A recent instance of judicial activism

Judicial activism is a complex concept that can be both beneficial and risky. A few instances of judicial activism being truly beneficial are in order. In Human Rights and Peace for Bangladesh v Bangladesh and others (Turag River case), it was held by our High Court Division (HCD) that Turag River and all rivers in or flowing in Bangladesh will be considered legal entity. Similarly, in another instance, the HCD held pharmaceutical companies accountable by issuing a writ of mandamus to ensure service standards and reform medical care.

However, at times, the objectives of the Court may become challenging to decipher. An example is the case of Islam Prodhan v Bangladesh, 75 DLR (2023) 1, which addressed 'delayed' appeals filed under the labour law. The HCD remarked, "[t]he law and the Rules [..] give a clear picture that an appeal filed before the Labour Appellate Tribunal under section 217 has to be read with 219 (gha) which clearly prescribed that appeal if be filed out of time the reasons for delay must be stated with a prayer for condonation of the delay [..]."

Admittedly, the decision has been taken with a noble intention of allowing delayed appeals of workers (submitted with a prayer for condonation of delay) before the Labour Appellate Tribunal. In a densely populated country such as ours, where access to justice is a significant concern for the rule of law, the decision apparently sets a refreshing example of judicial activism.

But concerns arise when the clear language of the law conflicts with the Court's interpretation. Section 217 of the Labour Act 2006 (BLA) clearly mentions that appeals must be filed within 60 days and no scope for condonation of delay is mentioned in the provision. In contrast, the Court, by interpreting several provisions of the Act and the 2015 rules, observed that condonation of delay beyond the time-limit mentioned in section 217 is in fact allowed. However, the authors submit that while it might be tempting to interpret the law differently, the judiciary ought to restrain itself in doing so.

Notably, the judgment indicates that section 5 of the Limitation Act 1908 applies to appeals under section 217. However, the Labour Act refers to the Limitation Act only in sections 135 and 172. As such, it is submitted that section 219 (gha) deals with condonation of delay only for appeals under sections 135 and 172 of the BLA, and not section 217. 

Although Islam Prodhan is a relatively new judgment, it has been relied upon by a judgment passed on 28 February 2024 too, in Writ Petition No. 1895 of 2023.  Hence, discussion on this matter is important as it is crucial to settle if Islam Prodhan offers the correct interpretation of the law.

In this connection, the case of Jumma Masjid v Kodimaniandra may be considered, where the Court refused to read an exception into the Transfer of Property Act 1882. The judgement referred to Lord Loreburn's opinion from Vickers v Evans (1910), where he said, "we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself." Even domestic cases like that of Md. Ismail v the State 21 DLR (SC) 161, Amin Jute Mills v Bangladesh 29 DLR (SC) 85, S.N. Kabir v Fatema Begum and Ors. 15 BLC 585, and many others comply with the said rule.

Keeping that in mind, it is submitted that the judgments are presumably always expected to comply with the existing provisions of the laws as they are. Addressing gaps should only be considered by the legislature and amended accordingly, if at all needed.

The writers are Partner and Research Associate of Tanjib Alam and Associates, respectively.