This edition of ‘From the Court Corridor’ highlights eight noteworthy pronouncements of the High Court Division (HCD) and the Appellate Division (AD) of the Supreme Court (SC) of Bangladesh during February. 

Banning gender detection of unborn babies

In January Advocate Ishrat Hasan filed a writ petition asking the HCD to prohibit the purchase, use and transfer of gender-detection machines in hospitals and diagnostic centres. She also asked for a list of such registered entities conducting gender-detection tests to be submitted to the HCD. The petitioner remarked that countries like China and India have already criminalized gender-detection tests of fetuses. The pressure to give birth to male children adversely impacts the physical and mental health of the mothers. It also leads to discrimination against female children. Hence, she submitted that gender-detection of fetuses is a violation of articles 27, 28, 31 and 32 of the Constitution. 

The court then issued a rule asking the government to explain in six weeks why the use of such machines should not be declared illegal. It also asked why they should not be directed to form guidelines to prevent the gender-detection of fetuses. The court lastly ordered the government to maintain a database of the diagnostic reports of fetuses carried out by registered hospitals, diagnostic centres etc. 

Since the issue is exclusively in the executive’s domain the court could have exercised self-restraint while hearing the petition. Nevertheless, the ministry should take immediate steps to curb this practice and ensure the well-being of expectant mothers.  

Inquiring whether universities follow proper guidelines while conferring PhD and similar degrees 

Advocate Md Moniruzzaman filed this writ petition after reports in national dailies revealed that a Dhaka University (DU) faculty member had plagiarised 98% of his PhD thesis. The court issued a rule asking the Secretary, Ministry of Education and Chairman, University Grants Commission (UGC) to submit reports within three months on whether all the universities were following UGC guidelines while conferring PhD and equivalent degrees. It also asked DU’s Vice-Chancellor to reply within 15 days on the inquiry and steps taken against the concerned DU faculty member for his alleged plagiarism. Lastly, it asked all the respondents to explain within four weeks why they should not take the help of Information and Communication Technology (ICT) experts to scrutinise the thesis submissions before conferring degrees.

The quality of the published thesis has been declining gradually over the years. Moreover, allegations of plagiarism crop up very often. Clearly, the liability falls upon the concerned authorities for their lack of proper scrutiny before proceeding to publish these dissertations. Nevertheless, this is an issue exclusive to the domain of the UGC. But given the inaction on UGC’s part, the court may have seen no other option but to issue this rule.  

Banning gambling 

SC lawyers Samiul Huq and Rokonuddin Md Faruq filed a public interest litigation (PIL) in 2016 asking the court to direct the government to ban gambling in 13 renowned clubs. After hearing the concerned parties in January the HCD ordered to ban all sorts of gambling. AD’s chamber judge also upheld the verdict before the HCD published its full text on its website in February. The HCD held that owning gaming instruments for gambling and participating in all kinds of gambling activities other than government-authorised lotteries are criminal offences. However, the verdict also stated that such games played for mere amusement without money or valuable consideration at stake may be legal. Referring to the maximum punishment under the Public Gambling Act, 1867 (imprisonment for three years and a fine up to BDT 200) for such crime, the court asked the government to amend the law since it does not extend to metropolitan areas and is, therefore, discriminatory under Article 27 of the Constitution. Nonetheless, the court interpreted the words ‘public place’ in both the Dhaka Metropolitan Police Ordinance, 1976 and the Chittagong Metropolitan Police Ordinance, 1978 to also ban gambling in the metropolitan cities. 

The contextual and harmonious interpretation of the relevant laws and the positive enforcement of article 18 (2) of the Constitution in this verdict have led to a remarkable instance of judicial activism. Interestingly, the court also referred to the Holy Quran while substantiating the ban. 

Directing to ban unfit vehicles from plying the roads 

In 2019 Advocate Syed Mamun Mahbub filed a writ petition asking the court to declare why the government’s inaction in allowing unfit and unregistered vehicles on the roads as well as drivers with invalid or no licenses would not be declared illegal. Additionally, the petitioner asked for the proper implementation of the Motor Vehicles Ordinance, 1983 to uphold Article 32 of the Constitution. In this regard, the Bangladesh Road Transport Authority (BRTA) submitted a report following the HCD’s order which states that out of 4,58,359 vehicles, only 1,65,764 have renewed their fitness certificates. The remaining 2,92,595 vehicles are plying the roads without valid fitness certificates to date, as per the report. Thereafter, the court ruled that unfit vehicles would not be allowed on the roads. It further asked BRTA and the Inspector General (IG), Police to inform them about the actions taken against such unfit vehicles on February 17.  

The mass movement in 2018 demanding for safe roads has led to the government enacting the Road Transport Act, 2018 with tougher sanctions for violating road safety measures. But unfit vehicles still ply the roads every day. Therefore, the court ordered the concerned authorities to immediately ban them. 

Ruling on the legality of section 42 of the Civil Service Act, 2018

Section 42 of the Civil Service Act, 2018 provides for dismissing a civil servant if s/he is sentenced to death or imprisonment for more than one year for any criminal offence. However, the maximum penalty for contempt of court under the Contempt of Court Act is simple imprisonment for six months. Thus, section 42 would be inapplicable to a civil servant guilty of this offence, which is a clear violation of article 27 of the Constitution. Section 42 also contradicts with the Government Servants (Discipline and Appeal) Rules, 1985, which states that civil servants will be dismissed if they have been convicted for any term in a criminal case. 

Hence in January Human Rights and Peace for Bangladesh (HRPB) sent notices to seven secretaries asking to abolish section 42 due to it being ultra vires to the Constitution. When they received no response, HRPB filed this writ petition in February. Afterward, the court issued a rule asking the respondents to explain within four weeks why this provision should not be declared illegal.  

This is another instance where the legislature failed to consider all the existing relevant laws before enacting a new one, thus creating an inconsistent provision. After this order an immediate amendment of the provision is expected to remove the inconsistency.

Delivering landmark verdict on cheque dishonour 

On 18 February while disposing of an appeal the AD held that if the conditions under an agreement for which a drawer issued a cheque are not fulfilled or if there is the non-existence of consideration for providing a cheque to a payee by a drawer, then it creates no liability upon the drawer under section 43 of the Negotiable Instruments (NI) Act, 1881. The Negotiable Instruments (Amendment) Act, 2000 omitted the words ‘for the discharge, in whole or in part, of any debt or other liability,’ from section 138 of the NI Act. Hence, in cheque dishonour cases till now, a court did not need to examine if the drawer drew the cheque in the payee’s favour to pay any debt or liability. However, after this verdict once the drawer can establish the non-existence of any consideration, the burden of proof shifts upon the payee. The payee then has to prove that the consideration under section 43 still exists and has not yet failed and that he fulfilled the terms and conditions of the agreement under which the drawer has issued the cheque.

This is the first-ever verdict concerning the NI Act by the SC. It creates the precedent to look into the consideration for which a drawer wrote the cheque in the payee’s favour and to check if a payee had fulfilled the terms and conditions of the agreement under which a drawer issued the cheque. This will hopefully lead to a reduction in false cheque dishonour cases against bona fide drawers.

Declaring ragging as a crime 

On 23 February the Education Ministry submitted a report on the suicide of Aritri Odhikari, a student of Viqarunnisa Noon School and College, along with a draft policy on dealing with severe crimes committed by students in educational institutions. The HCD then ordered the concerned authorities to add ragging alongside harassment as a criminal offence in the policy. The court further held that there is no bar to file criminal charges against any student who engages in ragging in educational institutions. It observed that ragging takes place during freshers’ reception in educational institutions and asked the government to enact stringent laws to stop this. Citing Abrar’s (a sophomore at Bangladesh University of Engineering and Technology) murder and similar incidents, the HCD stated that these occur due to a lack of stringent measures by the authorities. 

After the HCD’s order to form anti-ragging squads in educational institutions this verdict is another crucial step towards ensuring the fundamental rights of students in educational institutions.   

Declaring women ineligible as Qazis in Muslim marriages

In 2014 the names of three women were proposed as Nikah Registrars (Qazis) in wards no 7, 8 and 9 of the Phulbaria municipality of Dinajpur. The Law Ministry however rejected their names in the same year. It stated in its official letter that given the social reality of Bangladesh, it was impossible for women to perform the duty of a Qazi during marriage ceremonies. Consequently, the first Qazi on the list, Ayesha Siddika, filed a writ petition challenging the ministry’s decision. The HCD had earlier issued a rule asking the ministry why its letter should not be rejected. However, after the hearing the court dismissed the writ petition reaffirming the view that women cannot officiate marriage ceremonies. Interestingly, Justice Zinat Ara was a part of the bench that delivered this verdict. 

While this decision seems to be a step backward in ensuring equal rights for women, we need to wait for the full text of the verdict before making any constructive criticism. However, it needs to be added that no provision in Islam bars women from officiating Muslim marriages.   

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