IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 12293 of 2018

In the matter of:

An application under Article 102 of the Constitution of the People’s Republic of Bangladesh.

                                                                            -And-

In the matter of :

Dr. Kazi Ertaza Hassan

…....... Petitioner  -Versus-

The Government of Bangladesh and others

                                                                         ..... Respondents

Mr. A.M Aminuddin, Senior Advocate with

Mr. Mohammad Saifuddin Khokon with

Mr. Jotirmoy Barua with

Mr. Md. Shahjahan with

Mr. Md. Matiur Rahman, Advocate(s)                         

..... For the petitioner Mr. Ajmalul Hossain QC, Senior Advocate with

Mr. Abdullah Al Hady with

Mr. Aziz Ullah Emon with

Mr. Khalid Mohammad Saifullah, Advocate(s)

…. For the respondent No. 4 Mr. Syed Hasan Zobair, Advocate

…. For the respondent No. 6

Heard both physically and virtually on 12.08.2020, 19.08.2020, 20.08.2020 and

Judgment delivered virtually on 18.03.2021

Present:

Mr. Justice Md. Ashfaqul Islam

And

Mr. Justice Mohammad Ali

Md. Ashfaqul Islam, J:

We are delivering this judgment at the verge of the golden jubilee of

independence of Bangladesh. Only after a few days the country is going to celebrate 50 years of its independence. The protagonist of the judgment is none other than the legend of all time, Father of the Nation Bangabandhu Sheikh Mujibur Rahman, who lives as the greatest Bengali of a thousand years.

At the instance of the petitioner Dr. Kazi Ertaza Hassan who is the Chairperson of “Bangladesh Human Rights Development Commission”, this Rule under adjudication, issued on 02.10.2018, was in the following terms:

“Let a Rule Nisi be issued calling  upon the respondents to show cause as

to why the action of the respondents in distorting the history of Bangladesh by not including the photograph of the father of the Nation Bangabandhu Sheikh Mujibur Rahman and including the photographs of Ayub Khan, the then president of Pakistan and Monayem Khan, Governor

of the then East Pakistan Khan’s in the book namely, “Bangladesh Banker Etihash” should not be declared to have been done without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this court may seem fit and proper.”

At the time of issuance of the Rule this Court directed respondent

No. 1, the Secretary, Ministry of Finance to form an inquiry committee for

holding an inquiry and to submit the compliance within 30 days before this Court.

The background leading to the Rule stated in the writ petition is that a news item published in The Asian Age dated 16.09.2018, wherein, it has been  stated  that  not  a  single  photograph  of  the  Father  of  the  Nation Bangabandhu  Sheikh  Mujibur  Rahman  have  been  printed  in  the  book namely  “  whereas  four  photographs  of  Pakistani Ruler Ayub Khan and East Pakistan’s Governor Monayem Khan found place there. It has also been mentioned in the aforesaid news items that non inclusion of the photograph of “Bangabandhu” in the said book is wilful and a conspiracy against the Government (Annexure-‘B’ and ‘B-1’). It has also distorted the history.

It has been further stated that even after knowing all these facts, the respondents  did  not  take  any  steps  to  include  any  photograph  of “Bangabandhu” ignoring their obligatory duties.

It  has  also  been  stated  that  the  book  “                   (hereinafter referred to as the book) has some astonishing omissions and some alarming inclusions as the book contains no photographs of the father of  the  Nation  Bangabandhu  Sheikh  Mujibur  Rahman  and  his  role  in creation of the Bangladesh Bank. On the other hand the Pakistani Dictator Ayub Khan and Monayem Khan, the Autocratic Governor of East Pakistan both of whom were against the birth of Bangladesh, however, are brought to life through prominent photographs which is painful and alarming.

It has been stated in particular that in chapter 2 page 51 of the said book under caption the declaration of independence  in  the  historic  speech  of  the  father  of  the  Nation, Bangabandhu Sheikh Mujibur Rahman, 7th March, 1971, declaration of independence, 26th March, 1971 and the proclamation of independence 10 Day of April, 1971 have not been inserted properly. The petitioner having been  aggrieved  that  by  ignoring  the same  on  the book  of  the  History Bangladesh Bank and by including the photographs of Pakistani Ruler Ayub Khan and East Pakistan’s Governor Monayem Khan a distortion of history of the independence of Bangladesh have been done and as such, action of the respondents in so doing in the said book namely “

should  be  declared  to  be  done  without  lawful  authority having no legal effect. Under the circumstances having been actuated by this situation the petitioner moved this division and obtained the present Rule and the direction as aforesaid.

Mr. A.M Aminuddin, the learned Senior Advocate appearing with Mr.  Mohammad  Saifuddin  Khokon,  Mr.  Jotirmoy  Barua,  Mr.  Md. Shahjahan and Mr. Md. Matiur Rahman the learned Advocate(s) for the petitioner  after  placing  the  petition  and  by  filing  a  written  argument asserted and narrated what has been already stated in the terms of the Rule as it is.

It  is  their  submissions  that  the  respondents  organized  the  book unveiling programme on 25th March 2018 which is a National Mourning day. The Respondents intentionally excluded the photograph of the Father of the Nation from the book and included four photographs of Pakistani Ruler Ayub Khan and East Pakistan’s Governor Monayem Khan which is absolutely malafide on the part of the Respondents. The Respondents by their conduct have undermined the spirit of our liberation war and distorted the glorious history of liberation. Therefore, the petitioner strongly prays for appropriate action against the Respondents.

It  was  further  submitted  that  according  to  the  statement  of respondent  No.  4,  Fazle  Kabir,  the  Governor,  Bangladesh  Bank  the publication of the book was cancelled on 31.10.2018. After cancellation of the  publication,  the  Respondents  had  neither  made  any  public announcement nor published any notification in any daily newspaper or in the electronic media saying that the publication of the book “

has been cancelled. The petitioner purchased the book out of his own interest and until filing of the instant writ petition had not seen any public  notice  published  by  the  Respondents  withdrawing  the  book  or cancelling the publication in any manner. Therefore, the petitioner being a

conscious citizen of the country and being politically interested person has every right to agitate the matter of distortion of history before this Court.

 They have further submitted that it is evident from the compliance report filed by the Respondent No. 1 that they have committed a palpable wrong by not including the photographs of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman and hence intervention by this Court is very much necessary to prevent this sort of detestable deed in future distorting our history. The petitioner therefore, prays for imposing punishment upon the respondents for their wilful action of not including photographs of the Father of the Nation.

They have further submitted that eventually the respondent No. 1&4 through their compliance and supplementary affidavit admitted that they have printed 2000 copies of the book on 02.08.2019, they managed to recall 250 books out of 2000 and now they have 1529 books in their stock. It means in total 471 copies of the book are still with the readers with distorted fact of our history of liberation war. The petitioner further submits that even a single copy of the book that has been sold with the aforesaid distorted facts of non inclusion is enough to prove their illegal action which warrants action to be taken against the respondents. Therefore, the action of the respondents in not including the photograph of Bangabandhu Sheikh Mujibur Rahman in the "Bangladesh Banker Etihash" should be declared to have been done without lawful authority and is of no legal effect.

On the other hand, by filing affidavit of compliance, affidavit-in- opposition and also a written argument Mr. Ajmalul Haque QC, the learned Senior Advocate appearing for the respondent No. 4 after making elaborate submissions candidly concedes that he will not cross sword on the point of the maintainability of this writ petition. He submitted that this writ petition is maintainable. Therefore, the submissions those have been categorized questioning the maintainability of the writ petition on that score is not required to be addressed by this Division.

The  respondent  Nos.  1  to  6  unequivocally  have  stated  in  their affidavits that it was a bonafide mistake on the part of the Bangladesh Bank for not including the photographs of the Father of the Nation in the book

As per direction of this court at the time of the issuance of the Rule, the respondent No. 1, have submitted compliance on 04.02.2019 wherein they have admitted that

It  is  apparent  from  the  aforesaid  admission  in  the  affidavit  in compliance  filed  by  the  respondent  No.  1  that  the  respondents  have committed gross mistake in not including the name of the father of the nation Bangabandhu Sheik Mujibur Rahman in the said publication.

Further in the inquiry report at page 24 it has been stated:

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Upon conclusion of the inquiry into the matter the inquiry committee opined that by not including of the photographs of the Father of the Nation in the said book a distortion of the history have been committed. It further contended that the respondents No. 4 by supplementary affidavit dated 09.04.2019  submitted  internal  communication  of  the  Department  of Communication  of  Publication  (DCP)  dated  02.04.2019  wherein  at paragraph 3 and 4 it was admitted that  

It  is  evident  from  the  aforesaid  internal  communication  of  the Respondents that the publication was cancelled almost after one month from the date of issuance of the Rule Nisi in the instant writ petition. Thereby, it is clear that they have not given enough effort to rectify the mistake despite knowing that there is a gross distortion of the history in the aforesaid book.

Be  that  as  it  may  we  have  heard  the  counsel  appearing  for  the petitioner and the respondents at length.  In our anxiety we have gone through each and every word of the writ petition, affidavit-in-opposition, supplementary  affidavit-in-opposition  and  other  materials  on  record meticulously  and  with  precision.  From  a  plain  reading  of  all  these affidavits-in-opposition it appears that all of them are trying to impress upon us that before issuance of the Rule on 02.10.2018 all the respondents have taken steps in this regard and collected the books in question and they have admitted that a palpable wrong has been committed on behalf of Bangladesh Bank in the publication of the said book where the photographs of the Father of the Nation did not find its place. It is our feeling and at the same time our view that on whatever manner the respondents tried to convince that by mistake the omission, as it has been seen was done, was not at all wilful and an ordinary mistake. Our question is why this sort of act of such an impact should not be viewed that simply due to gross negligence that was committed. We cannot reconcile why a book of this kind when decided by Bangladesh Bank to be published with so many persons who were involved in compiling and editing the book this unpardonable omission took place which is really unfortunate.

However, at one point of time of hearing, we directed the respondents that all the books so far collected should be destroyed in presence of the learned Counsel of the petitioner. It reminds us that late Mr. Mahbubey Alam who was the Attorney General at that time appeared for respondent No. 1 who also assertively submitted that this kind of callousness should not be viewed with impunity.

However, the leaned Senior Advocate Mr. Ajmalul Haque QC personally took ambit and on several occasions he appeared and assured us that they have already destroyed all those copies after collection which have already been circulated and finally by affidavit dated 18.08.2020 has

drawn our notice on paragraph 6 of the said affidavit wherein it has been stated that on 25.02.2020 from 12:00 pm to 5:00 pm in presence of the members  of the  committee  in presence  of learned  Advocate  Mr.  Syed Hasan Zobair destroyed 1597 copies of  books by cutting  into  pieces  at  Olympic  Products  Printing  and  Packaging,  165, Arambag, Motijheel, Dhaka. Thereafter, 357 copies were destroyed after 01.03.2020 as per Court’s order. Thus (1597+357) copies i.e. 1954 copies were destroyed till date. In the meantime, again Bangladesh Bank collected 22 copies including the learned Advocates’ copies by providing them (the advocates  contesting  the  writ  petition  for  Bangladesh  Bank)  the photocopies of the book. It is mentioned here that 2 copies are kept in the Court’s files and 2 copies are kept in the petitioner’s file i.e. 4 copies will be collected by providing photocopies of the same. Subsequently, these 26 copies will be destroyed soon. Thus, almost all the copies will be destroyed in compliance with the Court’s order. The Deputy Director on 12.08.2020 communicated  the  report  for  submitting  before  the  Court  (Annexure- ‘XVII’).

Further  Mr.  Hassan  Zobair  also  informed  us  that  on  01.09.2020 further 22 copies of the books have been destroyed. However, for better understanding we reproduce the Annexure-XVII below:

Judgment

COVID-19

We  have  already  mentioned  that  the  said  publication  not  only trembled our judicial conscience but also hurt our feelings to observe these entire untoward event that took place and subsequently those were taken  care of in the manner as we have stated above. Certainly, we find force in the submissions of the learned Attorney General that this sort of act should not be tolerated at any point and not to be viewed with impunity.

Let us glean some relevant insights from the celebrated publication on  the  father  of  the  Nation  Bangabandhu  Sheikh  Mujibur  Rahman’s Autobiography,  THE  UNFINISHED  MEMOIRS  (The  University  Press Limited, UPL, Bangladesh, 2012) wherein the Hon’ble Prime Minister Sheikh Hasina’s Preface enshrines the following notes on traits and tenets

of her father’s immaculate personality:-

 “How for the sake of the country and its people a man can sacrifice everything, risk his very life, and endure endless torture in prison. We discover a personality who gave up the prospects of happiness, comfort, relaxation, wealth-everything. How he had  forsaken  all  for  the  sake  of  ordinary people………Throughout his life, the cause of his people was dearest to his heart. Their sufferings would sadden him. The only  vow  he  ever  took was  to  bring  smiles on  the  faces of Bengal's impoverished people and build a golden Bengal. He believed that by enjoying their basic rights to food, clothing, accommodation, education and health they would be able to lead an honourable life. The one thought that was constant in his mind was freeing them from the shackles of poverty. That is why  he  gave  up  all  comforts  and  happiness  and  fought ceaselessly  and  selflessly  to  attain  the  rights  of  his  people through  a  continuous  campaign  till  he  was  able  to  bring freedom to the Bengali nation. He was able to establish the Bengalis as a heroic race in the eyes of the world and create an independent and sovereign country. He was able to make the dream  of  freedom  that  Bengalis  had  been  dreaming  for  a thousand years come true.”

We want to share something relevant and very much pertinent in the context of this decision we are going to deliver. “That was not the best of time” as opposed to the same of Charles Dickens in his all time famous novel ‘A Tale of two Cities’. It was in the year of 2008. Democracy in the country was limping. A notification bearing memo No. 05.01.2001/ /114 dated 3rd August 2002 was challenged from the Bar before the High Court Division. The said notification negated and cancelled observance of 15th August, as the National Mourning Day. Rule was made absolute and the same was reported in 28 BLD 412(Mr. Mozammel Haque vs. Government of  Bangladesh  and  others)  where  fortunately  one  of  us  (Justice  Md. Ashfaqul Islam) was a party. In that decision, we came down heavily and set aside the impugned notification negating and cancelling observance of 15th August as the National Mourning Day holding the same to have been passed  without  lawful  authority  and  is  of  no  legal  effect.  In  the  said

celebrated Judgment we observed:

“Before parting with the matter, we must put on record that Bangabandhu Sheikh Mujibur Rahman is now history beyond the reach of the mortal beings. His voice still reverberates in the hearts of millions. The nation may not find common ground to share  the  achievements  in  the  struggle  and  victory  of  the nationhood but cannot be denied the right to remember in all solemnity the day of dastardly killing of the founder of the Republic. It would be minimum tribute due to the legend.”

That  was  a  really  a  daunting  and  almost  a  greatest  thing  to  be achieved at the point of time but even in that period of time the feelings of the people was respected and the judgment was delivered on 27th July 2008 and the then government on the next day declared 15th August as the National Mourning day. The People of ours carry this feeling which should not be impaired at any cost from any corner at any point of time. However, our considered view is that since the act for which this matter has been brought before this Division as discussed above has been well taken of as per our direction and almost all the copies of the book in question have been destroyed by now and subsequent rectified correct printed version of the book has also been submitted before us, the act impugned against for the said reasons accordingly stands purged.

With these observations and discussions the Rule is disposed of. Communicate at once.

Mohammad Ali, J  

I agree. 

B.O Ismail