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"A PERUSAL OF SOME SIGNIFICANT AVERMENTS OF SUPREME COURT OF

BANGLADESH VIS-À-VIS ENVIRONMENTAL LAW"

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“A PERUSAL OF SOME SIGNIFICANT AVERMENTS OF
SUPREME COURT OF BANGLADESH VIS-À-VIS
ENVIRONMENTAL LAW”
Course Title: Environmental Law
Course Code: LLB 304

Mohammad Foysal
Roll-45, Third Year,
Department of Law, University of Dhaka
 Table of Contents

Contents Page no.

Prelude 2
Case No. 01: Human Rights and Peace for Bangladesh vs. Bangladesh and 2
Others.

Case No. 02: Dr. Mohiuddin Farooque Vs. Bangladesh and others 11

Case No. 03: Rabia Bhuiyan, MP Vs. Ministry of LGRD & others, 16

Case No. 04: Dr. Mohiuddin Farooque, Secretary General, Bangladesh 21

Environmental Lawyers Association (BELA) being dead Ms. Syeda Rizwana
Hasan, Director (Program), representing Bangladesh Environmental Lawyers
Association (BELA) Vs. Bangladesh and others
Case No. 05: Bangladesh Environmental Lawyers Association (BELA) Vs. 25
Government of Bangladesh

Epilogue 27

1
Prelude: “This we know- the earth does not belong to man- man belongs to the earth. This
we know. All things are connected like the blood which unites one family.”1 The idea that
human beings are a part of this earth, this environment and nature is seemingly a new
discourse in the legal arena and the care about environment has got primacy in the present
days. But this idea was not unknown to the Red Indian of Chief Seattle even more than 250
years back. The way the Red Indian treated environment is visualised the de facto Ecocentric
perception and it is very optimistic that our Supreme Court has pronounced various
judgement, wherein the protection of Environment gets primacy. Some of these judgements
having landmark signature are chronologically analyzed below.

Case No. 01: Human Rights and Peace for Bangladesh vs. Bangladesh and Others.
Citation: 7 CLR (HCD) (2019)
Amidst thousands of Anthropocentric Stance of Judiciary and Legislative, this bold stance of
our Supreme Court, to be more specific the High Court Division, to declare Turag River as a
Legal Entity is the biggest overhaul in the last few years. Needless to say, this recognition is
backed by the Ecocentric Approach of the Environmental Law realm, and this level of
judicial activism to protect the environment is very much expected from our highest court
i.e., the Supreme Court of Bangladesh. Before moving on to the analysis of the Court’s
findings, I would like to discuss some necessary nuts and bolts of the case.

Background Leading to the Contention:

Everything began in 2016 with an extensive article in the Daily Star about the deplorable
situation of the river Turag on the outskirts of the Dhaka agglomeration. This news item
disclosed that unauthorized land grabbers had illegally possessed the river Turag. Due to
severe river pollution and illegal land grabbing, people started to face health hazards and
several fatal diseases and, in the days to come, the rivers are at threat of being dried up.
In this backdrop, Human Rights and Peace for Bangladesh (HRPB), a Bangladeshi NGO,
lodged Writ Petition No. 13989 of 2016 before the High Court Division of the Supreme Court
of Bangladesh on November 7, 2016. This public interest litigation vide Article 102 of the
constitution attempted to contest the legality of earth-filling, encroachment, and the
construction of structures along the banks of the Turag River. The Secretary of the Ministry
of Shipping, the Chairman of the Bangladesh Inland Water Transport Authority, the Director
General of the Department of Environment, and the Deputy Commission of Gazipur, among
others, were the defendants in the case launched against the national government.

Issues so Mooted over:

The primary consideration of the case, for which the writ was filed, is whether the High
Court Division should declare the inaction of the respondents to protect the Turag River from

1
Speech of Chief Seattle, Si’ ahl (1786- June 7,1866)

2
illegal encroachments and earth filing illegal and without lawful jurisdiction and direct the
respondents to remove all earth filing and structures from the Turag River.

Nex to the preceding consideration, the pursuant issues are emanated;

1) Whether ‘the Doctrine of Public Trust’ is a part of our corpus juris?
2) Whether rivers can be attributed with legal personhood?
3) Whether the impugned acts, i.e., earth filing, encroachment, illegal construction
along the river banks, and pollution are violative of fundamental rights?
4) Whether the case is barred by res judicata?
5) Whether “the right to life” includes the right to a healthy environment?
It is pertinent to note that the Court gave primacy to the issue of the Doctrine of Public Trust.
Decision:
The Court, in its final verdict, furnished a total of 17 orders and among these orders, the
pivotal and contextual rulings are given below.
As to the doctrine of public trust-
The Court has opined that the Doctrine of Public Trust, which has been expounded, analyzed
and narrated in this case, is an integral part of the laws of our country.
As to the Legal Personality of Rivers-
Turag River is declared as legal person/legal entity/living entity. All rivers flowing inside and
through Bangladesh will also get the same status as legal persons or legal entities or living
entities.
As to Precautionary Principle and the Polluters’ Pay Principle-
The Precautionary Principle as well as the Polluters’ Pay Principle are hereby declared as part
of the laws of our country.
As to Persona in Loco Parenties-
The National River Conservation Commission (NRCC) is declared as the ‘Person in Loco
Parenties’ of all rivers of Bangladesh including River Turag for protection, conservation,
development by saving them from pollution and encroachment.
Apart from these rulings, there are several others left and those will be addressed along with
the present orders of the court in the analysis part.
Analysis of the Judgement

Into the Doctrine of Public Trust: As earlier observed, the Doctrine of Public Trust got
paramountcy in the instant case.2 The Court discussed the doctrine from the ground up. At the
very outset, the definition of the Public Trust Property was discussed and then, the historical

2
Human Rights and Peace for Bangladesh vs. Bangladesh and Others [2019] 7 CLR (HCD) [63]

3
evolution of the doctrine was explored. Thereafter, it was shown how the doctrine is being
used and incorporated in many countries and lastly, the Court proclaimed the doctrine as an
inevitable part of the laws of the country.
What the Public Trust Property refers to:
All properties vested in the state for the greater benefit of humankind are generally translated
to the term Public Trust Property.3 Nature, natural resources, biodiversity, all open wetlands,
sea, rivers, lakes, river banks, hills, forests and air are included in the public trust property.4
While discussing the term, the Court interestingly opines that all of these properties belong to
either all or none. Then, it clarifies a crucial point that it is not possible to furnish a
conclusive definition of the term, as many more things are to be included in the list of Public
Trust Properties in the ensuing days. It is needless to say that the Court categorically
mentioned that the state is a mere Trustee of these properties and it is the duty of the state to
protect, preserve and improve these properties.
Historical Evolution of the Doctrine
Roman Law and Public Trust Doctrine: The Public Trust Doctrine was introduced,
developed and thoroughly discussed in Roman Law for the very first time. The concept of
‘common properties’ (res communis) as found in the ancient Justinian Code of 530 A.D
where it was stated: “by the law of nature, these things are common to mankind – the air,
running water, the sea, and consequently the shores of the sea...” is considered as the origin of
the doctrine.5
English Common Law and Public Trust Doctrine:
The Court in this part referred to articles 16 and 33 of the Magna Carta and both of these
articles were held in English courts to provide protection from obstruction of all navigable
rivers, clearing the streams for the free passage of both people and fish. Thereafter, the Court
observed that this doctrine was a part of English Common Law, which, later on, was used in
many case laws.
Bangladesh and Public Trust Doctrine
Bangladesh; the first country to accommodate Public Trust Doctrine in the Constitution-
Interesting to note, it is vehemently proclaimed in this case that Bangladesh is the first-ever
country to enumerate the doctrine in her constitutional sphere. Behind such a claim, the Court
relied on Article 21 of the Constitution, which states that it is the duty of every citizen to
observe the Constitution and the laws, to maintain discipline, to perform public duties and to
protect public property. The Court centered its reasoning based on the phrase “to protect
public property’’ and said that the protection of public property, in ordinary parlance, implies
the protection of public trust property.

3
Human Rights and Peace for Bangladesh vs. Bangladesh and Others [2019] 7 CLR (HCD) [63]
4
ibid
5
Human Rights and Peace for Bangladesh vs. Bangladesh and Others [2019] 7 CLR (HCD) [67-68]

4
Theological Explanation—
Since the core concern of the case was in regard to water, that is, the Turag River, the Court
furnished a theological explanation in terms of the importance of water as mandated in the
Holy Quran. The following Quranic verse is provided in this case as a modicum to perceive
the importance of water, i.e., public trust property.
َ‫ض َكانَتَا َر ۡت ٗقا فَفَت َۡق ٰنَهُ َم ۖا َو َج َع ۡلنَا ِمنَ ۡٱل َمٓا ِء ُك َّل َش ۡي ٍء َح ۚ ٍّي َأفَاَل ي ُۡؤ ِمنُون‬
َ ‫ت َوٱَأۡل ۡر‬
ِ ‫َأ َولَمۡ يَ َر ٱلَّ ِذينَ َكفَر ُٓو ْا َأ َّن ٱل َّس ٰ َم ٰ َو‬
Do not the Unbelievers see that the heavens and the earth were joined together (as one unit of
creation), before we clove them asunder? We made from water every living thing. Will they
not then believe? (21:30 Quran)6
Nature, Environment, Public Trust Doctrine:
It is frustrating that International Laws as well as Domestic Laws have an anthropocentric
bias and hardly, any attempt is traced, wherein the environment is considered as a discrete
self and people pay heed to nature excluding the utilitarian scheme of human beings. This
judgment is an exception to the scheme and it has created a new dimension by taking
recourse to an eco-centric approach.
The Court has, in para 142 of its judgement, observed that the law of nature is the most
supreme law and anything repugnant to this shall stand void. Next to this, a
thought-provoking statement was delivered by the court, which says that nature has no
obligation to abide by manmade laws, perhaps it is human beings, who are obliged to observe
all laws of nature.7 Furthermore, the Court has taken note of the fact that we, the human race,
are not showering mercy upon nature by recognizing its rights, rather we are protecting
ourselves.
Lastly, the Court remarked that the state is a mere trustee of the public trust properties, that
are, environment, natural resources, biodiversity, sea, rivers, mountains, forests, wildlife and
so on and on the other hand, people are the beneficiary.8
Constitutional Enumeration of the Doctrine:
In 2011, a newly inserted article, Article 18A, is referred to in this judgement and thereby the
Court concluded that the doctrine of public trust is constitutionally enumerated in our
country. This article opens with a title stating Protection and improvement of environment
and biodiversity and mandates that the State shall endeavour to protect and improve the
environment and to preserve and safeguard the natural resources, bio-diversity, wetlands,
forests and wild life for the present and future citizens.
Finding of the Court as to the Public Trust Doctrine and our Corpus Juris:
As already observed, the Court was of the opinion that the doctrine of public trust is an
integral part of our law. This decision of the court is a great titbit for the environment and it
widens the scope of environmental protection.

6
Human Rights and Peace for Bangladesh vs. Bangladesh and Others [2019] 7 CLR (HCD) [101]
7
Human Rights and Peace for Bangladesh vs. Bangladesh and Others [2019] 7 CLR (HCD) [147]
8
Human Rights and Peace for Bangladesh vs. Bangladesh and Others [2019] 7 CLR (HCD) [153]

5
 Environment and Sustainable Development
The moot question of environmental law, whether it is environment versus development or
environment and development, is one that will never cease, but the idea of sustainable
development is an apparent solution to this contention.
As observed in the case, the principle of sustainable development postulates the development
that meets the need of the present without compromising the ability of future generations to
meet their own needs and the development should be without harming the environment.
While discussing the principle, the Court cited the Stockholm Declaration of 1972, the Rio
Declaration on Environment and Development of 1992 and the report of WCED9 titled
“Our Common Future”.
Amid a total of 26 principles of the Stockholm Declaration, I would like to refer to the most
pertinent principles vis-à-vis the principle of Sustainable Development, although the Court
has brought the whole declaration. Principle 1 of the said declaration declares that “man has
the fundamental right to freedom, equality and adequate conditions of life, in an environment
of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility
to protect and improve the environment for present and future generations.” Again,
Principle 2 mandates that the natural resources of the earth, including the air, water, land,
flora and fauna and especially representative samples of natural ecosystems, must be
safeguarded for the benefit of present and future generations through careful planning or
management, as appropriate.
In the Rio Declaration, principles 1,3 and 4 are pertinent apropos herein. Principle 1 speaks,
“Human beings are at the center of concerns for sustainable development. They are entitled
to a healthy and productive life in harmony with nature. Furthermore, PRINCIPLE 3 states
that the right to development must be fulfilled so as to equitably meet the developmental and
environmental needs of present and future generations. PRINCIPLE 4 says that in order to
achieve sustainable development, environmental protection shall constitute an integral part
of the development process and cannot be considered in isolation from it.
Lastly, the Court cited Article 27 of the WCED’s report titled ‘Our Common Future’, which
also speaks of sustainable development.
The Precautionary Principle:
The Court observed that it is imperative on the part of the state to apply the precautionary
principle in the protection of natural properties and to undertake development projects in
compliance with the principle. In this regard, Principle 15 of the Rio Declaration was brought
up and the article transpires that “in order to protect the environment, the precautionary
approach shall be widely applied by States according to their capabilities.”

Polluter’s Pay Principle:

9
WCED stands for the World Commission on Environment and Development and it is an initiative of the United
Nations.

6
A question was posed before the Court that who compensate for the widescale pollution and
grabbing so caused to the Turag River. The Court opined that those individuals, institutions or
organizations, who pollute the river and grab the same, shall be liable to compensate to
restore the river in situ. The Principle 16 of the Rio Declaration also incorporates the
principle and it says that the polluter should in principle bear the cost of pollution with due
regard to the public interest.

Fundamental Rights and the Public Trust Property:

It is action-packed that the Court interpreted articles 18A,21,31 and 32 to introduce the idea
that the public trust properties are the basis of fundamental rights and anything detrimental to
these properties is violative of articles 31 and 32 of the Constitution.
At the outset, the phrase public property so mentioned in article 21 is translated into public
trust property. Thereafter, referring to article 18A, the Court averred that environment, natural
resources, biodiversity, sea, rivers, mountains, forests, wildlife, wetlands and so on
constitutionally belong to the public at large and these should be preserved and safeguarded
for the present and future citizens of the Republic. As the Court said, in view of both articles
21 and 18A, it is the duty of both the citizens of the Republic and every person in the service
of the Republic to protect public property (public trust property). Also, article 31 affords the
equal protection law and in pursuance of this article, no harm can be caused to anyone’s
property including the public trust property.

Invoking writ jurisdiction:

In our Constitutional Jurisdiction, the High Court Division has special writ jurisdiction vide
article 102. Article 102 has two clauses and both clauses offer the writ jurisdiction. Article
102(1) is devised to protect fundamental rights and to attract the article, the violation of
fundamental rights is sine qua non. On the other hand, Article 102(2) can be invoked even
when the law is violated and not fundamental rights.
In para 177, the Court pointed out that if any detrimental act is done in connection with the
public trust property or people are deprived of the same, a writ can be filed vide article 102(2)
of the Constitution and the right to invoke this right jurisdiction is protected under article 44
of the Constitution.
Mushrooming the Right to Life:
The right to life, as it travels around the globe, is an ever-expanding notion and the Court has
interpreted it in terms of environmental law. In our Constitution, Article 32 enumerates the
right to life. The term life, in the panorama of environmental law, is wide enough to include
the environment within its ambit. In this connection, the Court brings up Principle 1 of the
Stockholm Declaration, which states that “Man has the fundamental right to freedom,
equality and adequate conditions of life; in an environment of a quality that permits a life of
dignity and well-being.” In view of the principle, it is lucid enough to conclude that life and

7
environment are an integral part of one another and the meaning of the term is so wide that it
goes beyond the literal meaning of the term, i.e., body and soul. The Court, thus, opined that
any step to destroy public trust property is violative of article 32 and the same article
furnishes the right to live in a healthy and sound environment.10

The Endorsement of Certain Principles:

Both the Precautionary Principle and the Polluter’s Pay Principle have been declared as part
of our laws. And both are seen to be enumerated in several laws of the Republic.

Attribution of the Legal Personhood as well as Living Entity to the Rivers:

The salient feature of the judgment is the declaration of the Turag River as a distinct legal
entity and the expansion of the same status to all other rivers, which are hundreds in number.
In the following discussion, this striking feature is detailed.
Global Treatment-
In the year of 2016, the Columbian Constitutional Court, for the first time in world history,
declared Atrato River as an autonomous entity paying due regard to the culture and
traditions of Choco Province. Pertinent to take note, the Canadian Constitutional Court
declared it based on an ecocentric approach. Following an ecocentric approach, the Canadian
Court started from a basic premise: the earth does not belong to man but, on the contrary,
man and all other species belong to the earth. This view sees nature as a real subject of
rights that have to be recognized by the States and exercised under the supervision of its legal
representatives, e. g. the communities who live in it or the communities who have a special
relationship with it.

Nex to the Columbian Constitutional Court, the Indian High Court of Uttarakhand state
declared the Rivers Ganga and Yamuna, all their tributaries, streams, and every natural
water flowing with flow continuously or intermittently of these rivers as juristic/ legal
persons/ living entities having the status of a legal person with all corresponding rights,
duties and liabilities of a living person in order to preserve and conserve river Ganga and
Yamuna.
Furthermore, the first and alone legislature to declare a river as a legal entity in the history of
the human race is the Parliament of New Zealand, which promulgated the Te-Awa Tupua
(Whanganui River Claims Settlement) Act, 2017.

10
Human Rights and Peace for Bangladesh vs. Bangladesh and Others [2019] 7 CLR (HCD) [187]

8
Why it is ineluctable to declare the Turag River as Living Entity:
‘Special measure in the special circumstance’ was the motto of the Court while declaring
so. The dire situation of the Turag River so caused by intensive pollution and encroachment
leads the river to dry up and if it is not declared as legal person, the river cannot be saved
anyhow. The socio-economic, as well as cultural importance of the river, demands the status.
Furthermore, the freshwater of the Turag River, shipping, scenic beauty of the river, pollution
control of the river and protection of the same are protected by the Constitution, statutory
laws and the Public Trust Doctrine.

Pinning the Status on the Rivers:

In the pursuant language, the Court declares;
“Turag River is hereby declared as legal person/ legal entity/ living entity and all other
rivers flowing in and through Bangladesh will have a similar status,”

Personal Observation:
Historic as it might be, the judgement is not devoid of criticism. In many respects, I find it
cryptic and not up to par. Both pros and cons of this judgement are discussed below.
As to the size of the judgement-
The judgement is 283 pages long. In my opinion, it could be of lesser pages than that of the
present, as I find many unnecessary issues therein. I would like to refer Hasan Foez Siddique
CJ, who in a criminal appeal11 of 2021, opined that brevity, simplicity and clarity are the
hallmarks of the good judgement. He further pointed out that a succinct or concise judgement
in their context must not be too brief. It should not certainly be too long. It should therefore
be of average length. This involves covering all required contents of a good judgment in
summary.12
In India in 2017, a High Court accorded two rivers, the Ganges and the Yamuna, the status of
legal persons. That ruling, however, did not take force. The reason was that a state
government asked what would happen if someone sued a river for compensation after
flooding. Quite obviously, a river cannot pay.
In theory, the same question could arise in Bangladesh too. Other issues remain unresolved as
well. A river may be given rights, but it cannot go to court after suffering harm. Yes, rivers
must have the right to exist, flow and not be polluted – but human beings must do the work.

11
Chairman, Anti-Corruption Commission Vs. Omar Faruk and Others [2021], Lex/BDAD/0012/2021
12
Ibid

9
Political Contour-
Too much political bragging leads me to draw a conclusion that the judgment, in various
respects, is political storytelling. Hyperbolization of political achievements and observing
legislative enactments as partisan success make me fear of the Higher Judiciary. The
panegyrics of individuals, institutions, organizations and even political leaders are not
unwanted, but what is expected on the part of the judiciary is not to furnish an idea that the
judges are turned into partisan folk and sadly, I have had the same apprehension after going
through the judgement.
Use of International Environmental Laws-
Domestic laws on the environment, in most of the countries, are not satisfactory and there is
always a vacuum in the legal arena. This case has exhaustively cited a wide variety of
International Environmental Laws and Principles too and interpreted many of our domestic
enactments in consonance with these laws and principles. It is obvious that the Court has
created a new dimension in the sphere of environmental adjudication.
Judicial Activism:
As already observed in the prelude, it is, indeed, judicial activism to award the rivers with
legal personhood. The effective approach to nature protection is to expand the scope of the
state’s respective statutory and constitutional duties. The Supreme Court took steps in that
direction but could have done more. Considering rivers as persons is beautiful, but ultimately
just symbolism. The sad truth is that many water bodies in Bangladesh, including the Turag,
are still in a rather depressing state.

Constitutional Borrowing:
In this era of constitutionalism, constitutional borrowing becomes inevitable in the Global
Constitutional Gene Poole. The transmigration of constitutional ideas is a common
phenomenon these days. The crux of this judgement i.e., attribution of legal personhood is an
emanation of this transmigration of ideas. The Court has borrowed the idea from the
Columbian Constitutional Court and also relied on the rulings of the Indian Court and the
statutory enactment of the Parliament of New Zealand.
Concluding Remarks:
Many things are done and many more to do for the protection of the river, broadly speaking
for the protection of the environment. The proactive role of the Court can bring change and
make this world as inhabitable as the past.

10
 Case No. 02: Dr. Mohiuddin Farooque Vs. Bangladesh and others
Citation: 1997 17 BLD (AD) 1/ 49 DLR (AD) 1997 1
It is a matter of great pride for Environmental Law enthusiasts that the initiation of Public
Interest Litigation was, in fact, the Public Interest Environmental Litigation and the
revolution happened in the instant case. From the Environmental Law landscape, this case
has wide implications and impacts and it is a worthy note to state that the present case, inter
alia, is a quantum leap in the arena of Judicial Activism vis-à-vis environmental concerns as
well as constitutional issues. A critical study of the case is provided below alongside all of
the ins and outs.
Facts in brief:
Dr. Mohiuddin Farooque, Secretary General, Bangladesh Environmental Lawyers
Association, shortly BELA, filed the writ petition both under Article 102(1) and Article
102(2)(a) of the Constitution praying for issuance of a Rule Nisi upon the respondents to
show cause as to why all the activities and implementation of FAP -20 undertaken in the
District of Tangail should not be declared to have been taken without lawful authority and to
be of no legal effect.
The cause which the appellant espoused in the writ petition is the environmental ill-effect of a
Flood Action Plan, briefly, FAP-20, affecting the life, property, livelihood, vocation and
environmental security of more than a million people in the district of Tangail.

Issues Raised in the Case:

The moot question pressed into service was whether the appellant was an aggrieved person,
although the cause so espoused by him was not directly related to him.
Submissions of the Parties:
Arguments of the Appellant:
1. The words "any person aggrieved" occurring in Article 102 of the Constitution have to be
read in the context of the entire Constitution, not isolatedly. Article 102 is an institutional
vehicle for ventilating the rights and duties under the Constitution and not a mere procedural
device.
2. An association of lawyers dedicated to the protection of a healthy environment has a
concern when it perceives and studies an environmental hazard which calls for the prevention
of rectification. As a concerned group, it is very much a "person aggrieved" and it must have
an opportunity to put its concern at rest by approaching the Court for redress. The denial of
locus standi to such a group will be not only an unconstitutional bar to the performance of
public duty but also a judicial condemnation of the association's dedicated efforts to perform
its public duty.
3. Dr. Farooque quotes from the Bar Council Rules of Professional Etiquette for Lawyers and
submits that the lawyers in general and the present association of lawyers, in particular, are
committed to realise the rule of law in the country through Law Courts. The Preamble gives

11
the association a standing. The Preamble and Article 8 also proclaim "the principles of
absolute trust and faith in the Almighty Allah" as a Fundamental principle of the Constitution
and as a fundamental Principle of State Policy.13 Absolute trust and faith in the Almighty
Allah necessarily mean the duty to protect His creation and environment. The appellant is
aggrieved because Allah's creations and environment are in mortal danger of extinction
and degradation.
4. Dr. Farooque also submits that the beneficiaries of this writ petition are not the members of
BELA but the people, including the generation yet to be born for whom the present
generation holds the environment as an inter-generational trust. BELA, therefore, represents
not only the present generation but also the generation yet unborn. Every generation has a
responsibility to the next to preserve that rhythm and harmony that their inherited
environment bequeathed to them. BELA's performance of their obligation is therefore for
insurance of the protection of the right for the generation to come.

Arguments of the Respondent:

1. Mr. A.W. Bhuiyan, learned Additional Attorney General appearing on behalf of
Government-respondent Nos. 1, 5 and 6 dourly maintains his submission that the appellant is
not a person aggrieved. His submission echoes the traditional view of locus standi which
found the first classical exposition in the hands of James, L.J. in Ex parte Sidebotham
(1880) 14 Ch.D. 458, defining "person aggrieved" as one "who has suffered a legal
grievance, a man against whom a decision has been pronounced which has wrongly deprived
him of something or wrongly refused him something or wrongly affected his title to
something", a definition which was approved by Lord Esher, M.R. in Re Reed Bowen and
Co. (1887) 19 QBD 174 and repeated in numerous cases thereafter including the case of
Durayappah Vs. Fernando, (1967) 2AC337
2. BELA as a registered Association, he submits, has the right to pursue its aims and objects
through seminars, discussions etc., but it cannot maintain a writ petition unless its own
interests are affected. The writ petition does not disclose that the appellant as an association
has suffered any injury by FAP - 20 activities.
3. The words "any person aggrieved", if interpreted in the manner urged by the appellant, will
be nothing short of legislation and an impermissible re-writing of the Constitution by
the Court, he submits.
4. Mr. Tofailur Rahman, learned Advocate appearing for respondent Nos. 2-4, adopts the
arguments of the learned Additional Attorney General and submits additionally that a
liberalization of locus standi will open the floodgates to litigation which is least
desirable.

Finding of the Court:

13
It is incumbent to note that the referred article and the portion of the preamble are no more in the existing
Constitution. These have been struck out from the Constitution in 2011.

12
The Court held that the association-appellant was wrongly held by the High Court Division
not to be a "person aggrieved" in the facts and circumstances of the case and we hold further
that the appellant is "any person aggrieved" within the meaning of both Article 102(1) and
Article 102(2)(a) of the Constitution.

Analysis of the Verdict

Liberalization Agenda of Locus Standi:
The liberalization of locus standi is the mainstay of the instant case. Although Justice
Mustafa Kamal was the author judge, among four other judges, three judges also discussed
the issue. As I find the explanation of the other three judges somewhat similar to Justice
Mustafa Kamal’s reasoning, my analysis will mostly be premised upon the findings of Justice
Mustafa Kamal.
Findings of Justice Mustafa Kamal:
A new modus operandi of interpreting the Constitution is traced therein and the
accommodation of this methodology in our constitutional jurisdiction is the outcome of the
bravery of Justice Mustafa Kamal. Now, a pertinent question might arise as to what was
introduced by Justice M. Kamal.
The answer is of two words, but the implication goes deep enough. It is the Holistic
Interpretation of the Constitution, which was homed by him. Holistic Interpretation, in
ordinary parlance, connotes that the interpretation of a provision of any law must not be in
isolation, but as a whole considering the whole law together.
In the present case, Justice Mustafa Kamal liberalized the locus standi, i.e., the term
“aggrieved person” based on the said Holistic Interpretation. He opined, “We now proceed to
say how we interpret Article 102 as a whole. We do not give much importance to the
dictionary meaning or punctuation of the words "any person aggrieved". Article 102 of our
Constitution is not an isolated island standing above or beyond the sea-level of the other
provisions of the Constitution. It is a part of the over-all scheme, objectives and purposes of
the Constitution.”14 Thereafter, he furnished five pillars of this holistic interpretation of the
constitution and these pillars are as follows; (i) emergence of Bangladesh and framing of
its Constitution, (ii) the Preamble and Article 7, (iii) Fundamental Principles of State
Policy, (iv) Fundamental Rights and (v) the other provisions of the Constitution.

Findings of Justice B.B. Roy Choudhury:

The famous doctrine of ‘Heart-bleeds’ was discussed in the Judgment of Justice Roy and the
expansion of the term “any person aggrieved” was premised upon this doctrine. In his
language, “the inescapable conclusion, therefore, is that the expression "person
aggrieved" means not only any person who is personally aggrieved but also one whose

14
Dr. Mohiuddin Farooque Vs. Bangladesh and others [1997] 49 DLR (AD) [38]

13
heart bleeds for his less fortunate fellow-beings for a wrong done by the Government or a
local authority in not fulfilling its constitutional or statutory obligations.” 15

Initiation of Public Interest Litigation:

The inception of the PIL in Bangladesh was, in fact, the beginning of Public Interest
Environmental Litigation (PIEL). This case paved the way of Public Interest Litigation in our
constitutional jurisdiction and brought the idea of PIL under the elastic term “any person
aggrieved”. This is a landmark decision since previously, there was an absence of a provision
in the environmental legal framework for allowing third parties to approach the court unless
they were directly affected by such environmental problems. And not only the environmental
problems, any other acts violating the rights of public at large are also rendered litigable
through PIL.

Recognition of ‘Right to Environment’:

Hardly can there be found any right vis-à-vis environment either in the constitutional text or
in the judicial pronouncements. This case, for the first time, recognized the right to
environment and provided the scope of lodging a writ petition. Any encroachment to
fundamental rights including right to healthy environment is made herein amenable to
judicial scrutiny under Article 102 of the Bangladesh Constitution. In this context, the
observation made by A.T.M. Afzal, CJ(then) is pertinent: he opined, “in this context of
engaging concern for the conservation of environment, irrespective of the locality where it
is threatened, I am of the view that a national organization like the appellant, which claims
to have studied and made research on disputed project, can and should be attributed a
threshold standing as having sufficient interest in the matter, and thereby regarded as a
person aggrieved to maintain the writ petition subject to the objection or objections as may
be raised by the respondents if a Rule is issued ultimately.”16

Protection of Environment in nexus with Fundamental Rights:

No environmental concerns had been afforded constitutional protection before the averment
of this judgement. Justice B.B. Roy interpreting articles 31 and 32, i.e., the right to life
accommodated the provisions regarding environmental protection and preservation. In his
language, “Although we do not have any provision like article 48-A of the Indian
Constitution for protection and improvement of environment, articles 31 and 32 of our
Constitution protect right to life as fundamental right. It encompasses within its ambit, the
protection and preservation of environment, ecological balance free from pollution of air
and water, sanitation without which life can hardly be enjoyed. Any act or omission
contrary thereto will be violative of the said right to life.”17

15
Dr. Mohiuddin Farooque Vs. Bangladesh and others [1997] 49 DLR (AD) [92]

16
Dr. Mohiuddin Farooque Vs. Bangladesh and others [1997] 49 DLR (AD) [16]
17
Dr. Mohiuddin Farooque Vs. Bangladesh and others [1997] 49 DLR (AD) [97]

14
Showing Concern as to Ecological Disaster:
It is opined that environment and ecology is a matter of universal concern. As to ecological
disaster and environmental deterioration, the statement of Secretary General, UNCED, at the
opening of the Earth Summit at Rio de Janerio, Brazil was cited and it states that, “The World
Commission on Environment and Development in its landmark report, "Our Common
future', made it clear that the environment, natural resources and life-support systems of
our planet have continued to deteriorate, while global risks like those of climate change
and ozone depletion have become more immediate and acute. Yet all the environmental
deterioration and risks we have experienced to date have occurred at levels of population
and human activity that are much less than they will be in the period ahead. And the
underlying conditions that have produced this dilemma remain as dominant driving forces
that are shaping our future and threatening our survival.”
Use of International Environmental Law:
A.T.M. Afzal, CJ (then) premised his core explanation as to the award of standing to the
BELA on the principles of RIO DECLARATION. He cited two principles respectively,
principle 3 and principle 10 from the Rio Declaration on Environment and Development.
Principle 3: The right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future generations.
Principle 10: Environmental issues are best handled with the participation of all concerned
citizens, at the relevant level. At the national level, each individual shall have appropriate
access to information concerning the environment that is held by public authorities, including
information on hazardous materials and activities in their communities, and the opportunity
to participate in decision-making processes. States shall facilitate and encourage public
awareness and participation by making information widely available. Effective access to
judicial and administrative proceeding, including redress and remedy, shall be provided.
Citing these two principles, he opined that Principle 10 seemed to be the theoretical
foundation for all that have been vindicated in the writ petition and also provided a ground
for standing.
This direction use of International Law without domestication of the referred law is
undoubtedly a bold move our apex court for the application of International Environmental
Law.
Emphasis on the Hygienic Environment:
The Court in this judgement stressed on the importance of hygienic environment. At the very
outset, the AD referred an Indian Case named Virender Gaur vs. State of Haryana, 1995 and
observed that “the word 'environment' is of broad spectrum which brings within its ambit
"hygienic atmosphere and ecological balance".18 After that, it is observed that “it is
therefore not only the duty of the State but also the duty of every citizen to maintain hygienic
18
Dr. Mohiuddin Farooque Vs. Bangladesh and others [1997] 49 DLR (AD) [96]

15
environment. The State, in particular has duty in that behalf and to shed its extravagant
unbridled sovereign power and to forge in its policy to maintain ecological balance and
hygienic environment.”19

Personal Observation:
As to the liberalization of the locus standi: There remains no room for doubt that this
judgment is a breakthrough in regard of PIL. Surely, the Constitutional jurisdiction of this
land has benefited in many occasions due to this liberalization. Speaking about the
environmental concerns, almost all of the environmental litigations are an outcome of Public
Interest Environmental Litigation.
As to Intergenerational Equity: The Doctrine of Intergenerational Equity is a dominant
concept in the arena of Environmental Law. The submission of Dr. Mohiuddin Farooque
urged to invoke this doctrine, but it is a matter of sorrow that Justice Mustafa Kamal
categorically said that there is no direct mention of intergenerational equity in our
constitution. I find this portion of judgement in the opposite side of the debates of the
Constituent Assembly. Both Dr. Kamal, the father of our constitution, and Tajuddin Ahmed,
the first prime minister of Bangladesh, opined in the Constituent Assembly that this
Constitution was drafted not only for the present generations but also for the generations to
come. This idea of the constituent assembly is nothing sort of the incorporation of the
doctrine of Intergenerational Equity.
As to Recognition of the Right to Environment: Before this judgement, there was no
recognized right to the environment. This case, for the very first time, incorporated this right
by expanding the notion of right to life so enumerated vide articles 31 and 32. In lineup with
this ruling, the Parliament inserted a new article, i.e., article 18A recognizing the right to
environment, but the same is non-justiciable. Furthermore, many subsequent decisions held
that the right to life also includes the right to a healthy environment.
Concluding Remarks: This single judgement has shaped the entire constitutional
jurisdiction and it is a must say that this judgment is one of the best judgements in the history
of our constitutional journey and has manifold implications and significance for
constitutional as well environmental law. I hope to see many more such quantum leaps from
the Supreme Court of Bangladesh.

Case No. 03: Rabia Bhuiyan, MP Vs. Ministry of LGRD & others
Citation: 5ADC (2008)01, 59 DLR(AD) (2007) 176
While one division of the Supreme Court took a judicial self-restraint regarding a writ
petition lodged due to soaring arsenic contamination and government’s failure to move
forward with proper steps, the other division i.e., the Appellate Division reversed the
previous judgement and stressed upon the state’s obligation to ensure pure and arsenic free
water. The stance of the Appellate Division is noteworthy, as it elaborately discussed how the

19
Ibid

16
state is duty bound to provide with arsenic free water and take appropriate measures. The
right to life was furthermore held to include the preservation of the natural environment, thus
going beyond the government’s obligation to ensure hygienic standards. A detail analysis of
this judgement along with my personal observation is given below.

Background of the Case: The present appeal was directed against a judgment passed by the
High Court Division rejecting the writ petition summarily. The appellant filed the above writ
petition in public interest, impugning the continued failure by the Government and other
public authorities, in particular the respondent No. 1, to comply with their legal duties under
the existing laws including the Environment Conservation Act 1995 and the Environment
Conservation Rules 1997 in taking action, inter alia, to seal tube-wells contaminated with
arsenic and to test water quality and to ensure that the contents of arsenic in the ground
water did not exceed a particular quantity as noted in the Environment Conservation Rules
1997.

Findings of the High Court Division:

The High Court Division though recognised that there is a horrible picture of arsenic
contamination but nevertheless, rejected the writ petition in limine holding that the
petitioner had failed to show that there was any 'law or rule to allow for sealing' and further
noting, that the government is very much aware of this arsenic hazard in the country and they
are taking steps in the matter.

Analysis of the Judgement:

The Error Committed by the HCD: The focal point of this appeal whether the High Court
Division has committed any error of law considering the writ petition in question. The
Appellate Division found that the HCD committed errors in two specific points. These are as
follows;
1) In terms of section 4 of the Environment Conservation Act, 1995 and the Rules
framed thereunder the respondents could be prohibited from sinking tubewells
without testing arsenic contents; in view of the admitted fact that tubewells are
already identified as contaminated with arsenic contents the respondents are under
legal duty to completely seal up the contaminated tubewells to save the lives of
millions and such inaction on the part of the respondents is violative of fundamental
right guaranteed under the Constitution; and
2) the High Court Division also fell in error in not appreciating that the claim of the
appellant is based on Articles 15(a), 18(1), 31 and 32 of the Constitution in breach of
which the respondents are allowing the members of the public to continue to drink
water contaminated with arsenic contents.20

20
Rabia Bhuiyan, MP Vs. Ministry of LGRD & others [2007] 59 DLR(AD) 176 [4]

17
 The AD’s findings as to the High Court Division’s errors have special significance for
environmental law enthusiasts. The present two points will elaborately be discussed in the
following portion.

Horrible Picture of Arsenic Pollution: The present contention was premised upon the
unprecedented arsenic pollution and government’s failure to take necessary steps in this
matter. The shocking scenario of arsenic pollution was aptly summed up in this case. As
stated in the case, from the contents of the "Assignment Report" prepared in December 1996
by Prof. JM Dave, short-term consultant of WHO, which forms part of Annexure-B to the
writ petition and may be seen at page 71 of the paper book of this appeal, it appears that all
districts adjoining the West Bengal border, except for a few in the northern area are affected
and Panchagarh; Nawabganj; Rajshahi; Kushtia; Meherpur; Chuadanga; Satkhira;
Narayanganj; Faridpur; Pabna and Bagerhat Districts were found to have a serious problem
due to high arsenic concentration in drinking water of up to 1.75 mg/1 and population of
about 23 million is at risk due to the consumption of arsenic contaminated water. In the year
1998 it was estimated by WHO that some 23 million individuals in Bangladesh were at risk
of arsenicosis but as it appears from the papers annexed in the writ petition, by 2004, that is
in a further six years, the above figure had jumped to 30 million persons at risk.

Duties on the Shoulder of the Government vis-à-vis Vexed Arsenic Contamination:

The moot question of the appeal was whether the govt. awes any responsibility on their part
to take some affirmative action in order to prevent arsenic contamination and consumption
arsenic polluted water. The Appellate Division to answer this mostly pressed question into
the service has taken recourse of various acts, policies, projects and so on. Discussion on the
preceding acts, policies, whatsoever referred in the judgement, is presented below under
respective sub-headings.
The National Arsenic Mitigation Policy 2004:
Policy no. 3 of this policy speaks about access to safe water for drinking and cooking and it
mandates to ensure the said access through implementation of alternative water supply
options in all arsenic affected areas. Furthermore, policy no. 5.1 enumerates provisions of
public awareness about alternative arsenic free safe water sources and mitigation options.
Also, policy no. 5.2 mandates to Follow the Bangladesh Standards for drinking water as
defined in 'Environmental Conservation Act 1995 and Rules 1997, Schedule-3'.
The Implementation Plan for Arsenic Mitigation 2004: It provides as follows: -
3.3.1 Emergency response; The government shall focus on ensuring at least one safe source
of drinking water within a reasonable distance on an emergency basis. This shall be termed as
"Emergency Water Supply Programme in Severely Arsenic Affected Areas".
Plan no. 6 of the plan states that ground water is a national resource and a suitable Ground
Water Act should be enacted to control all activities regarding ground water, exploration,
extraction and management.

18
The Paurashava Ordinance 1977: It also appears that duties were imposed under existing
laws on public authorities to take steps to seal arsenic contaminated tubewells and to provide
for safe water supply. The local government bodies namely, Paurashavas and Union
Parishads, have specific legal obligations to provide clean water supplies to the community.
Under The Paurashava Ordinance 1977, all Paurashavas are responsible for providing safe
water and promoting public health (sections 70, 73 and 74); the control, regulation and
inspection of private sources of water supply (section 74(3)(c)) and taking measures to
prevent the use of such water for drinking if it is unfit for consumption.

The Local Government (Union Parishad) Ordinance 1983:

Under the Local Government (Union Parishad) Ordinance 1983, all Union Parishads are
required; to carry out functions for the provision and maintenance of well, water pumps,
tanks, ponds and other works for the supply of water (First Schedule Part 1 item (16); to
adopt measures for preventing the contamination of the source of water supply for drinking
(First Schedule Part 1, item (17) to prohibit the use of water of wells, ponds and other sources
of water-supply suspected to be dangerous to public health item (18) and to take any other
measures likely to promote the welfare, health, safety of the inhabitants of the union or
visitors (item 38).
The Environmental Conservation Act 1995 and the Environment Conservation Rules
1997:
The responsibilities of the Government for the supply of clean and safe water to communities
are clearly set out in a number of laws including the Environmental Conservation Act 1995
and the Environment Conservation Rules 1997 which provide, inter alia:
1) the Department of Environment is to take measures and to give necessary directions
to any person to conduct drinking water quality surveillance programmes and submit
report and advise or, in appropriate cases, direct, every person to follow the standard
of drinking water (Section 4(2)(h), Act)
2) for such a direction to provide for the closure, prohibition or regulation of
'any......process', subject to certain procedures, provided that the DG may, in cases of
urgency, instantly give necessary direction, if it appears that public life is about to be
disrupted due to environmental pollution (Section 4(3) Act);
3) for receiving information on application by persons affected from the pollution or
degradation of the environment for remedying the damage and adopting any measures
including holding public hearings for setting an application under this section (section
8 Act); - for seizing any equipment if he had reason to believe that it may furnish
evidence of the commission of an offence under the Act (section 10);
4) for the formulation and declaration of environmental guidelines by notification in the
Official Gazette for the control and mitigation of environmental pollution (section 13,
Act);
5) establishing a minimum standard for quality of water for consumption which
provides for a maximum content of arsenic of 0.05 mg per liter (Third Schedule,
item - (kha) Environment Conservation Rules) of Addl. paper book of C.A.118 of
1999.

19
 6) for establishing a minimum standard for quality of water for consumption which
provides for a maximum content of arsenic of 0.05 mg per liter (Third Schedule item
(kha) Environment Conservation Rules).
After a thorough recital of mentioned legal authorities as well as other relevant laws and legal
provisions, the Court found it affirmative on the part of the appellant and opined that the
Govt. is, indeed, duty bound in this regard.

Use of International Environmental Law:

In this judgement, the Court cited article 12 of the ICESCR21,1966 and general comments of
the UN Committee on Economic, Social and Cultural Rights on this article. This covenant
was ratified by Government of Bangladesh in the year 1998 and the said article enumerates
obligation to protect the right to health, which includes to ensure access to safe and potable
water.
In elaborating the meaning of the right to health as guaranteed in Article 12 of the Covenant,
the UN Committee on Economic, Social and Cultural Rights has specifically interpreted the
right to health as including the right to access to safe and potable water and in its General
Comment No. 14 on Right to Health (2000) at para 11 it has been provided as follows:
“The Committee interprets the right to health as defined in Article 12.1 as an inclusive right
extending not only to timely and appropriate health care but also to the underlying
determinants of health, such as access to safe and potable water and adequate sanitation, an
adequate supply of safe food, nutrition and housing, health, occupational and environmental
conditions.”22
The Committee has further discussed that the legal obligations on States (under para 33) to
respect, protect, fulfil their duties to secure rights and that these include administrative,
judicial and other promotional measures for realisation of rights.23 The committee further
discusses at para 36 the importance of securing the right in national, political and legal
systems and with respect to the obligation to fulfil notes that States are required to ensure
equal access for all to the underlying determinants of health such as nutritiously safe foods
and potable drinking water, basic sanitation and adequate housing and living conditions.24
Violation of the Constitutional Mandates and Fundamental Rights:
At the last portion of this judgement, the court opined that non-compliance with the statutory
duties of the respondents to ensure access to safe and potable water constitutes a violation of
the right to life as guaranteed by Articles 31 and 32 of the Constitution read together with
Articles 15 and 18 of the Constitution.
Decision of the Court: Finally, in these circumstances and given the extreme gravity of the
situation and the serious effect of continuing arsenic contamination through drinking ground
21
ICESCR refers to the International Covenant on Economic, Social and Cultural Rights. This UN covenant was
enacted in 1966 and it is a
22
General Comment No. 14 on Right to Health (2000), the UN Committee on Economic, Social and Cultural
Rights, para 11
23
Ibid at para 33
24
Ibid at para 36

20
water on public health, this Court directs the respondents to fulfil their legal obligations to
provide safe water to millions of persons across Bangladesh, in particular to stop human
consumption of arsenic contaminated water, by adopting the specified measures.
Personal Observation: In my opinion, the Court has endowed much importance to the
right to safe water and the level of court’s heed is apparent from its declaration as to the
violation of constitution by the government. By expanding the right to life so enumerated
under article 31 and 32, the Court furnished a judicial recognition of the right to safe and
healthy water, which must be free from arsenic contamination. This very recognition is also
premised upon the interpretation of articles 15 and 18. Although the preceding two articles
are judicially non-justiciable, the court has created a constitutional bypass to enforce these
articles taking recourse of the umbrella right – the right to life. Under this right to life
model, the court has enforced these non-justiciable fundamental principles. Terming this sort
of judicial stance, I must say that it is a prudent judicial activism by the bench of the Apex
Court of the Republic. Moving on to the use of international law, it is a very optimistic
stance of the Supreme Court to rely on the International Laws, i.e., International
Environmental Law and the General Comments of the Committees formed for those
international covenants. Such act of the Supreme Court is, in fact, the observance of article
25 of the Constitution, which enumerates the provisions regarding the International Law.

Case No. 04: Dr. Mohiuddin Farooque, Secretary General, Bangladesh Environmental
Lawyers Association (BELA) being dead Ms. Syeda Rizwana Hasan, Director
(Program), representing Bangladesh Environmental Lawyers Association (BELA) Vs.
Bangladesh and others
Citation: 2002 22 BLD 534

It is upsetting to utter the truth that the industries and factories are being fueled at the cost of
environments, i.e., at the cost a green and clean earth. Dr. Mohiuddin Farooque, the knight in
shining armour to protect our green earth, stepped on it to fight the legal battle for the
protection of environment from the deadly moves and pushes of industries and factories. The
reiteration of constitutional mandates to protect and preserve our environment has furnished a
landmark signature to this judgement.

Fact leading to the main contention:

A survey conducted by the Department of Environment, Pollution Control disclosed that
ecological imbalance was being caused continuously in order to discharge of various
industrial wastes into air and water bodies. Thereafter, a notification published in the
Bangladesh Gazette on 7th August, 1986, specified the names and addresses of the 903

21
industries and factories as polluters which were classified in several heads like Tanneries,
Paper and Pulp industries, Sugar Mills, Distilleries and so on.
The said notification also mentioned that the Government, in order to combat the adverse
effects of pollution caused by the industries/factories, took the following decisions:
(a) The Ministry of Industries will ensure that the industries having no environmental
pollution control/protection system will adopt measures to control pollution over a period of
next three years.
(b) While sanctioning a new industrial unit the Ministry of Industries will ensure that
necessary environmental pollution control/protection measures are adopted by it. The
decision of the Government also requires that the Department of Environment Pollution
Control, which is represented by the respondent nos. 4 and 5, would render necessary
cooperation to the Ministry of Industries in implementing the above decisions.25
Subsequently, BELA, after investigating several times, in its utter dismay found no evidence
as to any effective measure or legal action taken against any of the 903 industries/factories to
curb their continuing discharge of the affluent and wastes into air and water bodies, rather,
such pollution is being continued unabated, uncontrolled and indiscriminately, not only by
those industries/factories identified by the Government as mentioned in the list published in
the Gazette notification dated 7.8.1986 but, in many a new industries/factories sprung up
since then and are severely polluting the environment and ecology endangering life and its
support systems, thereby the respondents failed in performing their statutory duties and
obligations cast upon them by the provisions of the Ordinance. As such, being aggrieved,
Late Dr. Mohiuddin Farooque on behalf of BELA obtained the instant rule. But he died
during the pendency of the rule and Ms. Syeda Rizwana Hasan, Director (Program), BELA,
has been authorized, by a resolution of the executive committee of BELA, taken on
30.6.2001, to represent BELA in the instant writ petition.
Point of dispute: The moot question was whether the Government has implemented the
taken decision by the gazette notification or not.
Finding of the Court of Law: The Supreme Court found that the Government did not take
necessary steps to curb the continuing discharge of the affluent and wastes into air and water
bodies by the listed industries and factories. Further the Concerned Ministry and the Director
General were directed to take certain steps.

Analysis of the Judgement:

Importance of PIL:
Justice A.B.M. Khairul Haque penned his portion of judgement with an opening entailing the
significance of Public Interest Litigation. The matter is more than settled that we have been
benefited in many occasions by the PIL and our growing constitutionalism owes much to this,
albeit a part of its own. His Lordship Mr. Haque coined the words of Justice Bhagwati and he

25
Dr. Mohiuddin Farooque Vs. Bangladesh and others [2002] 22 BLD 534 [5]

22
opined in the case of Peoples Union for Democratic Rights Vs. Union of India26: “Public
interest litigation is brought before the court not for the purpose of enforcing the right of one
individual against another as happens in the case of ordinary litigation, but it is intended to
promote and vindicate public interest which demands that violations of constitutional or legal
rights of large number of people who are poor, ignorant or in a socially or economically
disadvantaged position should not go unnoticed and unredressed. That would be destructive
of the Rule of Law which forms one of the essential elements of public interest in any
democratic form of government. The Rule of Law does not mean that the protection of the law
must be available only to a fortunate few or that the law should be allowed to be prostituted
by the vested interests for protecting and upholding the status quo under the guise of
enforcement of their civil and political rights. The poor too have civil and political rights and
the Rule of Law is meant for them also, though today it exists only on paper and not in
reality.” After citing the exact words of J. Bhagwati, I feel that there is no need to put my
own words.

Preamble of the Constitution and Environment Protection:

This pro-environment judgement cited the preamble of the constitution and while describing
the weight of the same, the judge opined that an easy way to comprehend and appreciate the
provisions of the Constitution is to look at its preamble.27 Paragraph 3 of the preamble has
been cited there and this paragraph of the preamble glorified the pledge of the nation to
establish a society in which the rule of law, fundamental human rights and freedom, among
others, will be secured for all citizen. It is obvious that fundamental human rights also include
the right to healthy and decent environment, which is free from pollution. This portion was
later elaborately discussed citing the part III of the Constitution, wherein the Fundamental
Rights are enumerated.
Magnitude of the Right to Life and Environment: No constitutional provision can be
perceived thoroughly without the interpretation from the Constitutional Court. As observed in
the Marbury vs. Madison, “it is emphatically the duty of the Judicial Department to say what
the law is.”28 What the Supreme Court did in this judgement by expanding the magnitude of
the ‘right to life’ is to say what law is, i.e., providing proper explanation of law. Under article
32 of the constitution, the Right to life is enshrined and it is a not mere empty word. The
guarantees made vide this article are of fundamental in nature, bestowed; upon the people of
Bangladesh by its Constitution. As observed in the judgement, the expression 'life' enshrined
in Article 32 includes everything which is necessary to make it meaningful and a 'life' worth
living, such as, among others maintenance of health is of utmost importance and preservation
of environment and hygienic condition are of paramount importance for such maintenance of
health, lack of which may put the 'life' of the citizen at nought. Furthermore, it is opined that
naturally, if the lives of the inhabitants living around the concerned factories are in
jeopardy, the application of Article 32 becomes inevitable because not only a right to life
but a meaningful life is an inalienable fundamental right of a citizen of this country.29 The

26
Peoples Union for Democratic Rights Vs. Union of India [1982] SC 1473
27
Supra note 24, at para 15
28
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
29
Supra note 24 at para 16

23
preceding explanation of article 32 seems to be the cornerstone of this judgement and a wise
stance of the Court to curb ongoing pollution.
The Government’s Responsibility vide the Bangladesh Environment Conservation Act,
1995 (Act No. 1 of 1995):
In the present case, various sections from the act of 1995 were cited and it is found that the
Government is under legal obligation to initiate proper activities as prescribed in the act.
Some of these legal authorities, that are, sections from the act are as follows;

❖ Sub-section 1 of section 4 authorizes the Director General to take all such steps as
may be deemed expedient and necessary for the conservation of environment,
improvement of environmental standard and control and mitigation of pollution of
environment and may give necessary directions in writing to any person for
performing his duties under the Act.
❖ Section 7 of the Act contemplates the remedial measures if the eco-system is
threatened. This provision stipulates that if it appears to the Director General that
certain activity is causing damage to the eco-system whether directly or indirectly, he
may, after assessing the extent of damage, direct the person responsible for taking
appropriate corrective measures and such person shall be bound to comply with such
directions.
❖ Section 9 prohibits the discharge of excessive environmental pollutants from all
sources including the commercial and industrial enterprises.
Subsequently, the Government in exercise of its rule making power conferred by section 20
of the Act, promulgated the Environment Conservation Rules, 1997 ('Rules' for short).
Rule 7 of the Rule describes the procedure for obtaining environmental clearance and also
classifies the industrial units and projects into three broad categories depending on the
possible degree of risk of pollution involved, such as, green, orange-Ka, orange-Kha and red.
Violation Constitutional Mandates: Article 18 describes the improvement of public health
as one of the primary duties of the state. Moreover, article 21 prescribes that the public
servant shall strive at all times to serve the people. In spite of the Constitutional commands
and the provisions of the Act and the Rules, the hiatus remained as before between the letters
of law and the implementation thereof in the field of environmental pollution due to
unresponsiveness of the apathetic concerned officials, indifferent to the Constitutional edicts
so solemnly declared in Article 18 and Article 32.

Constitutional Borrowing: In this judgement, several landmark and groundbreaking

judgements relating to environmental law were cited. Some of them are given below with a
short description:

24
 ❖ Doon Valley case30 -the Supreme Court of India for the first time, in exercise of its
epistolary jurisdiction, ordered closing down of lime-stone quarries, in order to
preserve the ecological balance in Mussorie Hill range and also on account of hazards
to public health.
❖ Mr. M.C. Mehta V Union of India- Oleum gas leaked in one of the units of Shriram
Foods and Fertilizer Industries with serious apprehension of disaster, the Supreme
Court, on the petition of Mr. M.C. Mehta, an Advocate of the Supreme Court, initially
closed down the plant but after much deliberation with considerable hesitation,
allowed the plant to re-start but subject to many a safety measures.
❖ V. Lakshmipathy Vs. State of Karnataka31 -while issuing a mandamus with a
direction to abate the pollution in the concerned area H.G. Balkrishna, J. held as
follows: “The right to life inherent in Art. 21 of the Constitution of India does not fall
short of the requirements of qualitative life which is possible only in an environment
of quality. Where, on account of human agencies, the quality of air and the quality of
environment are threatened or affected, the Court would not hesitate to use its
innovative power within its epistolary jurisdiction to enforce and safeguard the right
to life to promote public interest. Specific guarantees in Art. 21 unfold penumbras
shaped by emanations from those constitutional assurances which help give them life
and substance.” (Para-28)
❖ Muniswamy Gowda Vs. State of Karnataka32 -the rice mill situated near the
residential house of the petitioners, causing health hazard by emitting husk and dust in
the entire atmosphere in derogation of the fundamental right of the petitioners, was
directed to be shutdown.
Concluding Remarks: This is absolute craftmanship of the Supreme Court; the way the
Court has put constitutional provisions, preamble and legal authorities to explain the
government’s obligation to protect environment from environment pollution caused by
the factories and industries is phenomenal. It is undoubtedly a judicial activism to protect
the environment, since the court went beyond the text of law. But the matter, which
strikes at my heart in several occasions, is that the Court has viewed the environment
from anthropocentric approach. The eternal hope remains that someday, our court must
give much weight to the Ecocentric Approach while adjudicating such a matter.

Case No. 05: Bangladesh Environmental Lawyers Association (BELA) Vs.

Government of Bangladesh
Citation: 2010 30 BLD 185

30
Plural Litigation and Entitlement Kendra V. State of UP [1985] AIR SC 652; this judgement is popularly known
as Doon Valley case
31
V. Lakshmipathy Vs. State of Karnataka [1992] AIR Karnataka 57 [28]
32
Muniswamy Gowda Vs. State of Karnataka [1998] AIR Karnataka 281

25
Human dominance over natural resources sometime leads to cause ecological imbalance
and such imbalance threatens the entire equilibrium of nature. Such selfish activities of
homo sapiens were questioned in the present case and the Court interfered to maintain the
ecological balance.
Background leading to the present contention:
The primary concern in the instant case was the use of hydrolic excavators in the stone
quarry of Jaflong. The respondent authorized to use excavators without any assessment
of environmental impact in the stone quarry of Jaflong and without taking into
consideration that the area is within the Dawki fault and is beyond the mandate and scope
of that respondent as per the Mines and Minerals Resources (Control and Development)
Act, 1992 and the Rules of 1968. A further report of respondent No. 9 also revealed that
no environmental clearance was ever accorded in favour of the 50 excavator machines
that were operating in the Jaflong stone quarry creating horrific noise and air pollution
with loud noise, black smoke and dusts. The destructive and extremely exploitative mode
of collection of stones was damaging the layers of the soil, changing the flows of the
rivers and affecting adversely their navigability, increasing the risks of floods and eroding
river banks and adjacent agricultural lands. Such havoc of pollution as created by the use
of the mechanized excavators was not only causing irreparable damage to the beautiful
hilly rivers that are fast losing their natural appeal to the tourists but also affecting the
local people who bear the direct curses of such unregulated and unconscionable activities.
The local people have time and again protested against the mechanized extraction of
stones that severely affect their lives, properties and livelihoods but to no avail.
Thereafter, an interim ban was imposed by the local government in 2006, but the power
games did not make the ban stay. On the face of such public protests and media coverage,
respondent No. 5 at a meeting held on 1.2.2009 prohibited till further order, the use of
excavator machines in areas adjacent to the above rivers flowing through Bholaganj and
Jaflong areas of Companygonj and Goainghat Upazilas of Sylhet. Although the
prohibition was imposed, it was not executed and the excavation was going on. In the
backdrop, BELA filed the instant writ and obtained the rule.
Moot Question: The question pressed into service was whether the ban should be
maintained or not.
Decision of the Court of Law: The Court directed that the ban on mechanized extraction
of stones imposed by the Department of Environment as evidenced by Annexure-F shall
remain in force until guidelines, if possible, are framed by the Ministry of Environment
and the Department of Environment by strictly keeping the environment of the concerned
area intact.

Analysis of the Judgement:

Awarding Locus Standi to BELA: The Court at first place cited article 21(1) and later
on, FAP-20 case. Again, in the instant writ petition, the protection of the ecology of the
stone quarries of both Jeflong (within rivers Piain and Dawki) and Blolaganj (within river
Dhala) was of paramount importance. The local people time and again protested against

26
 the mechanized extraction of stones that severely affect their lives, properties and
livelihoods. BELA came in aid of protection of the ecology and of the local people of the
concerned area. In the light of the court’s findings and decision referred to above, the
Court awarded the standing to BELA.
Protection of ecology and environment: While discussing the environmental hazards,
the Court has defined the ecology and ecosystem. The Court opined in the following
words; “Ecology is the study of relationship among living organisms and between living
organisms and their environment. Ecology is also the study of ecosystems. Ecosystems
describe the web or network of relations among organisms at different scales of
organization.”33
Thereafter, a research report under the aegis of World Bank was referred, wherein coastal
resources are identified as the most impacted by climate change, whereas ecosystem may
be most endangered. The area of Jaflong remains exposed to earthquake because of the
presence of Dawki fault. In this case, no environmental clearance was ever accorded to 50
excavator machines operating in Jaflong stone quarry creating horrific noise and air
pollution with loud noise, black smoke and dust. Indiscriminate extraction of stones from
below the river’s beds by mechanized method not only destroys organisms living there
but also destroys the environment. It was noted that protection of environment is linked to
our survival. As observed in the case, in an international conference held in December,
2009 in Copenhagen, capital of Denmark, attended by almost all the heads of the States
across the world underscored the need for protection of environment. In that international
conference Bangladesh was designated as the most venerable country on account of
environmental pollution. In such a situation, the Court opined that the protection of
ecology and environment is of paramount importance.
Development and Environment: In the realm of Environmental Law, whether it is
‘environment versus development’ or ‘environment and development’ is a matter of
enormous tensions a ranging question. In this case, the Court seemed to hold that it is
environment and development. In the language of the Court: “ It is important to note that
development and protection of the environment are not enemies. If without degrading the
environment by applying stringent safeguards, it is possible to carry on development
activity applying the principles of sustainable development. A balance has to be struck.”
Further, it is opined that in such matters, many a times, the option to be adopted is not
very easy or in a straight-jacket. If an activity is allowed to go ahead, there may be
irreparable damage to the environment and if it is stopped, there may be irreparable
damage to economic interest. In case of doubt, however, protection of environment
would have precedence over the economic interest.

Remedial Scheme under the Statue: Section 7 of the Bangladesh Environment

Conservation Act, 1995 (Act No. 1 of 1995) contemplates the remedial measures if the
ecosystem is threatened. This provision stipulates that if it appears to the Director General
that certain activity is causing damage to the ecosystem, whether directly or indirectly, he
33
Bangladesh Environmental Lawyers Association (BELA) Vs. Government of Bangladesh [2010] 30 BLD 185

27
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may, after assessing the extent of damage, direct the person responsible for taking
appropriate corrective measures and such person shall be bound to comply with such
directions.
Personal Remarks: We are not oblivious of the fact that natural resources have got to be
tapped for the purposes of social development but one cannot forget at the same time that
tapping of resources have to be done with requisite attention and care so that ecology and
environment may not be affected in any serious way. There may not be any depletion of
water resources and long-term planning must be undertaken to keep up the national
wealth. It has always to be remembered that these are permanent assets of mankind and
are not intended to be exhausted in one generation.

Epilogue: As started with the Chief Seattle’s Speech, I would like to draw my conclusion
with another quote from the same speech. In the Chief Seattle’s Speech, it is opined;
“Whatever befalls the Earth, befalls the sons of the Earth. Man did not weave the web
of life, his merely a strand in it. Whatever he does to the web, he does to himself.”34
In the name of development and civilization, we, human race, are degrading the
environment in every now and then, but the ultimate consequence of environment
pollution will be counterproductive for all of us. In the above analyzed judgements, we
have seen how our Supreme Court has played pro-active role to protect and preserve
environment and nature through its creative interpretation of laws. While analyzing the
decisions, we have seen certain lapses and lacunas and thus, there is still room for going
further.

34
Speech of Chief Seattle, Si’ ahl (1786- June 7,1866)

28