On the Establishment of Circuit Benches of the High Court Division

Mohammed Shahjahan:

There has been an intermittent demand for the establishment of Circuit Benches of the High Court Division of the Supreme Court of Bangladesh at the eight Divisional Headquarters for long now. In response to the said demand earlier, the Chief Justice of Bangladesh Mr. Justice Surendra Kumar Sinha (as he then was) disclosed in Chattogram back in 2017 that the government was favourably considering the feasibility of the Circuit Benches. Now that the Virtual Courts at all tiers of the judiciary are operating successfully, the demand for the Circuit Benches appears to have been reiterated.

In legal parlance, Circuit Benches refer to temporary benches of the High Court Division to be seated at different Divisional/District headquarters beyond the Capital and operating at such intervals as determined by the Chief Justice of Bangladesh. For one thing, the concept of Circuit Benches has all along been embodied in the Constitution of Bangladesh since the day it come into being. On the other hand, once Circuit Benches are set up and get functional, the citizens are to be immensely benefitted in terms of access to justice.

Article 100 of the Constitution as in the original Constitution of 1972 states that the permanent seat of the Supreme Court shall be in the Capital; the permanent seats for both the Appellate Division and the High Court Division of the Supreme Court shall be in Dhaka. At the same time, Article 100 provides that sessions of the High Court Division may be held at such other place or places as the Chief Justice may, with the approval of the President, from time to time appoint. The Ershad regime in an unprecedented and somewhat misconceived move passed the Eighth Amendment to the Constitution in 1988 amending Article 100 and  providing for the establishment of Permanent Benches of the High Court Division in Barishal, Chattogram, Cumilla, Jashore, Rangppur and Sylhet. Though the said amendment resulted in setting up of Permanent Benches of the High Court Division in those places further facilitating the citizens’ access to justice, prominent lawyers took exception to the amendment waging a movement and filing a Writ Petition against it. As a result, relying on the doctrine of Basic Structure, the Appellate Division of the Supreme Court of Bangladesh struck down the said amendment as being ultra vires to the Constitution by way of a majority Judgment (3:1) in Anwar Hossain Chowdhury Vs. Bangladesh reported in 41 DLR AD 165 and 1989 BLD (SPL) 1. The Supreme Court held in the said Judgment, inter alia, that Article 100 formed part of the Basic Features of the Constitution immune to amendments and there is no scope in law to establish Permanent Benches of the High Court Division outside Dhaka the Capital. Hence, the aforesaid Permanent Benches of the High Court Division came to naught.

As stated herein above, establishment of Circuit Benches of the High Court Division, not Permanent Benches thereof, were envisaged by the founding fathers of the Republic as well as the framers of the Constitution. For the same reason, though the Supreme Court outlawed the Permanent Benches that came to be set up outside the Capital, the learned Judges concerned seemed to have left the establishment of other types of temporary Benches, i.e, the Circuit Benches to the discretion of the Executive.

Circuit Benches of the High Courts or equivalent Courts are there in place in many countries including India and Pakistan. Interestingly enough, the initiative of setting up Circuit Benches tend to give rise to mixed reactions among the stake-holders in general and lawyers in particular. Partial decentralization of the High Court Division effected through estalishment of the Circuit Benches may lead to conflict of interest among some lawyers practising before the Supreme Court. Some argue that the Circuit Benches may lack in infrastructural facilities. Another view is that due to shortage of adequately qualified and trained lawyers, the Circuit Benches may result in lowering the reputation of the higher judiciary in the estimation of the common man. But there are stronger arguments in favour of the Circuit Benches. The Circuit Benches in tune with Article 35 of the Constitution will ensure speedy trial and expeditious disposal of the cases contributing significantly to the reduction of the huge backlog of cases pending before the Supreme Court; they would save time and costs of litigation to a great extent, thereby empowering all strata of the citizens to seek legal redressal of their grievances and so on.

A study of the relevant Case-Laws from the indian jurisdiction may be of immense interest with regard to the initial reactions of lawyers and the corresponding judicial interventions as to the establishment of the Circuit Benches of various High Courts there. Individual lawyers and even Bar Associtions moved various High Courts and the Supreme Court of India both for and against the Circuit Benches. What inspires confidence is that the High Courts and the Supreme Court of India were at one in allowing the petitions for the Circuit Benches and in dismissing petitions that opposed the same. Mention may in this connection be made of the cases such as Rajasthan High Court Advocates’ Association Vs. Union of India and Others reported in AIR 2001 SC 416, Federation of Bar Associations in Karnataka Vs. Union of India reported in AIR 2000 SC 2544  and (2000) 6 SCC 715, State of Rajasthan Vs. Prakash Chandra and Others reported in AIR 1998 SC 1344 and (1998) 1 SCC 1, State of Maharashtra Vs. Narayan Shamrao Puranik and Others reported in AIR 1983 SC 46, E. Ram Mohan Chowdry Vs. Registrar General, High Court of Karnataka reported in AIR 2008 Kar 1951 and K. Sridhar Kumar Vs. The Union of India.

In view of the ground realities, tremendous progress of technology, relevent statutory laws and judicial precedents, there seems to be no legal bar to the establishment of the long-awaited Circuit Benches.With nearly five decades gone by after Bangladesh’s emergence on the map of the world as an independent and sovereign country through the tears and blood shed by the valiant sons and daughters of the soil, it is high time Circuit Benches of the High Court Division of the Supreme Court of Bangladesh were set up in such places as to the Chief Justice of Bangladesh seem fit and proper for the benefit of the whole nation.

 Mohammed Shahjahan: Advocate, Supreme Court of Bangladesh.

E-mail: shahjahanmohammed38@gmail.com