What Rights and Remedies do you have in the High Court under Article 31 (Right to protection of law)?
Answer:
I would start by asking some questions first: Do you know what rights and remedies you are entitled to from the High Court Division of the Supreme Court of Bangladesh under Article 31 of the Constitution? Do you know that the protection of the law and being treated in accordance with the law are your inalienable fundamental rights? Do you know the High Court is readily available to protect your right to life, liberty, body, reputation, and property? If you do not know, let’s know your rights and know how to be protected:
Article 31 of the Constitution of the People’s Republic of Bangladesh guarantees the Right to Protection of Law. It declares that every citizen and every person within Bangladesh is entitled to be treated in accordance with law, and that no action detrimental to life, liberty, body, reputation, or property shall be taken except in accordance with law.
Whenever any public authority, statutory body, or government official acts arbitrarily, without lawful authority, or in violation of legal procedures, an aggrieved person may file a Writ Petition before the High Court Division under Article 102 to enforce the protection guaranteed by Article 31.
Below are the principal issues, matters, or grounds on which a Writ Petition can be filed under Article 31, with practical illustrations and judicial precedents.
GROUNDS FOR FILING A WRIT UNDER ARTICLE 31:
A Writ can be filed whenever the State or a public authority takes a "detrimental action" without a valid legal basis. The grounds are categorized as follows:I
llegal Detention or Violation of Personal Liberty and Reputation:
Ground: If a person is detained or restricted without lawful authority, it violates Article 31 (and often Article 32).
For example:
• When police detain a person without lawful arrest or valid grounds.
• When preventive detention is ordered without following statutory requirements.
• The police parade a suspect before the media and declare them a "habitual criminal" before any trial has taken place or evidence has been presented in court.
Judicial Precedent: In the case of Aruna Sen, the High Court Division held that detention without lawful justification violates constitutional protections of liberty, and courts may intervene through writ jurisdiction.
Arbitrary or Illegal Action by Public Authorities:
Ground: Article 31 protects citizens from arbitrary exercise of power by government authorities. If a public authority acts without lawful authority or outside its jurisdiction, a writ petition can be filed.
For example:
• A government official demolishes a person’s shop without legal notice or lawful procedure.
• A local authority cancels a trade licence arbitrarily without hearing the owner.
Judicial Precedent: In the case of Kudrat-E-Elahi Panir, the Appellate Division emphasized that all executive actions must be conducted strictly in accordance with law, and arbitrary exercise of power violates constitutional guarantees including Articles 31 and 32.
Abuse or Excess of Statutory Power:
Ground: A writ petition may be filed where an authority misuses statutory power for an improper purpose.
For example:
• A regulatory authority uses its power to harass a business competitor.
• A municipal authority imposes penalties not authorized by law.
Judicial Precedent: In the case of Farooque, the Appellate Division held that any act contrary to law affecting fundamental rights may be challenged through writ jurisdiction, and Article 31 forms part of the constitutional guarantee against arbitrary actions.
Absence of Legal Authority (Ultra Vires):
Article 31 dictates that "no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law."
Issue: A government official or agency acts beyond the powers granted to them by a specific statute, or an officer acts based on a "verbal order" or a "policy" that has no statutory (legal) standing.
For example: A Municipality (Pourashava) demolishes a private building without any prior notice or without the legal authority to do so under the Local Government Act.
Violation of the Principles of Natural Justice:
"In accordance with law" implies a fair procedure. Even if a law is silent, the court reads the requirement of a "Show Cause Notice" into it. Article 31 requires that fair procedure and natural justice be followed in administrative actions. A writ petition may be filed where authorities act without giving notice or opportunity of hearing.
Issue: Administrative actions taken without giving the affected person a chance to explain or defend themselves, or penalizing someone without giving them a chance to defend themselves.
For example:
• A government employee is dismissed from service without a show-cause notice or disciplinary inquiry.
• A licence is cancelled without allowing the holder to defend himself.
• A student is expelled from a public university based on a secret report without being given a copy of the allegations or an opportunity to explain their side.
• A government employee is dismissed from service based on an allegation of misconduct, but no formal inquiry was held and no show-cause notice was served.
Judicial Precedent: In the case of Abdul Latif, the Appellate Division held that administrative decisions affecting rights must comply with principles of natural justice, which are part of the constitutional protection under Articles 31 and 27.
Abuse or Excess of Statutory Power:
Ground: A writ petition may be filed where an authority misuses statutory power for an improper purpose.
Practical Example:
• A regulatory authority uses its power to harass a business competitor.
• A municipal authority imposes penalties not authorized by law.
Judicial Precedent: Any act contrary to law affecting fundamental rights may be challenged through writ jurisdiction, and Article 31 forms part of the constitutional guarantee against arbitrary actions.
Protection of Property and Body:
Any seizure of property or physical restraint must strictly follow the written code.
Issue: Police using excessive force or "crossfire" (extra-judicial killings) that bypasses the judicial trial process.
Ground: A writ petition may be filed when a person’s property is seized, acquired, or destroyed without lawful authority.
Practical Example: Government officials evict a landowner without following acquisition laws.
Authorities confiscate goods without legal procedure.
Judicial Precedent: The High Court Division reaffirmed that state actions affecting property must strictly follow legal procedures, otherwise they are unconstitutional.
Administrative Decisions Made Mala Fide (Bad Faith):
Ground: A writ petition can be filed where administrative action is taken with mala fide intention, bias, or political motivation.
Practical Example:
• A public servant is transferred repeatedly to harass him for political reasons.
• A government body blacklists a contractor due to personal hostility.
Judicial Precedences:
The High Court Division held that exercise of power in bad faith or for improper purposes is unlawful and subject to judicial review.
The Supreme Court of Bangladesh has expanded the horizon of Article 31 through several key rulings:
Issue: Environmental pollution and the right to life.
Judgment: The Court held that the "Right to Life" (Article 32) and "Protection of Law" (Article 31) include the right to a healthy environment.
Significance:
It established that any action that harms the environment without following strict legal regulations is a violation of Article 31.
The Issue: Illegal detention and the right to be treated according to law.
The Judgment: The Court emphasized that if the law provides a specific procedure for arrest or detention, any deviation from that procedure makes the detention illegal under Article 31.
The Issue: Arbitrary arrest and remand by police.
Judgment: The Court ruled that Sections 54 and 167 of the CrPC must be exercised in a way that respects the safeguards of Article 31.
Significance: It prohibited the "blind" exercise of discretionary powers by the police, reinforcing that "Protection of Law" means protection from the whims of the state.
The Issue: Handcuffing a person unnecessarily.
The Judgment: The Court held that parading a person in handcuffs without a clear threat of escape or violence violates their dignity and reputation under Article 31.
Conclusion:
A Writ Petition may be filed before the High Court Division under Article 31 where; 1) the public authorities take arbitrary or illegal administrative actions, 1) natural justice is violated (no notice or hearing), 3) a person is detained without lawful authority, 4) authorities abuse statutory powers, 5) state actions damage reputation without legal basis, 6) property is taken or destroyed without lawful procedure, and 7) administrative decisions are mala fide or politically motivated. Thus, Article 31 acts as a broad constitutional safeguard ensuring rule of law and protection from arbitrary state action, and the High Court Division exercises judicial review through writ jurisdiction under Article 102.
MD. KAMRUZZAMAN
Advocate
Supreme Court of Bangladesh
And
A Fundamental Rights Activist.