The Constitution’s guardian: Textual and factual role of our apex court

The constitution is the supreme law of a country and in Bangladesh this is expressly declared in Article 7.  The constitution on the one hand acts as a safeguard of rights and on the other hand may be relied on as a tool of democratic backsliding through improper interpretation of constitutional mandates. In this backdrop, the judiciary comes into play taking the role of a guardian. Bangladesh's apex court has propounded wide-ranging jurisprudence on different matters by utilising the dynamic nature of our constitution. Judicial precedents are constitutionally mandatory to be followed. And as such, whenever there seemed to be a dead end, our apex court came to the rescue. Be it the liberalisation of the right to bring action (locus standi), women empowerment or child protection or enforcement against government agencies, our apex court has never hesitated to travel in diverse course in order to remedy the concern.

One such remedy is public law compensation, widely known as "constitutional tort". Within the ambit of public law compensation, an aggrieved person can get monetary damages for curtailment of his/her fundamental rights by any public functionary. The most fascinating part of this concept is, here the compensation option would work irrespective of other remedial options including normal tort proceeding. Therefore, whenever there is any encroachment upon fundamental rights of a person by some public authority, the court can intervene and award compensation as remedy. Previously this approach was thought to be outside the constitutional scope but the judiciary clarified the scope towards forging new tools and devising new remedies.

In Bangladesh, various landmark decisions contributed in ushering the pathway for this jurisprudence. Comparative constitutional practice contributed largely in assessing its conceptual viability in our country's context and its subsequent adoption. Initially, the court developed the perspective that constitutional remedies are not bound to follow any water-tight compartmentalisation and the High Court Division (HCD) can fashion the relief according to the circumstances of the particular case. [Bangladesh vs. Ahmed Nazir 27 DLR (AD) 41]. Then it was the 1997 Bilkis Akhter Hossain vs Bangladesh decision [17 BLD 395] that successfully awarded compensation for wrongful detention prejudicing constitutional fundamental rights under articles 32, 36 and 37. Therefore, the jurisprudential standing gradually got a strong ground to stay. But in the appeal decision in Bilkis Akhtar case namely, Bangladesh vs. Nurul Amin [67 DLR (AD) 352], the Appellate Division (AD) reversed the granting of compensation on the ground that it was not the actual claim of parties in that writ petition. Nonetheless, the AD too, has confirmed the awarding of compensation for cases that adequately meets requirements.

Similarly, in BLAST vs Bangladesh [55 DLR 363] compensation was not practically granted but court held it to be a fit one attracting compensation for "colorable exercise" of power by public functionary. The court mentioned compensatory relief under public law jurisdiction to be apt for breach of "public duty" or "fundamental rights". In Bilkis Akhtar, the same was named as "constitutional jurisdiction". The year 2018 saw a tremendous success of public law compensation in the case of Children's Charity Bangladesh Foundation (CCB Foundation) vs. Bangladesh and Ors. [70 DLR (2018) 491] where within the ambit of Article 102, HCD allowed monetary compensation of taka 30 lacs to the parents of deceased child Zihad. Court applied the "incalculable lump sum" rule considering the grave nature of fundamental rights violation. And even most recently court applied the same jurisprudence in Writ Petition No. 7297 of 2019 by granting a monetary compensation of 20 lacs for 5 years' wrongful confinement of a person. The court observed that it may not return the golden time of life he lost in jail but the compensation could be a palliative for the unlawful act resulting from collective failure of the authorities concerned.

It is pertinent to mention here that, the public law compensation jurisprudence in our country owes its root to some foreign jurisdictions. Particularly, some Indian cases played the role of "guiding horizon" in transplanting the conceptual framework of public law compensation in our country. The beauty of the constitution that it is neither static nor devoid of any solution. The constitution has retained the scope of shaping and reshaping it via interpretation, borrowing and amendments. And to ensure that those interpretations or borrowings are not abusive ones, our apex court remains as the vigilant guardian leading towards high pinnacle of "constitutionalism".  

The writer is a Contributor, Law Desk.