IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

      (Special Original Jurisdiction)

WRIT PETITION N0. 630 of 2009 IN THE MATTER OF:

An application under Article 102 read with Article 44 of the Constitution of the People’s Republic of Bangladesh.

AND

IN THE MATTER OF:

A Public Interest Litigation seeking declaration that registration of Bangladesh Jamaat-e- Islami as a political party given by the Election Commission on 4.11.2008, bearing registration No.014, is ultra vires the law (90C and 90 B (i) (b) (ii) of RPO 1972) & the Constitution of the Republic and, therefore, is void ab initio.

AND

IN THE MATTER OF:

Enforcement of Section 90C of the Representation of the People Order, 1972, read with the Proclamation of Independence, Preamble, Part-V, Part-VI, Part-III, Article 7, 10, 11, 14, 19, 25, 26, 27, 28, 29, 33, 39, 41, 65, 94, 101-112 and 114-117 of the Constitution of the People’s Republic of Bangladesh.

AND

IN THE MATTER OF:

Maulana Syed Rezaul Haque Chadpuri and others

.      Petitioners

-Versus-

Bangladesh Jamaat-e-Islami & others.                  

         Respondents

Mrs. Tania Amir with

Mr. Sheikh Rafiqul Islam, Advocates

                                   ... For the petitioners Mr. Abdur Razzaque with

Mr. Belayet Hossain and

Mr. Fariduddin Khan, Advocates

        ..........For the respondent Nos.1-2.

Mr. Mohammad Mohsen Rashid with Mr. Tawhidul Islam, Advocates

. For the respondent No. 4

Heard on: 11.04.2013, 16.4.2013, 18.4.2013, 25.4.2013, 22.5.2013, 03.6.2013, 11.6.2013, & 12.6.2013

And

          Judgment on: 01.08.2013.

Present:

Mr. Justice M. Moazzam Husain

Mr. Justice M. Enayetur Rahim

and

Mr. Justice Quazi Reza-Ul Hoque M. Moazzam Husain, J.

In this case a rule nisi was issued calling upon the respondents to

show cause as to why the registration (Registration No.014 dated 04.11.2008) given to   Respondent No.1 as a political party  by the Respondent No.4 shall not be declared to have been given without lawful authority and is of no legal effect.

Facts leading to this Rule (as transpired from the writ petition), in brief, are as hereunder:

The Election Commission (hereinafter referred to as “the Commission”), in order to hold a free, fair and credible general election exchanged views with the political parties and stakeholders and recommended to the then Non-Party Caretaker Government a set of reforms and amendments in the electoral laws, ie, the Representation of the People Order, 1972, (hereinafter referred to as “the RPO”) including changes in the registration requirements of political parties seeking to participate in elections under the RPO.  Accordingly the Caretaker Government in discharge of its duty under Article 58D (2) of the

Constitution caused the said recommendations to be converted into legislation by promulgation of an Ordinance, being Ordinance No.42 of 2008 dated 19.8.2008. The amended RPO, amongst other things, made registration for the political parties seeking election, mandatory subject to certain qualifications and disqualifications prescribed therefor. The Bangladesh Jamaat-e-Islami (hereinafter referred to as “BJI” or alternately “Jamaat”) along with many other political parties sought registration under the new law. The Commission allowed registration to the BJI notwithstanding the fact that its constitution stood in breach both of the qualification and disqualification clauses contained respectively in Articles 90B and 90C of the RPO. The petitioners’ further case is that the Commission gave the registration to the BJI as of political expediency, because, the registration was necessary for inducing the then four-party alliance, in which BJI was included, to participate in the ensuing election. The registration given as of political expediency, according to them, is a gross violation of law and the Constitution and cannot be allowed to go unchallenged under any excuse or pretext whatsoever.

The petitioners placed on records huge materials regarding deviation of Jamaat from traditional Islam and stated that the faith of the petitioners, as far as statehood is concerned, is rooted back into the Medina Charter signed by Prophet Muhammad (pbuh) himself and countersigned by the representatives of other religions. According to them,  Medina Charter recognized Muslims and non-Muslims as legitimate and equal counterpart in executing a peace treaty between and amongst co-equals and co- inhabitants of the city of Medina. By virtue of the  Medina Charter the Muslim and non-Muslim inhabitants of Medina exercised their free will, right of self-determination and formed themselves collectively a community with collective responsibilities towards each other through a process which displayed early traces of democracy. The Charter of Medina, therefore, encapsulates the pure essence, spirit and nature of Islam and its philosophical basis which is inherently secular and essentially democratic. There is no scope in Islam for creating a state based on Islamic law or creating an Islamic state, monarchy or republic. BJI in fact is an anti-Islamic organization far removed from the traditional Islam. It pursues radical Islam based on the ideology of Maulana Maudoodi and Wahhabism. In the guise of divine law BJI is intending to establish an unconstitutional regime which is antithesis of the freewill within Islam and most importantly purports to annihilate ‘sovereign will’ of the people of Bangladesh and thus its political programme is subversive of the root of our Constitution.  The BJI constitution tends to encourage militancy in its members culminating in modern day ‘jihad’ and various shades of fanaticism and extremism in gaining political power which is opposed to law, Constitution and the fundamental tenets of Islam itself.

The second limb of their case is that the BJI is opposed to the birth of Bangladesh which was founded on the basis of secular and democratic principles. Members of BJI collaborated with the occupation army in 1971, sat in the war cabinet of the enemy, engaged in genocide, war crimes, crimes against humanity, rape, murder, looting, arson, ethnic cleansing and denuding the nation of its intellectuals by systematic killing  thus soiled their hands with the blood of the innocent and unarmed civilians. BJI perpetrated the gruesome atrocities and unleashed a reign of terror through training of Al-Badr, Rajakars and auxiliary forces and guided the occupation army to commit holocaust in the name of Islam. The petitioners are interested to see that a political party guilty of such heinous crimes is not given registration and allowed to do politics in Bangladesh under the banner of Islam.

Technically, the case of the petitioners rests in the ground that the constitution of BJI is not in conformity with qualification clause and hit by disqualification clause laid down under Articles 90B (1) (b) (ii) and 90C (1) respectively of the RPO. Article 90(C)(1) of the RPO disqualifies a political party from being registered if, amongst others, the objectives laid down in its constitution are contrary to the Constitution of Bangladesh and there are manifestations of discrimination regarding religion, race, caste, language or sex. The objectives of BJI- constitution being thus violative of the Constitution BJI stands disqualified to be registered as a political party as per express provision of the RPO.  The registration given to BJI as a political party which was basically disqualified to be registered under law is, therefore, void ab initio and liable to be struck down. More so, the registration was given as of political expediency in order to ensure participation in election of a major political alliance of the time which is illegal and beyond power of the Election Commission.

Respondent No.1 (BJI) appeared and in the midst of hearing filed an application praying for discharging the Rule on the ground that the Rule is premature in that the  issue of BJI registration is still in seisin of the Election Commission and awaiting a decision to be given by the Commission. Subsequently, however, BJI chose to contest the Rule on merit and filed an affidavit-in-opposition. The BJI in its affidavit denies in material particulars all the allegations made against it by the petitioners. The case of the BJI, as transpires from the affidavit-in-opposition and the application as aforesaid, briefly, is that BJI, though a political party based on Islamic values, operates within the purview of the Constitution and the law of the land. BJI recognizes the legitimacy of the Republic and the Constitution.  BJI is ready to make its constitution compliant with the registration requirements and in its bid to do so BJI has been in constant touch with the Commission and already brought about several amendments in its constitution and the last one of the kind was submitted with the Commission on 02.12.2012. The registration that was given to BJI along with other political parties was a provisional/interim registration which may be changed or cancelled by the Election Commission. The provisional registrations were given on provisional constitutions as permissible under Article 90D of the RPO. If BJI fails to comply with law the Commission is well within its power to cancel its registration. The Election Commission is still in seisin of the registration-issue of BJI and yet to give its decision. The Rule, therefore, is premature and not maintainable. Further case of BJI is that the writ petition was filed in 2009 on the basis of an outdated constitution of BJI published in November,

2009. The BJI-constitution has undergone four amendments thereafter. It is an evolving document and the current constitution of BJI was published in January, 2011. The petitioners are busybodies. They have filed the writ petition mala fide to undermine BJI as a political party. Petitioner No.1 having failed to win any seat in the Parliament has filed the writ petition against BJI only, notwithstanding the fact that many other political parties with constitutions not compliant with law were given registration by the Commission.

The Respondent No.4 (Election Commission) contested the rule by filing an affidavit-in-opposition subsequently supplemented by two other affidavits. The case of the Commission, in brief, is that the Representation of the People (Amendment) Ordinance, 2008, was promulgated on 19.8.2008, making it obligatory for the political parties intending to participate in the election to be registered with the Commission subject to conditions laid down in Article 90B of the RPO. The BJI accordingly made an application to the Commission on 20.10.2008 through its Secretary General for registration.  A Scrutiny Committee was formed for examination of the documents submitted by the political parties seeking registration. The Committee after scrutiny of the documents submitted by the parties found, amongst others, some provisions of BJI-constitution conflicting with the Constitution of Bangladesh. The matter was communicated to BJI. Legal Affairs Secretary of BJI came and deleted some of them under his hands and promised the Committee that they would drop the controversial provisions from the party constitution in their next party council. BJI failed to submit amended copy of its constitution as required. In view of the political situation prevailing at the relevant time the Commission, however, granted provisional registration in favour of BJI. Thereafter BJI in response to letters addressed by the Commission made amendments in their constitution time to time and submitted the same in July, 2009 and in July, 2010. The Scrutiny Committee was reconstituted on 14.12.2011. By a letter dated 04.11.2012 the Commission requested BJI to bring about necessary changes in its constitution. BJI by a letter dated 20.11.2012 asked for time till 05.02.2013 to submit amended constitution. BJI, however, submitted a revised constitution on 02.12.2012. Constitution of BJI submitted on 02.12.2012 was scrutinized by the Scrutiny Committee of the Commission and findings of the Committee were noted in a note-sheet for consideration and decision of the Commission. The Commission has taken no further steps on scrutiny report since the High Court Division has meanwhile taken over the issue at the instance of the petitioners.

Mrs. Tania Amir, learned Advocate, appearing for the petitioners made elaborate submissions on alleged departure of BJI from traditional Islam and as follower of  radical ideologies propagated by  Wahhabis’ and Maulana Maudoodi. She basically pointed out in so many words that the traces of secular statehood in Islam as reflected in ‘Medina Charter’ in which a secular, pluralist society on equal-right basis was established under the leadership of Prophet Muhammad (pbuh) himself vis-à-vis the political agenda and history of Jamaat, its role during liberation war, involvement in different atrocities including heinous and inhuman offences like genocide and crime against humanity. On that score only, as she argued,  BJI has no moral right to do politics in Bangladesh. Back to the technical questions of law Mrs. Tania Amir pointedly submitted that the BJI constitution is inherently opposed to our Constitution, its preamble, fundamental principles of state policy and our articles of faith enshrined therein. As for the legal requirements for registration, she submitted that BJI constitution is clearly in conflict with Articles 90B (1) (b) (ii) and 90C

(1)  of the RPO which renders BJI ineligible for registration as a political party.  The Commission, she insisted, does not deny that the BJI constitution is non-compliant with RPO-requirements but still then registration was given understandably as of political expediency.  She contended that nothing, far less political expediency, could justify an otherwise illegal act to be done or continued as such by a constitutional authority like the Election Commission. The impugned registration thus being ex facie and ab intio void is liable to be struck down.

Mr. Mohsen Rashid, learned Advocate, appearing for the Commission did not dwell much on the question of eligibility of BJI to be registered in terms of the RPO requirements.  His contention is that the registration given to BJI was not a registration pure and simple. It was given on provisional basis on a provisional constitution as permitted under Article 90D of the RPO in order to meet the exigencies of time. Similar registrations were given to all the political parties, religion-based or secular seeking registration at the time. But the Commission has never treated the same as final. It has been persistently pressing BJI by letters to bring its constitution back into compliance of law and the Constitution or otherwise to take legal consequence. BJI has responded and taken positive steps from time to time, amended its constitution and lastly submitted its third version on 02.12.2012. The same has been examined by a Scrutiny Committee and findings arrived at by the Committee are recorded to be placed before the Commission for a decision. Since the matter has meanwhile come into consideration by the High Court Division the Commission has postponed all further proceeding of the matter and practically waiting for a decision from the Court. Confronted with the question whether the Commission is enjoined with power to cancel registration of a political party whose constitutional objective is found to be contrary to Bangladesh Constitution, Mr. Rashid submitted that the registration given was merely an ad hoc arrangement and never treated to be final either by the Commission or by the concerned political party. The process is still pending before the Commission and the Commission is well within its power conferred by Section 21 of the General Clauses Act to cancel or rescind the registration temporarily given on provisional constitutions. Apart from the general power, he submitted, in view of the insertion of  Sub-Article 90H (f) in Article 90H of the  RPO by a subsequent amendment the Commission is now enjoined with power to cancel registration of a political party on the ground that its constitutional objective is contrary to the Constitution of the Republic.

Mr. Abdur Razzaque, learned Advocate, appearing for Respondent Nos. 1 and 2 raised essentially four contentions, namely, a) that the writ petition is premature and not maintainable b) that the petitioners do not have any  locus standi to file this case c) the BJI constitution is not inconsistent with the Constitution or the law and d) that the RPO is unconstitutional as it tends to hinder democratic process than promotes it. The last contention, however, is not related to the issue at hand.

Mr. Razzaque tried to explain his first point by mention of the fact that the law requiring registration of political parties underwent sudden and drastic changes during the last Caretaker Government with the introduction of stringent conditions difficult to be complied with within a short span of time. The lawmakers, in anticipation of the difficulties, brought further amendment in the RPO allowing registration on the basis of provisional constitutions subject to certain conditions. Almost all the political parties, including BJI, took the opportunity and got registration for the purpose of election on the basis of provisional constitutions. Although election was held the Commission did never abandon the issue. It has been pursuing the matter ever since.

After the election was held, Mr. Razzaque submits, the Commission sat on a meeting on the issue, found constitutions of at least thirteen political parties, including Bangladesh Nationalist Party (BNP), Workers Party, Jatio Samajtantric Dal (JSD) National Awami Party (NAP), Jatio Party, Jamaat-e-Islami, Tariqat Federation, Zaker Party and Bangladesh Khelafat Andolon  non-compliant with the RPO. The Commission decided to issue letters to them urging upon them to update their constitutions in keeping with law. Pursuant to the decision the Commission issued letters to BJI. And the BJI responded to the letters of the Commission positively and thrice amended its constitution in order to update the same in line with law and the Constitution. The last one of the kind was received by the Commission on 02.12.2012.  The Commission has never treated the registration of BJI as final nor does the BJI treats it as final. Subsequently, the Scrutiny Committee was reconstituted for examining the constitutions of the parties which examined amended constitutions of BJI and recorded its findings for consideration of the Commission. The proceedings before the Commission had to be postponed on account of the pendency of the present Rule.

Mr. Razzaque next submits that, the question of other parties apart, the constitutions of three Islamist parties, namely, Tariqat Federation of which petitioner No. 1 is the General Secretary and Petitioner No.14 is the Publicity Secretary, Zaker Party, of which petitioner No.2 is the General Secretary and of Bangladesh Khelafat Andolon were also found by the Scrutiny Committee non-compliant with the RPO requirements but they were given registration.  Despite the fact that the parties of the three leading petitioners stand on the same footing with BJI so far as registration is concerned, they have filed the writ petition without saying a single word about their own disqualifications. They have also not mentioned the fact that Bangladesh Khelafat Andolon, an Islamist party, whose constitution was found by the Scrutiny Committee to be violative of both qualification and disqualification clauses of the RPO has also been given registration by the Commission.  The petitioners chose not to challenge the registration of Khelafat Andolon either.  This non-mention of material facts, let alone the pick and choose made, he insisted, constitutes gross suppression of material facts which is singly enough to render the rule liable to be discharged.  Mr. Razzaque, in support of his contention, referred to the case of Dr. Mohiuddin Faruque v Bangladsh, 49 DLR (AD) 1; SP Gupta & others v President of India & others, AIR 1982 SC 149; Md. Shajahan Santa v Bangladesh, 17 BLC 844 and KR Srinivas v RM Premchand, (1964) 6 SCC 620.

The third contention sought to be canvassed by Mr. Razzaque is that the scrutiny committee subsequently formed for examining the party constitutions examined the amended BJI-constitution submitted on 02.12.2012. The committee already submitted its report contained in Annexure-27. In the report the committee found all the changes, except one, brought in the original constitution acceptable as consistent with law and the Constitution. It is against only one controversial area that the committee opined that the BJI-constitution is still at variance with Articles 8,9,10, 11 and 12 of the Constitution which, he argues, is misconceived and open to clarifications to be made before the Commission. The point sought to be made by him, therefore, is that BJI constitution, by its latest position, is no more inconsistent with the Constitution or the law.  

 In this case there is a co-mingling of a set of Muslim clerics, a number of ordinary citizens and three members of Amra Muktijyoddhar Santan (an organization composed of the children of the martyrs of the liberation war) who conjointly brought the petition. More specifically, twelve petitioners (Petitioner Nos. 1-11 and 14) are Muslim clerics and they professedly are believers of traditional Islam which, according to them, is inherently secular, tolerant, peaceful, non-sectarian, non-communal and non- discriminatory. They, as opposed to Jamaat, are pro-liberation clerics. Among them petitioner Nos. 1, 2, 3 and 14 are directly involved in religion- based politics.  Petitioner Nos. 1 is the  Secretary General of Tariqat Federation. Petitioner No.2 is the Secretary General of Zaker Party and Petitioner No. 3 is the President, Sammilito Islamic Jote. Petitioner No.14 is the Publicity Secretary of Tariqat Federation. Records suggest that the constitutions of the first two parties were found by the Scrutiny Committee non-compliant with Article 90B of the RPO. They were given registration by the Commission. Another Islamist party named Bangladesh Khelafat Andolon constitution of which was found to be violative of both Articles 90B and 90C of the RPO was also given registration by the Commission. There is no mention about the facts in the petition and the petitioners are conspicuously silent about them.

Ten petitioners ie, petitioner Nos. 12-13, 15 and 19-25 are ordinary citizens who did not disclose their special identity or special case as to how they are concerned about the BJI registration. Petitioners Nos. 16-18 are members of “Amra Muktijyodhar Santan”  who have not made out a separate case of their own. They are unlikely to share the whole range of sentimental grievances of the clerics. They being descendants of the victims of Jamaat’s atrocities during liberation war bear inborn hatred and contempt for the party. They naturally are interested to see BJI is not given registration as a political party and is not allowed to do politics in Bangladesh. 

With the above background the petitioners brought this petition in the form of public interest litigation (referred to hereinafter as “PIL”) challenging the registration of BJI on the ground stated above.

From the sentimental point of view the case of the petitioners obviously carries weight with the people in general. They having come to court as petitioners of a legal action cannot unfortunately depend on mere sentiment and must stand the test of law before being qualified as such. Since the action brought by them is in the nature of PIL the test is still stricter.

The PIL jurisprudence has developed over the decades essentially as a mechanism for protection of basic human rights and fundamental freedom of backward and underprivileged section of the people violated by the state or its instrumentalities. Superior courts, in their anxiety to reach justice to the backward and the underprivileged section of citizens allowed, in fit circumstances, public spirited persons or organizations to maintain action on a liberal view of standing and thus ensured them access to justice. It is in the sense that the PIL owes its existence in the privilege granted by the courts by an extended meaning of the traditional rule of standing. Since PIL is an exception to the general rule of standing the petitioners have to go through certain test based on some principles developed over the decades, for example, the petitioner should a public spirited person and must approach the court bona fide for public purpose. There must exist ‘public injury’ or ‘public wrong’ resulting from actions of the state or  its instrumentalities sought to be remedied. The privilege must not be allowed to persons or organizations approaching court with ulterior motive for satisfying personal grudge, generating publicity or public sensation. A brief account of the developments of PIL would be of use in appreciating the competence of the petitioners as petitioners of a pro bono action of the present kind.

In the United States, the country of the origin of the public interest litigation, the public interest law gained currency in 1960’s and by activisms of lawyers and various social action groups the frontiers of locus standi has remarkably expanded with the resultant development of public interest litigations covering multiple areas like minority rights, race and gender relations, public health, environmental pollution, social exploitations, consumer protection etc.

In 1970’s England  found a champion of public causes in Mr. Raymond Blackburn, a former MP, who  generated a considerable  expanding thrust in the rigid mould of standing by filing a series of cases known as ‘Blackburn Cases’. The court heard Mr. Blackburn in those cases filed challenging inaction of police in prosecuting gaming houses, action of the government in joining European common market and for enforcing public duty owed by the police and Greater London Council in respect of exhibition of pornographic films. In all the cases the applicants, though not aggrieved in the ordinary sense, were found to have locus standi as they have “sufficient interest” in the performance of public duties. By early 1980’s when the House of Lords was deciding the case of IRC v Federation of Self Employed, (1981) 2 All E R 93, the court was insisting only on ‘sufficient interest’ not on the applicant’s personal grievance. Meanwhile Rules of the Supreme Court was introduced and the Supreme Court Act, 1981 came into being in which liberalized rule of standing was recognized.

In India Public Interest Litigation has attracted huge literature focused by and large on public injury or public wrong affecting common man specially the downtrodden, underprivileged and socio-economically backward sections of the population.  The basic concern that worked behind development of the PIL in India is to see that huge number of its population belonging to socio-economically backward strata, who are neither aware of their constitutional or legal rights nor have the ability to afford the huge expense of litigations, get access to justice and do not lose confidence in the rule of law. Articles 226 and 32 of the Indian constitution which confer jurisdiction upon the High Courts and the Supreme Court respectively to issue writs, orders, directions etc do not contain the restrictive phrase ‘person aggrieved’ for filing writ or constitutional petitions. Article 32 empowers the Supreme Court to issue writ only for enforcement of fundamental rights. In  the peculiar constitutional and factual background Supreme Court of India practically initiated its contemporary journey in the area of public interest litigations with the case of Mumbai Kamgar Sabha v Abdullah, AIR 1976 SC 1455, wherein Krishna Ayre, J stated:

“Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualization of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker.” 

The Supreme Court thereafter came down heavily in aid of the downtrodden, backward and underprivileged sections of people and allowed standing to public spirited persons and organizations as petitioners seeking enforcement of fundamental and other rights of the helpless victims of public wrong and public injury. Down the line came the famous cases like People’s Union for Democratic Rights v Union of India; Olga Tellis v Mombay Municipal Corporation; Vellore Citizen’s Welfare Forum v Union of India; Bandhu Mukti Morcha v Union of India; Charanlal Sahu v Union of India; MC Mehta v Union of India; Paramanand Katara v Union of India; Banwasi Sheba Asram v State of UP and many others. All these cases are someway or other relatable to right to life of the vulnerable section of the population. In the People’s Union for Democratic Rights v Union of India, (1982) 3 SCC 235, standing was allowed to a public spirited organization  on behalf of the laborers engaged in construction works in the various projects  connected with Asian Games,1892 complaining payment of wages less than what was minimum permissible by law. While explaining the nature and scope of PIL, Bhagwati, J stated:

“   We wish to point out with all the emphasis at our

command that public interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses is a totally different kind of litigation it is intended to promote and vindicate public interest which demands that violation of constitutional and legal rights of large number of people who are poor, ignorant or socially or economically disadvantaged position should not go unnoticed and unreddressed.”

In Olga Tellis v Bombay Municipal Corporation, (1985)3 SCC 545, Supreme Court allowed standing to journalist and social activists  to maintain petitions complaining plight of several slum-dwellers of Bombay facing eviction and demolition of pavements. In Vellore Citizen’s Welfare Forum v Union of India, (1996) 5 SCC 647, Supreme Court accorded standing to a public spirited organization to vindicate rights of the victims of tannery-pollution. In Bandhu Mukti Morcha v Union of India, (1984) 3 SCC 161, a letter addressed to the Supreme Court by a public spirited organization complaining that several workers were kept as bonded laborers in certain stone quarries was treated as a writ petition.  In Charanlal Sahu v Union of India, (1989) 4 SCC 286, Supreme Court, on a PIL petition, provided immediate relief to the victims of Bhopal gas leak tragedy. In a similar case, ie, in MC Mehta v Union of India, (1987) 1 SCC 395, on a PIL petition filed by a lawyer, Supreme Court granted relief to gas leak victims of Shriram Fertilizer & Chemical Plant, Delhi. In Paramanand Katara v Union of India, (1990) 1 SCC 613, Supreme Court, on a PIL petition, issued direction to the Government that every injured person brought for medical treatment should immediately be given medical aid without waiting for police formalities. In  Banwasi Sheba Asram v State of UP, (1993) 2 SCC 612, on a PIL petition Supreme Court

granted relief to the Adibashi community and other backward section of people using forest as their habitat and means of livelihood against their eviction.

The Supreme Court while maintaining its main concern to reach the poor and underprivileged through PIL, sometimes traveled beyond and allowed standing to public spirited persons or organizations complaining violation of constitutional and legal obligations affecting determinate or indeterminate class of people irrespective of their socio-economic background. In Communist Party of India(M) v Bharat Kumar, (1998) 1 SCC 2001, Supreme Court upheld the judgment of the High Court of Kerala declaring “bandh” ordered and enforced by political parties illegal as violative of fundamental rights of citizens. In  Union of India v Association for Democratic Reforms,  (2002) 5 SCC 294, the question raised was that whether a voter has the right to information regarding assets and liabilities, educational qualification, involvement in offence, if any, of the candidate seeking election. Supreme Court allowed standing to an organization working in the field. In Bangalore Medical Trust v Muddappa, (1991) 4 SCC 54, local residents approached the High Court challenging allotment of a land earmarked in the development plan as park to a private trust for construction of nursing home. The petition made by the residents was allowed. Supreme Court upheld the judgment passed by the High Court.

The case of SP Gupta v Union of India, AIR 1982 SC 149, (popularly known as ‘Judges’ Transfer Case’)   is the first leading decision of Supreme Court on PIL. In this case Supreme Court entertained a petition filed by some practicing lawyers challenging the constitutionality of the circular issued by the Law Minister regarding transfer of the High Court Judges and non-confirmation of the sitting Additional Judges of the High Courts (at one stage the affected Judges joined the proceeding as petitioners). Standing was allowed on the ground that the independence of judiciary is a matter of grave public importance. While according standing Bhagwati, J, stated:

“There can be no doubt that the practicing lawyers have a vital interest in the independence of the judiciary and if any unconstitutional and illegal action is taken by the State or any public authority which has the effect of impairing the independence of judiciary they would certainly be interested in challenging the constitutionality or legality of such action. They had clearly a concern deeper than that of a busybody and they cannot be told off at the gate.”

At the same time his Lordship expressed a note of caution in the following words:

“But the individual who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration the court should not allow itself to be activised at the instance of such person and must reject his application at the threshold.” (Emphasis added)

In Benazir Bhutto v Pakistan, PLD 1988 SC 416, Pakistan Supreme Court held that as Article 184(3) is open-ended the proceedings could be maintained by an individual whose fundamental rights are infracted or by a person bona fide alleging infraction of the fundamental rights of a class or group of persons as there is no rigid incorporation of the notion of aggrieved party in art 184(3). In Darshan Masih v State, PLD 1990 SC 513, Pakistan Supreme Court   entertained telegram as a petition for enforcement of the fundamental rights of bonded laborers. Both Indian and Pakistan Supreme Court, in extending traditional rule of standing, obviously enjoyed the added advantage of the absence of the qualifying phrase “person aggrieved” in their respective constitution. Whereas PIL has come to stay, it has also suffered extensive criticism especially in India for rampant misuse.

Clear reflection of the criticism is noticed in many of the later judgments of the Indian Supreme Court in which it appears that the Supreme Court has made an apparent shift from its earlier position and followed a policy of restrictive interference. In Sachidanand Pandey v State of WB,  (1987) 2 SCC 295,  Khalid, J, (in concurring the main judgment) observed:

 “My purpose in adding these few lines of my own is to highlight the need for restraint on the part of the public interest litigants when they move courts. Public interest litigation has now come to stay. But one is led to think that it poses a threat to courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameter foe entertainment of such petitions. If courts do not restrict the free flow of such cases in the name of public interest litigations, the traditional litigation will suffer and the court of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions.”

      His Lordship further observed:

It is only when courts are apprised of gross violation of fundamental rights by a group or class action or when basic human rights are invaded or when there are complaints of such acts as shocks the judicial conscience that the courts, specially this court, should leave aside procedural shackles and hear such petition and extend its jurisdiction under all available provisions for remedying the hardship and miseries of the needy, the underdog and the neglected.” (Emphasis supplied)

In B. Singh v Union of India, (2004) 3 SCC 363,  the Supreme Court held:

      “Public interest litigation which has now come to occupy an important field in the administration of law should not be “publicity interest litigation’ or ‘private interest litigation’ or ‘politics interest litigation’ or the latest trend ‘Paise Income Litigation’.  If not properly and strictly regulated at least in certain vital areas or spheres and abuse averted, it becomes also a tool in the unscrupulous hands to release vendetta  It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity”. (Emphasis supplied).

Back in Bangladesh, Article 102 of the Constitution, save in cases of orders in the nature of habeus corpus and quo warranto,  makes standing available only to a “person aggrieved.” Article 102(1) of our constitution empowers the High Court Division to issue directions or orders for enforcement of fundamental rights on an application made by a person aggrieved.  Article 102(2) further restricts access to judicial review by inserting the rider “if no other equally efficacious remedy is provided by law.” With the peculiar jurisdictional restrictions Supreme Court of Bangladesh did not lag far behind in its bid to reach justice to the poor and the underprivileged in times of their need. Our Supreme Court responded almost contemporaneously with the Indian Supreme Court in according standing to citizens in matters of constitutional issues of grave importance. In  Kazi Mukhlesur Rahman v Bangladesh,  26 DLR (AD) 44, the constitutionality of the Delhi Treaty of 1974 seeking to demarcate the land boundary between Bangladesh and India in certain areas was challenged by an Advocate as violative of his fundamental right. The Appellate Division while maintaining his petition made the following observation:

“The fact that the applicant is not a resident of South Berubai.or the adjacent enclaves involved in the Delhi Treaty need not stand in the way of his claim to be heard in this case. We heard him in view of the constitutional issue of grave importance raised in the instant case involving an international treaty affecting the territory of Bangladesh and his complaint as an impending threat to his certain fundamental rights ”

 After Mukhlesur Rahman the noble journey just started, lapsed into long slumber largely due to extra-constitutional interventions into the constitutional order. Quite a long time thereafter the question of standing again came up in 1990 before the Supreme Court. Bangladesh Sangbadpatra Parishad (Bangladesh  Sangbadpatra Parishad v Bangladesh, 43 DLR (AD) 126) challenged an award passed by the Wage Board. High Court Division refused to allow standing to the Sangbadpatra Parishad.  The Appellate Division upheld the finding of the High Court Division and in contrast with Indian development, observed:

 “In our constitution the petitioner seeking enforcement of fundamental right or constitutional remedies must be a ‘person aggrieved’. Our constitution is not at pari materia with the Indian constitution on this point. The Indian constitution, either in article 32 or in article, 226, has not mentioned who can apply for enforcement of fundamental rights and constitutional remedies. The Indian courts only honoured a tradition requiring that a petitioner must be an aggrieved person. The emergence in India of pro bono publico litigations, that is litigation at the instance of a public spirited citizen espousing cause of others, has been facilitated by the absence of any constitutional provision as to who can apply for a writ.”

Series of cases followed after  Sangbadpatra Parishad  in which standing was allowed to public spirited persons and organizations to maintain petitions vindicating constitutional and legal rights relating to health hazard, environment, flood control, unlawful detention and so on among which the case of Dr. Mohiuddin Faruque v Bangladesh, 49 DLR (AD) 1, is the leading and most comprehensive. In Mohiuddin Faruque Appellate Division held:

“ when a public injury or public wrong or infraction of

fundamental rights affecting an indeterminate number of people is involved it is not necessary, in the scheme of our constitution, that the multitude of individuals who has been collectively wronged or injured or whose collective fundamental rights have been invaded are to invoke the jurisdiction under article 102 in a multitude of individual writ petitions, each representing his own portion of concern. In

so far as it concerns public wrong or public injury or invasion

of fundamental rights of an indetertminate number of people,

any number of the public, being a citizen, suffering the common injury or common invasion in common with others

or any citizen or an indigenous association, as distinguished from a local component of foreign organization,  espousing

that particular cause is a ‘person aggrieved’ and has the right to invoke jurisdiction under article 102.”(Emphasis supplied)

The Appellate Division, alongside liberalization of standing rules for public interest, formulated some guidelines for the High Court Division so

that its jurisdiction is not misused at the hands of unscrupulous litigants.

The guidelines are handed down by the Appellate Division in the following words:

“The High Court Division will exercise some rules of        caution in each case. It will see that the applicant is, in fact,      espousing a public cause , that his interest in the subject        matter is real and not in the interest of generating some        publicity for himself or to create mere public sensation, that        he  is  acting  bona  fide,  that  he  is  not  a busybody  or  an        interloper, that it is in public interest to grant him standing

and that he is not acting for a collateral purpose to achieve

a dubious goal including serving a foreign interest.” (Emphasis added)

Down the line came the case of ETV Ltd. v Dr. Chowdhury Mahmud Hasan & others, 54 DLR (AD) 130, in which standing was granted to two professors of Dhaka University and the President, Bangladesh Federal Union of Journalist to challenge the licensing agreement between the Ministry of Information and one SM Mahmud and thereafter approval to transfer the license to ETV (a private TV channel). The allegation was no less than of tampering evaluation report by the official of the concerned Ministry placing the one particular bidder from the rejected list to the top and thereupon signing the contract with one private individual, not a commercial enterprise, not participating in the bid, to install and operate a private TV channel. This was treated by the Supreme Court to be a desperate case of abuse of public office highly derogatory to the rule of law affecting public interest. And the Supreme Court considered the concern shared by three responsible citizens in this respect to be bona fide and allowed standing to them to maintain an action pro bono publico.

With the progress of PIL in our jurisdiction, as in India, many publicity- mongers, interlopers and ill-advised self seekers turned ambitious and took up PIL as a tool for serving their hidden purposes. Thus PIL fell into abuse at the hands of the unscrupulous litigants. In the background came the case of Sayeda Rezwana Hasan (Unreported), Civil Appeal No. 200 of 2004 and NBR v Abu Saeed Khan (unreported), Civil Appeal Nos. 38- 39 of 2007. A plain reading of the aforesaid decisions in the above cases suggests that the Appellate Division took serious notice of the persistent misuse of court’s discretion in the name of PIL and in its anxiety tried to bring the unbridled activism in the area into discipline by setting out parameters to be followed. In Rezwana Hasan Appellate Division held that filing of PIL is essentially meant to protect basic human rights of the disadvantaged citizens and the High Court Division should guard that filing of such petition does not convert into “publicity interest litigation” or ‘private interest litigation’. The case ofb NBR v Abu Saeed Khan (supra) is the latest in the line in which Supreme Court took restrictive view in granting standing for  pro bono action.  Here the petitioner, a freelance

journalist, challenged an allegedly arbitrary fixation of tariff value and imposition of supplementary duty thereupon on the SIM card/mobile telephone connections thereby driving up the charge of phone connection beyond the affordable capacity of the citizens. In this case the Appellate Division has taken serious notice of the abuse of court process in the name of PIL. SK Sinha, J, speaking for the court, made the following observations:

“Nowadays, it is noticeable that a group of lawyers have developed a tendency of filing PIL petitions on behalf of persons or organizations challenging the propriety of the Government in taking decisions relating to policy matters, its development works, orders of promotions and transfers of public servants, imposition of taxes and fixation of tariff value by the authority for achieving dubious goal for generating publicity for themselves or to create public sensation. The High Court Division has been taking cognizance of those petitions without looking at whether or not such petitions are at all maintainable in the light of the principles settled by this Division in  Mohiuddin Faruqe, Professor Mozaffar Ahmed and Syeda Rizwana Hasan ”

His Lordship further observed:

“A person who has filed a petition for personal gain or for private profit or personal propaganda or political motive or any other extraneous considerations will not be entertained High Court Division does not have power to take cognizance of any petition which trespasses into the areas which is reserved to the executive and legislative by the Constitution.”

In the aforesaid case Appellate Division found it expedient to outline certain principles for the court to be followed and indicated certain areas to which discretion of the court must be confined while taking cognizance of a PIL petition. An abridged version of the principles is a) there is no scope in PIL for serving private or publicity interest or to attain dubious goal. Therefore, bona fide of the petitioner in PIL is important. His bona fide must be tested against the absence of the actually affected person. If no satisfactory answer is given for non-appearance of the affected person the petition may not be entertained  b) policy decision of the Government, development works, orders of promotion or transfer of public servants are not open to challenge in PIL c) PIL is essentially meant to protect the poor and disadvantaged who are unable to reach the court by reason of their poverty or other constraints. The areas of PIL ,activity as the Appellate Division has specially identified are: cases of child abuse, non-payment of minimum wages, exploitation of casual workers, custodial torture or death, violence against women and children, environmental pollution and disturbance of ecological balance, drug and food adulteration. 

A plain reading of the leading cases of different jurisdictions suggests that the basic thrust of PIL has always been to protect fundamental freedom and basic rights of the backward and less fortunate section of the people but at times PIL surpassed its narrow frontiers and developed in other  dimensions of public causes. Thus Superior courts in appropriate cases found it proper to allow standing to individuals having sufficient interest to maintain action treating constitutional questions of grave importance or gross and manifest abuse of public office which shocks public conscience. In the ever evolving trend of PIL pro bono cases have, save in cases of misuse, consistently followed certain common principles.  Courts have always insisted on existence of either a public or private wrong or injury suffered by any determinate or indeterminate class or group of persons or individuals; the wrong or injury must result from an act or omission of the state or of a public authority done in violation of their legal or constitutional obligations; any member of public approaching court must have sufficient interest and must be acting bona fide. Extreme caution is taken to prevent mere busybodies or persons coming to court with ulterior motive for satisfying private or publicity interest or persons coming for satisfying personal grudge or enmity. 

Since the concept of ‘public wrong’ or ‘public injury’ and ‘private wrong’ or ‘private injury’ has assumed technical meanings in PIL literature those concepts must of necessity be seen in that context.  

Public wrong or public injury has assumed a distinctive meaning in PIL as against private wrong or injury. Every wrong or injury is not a public wrong or injury in PIL sense. Public wrong or injury as opposed to public sentiment, emotion or curiosity is relatable to public interest. Public interest is nowhere defined in our Constitution or General Clauses Act. In Stroud’s Judicial Dictionary ‘public interest’ is defined as follows:

“Public Interest”- A matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement; but that in which a class of the community have a pecuniary interest or some interest by which their legal rights or liabilities are affected.”  (Emphasis supplied)

It follows from the definition of public interest given by Stroud that public wrong or injury is relatable to act affecting legal right or liabilities of the public which means violation of legal rights or obligations of a community or class. PIL, however, remained no more confined to cases of violation of legal rights or liabilities in their strict sense. It was also available in cases involving constitutional questions of grave importance or gross abuse of power by the state or public authorities affecting people in general.

The concept of public as against private wrong is more succinctly stated in SP Gupta. In SP Gupta Bhagwati, J, observed that if any specific injury or wrong suffered by a determinate class or group of persons resulting from an act of the state or public authority done in violation of its constitutional or legal obligation it is a ‘private wrong’ or ‘private injury’ specified as against the affected individual or the determinate class or group of persons. Since the injury to life, liberty, body or property is specific injury meted out to an individual or determinate class or group of persons remedy lies in traditional adversarial system. Any of the affected individual or group of individual or any member of the public acting bona fide  can maintain an action for the affected persons if they are unable to approach the court by reason of their social, economic or other constraints. But if any act of the state or any public authority done in violation of constitutional or legal obligation which causes injury or wrong to the public in general and there is no specific injury as against any of the affected persons the injury or wrong is a ‘public injury’ or ‘public wrong’. In such circumstances any member of public acting bona fide and having sufficient interest in seeking remedy can maintain an action.

The Muslim clerics are certainly respectable persons in the society and their long ideological struggle against BJI as a party allegedly pursuing radical Islamist agenda in politics and contempt for them especially on account of their hateful role during liberation war may be appreciated. Their grievance against registration of Jamaat and its politics in Bangladesh is also shared by the people in general.  The three petitioners belonging to  Amra Muktijyoddhar Santan as well as other children of the martyrs of liberation war deserve and indeed enjoy highly compassionate and respectful attention of the whole nation. None can afford to demean or belittle their personal sufferings and their concern against the registration given to BJI as a political party and thereby allowing them to do politics in Bangladesh. But unfortunately for both the groups of petitioners, law is blind and since they have resorted to law they must take in good grace the technical language of law even if unkind.

Reverting to the case, the statements made in the writ petition clearly indicate that the twelve leading petitioners as Islamic clerics belong to traditional school of Islamic thoughts and ideologies while BJI, according to them, pursues radical ideologies of Maulana Maudoodi and Wahhabism which pursues radicalism, extremism and militancy not approved by Islam. This ideological disapproval of the petitioners virtually turned them hostile to BJI.  Especially for petitioner Nos. 1, 2, 3 and 14 their conflicting religious ideologies with BJI have received an added dimension from their political opposition to them. It is also not difficult to infer that the above four leading clerics conceived the idea of fighting BJI in court and in their bid to give their move a label of bona fide organized eight other clerics belonging to their ideologies and they again conjointly made ten of their own men having no special identity to join them as petitioners. The three members of Amra Muktijyoddhar Santan who joined the petition seemingly lent their names on persuasion out of their inherent hatred to Jamaat.

There is nothing on records to show that they or any of the petitioners are public spirited persons and working in the legal field to vindicate public causes. Their apparent grievance against registration of BJI is merely sentimental not legal.  Mere sentimental grievance or injury, however genuine or grave, does not confer standing in law to maintain  pro bono action. Technically, the petitioners are not public spirited persons and have practically come to court (in the language of law) with ulterior motive obviously to satisfy their grudge against an old enemy. Furthermore, the petitioners did not disclose anywhere in their petition that the parties of petitioner Nos. 1, 2 and 14 participated in the same registration-race with BJI with similar non-compliant constitutions and obtained registration as political parties exactly as was done by BJI. They did not also mention the fact that Khelafat Andolon, another Islamist party suffering no less disqualification than BJI, also got registration at the same time. The petitioners did not  challenge their registration either. The conspicuous silence of the petitioners on the above facts amounts to suppression of material facts on the one hand and signifies that they have not come with clean hands on the other which is the basic foundation of PIL.  It is, therefore, not difficult to conclude that the petitioners seriously lack in bona fide so as to qualify as such to maintain a pro bono action.

Next comes the question of ‘public wrong’ or ‘public injury’ or   ‘private wrong’ or ‘private injury’ suffered by any determinate or indeterminate class or group of persons resulting from violation of the constitutional or legal obligations by the state or any public authority. The public or private wrong as discussed above are essentially relatable to act violative of or derogatory to public interest which means that the act must adversely affect public interest or there must be manifest abuse of public office so as to create a public wrong strictly in its technical sense, affecting the people in general.

In the instant case there is nothing on records to show that there is existence of any public wrong or injury in their technical sense or there is any occasion for people determinate or indeterminate in number to suffer any wrong, public or private, on account of violation of any constitutional or legal obligations by the state or any public authority.

 Here in this case, as indicated in the petition and other materials on records, Election Commission as a constitutional body, propelled by mixed thrust of law and policy, having been confronted with difficulty to reconcile strict compliance of newly made registration law and the  mounting pressure for  holding the election with participation of all the political parties and alliances allowed registration to a good number of political parties including BJI on the basis of their provisional constitutions not fully compliant with law. The election was thus held with participation of all the political parties and alliances and democracy was restored. After the crisis was over the Commission took steps for review of registration and has been insisting on compliance of the party constitutions with the registration law. The registration so given by the Commission at a crisis moment without strict adherence to law cannot, by any stretch of imagination, cannot be said to have resulted in ‘public injury’ or ‘pubic wrong’ let alone suffered by any determinate or indeterminate number or group of people so as to justify pro bono action.

Seen in the light of what has been discussed above I have no hesitation to say that the writ petition is not maintainable as pro bono publico for the precise reason that there is no ‘public wrong’ or ‘public injury’ in their technical sense, resulting from the registration of BJI, let alone, suffered by any determinate or indeterminate group or class of people and that the petitioners’ are not public spirited persons and their bona fide is tainted with grudge and hatred.

A question may and indeed was faintly raised that three of the petitioners (members of Amra Muktijyoddhar Santan), in response to a general notification issued by the Commission in pre-registration days, lodged (along with a good number of other social organizations) formal protest against probable registration of Jamaat, therefore, they may be treated as ‘persons aggrieved’ if not qualified to maintain pro bono action and the petition may be treated as a regular writ petition. The answer is latent in the discussions made above in that one who does not fit in the flexible mould of standing rule cannot fit in the rigid mould. Nevertheless, for argument’s sake if the petition is treated as a regular writ petition can the petitioners be treated as ‘persons aggrieved’ as contemplated under Article 102(2) (a) of the Constitution which necessarily means they must be persons against whom a decision or order has been passed which has affected their right, liberty or interest recognized by law. Mere protest raised against a possible decision of a public authority does not ipso facto qualify the protesters as persons aggrieved. In  Ex parte Sidebotham [(1880) 14 Ch.D.458] James, LJ, stated:

“The words ‘person aggrieved’ do no really mean a man who is disappointed of a benefit which he might have received if

some other order has been passed. A ‘person aggrieved’ must be a man who has suffered a legal grievance, a man

against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused

him something , or wrongfully affected his title to something.” A comparatively liberal view of the expression ‘person aggrieved’ was taken in the case of  Attorney General of Gambia v Pierra Sarr N’Jie [(1961) 2 All E R 508] wherein Lord Denning stated:

“(T)he words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.”

This again does not come in aid of the petitioners for every interest does not confer locus standi upon a person to invoke the power of judicial review. The word ‘interest’ is used in qualified sense under law. Any person aggrieved can maintain an action but any person interested may not have  locus standi to file a petition.  Thus, a person who has purchased a property subsequent to filing of the petition may, at best, be called a ‘person interested’ but not a ‘person aggrieved’ inasmuch as no right or title to the property vested in him on the date of filing the petition. Similarly a person annoyed or hurt or even shocked by any act of an authority may not be a ‘person aggrieved’ in the technical sense. Although conceptually the expression ‘person aggrieved’ cannot be fit in a straight jacket there has been a lose but consistently followed parameter of the phrase. In the landmark case of  Jashbhai Motibhai v Roshan Kumar reported in (1976) 1 SCC 671, Supreme Court of India described ‘person aggrieved’ as person whose legal right has been infringed or who has suffered legal wrong or injury in the sense that his interest recognized by law has been prejudicially and directly affected by an act or omission of the authority.  It is, therefore, a logical fallacy to suppose that persons who do not stand the test of liberal rule may stand the rigid rule of standing as contemplated under Article 102(1) (a) of the Constitution.

Next and possibly the most important point in this case is whether the rule is premature. It appears from the annexures referred to by Mr. Razzque that the Commission addressed series of post-registration communications to BJI asking the latter to update its constitution in keeping with the requirement of law. Letters issued by BJI in response indicate that BJI took positive steps towards updating its constitution so that it may be acceptable to the Commission. Records suggest that the registration given on provisional constitution is not treated to be final by any of the parties to the registration and ever since the registration BJI brought about three amendments in its constitution in their bid to make it compliant with law. The last such amendment appears to have been submitted by BJI and was received by the Commission on 02.12.2012. It further appears that the Scrutiny Committee originally formed for scrutiny of the party constitutions was subsequently reconstituted and the reconstituted Scrutiny Committee meanwhile scrutinized the BJI constitution as amended and noted its comments in a note-sheet to be submitted for decision of the Commission.

Affidavit-in-opposition and the supplementary affidavit submitted on behalf of the Commission clearly suggest that the Commission has been pursuing the matter ever since the days of registration and in its efforts to bring the party constitutions back on compliance with law it has addressed, amongst others, series of letters specially to BJI over the years. BJI also responded positively, albeit, not convincingly, and amended its constitution thrice and submitted the same with the Commission in 2009, 2010 and 2012. The Commission also admits that it has received the last amendment of BJI constitution on 02.12.2012 which has already been scrutinized by the reconstituted Scrutiny Committee and findings thereon given by the Committee to be placed before the Commission. Clear case of the Commission is that due to pendency of the instant rule before the High Court Division they could not further proceed with the matter. Therefore, the case of BJI that the Commission is still in seisin of the matter is established on admission by the Commission itself.

Mr Razzaque submits that judicial interference in a premature stage did never find favour with the superior courts and the practice was consistently disapproved at least as a matter of policy. He lends support to his contention from the cases of Kazi Mukhlesur Rahman v Bangladesh,  26 DLR (SC) 44, Ashutosh Chakma v RAJUK, 60 DLR 273 and the case of Kunda S Kadam v KK Soman, reported in AIR 1980 (SC) 881.

None of the cases is found to be exactly on point except Kunda S Kadam. In Kunda S Kadam an in-service employee of Bombay Municipal Corporation applied for the post of Deputy Municipal Commissioner of the same Corporation with the recommendation of the Public Service Commission. While the name was under consideration by the Bombay Municipal Corporation for appointment a writ petition was filed by the respondent Nos. 1 and 2  challenging the recommendation itself on the ground that the applicant did not fulfill the required statutory qualifications. Bombay High Court took the view that the applicant did not possess one of the qualifications required for appointment and quashed the recommendation. Supreme Court set aside the judgment of the High Court. Speaking for the Court Krishna Ayre, J, observed:

“We consider that the time has not arrived for the court to adjudicate upon the merit and that the writ petition itself was premature  It was open to the Municipal Corporation to accept or not to accept the recommendation We are not called upon to state what the powers of the Corporation in such a situation are. It was also open to the State Government even if the Corporation had made an appointment to confirm or not to conform it depending on its own view of the matter. We mention all this only to emphasize that it was too early for the writ petition to be entertained and decided on merit.”

The view taken by Ayre, J is representative of the common law policy of non-interference with acts, decisions and omissions of public authorities when there is availability of alternative remedy-a principle, which is consistently followed by the courts of this sub-continent, a fortiori, if the matter is already pending before any administrative forum. The underlying principle is that-‘a person cannot pursue two parallel remedies in respect of the same matter at the same time’. 

In our jurisdiction this is not only a rule of policy but a rule of law enshrined in Article 102(2) (a) of the Constitution. The rider, ‘if satisfied that no other equally efficacious remedy is provided by law’ ingrained in the Article has made the power of judicial review subject to availability of other and equally efficacious remedy. As to whether a particular remedy provided by statute is equally efficacious or not is a matter to be decided from case to case. There is a long line of cases decided on the point of which, Srivastava KK v Bhupendra Kumar Jain, (1977) 2SCC494, Sree Ramdas Motor Transport Ltd. v Tadi Adhinarayana,(1997) 5 SCC 446 and the  State of Punjab v Punjab Fibres Ltd. (2005) 1 SCC 604 are but few.  

In  Srivastava KK v Bhupendra Kumar Jain,  (1977) 2SCC494, validity of the election of Madhya Pradesh Bar Council was challenged before the Election Tribunal. During pendency of the trial the petitioner approached the High Court under Article 226 of the Constitution and obtained an order. Supreme Court set aside the decision with the observation,  inter alia, that when election petition covering the same subject-matter was actually pending the High Court should not have entertained the petition. The Supreme Court described the interference as mis-exercise of the power of judicial review.

In Sree Ramdas Motor Transport Ltd. v Tadi Adhinarayana,(1997) 5 SCC 446, a petition under Sections 397 and 398 of the Companies Act alleging oppression of minority shareholders and mismanagement of the company affairs was filed in the Company Law Board. During pendency of the application a petition under Article 226 of the Constitution was filed seeking direction to the Central Government to investigate into the allegations against management by the CBI. High Court issued direction as prayed for. Supreme Court set aside the direction and observed that where statutory remedies were available and the matter was pending the High Court ought not to have passed the order.

In the State of Punjab v Punjab Fibres Ltd. (2005) 1 SCC 604, an assessee challenged the assessment before the Sales Tax Tribunal and the appeal was pending. During pendency of the appeal the assessee filed petition under Article 226 of the Constitution. Supreme Court held that the petition would not lie.

Unless under exceptional circumstances, the rule of exhaustion of alternative remedy is strictly insisted by the superior courts. There is an unbroken chain of cases decided in different jurisdictions in which the petitioner directly approaching the court without availing alternative remedy were refused relief. Power of judicial review invoked while there were proceedings pending before any administrative forum or tribunals met the same fate with still stronger disapproval. The instant case is no exception to the general rule and seems to be worse than others as the petitioners approached the court with questionable standing as well as while the registration process/proceedings is still pending for disposal and before no less an authority than a constitutional body like Election Commission.  It follows, therefore, that on the admitted facts the registration process is still pending before the Commission for final decision and, thus, I have no hesitation to say that the writ petition is not maintainable as being premature.

This apart, Mr. Razzaque pointed out that if a defect is subsequently cured judicial review does not lie as the court does not answer merely academic questions. BJI, according to him, having cured the inconsistencies in its constitution by subsequent amendments adjudication upon the rule is tantamount to mere academic exercise.   He lends support to this contention from the cases of Anwar Hossain v Mainul Hossain, 10 MLR (AD) 319 and State of Hariana v Krishna Rice Mill, (1981) 4 SCC 148. In  Anwar Hosain subsequent withdrawal of the impugned order was held by the Appellate Division to have made the writ petition infractuous which necessarily means that subsequent curing of the defect affects the maintainability of the writ petition. The Hariana case of Indian jurisdiction appears to be distinguishable and does not apply to the present case. As for the principle canvassed, I find no controversy. But in the instant case the Commission nowhere admitted that the defects in the BJI constitution has been cured in the sense it is meant by the Appellate Division. The contention of Mr. Razzaque, therefore, is devoid of substance.

Mrs. Tania Amir, however, raised technical question of law suggesting that there cannot be anything pending as claimed by the contesting respondents. The precise point she raised is that there is sharp difference between qualification clause and disqualification clause of the RPO. And a political party disqualified from being registered from outset cannot be registered. Any registration given to such a party under whatever pretext is void ab initio and non-est. That which is not in existence in the eye of law cannot be pending and by parity of reasoning the Commission’s efforts all these years, as she maintained, to bring back BJI constitution into compliance with law is nothing but flogging a dead horse. Therefore, nothing remains before the Commission so as to say that the writ petition is premature. Mrs. Tania Amir tried to defend maintainability of the rule on the contention that the RPO does not empower the Commission to cancel the registration on the ground that ‘the party-constitution is contrary to the Constitution of the Republic’. She finally posed a question whether a constitutional authority can do an act in violation of law under the guise of political expediency. The points raised appears to be vital but none of them is properly mooted in the petition nor any informed argument addressed from any of the sides. Be that as it may, the points can hardly be overlooked.

 As for the first point, I do not find any substance.  The reason being that an act of a public authority, though can be ultra vires and thus void or for that matter void ab initio, cannot be void or void ab initio in the sense that it is stillborn admitting of no reopening by the authority that passed it. The argument is jurisprudentially wrong and seemingly imported from the law of contract. No party is bound by a void contract and by the same token no declaration of invalidity of a void contract is necessary as either party can refuse to be bound by it without any adverse consequence ensuing. In public law domain the case is different. If any public authority passes any order, for example, grants any license, lease or registration in exercise of statutory power there is no scope for avoiding the same except by intervention of court regardless of the fact that it is given in violation of qualification or disqualification clause or that it is contrary to the Constitution. It is never stillborn in the sense it is canvassed. If the public authority in exercise of its statutory discretion falls foul of due process of

law affecting merit of the decision, or acts on irrelevant and extraneous considerations, takes into consideration inadmissible or void document or acts on misconstruction of law and thereupon takes a decision the same is ultra vires and amenable to judicial review.  Unless it is turned down by a competent court the decision is not void or void ab initio and operates with all the consequences of a valid act.  Even in case of total lack of jurisdiction (coram non judice), mala fide or malice in law   where the action taken by the public authority is generally considered to be a nullity and no decision in the eye of law the same is still not void or void ab initio and need be challenged by an appropriate person in an appropriate proceedings and in appropriate time for declaring the same null and void. Before such a declaration is made by a competent court or authority action taken by any public authority cannot be presumed to be dead or non-est and it operates in full force. The underlying principle is that  there is a presumption of validity of acts of the Government or of public bodies and secondly, a subject cannot afford to ignore the will of the sovereign.  

The position is well expressed in the impressive words of Lord Radcliffe appearing in Smith v East Elloe Rural District Council (1957) AC 736, 739, which read: “ an invalid order bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the case of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.” In Ridge V Baldwin [1963] 2 ALL E R 66(HL), Lord Morris said, “ a void order carries a presumption of validity unless it is declared invalid by the court, and in this sense an administrative act, however invalid, is merely voidable.”

The registration thus given on a document even if inconsistent with the Constitution does not per se render the same void and non-est so as to say nothing is pending before the Commission or that the rule is not premature.  

The question that seemingly weighed much in the mind of the petitioners and persistently hammered by Mrs. Tania Amir before us is  whether a constitutional authority can give registration to a political party in violation of law under any pretext especially under the pretext of political expediency. The contention raised seems to me to be too technical and proceduralist in approach to fit in any accepted canon of interpretation of law. Infinite variety of human conditions and exigencies hardly admit of any uniform rule to regulate all possible human conduct and exigencies so is the case with interpretation of law. Strict literalism in interpretation of law, therefore, is gradually being replaced by purposive interpretation intended to carry out the objective of law tampered with rule of expediency and public policy. Instances are not rare where strict adherence to law were sacrificed to the greater public causes according as the situation demanded. Mrs. Tania Amir’s insistence on the technicality of law was curiously divorced from the reality on the ground in which the Commission had to work for holding a general election and restore democracy, the crying need of the time. What Mrs. Tania Amir tried to suggest is that the nature and degree of disqualification suffered by Jamaat was distinguishable and enough for refusing registration but the Commission allowed registration as of political expediency.

 Here again her argument is too simplistic and unsound. Before I go into the point a number of articles of the RPO having direct bearing upon registration of political parties may aptly be quoted.

90A. For the purpose of this Order, any political party willing

to participate in election under this Order shall be registered with the Commission subject to the conditions laid down in Article 90B.

90B. (1) for the purpose of registration under Article 90A,

every political party shall-

(a)      fulfill one of the following conditions, namely,-

(i)                secured  at least one seat with its electoral symbol in any parliamentary election held since the independence og Bangladesh; or

(ii)               secured five percent or total votes cast in the constituencies in which its candidates took part in any of the aforesaid parliamentary elections; or

(iii)             established a functional central office, by whatever name it may be called, with central committee and district offices in at least ten administrative districts and offices in at least in fifty Upazilas or metropolitan Thanas; and

(c)     in addition to complying with the terms and conditions referred to in clause (1), shall have the following specific provisions in its constitution, namely-

(ii)               to elect the members of the committees at all levels including members of the central committee;

(iii)             to fix the goal of reserving at least 33% of all committee positions for women including the central committee and successively achieving this goal by the year 2000;

(iv)            to prohibit formation of any organization or body as its affiliated or associated body consisting of teachers or students of any educational institution or the employees of labourers of any financial, commercial or industrial instituting or establishment or the members of any other profession;

Explanation: - Nothing shall be construed to prevent-

(a)   the teachers, students, employees or labourers from organizing independently in their respective fields of forming association, society, trade union etc. and exercising all democratic and political right; and

(b) individuals, subject to provisions of the existing law, to be a member of any political rights; and

(vii)          to finalize nomination of candidates by central parliamentary board of the party from the panels prepared by members of the ward, Union, Thana, Upazila or District committee,  as the case may be, of the concerned constituency.

(2)  If an independent member of parliament joins any unregistered political party, the fact of his joining alone shall not qualify that party for registration with the Commission.

                        90C.  (1) A political party shall not be qualified for

registration under this chapter, if-

(a) the objectives laid down in its constitution are contrary to the Constitution of the People’s Republic of Bangladesh; or

(b) any discrimination regarding religion, race, caste, language or sex is apparent in its constitution; or

(c)  by name, flag, symbol or any other activity it threatens to destroy communal harmony or leads the country to territorial disintegration; or

(d) there is any provision in its constitution for the establishment or operation of any office, branch or committee outside the territory of Bangladesh.

(2)   No political party shall be registered under a name , under which another political party has already been registered:

Provided that where more than one party apply for registration with the same name and no party has already been registered under such name, the Commission may, after giving the parties reasonable opportunity of being heard, register any of the parties with such name.

(3)   The Commission shall not register any party banned by the Government.

90D.     Any political party complying with the conditions laid

down in Article 90A and Article 90B and not disqualified under Article 90C may apply for registration in the prescribe manner under the signature of its chairman and general Secretary or any other person holding equivalent rank:

provided that the Commission may allow any political party to apply for registration which has a provisional constitution containing provisions as specified under sub-clause (b)(i), (b)(ii), b(iii) and (b)(iv) of Clause (1) of Article 90B as well as complying with provisions under Article 90C along with a resolution of the highest policy-making body of the party, by whatever name it may be called, to the effect that the party shall submit a ratified constitution within six months from the date of first sitting of the ninth parliament.

A plain reading of the registration law provided in Articles 90A, 90B, 90C and 90D of the RPO quoted above does not suggest that there was any scope for the Commission to give separate treatment to any political party on the basis of degree of disqualifications. So far as registration is concerned violation of Article 90B is as good as violation of Articles 90C (1). Registration may equally be refused for violation of any of the conditions required to be fulfilled for registration under any of the articles. In practice many of the political parties seeking registration at that moment were at fault. Question of legal competence apart, any attempt to pick and choose by the Commission in terms of degree of disqualification at the material time was  well-nigh impossible, without jeopardizing the main objective it was striving to achieve.

 It is fairly deducible from judicial notice as well as from the facts on records and arguments addressed that Jamaat was an important component of a major political alliance of the time. Side by side pressure for holding election with participation of all the political parties and alliances was mounting. The law with stringent conditions for registration was meanwhile introduced which could hardly be fulfilled without a certain amount of time. The election was meanwhile long delayed and popular demand was to hold election and restore democracy as soon as possible. The country was run by a crisis government and the emergency proclaimed earlier was still continuing. Confronted with difficult choices to be made during a crisis time the Commission chose to discharge its overriding obligation to restore democracy and constitutionalism in the country by holding a general election with participation of all political parties and alliances downplaying for the time being the technicalities of law.  The decision of the Commission was clearly taken as of public policy which may be explainable upon rule of expediency not on political expediency as indicated by Mrs. Tania Amir. 

The case of the petitioners indicating Jamaat’s involvement in religious extremism, fanaticism or militancy culminating in modern-day jihad sounds alarming and undoubtedly poses  serious threat to Bangladesh as a democracy founded on the principles of secularism, nationalism, socialism and over and above popular sovereignty. This anti- state agenda of Jamaat is claimed to be age-old and nothing new. In that view it is difficult to follow why the petitioners specially the clerics chose

not to play any tangible role against such potential menace designed and harbored by a group of people under the banner of Islam and/or a political party and why after so long years they woke up late in 2009 to ventilate all their concern and grievances, that too in court, having had hardly or no jurisdiction to adjudicate the matter, leaving aside the administration and the successive governments of the country. 

As for the question of Jamaat’s reprehensible role in our war of liberation and by the same token losing moral right to do politics in Bangladesh, there would, to my mind, be scarcely anyone here to say otherwise or not to share the sentiment. Unfortunately, law does not allow us to make any declaration to the deprivation of right or interest of any person or body merely on the basis of moral disentitlement.

The next contention of the petitioners was that the RPO does not confer upon the Commission to cancel registration on the ground that party-constitution is contrary to the Constitution of the Republic suggesting thereby that judicial review is maintainable. The Commission does not say that it is powerless nor is there any law that expressly bars the Commission to entertain the matter. Rather the Commission’s case is that the registration given to BJI is provisional not final and it is yet to decide the matter. BJI itself does not deny the position.  I, for myself, have already held that the same issue is pending before the Commission for its decision. More importantly, this Division is the appellate forum for any possible cancellation of registration of a political party.  At this stage embarking upon an inquiry into the power of the Commission to cancel registration of a political party is uncalled for and is tantamount to usurping the power of a constitutional body without due deference to its jurisdiction. Furthermore, this admittedly not being a case of registration simpliciter and a case of registration provisionally or temporarily given the Commission, if necessary, might see its power lying in its general power to rescind without reverting to  the  ‘cancellation clause’.  It is neither necessary nor expedient, at this stage, to lose confidence in the wisdom of a co-ordinate branch of the Government.   I would only conclude, if I may, by saying that the reply given by Mr. Mohsen Rashid to a question of the kind appears to me to be sound.  

Another question mooted during hearing as to whether the Commission can receive ratified constitution submitted by a political party beyond time. It is difficult to explain the question upon any sound proposition of law. If any law requires a party to submit certain document within certain time for confirmation of any interim relief earlier given can it be construed to mean delayed submission of document cannot be received? In absence of any contrary intention appearing in law, such interpretation of limitation clauses is bound to lead to absurdity. Firstly because, the authority in seisin of the matter in such cases will find itself bereft of evidence as to time the document was filed. Secondly, it would be difficult for the authority to take action on the delayed filing, if the law so requires. The question seems to me not well-mooted on law.

For all the reasons stated above I am constrained to hold that this writ petition is not maintainable. But at the same time one thing hardly escapes sight, that is, the issue of registration of BJI is long lingering for a good length of time which may fairly be called undue. This does not seem to be befitting for the Election Commission. It is difficult to be at one with the Commission when it says that the issue could not be disposed of due to pendency of this rule before the High Court Division. The Commission, in the peculiar circumstances, could have made appearances in the rule and take steps for early disposal. The Commission instead sat idle on the issue and virtually allowed the matter to be dragged years together and at the hearing stage appeared before this court only when direction issued from this court so to do. 

In view of the peculiar facts and circumstances of the case, I am of the opinion that ends of justice would be met if I dispose of the rule with direction to the Election Commission to dispose of the registration issue of Respondent No.1 ie, the Bangladesh Jamaat-e-Islami.

Accordingly the Election Commission is directed to dispose of the BJI registration issue in accordance with law with reasonable haste.

This rule is thus disposed of without any order as to cost.

(M. Moazzam Husain, J)

¢hQ¡lf¢a Hj. Ce¡−ua¥l l¢qj::::

B¢j, Bj¡l ¢h‘ ï¡a«àu ¢hQ¡lf¢a Hj. ®j¡u¡‹¡j ®q¡−pe J ¢hQ¡lf¢a L¡S£ ®lS¡-Em qL La«ÑL fªbLi¡−h fÐÙ¹¤aL«a l¡u c¤'¢V f¡−Wl p¤−k¡N q−u−Rz Aœ l¦m¢V ¢elˆ n¥ (absolute) L−l ¢hQ¡lf¢a L¡S£ ®lS¡-Em qL ®k l¡u J ¢pÜ¡¿¹ fÐc¡e L−l−Re a¡l p¡−b pÇf§ZÑ HLja ®f¡oe L−l B¢j Bj¡l ¢LR¤ ¢eSü A¢ija hÉš² J pw−k¡Se Ll¢Rx

1

1-3 ew fТah¡c£ f−rl ¢h‘ BCeS£h£ Se¡h Bë¥l l¡‹¡L B−m¡QÉ l¦m¢V M¡¢l−Sl

üf−r AaÉ¿¹ ®S¡l¡−m¡ k¤¢š² EfÙÛ¡fe L−l ¢e−hce L−le ®k, l¦m¢V Af¢lf° (premature) J

lre£u euz H fÐp−‰ ¢a¢e fТafr ¢ehÑ¡Qe L¢jne La«ÑL c¡¢MmL a« qmge¡j¡l pwk ¢¤ š² 24, 25,

26 J 27-Hl fТa Bc¡m−al cª¢ø BLoÑZ L−l ¢e−hce L−le ®k, h¡wm¡−cn S¡j¡u¡−a Cpm¡j£ cm¢V−L p¡j¢uL NWea−¿»l (provisional constitution) ¢i¢š−a ¢eh ¡Ñ Qe L¢jne La LÑ« NZfТa¢e¢daÅ B−cn, 1972-Hl Ae¤−µRc 90 ¢X Hl "hÉ¢aœ²j ¢hd¡e' Ae k¤ ¡u£ naÑ p¡−f−r

¢ehåe fÐc¡e Ll¡ quz Ae¤−µRc 90 ¢X-Hl "hÉ¢aœ²j ¢hd¡e' Ae k¤ ¡u£ S¡j¡u¡−a Cpm¡j£l f−r

¢h¢iæ pj−u pw−n¡deL«a cm£u NWea¿» ¢ehÑ¡Qe L¢jn−e c¡¢Mm Ll¡ q−u−R Hhw L¢jn−el Q¡¢qc¡ Ae¤p¡−l NWea−¿»l phÑ−no pw−n¡¢da L¢f L¢jn−e Sj¡ fÐc¡e Ll¡ q−u−R ¢hNa 02.12.2012 a¡¢l−Mz ¢L¿º AcÉ¡h¢d ¢ehÑ¡Qe L¢jne I pw−n¡¢da NWea¿» pÇf−LÑ Q s¤ ¡¿¹ ®L¡e ¢pÜ¡¿¹ fÐc¡e L−l¢e AbÑ¡v ¢ehåe pwœ²¡¿¹ ¢hou¢V HMeJ ¢ehÑ¡Qe L¢jn−e ¢h−hQe¡d£e B−R; Efk š¤ ² La Ñf« −rl ¢eLV ¢h−hQe¡d£e ®L¡e ¢ho−u Bc¡m−al ®L¡el©f qÙ¹−rf ¢h−noax pw¢hd¡−el Ae −¤ µRc 102 Hl fÐ−u¡N L¡jÉ q−a f¡−l e¡ Hhw a¡ Ll¡ q−m Bc¡ma a¡yl ü£u HM¢au¡l-Hl p£j¡ A¢aœ²j Ll−h

(the court will exceed it’s jurisdiction); ¢ehÑ¡Qe L¢jne ®k−qa¥ HL¢V p¡w¢hd¡¢eL fТaù¡e, p¤al¡w HL¢V p¡w¢hd¡¢eL fТaù¡−el L¡kÑœ²−jl Efl Bc¡m−al qÙ −¹ rf L¡¢´Ma eu

Hhw H ¢ho−u Se¡h l¡‹¡L h¡wm¡−cn p¤fУj ®L¡−VÑl Bf£m ¢hi¡N Hhw Efjq¡−c−nl ¢h¢iæ EµQ- Bc¡m−al eS£lpj§q EfÙÛ¡fe L−le k¡ C¢aj−dÉ j¡ee£u ¢hQ¡lf¢a Hj. ®j¡u¡‹¡j ®q¡−pe Hhw

j¡ee£u ¢hQ¡lf¢a L¡S£ ®lS¡-Em qL ay¡−cl fÐcš l¡upj§−qE−õM L−l−Rez Se¡h l¡‹¡−Ll

Ef−l¡š² k¤¢š² ¢h−hQe¡ J B−m¡Qe¡l f§−hÑ NZfТa¢e¢daÅ B−cn, 1972-Hl Ae −¤ µRc 90¢X-Hl ¢hd¡e¢V E−õM Ll¡ fÐ−u¡Se, k¡ ¢ejÀl©fx

"Any political party complying with the conditions laid down in Article 90A [Article 90B and not disqualified under Article 90C] may apply registration in the prescribed manner under the signature of its Chairman and General Secretary or any other person holding equivalent ranks[:]

[Provided that the Commision may allow any political party to apply  for  registration which  has  a  provisional  constitution containing provisions as specified under sub-clause (b)(i), b(ii), (b)(iii) and (b) (iv) of clause(1) of Article 90B as well as complying with the provisions under Article 90C along with a resolution of the highest policy-making body of the party, by whatever name it may be called, to the effect that the party shall submit a ratified constitution within six months from the date of first sitting of ninth parliament.]''

[ [

flh¢aÑ−a HC BCe¢V pw−n¡de L−l "six months' Hl ÙÛ−m "twelve months' nëpj§q fТaÙÛ¡fe Ll¡ qu Hhw HC pw−n¡de£¢Vl L¡kÑL¡¢la¡ ®cu¡ qu 25 S m¤ ¡C, 2009 q−az

Ef−l¡š² ¢hd¡e¢Vl "hÉ¢aœ²j Awn' fkÑ¡−m¡Qe¡ Ll−m p¤Øfø i¡−h fÐa£uj¡e qu ®k,

L) ¢ehÑ¡Qe L¢jne ®k ®L¡e l¡S¯e¢aL c−ml p¡j¢uL NWea¿» (provisional constitution) b¡L−m ¢ehå−el SeÉ B−hce NËqe Ll−a f¡l−h; a−h naÑ b¡−L ®k, fÐbjax B−h¢ca cm¢Vl p¡j¢uL NWea¿» NZfТa¢e¢daÅ B−cn, 1972-Hl Ae¤−µRc 90¢h Hhw 90¢p ®a E−õ¢Ma naÑpj§q AhnÉC f§le Ll−a q−h;

¢àa£uax ¢ehå−el B−hc−el p−‰ pw¢nÔø cm¢Vl p−h¡ µÑ Q e£¢a ¢ed ¡Ñ lZL¡l£ LaªÑfr (highest policy making body of the party) La LѪ N ¢ª qa HC j−jÑ ¢pÜ¡¿¹ (resolution) c¡¢Mm Ll−a q−h −k, cm¢V ehj S¡a£u pwp−cl fÐbj °hW−Ll ¢ce q−a Ru j¡p (flhaÑ£−a pw−n¡de L−l h¡−l¡ j¡p Ll¡ q−u−R) - Hl j−dÉ Eš² c¡¢MmL«a NWea¿»¢V Ae¤pjbÑe (ratify) L−l L¢jn−e c¡¢Mm Ll−hz

HM¡−e hÉ¡MÉ¡ Ll¡ fСp¢‰L q−h ®k, k¢cJ Ef−l¡š² ¢hd¡e¢Vl pw−n¡de£l L¡k LÑ ¡¢la¡ 25 S m¤ ¡C, 2009 q−a ®cu¡ q−u−R; ab¡¢f Bjl¡ k¢c "Ru j¡−pl' ÙÛ−m "h¡−l¡ j¡p' fТaÙ ¡Û ¢fa L−l BCe¢V HL−œ f¡W L¢l a¡ q−m AbÑ cy¡s¡u ®k, ehj S¡a£u pwp−cl fÐbj °hW−Ll h¡−l¡ j¡−pl j−dÉ "Ae¤pj¢bÑa NWea¿»' (r tified constitution) ¢ehÑ¡Qe L¢jn−e Sj¡ ¢c−a q−h; 25 S m¤ ¡C 2009 q−a flh¢aÑ h¡−l¡ j¡−pl j−dÉ euz

]

NZfТa¢e¢daÅ  B−cn-Hl  Ae¤−µRc  90  ¢X  Hl  Ef−l¡š²  na pÑ j −§ql  B−m¡−L  Se¡h

l¡‹¡−Ll EfÙÛ¡¢fa k¤¢š²pj§q ¢hQ¡l ¢h−nÔoe Ll−m fÐbjax ®k fÐnÀ¢Vl ¢eÖf¢š qJu¡ fÐ−u¡Se a¡ q−m¡, ®k NWea−¿»l ¢i¢š−a (provisional constitution) h¡wm¡−cn S¡j¡u¡−a Cpm¡j£−L Ae¤−µRc 90¢X-Hl ¢hd¡e Ae¤p¡−l ¢ehåe ®cu¡ q−u−R j−jÑ S¡j¡ ¡−a Cpm¡j£ J ¢eh ¡Ñ Qe L¢jne c¡¢h Ll−R ®p NWea¿»¢V ¢L ¢ehåeL¡m£e pj−u NZfТa¢e¢daÅ B−c−nl 1972-Hl Ae −¤ µRc 90¢h

J 90¢p H E−õ¢Ma naÑpj§q f§lZ Ll−a prj q−u¢Rm?

¢ehÑ¡Qe L¢jne J S¡j¡u¡−a Cpm¡j£ LaªÑL c¡¢MmL a« qmge¡j¡ Hhw pÇf l§ L- qmge¡j¡k¤š² Sh¡hpj§q q−a HV¡ p¤Øfø −k, ®k NWea−¿»l Efl ¢i¢š L−l S¡j¡u¡−a Cpm¡j£−L ¢ehåe ®cu¡ q−u¢Rm I NWea−¿» NZfТa¢e¢daÅ B−cn, 1972-Hl Ae −¤ µRc 90¢p -Hl (H) J (¢h) naÑpj§q kb¡kbi¡−h f§lZ Ll¡ qu¢ez

¢ehÑ¡Qe L¢jne La«ÑL c¡¢MmL«a qmge¡j¡ k¤š² Sh¡−hl Ae−¤ µRc 22(IX)-H p Ö¤ føi¡−h E−õM Ll¡ q−u−R ®k, ¢ehÑ¡Qe L¢jne LaªÑL N¢Wa pw¢nÔø  L¢j¢V S¡j¡u¡−a Cpm¡j£ La LªÑ c¡¢MmL«a NWea¿» fl£r¡−¿¹ ja¡ja ¢c−u¢Rm ®k, c¡¢MmL«a NWea−¿ l» E−õM−k¡NÉ ¢hd¡e pj§q pw¢hd¡−el p¡−b ¢h−noax pw¢hd¡−el fÐÙ¹¡he¡ Hhw Ae¤−µRc 8,9,10 Hhw 11 Hl p¡−b p¡wO¢o LÑ z Eš² Ae¤−µR−c B−l¡ E−õM Ll¡ q−u−R ®k, Ef−l¡š² ¢hou¢V S¡j¡u¡−a Cpm¡j£−L Ah¢qa Ll¡ q−m S¡j¡u¡−a Cpm¡j£l ®L¾cУu L¢j¢Vl BCe ¢houL pÇf¡cL Se¡h ®j¡x S¢pjE¢Ÿe plL¡l c¡¢MmL«a NWea−¿»l d¡l¡ 5 Hl ¢LR¤ ¢hd¡e ¢eS q¡−a LaÑe L−le (deleted) Hhw L¢jn−el

L¡−R ¢a¢e fТanЦ¢a ®ce ®k, ay¡l¡ pw¢nÔø ¢hd¡e…¢m c−ml flhaÑ£ L¡E¢¾pm pi¡u h¡c ¢c−hez

¢ehÑ¡Qe L¢jne LaѪL c¡¢MmL«a qmge¡j¡ k¤š² pÇf§lL Sh¡−hl Ae −¤ µRc 7-H Ef−l¡š² hš²hÉ pj§q f¤el¡u cªta¡l p¡−b f¤ehÉÑš² Ll¡ q−u−Rz

L¢jn−el qmge¡j¡ k¤š² pÇf§lL Sh¡−hl Ae¤−µRc 9-H B−l¡ p ؤ føi¡−h E−õM Ll¡ q−u−R ®k, L¢jn−el 270/2010 pi¡u L¢jne A¢ija hÉš² L−l−R ®k,

L)  S¡j¡u¡−a Cpm¡j£ fÐcš fТanЦ¢a Ae¤k¡u£ a¡−cl pw¢hd¡e Ae p¤ jbÑe (ratified) L−l¢e;

M) S¡j¡u¡−a Cpm¡j£l NWea−¿»l d¡l¡ 3-H E−õ¢Ma mrÉ J E−Ÿn (object) pw¢hd¡−el fÐÙ¹¡he¡l p¡−b p¡wO¢oÑL;

N)  S¡j¡u¡−a Cpm¡j£l NWea−¿»l d¡l¡ 5(3) Hhw 6(4) pw¢hd¡−e h¢Z aÑ l¡øÊ f¢lQ¡me¡l j§me£¢al p¡−b p¡jÄm¨f§ZÑ eu;

O)  S¡j¡u¡−a Cpm¡j£l NWea−¿»l d¡l¡ 7(1)-(4) Hhw d¡l¡ 11(2), k¡ Aj¤p¢mj−cl pcpÉfc Hhw nfb pwœ²¡¿¹, a¡ h¡Ù h¹ pÇja eu (not r alistic) Hhw S¡j¡u¡−a Cpm¡j£l mrÉ J E−Ÿ−nÉl p¡−bJ p¡wO¢o LÑ ;

P)    S¡j¡u¡−a Cpm¡j£l NWea−¿»l d¡l¡ 18(4)(Q) NZfТa¢e¢daÅ B−c−nl Ae¤−µRc 90 ¢h(1)(¢h)(i) Hl p¡−b p¡wO¢oÑLz

¢ehÑ¡Qe L¢jne Hl pÇf§lL qmge¡j¡l Ef−l¡š² hš²hÉpj q§ q−a HV¡ AaÉ¿¹ p ؤ fø ®k, ¢ehå−el pju c¡¢MmL«a S¡j¡u¡−a Cpm¡j£l NWea¿»¢Vl E−õM−k¡NÉ d¡l¡ h¡ ¢hd¡epj q§ pw¢hd¡−el p¡−b p¡wO¢oÑL ¢Rm AbÑ¡v NZfТa¢e¢daÅ B−cn 1972-Hl Ae −¤ µRc 90 ¢p-H E−õ¢Ma naÑpj§q f§l−e prj qu¢ez

−k−qa¥ p¡j¢uL NWea¿»¢V (provisional constitution) ¢ehåeL¡m£e pj−u NZfТa¢e¢daÅ B−cn 1972 Hl Ae¤−µRc 90 ¢p-Hl naÑpj§q f§le L−l c¡¢Mm Ll¡ qu¢e, p a¤ l¡w ¢ehÑ¡Qe L¢jne ®h-BCe£ J BCe h¢qiѨai¡−h a¢LÑa ¢ehåeV fÐc¡e L−l−R; k¡ BCepwNa LaѪaÅ hÉ¢a−l−L Ll¡ q−u−R Hhw Hl ®L¡e BCeNa L¡kÑL¡¢la¡ ®eCz