Compensation as a remedy under constitutional tort law in Bangladesh

Article 102(1) of the Constitution enables the High Court Division (HCD) to give directions or orders as may be 'appropriate' for the enforcement of any fundamental rights. Thus, the Article permits the petitioner and the HCD to choose any suitable remedy, including compensation, for the enforcement of fundamental rights, as it does not specify the sort of redress.

Mahmudul Islam, a prominent constitutional thinker of Bangladesh, explains that the HCD has significant authority to determine what constitutes an 'appropriate' remedy under Article 102(1), but the enforcement of the basic rights is not subject to discretion. Hence, the inherent nature of the right to seek redress for abuses of fundamental rights impose a similar duty on the court to create innovative and efficient legal remedies for such violations.

According to articles 44(1) and 102(1), in the case of a violation of the rights enshrined in Part III of the Constitution, the party affected by such infringement has the option to approach the Supreme Court and submit a writ petition, as demonstrated in the case of Kazi Mukhlesur Rahman v Bangladesh. The same constitutional provisions apply when the petitioner claims remedies under tort.

In the case of CCB Foundation v Government of Bangladesh, the court applied the doctrine of negligence and res ipsa loquitur to award monetary compensation of taka 20 lacs against Bangladesh Railway Board and Bangladesh Fire Service and Civil Defence for gross negligence that resulted in the death of a 4-year-old child. This case established a significant precedent for public authorities to be held liable for the negligence of their employees or servants. The Court stated that, in contrast to the Indian Constitution, there is no provision for sovereign immunity, permitting courts to award monetary compensation to aggrieved families for violations of the right to life protected by Article 32 of the Constitution. The court further held that the award of monetary compensation under public law will not preclude the harmed party or victim from seeking compensation under private law, and respondents' liabilities under private law will remain.

Compensation was also acknowledged as a legal remedy under Article 102(1) in the case of Bangladesh v Ahmed Nazir. In this case, the Appellate Division (AD) determined that the Court possesses the authority to exercise its discretion in granting the remedy, which is contingent upon examination of the facts and circumstances. The responsibility for determining suitable remedies under Article 102 lies with the HCD, whether they are monetary or otherwise.

However, the question of monetary relief under Article 102(1) was first raised in the case of Azharuddin Ahmed v Bangladesh, where the petitioner was forced into early retirement in violation of the due procedure.  The HCD found the act to be illegal and awarded 10 thousand Taka as compensation. On the question of who is to pay the compensation to the victim, the Court held that the public body, whose officials acted unlawfully, were 'generally' liable according to the Rules of the HCD of East Pakistan (1960). But such rules being sufficiently vague, the answer was left to the Court's discretion. Subsequently, in the case of Habibullah Khan v Shah Azharuddin Ahmed, the AD affirmed the decision of the High Court while adding that such discretion 'must be applied judiciously' in accordance with the rule of law.

In Bangladesh, constitutional torts are implemented by both Article 44 and Article 102(1) of the Constitution. When the statutory authority is liable for the violation of the constitutional rights guaranteed in Part III of the Constitution, a writ claiming compensation can be filed at the High Court Division holding the state responsible. Therefore, it becomes abundantly clear that only the violation of the constitutional rights guaranteed in Part III of the Constitution attracts constitutional torts.

The writer is student of law at East West University, Dhaka.