Public International Law

By the late 1970s and early 1980s, social activist judges, including Justice Krishna Iyer and Justice Bhagwati, were busy constructing PIL jurisprudence through a number of cases involving social justice matters. Thus the Judges acted on the basis of a letter sent by a prisoner describing torture upon another prisoner, reviewed the system of confinement of under trial prisoners in a case where some of them were held in custody longer than the maximum sentence that could be imposed upon conviction and ordered a municipality to carry out its statutory duties.

A few of the leading cases of this time gained considerable media attention and also played important role in the construction of the new rules of standing. For example in Fertilizer Corporation Kamagar Union v. Union of India, where the employees challenged sale of plants and equipment of a factory, Krishna Iyer J. treated the matter as a public interest and gave the employees standing. He observed:

Law, as I conceive it, is a social auditor and this audit function can be put into action only when someone with real public interest ignites the jurisdiction. We cannot be scared by the fear that all and sundry will be litigation-happy and waste their time and money and time of the Court through false and frivolous cases.

The bold attitude of the judges in these cases resulted in a huge number of applications by citizens seeking to defend constitutional and fundamental rights of the poor and the helpless. Issues dealt with the court involved constitutionality of reservation of promotion for scheduled cast, constitutional rights of inmates of protective homes, inhuman conditions of prison inmates, rights of pensioners, illegal detention without trial, unsatisfactory conditions of railway services and eviction of pavement duelers without rehabilitation.

The most famous exposition of PIL came in 1982. The law minister initiated a circular declaring that as far as possible; one third of the judges of each High Court should be from outside the state. A number of petitions were filed by independent advocates challenging the circular on the ground that the circular constituted a threat to the independence of the judiciary and was, therefore, unconstitutional and void- Thus came the case SP Gupta and others v. Union of India and others popularly known as the Judges' Transfer case.

PN Bhagwati J., AC Gupta J., S Murtaza Fazal Ali J., VD Tulzapurkar J., DA Desai J., RS Pathak J. and ES Venkataramaiah J. gave detailed judgments constructing a PIL jurisprudence, including a liberal set of rules of locus standi. The spirit of these judgments is summarized by Bhagwati J. when he says:

Today a vast revolution is taking place in the judicial process; the theatre of law is fast changing and the problems of the poor are coming to the forefront. The court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom liberty and justice have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public-spirited individuals seeking judicial redress for the benefit of persons who have suffered legal wrong or a legal injury or whose constitutional and legal rights have been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the court for relief.

After this authoritative exposition, Indian development of PIL acquired a new phase of maturity. The battle for recognition and establishment of PIL has been won. Now the activist judges and lawyers concentrated on the diversification and application of PIL in different fields.

PIL has not only become a permanent feature of the Indian law, Indian developments have immensely influenced PIL in a number of other common law based legal systems. The first jurisdiction to follow the Indian example was Pakistan

PIL IN PAKISTAN

The Background

Pakistan, being an underdeveloped country like India, has the same problems of poverty and social injustice. Executive lawlessness, combined with the failure of the legislature to ensure the progress of law, has given rise to similar frustrations as had been experienced by the Indians. Yet the situation was perhaps been even more complicated in Pakistan because of the failure of democracy for prolonged periods due to the imposition of the martial law. While Pakistan had three Constitutions in the formal sense of the term, there   were   several   interim   constitutional   arrangements   in between. One consequence of this chaos was the pathetic status of the fundamental rights of the people.  Annulled, curbed or declared non-applicable, these rights could not be claimed by the aggrieved for long periods at a time. Whenever the Constitution was restored, the judiciary started to move towards establishing its till the next Martial Law came to halt everything once again.

        This situation resulted in the popular perception that the traditional litigation was failing in many respects. The realization dawned that “ .... the weaker sections of society because of their economic or social position, remain cut off from the rest of the society and thereby suffer hardships”. The integrity of the entire legal system was in question, as Khan observed that the people seemingly do not respect the “Common Law” which they feel has been imported into the country. This feeling, it has been noted, was shared by a number of Judges. 

THE CASES

The environment was conductive and Pakistan was soon to follow the Indian example. PIL developed there in the late 1980s. In 1988, in the famous case of Miss Bhutto v. Federation of Pakistan, a political party challenged a new order by the Martial Law government for registration of political parties. The Supreme Court gave standing to the political party and refused to take a conservative or   traditional   stance.   Benazir   Bhutto's   case   established   a framework of standing rules in matters of public importance.

        This was soon followed by the leading case of Darshan Masih alias Rehmatay and others v. The State. The court acted on the basis of a telegram demanding enforcement of fundamental rights involving bonded laborers. The court enunciated the philosophy, rules of standing and procedure of PIL. The proceeding was concluded and an order was passed on the basis of an agreement reached by all concerned.

        Afzal Zullah CJ, followed by Nasim Hasan Shah CJ, played vital roles in the development of PIL in Pakistan. They invited PIL cases and attempted to establish Procedural framework to deal with PIL petitions. This was made public in a judicial conference held in Quetta on 15th and 16th August 1991. It was declared glared that it is the responsibility of the Judiciary under the Objectives Resolution and under the Constitution to take notice of violations of the right of citizens.

As it happened in the USA and India, despite opposition, PIL became an integral part of the Pakistani legal system by the early 1990s.

Chapter Three

DELOPMENT OF PIL IN BANGLADESH

The colonial legacy is responsible for many of the shortcomings of the Bangladeshi legal system. The fact remains, however, that even after gaining independence twice in the last fifty years, we find the system fundamentally unaltered. When the British started to reform, change and eventually transform the legal system inherited from the Mughals, they attempted to import and transplant the common law system and the Anglo-Saxon jurisprudence. In many cases this was compromised because of the difference of society, culture, politics and religion. But essentially, the rulers believed that they were introducing the common law system for the betterment of the colony. In any case, the prime motive was to create a system that would help to rule the colony effectively.

In British India, therefore, we had imitations of the British bench and the bar. The lawyers and judges of Indian origin were important and leading members of a new Indian aristocracy created to facilitate the colonial rule. They were not only trained in English law but also believed the common law system to be the best and utterly indispensable for the Indian society. It was a 19th century colonial legal system, with all its goods and evils which the newly independent nations of India and Pakistan inherited in 1947.

Muslim-dominated East Bengal joined Pakistan and the legal developments in Pakistan and India took two separate roads after 1947. Although in both countries the written constitutions attempted a conscious departure from the colonial legacy, Pakistan was not as successful as India in maintaining democratic practices in the political field. For Bangalis, the Pakistan period was full of clashes and power struggles between different interest groups and especially between the Western and Eastern part of the country. This was made worse by martial laws and the absence of democratic processes. The Constitution was repeatedly abrogated, discarded and written from scratch. A natural healthy development of law was, consequently, frustrated.

The east-west conflict finally resulted in an armed liberation movement in 1971. Bangladesh was born under the leadership of Sheikh Mujibur Rahman, the head of the Awami League, the largest political party. This marked the point of departure of the Bangladeshi legal system from that of Pakistan. The new country adopted a Constitution in 1972.

The Constitution of Bangladesh has a chequered history. From the very beginning, it was subject to major amendments that tended to restrictively redefine the limits of fundamental rights. One of these early amendments, The Third Amendment, was triggered by Kazi Mukhlesur Rahman v. Bangladesh and another, popularly known as the Berubari case.38

INITIAL EXPERIENCE AND THE BERUBARI CASE (1972-74)

On 16 May 1974, the Prime Ministers of Bangladesh and India signed a treaty in Delhi providing 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 Angarpota enclaves. This treaty was challenged 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 Rahman was an advocate and came to the Court as a citizen and as such his standing was in question.

Locus standi was granted by Sayeem CJ on the ground that Mr. Rahman agitated a question affecting a constitutional issue of grave importance posing a threat to his fundamental rights that pervade and extend to the entire territory of Bangladesh. The Court decided that the question is not whether the Court has jurisdiction but whether the petitioner is competent to claim a hearing. So the question is one of discretion which the Court is to exercise upon due consideration in each case. The application, however, was rejected on the ground of being pre-mature. But since the Court observed that a cession of territory needs parliamentary approval and enactment, the government soon initiated the Third Amendment of the Constitution.

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". Being the judgment of the Appellate Division, Berubari was resorted and referred to whenever a widening 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. This case, it has recently been claimed in the FAP 20 case, is unique since it precedes the PIL developments of the neighboring jurisdictions. This argument is summed up by Afzal CJ in the FAP 20 case as he says:

It is a matter of some pride that quite early in our Constitutional journey the question of locus standi was given a liberal contour in that decision by this Court at a time when the Blackburn cases were just being decided in
England which established the principle of "sufficient interest" for a
standing and the doctrine of public interest litigation or class action was yet to take roots in the Indian jurisdiction.

THE BARREN PERIOD (1975-1986)

        The Constitution, which provided for a parliamentary democracy, was under serious threat due to post-war instability, natural calamities including a famine and deterioration of the law and order situation. A desperate ruling party engineered the Fourth Amendment of the Constitution in January, 1975. This introduced dictatorial presidential government with a one-party political system.

The reaction was violent. In August of the same year, President Sheikh Mujibur Rahman, leader of the liberation struggle and the Awami League, was killed. The government was toppled and a martial law was declared. The Constitution was to remain in force subject to the martial law, i.e. it was partially suspended. The martial law was administered initially by Khondoker Moshtaque Ahmed, a politician and ASM Sayeem, a retired Supreme Court Judge. But the real power was in the hands of the army. The Chief of the army, General Ziaur Rahman, eventually became the martial law administrator. He gradually formed his own political party and decided to run the country as an elected President. By the time this martial law gradually gave way to a civil government in 1979, a multi-party democratic system had taken shape due to systematic dismantling of the Fourth Amendment.

The civil government, which lasted   till 1982, was dominated and controlled by General Zia. Still, the political and legal environment was comparatively free and the Court started to give a series of bold and significant decisions. But this was again interrupted when, after the assassination of Zia in a failed coup de etat, the newly elected President was removed by General Ershad in March 1982.

Under the new martial law the Constitution was suspended altogether. A mini-Constitution was inserted   in   the   Schedule   to   the   Martial   Law Proclamation which was to govern the country. Again, the Court was rendered inactive as new device “questioned the legal front effectively”. General Ershad followed General Zia and after forming his own political party, started to transform himself as a political leader. Eventually, martial law was withdrawn in 1986, but the system remained primarily an autocratic one.

The constitutional journey in the first 15 years shows that the Court did not have an opportunity to function properly, let alone allow for the development of new ideas and views under the martial law regimes. The Berubari principle could have marked the turning point in the Bangladeshi jurisdiction for carrying forward the movement of PIL, notes Ishtiaq Ahmed, but the process was thwarted when the constitutional order was disrupted. Mustafa Kamal J. explains in the FAP 20 cases:

What happened after Kazi Mukhlesur Rahman's case in Bangladesh was a long period of slumber and inertia owing not to a lack of public spirit on the part of the lawyers and the Bench but owing to frequent interruptions with the working of the Constitution and owing to intermittent de-clothing of the constitutional jurisdiction of the superior Courts.

Kept inactive and helpless, the Court's strategy was best described by Justice MH Rahman:

In some of the developing countries the very existence of judiciary as an institution is at stake. In that unenviable condition the primary role of a judge will be, if he does not decide to leave his post, to hold on. If he fails to roar like a lion it is understandable. If he keeps a glum face and gives a withering look then that will be a good work. For the time being the worthwhile role for him will be to do justice between a citizen and a citizen, so that a foundation may be laid for the future when a citizen will be able to expect justice against the mighty and the overbearing as well.

A significant case from this period is AK Mujibur Rahman v. Returning Officer and others. General Ziaur Rahman was a presidential candidate while still being a member of the Armed Forces. Military laws were amended to facilitate his candidacy. This amendment was challenged by a voter. The petition was summarily rejected by Shahabuddin Ahmed J. on merit but the question of standing was not disputed.

Standing was discussed in MG Bhuiyan v. Bangladesh where an advocate challenged an Ordinance as a citizen. As he was not personally affected, Munim CJ denied standing following the traditional view.

Indian developments of the early 1980s had no noticeable effect in Bangladesh by this time. At least there is no judgment that sheds any light in this regard. In a 1987 Conference of judges, MH Rahman J. discussed Bhagwati J's achievements but was very sceptical in following him. PIL was, in general, still an unknown concept.

However, the modern legal aid movement can be traced back to this Period. In 1978, the Madaripur Legal Aid Association was established. It was the first village-based and grass-root legal aid organization in Bangladesh. This association not only spread the idea of legal rights of the poor but gradually came to assist public interest activists.

BEGINNING OF PUBLIC INTEREST CASES (1987-1990)

After the withdrawal of martial law, from 11th November 1986, the Supreme Court started functioning with respect to its original writ jurisdiction. General Ershad's democracy was controlled and guided, elections were held but failed to ensure the legitimacy he desired.  The limited democratic practice, however, gave the Court some opportunity for a more active role. In 1988, the Eighth Amendment of the Constitution made Islam the state religion and decentralized the higher judiciary. This decentralization was successfully challenged in the Court, resulting in one of the most important of all post liberation judgments.

In Anwar Hossain Chowdhury v. Bangladesh (8th Amendment case)  the amended Article 100 of the Constitution was challenged as ultra vires. The Court, by a majority judgment of three against one, declared that the basic structure of the Constitution can not be altered and as such the amendment was void. The Court not only confirmed its power of judicial review, it proceeded to discuss various aspects of constitutionalism in Bangladesh and judicial activism. In this judgment the principle of the supremacy of the Bangladesh Constitution, the validity and authority it derives from its autochthony and the imperative nature of its dynamism were established.

The judgment was a severe blow to General Ershad's authority and enhanced the prestige of the Court enormously. It was also a reference for judges for future whenever the authority of the judiciary was to be decided vis-à-vis other governmental organs. As such this case is sometimes described as a forerunner of PIL cases.

Defying General Ershad's autocratic regime, concerned citizens started coming to the Court with their petitions. The first group of petitions came in the nature of quo warranto, since such proceedings do not require the petitioner to have a personal grievance. The position of quo warranto petitioners was strengthened in M Mostafa Hossain v. Sikder M Faruque and another, where BH Chowdhury CJ reaffirmed that in a writ of quo warranto challenging authority of a person holding public office, any citizen, irrespective of personal grievance can come to the Court. In that case, the Court even rejected a compromise petition on the ground that a matter of great public interest was involved.

MISCONCEIVED ATTEMPTS (1991)

By 1990, the movement for democracy gained momentum. General Ershad was compelled to resign on 4 December, 1990. He was arrested and the then Chief Justice Shahabuddin Ahmed headed an interim government. Although indirectly, this increased the prestige of the judiciary.

Since, under the Constitution, an election was required to be held within 180 days for the vacant posts of President and Vice President, in M Saleem Ullah v. Election Commission and another, an attempt was made to compel the Election Commission to proceed with an election. This writ was kept pending.

The election, which was free and fair, was conducted by Justice Shahabuddin's government. This was won by the Bangladesh Nationalist Party (BNP) headed by Khaleda Zia, the widow of General Ziaur Rahman. The Eleventh Amendment of the Constitution ratified Justice Shahabuddin's interim government while the Twelfth Amendment in September 1991 restored the parliamentary system of government. Due to these amendments, Mr. Saleem Ullah's case became infractuous. The Twelfth Amendment changed the form of the government from presidential to parliamentary. Apparently, it changed certain features of the government declared in 1989 to be basic in the 8th Amendment case. From then on, the Parliament operated under full democracy and there was no shadow of a dictator.

In this year came Bangladesh Sangbadpatra Parishad v. The Government of Bangladesh. The government had constituted a wage board for fixing the wages of newspaper employees. An association of newspaper owners challenged the Constitution of the wage board and its authority and pleaded PIL. In the Appellate Division, Mustafa Kamal J. refused standing on the ground that the applicant was not a 'person aggrieved'. It was also pointed out that the Indian PIL decisions can not be followed blindly since the Indian Constitutional provisions are not similar to the Bangladeshi ones.

 The effect of this pronouncement by the Appellate Division was perhaps greater than anticipated. Sangbadpatra was not a PIL case. If it had been, the decision of the Court could have been different. The judge said:

The petitioner is not espousing the cause of a downtrodden and deprived section of the community unable to spend money to establish its fundamental rights and enforce its constitutional remedies. It is not acting pro bono publico but in the interest of its members.

This indication was noticed from the very beginning by a number of commentators. In 1992, Mahmudur Rahman regretted that the Court was unduly conservative, but realized that it was not a PIL case. Similarly Ishtiaq Ahmed in his analysis of Bangladeshi PIL cases does not include the Sangabadpatra. In 1994, delivering a lecture in Dhaka University, Mustafa Kamal J. gave even clearer approval in favor of PIL. But still, the indication given in the Sangbadpatra in favor of PIL was apparently not clear enough for the judges and the majority of the lawyers to detect.

The lawyers and some judges of the High Court Division remained under the impression that since the Constitution of Bangladesh does not have provisions similar to the Indian ones, there is no scope for PIL. Also, the use of the term 'a phrase which have received a meaning and a dimension over the years' caused some confusion at a time when very few of the lawyers and judges had any firm idea or understanding about this new concept. This judgment for them meant that there can be no departure from the traditional view. The Sangbadpatra is, therefore, a perfect example where attempts by a privileged group to use the techniques of PIL have actually damaged the movement for cases with genuine concern for social justice.

HEIGHTENING OF THE CONSCIOUSNESS OF PIL (1992)

In the political arena, 1992 was a year of calm when the newly earned democracy started to function. The most significant PIL cases in this year related to personal liberty matters.

Anwarul Hoque Chowdhury J. in Ayesha Khanam and others v. Major Sabbir Ahmed and others expanded the traditional habeas corpus principle by giving standing in a case of private detention. The petitioner was a mother seeking custody of her child. Bangladesh Mohila Parishad, a voluntary organization, fought successfully as a party.

Hatem All, a man aged 104, was released from prison that year as a result of investigative journalism. Arrested in 1978, he was accused of five criminal cases but was convicted of none. In a similar case, Falu Mia was released after 21 years in prison. He had been convicted of crime, but overstayed in the prison for six years due to administrative callousness. The newspapers again played the leading role.

Since the government responded promptly, there was no reason for Hatem Ali or Falu Mia to come to the High Court. A precedent on PIL was to be set in State v. Deputy Commissioner, Satkhira and others, known as Nazrul Islam's case. Nazrul Islam had been held in prison for 12 years without any trial. Justice MM Hoque noticed a newspaper reporting this news, initiated the criminal miscellaneous case suo motu and released Nazrul.

In all these cases, we see co-operation among journalists, NGOs, judges, lawyers and (he administration. The most important role was played by the journalists who were using the full potential of the newly found freedom of speech. As soon as these reports were published, they provoked strong public reaction and criticism of the law enforcement agencies. In the Hatem Ali's case, a Government Minister became involved, in the Falu Mia's case an N"GO came forward. The Court praised the co-operation of journalists and government officers in the Nazrul Islam's case. This case was not only the first suo motu case of its kind by the High Court, it was also bold in the way it criticized law enforcement agencies and the directions it gave for further investigation into similar matters. On the whole, these cases demonstrated the power of PIL and the prestige it can give to the Court. It was difficult for law professionals to remain ignorant of these newly emerging public interest issues. As these personal liberty cases involved genuine and serious violations of fundamental rights, the Court was not hesitant to resort to a liberal approach.

However the success in detention cases was offset by failures in some other cases. In Syed Mahbub Ali and others v. Bangladesh a number of subordinate court judges were promoted without consultation with the Supreme Court. This was challenged by a group of practicing advocates as ‘concerned citizens’. Relying on the Sangbadpatra, Abdul Jalil J. held that they had no locus standi.

In another interesting case, Dr. Ahmed Hussain v.  Bangladesh,  an advocate was given standing to challenge the reservation of seats for women in the Parliament as anti-constitutional. But MH Rahman J. held that the case itself had no merit.

The steady increase of the involvement of lawyers' groups and voluntary sector organizations was further boosted when in October 1992, a two-day seminar on PIL titled 'Rights in Search of Remedies' was held in Dhaka. The initiative was taken by two voluntary sector associations: the Madaripur Legal Aid Association and Ain O Shalish Kendra. Eminent jurists, judges and lawyers from India and Pakistan joined their Bangladeshi counterparts and exchanged views. Wide presence and participation from the bench and the bar made it a very successful venture. For the first time, PIL became an issue in the discourse of Bangladeshi law. For a relatively close-knit legal community, this single seminar did more than anything else to popularize the idea of PIL and 'visibly created immense interest particularly in the legal circle'. Ishtiaq Ahmed observed:

An international seminar recently held in Dhaka and attended by jurists from India and Pakistan including the Chief Justice of Pakistan and attended by our legal and judicial luminaries, younger generations of lawyers and students of law, has left behind a salutary impact on our mind regarding the philosophy and jurisprudence of this class of litigation.

RECENT PIL CASES: EXPANDING THE HORIZON

The activities greeted the positive outcome of the FAP 20 judgment with much enthusiasm. It opened the gate for 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 was 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 finally in 1999. The High Court Division decided in favor of the petitioner which was later affirmed by the Appellate Division. In Ziaur Rahman Khan v. Government of Bangladesh, a number of political activist 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 morel 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 realized from the negligent ASI. In State v. Deputy Commissioner Bogura and others, suo motu rule was issued when a newpaper 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-publicized 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. In Salma Sobhan v. Government of Bangladesh and others, the petitioner challenged continued restraint of a prisoner in bear fetter (Danda beri) for a period of 33 months. Interim relief was grantee but the rule is awaiting hearing.

Apart from the cases mentioned here, there are a 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 Organizations and Social Action Groups are working hard to utilize this new avenue. They are popularizing 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.

Chapter Four

WHAT IS PIL: AN EXAMINATION

There is no confusion as to the general meaning of PIL - that it is 'litigation in the interest of the public'. Yet the more one attempts to be specific about the scope of PIL, the less satisfactory becomes this general description. Terms like 'litigation', 'public' or 'interest' have different meanings and scope in different situations. Further complications arise when the term 'public interest' is the issue. Since the term is culture specific, no single definition can satisfy everyone. Hence the scope of the term depends, to a great extent, on the point of view chosen.

In practice, there has been a compromise of different viewpoints about the scope of PIL. The activists and jurists accept the general meaning of PIL and leave the details to the discretion of the individual judge. Thus the scope of PIL in any particular jurisdiction depends more on practical experiences as demonstrated by judicial pronouncements than on any particular theoretical framework.

Yet there are a few general components that help us to determine whether a particular issue is of public interest and whether a particular litigation is PIL. These general components of the meaning and scope of PIL have been discussed in the present chapter, along with a number of associated terms that one can not avoid while attempting to understand PIL.

MEANING OF THE TERM PUBLIC INTEREST LITIGATION'

While the concept of PIL was just taking shape, Bhagwati J., one of the pioneers of PIL in India, observed in People's Union of Democratic Rights v. Union of India:

Public interest litigation is essentially a co-operative effort on the part of the petitioner, the State or public authority and the Court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable section of the community and to reach social justice to them.

PIL started to evolve and develop with great speed and the judges extensively applied the concept to different areas. This wider scope of PIL was ensured by defining it from a very broad angle, by describing PIL simply as litigation in the interest of the public. Kirpal J. said in People's Union Democratic Rights v. Ministry of Home Affairs:

As I understand the phrase "Public Interest Litigation", it means nothing morel than what it states namely it is a litigation in the interest of the public. Pubic interest litigation is not that type of litigation which is meant to satisfy the J curiosity of the people, but it is a litigation which is instituted with a desire J that the court would be able to give effective relief to the whole or a section of the society.

Like the Indians, Pakistani judges and writers have generally considered PIL as a purpose-oriented idea. PIL is described as a task of the eradication of social evils through the medium of law as is enjoined by the Constitution. Hussain says:

Public interest litigation means what it says namely litigation in the interest of the public. ... it must be emphasized that the raison d'etre of public interest litigation is to break through the existing legal, technical and procedural constraints and provide justice, particularly social justice to a particular individual, class or community who on account of any personal deficiency or economic or social deprivation or state oppression are prevented from bringing a claim before the Court of law.

PIL may be distinguished from ordinary litigation in the following way. First, PIL is for the benefit of the people as a whole or a segment of the society. It aims to enhance social and collective justice and there must be a public cause involved as opposed to a private cause. This includes several situations:

a.   Where the matter in question affects the entire public or the entire community, e.g. illegal appointment of an unfit person as a government servant;

b.   Where the issue involves a vulnerable segment of the society, e.g. eviction of slum-dwellers without any alternative arrangement;

c.   Where the matter affects one or more individuals but the nature of the act is so gross or serious that it shocks the conscience of the whole community, e.g. rape of a minor girl in police custody.

Second, in the situations mentioned above, any individual or organization I 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 aspects as well as the aspects of granting relief. As a result, the court may treat letters as writ petitions, appoint commissioners, award compensation or supervise and monitor the enforcement of its orders.

In short, PIL may be described as a type of litigation where the interest of the public is given priority over all other interests with an aim to ensure social and collective justice, the court being ready to disregard the constraints of the adversary model of litigation. Thus when conscious citizens or organizations, with bonafide intentions, approach the court for the interest of the public in general or a disadvantaged or under-privileged segment of the society and not for any private, vested, special or group interest, it is termed as 'public interest litigation'. An injury to the public interest will be apparent only when some constitutional or legal rights, privileges or benefits are affected or where a constitutional or legal duty or obligation has not be performed. PIL becomes a necessity when protection of law is unavailable to the public or a segment of ft due to ignorance, poverty, fear or lack of organized endeavor.

LITIGATION AND FORUM OF PIL

One important aspect of PIL is that it entails 'litigation' - the process of settling legal disputes in a court of law under appropriate procedures. From a wider viewpoint, it includes cases not only in law courts but also at the instance of quasi-judicial or administrative authority. Yet, PIL being a specific type of litigation and nothing more, it excludes legislative activities and other extra-legal means of promoting public interest, e.g. lobbying, negotiation, etc.

As it is a type of litigation, PIL has all the constraints and limitations of the litigation process. However, to promote public interest, the constraints of the litigation process have been liberally construed where PIL is involved.

In general, PIL indicates a petition in public interest in the nature of writ under Article 102 of the Constitution of Bangladesh. Development of PIL in Bangladesh so far has revolved around this constitutional jurisdiction. But PIL is not confined only within the constitutional jurisdiction. There is scope for PIL in Civil and Criminal courts as well as in special courts and tribunals provided that such litigation fulfills the criterion of PIL. Thus for example, Order 1 rule 8 relating to representative suits or section 91 regarding public nuisance of the Civil Procedure Code are relevant.

However, the present book is concerned, apart from certain exceptions, with the constitutional aspects of PIL and the civil and criminal law aspects are not within its scope.

WHAT IS PUBLIC INTEREST

The terms 'public' and 'interest' are by no means easy to define. When they combine to form the term 'public interest' - we have a fertile ground for confusions and competing ideas.

The word 'public' literally means pertaining to the people of a country or locality. In other words, "the community as an aggregate, but not in its organized capacity, hence the members of the community". The term can be used for either all members of the community or groups of members or any section or class of that community. It is a term of uncertain import and must be limited in every case by the context in which it is used.

The term 'interest' is a relation of being objectively concerned in something by having a right or title to, a claim upon or a share in that thing. It includes varying aggregates of rights, privileges, powers and immunities. Here also, the word has different implications in different contexts.

When the words 'public' and 'interest' combine to form the term 'public interest', it becomes difficult to define due to a number of factors. The phrase is used in different disciplines including political science, economics and law with different connotations and from different perspectives. It again depends on the user and one's purpose; from democrats to autocrats everybody uses it. Finally, it also varies from one jurisdiction to another. This confusion has led writers to say that 'no general agreement exists about whether the term has any meaning at all' and that the concept 'makes no operational sense'.

Generally, public interest means a commonality of interest, a single interest that a certain group of people or citizens are presumed to share. Barry and Rees actually extend this still further:

The concept of public interest ... is a device which permits us to treat the human interests of all men as a function of human interests within a given political region. It has considerable value as a weapon for criticizing selfish private interests or class interests, and its advantages in a highly individualistic and often savagely competitive society are obvious.

Thus, while a special interest furthers the ends of some part of the public, public interest ultimately serves the ends of the whole public. Even in the case of a conflict among different private or special interests, the public interest lies in the best and most just solution of the conflict which ensures that the public as a whole gain a better environment after the conflict is resolved. Thus, for example, it is a matter of public interest to protect minority rights because, although a major portion of the public might lose something, the community as a whole would gain by the progress made in terms of human and fundamental rights.

As to how this commonality of interest might be determined, there is no agreement. It is often supposed that public interest suggests a consensus among the 'preponderance' of the people or the dominant portion of the public. Public interest has also been seen as the sum total of all interests in the community balanced for the common good. Some idealists believe that public interest consists of the course of action that is best for society as a whole according to some absolute standard of values regardless of whether any citizens actually desire them.

For practical purposes, however, the courts have attempted to de public interest with more certainty. Thus a principle emerged in early English law that a matter of 'public interest is one in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected. This principle of common law appears to have been generally followed in the sub-continent including Bangladesh. In a Bangladeshi case, while borrowing from the English jurisdiction, Anwarull Hoque Chowdhury J. held:

The expression public interest is nowhere defined in the Passport Order. It has however received judicial interpretation years ago from the courts of English Jurisdiction. In South Hetton Coal Company case, reported in 1894 1 QB at page 133 Lord Esher MR while dealing with the question of fair comment in matters of public interest observed that when so many people of a particular locality is affected by failure of sanitation, a fair comment is in public interest. Public interest [sic] thus, connotes matter of interest in which a class the of community would have pecuniary interest or any other interest by which their legal right or liabilities are effected.

This description depicts the traditional and well established attitude taken by the courts both in England and in the sub-continent.

The term 'public interest', has some other traditional meanings as well. It is often   equated   with national   interest,   national   security   or   even   non-justifiability. It has also been acknowledged that “the expression interest of the general public embraces public security, public order and public morality”.

DETERMINING ‘PUBLIC INTEREST’ IN A PIL CASE

In PIL, the litigation must involve some clearly ascertainable public interest which is given due recognition and conscious preference with an aim to ensure collective justice. Apparently, three stages are involved in an ideal case:

1. Public interest is given priority over special interests, private interests, group interests and vested interests. In other words, in a free competition of interests of different kinds, the interest of the public prevails;

2. It is the judge who decides what public interest is by exercising his discretion. This thus is predominantly a matter of fact and is decided in a case to case basis;

3. The discretion of the judge is exercised judiciously and not arbitrarily or whimsically.

It may appear that ‘public interest’ is a vague and fluid concept, the meaning of which changes from time to time depending on the problem at hand. Accusations of vagueness, however, may be countered in several ways.

First, in most cases, we instantly know whether a matter involves public interest or not when we encounter it. Nobody needs special legal training to appreciate that unhindered importation and distribution of radio-active milk is against public interest. In other words, in a good case, it is almost automatic that the element of public interest is recognized and appreciated.

Second, there is a whole body of PIL case laws already accumulated in India and Pakistan. We must also add the growing number of Bangladeshi cases to the list. We now have a considerable number of decided cases which the judges can follow in determining public interest elements in similar situations.

Third, evidence of public awareness and reaction, especially through popular protests and newspaper reports, is a good indication for the judge that the matter at hand is one of public interest. However, a matter would not be a case of public interest merely because the public are interested in it.

Fourth, the court may also lay down its own guidelines for entertaining PIL cases. In India, the High Courts constituted PIL cells back in the 1980s to deal with PIL by distinguishing the good cases from the bad ones before the process of admission.

In fact, rigidly specifying acts and issues as public interest matters would actually hamper the interest of the public, stifling the future growth of PIL. Public interest can be properly served only if there is a level of elasticity in the concept so that it can change its shape to meet the demands of time and social changes without rigor.

Chapter Five

LOCUS STANDI OF PIL PETITIONER:

BANGLADESHI DEVELOPMENT AND THE NEW PRINCIPLES

As to the power of the High Court Division to issue certain orders and directions in  the  nature  of writs,  Article  102  of the  Constitution of Bangladesh provides:

(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 Part III of this Constitution.

(2) 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 functions in connection with the affairs the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or

(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 of no legal effect; or

(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 an 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.

The first part, Article 102(1), relates to fundamental rights. The power < the Court is not discretionary since Article 44(1) declares that the right I move the Court to enforce fundamental rights is itself a fundamental right. So the situation is similar to Article 32 of the Indian Constitution.

The second part, Article 102(2), relates to cases involving non-fundamental rights. It uses the same language and defines the same five types of 'writs' as Article 98 of the Pakistan Constitution of 1962. Clause 2(a)(i) provides for remedies in the nature of prohibition and mandamus; clause 2(a)(ii) grants remedies in the nature of certiorari; clause 2(b)(i) relates to remedies in the nature of habeas corpus; and clause 2(b)(ii) deals with remedies in the nature of quo warranto.

For the purpose of our discussion on standing, however, we have two broad types. In the first category are cases under clause 1 and clause 2(a) where the applicant must be a 'person aggrieved'. In the second category are cases under clause 2(b) where any person can apply, whether or not aggrieved. Interestingly, in cases of habeas corpus and quo warranto, the applicant is required to show grievance in cases of fundamental rights but not in cases of non-fundamental rights. This apparent anomaly, however, does not give other types of rights more importance than fundamental rights. The Court has taken the prudent view of harmonious interpretation and as such no one is denied relief on this issue. Mahmudul Islam says:

It is very difficult to accept a contention that the condition for enforcement of the fundamental right relating to personal liberty is more onerous than the condition for issuance of an ordinary writ of habeas corpus. A reasonable and harmonious interpretation should be given and it should be taken that the requirement of 'aggrieved person' to apply for enforcement of fundamental rights is not applicable in respect of a petition involving detention of any person. In fact, the courts have not insisted on an application by an aggrieved person even though the petition for habeas corpus alleged violation of fundamental rights.

In spite of the close resemblance with the Indian and Pakistani constitutional provisions, the standing rules in Bangladesh have developed through a somewhat different route. The following discussion will examine how the Bangladesh Supreme Court, following the English, Indian and Pakistani Courts gradually came out of the restrictive locus standi where public interest is involved.

'PERSON AGGRIEVED' IN PRIVATE INTEREST LITIGATION

Under the Constitution of Bangladesh, the Court held from the very beginning that a petitioner under Article 102 must have some right and direct personal interest in the subject matter. Ruhul Islam J's explanation in the Dada Match Workers Union became an authority:

An application for an order of certiorari can only be made by an aggrieve party and not merely one of the public and in the case of mandamus it is an established principle that the applicant must show that there resides in himself a legal right to the performance of the legal duty by the party against whom the mandamus is sought.

In relation to cases where a group or an organization seeks to take action on behalf of its members or to protect their interests, it has been held by the Bangladeshi Court that a trade union, a society or an association is not a 'person aggrieved' for the purpose of Article 102 when it is representing its members. This means that although a trade union can represent its member in industrial disputes and an association in various other forums - a writ in a representative capacity on behalf of the members is not admissible.

However, the union or society will have standing when it is not representing the members and is aggrieved itself. In case of a company, it must apply itself with regard to its operations, not individual members or shareholders. The reason is that a company has a distinct and separate legal entity and stands on a different footing than a society. Although representative applications are denied, a constituted attorney can apply for a person aggrieved.

The above principles were actually developed and applied in cases of private interest litigation. These principles were followed strictly and no exception was allowed even where the problems related to public interest matters. This takes us to a number of relevant issues.

First, the courts from the very beginning stressed that there can not be any hard and fast definition of the term 'person aggrieved. Since the facts and circumstances of each case are different, one generalised rule would cause hardship.  Even in the Pakistan period, the Dhaka High Court expressed this opinion in the Abdus Salam's case. In the Bangladeshi period, as analysed later, the Berubari case established this principle with regard to the Bangladesh Constitution. More recently, Amir-ul Islam Chowdhury J. said:

There is no hard and fast meaning that could be ascribed to the term "aggrieved person". The meaning of the term "aggrieved person" is to be determined with reference to the facts and circumstances of each case.

However, this principle, that standing is a mixed question of fact and law, was not utilized in favor of public interest cases - locus standi was not liberalized merely on the ground that the facts and circumstances of a case relate to public interest.

Second, it is interesting to note that when the Bangladesh Supreme Court started functioning under the Constitution of 1972, there was no apparent reason to interpret the law of standing differently from the Pakistani courts. Nothing in the Constitution suggested a departure from the 'well-established' constitutional principles of locus standi that are applicable to the more or less identical provisions of the Constitutions of India and Pakistan. In fact, the formulation of Article 102 is more or less the same as Article 98 of the Pakistani Constitution of 1962. Thus in fact the court did not show undue conservativeness, it merely followed the traditions of English, Indian and Pakistani authorities.

AN EARLY DEVELOPMENT OF PUBLIC INTEREST STANDING: THE BERUBARI CASE

In Kazi Mukhlesur Rahman v. Bangladesh (Berubari case), when the applicant challenged an international treaty, he actually came to vindicate his own rights. His right to move freely throughout the territory and to reside and settle in any place therein as well as his right of franchise was threatened. But the judgment clearly re-interpreted a citizen's right vis-a-vis the power of the State. Sayem CJ said:

It appears to us that the question of locus standi does not involve the Court's jurisdiction to hear a person but of the competency of the person to claim a hearing, so that the question is one of discretion which the Court exercises upon due consideration of the facts and circumstances of each case.

He added:

. . . We heard him in view of the constitutional issue of grave importance raised in the instant case involving an international treaty affecting the territory of Bangladesh and his complaint as to an impending threat to his certain Fundamental Rights guaranteed by the Constitution, namely, to move freely throughout the territory of Bangladesh, to reside and settle in any place therein as well as his right of franchise. Evidently, these rights attached to a citizen are not local. They pervade and extend to every inch of the territory of Bangladesh stretching upto the continental shelf.

Thus we have several important propositions.

(1) The High Court Division does not suffer from any lack of jurisdiction under Article 102 to hear a person.

(2) The High Court Division will grant locus standi to a person who agitates a question affecting a constitutional issue of grave importance posing a threat to his fundamental rights which pervade and extend to the entire territory of Bangladesh.

(3) If a fundamental right is involved, the impugned matter need no affect a purely personal right of the applicant touching him alone It is enough if he shares that right in common with others.

(4) In interpreting the words "any person aggrieved", consideration of "fundamental rights" in Part III of the Constitution is a relevant one.

(5) It is the competency of the person to claim a hearing which is at the heart of the interpretation of the words "any person aggrieved".

(6) It is a question of exercise of discretion by the High Court Division as to whether it will treat that person as a person aggrieved or not.

(7) The High Court Division will exercise that jurisdiction upon due consideration of the facts and circumstances of each case.

Sayem CJ begins by pointing out that standing does not involve the Court's jurisdiction to hear a person.  In other words, standing and justifiability must not be confused. Then he proceeds to suggest that the Court has discretionary powers to determine standing which involves competency of the applicant to claim a hearing. As to this competency, there are two situations. Where it is merely a question of law, the old rules of certiorari, prohibition or mandamus will determine standing depending on the type of relief sought. But when it is a question of fact, the old rules can be abandoned since standing will depend on the gravity of the situation.

Although the Berubari emphasized the court's discretionary power to determine each case on the basis of its merits, it did not altogether reject the old rules or declare that the question of fact is the sole determining factor. So in effect, standing remains both a question of law and fact but in certain cases a broader approach could be taken, the Berubari identified the cases where the court is required to take such a broader approach. When a fundamental right of a citizen is infringed or threatened, it is enough if he shares the right in common with the public in general, he need not have a special grievance. Also, if a constitutional issue of grave importance affeccting one's fundamental rights is raised, he qualifies as aggrieved.

The Berubari remained an exception even though one or two attempts were made to use public interest standing arguments. In Mazharul Huq v. The Returning Officer and others, a voter was denied standing when he claimed deprivation of right of franchise and demanded re-election. The Court examined the relevant statute in a mechanical way although, as a result, a substantial portion of the electorate was prevented from voting for their party or candidate of choice. In a subsequent case, MG Bhuiyan v. Bangladesh, an advocate challenged the constitutionality of an Ordinance on the ground that every citizen can come to the court for declaration of nullity of any law. The Appellate Division refused to make an exception of the traditional rules and denied standing because it could not find his legal right or specific grievance.

The Berubari is often regarded as the first Bangladeshi PIL case and was relied upon by the PIL petitioners in almost all subsequent attempts to attain standing. But from a PIL perspective, the Berubari has its limitations. First, the Berubari case involves constitutional questions of grave importance - not all public interest matters. Second, it is involved with fundamental rights only and does not relate to non-fundamental rights. Third, it does not deal with cases where a public-spirited petitioner, not himself affected, seeks to move the Court to protect the fundamental rights of others. Fourth, since there can not be any specific definition of the term 'constitutional question of grave importance' - it remains problematic for the petitioners to get relief as long as the court is conservative.

Chapter Six

RELATION OF PIL WITH OTHER FORUM OF LITIGATION

PIL AND SAL (SOCIAL ACTION LITIGATION)

The subcontinental PIL is not a blind imitation of its American counterpart, according to Indian and Pakistani activities. Some of the differentiating factors are

1. PIL in India and the US emerged as representing distinctive phases of socio-legal development of each country and consequently the salient characteristics of its birth and growth under the two jurisdictions are not the same.
2. In the US, PIL is the result of a gradual development induced mainly by voluntary sector institutions, but in India it is to a great extend judge led and even judge induced.
3. PIL in the US depends largely on substantial resource investment from the government and privet foundations, this is significantly less so in India.
4. The focus in the US is on civic participation in governmental decision making, in India, it is on governmental law less ness- for the Indian activists, and distributive justice is more than participatory justice.
5. In the US, the spotlight is on public interest law, litigation being the most impotent aspect. In India, the focus is almost entirely on litigation. But in the area of litigation, Indian version is in substance much wider than the American one.

Assuming that the above differences are jurisdiction enough and with a desire not to confuse the Indian PIL with the American one, Baxi offered the term social action litigation to express the Indian phenomenon. Although the Indians need to learn from the American experience, he argued, the emerging perceptions of failure of the American PIL demands proper appreciation of the vital political culture differences. Otherwise, he feared, the attempts of transferring the success stories might not succeed. A number of activist including BHAGWATI J, a pioneer in the field, readily supported this proposal.

The fast critique came from Agrawala. He argued that this nomenclature makes no essentials difference in the basic content and philosophy of PIL. Refusing to believe that the Indian experience is qualitatively different, he says that to replace the widely use and understood nomenclature. A philosophy of SAL as some thing completely distinguishable from PIL has first to be developed.  Numbers of writer’s letter follow this reasoning. Even now, the term PIL is still in vogue- both in academic works and law reports, though a considerable number of activists still use the terms SAL.

It appears that the term SAL has failed to replace the term PIL totally, but has become a species within the genus. If the matter involves public interest, it is PIL. Whenever the litigation indicates social activism, an attempt to rectify social evils or pre-empt social progress, the litigation may be termed as SAL. In other words, PIL involves the collective rights of the entire public where no individuals is specially affected; SAL involves a determinate group or class of people who has sustained the primary injury. In practice, an activist chooses the term SAL or PIL depending on the extent of his social commitment. The more he is social justice minded, the more he tends to use the terms SAL.      

REPRESENTATIVE SUITS AND PIL

Representative suits are described in the Code of Civil Procedure in the following way:

Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such a suit, on behalf of or for the benefit of all persons so interested.

This is very similar to class action suits in the American jurisprudence.

        A representative suit, however, is not the same thing as a PIL for the simple reason that it is designed to deal with group interest to avoid a multitude of similar action and protection of social or public interest is not its primary purpose.

First, a representative suit is conducted within the perimeters of the traditional adversarial system. It is neither of inquisitorial nature, nor designed to assist social activists. PIL, on the other hand, involves a negation of the adversarial method and includes innovative techniques in the process of adjudication as well as in granting relief.

Second, the petitioner of a representative suit is aggrieved in the traditional sense of the term and some other persons share the same grievance with him. PIL cases often involve a petitioner who is not aggrieved personally, especially in the traditional sense.

Third, representative suits may be filed where there are numerous persons. This term carries its specific meaning. On the one hand, nauseous persons do not embrace the general public. So it excuses cases where the interest of the entire public is concern. On the other hand the word is not synonymous with number less or innumerable and the body the persons represented must be sufficiently definite. Still, there is no rule fixing any limit to the numbers and the actual number need not be capable of being ascertain. So the court must apply its discretion as to what is or is not numerous in a particular case.

It appears that there is a scope of filing PIL cases as representative suits where the segment of the society, whose number is sufficiently definite, is injured. But representative suits do not offer relief to the public as a whole and the innovative remedies provided under the writ jurisdiction are not applicable.

Chapter Seven

CONCLUSION

Initially the development of PIL 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.

Apparently, the process of democratization of the system and the development of PIL coincided in Bangladesh. The growth of PIL in the midst of this process has produced interesting result-each in turn influencing the other. Since the activists and lawyers were focused on the participation of the people in the decision making process, they often used the new technique of PIL for this end. During the last few years, there is hardly any constitutional question of significance that has not been raised before the court.

However, the Courts had to be very cautious. When confronted with issues that were mainly political in nature, the judges carefully separated the legal and constitutional aspects from the political ones. In some cases, as a result, the petitioners were unsuccessful. But in cases with genuine social justice matters, the Courts did not hesitate to pronounce in favor of the petitioner. This is why almost all the successful PIL cases involve matters relating to the poor and the disadvantaged.

Finally, it needs to be mentioned that PIL does not work in isolation. It is a part of the grater movement for legal Aid or a constituent of the greater theme of PIL. So in the hand of the social activist lawyer, PIL is one of many strategies which the concerned citizens and activists in Bangladesh are now using in combination. There is a realization that litigation is not a cure-all for all types of issues and problems. Retaining a close nexus with the press, the voluntary sector organization are increasingly using strategies including publication, lobbing and representation.

Student declaration

This is Seik Golam Maksud, ID: LLB040200248, Student of Northern University, Bangladesh declaring that this research paper on the stated topic has only been prepared for the partial fulfillment of the course Final Dissertation Course.

 ## Course Code: Law4400 ##

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