Expanding the horizon of PIL

The activists greeted the positive outcome of the PAP 20 judgement with much enthusiasm. It opened the gate for public interest litigation (PIL) and removed all doubts and confusions about the validity of PIL cases.
Yet, the first reaction was not a deluge of frivolous cases, petitions, letters or telegrams. It was soon apparent that Mustafa Kamal J. was right when he said that taking up the people's causes at the expense of his own is a rare phenomenon, not a commonplace occurrence. Since the court not flooded with cases, there was no immediate need felt to open PIL cells or declare PIL guidelines like Indian or Pakistani Courts. PIL cases came as a gentle inevitable steam rather than a flood.
The court has embarked on the second phase of the development of PIL. With the help of the wisdom already acquired by the Indian and Pakistani judges, the High Court Division is steadily expanding the horizon of PIL. The judges are applying PIL jurisprudence in new fields taking care that neither the resources of the Court, nor that of the government are stretched in any way. In some of the cases, either the public interest element was not strong enough, or the judges were unwilling to embark on adventures for which they were not yet ready. But generally, PIL petitioners approaching with genuine social action matters are successful.
Certain cases deal with matters relating to the functioning of the democratic process. In Md Idrisur Rahman v Shahiduddin Ahmed and others, the appointment of the Chief Metropolitan Magistrate without prior consultation with the Supreme Court was challenged in 1994. This case was decided by the High Court Division in 1999 in favour of the petitioner which was later affirmed by the Appellate Division. In Ziaur Rahman Khan v Government of Bangladesh, a number of political activists and MPs questioned a new provision inserted in three statutes relating to local governments of Rangamati, Khagrachari and Bandarban area. The challenge was partially successful since the Court declared time limit for fresh election. Petitioners failed in Saiful Islam Dilder v Government of Bangladesh and others, where extradition of Indian tribal leader Anup Chetia was challenged. A very interesting suo motu rule was issued in The State v Md. Zillur Rahman and other, where the legality of hartal was assessed in the light of offences against public tranquility under sections 141 to 160 of the Penal Code. It was decided that decision to observe hartal by five or more persons amounts to unlawful assembly only when they decide to compel others to do the same. The Court dismissed the petition. In Dr Ahmed Husain v Bangladesh, the petitioner challenged new provisions for securing duty free cars for parliament members. In Mrs. Parvin Akhter v The Chairman, Rajdhani   Unnayan   Kartipakkha and   others, petitioners successfully challenged destruction of lake and greenery in the Gulshan Model Town.
In the area of detention, the courts remain vigilant. In Bilkis Akhter Hossain v Bangladesh and others, along with three other similar petitions, detention of four political leaders was held mala fide, and illegal. For the first time, compensation was awarded to the detenues. Each detenue received an amount of one lakh taka. A similar case where compensation was awarded is Md Shahanewas v Government of Bangladesh. An innocent person was arrested by an ASI of Police in the name of an absconding criminal. The Court awarded compensation of an amount of twenty thousand taka to be realised from the negligent ASI. In State v Deputy Commissioner Bogura and others, suo motu rule was issued when a newspaper reported unlawful detention in jail. The rule was subsequently discharged.
Genuine social interest matters involving the poor and the downtrodden have been considered in several cases. In the much-publicised case of Sultana Nahar v Bangladesh and others, eviction of sex-workers from their residences was challenged. Initially, the two justices of the High Court Division arrived at different conclusions. As the case was referred to the third judge, it failed both on the point of standing and on merit. Dr Mohiuddin Farooque v Bangladesh and others, the Flood Action Plan (FAP 20) case of Tangail was finally heard on merit and the Court gave a number of directions and orders to be complied with by the government. If media coverage and publicity is taken as a guide, one of the most important recent PIL cases is Ain O Salish Kendra (ASK) and others v Government of Bangladesh and others. The petitioners challenged eviction of slum-dwellers in Dhaka without making any alternative arrangement. The Court ordered that the eviction process should proceed phase by phase, giving reasonable time and rehabilitate the slum-dwellers.
Apart from the cases mentioned here, there is considerable number of PIL cases pending before the courts and as such have not been reported. The number and variety of cases indicate the progression of PIL towards maturity. As PIL has become a permanent feature of the Bangladeshi legal system, non-governmental organisations and social action groups are working hard to utilise this new avenue. They are popularising PIL through Seminars, publications etc. and filing well-researched PIL cases. Instead of a litigation-only approach, Bangladeshi activists are already attempting to diverge in order to pursue other types of public interest law activities.

The writer is a Lecturer, Dept. of Law & Justice, Southeast University.