Dr. Mohiuddin Farooque
Bangladesh and others
Civil Appeal No. 24 of 1995
17 BLD (AD) 1997, Vol. XVII, Page-1 to 33; 1 BLC (AD) (1996) Page- 189 to 219 (1996)
A.T.M. AFZAL, CJ.-
The liberalized view as expounded by my brother is an update, if I may say so, of the liberalization agenda which was undertaken in the case of Kazi Mukhlesur Rahman, 26 DLR (SC) 44. It is a matter of some pride that quite early in out Constitutional Journey the question of locus standi was given a liberal contour in that decision by this Court at a time when the Blackburn cases were just being decided in England which established the principle of "sufficient interest" for a standing and the doctrine of public interest litigation or class action was yet to take roots in the Indian Jurisdiction. The springboard for the liberalization move was the momentous statement made in that case: "It appears to us that case was found to be a person aggrieved not because he brought any personal grievance before the Court but because, to quote from the judgment itself, "we heard him in view of the constitutional issue of grave importance raised in the instant case involving an international treaty affecting the territory of Bangladesh and his complaint as to an impending threat to his certain fundamental rights guaranteed by the constitution, namely, to move freely throughout the territory of Bangladesh, to reside and settle in any place therein as well as his right of franchise. Evidently, these rights attached to a citizen are not local. They pervade and extend to every inch of the territory of Bangladesh stretching up to the continental shelf."
Two principles were established in that case, -(1) that when there is a threat to a fundamental right of the citizens any one of them can invoke the jurisdiction under article 102 of the Constitution, that any citizen from any part of the country may become a petitioner and (2) that if a constitutional issue of grave importance is raised (in that case it was an international treaty affecting territory of Bangladesh) a petitioner qualifies himself to be a person aggrieved.
The liberal interpretation given to the expression "any person aggrieved" in the judgments of my learned brothers, in my opinion, approximates the test of or if the same is capsulized, amounts to, what is broadly called, "sufficient interest". Any person other than an officious intervenor or a wayfarer without any interest or concern beyond what belongs to any of the 120 million people of the country or a person with an oblique motive, having sufficient interest in the matter in dispute is qualified to be a person aggrieved and can maintain an action for judicial redress of public injury arising from breach of public duty or for violation of some provision of the Constitution or the law and seek enforcement of such Public duty and observance of such constitutional or legal provision. Now what is `sufficient interest` will essentially depend on the co-relation between the matter brought before the Court and the person who is bringing it. It is not possible to lay down any strait-jacket formula for determining sufficient interest which may be applicable in all cases. Of necessity the question has to be decided in the facts of each case as already pointed out in the case of Kazi Mukhlesur Rahman. This topic has been eloquently summed up by the Indian Supreme Court in the case of S.P. Gupta and others, AIR 1982 SC 149 and I fully subscribe to that statement. It reads:
"What is sufficient interest to give standing to a member of the public would have to be determined by the Court in each individual case. It is not possible for the court to lay down any hard and fast rule or any strait-jacket formula for the purpose of defining or delimiting `sufficient interest`. It has necessarily to be left to the discretion of the Court. The reason is that in a modern complex society which is seeking to bring about transformation of its social and economic structure and trying to reach social justice to the vulnerable section of the people by creating new social, collective `diffuse` rights and interests imposing new public duties on the State and other public authorities infinite number of situations are bound to arise which cannot be imprisoned in a rigid mould or a Procrustean formula. The Judge who has the correct social perspective and who is on the same wavelength as the Constitution will be able to decide, without any difficulty and in consonance with the constitutional objectives, whether a member of the public moving the Court in a particular case has sufficient interest to initiate the action."
A person pleading sufficient interest may be able to cross, what is called, the threshold stage on the averments made in the writ petition but it will always remain open for a prospective respondent to contest the said claim on facts and also to assail the bonafides or even the appropriateness in a particular case of the petitioner for seeking a relief invoking the constitutional jurisdiction of the High Court Division under article 102 of the Constitution. ... but the consideration would have been different if any organization representing a weaker section of the society has come to complain about a breach of any fundamental right of its members or any public wrong done to the members generally in breach of any provision of the constitution or law. The Court will have to decide in each case, particularly when objection is taken, not only the extent of sufficiency of interest but also the fitness of the person for invoking the discretionary jurisdiction under article 102 of the Constitution. Ordinarily, it is the affected party which is to come to the Court for remedy. The Court in considering the question of standing in a particular case, if the affected party is not before it, will enquire as to why the affected party is not coming before it and if it finds no satisfactory reason for non-appearance of the affected party, if may refuse to entertain the application.
As regards the locus standi of the appellant in the present case, I agree with my learned brothers that the High Court Division wrongly decided the issue upon wrongly relying on the Sangbad Patra Parishad case which has got no application to the facts of the present case. Facts of the appellant`s case have been elaborately noticed in the judgment of Mustafa Kamal, J. and I may state briefly that the appellant is the Secretary General of the Bangladesh Environmental Lawyers Association (BELA) and the said organisation is working in the field of environment and ecology. In the writ petition the activities of FAP, FAP-20 and the FPCO have been impugned on the ground, inter alia, that the said activities would adversely affect more than a million human lives and natural resources and the natural habitat of man and other flora and fauna and that they aroused wide attention for being allegedly anti- environment and anti-people project. The appellant stated in the writ petition that as an environmentally concerned and active organisation, BELA conducted investigations at various times in 1992-93 in the FAP-20 areas. The appellant alleged that no proper environmental impact assessment has been undertaken in relation to FAP projects even though the European parliament declared in its resolution of 24 June 1993 that there was urgent need of changing the FAP`s classification within the World the World Bank project scheme from category `B` to category `A` requiring full environmental assessment for projects which appear to have significant adverse effect on the environment.
A group of environmental lawyers possessed of pertinent, bonafide and well-recognized attributes and purposes in the area of environment and having a provable, sincere, dedicated and established status is asking for a judicial review of certain activities under a flood action plan undertaken with foreign assistance on the ground, inter alia, of alleged environmental degradation and ecological imbalance and violation of several laws in certain areas of the district of Tangail. The question is: does it have sufficient interest in the matter for a standing under article 102?
It is very interesting that Justice Douglas of the U.S. Supreme Court in his minority opinion went so far as to say in Sierra Club vs. Morton, 401 U.S. 907 (1971) (No.70-34) that contemporary public concern for protecting nature`s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. The learned Judge further said: Ecology reflects the land ethic; and Aldo Leopold wrote in A Sand County Almanac 204 (1949), "The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively, the land." That as I see it, is the issue of "standing" in the present case and controversy.
The Rio Declaration on Environment and Development containing 27 principles include, among other, it may be noted for the present purpose:
Principle 3: The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.
Principle 10: Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceeding, including redress and remedy, shall be provided.
Principle 10 above seems to be the theoretical foundation for all that have been vindicated in the writ petition and also provides a ground for standing. In this context of engaging cocern for the conservation of environment, irrespective of the locality where it is threatened, I am of the view that a national organization like the appellant, which claims to have studied and made research on the disputed project, can and should be attributed a threshold standing as having sufficient interest in the matter, and thereby regarded as a person aggrieved to maintain the writ petition subject to the objection or objections as may be raised by the respondents if a Rule is issued ultimately.
MUSTAFA KAMAL, J.: In Bangladesh an unnoticed but quiet revolution took place on the question of locus standi after the introduction of the Constitution of the People`s Republic of Bangladesh in 1972 in the case of Kazi Mukhlesur Rahman vs. Bangladesh, 26 DLR(SC) 44, decided on September 3, 1974 and hereinafter referred to as Kazi Mukhlesur Rahman`s Case. The appellant challenged the Delhi Treaty signed on the 16th May, 1974 by the Prime Ministers of the Government of Bangladesh and the Republic of India providing therein inter alia that India will retain the southern half of south Berubari Union No. 12 and the adjacent enclaves and in exchange Bangladesh will retain the Dahagram and Angarpota enclaves. The ground of challenge was that the agreement involved cession of Bangladesh territory and was entered into without lawful authority by the executive head of government. The High Court Division summarily dismissed the writ petition holding that the appellant had no locus standi. At the hearing of the certificated appeal before the Appellate Division it was urged by the appellant that since the remedies available under Article 102(2) of our Constitution are discretionary, the words "any person aggrieved" should be construed liberally and given a wide meaning, although in the facts and circumstances of a particular case the Court may regard the personal interest pleased by a petitioner as being slight or too remote. Reliance was placed by the appellant upon the case of Main Fazal Din vs. The Lahore Improvement Trust, 21DLR(SC)225 in which Hamoodur Rahman, C.J. had occasion to say that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he has a personal interest in the matter which involves loss of some personal benefit or advantage or the curtailment of a privilege or liberty of franchise. Upon considering several American and Indian decisions of the time and a lone Australian decision, the Appellate Division held as follows:
"It appears to us that the question of locus standi does not involve the Court`s jurisdiction to hear a person but of the competency of the person to claim a hearing, so that the question is one of discretion which the Court exercises upon due consideration of the facts and circumstances of each case."
Locus standi was granted to the appellant even though he was not a resident of the southern half of South Berubari Union No.12 or adjacent enclaves involved in the Delhi Treaty because he had raised a constitutional issue of grave importance involving an international treaty affecting the territory of Bangladesh and posing an impending threat to his fundamental rights under Article 36 of the Constitution and his right of franchise. These rights, attached to a citizen, are not local. They pervade and extend to every inch of the territory of Bangladesh stretching up to the continental shelf.
This Court, therefore, settled seven general principles in Kazi Mukhlesur Rahman`s case, viz.-
(1) the High Court Division does not suffer from any lack of jurisdiction under Article 102 to hear a person.
(2) The High Court Division will grant locus standi to a person who agitates a question affecting a constitutional issue of grave importance, posing a threat to his fundamental rights which pervade and extend to the entire territory of Bangladesh.
(3) If a fundamental right is involved, the impugned matter need not affect a purely personal right of the applicant touching him alone. It is enough if he shares that right in common with others.
(4) In interpreting the words "any person aggrieved", consideration of "Fundamental Rights" in Part III of the Constitution is a relevant one.
(5) It is the competency of the person to claim a hearing which is at the heart of the interpretation of the words "any person aggrieved".
(6) It is a question of exercise of discretion by the High Court Division as the whether it will treat that person as a person aggrieved or no Court Division will exercise that jurisdiction upon due consideration of the facts and circumstances of each case.
8 years thereafter we find an echo of some of the above principles in the Indian Supreme Court case of S.P. Gupta and others vs. President of India, AIR1982(SC)149, at paragraph 19A:
"What is sufficient interest to give standing to a member of the public would have to be determined by the Court in each individual case. It is not possimined[??][??] by the Court to lay down any hard fast rule or any strait-jacket formula for the purpose of defining or delimiting `sufficient interest`. It has necessarily to be left to the discretion of the Court. The reason is that in a modern complex society which is seeking to bring about transformation of its social and economic structure and trying to reach social justice to the vulnerable section of the people by creating new social, collective `diffuse` rights and interests imposing new public duties on the State and other public authorities infinite number of situations are bound to arise which cannot be imprisoned in a rigid mould or a Procrustean formula. The Judge who has the correct social perspective and who is on the same wave-length as the Constitution will be able to decide, without any difficulty and in consonance with the constitutional objectives, whether a member of the public moving the Court in a particular case has sufficient interest to initiate the action."
Coming now to our situation, the Sangbadpatra Parishad Case was no authority for the proposition that an environmental lawyers` association is not a person aggrieved when it espouses the causes of a large number of people on an environmental issue. The High Court division`s reliance on this decision was misplaced, to say the least, because the ratio decidendi of the said case was that an association of newspaper owners and news organisations, espousing not the causes of the downtrodden and the poor who have no access to justice, but the cause of its members who are opulent enough to seek redress on their own, cannot in a representative capacity be a person aggrieved, when the association`s own interest are not in issue. That case was not an authority even for the proposition that an association can never be a person aggrieved if it espouses the causes of its members in a representative capacity. The Sangbadpatra Parishad case was decided on the facts of that case and that is how should be read.
We now proceed to say how we interpret Article 102 as a whole. We do not give much importance to the dictionary meaning on punctuation of the words "any person aggrieved". Article 102 of our Constitution is not an isolated island standing above or beyond the sea-level of the other provisions of the Constitution. It is a part of the over- all scheme. Objectives and purposes of the Constitution. And its interpretation is inextricably linked with the (i) emergence of Bangladesh and framing of its Constitution. (ii) the Preamble and Article 7, (iii) Fundamental Principles of State Policy, (iv) Fundamental Rights and (v) the other provisions of the Constitution.
As to (i) above, it is wrong to view our Constitution as just a replica with local adaptations of a Constitution of the Westminister model among the Commonwealth countries of Anglo-Saxon legal tradition. This Constitution of ours is not the outcome of a negotiated settlement with a former colonial power. It was not drawn upon the consent, concurrence or approval of any external sovereign power. Nor is it the last of an oft-replaced and oft substituted Constitution after several Constitutions were tried and failed, although as many as 13 amendments have so far been made to it. It is the fruit of a historic war of independence, achieved with the lives and sacrifice of a telling number of people for a common cause making it a class part from other Constitutions of comparable description. It is a Constitution in which the people features as the dominant actor. It was the people of Bangladesh who in exercise of their own self-proclaimed e a clean break from the past unshackling the bondage of a past statehood and adopted a Constitution of its own choosing. The Constitution, historically and in real terms, is a manifestation of what is called "the People`s Power". The people of Bangladesh, therefore, are central, as opposed to ornamental, to the framing of the Constitution.
As for (ii) the Preamble and Article 7, the Preamble of our Constitution stands on a different Footing from that of other Constitutions by the very fact of the essence of its birth which is different from others. It is in our Constitution a real and positive declaration of pledges, adopted, enacted and given to themselves by the people not by way of a presentation from skillful draftsmen, but as reflecting the ethos of their historic war of independence. Among other pledges the high ideals of absolute trust and Faith in the Almighty Allah, a pledge to secure for all citizens a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social and the affirmation of the sacred duty to safeguard, protect and defend the Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh are salutary in indicating the course or path that the people wish to tread in the days to come. Article 7 of the Constitution bestows the powers of the Republic with the people and the exercise of the people`s power on behalf of the people shall be effected only under and by the authority of, the Constitution. Article 7 does not contain empty phrases. It means that all the legislative, executive and judicial powers conferred on the Parliament, the Executive and the Judiciary respectively are constitutionally the powers of the people themselves and the various functionaries and institutions created by the Constitution exercise not their own indigenous and native powers but the powers of the people on terms expressed by the Constitution. The people, again, is the repository of article 7.
As for (iii) in Part II of the Constitution, containing Fundamental Principles of State Policy, Article 8 (2) provides that the principles set out in this Part "shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh. "It is constitutionally impermissible to leave out of consideration Part II of our Constitution when an interpretation of Article 102 needs a guidance.
As for (iv),Part III of the Constitution bestows Fundamental Rights on the citizens and other residents of Bangladesh. Article 44 (1) guarantees the right to move the High Court Division in accordance with Article 102 (1) for the enforcement of these rights. Article 102 (1) is therefore a mechanism for the enforcement of Fundamental Rights which can be enjoyed by an individual alone in so far as his individual rights are concerned, but which can also be shared by an individual in common with others when the rights pervade and extend to the entire population and territory. Article 102 (1) especially cannot be divorced from Part III of the Constitution.
As for (v), the other provisions of the Constitution which will vary from to case may also come to play a role in interpreting Article 102 of the Constitution. Article 102 therefore is an instrumentality and a mechanism, containing both substantive and procedural provisions, by means of which the people as a collective personality, and not merely as a conglomerate of individuals, have devised for themselves a method and manner to realise the objectives, purposes, policies, rights and duties which they have set out for themselves and which they have strewn over the fabric of the Constitution.
With the power of the people looming large behind the constitution horizon it is difficult to conceive of Article 102 as a vehicle or mechanism for realising exclusively individual rights upon individual complaints. The Supreme Court being a vehicle, a medium or mechanism devised by the Constitution for the exercise of the judicial power on behalf of the people, the people will always remain the focal point of concern of the Supreme court while disposing of justice or propounding any, judicial theory or interpreting any provision of the Constitution. Viewed in this context interpreting the words "any person aggrieved" meaning only and exclusively individuals and excluding the consideration of people as a collective and consolidated personality will be a stand taken against the constitution. There is no question of enlarging locus standi or legislation by Court. The enlargement is writ large on the face of the Constitution. In a capitalist laissez faire concept of private ownership of the instruments and mans of production and distribution, individual rights carry the only weight and the judiciary exists primarily to protect the capitalist rights of the individuals, but in our Constitution Article 13, a Fundamental Principle of State Policy, provides that the people shall own control the instruments and means of production and distribution under three forms, namely, (a) state ownership, that is, ownership, by the State on behalf of the people; (b) co-operative ownership, that is, ownership by co-operatives on behalf of the members and (c) private ownership, that i, ownership by individuals. When there is a State ownership on behalf of the people of the instruments and means of production an distribution the concept of exclusive personal wrong or injury is hardly appropriate. The High Court Division cannot under the circumstances adhere to the traditional concept that to invoke its jurisdiction under Article 102 only a person who has suffered a legal grievance or injury or an adverse decision or a wrongful deprivation or wrongful refusal of his title to something is a person aggrieved.
This is not to say that Article 102 has nationalised each person`s cause as every other person`s cause. The traditional view remains true, valid and effective till today in so far as individual rights and individual infraction thereof are concerned. But when a public injury or public wrong or infraction of a fundamental right affecting an indeterminate number of people is involved it is not necessary, in the scheme of our Constitution, that the multitude of individuals who have been collectively wronged or injured or whose collective fundamental rights have been invaded are to invoke the jurisdiction under Article 102 in a multitude of individual writ petitions, each representing his won portion of concern. In so far as it concerns public wrong or public injury or invasion of fundamental rights of an indeterminate number of people, any member of the public, being a citizen, suffering the common injury or common invasion in common with others or any citizen or an indigenous association, as distinguished from a local component of a foreign organisation, espousing that particular cause is a person aggrieved and has the right to invoke the jurisdiction under Article 102.
It is, therefore, the cause that the citizen-applicant or the indigenous and native association espouses which will determine whether the applicant has the competency to claim a hearing or not. If he espouses a purely individual cause, he is a person aggrieved if his own interests are affected. If he espouses a public cause involving public wrong or public injury, he need not be personally affected. The public wrong or injury is very much a primary concern of the Supreme Court which in the scheme of our Constitution is a constitution vehicle for exercising the judicial power of the people.
The High Court Division will exercise some rules of caution in each case. It will see that the applicant is in fact espousing a public cause, that his interest in the subject matter is real and not in the interest of generating some publicity for himself or to create mere public sensation, that he is acting bona fide, that he is not a busybody or an interloper, that it is in the public interest to grant him standing and that he is not acting for a collateral purpose to achieve a dubious goal, incl foreign interest.
This writ petition is concerned with an environmental issue. In our Constitution there is no specific fundamental right dealing with environment, nor does it find a place in the Fundamental Principle of State Policy. If we take the averments of the appellants in the writ petition on their face value, and do not entertain any contrary assertions thereto at this stage, it is obvious that the association-appellant as an environmental association of lawyers is a person aggrieved, because the cause it espouses, both in respect of fundamental rights and constitutional remedies, is a cause of an indeterminate number of people in respect of a subject matter of public concern and it appears, on the face of the writ petition itself, that it has devoted its time, energy and resources to the alleged ill-effects of FAP-20, it is acting bona fide and that it does not seek to serve an oblique purpose. It has taken great pains to establish that it is not a busybody. Subject to what emerges after the respondents state their case at the hearing of the writ petition the appellant cannot be denied entry at the threshold stage on the averments made in the writ petition.
We have given reasons of our own why the appellant is a person aggrieved, but we have to say specifically that we do not accept Dr. Farooque`s submission that the association represents not only the present generation but also the generation yet unborn. This claim is based on a case of Philippines Supreme Court, Juan Antonio Oposa and others vs. Hon`ble Fulgencio S. Factoran and another in which the twin concepts of "inter-generational responsibility" and "inter-generational justice" were agitated by the plaintiff minors represented by their respective parents to prevent the misappropriation or impairment of Philippine rain forest. The minors asserted that they "represent their generation as well as generation yet unborn". The minors` locus standi was allowed because "the right to a balanced and healthful ecology" was a fundmanetal right and several laws declaring the policy of the State to conservation of the country`s forest "not only for the present generation but for the future generation as well" were guaranteed. (The South Asian Environmental Law Reporter, Vol. 13, September, 1994, Colombo, Sri Lanka, pp. 113-145). Our Constitution does not contain any analogous provision.
As to the apprehension of floodgate, the people as a whole is no doubt a flood and the Constitution is the sluice-gate through which the people controls its own entry. Our Courts will be prudent enough to recognise the people when the people appear through an applicant as also those who masquerade under the name of the people. Taking up the people`s causes at the expense of his own is a rare phenomenon, not a commonplace occurrence.
We hold therefore that the association-appellant was wrongly held by the High Court Division not to be a "person aggrieved" in the facts and circumstances of the case and we hold further that the appellant is "any person aggrieved" within the meaning of both Article 102 (1) and Article 102 (2) (a) of the Constitution.
The appeal is allowed and Writ petition No. 998 of 1994 is remanded to the High Court Division for hearing on merit. There will be no order as to costs.
The traditional rule to locus standi is that judicial remedy is available only to a person who is personally aggrieved. This principle is based on the theory that the remedies and rights are correlative and therefore only a person whose own right is violated is entitled to seek remedy. In case of private individual and private law this principle can be applied with some strictness, but in public law this doctrine cannot be applied with the same strictness as that will tantamount to ignoring the good and well being of citizens, more particularly from the view point of public good for whom the state and the Constitution exist.
`Bela` is actively working in the field of environmental problems of the Bangladesh. It is to be kept in mind that `Bela` has got no direct personal interest in the matter. strictly speaking it is not an aggrieved person if, we just give a grammatical construction to the phrase `aggrieved person` which means person personally aggrieved.
In our Constitution nowhere the expression aggrieved person has been defined. An expression appearing in the Constitution must get its light and sustenance from the different provisions of the constitution and from the scheme and objective of the constitution itself. In our Constitution, preamble provides that the people of Bangladesh proclaimed Independence on the 26th day of March, 1971 and through a historic war for national independence established independent, sovereign Bangladesh. The preamble of our Constitution envisages a socialistic society free from all kinds of exploitation. In other words, the Constitution contemplates a society based on securing all possible benefits to its people, namely, democratic, social, political and equality of justice in accordance with law. The Constitution is the supreme embodiment of the will of the people of Bangladesh and as such all actions must be taken for the welfare of the people. For whose benefits all powers of the Republic vest in the people. For whose benefits all powers of the Republic vest in the people and the exercise of such power shall be effected through the supremacy of the Constitution. If justice is not easily and equally accessible to every citizen there then hardly be a Rule of Law. If access to justice is limited to the rich, the more advantaged and more powerful sections of society, then the poor and the deprived will have no stake in the Rule of Law and they will be more readily available to turn against it. Ready and equal access to justice is a sine qua non for the maintenance of the Rule of Law. Where there is a written Constitution and an independent judiciary and the wrongs suffered by any section of the people are capable of being raised and ventilated publicly in a court of law to be greater respect for the Rule of Law. The preamble of our Constitution really contemplates a society where there will be unflinching respect for the Rule of Law and the welfare of the citizens. Article 7(1) of our Constitution reads as follows:-
"7.(1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution."
The supremacy of the constitution is a special and unique feature in our Constitution. Neither in the Constitution of India nor in the Constitution of Pakistan there is reassertion of the supremacy of the Constitution. This is a substantive provision which contemplates exercise of all powers in the republic through the authority of the Constitution.
Part II of our Constitution relates to fundamental principles of State Policy. Article 8(2) provides that these principles are not enforceable in any court but nevertheless are fundamental to the governess of the country and it shall be the duty of the State to apply the principle in making the laws. The principles, primarily being social and economic rights, oblige the state, amongst other themselves, to secure a social order for the promotion of welfare of the people, to secure a right to work, to educate, to ensure equitable distribution of resources and to decentralise power to set up local Government institutions composed of people from different categories of people as unit of self governance. A Constitution of a country is a document of social evolution and it is dynamic in nature. It should encompass in itself the growing demands, needs of people and change of time. A Constitution cannot be morbid at all. The language used by the framers of the Constitution must be given a meaningful interpretation with the evolution and growth of our society. An obligation is cast on the Constitutional Court which is the apex court of the country to interpret the Constitution in a manner in which social, economic and political justice for the welfare to the state and it`s citizens. Mr. Mahmudul Islam. author of "Constitution law of Bangladesh" opined in his book as follows:-
"An expression occurring in the Constitution cannot be interpreted out of context or only by reference to the decisions of foreign jurisdictions where the constitutional dispensation is different from ours."
The author dealing with the Constitution of Bangladesh has very apply said that the meaning of the expression `aggrieved person` must be understood keeping in view of the pronounced scheme and objectives of the Constitution. The Constitution is a living document and therefore its interpretation should be liberal to meet the needs of the time and demands of the people. By referring to the various provisions of the Constitution of Bangladesh, I find that it ensure liberties and socio-economic justice exhorted for a purposeful application to all categories of the population.
The Constitution of Bangladesh recognizes the welfare of the people in unambiguous terms if, we take a traditional restive rule and remain contended with it then the same will be disastrous for the welfare of a poor, uneducated society like ours in the contest of social and economic unequal. Time has come when this court must act according to the needs of doing social justice to the large segment of population. This relaxation of the strict rules of locus standi can be expanded in two way First, representative standing and citizen standing. The former relates to the standing in a matter pertaining to a legal wrong or injury cause or threatened to be caused to a person or class of person who, by reason of property helplessness or disability or economic inability cannot move the court for relief. The later relates to standing in a matter in which breach of public duty results in violation of collective right of the public duty results in violation of collective right of the public at large. In this case, the as appellant is not moving this application as peoples of the locality economically crippled cannot file the application before the court, but by this action of the respondents a public wrong or public injury is causing damage to environment and human health in Bangladesh in which specific filed `Bela` is actively associated. Thus, I find that this organization has got sufficient interest in the matter and the question of standing must be liberally construed in the context of our Constitutional scheme and objectives as indicated above.
I also honestly feel that there is a positive duty on the judiciary to advance and secure the protection of the Fundamental rights of its people as found in our Constitution. Strictly it may be correct to say that only a person whose rights are infringed has a right to make an application to assert his right be it, fundamental or otherwise. But it is important to note that there is a constitutional duty on the judiciary to secure an advance the fundamental rights of its people in view of our Constitutional mandate. In such an event this court is under a duty to act and inquire into allegations of infringement of rights even though technically a perfect application in terms of Article 102 of the Constitution is not before the court. Independence of judiciary and its separation from the executive ensures proper functioning of the courts. The Court is required to protect and enforce fundamental rights guaranteed to the people, it interprets and protects the Constitution, "enforces the constitutional limitations on the power of the government, decides disputes between the State and it`s citizen and between citizen. Presently, I am concerned with the protection of the rights of the people and will restrict to the same. The people have been guaranteed life, liberty, equality, security, freedom from needs, wants, illiteracy and ignorance, dignity of man and socio-economic and political justice. Any law, action and order made and passed in violation of fundamental rights guaranteed to the People. We can thus see how judiciary upholds, protects and defends the Constitution and effectively enforces the fundamental rights guaranteed by the constitution itself. The judiciary defends the constitution and attains the pivotal enviable position as the guardian of the people and also the conscience of the people. In the area of economic regulation, control and planning the judiciary has used law as an instrument for the eradication of poverty, inequality and exploitation and strengthened the hands of the State in widening the gamut of its welfare activities. The terms` welfare State`, mixed economy`, `socialist republic` etc. have been given the judiciary vast scope for social engineering. Effective access to justice can thus be seen as the most basic requirement, the most basic "human rights" of a system which purports to guarantee legal rights. The types of cases which were considered at the early stages of development of the rule of locus standi are those where there is a specific legal in jury either to the applicant or to some other person or persons for whose benefit the action is brought arising from violation of some constitutional or legal right or legally protected interest. Apart from such cases, there is a category of cases where the State or a public authority may act in violation of a constitutional or statutory obligation, or fail to carry out such obligation resulting in injury to public interest or public injury as distinguished from private injury. Who then in such cases can complain of against such act or omission of the State or public authority? Can any member of the public sue for legal redress? Or is such right or standing limited only to a certain class of persons ? Or is there no one who can complain ? Must the public injury go unredressed ?
Thus I hold that a person approaching the court for redress of a public wrong or public injury has sufficient interest (not a personal interest) in the proceedings and is acting benefit and not for his personal gain or private profits, without any political motivation or other oblique consideration has locus standi to move the High Court under Article 102 of the Constitution of Bangladesh.
Dr. Mohiuddin Farooque has cited a large number of decisions from Indian jurisdiction to show how the question of locus standi has been considered in the High Courts of India including the Supreme Court for evolution and development of public interest litigation in India. He has cited various decisions from other countries as well in his written argument to show that public interest litigation is a new jurisprudence which the courts in other jurisdictions are evolving. I will not refer to all those cases as the language of article 102 of our Constitution is not in perimeteria with the language of those Constitutions.
If we look to the cases recently disposed of by the Supreme Court of India then we find that there is a trend of judicial activism to protect environment through public litigation in environmental cases. In Bangladesh such cases are just knocking at the door of the court for environmental policy making and the court is being involved in this case. There is a trend to liberalize the rules of standing through out the world in spite of the traditional view of the locus standi. The Supreme Court of India initially took the view that when any member of a public or social organization so espouse the cause of the poor and the down-trodden, such member should be permitted to move the Court even by merely writing a letter without incurring expenditure of his own. In such a case, the letter was regarded as an appropriate proceeding failing within the purview of Article 32 of the Constitution. This was thus the beginning of the exercise of a new jurisdiction in India, known as epistolary jurisdiction.
The operation of Public Interest Litigation should not be restricted to the violation of the defined fundamental Rights along. In this modern age of technology, scientific advancement, economic progress and industrial growth the socio-economic rights are under phenomenal change. New rights which call for collective protection and therefore we must act to protect all the constitutional, fundamental and statutory rights as contemplated within the fore corners of our Constitution.
In conclusion, I hold that the appellant may not have any direct personal interest but it has sufficient and genuine interest in the matter complained of and it has come before the court as a group of public spirited young lawyers to see that the public wrong or public injury is remedied and not merely as a busy body perhaps with a view to gain cheap popularity and publicity.
Before parting with the case, I want to mention specifically that any application filed by an individual, group of individuals, associations and social activists must be carefully scrutinized by the court itself to see as to whether the petitioner has got sufficient and genuine interest in the proceeding to focus a public wrong or public injury.
BIMALENDU BIKASH ROY CHOUDHURY. J. A review of the authorities of this court, however, indicates that no exhaustive or definitive meaning could have yet been given to the said expression and the courts sometimes lapsed into the traditional view which originated from the old English decisions. But law does not remain static. It loses its rigidity with the gradual change of the social order to meet the demands of the change.
In order to ensure that the mandates of the Constitution are obeyed the High Court Division of the Supreme Court is vested with the power of judicial review under article 102 which is contained in Part VI of the Constitution. The power is wide enough to reach any person or place where there is injustice.
In this backdrop the meaning of the expression "person aggrieved" occurring in the aforesaid clauses (1) and (2) (a) of article 102 is to be understood and not in an isolated manner. It cannot be conceived that its interpretation should be purged of the spirit of the constitution as clearly indicated in the Preamble and other provisions of our Constitution, as disc is unthinkable that the framers of the Constitution had in their mind that the grievances of millions of our people should go unredressed, merely because they are unably to reach the doors of the court owing to abject poverty, illiteracy, ignorance and disadvantaged condition. It could never have been the intention of the framers of the constitution to outclass them. In such harrowing conditions of our people is general if socially conscious and public-spirited persons are not allowed to approach the court on behalf of the public or a section thereof for enforcement of their rights the very scheme of the Constitution will be frustrated. The inescapable conclusion, therefore, is that the expression "person aggrieved" means not only any person who is personally aggrieved but also one whose heart bleeds for his less fortunate fellow beings for a wrong done by the Government or a local authority in not fulfilling its constitutional or statutory obligations. It does not, however, extend to a person who is an interloper and interferes with things which do not concern him. This approach is in keeping with the constitutional principles that are being evolved in the recent times in different countries.
Although we do not have any provision like article 48-A of the Indian Constitution for protection and improvement of environment, articles 31 and 32 of our Constitution protects right to life as a fundamental right. It encompasses within its ambit, the protection and preservation of the environment, ecological balance free from pollution of air and water, and sanitation without which life can hardly be enjoyed. Any act or omission contrary thereto will be violative of the said right to life.
In the face of the statements in the writ petition BELA is concerned with the protection of the people of this country from the ill-effects of environmental hazards and ecological imbalance. It has a genuine interest in seeing that the law is enforced and the people likely to be affected by the proposed project are saved. Ths interest is sufficient enough to bring the appellant within the meaning of the expression "person aggrieved". The appellant should be given locus standi to maintain the writ petition on their behalf.