Landmark Apex Court decisions of 2019
HCD declares rivers as legal persons
In January, the High Court (HCD), in a bid to save our rivers from drying up, conferred legal personhood upon all the rivers of Bangladesh. Earlier, based on a Daily Star report, Human Rights and Peace for Bangladesh (HRPB) had filed a writ petition questioning the legality of earth filling, encroachment and development of structures along the banks of Turag river. This is the first ever instance of our court granting legal personhood to an element of nature.
HCD orders to remove the word ‘Kumari’ from Kabinnama
In 2014, a writ petition was filed challenging the legality of the word ‘Kumari’ (virginity) in Kabinnama forms on the grounds of discrimination against women and violation of their privacy. The HCD, in September, directed the government to amend Kabinnama forms by removing ‘Kumari’ and inserting the word ‘unmarried’ instead. It also ordered to insert ‘unmarried’, ‘married’, or ‘divorced’ before the groom’s name to indicate the groom’s marital status.
HCD directs to release children detained by RAB’s mobile courts
The HCD in November issued a suo motu rule ordering the government to immediately release children aged below 12 years, who were detained in child development centers following convictions by RAB’s mobile courts. It also granted six months’ bail to children aged between 12 to 18 years who were convicted by such courts. The HCD asked the authorities to explain why these convictions by mobile courts should not be declared illegal.
HCD orders for guidelines to prevent unnecessary Caesarian sections
Owing to a rise in unnecessary Caesarian sections (C-sections) in private and public hospitals, a writ petition was filed challenging the failure of the authorities in this regard. The court ultimately issued a rule asking the authorities concerned to explain within four weeks as to why their failure should not be declared illegal. Furthermore, the HCD ordered them to come up with guidelines to prevent these unnecessary C-sections and submit that to the court within the next six months.
HCD directs to amend the Organ Transplantation Act
In 2017, a writ was filed challenging the constitutionality of the definition of ‘related persons’ contained in the Organ Transplantation Act, 1999. The Act barred anyone other than relatives to donate kidneys to patients. Following the hearing, the HCD ordered the government to amend the Act within six months to allow persons beyond close relatives to donate kidneys for transplantation to patients. It also laid out guidelines for physical and mental health checkups of such voluntary emotional donors to ensure that drug addicts were not donating kidneys and that kidneys were not being traded.
HCD issues rule to frame compensation scheme for rape victims in appropriate cases
In June, the HCD issued a rule asking the government to explain why it should not be ordered to frame an interim scheme for the compensation and rehabilitation of rape victims. The rule also asked the authorities concerned as to why they should not be directed to give Tk. 50 lac each to the two gang-rape victims in Tangail and Rajshahi. This decision sets the groundwork in principally recognising rape as a gross violation of the fundamental rights of the citizens.
SC upholds decision to allow private university law students to sit for advocate enrolment exam
In October, the Supreme Court (SC) rejected a leave-to-appeal against the decision of the HCD, thereby making way for private university students, who exceeded the limit of 50 students per semester in private universities, to sit for the upcoming Bangladesh Bar Council (BBC) enrolment examination. The SC also ordered the BBC to ensure that these students completed their registration formalities for the exam within 20 days of the receipt of the copy of the judgment. The court gave this decision considering the future of these students.
HCD directs NHRC to raise issues of government’s non-compliance to the court
CCB Foundation had filed a writ against the National Human Rights Commission (NHRC) for its failure to take effective steps in the case of abuse and torture of housemaid Khadija. The HCD, while disposing of the writ, expressed its resentment on the passive role of the NHRC during repeated instances of human rights violations in the country. It then ordered the NHRC to raise matters to the court any time if the government failed to abide by its recommendations.
HCD forms body to inquire about probable discrimination against English medium students in public university admissions
While hearing a writ on the probable discrimination faced by students from English medium background in the entrance exams of public universities, the HCD formed a nine-member expert body to inquire whether the admission process is discriminatory since the questions set are based on the syllabus of the national curriculum; whether the grades obtained by these candidates in O and A levels are properly valued by the ‘equivalency system’; and whether any disparity exists between the students of the two mediums due to the option of 4th subject in national curriculum. Lastly, the HCD asked the body to make recommendations for setting questions that will be neutral and cover the syllabus of both the curriculums to ensure fairness in the process.
HCD issues rule to ensure prisoners’ rights
Following a writ petition to ensure rights and proper medical facilities for the inmates in prisons, the HCD issued a rule asking the IG of prisons to inform the court about the number of doctors, the number of vacant posts for doctors, the holding capacity and the existing number of inmates in the prisons of Bangladesh. When the report was submitted, the HCD asked the Deputy Attorney General to inform why 16 out of 20 doctors appointed by the government had not joined their posts. The final order remains pending.
The writer is the Junior Legal Analyst, iProbono Bangladesh.