Content:

1. Topic P.No.
2. Introduction 2
3. Definition of PIL (Public Interest Litigation)
4. Development of Public Interest Litigation in Bangladesh
5. Bangladesh Constitutional Analysis of PIL
6. Objectives of PIL

7. Major Environmental Issues Facing Bangladesh

8. Problems and Complexities PIL Through The Environment

9. When A PIL Can be filed ?

10. Who Can File a PIL?

11. When a Writ Petition May be Treated as a PIL?

12. Against Whom a PIL Can be Filed?

13. Procedure to File PIL

14. A letter to Chief Justice may be Treated as a PIL
15. Locus Standi of PIL Petitioner on Environment Bangladesh
Development and the New Principles
16. Related Cases of PIL
17. Conclusion

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 Introduction:

The concept of public interest litigation as has emerged into the judicial administration of
Bangladesh is yet to mature with the concept of justice as guaranteed by the Constitution.
This is a crucial concept in a country like ours where 65% of the total populace have no or
less access to judiciary although the constitution commits for equality before law, justice,
right to life and equal enjoyment of fundamental rights by all citizens. With obvious socio-
economic constraints and a long history of feudal past, the realization of legally recognized
rights is at its nascent stage.
Public interest litigation (PIL) claims have been used to defend the rights of the poor,
illiterate, disadvantaged, and impoverished people of Bangladesh. This section explores the
development of this transformative type of litigation and its impact on legal system.
It begins by defining public interest litigation, generally and specifically in the Bangladesh
context. It is not necessary, for the exercise of the court's jurisdiction, that the person who is
the victim of the violation of his or her right should personally approach the court.
Public Interest Litigation is the power given to the public by courts through judicial
activism. Such cases may occur when the victim does not have the necessary resources to
commence litigation or his freedom to move court has been suppressed or encroached upon.
The court can itself take cognizance of the matter and proceed suo-motu or cases can
commence on the petition of any public-spirited individual. In Bangladesh, concerned
citizens and organizations have challenged illegal detention of an innocent person for 12
years without trial, importation of radio-active milk environmental damage resulting from
defective flood action programme, appointment of the Chief Metropolitan Magistrate
without prior consultation with the Supreme Court and so on. Public Interest Litigation is
not defined in any statute or act. It has been interpreted by judges to consider the intent of
public at large. Although, the main and only focus of such litigation is only `Public Interest'
there are various areas where a Public Interest Litigation can be filed. Since the early
1980s, the Supreme Court of India and its state High Courts have wielded an enormous
amount of power in the area of human rights.

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 Definition of PIL (Public Interest Litigation):

Public Interest Litigation is grounded around section 102 of the Constitution. Section
102(1) allows the court to pass an order where there has been a breach of fundamental
rights. These are rights set out in Part III of the constitution (and include for example:
equality before the law, right to life and personal liberty, and freedoms of movement,
assembly, association, thought and conscience). Section 102(1) (a) allows the court to pass
an order requiring the government to do what is required by law, and not to do what is
forbidden by law to so. The application to the court can be made by "an aggrieved person."
It is the wide interpretation by the courts of the term "an aggrieved person" - to include
legal aid, human rights, or development organizations - that has opened up public interest
litigation. These groups can as a result petition the court on behalf of workers, or other
affected groups of people. 102. Powers of High Court Division to issue certain orders and
directions, etc. Public interest litigation describes legal actions brought to protect or enforce
rights enjoyed by members of the public or large parts of it.

Public Interest Litigation (PIL) in Bangladesh:

Development of Public Interest Litigation has been gradual. Before its introduction in
Bangladesh, it successfully developed in several other jurisdictions. The term ‘public
interest litigation’ was first used in the USA in the late 1960s and early 1970s when a
special type of cases sought to represent the underrepresented interests of the society in law
courts. It came as a part of the greater movement of ‘public interest law’ that included legal
aid, alternative dispute resolutions, lobbying and so on. Funded by voluntary sector
organizations, lawyers organized themselves into public interest law firms. Success of PIL
in the USA influenced other jurisdictions including Canada, Australia and England. The
English judges, and subsequently the lawmakers, gradually liberalized the principles of
locus standi enabling concerned citizens to approach the court for public interest. However,
the most remarkable development of PIL took place in India in the early 1980s.ln the
aftermath of the emergency period, there was a rapid expansion of free press and activities
of voluntary sector human rights groups. A number of judges proceeded as social activists
and induced and led a major change of the traditional law by introducing Pit. Accordingly,
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any person can activate the court to safeguard the interest of the public, especially those of
the poor and vulnerable section of the community. This new development was seen as a
constitutional imperative to attain social justice. Pakistan joined the club in the late 1980s
after the restoration of democracy. The judges introduced Pit on the ground that the Islamic
social justice precepts of the Constitution validate a Pit approach”.
Advancement of PIL in Bangladesh coincided with the restoration of democracy. Some
attempts to introduce PIL in Bangladesh started since 1992. Initially, it was difficult to
overcome the threshold problem. However, relentless efforts of the social activists enabled
the progressive minded judges to interpret the Constitution liberally through a series of
cases. When success finally came in 1996, the Supreme Court not only found that Public
Interest Litigation is valid under the constitutional scheme, but that the Constitution
mandates a Public Interest Litigation approach

The concept of public interest litigation as has emerged into the judicial administration of
Bangladesh is yet to mature with the concept of justice as guaranteed by the Constitution.
This is a crucial concept in a country like ours where 65% of the total populace have no or
less access to judiciary although the constitution commits for equality before law, justice,
right to life and equal enjoyment of fundamental rights by all citizens. With obvious socio-
economic constraints and a long history of feudal past, the realization of legally recognized
rights is at its nascent stage.
In recent times the civil society movement for enjoyment of rights took a new dimension
with the judiciary being increasingly occupied with public interest cases seeking relief
against administrative anarchy and ignorance. It is interesting to note that the concept of
PIL is developing in Bangladesh as a performance of public duty by civil society groups
advocating in support of progressive ideologies. In 1994 a petition was first taken before
the High Court by BELA on behalf of the people of a given locality where a disputed
development action was being implemented. The petition was at first rejected by the court
on the ground of standing of the organization. An appeal was preferred from that rejection
where the core question was whether groups like BELA with dedicated and sincere record
of activism can claim to have acquired sufficient interest to seek judicial redress against
anarchy in its own field of action. The question was vital as it was a constitutional

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requirement under Article 102 that it is only “a person aggrieved” who can file petitions for
enforcement of fundamental rights.

Bangladesh Constitutional Analysis of PIL:

It is often argued that the Constitution of Bangladesh in its present form has made the
President a titular one. It has shrunk the role of the President in such a manner that the
President feels isolated in a larger constitutional canvas. But the President is gifted with a
very unique power of seeking advisory opinion from the Supreme Court under Article 106,
which runs as follows: “If at any time it appears to the President that a question of law has
arisen, or is likely to arise, which is of such a nature and of such public importance that it is
expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to
the Appellate Division for consideration and the division may, after such hearing as it thinks
fit, report its opinion thereon to the President.” It is aspired that Article 106 may appear to be
very significant to the newpresident in any probable juncture.It is often claimed that in case
of seeking advisory opinion under Article 106, the President cannot swim beyond the wish of
the government i.e. the Premier. In the face of any exigency of seeking any Reference to the
Supreme Court of Bangladesh, the head of the state, it is said, is not constitutionally free to
move on his own under Article 48 (3). Article 106 is said to be read with Article 48(3) which
says that in the exercise of all his functions, save only that of appointing the Prime Minister
and the Chief Justice, the President shall act in accordance with the advice of the Prime
Minister.Apart from this, it is further argued that under Parliamentary democracy,
reintroduced in 1991 through 12th Amendment to the Constitution, the President
constitutionally cannot apply Article 106 even if it is unanimous call of the people. There is
at least an academic scope to argue that President’s power under Article 106 should not fall
within the purview of Article 48(3) of the Bangladesh Constitution, which has restricted the
exercise of the President’s function subject to the Prime Minister’s consent. It is high time to
think whether President’s power of invoking advisory opinion can be forged and developed
as a technical extension and isomer of Public Interest Litigation. It can be said that seeking
advisory opinion of the Appellate

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MAJOR ENVIRONMENTAL ISSUES FACING BANGLADESH:

Regional / Global

 Ecological changes due to shared water disputes

 Maritime boundary dispute and a weaker regime on marine resources

 Green house effect and its consequence on Bangladesh

 Refugees and migration

 Ecological effect caused by transfrontier activities

National

 Population and poverty

 Degradation of resources (anti-people and uncoordinated)

 Conflict of development with environment illiteracy Vs ignorance

 Pollution: water, air, soil

 Destruction of mangrove, tree cover and firewood

 Loss of fisheries

 Unplanned human settlement

 Unplanned urbanization and industrialization

 Loss of wildlife

 Natural hazards

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 Problems and Complexities PIL through the Environment:

Because of its developing state, the whole process of public interest litigation is beset with
numerous problems. One such problem is that of fluctuating bench structure which admits
and hears a writ petition. Since all the judges of the superior court are not equally convinced
of the desirability of this new extension of courts jurisdiction, the fate of the writ fluctuates
with the bench fluctuation.

Public Interest Litigation presents many other organizational complexities. It creates not only
factionalism but also makes docket management among the judges difficult. Inability of the
court to forge proper compensation patterns is yet another problem of public interest
litigation.

There are other procedural complexities also. Most of the public interest litigation cases
involves disputed question of fact, which have been either read by the petitioner in a
newspaper or with which he was remote acquaintance because he is not the actual victim.
Such disputed facts cannot be properly decided and evaluated on affidavits. Moreover, if the
paper report is not correct, it will lead to unnecessary wastage of time, money and energy of
the court as well as of the government. Further the consistent administrative behavior in
denying every fact makes the situation still more difficult.

Public Interest Litigation jurisdiction further involves the problem of priority and docket
congestion. Lawyers have started complaining in many countries that most of the court’s
time is now being consumed by public interest litigation and, therefore, their cases are not
being taken up expeditiously.

Further, public interest, unless taken in its proper perspective, irritates the administration
and, therefore, increases the chances of confrontation between the judiciary and the
executive which will be most unfortunate for any country.

It is true that no one would waste his time and money in challenging an administrative action
in which he has no interest. However, it is equally true that in any developed legal system,
the professional litigants and meddlesome interlopers who invoke the jurisdiction of the
court in mailers that do not concern them need discouragement.
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 Objectives of PIL:

Public Interest Litigation (PIL) is filed in a court -

 To ensure the constitutional and legal rights of the poor and excluded groups.

 To enhance social and collective justice.

 To ensure the accountability of concerned govt. and public authorities towards

the issues of public importance.

 When a PIL can be filed?

A PIL can be filed only in a case where 'public interest' at large is affected. Following are
some of the possible areas where a PIL can be filed-

 Where a factory or industrial unit is causing air pollution and people nearby are
getting affected.

 Where, in an area or street there are no streetlights, causing inconvenience to

commuters.

 Where there is regular loud 'miking' in a residential area causing noise pollution.

 Where some construction company is cutting down trees, causing environmental

pollution.

 Where poor people are affected because of government's arbitrary decision to

impose heavy 'tax'.

 For directing the police/jail authorities to take appropriate decisions in regards to

jail reforms, such as segregation of convicts, delay in trial, production of under trial
persons before the court on remand dates.

 For abolishing child labour, and bonded labour.

 Where rights of working women are affected by sexual harassment.

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  For keeping a check on corruption and crime involving holders of high political
office.

 For maintaining roads, sewer etc in good condition.

 For removal of big hoarding and signboard from the busy road to avoid traffic
problem.

 Who can file a PIL?

Such cases may occur when the victim does not have the necessary resources to commence
litigation or his freedom to move court has been suppressed or encroached upon.

 The court can itself take cognizance of the matter and precede suomotu or cases can
commence on the petition of any public-spirited individual.

 Any public-spirited person can file a PIL on behalf of a group of persons whose rights
are affected. Hence, it is not necessary that the person filing a case should have a
direct interest in that PIL.

For example, a person in Dhaka can file a PIL for that a cracker factory in Rajshahi is
running on child labour; or a citizen can file a PIL challenging government's arbitrary
decision to impose heavy 'tax' that is affecting the poor people, though the citizen filing the
PIL may not be personally so much affected by that; similarly a lawyer can file a PIL for
release of some under trial in a jail, who has spent more number of years in jail than the
period prescribed as punishment for persons the offence they are being tried for.

 When a writ petition may be treated as a PIL?

A writ petition filed by the aggrieved person, whether on behalf of group or together with
group can be treated as a PIL. However, the writ petition should involve a question, which
affects public at large or group of people, and not a single individual. And there should be a
specific prayer, asking the court to direct the state authorities to take note of the
complaint/allegation.
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Also, according to some lawyers, the 'representative suit' instituted under Code of Civil
Procedure 1908 can also be treated as PIL when it represents the interest of a large faction of
people.

 Against whom a PIL can be filed?

o A PIL can be filed only against state/central government, municipal

authorities.

o However “Private Party” can be included in PIL as “Respondent”, after

making concerned state authority party.

 Procedure to file PIL:

PIL is filed in the same manner as a writ petition is filed.

In High Court:

If a PIL is filed in a High Court, then two copies of the petition have to be filed.
Also, an advance copy of the petition has to be served on the each respondent, i.e.
opposite party.

In Supreme Court:

If a PIL is filed in the Supreme Court then 5 sets of petition has to be filed apposite
party is served, the copy only when notice is issued.

Procedure:

i. Proceeding, in PIL start and carry on in the same manner, as other cases.

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 ii. However in between the proceedings if the judge feels he/she may appoint
a commissioner, to inspect allegations like pollution being caused, trees
being cut, sewer problems etc.

iii. After filing of replies, by opposite party, and rejoinder by the petitioner,
final hearing takes place, and the judge gives his final decision.

Locus Standi of PlL Petitioner on Environment: Bangladesh Development

and the new Principles:
 The first part of Article 102(1), relates to fundamental rights. The power of the court is not
discretion since Article 44(1) declares that the right to move the Court to enforce
fundamental right is itself a fundamental right. So the situation is situation is similar to
Article 32 of the Indian Constitution. The second part of Article 102(2), relates to cases
involving non-fundamental rights. It uses the same language and defines the same five types
of ‘writs’ as Article 98 of the Pakistan Constitution of 1962. Clause 2(a) (i) provides for
remedies in the nature of prohibition and mandamus; clause 2(a) (ii) grants remedies in the
nature of certiorari; clause 2(b) (ii) deals with remedies in the nature of quo warranto.

For the purpose of our discussion on standing, however, we have two broad types. In the first
category are cases under clause 1 and clause 2(a) where the applicant must be a ‘person
aggrieved’. In the second category are cases under clause 2(b) where any person can apply,
whether or not aggrieved. Interestingly, in cases of habeas corpus and que warranto, the
applicant is required to show grievance in cases of fundamental rights but not in cases of
non-fundamental rights. This apparent anomaly, however, does not give other types of rights
more importance than fundamental rights. The Court has taken the prudent view of
harmonious interpretation and as such no one is denied relief on this issue.

Mahmudul Islam says:

It is very difficult to accept a contention that the condition for enforcement of the
fundamental right relating to personal liberty is more onerous than the condition for issuance
of an ordinary writ of habeas corpus. A reasonable and harmonious interpretation should be
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given and it should be taken that the requirement of ‘aggrieved person’ to apply for
enforcement of fundamental rights is not applicable in respect of a petition involving
detention by an aggrieved person even though the petition for habeas corpus alleged
violation of fundamental rights.

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In sprite of the close resemblance with the Indian and Pakistani constitutional provisions, the
standing rules in Bangladesh have developed through a somewhat different route. The
following discussion will examine how the Bangladesh Supreme Court, following the
English, Indian and Pakistani Courts, gradually came out of the restrictive locus standi rules
where public interest is  revolved.

Powers of High Court Division to issue certain orders and directions:

According to Article l02 (l) of the constitution of Bangladesh provides that the High Court
Division on the application of any person aggrieved, may give such directions or orders to
any person or authority, including any person performing any function in connection with
the affairs of the Republic, as may be appropriate for the enforcement of any the fundamental
rights conferred by Part if of this Constitution.

According to Article 102(2) of the constitution of Bangladesh provides that the High Court
Division may, if satisfied that no other equally efficacious remedy is provided by law.

1. On the application of any person aggrieved, make an order

 directing a person performing any functions in connection with the affairs of the
Republic or of a local authority to refrain from doing that which he is not permitted by
law to do or to do that which he is required by law to do;

 declaring that any act done or proceeding taken by a person performing functions in
connection with the affairs of the Republic or of a local authority has been done or
taken without lawful authority and is of no legal effect; or

According to Article l02 (3) of the constitution of Bangladesh provides that notwithstanding
anything contained in the foregoing clauses, the High Court Division shall have no power
under this article to pass any interim or other order in relation to any law to which article 47
applies.

According to ArticlelO2(4) of the constitution of Bangladesh provides that Whereon an

application made under clause (1) or sub-clause (a) of clause (2), an interim order is prayed
for and such interim order is likely to have the effect of-

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  prejudicing or interfering with any measure designed to implement any development
programmed, or any development work; or

 being otherwise harmful to the public interest, the High Court Division shall not make
an interim order unless the Attorney-General has been given reasonable notice of the
application and he (or an advocate authorized by him in that behalf) has been given an
opportunity or being heard, and the High Court Division is satisfied hat the interim
order would not have the effect referred to in sub-clause (a) or sub-clause (b)
According to Article 02(5) of the constitution of Bangladesh provides that In this
article, unless the context otherwise requires, “person” includes a statutory public
authority and any court or tribunal, other than a court or tribunal established under a
law relating to the defense services of Bangladesh or any disciplined force or a
tribunal to which article 117 applies.

The exemption in sub-section 3 – referring back to article 47 of the constitution -has little
impact on health and safety issues.

 A letter to Chief Justice may be treated as a PIL

There have been instances where judges have treated a post card containing facts as a PIL.
There are also examples that a letter alleging the illegal limestone quarrying that devastated
the fragile environment, or a letter complaining that the national coastline was being sullied
by unplanned development that violated the government directive was treated as PIL.

However, in the past, many people have tried to misuse the privilege of PIL and thus now the
court generally requires a detailed narration of facts and complaint, and then decides whether
to issue notice/s and call the opposite party.

The fact is that so far there is no statute laying down rules and regulations for a PIL, still the
court can treat a letter as a PIL. However the letter should bring the true and clear facts, and
if the matter is really an urgent one, the court can treat it as a PIL. But still it depends upon
facts and circumstances, and the court has the sole discretion.

Court fee:

A Court fee of taka 100. So, per Respondent (i.e. for each number of opposite party, court
fees of taka. So) has to be affixed on the petition.

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Related Cases of PIL:

1. Sharif NurulAmbia v. Bangladesh & others Writ Petition No. 937/ 1995 (Unlawful
Construction) 
The Petition was filed with legal assistance from Bangladesh Environmental Lawyers
Association (BELA) by Mr. Sharif NurulAmbia, Joint General Secretary of (JSD).
The Petition was moved by the Secretary General of BELA, Dr. MohiuddinFarooque
submitting that the DCC has undertaken the construction of the multi-storied building
at the site earmarked for public car park in the RAJUK Master Plan unlawfully and
without the latter's approval and hence liable to be demolished. It was further
submitted that the construction was continuing defying DoE's finding that the said
building would create a disruption to the environment of the area and the neighborhood
depriving them the right to life, body and healthy environment against hazardous
pollution and obstruction to air and light as being endangered by the unauthorized
construction by the Respondents.
Upon hearing the petitioner, the Court stayed the said construction till disposal of suit.
The rule was ultimately disposed of against which an appeal is pending before the
Appellate Division.

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 2. Dr. MohiuddinFarooque v. Bangladesh & others (Writ Petition No.998/94)Sekandar
Ali Mondol v. Bangladesh and others (Writ Petition No.1576/1994) (Challenging
Flood Action Plan-20)

In 1994, a Petition was filed by BELA challenging the implementation of Flood action
Plan-20 in Tangail. The Petition, first rejected by Court on the ground of Standing of the
Petitioner was subsequently sent for hearing on merit to the High Court after the Appellate
Division granted standing (Bangladesh Legal Decisions, (BLD) 1997 Appellate Division
(AD), pg.1).
In the petition, the authorities were accused of violating a number of laws that provide for
compensating affected people for all sorts of loss and protecting the national heritage. The
Court delivered Judgment on 28 August ’97 and observed that “... in implementing the
project the respondents cannot with impunity violate the provisions of law. We are of the
view that the FAP-20 project work should be executed in complying with the requirements
of law.”

3. Dr. MohiuddinFarooque v. Bangladesh & Others WP No.891/1994 (Industrial

Pollution Case)

In 1994 BELA filed this Writ Petition seeking relief against indiscriminate pollution of
air, water, soil and the environment by 903 industries of 14 sectors identified as polluters
by the Ministry of Local Government, Rural Development and Cooperatives (LGRDC)
vide Gazette notification dated 7 August 1986. The 14 sectors include Tanneries, Paper
and Pulp, Sugar Mills, Distilleries, Iron and Steel, Fertilizer, Insecticide and Pesticide
Industries, Chemical Industries, Cement, Pharmaceuticals, Textile, Rubber and Plastic,
Tyre and Tube and Jute.
The Notification of 7th August 1986 directed the Department of Environment (DoE), the
Ministry of Environment and Forests (MoEF) and the Ministry of Industries to ensure
within three years that appropriate pollution control measures were undertaken by those
industries. The Notification also required the said authorities to ensure that no new
industry could be set up without pollution fighting devices. But unfortunately, even after
the lapse of eight years when no measure was taken the above Petition was filed.

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 4. BELA v. Bangladesh and others

Writ Petition No 4919/2010 (Nimtoli-Fire, Dhaka)

The writ petition was filed jointly by BELA, ASK, BLAST, BRAC and IAB on 10 June,
2010 against the failure of the concerned authorities to prepare adequately and effectively for
preventing and fighting against fire break outs in the City and to ensure safety of the
inhabitants of the township and prevent unauthorized expansion of hazardous industrial
activities in the City particularly in the high density township of the Old Dhaka.
5. BELA v. Bangladesh and others

Writ Petition No. 6848/2009 (St. Martin’s Island)

The petition sought for directions upon respondents to regulate commercial tourism in the
ecologically fragile Island of the St. Martins and to prevent the indiscriminate and
unauthorized constructions of hotels, motels, restaurants etc. in the said island. On 18
October, 2009, the Honorable High Court issued a rule nisi calling upon the respondents to
show cause as to why they should not be directed to act upon their legal mandates in
regulating tourism in the Island of St. Martin and in demolishing all unauthorized, unlawful
and illegal contractions of commercial houses in the said Island. Moreover, an order of
injunction was passed restraining respondents from constructing all unauthorized new
commercial buildings for a period of 3 (three) months. Rule returnable within 4 (four) weeks
from the date. Also on 15.1.2010, the order of injunction was extended till disposal of the
Rule.

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Conclusion:
It can be concluded that judicial public interest and constitutional activism in Bangladesh
has begun to make progress and reach achievements, but has not yet lived up to its
promises. It seems that much of the future of this PIL-based judicial activism depends on an
ongoing fine-tuning process of the PIL movement in Bangladesh, which has still a long
way to go towards realizing constitutionally promised social and political justice. The
under-performance of Bangladeshi PIL has been attributed to its elitist use. While this
accusation is largely well founded, a purely social-rights-based functional definition of PIL
lurked behind this. This article has showed that PIL’s underperformance is rooted not in its
elitist use per se or in excessive judicial activism, but in the traditional mould of
Bangladeshi judicial activism, both procedural and substantive. Furthermore, the judiciary
has failed to build and increase its capacity to effectively implement its decisions and bring
the executive to account. For the Bangladeshi (as well as any other) judicial system, this is
a more challenging and daunting task than merely passing good orders.

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