What rights and remedies you have in the High Court under article 32- protection of right to life and personal liberty?
When the protection of right to life and personal liberty is violated by the Government, law-enforcing agencies, prison authorities, or any statutory authority, a person may file a Writ Petition before the High Court Division under Article 102 of the Constitution.
Article-32 states “no person shall be deprived of life or personal liberty save in accordance with law.” When this right is violated by the State or a public authority, a Writ Petition can be filed to seek redress.
Below are the major issues, matters, or grounds on which a Writ Petition may be filed. A Writ Petition under Article 32 is generally based on the following legal grounds:
• Unlawful Detention: When a person is arrested or detained without a valid legal warrant or beyond the scope of the law (e.g., Habeas Corpus).
• Procedural Impropriety: When the law exists, but the procedure followed to deprive a person of liberty was unfair, arbitrary, or not followed strictly.
• Extra-judicial Actions: Actions by law enforcement that result in "crossfire," custodial torture, or death in custody.
• Right to a Healthy Environment: The judiciary has expanded "Right to Life" to include the right to a decent environment, as life cannot be sustained without it.
• Livelihood: In certain contexts, depriving a person of their only means of livelihood without due process is seen as a threat to the right to life.
Illegal Arrest or Detention:
If a person is picked up by law enforcement agencies, the Police or RAB, without being informed of the grounds of arrest or without being produced before a Magistrate within 24 hours, Article 32 is invoked.
Ground: If a person is arrested or detained without lawful authority, without following procedure established by law, or beyond statutory limits, it violates Article 32. On this ground a writ petition can be filed in the High Court Division.
For example-1: A person is held in "preventive detention" solely based on political suspicion without any specific criminal charges.
For example-2: Police arrest a person without showing grounds of arrest and keep him in custody for several days without producing him before a Magistrate within 24 hours as required by law.
Judicial Precedent: in the case of BLAST v Bangladesh, the High Court issued directions to prevent arbitrary arrest and detention under section 54 of the CrPC and remand under section 167. The Court held that arbitrary arrest and torture violate Articles 31 and 32 of the Constitution.
Custodial Torture or Death in Custody:
The state is the custodian of any person in jail or police hold. If that person is subjected to physical torture or dies due to negligence or violence, it is a direct violation of Article 32.
Ground: Any torture, inhuman treatment, or custodial death by police or law-enforcement agencies violates the right to life.
For example: A suspect dies in police remand due to physical assault during interrogation. A person is arrested and later dies in police custody due to torture during interrogation.
Judicial Precedent: in the case of Bangladesh Legal Aid and Services Trust (BLAST) v Bangladesh, the Court recognized that torture in custody is a violation of Article 32 and directed authorities to follow safeguards during arrest and interrogation.
Extra-Judicial Killing (Crossfire/Encounter):
Ground: If law-enforcement agencies kill a person without judicial process, it violates Article 32.
For example: A person dies during alleged “crossfire” or “gunfight” involving law enforcement without proper investigation.
Judicial Position: The High Court has repeatedly held that no person can be deprived of life except through due process of law and ordered judicial inquiries into alleged crossfire deaths. In the case of ASK v Bangladesh, the Court directed investigation into alleged extra-judicial killings and emphasized protection of Article 32.
Enforced Disappearance:
Ground: If a person is taken away by law-enforcement agencies and his whereabouts are concealed, it violates the right to life and liberty.
For example, Family members claim that a person was picked up by persons identifying themselves as members of a security force and later disappeared.
Judicial precedent: in the case of Abu Bakar Siddique v Bangladesh, the High Court issued Rule Nisi and directions asking authorities to produce the missing person.
Inhuman Prison Conditions:
Ground: Detention in inhuman or degrading prison conditions violates the right to life.
For example: Prisoners are kept in overcrowded cells without sanitation, medical treatment, or adequate food.
Judicial Precedent: in the case of ASK v Bangladesh, the High Court declared that prisoners also enjoy fundamental rights including dignity and humane treatment under Article 32.
Lack of Medical Care in State Custody:
Ground: Failure to provide necessary medical treatment to prisoners or detainees violates the right to life.
For example: A prisoner suffering from a serious illness is denied treatment by prison authorities.
Judicial Precedent: in the case of Rabia Bhuiyan, the Court held that state authorities must ensure adequate medical treatment for detainees.
Threats to Life Due to State Negligence:
Ground: If the State fails to take reasonable measures to protect life and safety, it may violate Article 32.
For example: Authorities ignore warnings about a dangerous building and it collapses causing deaths.
Judicial Approach: Bangladesh courts have interpreted Article 32 broadly, including protection of safe environment, health, and dignity.
Environmental Pollution Affecting Life:
Environmental pollution that seriously threatens public health or life can violate Article 32.
For example: A factory discharges toxic waste into a river causing severe health hazards to local residents.
Judicial Precedent: in the case of Mohiuddin Farooque, the Appellate Division expanded locus standi in public interest litigation, recognizing that environmental degradation affects the right to life under Article 32.
Threat to Life Due to Environmental or Public Health Hazard:
Ground: Any government action or inaction causing serious health hazards can violate Article 32.
For example: Unregulated brick kilns causing toxic air pollution.
Judicial Precedent: in the case of Mohiuddin Farooque, the Court recognized that a healthy environment is part of the right to life.
Conclusion:
A Writ Petition under Article 32 may be filed in the High Court Division when there is; 1) illegal arrest or detention, 2) custodial torture or death, 3) extra-judicial killing, 4) enforced disappearance, 5) inhuman prison conditions, 6) environmental pollution affecting life, 7) denial of medical treatment in custody, 8) state negligence endangering life, 9) illegal confinement or forced labour, or 10) Public health hazards. When these rights are violated by the Government, law-enforcing agencies, prison authorities, or any statutory authority, a person may file a Writ Petition before the High Court Division under Article 102 of the Constitution.
MD. KAMRUZZAMAN
Advocate
Supreme Court of Bangladesh
And
A Fundamental Rights Activist.