Barrister Syed Ishtiaq Ahmed Memorial Lecture 2019

The Asiatic Society of Bangladesh organised the 15th edition of Barrister Syed Ishtiaq Ahmed Memorial Lecture on 26 December 2019 in its premises. The memorial lecture titled as “Expanding Horizon of the Writ Jurisdiction: An Indian Perspective” was delivered by Justice Arijit Banerjee from Calcutta High Court, West Bengal, India. At the very onset, Justice Banerjee outlined the constitutional framework concerning writ jurisdiction of the higher courts in India. In doing so, he briefly reflected upon the historical origin and legacy of writ jurisdiction relevant to Indian subcontinent. He said that articles 32 (writ jurisdiction of the Supreme Court) and 226 (writ jurisdiction of High Courts of States) are two provisions which the framers of the Constitution consciously included to provide avenues for redressing any grievance that a citizen might have owing to infringement of his constitutional rights.

In this background, Justice Banerjee presented the discussion relating to broadening the scope of the application of writ jurisdiction. He said that in a welfare State, many of the functions are now not only performed through traditional arms of the State, but also by new statutory authorities, bodies or corporations. He posed the question as to whether such bodies or corporations should be amenable to writ jurisdiction. He analysed different judicial decisions, specially Jayanti Mondal v State of West Bengal (2015) (where he had delivered the judgment) and came to the conclusion that it is not how an entity is constituted that will determine whether or not it is amenable to writ court – because the source of existence of the entity is not decisive. In clearer words, he said, if the duties discharged by a private corporation are public in nature in the sense that it touches the lives of the public at large, or in any event, an appreciable section of the public, then in spite of the apparent private nature of the corporation, it would be accountable to the writ court.

He then viewed that ‘an efficacious alternative remedy’ available to the petitioner does not always serve as a self-imposed limitation to the judiciary as to the question of writ-maintainability. In other words, the mandate of alternative remedy is a rule of discretion and not a rule of compulsion. Referring to his own decision in Debasis Chatterjee v Reserve Bank of India (2013), Justice Banerjee said that he did not refuse to deny relief to the petitioner merely because there was an alternative relief. The petitioner in this case was an elderly person who had been running from pillar to post to get justice. Denying him relief on the ground of existence of alternative remedy, in his opinion, would have resulted in legal injustice.

Justice Syed Refaat Ahmed, Judge at the Supreme Court of Bangladesh, commented that the law of writ jurisdiction is also evolving in Bangladesh. He referred to Moulana Md. Abdul Hakim v Bangladesh (2014), where he being the author judge broadened the limit of writ jurisdiction on the ground of the breach of the principle of legality by applying the Datafin test of whether an impugned body has been “woven into the fabric of public regulation”.

A book comprising all the previous fourteen lectures of this lecture series was also unveiled on this occasion.

by Law Desk.