Writ suit in Bangladesh

Repoter : News Room
Published: 28 December, 2023 2:22 pm

Salmanur Rahman Liman: The word writ comes from the Anglo Saxons word (Gewrit) and the Latin word (breve). Since the reign of King Henry (II) 1154-1189, the writ has been the regular redress by the court. In the British period, the high court did not have the jurisdiction for a writ. On 6 July 1935, The Government India Act 1935 was amended, and adding section 223 (A) provided five types of writ.

In Bangladesh, the writ was introduced on July 6, 1954, from that time the history of the writ was sixty-five years. But from time to time, several governments had adjourned the right of Writ. Deprivation of the rights of Writ by 5 times for several incidents. As a result, the aggrieved people had been deprived of the right of the writ from the high court for about 20 years.

Wirt and fundamental Right

Fundamental rights and the Writ have a massive relation. The Constitution has ensured the fundamental right. In any circumstance, the fundamentals can never be derived from the citizen. To ensure the fundamental rights of the citizens the constitution provided the Writ in the constitution. The high court division of the Supreme Court of Bangladesh has the original jurisdiction to constitute a writ suit. The Constitution Article 102 has provided this jurisdiction to the high court. Any citizen of Bangladesh who thinks that he or she is deprived of any of the fundamental rights that are provided by the constitution shall institute the writ petition.

Type of writ following the constitution

Article 44 of the constitution provided that if any person is deprived of any of the fundamental rights mentioned in the constitution he or she shall writ partition following article 102 of the constitution. The remedies are available in Article 102 of the Constitution. Article 102 of the constitution has no categories of type of writ but if we analyze then we find five types of writ that are:

  • Writ of Mandamus
  • Writ of Prohibition
  • Writ of Quo Warranto
  • Writ of Certiorari
  • Writ of Habeas Corpus

Writ of mandamus

If a subordinate court, tribunal, person, or institution refuses to perform its legal duty or fails to perform its duty, then the order by which the high court compels that court, tribunal, person, or institution to perform that legal duty is called a writ of mandamus. This writ is issued when the lower tribunal has declined to exercise jurisdiction vested in it or any public authority has refused to do what it is required to do.

Writ of Prohibition

If any subordinate court tribunal, person, or institution is over his jurisdiction or violating natural justice then the order by which the high court prevents such subordinate court tribunal, person, or institution is called a writ of prohibition. Prohibition is a preventive writ that is issued for the illegal exercise of power of jurisdiction to the detriment of any legal right of a person.

Writ of Quo Warranto

In the literal sense, quo-warranto means ‘by what authority or warrant’. If any person claims any public office or office for which he is not entitled or if any person occupies the public office illegally, the order of the High Court directs that person to show reasons for occupying the concerned office or claiming the office that is Quo Warranto.

Writ of Certiorari

Where any government officer or authority does any act or any illegal act without lawful authority, then the court can make the said act invalid or rejected by order, it is called Writ of Certiorari.

Writ of Habeas Corpus

The meaning of this habeas Corpus Writ is (to have the body before the court) to verify A writ of habeas corpus is used to bring a prisoner or other detainee before the court to determine if the person’s imprisonment or detention is lawful. The concept comes from British law since 1640 the King’s Bench issued a writ of habeas corpus to examine whether a person was illegally detained in custody.

Analyzing the Constitution to find the types of writ

The constitution has conferred on the HCD original jurisdiction only in one case and that is writ. The types of writ such as Prohibition, mandamus, quo warranto, certiorari, and habeas Corpus are not found in as same as in the constitutions. But the article has indicated this type let’s find out the types of writ in the constitutions. As to Article 102(2) of the constitution

The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law –

(a) on the application of any person aggrieved, make an order-

(i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority, to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do

{To refrain from doing that which he is not permitted by law to do} This part indicates the writ of prohibition. And other part which is {to do that which he is required by law to do} defines writ of mandamus.

Article 102 (2)a(ii)

“declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect) This is the concept of certiorari”

Article 102 (2)b (i) states

“directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner” Here is the concept of a writ of habeas corpus.

Article 102 (2)(b)ii proceeds

“requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office” This part is related to the quo warranto

Relief when arises in the writ petition

If the petitioner can make out a strong prime facie case the high court division might even pass an interim order by staying the operation of the impugned order until the disposal of the rule. The court may appoint a committee or commissioner to look at the matter and submit its report. Such a committee or commissioner may also be given the power to take cognizance of a grievance and settle it right in the public intent. The court may give the final orders by way of direction to comply within a stipulated time. the court also has the discretionary power, under the Supreme Court rules, of awarding the cost of the application however the rule is not detailed.

The writer is a Student, department of law, Southeast University