Procedural waiver in writ jurisdiction: Should Tayeeb case be followed as general standard?

Enforcement of fundamental rights is itself a fundamental right within the constitutional scheme of Bangladesh, the basis of which is found in Articles 44 and 102(1) of the Constitution. The words used in Article 44 need no further explanation as the words are devoid of ambiguity and posit the rights to be 'guaranteed'. However, the articulation of words in Article 102(1) possesses linguistic uniqueness which is certainly capable of inviting a wide range of interpretation. A textual reading reveals 'an application' must be submitted to set the case in motion, therefore making it a pre-requisite to the judicial enforcement of fundamental rights.

The essence of submitting an application is to draw the Court's attention to a particular case of violation along with other aspects of maintaining a case, such as certainty of contesting parties, aggrieved person's locus standi, etc. Apparently, the liberalisation of 'locus standi' in the famous case Mohiuddin Farooque v Bangladesh (Writ Petition No. 998 of 1994) could not remove the procedural hurdle in toto in writ jurisdiction of the High Court Division. Traditional legal scholarship would interpret the requirement of submitting 'an application' from an aggrieved person as an absolute procedural requirement. This was the prevailing attitude until the premise met with challenge in Mohammad Tayeeb v Bangladesh (Civil Appeal No. 593-594 of 2001). In this case, fatwa given by the local community forced the victim to go through another marriage against her will before she could return to her actual husband after an alleged divorce from the latter. The High Court Division initiated a suo moto case considering the newspaper report as 'an application' after reading it in the same. Later, it was challenged in the Appellate Division which expounded the case in favour of victim. The Court had to deal with, among others, the question of procedural requirement of submitting an application. It interpreted the requirement in the light of 'knowledge' of the judge which was the ultimate purpose of 'application' moving away from the conventional understanding of an 'application' to be a well-written document disclosing the grievances and accounts of violation of rights. So, in case of grave violation of human rights where the victim cannot pursue the court to set forth the case by reason of any procedural hurdle, including, but not limited to, submitting an application, the judge can exercise suo moto jurisdiction if it comes to his knowledge. This premise is also known as epistolary jurisdiction of the Court that connotes the relaxation of procedural rules to meet the justice.

Epistolary jurisdiction was introduced in India as part of judicial activism in Sunil Batra v Delhi Administration (AIR 149 SC 1982) where the Supreme Court, upon receiving a letter from a prisoner stating the Jail Authority's inhumane treatment to the prisoners, took cognizance of the said letter and treated it as a petition. The Tayeeb case seems to be a reiteration of Indian precedent in Bangladesh, though the text of the judgment does not mention the same. One might find it an extreme instance of judicial activism that wins justice for the downtrodden. Dispensing justice for the people not capable to access justice due to their social or economic misfortune by exercising the Court's epistolary jurisdiction is indeed applaudable. But this epistemic or knowledge based 'discretionary' power is coupled with dilemmas, such as when any such event which satisfies a judge to intervene into the matter by initiating a case, it places him in a representative capacity. Furthermore, when the same judge renders rulings or deals with the same that he himself initiated, it then makes him the judge of his own interest. It is important to note that Tayeeb case did not establish a general standard of maintainability of a writ petition, rather merely provided waiver of application requirement in exceptional cases. Drawing reference to this case in every matter at hand despite the merit of the case would thus be a wrong application of epistolary jurisdiction bypassing the actual text of the Constitution. However, the Supreme Court of Bangladesh is showing great interest in suo moto rulings in recent days by introducing procedural amendment to facilitate suo moto rulings based on news report, letters, etc.

In a society where violation of human rights is prevalent, where social structure systematically bars the poor from accessing justice, where transparency and good governance is subjected to political consideration, an inevitable outcome would be victims becoming unable to reach the Court with their grievances. In such cases, Court cannot sit idle. In a grave case of violation or a case involving environmental matter which requires immediate attention, epistolary jurisdiction should be exercised as a timely weapon to address the cause and in such a case it should be seen not as a Court's being overenthusiastic but being active in fulfilling its constitutional obligation.

THE WRITER IS A GRADUATE STUDENT OF LAW, BANGLADESH UNIVERSITY OF PROFESSIONALS.