From the Court Corridor: September Edition

This edition of ‘From the Court Corridor’ highlights notable pronouncements of the High Court Division (HCD) and the Appellate Division (AD) of the Supreme Court (SC) of Bangladesh in September.

Ruling on Hindu women’s right to husband’s agricultural lands

After the death of one Avimannu Mondal in Khulna his widow, Gouri Dasi, inherited all his properties, including his agricultural lands. However, her brother-in-law, Jyotindranath Mondal, challenged the recording of the land under Gouri’s name in the court of the assistant judge, Khulna, in 1996. The court, interpreting the Hindu Women’s Rights to Property Act, 1937 (the 1937 Act) and a 1941 judgment of the Indian Federal Court (see [1941] AIR FC 72), ruled that a Hindu widow only has the right to her deceased husband’s non-agricultural lands, not agricultural lands. On appeal, the district judge of Khulna reversed the decision and ruled that Hindu widows have a right to both their deceased husband’s non-agricultural and agricultural lands. Being aggrieved, Jyotindranath filed a civil revision petition to the HCD. 

The HCD extensively heard both the parties and the amicus curiae, Barrister Ujjal Bhowmick, on the issue. Finally, it held that our courts had been erroneously interpreting the 1937 Act in light of the Indian Federal Court’s 1941 judgment. That judgment excluded agricultural lands from the 1937 Act, since the then central government could not legislate on the transfer of agricultural lands. Such power was in the hands of the provincial governments and many provincial governments in India (Hyderabad, Assam etc) thereafter amended the law to include agricultural lands. However, even after Bangladesh’s independence in 1971 and the adoption of the 1937 Act under the Bangladesh Laws (Revision And Declaration) Act, 1973 our courts had been following the precedent of the 1941 judgment. The HCD thus clarified this error in interpretation and ruled that the terms ‘any property’ in section 3 of the 1937 Act includes both non-agricultural and agricultural lands. 

It is a landmark ruling since until now Bangladeshi Hindu widows have been deprived of inheriting their deceased husband’s agricultural lands because of an erroneous interpretation. Interestingly, the widows in Sylhet, which was under Assam earlier, used to inherit their deceased husband’s agricultural lands under the amended Assamese law and this practice has continued even after India and Pakistan’s partition and Bangladesh’s independence. Hence, this HCD judgment not only clears a discrepancy in interpreting the 1937 Act but also establishes a uniform practice throughout Bangladesh from now on.      

Awarding compensation to Narayanganj mosque blast victims

On 4 September a gas leak from an underground pipeline caused a blast inside the Baitus Salam Mosque in Fatullah, Narayanganj, killing over 30 people. As the incident made headlines in all the news outlets, SC lawyer Mar-um Khondaker filed a public interest litigation (PIL) to the HCD asking the concerned authorities to pay BDT 50 lacs as compensation to each victim’s family. She also asked for the HCD’s order to the concerned authorities to investigate and identify the liable individuals whose negligence in repairing the gas pipelines caused the incident. After the preliminary hearing the HCD directed Titas Gas to pay interim compensation worth BDT 5 lacs to the family members of the deceased and the injured people. Lastly, the court asked the concerned government authorities and Titas Gas to respond to why they should not pay compensation worth BDT 50 lacs to the victims’ families. The HCD decided to hold a hearing on this rule after the investigation committee formed by the government had submitted its report.  

Titas Gas, however, challenged this interim compensation order to the AD’s chamber judge on 13 September. Their counsel submitted that since the investigation was pending and Titas Gas had not been found liable, the court should not order them to pay this interim compensation. Accepting this submission, the AD’s chamber judge stayed the HCD’s interim compensation order against Titas Gas till 1 December. It also referred the petition to the AD’s full bench for hearing on 1 December. 

While the negligence of the concerned authorities is visible on the surface, the petitioner/the aggrieved individuals could have sought an equally efficacious remedy under the Fatal Accidents Act, 1855 (the 1855 Act). If the petitioner filed the PIL under article 102 (2) of the constitution, the apex court may ask to exhaust the remedy under the 1855 Act first. The 1855 Act already provides a comprehensive remedy to victims of fatal accidents for the negligence of the concerned authorities. This trend of approaching the apex court first, without exhausting other equally efficacious remedies under existing statutory provisions, seems to reflect a growing mistrust in the subordinate judiciary among litigants which should be a growing concern for our judiciary.    

Awarding compensation to Jaha Alam for his wrongful arrest and detention

In July 2012 the Anti-Corruption Commission (ACC) filed 33 cases for the embezzlement of BDT 18.50 crores via cheque fraud from Sonali Bank Limited and BRAC Bank Limited. While one Abu Salek was indicted in 26 of these cases, it was Jaha Alam who was wrongfully arrested and imprisoned for over 3 years. After a national daily reported this unfortunate incident the deputy attorney general, Amit Das Gupta, presented the report to the HCD and asked for necessary orders. The HCD then asked ACC to explain why ACC arrested Jaha Alam instead of the real accused in this case. Upon hearing the explanations from the concerned individuals the HCD In February 2019 acquitted Alam in all 26 cases and ordered for his release. The ACC’s report to the HCD in July 2019 revealed that a mistake by their investigating officers led to Alam’s wrongful arrest and detention. Afterward the court issued a rule asking the government to respond to why it should not order to compensate Alam for the negligence of the concerned authorities leading to his wrongful arrest and detention.  

On 30 September 2020 the HCD finally ordered BRAC Bank to pay BDT 15 lacs as compensation to Alam within a month. It stated that the bank is liable to compensate him since two of their officials identified him as Abu Salek by supplying his photos and information to ACC. The HCD observed that it did not fine Sonali Bank since there was no fault on their part. The court further cautioned ACC to properly conduct their investigations and ensure that no such innocent persons suffer like Alam in the future. It directed ACC to complete the departmental investigations against its 12 officials involved in this case.   

While the verdict is a welcoming sign, it is puzzling why the HCD did not order any punitive measures against the negligent ACC officials involved in the investigation. Should the departmental investigations find them guilty, they should be liable for punishment under the relevant penal laws apart from administrative sanctions for the gravity of their actions. The ‘good faith’ clause under section 31 of the Anti-Corruption Commission Act, 2004 should not give them blanket immunity for this grossly negligent act which manifestly violated Alam’s fundamental right to life and personal liberty.  

Rejecting a writ petition to postpone O and A level examination

On September 23 the British Council (BC) received approval from the government to conduct the O and A level examination of English medium students studying under the two British boards, Cambridge Assessment International Education and Pearson’s Edexcel amidst the COVID-19 pandemic. It happened despite students protesting for postponement of the examination for fear of coronavirus outbreak from the examination centres. Thereafter one Tamanna Tabassum filed a writ petition to the HCD asking it to order the government to postpone the examination. The petitioner stated that the candidates had failed to prepare for the examination owing to educational institutions remaining closed in the last six months for the pandemic. She further stated that many candidates were yet to receive their admit cards for attending the examination. Lastly, she asked the court to direct the government to prepare guidelines to conduct English medium education in Bangladesh. However, the HCD summarily rejected the petition paving the way for BC to hold the examination in Bangladesh. The petitioner’s counsel remarked that the HCD turned down the petition because the situation has become normal to hold the examination.   

While the HCD’s exercise of self-restraint is commendable, confusion arises regarding its reasoning. If it is of the view that the situation has become normal to hold O and A level examination in Bangladesh, one can question the government’s decision to cancel this year’s HSC examination. A level curriculum being equivalent to that of HSC, it seems discriminatory that one segment of such students is sitting for their examination while the other segment is waiting for predictive grades. Moreover, not all universities are scrapping the provision of counting grades from the SSC, HSC and equivalent examination for the admission tests of this session. Hence, the government’s decision to let BC hold O and A level examination (and the HCD’s endorsement of the decision based on its reported reasoning of the situation being normal) while canceling HSC examination raises questions regarding the violation of the equality clause under articles 27 and 28 of the constitution.

Staying the copyright granted to the ghostwriter Sheikh Abdul Hakim for the Masud Rana series

The Copyright Office, in a historical move, granted the copyright of 260 books of the popular detective thriller series, Masud Rana, to its ghostwriter, Sheikh Abdul Hakim, in June 2020. It also granted Abdul Hakim the copyright to 50 books of the ‘Kuasha Series.’ The decision came after extensively hearing Abdul Hakim’s complaint filed in July 2019 regarding his copyright claim on all the books. The Copyright Office further remarked that Abdul Hakim can also claim the royalties from the Copyright Board for the reprinted editions of these books. However, the original author and owner of the publisher ‘Sheba Prokashoni’, Qazi Anwar Hossain, filed a writ petition to the HCD challenging the Copyright Office’s decision. The petitioner submitted that only the concerned district and sessions judges, not the Copyright Office, have the jurisdiction to entertain and adjudicate disputes relating to copyright violations. After hearing the petitioner the HCD issued a rule asking the concerned authorities to respond to why it should not declare the Copyright Office’s order illegal. The HCD further stayed the Copyright Office’s order of granting copyright of the books to Abdul Hakim for one month.

A cursory reading of the Copyright Act, 2000 reveals that the Copyright Office’s actions violated sections 81 and 92 of the Act. Hence, regardless of the correctness of the decision, the Copyright Office seems to be coram non judice (without jurisdiction) in this incident. The aggrieved petitioner correctly filed the writ petition under article 102 of the constitution. The HCD should forward the case to the concerned district judge to hear and decide the dispute regarding the complaint of copyright violation and establish the copyright of the original author.