Judicial Development of Public Interest Litigation In Bangladesh: An Appraisal.

Abstract

By analyzing public interest litigation (PIL) jurisprudence, this article examines Bangladeshi judicial activism in dispensing justice through the promotion and protection of the ‘public interest’ and imperatives of constitutionalism. Originally linked with the idea of having an accessible judicial system for the wider community, PIL in Bangladesh previously focused primarily on ‘the weak’, as well as on pure rights. However, while PIL has recently extended its stake to a broader set of constitutional issues, it has not delivered on its promises. It is said that the elitist use of PIL has undermined a much-needed focus on social justice and public empowerment. This article argues that PIL’s underperformance is not rooted in its elite-driven use alone, but is also a consequence of judicial unwillingness to remain jurisprudentially creative. Adopting a broader rather than minimalist approach to PIL, it focuses on the limits of social-rights-centric concept of social justice, and argues that enforcing principles of constitutionalism through PIL, even if pursued by the elites, could be a viable avenue towards social and constitutional justice. ‘Judicial activism’ and ‘public interest litigation’ (PIL) are fairly recent phenomena in Bangladesh. PIL refers to that activist jurisprudence that allows any person without being actually aggrieved to activate the judicial method to pursue a public cause or the rule of law, and allows the court to provide unorthodox remedies. PIL-based judicial activism in South Asia can be characterized by its successful transformation of the traditional judicial role from a disinterested passive arbiter of ordinary disputes into one of an engagingly active guarantor of justice, adjudicating both ordinary and polycentric social rights disputes. This radical departure from the western private interest-based and adversarial adjudicative tradition, prominently orchestrated by the Indian judiciary in the late 1970s, was driven by a deep judicial sense of duty to seriously address injustice and suffering among the general public.