome the crisis of public
confidence it incurred
during the 2007/08 Emergency. This post-Emergency period can to
some extent be
likened with the post-Emergency period in India that gave birth
to the most powerful
and activist court in the world. As noted above, the Supreme
Court of Bangladesh in
recent times has been issuing activist judgments in the
protection of fundamental rights
and the principles of constitutionalism with remedies of the
kind not delivered before.
For example, as already mentioned, in this period the Appellate
Division has confirmed th
the High Court Division's judgment striking down the 5 Amendment
to the constitution 112
that constitutionalised a martial law regime. Unlike earlier suo
motu interventions in
the area of criminal injustice, it has also acted on its own to
protect human lives from
-
37
113
road accidents. To cite an example from the area of fundamental
rights, it has issued
detailed guidelines to be followed by educational institutions
and employers so as to 114
prevent and handle allegations of sexual harassment.
Conclusion
The aim of the paper has been to show the development of
judicial activism in
Bangladesh. The earlier discussion shows that Bangladeshi
judicial activism, which has
oscillated along with democratic nuances in the country, is
increasingly becoming
intense particularly in the post-Emergency period.
Unsurprisingly, this has attracted
sustained criticisms against judicial activism. These criticisms
or accusations of over-
activism are not altogether without any substance. In few cases,
the court's activism was
either non-pragmatic or deficient in reasoning.
The present and constant challenge for the Bangladeshi judges
aspiring to enact justice
actively is to adopt a middle-ground between meek administration
of justice and
unacceptable judicial overstepping. In breaking the middle-path
of activism, they must
be guided by existing socio-political realities and the
foundational values of the nation in
enforcing public accountability and reaching justice to the
people.
As the above assessment reveals, on the whole, judicial activism
in Bangladesh has not
turned out to be over-activism. Rather, one can see judicial
under-activism in some
respects. For example, the court's failing to effectively
stretch out the constitutional 115
rights to the activity of private actors does not match with its
rights-based activism.
Also, there is still a long way for judicial public interest
activism to travel.
Rizwanul Hoque is assistant professor in the Department of Law,
University of Dhaka,
Bangladesh. For some arguments and analyses made in his paper
the author has relied
on his unpublished PhD thesis: Hoque, Ridwanul. 2007. Judicial
activism as a golden
mean: A critical study of evolving activist jurisprudence with
particular reference to
Bangladesh. London: University of London, SOAS.
Endnotes
1. For an overview of these debates see, among many others,
Michael Kirby, Judicial activism.
(London: Sweet & Maxwell, 2004); Bryce Dickson, ed.,
Judicial activism in common law
supreme courts (Oxford: OUP, 2007); Kent Roach, Supreme Court on
trial: Judicial activism
or democratic dialogue (Toronto: Irwin, 2001).
2. This is what is known as counter-majoritarian argument
against judicial activism, famously
developed in: Alexander Bickel, The least dangerous branch: The
Supreme Court at the bar
of politics (Yale: Yale University Press, 1986). See also John
Hart Ely, Democracy and
distrust: A theory of judicial review (Cambridge, MA: Harvard
University Press, 1980).
3. In Khawaza Tariq Rahim v Federation of Pakistan PLD 1992 SC
646, Sajjad A. Shah J noted a
general trend of superior courts' activism in the advanced
countries of the world. This
justificatory reference to Western jurisprudence perhaps
symbolises a typically colonial
judicial mindset that everything good, including judicial
activism, should flow from the West.
4. The author has here deliberately eschewed definitions of
judicial activism, but have used the
concept to mean judicial functional responsibility to achieve
socio-economic and political
-
38
justice for wider society beyond the bounds of a particular
dispute, and thus to direct and influence
social and constitutional changes. Justice Bhagwati charted out
three types of judicial
activism: i) judicial social activism meaning activism for
social justice; ii) technical judicial
activism, i.e., exercise of freedom of judicial choices; and
iii) juristic activism, i.e., creation of
new legal principles without looking at the purposes they serve.
See P. N. Bhagwati, Judicial
activism and public interest litigation, Columbia Journal of
Transnational Law 23 (1984-5):
561577, at 561. From the Western perspectives, Kmiec expounded
five core meanings of
judicial activism, which are i) invalidation of the arguably
constitutional actions of other
branches; ii) failure to adhere to precedent; iii) judicial
legislation; iv) departures from
accepted interpretive methodology; and v) result-oriented
judging. See Kennan D. Kmiec,
The origin and current meanings of judicial activism, California
Law Review 92 (2004):
14411447. See also G. Jones, Proper judicial activism, Regent
University Law Review 14
(2002): 141.
5. The literature on Bangladeshi judicial activism is quite
scant. The first-ever figuring of the
term judicial activism was in a section of a 1988 article:
Imtiaz Omar, Independence of the
judiciary and the role of the Bangladesh Supreme Court, Law and
International Affairs 11 (1
& 2) (1988): 80106. An early relevant work on this is by
Naim Ahmed who focused on public
interest litigation. See Naim Ahmed, Public interest litigation
in Bangladesh: Constitutional
issues and remedies (Dhaka: BLAST, 1999). Judicial activism
spanned only for two pages in
a 2003 book by a former Supreme Court judge. See Kazi Ebadul
Hoque, Administration of
justice in Bangladesh (Dhaka: Asiatic Society of Bangladesh,
2003). On Bangladeshi judicial
activism, now see R. Hoque, Judicial activism as a golden mean,
above note 1. See further A.
T. M. Afzal, I am not against judicial creativity, Dhaka Law
Reports (DLR), Journal section
51 (1999): 4142; Afroza Begum, Judicial activism versus judicial
restraint: Bangladesh's
experience with women's rights with reference to the Indian
Supreme Court, Journal of
Judicial Administration 14 (2005): 220241 (arguing that judicial
activism is inescapable to
accommodate women's contemporary needs); Ridwanul Hoque, Taking
justice seriously:
Judicial public interest and constitutional activism in
Bangladesh, Contemporary South
Asia 15 (4) (2006): 399422; and Ridwanl Hoque and Morshed M.
Khan, Judicial activism
and Islamic family law: A socio-legal evaluation of recent
trends in Bangladesh, Islamic Law
and Society 14 (2) (2007): 204239.
6. See the Presidential Proclamation of December 28, 1974, made
under Article 141A of the
constitution that was introduced through the Constitution
(Second Amendment) Act, 1973.
7. Throughout this chapter the term constitution has been used
to refer to the Constitution of
the People's Republic of Bangladesh, adopted on November 4, 1972
and effective from
December 16, 1972.
8. See the Constitution (Twelfth Amendment) Act, 1991 (Act
XXVIII of 1991).
9. The constitutional supremacy clause (Art. 7) categorically
declares that any other law
inconsistent with the constitution shall be void, while Article
26 enjoins the state not to
legislate in derogation of fundamental rights and provides that
any law inconsistent with
these rights shall be void.
10. See respectively, Article 44(1) and Article 102 (1) of the
constitution.
11. Its other and the apex part is the Appellate Division, with
only appellate power and the
advisory jurisdiction.
12. Without using the nomenclature writ, Art. 102 (2) allows
five kinds of writs, mandamus,
prohibition, certiorari, quo warranto and habeas corpus, against
state and local authorities.
Moreover, the Appellate Division of the Supreme Court has the
power to issue directions and
orders to do complete justice in any pending case (Art.
104).
13. See article 4 of the High Court of Bangladesh Order,
1972.
14. Kutubuddin v Nurjahan (1973) 25 DLR (HCD) 21.
15. A. T. Mridha v The State (1973) 25 DLR (HCD) 335, 338.
-
39
16. (1973) 25 DLR (HCD) 335.
17. Ibid., 350 (referring to pre-constitution President's Order
No. 50). The Appellate Division
reversed this decision on a narrow technical ground: Solicitor,
Govt. of Bangladesh v A. T.
Mridha (1974) 26 DLR (AD) 17.
18. (1974) 26 DLR (AD) 44.
19. Ibid., 52 , per Sayem CJ.
20. Ibid., 5152.
21. This term was used by M. H. Rahman J in Anwar Hossain
Chowdhury, below note 32, 180.
22. (1978) 30 DLR (AD) 207, 210. In Sultan Ahmed v Chief
Election Commissioner (1978) 30
DLR (HCD) 291, 296, the martial law was termed as the Supreme
law of the land.
23. See clause (g) of the Proclamation of Martial Law of 20
August 1975.
24. Earlier, the court in Abdus Shukoor Dada v The State (1976)
28 DLR 441 defined martial law
as a known concept of jurisprudence invoked for taking certain
corrective measures which
are beyond the reach of normal laws.
25. See, e.g., the dissenting opinion by K M Sobhan J in State v
Joynal Abedin (1980) 32 DLR
(AD) 110, arguing for the availability of judicial review when
martial law courts were
improperly constituted or acted without jurisdiction or beyond
their constituting legislation.
26. See the Special Powers Act 1974, Section 3.
27. See the leading case of Abdul Latif Mirza v Govt. of
Bangladesh (1979) DLR (AD) 1.
28. (1980) 32 DLR (HCD) 142.
29. See also Lutfur Rahman v Election Commissioner (1975) 27 DLR
(HCD) 278 (judicial
authority to issue interim orders in judicial review to prevent
injustice cannot be absolutely
foreclosed).
30. For an almost similar early decision see Humayun Kabir v The
State (1976) 28 DLR (HCD)
259.
31. For a good analysis see Sheikh H. R. Karzon and Abdullah A.
Faruque, Martial law, judiciary
and judges: Towards an assessment of judicial interpretations,
Bangladesh Journal of Law 3
(2) (1999): 181210.
32. 1989 BLD (Spl.) 1.
33. In reaching the decision, the court greatly relied on the
famous Indian decision in
Kesavananda Bharati v State of Kerala (1973) 4 SCR 225 that
first established in the
common law world the doctrine of inviolability of the basic
structure of the constitution.
34. Note 32 above, per Ahmed and Chowdhury JJ, ibid., 143,
83.
35. See opinions of Ahmed Chowdhury and Rahman JJ, respectively
at 83, 156157, and 174 in
Anwar Hossain Chowdhury, above note 32 (Afzal J dissenting).
36 Two majority judges, for example, took a highly controversial
view that a constitutional
amendment is not a law within the meaning of Article 7(2) of the
constitution, as noted in
note 9 above.
37. Anwar Hossain Chowdhury, above note 32, per Rahman, J., at
160.
38. For example, two scholars have loosely argued that by
constitutional theory the court lacked th
power to invalidate the 8 Amendment: Imtiaz Omar and Zakir
Hossain, Coup d' etat,
Constitution and legal continuity, Parts 1-2, Issue Nos. 207
& 208, Law & Our Rights, the
Daily Star, Dhaka, 17 and 28 September 2005.
39. Shahabuddin Ahmed J in Anwar Hossain Chowdhury, above note
32, at 157.
reservation of seats for women in the parliament is not
against basic structures).
41. See respectively, Khondker Delwar Hossain v Bangladesh
Italian Marble Works Ltd. (2010) th
VI (B) ADC (Appellate Division Cases) 1 (declaring the 5
amendment unconstitutional); and
40. See respectively M. Saleem Ullah v Bangladesh (2005) 57 DLR
(HCD) 171 (introduction of
non-party caretaker government has not breached any basic
structure but rather has
strengthened democracy, a basic pillar of the constitution), and
Farida Akhter and Others v
Bangladesh (2007) 15 BLT (AD) 206 (
-
40
a recent High Court Division's decision of 26 August 2010
(Siddique Ahmed v Bangladesh, Writ th
Petition of 24 January 2010) declaring 7 constitutional
amendment unconstitutional. On the
basic structure-compatibility of these amendments, see M.
Rafiqul Islam, The seventh
amendment to the Constitution of Bangladesh: A constitutional
appraisal, Political
Quarterly 58 (3) (1987):1229; and Sheikh H. R. Karzon and
Abdullah A. Faruque, Martial
law regimes: Critically situating the validity of the fifth and
seventh amendments,
Bangladesh Journal of Law 2(2) (1998): 152192.
42. See, e. g., Mohammed Ali v Bangladesh (2003) 23 BLD (HCD)
389, the only case awarding
public law damages against the police for unlawful searches.
43. On suo motu judicial intervention see Ridwanul Hoque, Suo
motu jurisdiction as a tool of
activist judging: A survey of relevant issues and constructing a
sensible defence, Chittagong
University Journal of Law 8 (2003): 131.
44. (2003) 55 DLR (HCD) 194.
45. (1997) 17 BLD (HCD) 344.
46. (1993) 45 DLR (HCD) 643.
47. See also BLAST v Bangladesh (2002) 7 BLC (HCD) 85 (a
conviction passed by any court other
than the juvenile court in respect of a child is liable to be
set aside).
48. (2002) 22 BLD (HCD) 231. See also Saifuzzaman v State 56
(2004) DLR (HCD) 324 warning
against police torture or third method degrees.
49. 23 BLD (2003) (HCD) 115.
50. See, e.g., Bangladesh Biman Corporation v Rabia Bashri Irene
(2003) 55 DLR (AD) 132,
striking down the rule of different ages of retirement for
flight stewards and stewardesses.
51. (2005) 57 DLR (HCD) 201.
52. Ibid., 212213 (interestingly, by reference to religious
scripts, the court took a pedagogic role
to educate the government about its protective duty towards
women).
53. See, e.g., Al Amin & Others v The State (1999) 19 BLD
(HCD) 307, 317319. In some cases the
court set out to craft a women-friendly criminal justice system,
suggesting, e.g., reduction of
the evidential threshold in rape cases in consideration of the
relevant social factors: State v
Moslem (2003) 55 DLR (HCD) 116; State v Mir Hossain (2004) 56
DLR (HCD) 124.
54. See, e.g., Bangladesh Italian Marble Works Ltd, below note
61; Shahriar R. Khan v
Bangladesh (1998) 18 BLD (AD) 55, 78.
55. See e.g., Younus Mia v Ministry of Public Works (1993) 45
DLR (HCD) 498 (courts cannot
direct the government to implement a policy).
56. See e.g. Mostafa Kamal v Commissioner of Customs (1998) 18
BLD (HCD) 301, 308 (the
judgment suggesting a legal framework for fixing import tariffs
was sent to the government
for consideration for framing rules).
57. In Abdul Gafur v Secretary, Ministry of Foreign Affairs
(1997) 17 BLD (HCD) 453, the court
directed diplomatic assistance for the rescue of a girl-victim
of an international abduction
from Kolkata.
58. (1992) 44 DLR (AD) 319.
59. In the same vein, in BLAST v Bangladesh (2008) 60 DLR (HCD)
234 (judgment 2 August
2005) the court declared the Village Government Act 2003
unconstitutional for providing for
selection rather than election of representatives to the village
governments.
60. (2008) 60 DLR (HCD) 176.
61. (2006) BLT (Special) (HCD) 1 (judgment 29 August 2005).
62. For a note on this see Ridwanul Hoque, On coup d' etat,
constitutionalism, and the need to
break the subtle bondage with alien legal thought: A reply to
Omar and Hossain, Law & Our
Rights the Daily Star, Dhaka, October 29, 2005.
63. See Khondker Delwar Hossain, above note 41.
64. In some cases, e.g., the post-1990 court refused to review
the legality of actions by past martial th th
law administrators on the unjustifiable ground that those were
protected by the 7 or the 5
-
41
amendments to the constitution. See Abdur Rashid Sarker v
Bangladesh (1996) 48 DLR (AD) 99;
Shah Mohammad v Secretary to the President (1996) 1 BLC (HCD)
8.
65. (2000) 52 DLR (AD) 82 (hereafter Masdar Hossain) (judgment 2
December 1999).
66. See Md. Masdar Hossain & Others v Secretary, Ministry of
Finance & Others (1998) 18 BLD
(HCD) 558.
67. Masdar Hossain, above note 65,103.
68. The court relied on, e.g., Indian, Pakistani, and Canadian
decisions: All Indian Judges'
Association v India (1993) 4 SCC 288; Walter Valente v The Queen
(1985) 2 SCR 673;
Reference re Remuneration of the Judges of the Provincial Court
of Prince Edward Island
(1997) 3 SCR 3.
69. Masdar Hossain, above note 65, at p. 108.
70. Ibid., 109.
71. The court (ibid., 160) reasoned that it can issue necessary
directions to bring the parliament or
the executive back to the constitutional path when they breach
the constitution, relied on the
Pakistani decision in Govt. of Sindh v Sharaf Faridi PLD 1994 SC
105 imposing positive
obligations on the state to separate the lower judiciary. It is
interesting to note that the
Appellate Division followed strategic activism by not
straightforwardly directing the
government to separate the judiciary from the executive organs
of the state as per Article 22
of the constitution probably because of this mandate's judicial
non-enforceability.
72. In Kazi Mukhlesur Rahman v Bangladesh, above note 18, which
had a strong PILness, the
court missed an opportunity of being the pioneer in establishing
PIL jurisprudence. Unlike
Indian judges, Bangladeshi judges had never been the vanguard of
the PIL movement. Rather,
the activist lawyers needed to work hard to make the judiciary
break away from the colonial
legal thinking and orthodox jurisprudential inhibitions. See for
a negative decision:
Bangladesh Sangbadpatara Parishad v Bangladesh 43 (1993) DLR
(AD) 126. On PIL
generally see Ahmed (1999), above note 5, and Hoque (2006),
above note 5.
73. IX (1996) Bangladesh Supreme Court Report 27.
74. For some old cases see Kalam v Bangladesh (2001) 21 BLD
(HCD) 446; Aleya Begum v
Bangladesh (2001) 53 DLR (HCD) 63.
75. See, e.g., M Salimullah v Govt of Bangladesh, 23 (2003) BLD
(HCD) 58, RAJUK v Mohshinul
Islam 53 (2001) DLR (AD) 79.
76. M. Idrisur Rahman v Shahiduddin Ahmed (1999) 51 DLR (AD)
163.
77. Ziaur Rahman Khan v Bangladesh 49 (1997) DLR 491 (declaring
timeframe for holding fresh
elections in the three local government bodies in the Chittagong
Hill Tracts.)
78. (2003) 55 DLR (HCD) 613.
79. (2000) 52 DLR (HCD) 413.
80. (2009) 14 BLC (HCD) 759.
81. See Rabia Bhuiyan, MP v Secretary, Ministry of LGRD and
Others (2007) 59 DLR (AD) 176.
82. In Dr. Mohiuddin Farooque v Bangladesh (1996) 48 DLR (HCD)
438, 442 the court held:
the right to lifeincludes the enjoyment of pollution free water
and air, improvement of
public healthand [a] life consistent with human dignity.
83. On cross-national influences in the development of PIL in
South Asia, see Arun K.
Thiruvengadam, In pursuit of the common illumination of Our
house: Trans-judicial
influence and the origins of PIL jurisprudence in South Asia,
Indian Journal of
Constitutional Law (2008): 68103.
84. (2002) 54 DLR (AD) 130, affirming Chowdhury M. Hasan v
Bangladesh (2002) 22 BLD
(HCD) 459.
85. (2003) 23 BLD (HCD) 80.
86. BLAST v Bangladesh (2008), above note 59.
87. BLAST v Secretary, Ministry of Law, Justice and
Parliamentary Affairs (2009) 61 DLR
(HCD) 109 (judgment 24 February 2008).
-
42
88. BLAST v Bangladesh WP No. 8283/2005, challenging s. 6(2) of
the Suppression of Violence
against Women and Children (Special Provisions) Act 1995 (later
repealed) (judgment 2
March 2010).
89. Z. I. Khan Panna v Bangladesh WP No. 8621 of 2005.
90. This observation holds good in Ain o Salish Kendro (ASK) v
Bangladesh (2007) 15 BLT
(HCD) 48 in which case the High Court Division held that
restraining a prisoner in bar fetters
following the law is not unconstitutional. But see the
path-breaking decision in BLAST v
Bangladesh (2003), above note 49.
91. Some analyses made in this section are based on my earlier
work on the 2007 Emergency in
Bangladesh. See Ridwanul Hoque, The recent emergency and the
politics of the judiciary in
Bangladesh, National University of Juridical Science Law Review
2 (2) (2007) 183204.
92. The Emergency Powers Ordinance 2007 and the Emergency Powers
Rules 2007 curtailed
judicial powers significantly.
93. Although the right to enforce fundamental rights under
Article 102(1) of the constitution had
been suspended, judicial review power concerning other issues of
legality under Article
102(2) remained unaffected.
94. Writ Petition No. 709 of 2008 (judgment 22 May 2008).
95. See Article 123 (3) of the Bangladeshi Constitution that
provides that the parliamentary
elections shall be held within 90 days of the dissolution of the
parliament.
96. For similar observations, see also Advocate Sultana Kamal v
Bangladesh (2009) 14 BLC
(HCD) 141, as in note 104 below.
97. (2008) 60 DLR (AD) 82.
98. Moyezuddin Sikder v State (2007) 59 DLR (HCD) 287, 297.
99. (2008) 60 DLR (AD) 90.
100. Id. See Article 35(1) of the constitution.
101. Ibid., at p. 142, para. 42 (referring to Article 26 of the
constitution, noted in note 9 above.).
102. The court showed its readiness to exercise judicial
vigilantism in times of extra-ordinary
political situations like Emergency. In the court's words
(ibid., at paragraph 48), the duty to
defend the constitution gives the judges an additional duty to
read and apply the provision
of the Constitution strictly when a citizen's rights are
infringed.
103. (2008) 60 DLR (AD) 90, 100.
104. (2009) 14 BLC (HCD) 141.
105. The court invalidated section 5 of the Emergency Powers
Ordinance 2007, and rules 11(3),
19Gha and 19Uma of the Emergency Power Rules 20007.
106. Interestingly, the petitioners did not challenge the
constitutionality of the state of emergency
as such.
107. By this the court established, not so strongly though, that
the president's satisfaction about
the existence of reasons for imposing and withdrawing emergency
is subject to judicial
review. Compare Abdul Baqui Baluch v Pakistan (1968) 20 DLR (SC)
249, in which the
Pakistani Supreme Court held that once a proclamation of
emergency had been validly issued
the question whether conditions for emergency ceased or whether
it needed to be withdrawn
was not for the court to decide.
108. Writ Petition of 24 November 2008. Also see another earlier
challenge, M. Saleem Ullah and
Others v Bangladesh (2008), Writ Petition No. 5033 of
2008.nd
109. Indeed, the petitioners challenged the Constitution (2
Amendment) Act 1973 that made
provisions for the state of emergency.
110. Apart from cases cited here, there are other good instances
of judicial constitutionalism
activism during the Emergency. See, e.g., Pirjada Syed
Shariatullah v Bangladesh (2009) 61
(DLR) (HCD) 647 holding that the President's ordinance-making
power must conform to the
constitution.
-
43
111. Surprisingly, there was not even any dissenting opinion in
the discussed cases of doubtful
logical correctness.
112. See Khondker Delwar Hossian, above note 65, and the High
Court Division's recent decision th
invalidating the 7 Amendment, above note 41.
113. Government of Bangladesh v Ministry of Home Affairs and
Others (2008) 16 BLT (HCD)
264 (directing to install speed governor in all vehicles as per
Motor Vehicles Ordinance 1985).
114. BNWLA v Bangladesh (2009) 14 BLC (HCD) 694.
115. See, e. g. Anwar Hossain v Mainul Hosein (2006) 58 DLR (AD)
229, refusing to enforce
fundamental rights against private persons. This stands at odds
with Article 102 (1) of the
constitution that empowers the High Court Division to enforce
these rights against any
person.
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44
Judicial Activism and the
Environment in India
Shibani Ghosh
1
s one of the first countries in the world to recognise
environmental rights,
India has a vast and rich environmental jurisprudence. The
Constitution of AIndia recognises the duty of the government to
protect and improve the environment and safeguard forests and
wildlife as one of the fundamental principles of
2
governance. It also places a duty on every citizen of the
country to protect and improve 3
the natural environment. In the last four decades, the
parliament and the state
legislatures have passed several legislations on environmental
issuesprotection of
wildlife, prevention of water and air pollution, forest
conservation, hazardous waste
management, protection of coastal areas, environment impact
assessment of projects 4
and so on. However, despite the extensive black letter of the
(environmental) law, it is
the Indian judiciary, and not the legislature, which has been
credited for evolving
various types of environmental rights and delineating
obligations on the state and the
citizens to protect the environment. Even the vast and complex
structure of central and
state environmental ministries and pollution control boards
across the country has,
more often than not, been mobilised out of its state of inertia
by the judiciary.
In this process of evolution of environmental rights and
obligations and the instances of
pushing and prodding governmental agencies into action, the
Indian judiciary has often
been considered to be judicially activist. Its decisions have
been hailed for expanding
the legal horizons and changing the parameters of justice. It
has brought hope to the
vulnerable groups of people who have been victims of state and
non-state apathy and 5
atrocities and for whom the judiciary was the last resort. But
activist decisions have
also led to concerns that the judiciary is transgressing the
boundaries which separate the 6
powers of the three branches of government. As a non-elected and
democratically
unaccountable body, the judiciary cannot be allowed slip to into
the role of a law- and 7
policy-maker or that of the executive.
Different conceptions of judicial activism exist and there are
extensive debates in legal
literature about what constitutes judicial activism, and whether
activist courts are over-8
stepping the powers which they draw from the constitution.
Courts have been
considered to be judicially activist when they do not confine
themselves to the
adjudication of legal conflicts, but venture out to make social
policies, affecting many
more people and interests than had they confined themselves to
the resolution of narrow 9
disputes before them. The phrase could be used to commend the
judiciary or criticise it;
it could be used to describe a decision which is per se
unconstitutional (as it lacks
-
45
10
jurisdiction) but it could also signal an activity to bring
justice to the doorstep of people 11
particularly in areas not covered by any statue made by a
legislature. An eminent Indian
jurist, S. P. Sathe, has noted:
People's understanding of judicial activism depends on their
conception of the proper role of a constitutional court in a
democracy.
Those who conceive the role of a constitutional court narrowly,
as
restricted to mere application of the pre-existing legal rules
to the
given situation, tend to equate even a liberal or dynamic
interpretation
of a statute with activism. Those who conceive a wider role for
a
constitutional court, expecting it to both provide meaning to
various
open textured expressions in a written constitution and apply
new
meaning as required by the changing times, usually consider
judicial 12
activism not as an aberration, but as a normal judicial
function.
The courts through their decisions have changed the legal
landscape of the country's
environmental regulation. This was possible, in large part, due
to the rise of public 13
interest litigation (PILs) before the courts. As large sections
of the Indian population
had no access to justice or were being denied justice, the
Supreme Court of India in 1970s
started this new genre of litigation (which was soon adopted by
the high courts). This
form of proceedings liberalised the rule of standing and allowed
persons, who would
otherwise not have any standing before the court, to represent
disadvantaged sections of 14
the society which are unable to fight for their legal rights.
PILs can be brought before
the Supreme Court of India under Article 32 and before the high
courts under Article 226
of the Constitution of India. Under Article 32, a person can
approach the Supreme Court
if his/her fundamental right is violated. High courts can be
approached under Article
226 for violation of fundamental and other rights. The Supreme
Court and the high
courts have considerable discretion with respect to the types of
orders they can pass 15
under Article 32 and Article 226. PIL proceedings are different
from regular court
proceedingsthey can be initiated even by a letter to the court
or be based on a news 16
item; many of the procedural requirements are done away with;
the proceedings are
generally not adversarial, but more an exercise of cooperation
and collaboration 17
between different stakeholders; the court often relies on the
advice of court-appointed
expert committees and amicus curiae. The responses of the courts
to the PILs have also
been very different and, at times, innovative. One of the
responses has seen the court
issue orders in the nature of continuing mandamusthe court keeps
the case under its
judicial oversight for several years and keeps issuing orders
and directions suited to the 18
situation on the ground to the concerned government
authorities.
Without entering the debate on the legitimacy of judicial
activism, in the context of
environmental law, one can certainly identify some broad grounds
based on which the
courts have been called judicially activist. It is because their
decisions have either a)
created new law; b) interpreted rights and obligations where
none were clearly defined;
c) made policy choices and directed executive action; or d)
insisted on continually
monitoring the implementation of law/policy. Besides these
grounds, some authors
-
46
have considered some of the retrogressive decisions of the
courts to be judicial
activism. In these decisions, the courts go to great lengths to
justify actions of the
government on policy grounds, instead of deciding the matter on
established legal 19
principles.
a) Courts have created new law
Although law-making lies essentially in the domain of the
legislative branch of the
government, in the course of deciding environmental matters
before it, the Supreme
Court of India has on certain occasions resorted to introducing
new legal principles.
These legal principles have subsequently been upheld to be part
of the Indian legal
system and have become the law of the land.
One of the first instances in which the court adopted this
law-making avatar was in
1986. The court, while deciding a PIL which claimed compensation
for victims of an
oleum gas leak and demanded the closure of certain hazardous
industries in Delhi,
introduced a new principle of liabilityabsolute liabilityin
Indian law. The court held
that the rule laid down in Rylands v. Fletcher in 1866 was no
longer relevant as the law
had to evolve with changing times. It decided that there was a
need for a new legal
principle and held that an enterprise which is engaged in a
hazardous or inherently
dangerous industry which poses a potential threat to the health
and safety of the persons
working in the factory and residing in the surrounding areas
owes an absolute and non-
delegable duty to the community to ensure that no harm results
to anyone on account of 20
any hazardous or inherently dangerous nature of the activity
which it has undertaken.
If any harm results on account of such an activity the
enterprise is held to be absolutely
liable and responsible for the compensation for such harm; it is
no defence for the
enterprise to say that it had taken all reasonable care and that
the harm occurred without 21
any negligence on its part. Subsequently, the court held this
rule of liability to be a 22
binding legal principle.
In 1995, a petitioner approached the Supreme Court directing its
attention towards the
inaction of the state government of Tamil Nadu on the issue of
forest conservation and
implementation of the Forest (Conservation) Act, 1980. This
petition became the basis 23
for the court's continued involvement in forest conservation
across the country. An
interim order passed by the court in 1996 became one of the most
significant orders in 24
the history of environmental law because of the subsequent legal
action it led to. The
court concluded that there appeared to be some confusion with
regard to the ambit of the
Act and the definition of forest and therefore, it laid down a
definition of forest which did
not exist in the Act and which had a much broader scope than the
existing understanding 25
of forest. This became the legal definition of forest for the
purposes of implementation
of the Act as well as the subsequent orders of the court.
The other significant contribution of the judiciary to
environmental jurisprudence is the
declaration that certain principles enunciated in international
environmental legal
instruments are part of the Indian municipal law. Several
decisions of the Supreme
Court and the high courts since the 1990s have been based on or
have referred to the
-
47
26 27
precautionary principle, principle of sustainable development
and the principles of 28
inter-generation equity. These principles had not found mention
in any Indian
legislation. But courts have concluded that these are part of
the Indian law. It was only in
2010 that the parliament included the principle of sustainable
development and
precautionary principle in a statutethe National Green Tribunal
Act 2010. Section 20
of this Act, makes these two principles, along with the Polluter
Pays Principle, the
guiding principles for the tribunal when it is passing an order,
decision or award.
b) Courts have interpreted earlier undefined rights and
obligations
The Constitution of India recognises certain fundamental rights
which cannot be
abrogated by any law or administrative action. The right to life
and personal liberty
contained in Article 21 is one such right. The Supreme Court of
India has liberally
interpreted this right to life and held that it includes other
rights such as the right to live 29 30 31
with human dignity, the right to livelihood, the right to health
and medical care and 32
the right to education. Adopting a similarly expansive approach
to interpretation, the 33
Supreme Court has held that there is a fundamental right to
healthy environment and 34
pollution-free air and water. While interpreting these rights,
the courts have drawn 35
support from Articles 47, 48A and 51A (g) of the
constitution.
India has enacted several environmental legislations such as the
Water (Prevention and
Control of Pollution) Act, 1974, the Air (Prevention and Control
of Pollution) Act, 1981
and the Environment (Protection) Act, 1986. These legislations,
inter alia, put in place
processes to analyse the impact of any activity on the
environment; lay down norms and
criteria to reduce the adverse impact of human activity on the
environment; and create
institutions to monitor the activities of industries and redress
grievances. Many cases
brought before the courts highlight the failure of the states to
implement provisions of
these legislations. The courts have generally deliberately
interpreted provisions to give a
pro-environment decision. In a series of decisions in 2009 and
2010, the Delhi High
Court has clarified the law under the Environment Impact
Assessment Notification,
particularly with regard to public consultation and
decisiom-making of the 36
government. In all these cases, the courts purposively
interpreted the law to make the
environmental decision-making more participatory and to ensure
that the basic tenets
of administrative law are not ignored by environmental decision
makers.
c) Courts have made policy choices and directed executive
action
Policy making and implementation lies in the domain of the
executive. However, when
the executive does not formulate or amend policy to suitably
address legitimate
demands of the people or when it fails to discharge its
statutory obligations, the judiciary
has stepped in by increasing the extent of review of executive
(in)action. In such cases,
the courts i) direct the executive to formulate appropriate
policy to respond to the need
of the hour; ii) direct the executive to discharge its
obligations in a time bound manner;
or c) make a policy choice for the executive and direct the
executive to implement the
same.
-
48
37
In M.C. Mehta v. Union of India, the Supreme Court directed the
relocation of 550
polluting tanneries then situated in four areas in the city of
Kolkata in West Bengal. In
this case, the court had given several directions to the state
government since 1993 but
the government had made no effort to implement those directions.
In its final order the
court gave the government eight weeks time to comply with the
order of the court and
relocate the tanneries in an alternative area outside the
city.
A February 2009 order of the Delhi High Court strongly
criticised the government for
not taking action to fully constitute the National Environment
Appellate Authority 38
(NEAA). In 2005, the court had disposed off a petition directing
the government to
make the required appointments in the authority in 45 days but
the government did
nothing for four years. The service conditions of the
chairperson and the members of the
authority as decided by the executive were such that no eligible
candidate was accepting
the positions. But the executive was taking no action to change
the conditions which
were inexplicably different (lower) than those for other
regulatory authorities. The court
held that it had no option but to hold that the service
conditions stood amended by the
order of the court and then direct the government to offer the
positions to eligible 39
persons.
Two decisions of the Supreme Court of India which have been
widely discussed for the
extent to which they arm-twist the government are worth a
mention here. The first one 40
is the Delhi Vehicular Pollution case. The pollution in Delhi
due to vehicular emissions
had reached dangerously high levels and the government was not
taking action. The
Supreme Court was approached by a civil society organisation to
intervene. The court
not only directed the Delhi government to take action but also
specified the
technological solution that the Delhi government had to
implement in a timely manner.
All public transport vehicles were to start using compressed
natural gas (CNG) as fuel
instead of diesel in accordance with the time-table stipulated
by the court. While most
commentators recognised the need for the court to intervene
given the state of Delhi's
air, the others asked whether it was right for the court to
throw its weight behind a 41
particular technical solution to the problem.
42
The second decision is In re: Networking of rivers in which the
court directed the
government to undertake inter-linking of rivers across the
country by transferring water
from water surplus basins to water deficit basins. Expert
agencies estimated that more
than 40 years were required to complete the link projects.
Despite there being no clear 43
evidence that inter-linking of rivers was scientifically a good
idea, the court directed the
government to ensure that the link projects are completed within
a reasonable time of 44
not more than ten years. Even proponents of judicial activism in
the realm of
environmental law might be sceptical of such a judicial edict in
a context of a problem of
such immense social, economic, ecological, technical and
political complexity. In 2009,
the Minister of State for Environment and Forests Jairam Ramesh
called the project a 45
human-ecological-economic disaster. This certainly holds a
cautionary tale for the
judiciary against hasty and ill-informed intervention in the
exercise of complex
executive functions.
-
49
d) Courts have insisted on monitoring implementation of
law/policy
In some cases, where the executive has displayed a very poor
record of implementation
of its statutory obligations, the Supreme Court has adopted the
monitor avatar.
Showing little faith in the executive, the court hears these
cases regularly, assumes some
of the powers of the executive and monitors the actions taken by
the executive closely. In
the Godavarman case, the Supreme Court has been issuing orders
since 1995 on the 46
issue of forest conservation. As per the provisions of the
Forest (Conservation) Act,
1980, any diversion of forest land for non-forestry purposes by
state governments
requires the approval of the central government. But as the
central government failed to
do its job properly and the state government took little or no
interest in forest
conservation, the Supreme Court assumed this responsibility
through a series of 47
decisions given in the Godavarman case. Forests can no longer be
diverted for non-
forestry purposes without the final approval of the Supreme
Court with the central
government playing only a recommendatory role.
In the last three decades most major developments in the field
of environmental
governance in India have been as a result of the judiciary's
intervention. But in the past
year, there have been certain significant events and
developments relating to
environment protection which are attributable to the other two
branches of the
government.
The parliament passed the National Green Tribunal Act, 2010 and
it has come into force
in June 2010. This tribunal is in the process of being
constituted and it will replace the
NEAA. It is being set up to promote effective and efficacious
disposal of environmental
cases and it would have jurisdiction over all civil cases which
involve a substantial
question relating to the environment, including enforcement of
any legal right relating 48
to the environment. The tribunal can award relief and
compensation to persons who
have been victims of pollution and environmental damage
including any accident due to
the handling of hazardous wastes. It can also award restitution
of property or direct
restitution of the damaged environment. The panel is supposed to
be composed of
judicial and technical members with experience in science,
administration, and so on.
While there are apprehensions based on past experiences about
the working of this 49
tribunal, the tribunal's wider jurisdiction and powers and the
conviction shown by the
Ministry of Environment and Forests headed by minister of state,
Jairam Ramesh,
might make a difference. It is also hoped that a well
functioning specialised tribunal
would not only improve environmental decision-making processes
but also act as
deterrent to violations of environmental norms.
In recent months the executive has taken some significant
proactive measures towards
environment protection. These measures are not, in a sense,
extra-ordinary. It is
evidently the obligation of the executive branch of the
government to take adequate
measures to protect the environment and enforce the environment
laws of the country.
What perhaps makes these measures significant isfirst, that the
executive has
undertaken these measures independent of the judiciary and
second, that they appear to
be at least partially influenced by vocal public protest and
actions of civil society
-
50
organisations.
In August 2010, the central government issued a moratorium
against new projects in
two districts of Maharashtra. According to the office memorandum
issued, this
moratorium was issued in response to the representations
expressing concern relating
to the environmental impacts and ecological degradation due to
large number of 50
projects being proposed in the region as well as the projects
under implementation.
The government has also withdrawn its forest clearance for
bauxite mining in the
Niyamgiri Hills. The decision came after a committee constituted
by the central
government concluded that the forest rights of the tribals in
the area had not been settled
under the Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of 51
Forest Rights) Act, 2006. The decision came two years after the
Supreme Court gave its
approval to the same project despite its own expert committee
recommending against 52
it.
53
Anti-dam movements in India have met with little success in the
courts. But a recent
decision of the government has come as a pleasant surprise for
project-affected persons
and activists across the country. Several dams have been
constructed and more are
proposed to be constructed on the Ganga River as part of
hydro-electric power projects.
Anti-dam protestors have been petitioning against these dams for
many years as the
river is not only of great ecological value but holds a very
important place in the Hindu
religion and faith and blocking its flow has severe adverse
impacts on the river. One such
project which has faced constant public opposition is the
Loharinag Pala Hydel Project.
The environment clearance granted to the project was challenged
in the NEAA in 2005
which dismissed the appeal. The matter then went to the high
court which directed the
NEAA to reconsider the appeal. The NEAA once again dismissed the
appeal and the case
was taken up at the high court of Uttarakhand. As the legal
possibilities to challenge were
not bearing any fruit, the activists intensified their protest.
In August 2010, the
government finally decided to stop the Loharinag Pala Project as
well as two other
projects in Uttarakhand. It has al