Judicial activism for constitutional torts

On 5 August 2018, the Appellate Division upheld a High Court verdict that ordered Bangladesh Railway and Bangladesh Fire Service and Civil Defence to pay Tk 10 lakh each as compensation to the parents of Zihad, a four-year boy who died after falling into a shaft.

The case arose as a public interest litigation (PIL) filed by Barrister Abdul Halim on behalf of Children's Charity Bangladesh (CCB) Foundation before the High Court Division under Article 102 of the Constitution seeking directions pertaining to the concerned authorities and claiming compensation of Tk. 30 lakh for their gross negligence, payable to Zihad's parents. Bangladesh Legal Aid and Services Trust (BLAST) was later added as an intervenor in April 2015. On 7 October 2017, released the full verdict asking the writ respondents to pay Tk 20 lakh as compensation to his parents and it is this judgment which sets the scene for constitutional torts.

On 26 December 2014, Zihad fell into a 16 inch wide shaft adjacent to the Shahjahanpur Railway Colony playground, which was left uncovered by the respondents and ran several hundred feet deep. His body was recovered the following dayby a group of volunteers who used a hand-made device, moments after the respondents abandoned their rescue operation by stating there was 'no sign of the boy inside the well'.

The Court inferred negligence of the fire service and railway employees by using the tortious principle of res ipsa loquitur (the thing speaks for itself), which establishes that the mere occurrence of some types of accidents is sufficient to imply negligence and therefore found that the falling of Zihad inside the said uncovered shaft is itself a prima facie evidence of negligence as it 'should have remained covered'. It then used the doctrine of vicarious liability (a type of a strict, non-fault based liability) to hold the concerned public authorities liable for their employees' negligence.

This case is immensely significant not only given the dearth of jurisprudence pertaining to a victim's right to compensation for personal harm, but also because it sets a landmark precedent for holding public authority bodies liable for their employees' negligence (be it a negligent act or negligent omission) by way of constitutional torts and strict liability. Indeed it is the first time in the history of Bangladesh judiciary dubbed the negligence of public authority bodies as a 'constitutional tort', thereby categorically granting recognition to a constitutional remedy which has been long overdue and in fact incrementally alluded to in previous cases. Constitutional torts are distinct from common law torts in that they are usually filed in response to a violation of one's constitutional rights by a government servant or public authority body, by invoking not precedents set in common law, but the relevant articles of the Constitution, which in the context of Bangladesh is Article 102.

The Court made some crucial observations about the nature of compensation under Article 102. Firstly, it stated that while Article 300 of the Indian Constitution grants the State the defence of sovereign immunity, there is no such provision in our Constitution and thus 'there can be no bar to award compensation to the bereaved family members..due to the sheer negligence of the respondents concerned leading to violation of his fundamental right to life, guaranteed under Article 32 of the Constitution'.

Secondly, the Court stated that this order of awarding compensation 'will not impede/ affect other liabilities of the respondents concerned or its officials resulting from the death of the said victim'. Does this mean that an award of compensation in public law by way of constitutional tort would not preclude the victim from seeking compensation in private law by way of common law or statutory torts (e.g. Zihad's parent's claiming under Fatal Accidents Act 1855)? Dr. Naim Ahmed argues in the affirmative and states in his book that the right to claim compensation through a civil suit 'remains unaffected' (Naim Ahmed, Public Interest Litigation: Constitutional Issues and Remedies, Dhaka: BLAST, 1999).

While it is indeed commendable that the High Court embraced judicial activism to institutionalise constitutional tort in Bangladesh, it remains to be seen whether this crucial legal precedent will be adequately utilised in the future to secure compensation from the State for the long unheard victims of public authority negligence.

The writer is Research Specialist, Bangladesh Legal Aid and Services Trust (BLAST).