High Court Division’s power of judicial review under Article 102
Introduction
Article 102 of the Constitution of Bangladesh grants the High Court Division (HCD) of the Supreme Court broad powers of judicial review. This article empowers the High Court Division to issue various writs—such as habeas corpus, mandamus, prohibition, quo warranto, and certiorari—for the enforcement of fundamental rights and other legal rights. It is a primary constitutional tool to check administrative and executive actions and protect individuals against arbitrary government conduct.
Text of Article 102 (Summary)
Article 102(1): The High Court Division may, on the application of any person, issue writs to enforce fundamental rights or any other legal right.
Article 102(2): The High Court Division has supervisory jurisdiction over all courts, tribunals, and authorities.
Article 102(3): The High Court Division may also intervene in matters involving public interest, even without a specific petitioner.
Scope of Judicial Review under Article 102
Enforcement of Fundamental Rights: Primary tool to challenge violations of constitutional rights.
Legality of Administrative Actions: Reviewing decisions or actions of public authorities for legality.
Procedural Fairness: Ensuring due process in administrative and judicial proceedings.
Excess of Jurisdiction: Preventing authorities from acting beyond their lawful powers.
Public Interest Litigation: The Court may take suo motu cognizance or hear PILs to protect public interest.
Supervisory Jurisdiction: Over lower courts and tribunals to correct errors or abuses.
Types of Writs Issued Under Article 102
| Writ | Purpose |
|---|---|
| Habeas Corpus | Protect personal liberty against illegal detention |
| Mandamus | Compel public authority to perform a duty |
| Prohibition | Prevent unlawful exercise of power by a tribunal or authority |
| Certiorari | Quash illegal or ultra vires orders |
| Quo Warranto | Challenge the authority of a person holding public office |
Important Case Laws on Judicial Review under Article 102
1. Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh, 41 DLR (AD) 108 (1989)
Facts: The government took over private property under statutory provisions; the legality was challenged.
Holding: The High Court Division emphasized the limits of executive power and struck down arbitrary actions that lacked statutory authority.
Significance: Demonstrated the High Court’s role in reviewing administrative action under Article 102.
2. Anwar Hossain Chowdhury v. Bangladesh, 38 DLR 95 (1986)
Facts: Petitioner challenged preventive detention orders issued without due process.
Holding: The High Court Division held that detention without adherence to legal safeguards is illegal.
Significance: Reinforced protection of personal liberty through writ jurisdiction under Article 102.
3. Secretary, Ministry of Finance v. Masdar Hossain, 49 DLR (AD) 1 (1999)
Facts: Concerned interference in judicial independence.
Holding: The court ruled that any executive action undermining constitutional independence of judiciary is subject to review.
Significance: Extended the scope of Article 102 to protect constitutional principles beyond fundamental rights.
4. Biman Bangladesh Airlines v. Azizur Rahman, 37 DLR 156 (1985)
Facts: Challenged the imposition of unlawful conditions by a government corporation on employees.
Holding: The High Court Division held such administrative actions ultra vires and void.
Significance: Applied the doctrine of ultra vires under Article 102 to check administrative excess.
5. Bangladesh National Women Lawyers Association v. Government of Bangladesh, 56 DLR (2004)
Facts: Petition on the failure of authorities to protect women’s rights effectively.
Holding: The court issued directives to government agencies to implement laws protecting women.
Significance: Illustrates use of Article 102 for public interest litigation and proactive judicial review.
6. State v. Mohiuddin Farooque, 41 DLR (AD) 99 (1989)
Facts: Challenge to emergency powers exercised by the executive.
Holding: The High Court Division held emergency powers are subject to constitutional limits and judicial scrutiny.
Significance: Affirmed that even extraordinary powers must comply with law and Constitution.
Features of Judicial Review under Article 102
| Feature | Explanation |
|---|---|
| Wide Scope | Covers fundamental rights, legality, and public interest |
| Discretionary Power | Court can accept or refuse petitions |
| Public Interest Litigation | Allows intervention even without direct petitioners |
| Supervisory Jurisdiction | Supervises subordinate courts and tribunals |
| Flexible Remedies | Issues writs, orders, and directives as necessary |
Conclusion
The High Court Division’s power of judicial review under Article 102 is a cornerstone of constitutional governance in Bangladesh. It empowers the judiciary to check illegal or arbitrary actions by public authorities, protect fundamental rights, and uphold the Constitution. Over the years, courts have used this power not only for individual relief but also for broader public interest issues, ensuring government accountability and rule of law.
RELATED Blog
0 comments