Bilkis Akhter Hossain Vs.

Government of
Bangladesh(HCD Judgment)
Facts:

In 1997 four BNP leaders were arrested and detained. Dr. Khandakar Musharraf Hossain was
one of them. He was detained, on the ground of delivering provocative speech, under the
Special Powers Act, 1974. He was alleged to be a leader of the terrorists and also a provocateur
and instigator of their terrorist acts.Mrs. Bilkis Akter Hossain, wife of Dr. Khandakar filed a writ
petition in the High Court Division against the detention under Article 102 of the Constitution,
claiming that his husband’s fundamental rights, namely Right to freedom of movement, Right to
life and Right to liberty have been violated.

Issues:

 Whether he was detained illegally with malafide intention.

 Whether the appellant was competent to ask for remedy to HCD invoking article 102 of
the constitution.

Contentions of the petitioner:

 Mr. Moudud Ahmed, the learned Advocate appearing for the petitioner, submits that
the order of detention was not served upon the detenu and as such the detention is
illegal.
 He submits that this order of detention dated 20.3.97 has no nexus at all with the
grounds of detention dated 28.3.97. In the order of detention dated 20.3.97 it is alleged
that in order to prevent the detenu from doing prejudicial activities in matter of law and
order situation it was necessary to detain the detenu for a period of 30 days. But the
grounds of detention show so many allegations including the allegation of sabotaging
the electricity tower at Pabna and also allegations of prejudicial activities in the
educational institutions and the mills and industries of the country.
 He submits, detenu's fundamental right of liberty, right to movement and right to speak
guaranteed under the Constitution as a citizen have been curtailed illegally; he was
depicted as a leader of the terrorists and instigator and provocator of the saboteurs in
the whole world causing irreparable damage to his name, fame, reputation, dignity,
honor, prestige, image and social status
 If the detenu was found in the occurrence, at least his name might come up in the F.I.R.
of the four police cases. Even, he had not been suspected in the aforesaid four criminal
cases. Mr. Moudud Ahmed submits that these four pending criminal cases started
against other persons cannot be the grounds for detention of the present detenu. So,
 the detention of the detenu can not be sustainable. Mr. Moudud Ahmed further
submits that mere pendency of a criminal case cannot be a ground for detention
 Mr. Moudud Ahmed submits that the detenu was a full Minister in previous BNP regime
and he is a political leader. Being a political leader he has got every democratic right to
criticize and deliver speeches against the activities of the Government. This is his
political, democratic and fundamental right and since this was a democratic right of the
detenu, he delivered speeches in the meeting held in front of the Press Club, but he
never induced or instigated his partymen and workers to cause damage to the cars,
vehicles, shops and other things and there is no iota of evidence to that effect.
 Constitution has given a mandate to the Court that this Court must be satisfied by the
detaining authority on the basis of the reasonableness of the materials on record that
the detention is not without jurisdiction or in an unlawful manner.
 Mr. Moudud Ahmed submits that since some of the grounds of the detention are
absolutely vague indefinite and unspecified, those are bad grounds and as such the
same cannot be the valid grounds of detention under the Special Powers Act He submits
that if bad grounds and good grounds are mixed together, it is not known which of the
grounds influenced the mind of the detaining authority then the entire detention will be
vitiated and the detention will be liable to be declared without lawful authority.
 There is no provision in the Act itself that if the grounds are vague and indefinite, the
detenu has right to seek further clarification from the detaining authority and on giving
representation the Government is bound to release him. Advisory Board can consider
the detention matter of the detenu within 170 days from the date of detention and
report to the Government. Such measures can never be termed as alternative and
efficacious remedy in the matter of curtailment of fundamental rights of liberty,
freedom of movement and freedom of speech guaranteed under the Constitution.

Contentions of the respondent:

 Learned Attorney General appearing for Respondent No 1 submits that this Writ Petition
is not maintainable as it is pre-mature in view of the fact that there is alternative
remedy of the detenu under the Special Powers Act which he should avail of first It is
the contention of the learned Attorney General that under Section 8 of the Special
Powers Act there is a provision for giving representation. since there is alternative
remedy in the Special Powers Act itself by making representation to the Government
against detention order and since there are provisions in the Act itself to produce the
detenu before the Advisory Board, the detenu is not competent to invoke the
jurisdiction of the High Court Division under Article 102 of Constitution.
 The grounds of detention that the detaining authority came to know that the detenu
had intention to destroy the electricity installations of the country and thereby he tried
 to damage the image of the Government and the economic condition of the country and
the detenu was indulging himself in doing such prejudicial activities.
 It was also argued that he supplied arms and money to the terrorists in the educational
institutions and thereby he is doing prejudicial activities as contemplated under the
Special Powers Act.

Judgment:

The court held that the detention was illegal and also held that there was a non-application of
mind in giving the detention order. And in this case along with three other similar petitions,
detention of four political leaders was held malafide and illegal. For the first time, the court
awarded compensation of one lakh taka to each detenues. The Court opined that to detain a
person without due adhering to due course of law is a violation of the fundamental rights
ensure by our constitution. And any citizen so aggrieved can, under Article 44 if read with 102,
come before the High Court to seek redress.

After considering facts and materials of the case the Court found out that the grounds of the
detention order was invalid, without lawful authority and politically motivated. During the
detention, the detenu suffered irreparable damage in his dignity and political image while also
suffering physically and emotionally.

Why court awarded monetary compensation while it was not prayed in the writ application:

Now a question may arise as to whether we, sitting in writ jurisdiction under Article 102 of the
Constitution, can award any monetary compensation to the aggrieved person. Under Article
102 of the Constitution Special Original Jurisdiction has been conferred to us. It is an original,
but not appellate or revisional jurisdiction conferred under Article 102 of the Constitution
conferring discretionary as well as extraordinary power to meet every situation where no other
alternative, adequate and efficacious remedy is available. Though there is no specific provision
for awarding cost and compensation under Article 102 of the Constitution, yet it is a long drawn
tradition, custom or discretion of the High Court Division that in every writ case this Court
always passes judgment either with cost or without cost. Since this Court exercises its Special
Original Jurisdiction and since this Court has got extraordinary and inherent jurisdiction to pass
any order as it deems fit and proper, we are of the view that this Court has the power to award
simple cost of the case as well as monetary compensation considering the facts and
circumstances of each case. Speaking about the power of the Court under Article 32 of the
Indian Constitution (which correspondents to our Article 44) the Supreme Court said that in
granting relief in a case of violation of fundamental rights the Court is not helpless and it should
be prepared to forge new tools and devise new remedies and, if necessary, to develop new
principles of liability for the purpose of vindicating those previous fundamental rights. In fact
the Indian Supreme Court did not rest merely giving declaration or direction: where the
situation demanded it granted exemplary costs and even damages for violation of fundamental
rights relating to life and personal liberty.

Government of Bangladesh and Ors. Vs. Nurul Amin

and Ors(A.D.)
Facts:

Issue:

 Whether High Court Division could pass judgments and orders awarding monetary
compensation to the victims of illegal detention.

Contentions of the petitioner:

 The learned Attorney-General appearing for the appellants that a Court exercising
jurisdiction under Article 102 of the Constitution cannot pass an order for payment of
compensation or compensatory cost as no such provision has been made in Article 102
of the Constitution and determination of such compensation is dependent on evidence
which is not taken in writ jurisdiction and that the High Court Division exercises writ
jurisdiction only on application of parties and the writ petitioners having not prayed for
compensation or compensatory cost in the writ petitions the High Court Division was
wrong in granting the relief of monetary compensation or compensatory cost without
such prayer.
 Mr.Murad Reza,learned additional attorney general,argued that the High Court Division
exercising jurisdiction under Article 102 of the Constitution is not competent to pass an
order for payment of compensation or compensatory cost as the constitution itself does
not authorise the Court to grant such compensation or compensatory cost and there is
no such provisions in Article 102 of the Constitution.
 The learned Additional Attorney-General finally submits that the High Court Division
having exercised jurisdiction upon application of the parties and the said parties having
not prayed for any cost or compensation the High Court Division erred in law awarding
compensation

Observations of the court:

 In view of foregoing observations and findings we are of the view that the
provisions of Article 102 read with Article 44(1) of the Constitution of the
People's Republic of Bangladesh are identical with those of the Article 32 of the
 Indian Constitution so far as those relate to the enforcement of fundamental
rights.
 There was no allegation of inhuman physical and mental torture of the detenues
in the writ petitions and the related affidavits. The High Court Division fully relied
on the submissions of the learned Senior Advocate for the writ petitioners and as
there was no such allegation the Respondent-Government had no opportunity to
refute the same allegations of physical and mental torture in jail custody.
 As no prayer was made regarding exemplary monetary costs or monetary
compensations in the writ petitions and related affidavits, the High Court Division erred
in law in fully relying on the submissions of the learned Senior Advocate for the writ
petitioners in passing the orders for monetary compensation or compensatory costs
and, as such, they said orders have been made without lawful authority and are liable to
be set aside."
 The High Court Division erred in law in awarding monetary compensation and
compensatory cost which cannot be passed unless it is specifically proved and
claimed in an appropriate case as stated above. The writ petitioner failed to
make out an appropriate case and, as such, the impugned decision of the High
Court Division in awarding a lump sum monitory compensation in each of these
cases must be held to have been made without lawful authority.

In the case of Hefzur Rahman (Md) vs. Shamsun Nahar Begum reported in 51 DLR (AD) 172, this
Court observed as follows:

 "The law requires that the relief must be specifically claimed either simply or in
the alternative

Judgment:

The HCD judgment was held as impugned by the AD for above mention reasons.

N.B. : The AD declined the impugned judgment as in the writ application there was no prayer of
monetary compensation.But AD did not decline the idea of public law compensation as remedy
of constitutional tort.