The role of the judiciary

The challenge of change: From a colonial society to an independent state 

Our current history begins from the emergence of independent states in societies which till then had been under colonial rule. Independence promised to usher in social change. Colonial societies were marked by feudal hierarchies, patron-client relationships, and disparities of wealth, class and caste. Equal opportunities for self realisation were a far cry as access to education and access to health for all was a distant goal. A classic work by an anthropologist on post-colonial Africa bears the title From Subject to Citizen. In a colonial society, a person was the subject of an imperial ruler, whose viceroys exercised executive authority without constitutional limits. They were thus under no constitutional obligation to respect the fundamental rights of their subjects, nor in these societies could the subjects seek judicial protection of their rights. Upon independence, subjects emerged as citizens, whose fundamental rights were recognised. In the realisation of these rights, the judiciary was to make a significant contribution.

A Constitution has been described by the architect of the South African Constitution as "the autobiography of a nation". It reflects its history and many of its provisions can best be understood as responses to the historical experience of the nation and as providing guide-posts to a future which is free from the negative features of the past. A Constitution is thus both a document that a generation drafts in the light of its experience and the prevailing currents of thought and which seeks to anticipate the future and to provide a framework for orderly change. Constitutions which mark freedom from colonial or authoritarian rule must necessarily promise change to correct the disparities and inequalities inherited from the old order. The fundamental rights clauses and the directive or fundamental principles of state policy provide a reservoir of legal resources which can be drawn upon to bring about such change. They provide the mandate for innovative laws, innovative institutions and remedies and for affirmative action designed to give substance to the constitutional pledges of freedom, equality and justice. 

Expanding frontiers of judicial review

The incorporation of a Bill of Rights in our Constitution and conferment on the judiciary the power of judicial review and the power to enforce fundamental rights has enabled the judiciary to play a profoundly catalytic role. By expanding the frontiers of judicial review, and by being creatively proactive, the judiciary has drawn upon the resources in our constitution to promote social change.

The judiciary has been promoting social change through rights-friendly interpretations of the Constitution aimed at implementation of economic and social rights. The increasingly positive attitude of the judiciary towards public interest litigation, overcoming earlier inhibitions which had constrained the role of the judiciary, has enabled the judiciary to play a dynamic role in facilitating and promoting social change.

Judicial review has continued to expand in South Asia on the premise that while every organ functioning under the Constitution has limits it is for the court to determine those limits. This has accounted for the expansion of the scope of judicial review. The challenge of implementation of economic and social rights has seen innovative approaches being applied, including the development of public interest litigation. New challenges are presented by the issues, among others, of gender justice, bonded labour, forcible eviction of slum dwellers, and different forms of environmental degradation which have had to be dealt with by the judiciary. 

In Bangladesh following a landmark judgment delivered by the Supreme Court of Bangladesh in 1999 which held that an Association of Environmental Lawyers had standing to present a writ petition in the public interest, public interest litigation has grown significantly. The petition had successfully challenged the legal validity of a flood action plan prepared without any participation of concerned and affected persons which threatened adversely to affect the lives and livelihood of substantial sections of people and to have adverse environmental and ecological effects. The Supreme Court has entertained public interest petitions relating to a wide range of issues including industrial safety (fires and unsafe factory buildings of garment factories), environment (the gas explosion in a gas field), corruption (illegal granting of public land without following proper procedures), inhuman custodial practices (imposition of bar fetters in judicial custody, confinement of rape victims (in handcuffs) and other women in "safe" custody) and forcible eviction of slum dwellers.

Judiciary as enforcer of Constitution

The responsibility for effective execution of constitutional and legislative mandates expressed through statutes rests clearly upon the executive. If the executive defaults on its legal and constitutional obligations however, courts and judges cannot take a view that violations of rights involved in such defaults are no concern of theirs. If the duly authorised constitutional officers fail to discharge their constitutional and legal obligations, an activist of judiciary is justified in issuing directions to them to discharge their duties expeditiously. If there are large numbers of under-trial prisoners, not brought to trial for a long time, a judge might feel more than justified in ordering expeditious trials for their release. If conditions in jails are inhuman and debasing, a judge may order corrective action. If slum dwellers are threatened with forcible eviction, they can seek and obtain protection from the Judiciary.

The Constitution is a living document which reflects the aspirations of the people and aims at promoting progress, peace, welfare, and amity among the citizens; it is the basic structure on which the entire edifice is built. An independent judiciary thus has a critical role to play as guardian of the Constitution and as a catalyst for social change.

The writer is Senior Advocate, Supreme Court of Bangladesh, an eminent jurist and one of the architects of the Constitution of Bangladesh.