Under a democratic system it should be mandatory to provide appropriate remedies in case of violation of fundamental right to its citizen. But in Bangladesh it is observed that appropriate remedy refers only prevention from infringement rather providing com-pensation in constitutional cases. Here constitutional tort is a kind of mechanism through which court can provide compensation based remedy. Constitutional tort law refers to a mechanism by which compensation shall have to be paid by the government in case of violation of any fundamental rights by the statutory authority. It has a world-wide trend though was not as available in Bangladesh as there is no codified Tort law (Bari SM, 2022). But recently the Supreme Court has broken the silence in Bangladesh by providing compensation under constitutional tort law in different of case laws. It is implemented in accordance with both Article 44 and Article 102(1) of the Constitution. 

A writ petition seeking compensation can be filed in the nations constitutional court holding the state accountable when the statutory authority is accountable for the breach of the constitutional rights protected in part III of the Constitution. In the case of 10 SCOB [2018] HCD (known as Jihads case) the High Court Division (hereafter referred to as the HCD) granted 2,000,000 BDT to the aggrieved party for the death of a child due to the negligent behavior of statutory body. Apart from this there is another recent case (2019) 7 CLR (HCD) 665 the HCD by applying Article.102 (2) of the constitution of Bangladesh ordered compensation of 5 million BDT for causing death by negligent behavior of BRTC and Swajon Paribahan Ltd. Here in both of the cases government has been held vicariously liable for the infringement of fundamental rights under Article 32 of the constitution of Bangladesh (right to life). By delivering those landmark judgments HCD has imported and examined the constitutional tort rule, which includes claims for damages against governments or government officials for constitutional transgressions.

Abeyratne, R.in his paper, Ordinary Wrongs as Constitutional Rights: The Public law model of Torts in South Asia, (2018) examined how, under the guise of PIL, courts in India, Sri Lanka, and Bangladesh have brought large swathes of private law – tort law especially – into the realm of public law. The paper correlated with the proposed paper in scrutinizing the rules of constitutional Tort Law in south Asia.

Apurbo, S.R. in his paper, Development of Tort Law in Bangladesh and Recent Case Decisions (2018) discussed the Mechanism for the enforcement of both the public and private tort law in Bangladesh. In his paper special emphasis has been given also about some renowned case laws relating to constitutional tort law in Bangladesh. The paper is pertinent with the proposed paper in describing the mechanism for enforcing Tort Law and Constitutional Tort Law in Bangladesh.

Haider, N. in her paper, Development of the Laws of Tortious Liability in Bangladesh (2021) has discussed the laws of Tortious liability by reflecting most of the cases in Bangladesh. The paper is concerned with the proposed paper in describing the development of Tort Law with case reference in Bangladesh.

Howlader, A. R . in the paper, Writ Jurisdiction of the Supreme Court of Bangladesh. (2006) clarified the rules relating to writ jurisdiction in Bangladesh elaborately by which fundamental rights are enforced. The paper related with this proposed paper in describing how fundamental rights are enforced in Bangladesh. This is called preventive mechanism. But the paper is different from the proposed paper on the matter that the mechanism for enforcing fundamental rights may be the curative one also.

Michael L, Wells.  Marshall Shapos Constitutional Tort Fifty-Five Years Later, (2020) reviewed the article of Marshall Shapos Constitutional Tort: Monroe v. Pape and the Frontiers Beyond theory. Professor Shapos paper analyzed the origins of constitutional tort law, which consists of suits for damages for constitutional violations committed by government officials or the governments themselves. The article began with an account of the post-Civil War background of 42 U.S.C. § 1983, a statute enacted in 1871 to enforce the Fourteenth Amend-ment. After the Civil War, recalcitrant southerners, acting through groups like the Ku Klux Klan, intimidated the freedmen and their white supporters, organized lynch mobs, burned houses, and, in general, attempted to restore the old order. The statute authorizes a cause of action against “[e]very person” who, acting “under color of” state law, violates constitutional rights. The paper connected with the proposed paper to describe the historical background of constitutional tort law in all over the world.

Sircar.v.k. in his paper, Compensation For Violation Of Fundamental Rights A New Remedy In Public Law Distinct From Relief Of Damages In Tort (1995) explored the true basis and nature of States responsibility to pay compensation for violation of fundamental rights of the citizen by their officers through various landmark decisions in India. The paper linked with the proposed paper to analyse the compensation based nature of constitutional tort law but diverge on the matter that the former is related to India whereas latter is related to Bangladesh.

The paper is a doctrinal qualitative research through a non-empirical study, based on both primary and secondary source. In this research paper doctrinal research methodology has been applied as it has been conducted on a legal notion through the application of reasoning and logic to an analysis of current statutes and case laws as a primary source. Data analysis based also on secondary sources like journal, books, newspaper article, websites have been conducted. In this paper by the critical examination of case laws, statutes and other sources, it has been revealed how the constitutional tort law paved the way forward to ensure the new dimension of fundamental rights. Qualitative approach also has been applied in this paper as non-numeric data has been analysed. The study has also limitation as there has not been conducted any interview or survey which may make different view. Apart from this the study focused mainly on legal factor not the non-legal factor.

Fig. 1: Flowchart of research process.

Protection of fundamental rights in Bangladesh

Part 3 (Articles 26–44) of the constitution of Bangladesh, which uses highly technical language, guarantees the fundamental rights of the people of Bangladesh. They are referred to as basic rights in the sense that they are enshrined in the ultimate or fundamental laws of the land, which supersedes all other laws in the land. (Lawyers and jurist, n.d).The Constitution forbids the State from enacting any legislation that is incompatible with these rights and declares null and void. Every person is entitled, under Article 44 of the Constitution, to petition the High Court Division in line with Article 102, Clause 1, in order to have any of the fundamental rights granted by Part 3 of the Constitution enforced. Constitution of 1972, Article 102, Part Vl, defines the jurisdiction of the High Court Division of the Supreme Court to uphold the fundamental rights. The Appellate Division, in addition to the High Court Division, will have the authority to issue any directives, orders, decrees, or writs that may be required to ensure. This includes orders that aim to compel the production of any document or the attendance of any concerned parties. (The Constitution of Peoples Republic of Bangladesh, 1972) Technically speaking, the term "fundamental right" refers to those human rights that are enshrined in a constitution and are safeguarded by such guarantees. This is referred to as a "writ," which guarantees five methods for defending fundamental rights. They are the habeas corpus, mandamus, prohibition, certiorari, and quo warranto writs.

The Habeas Corpus procedure protects individuals right to personal liberty by providing a quick and efficient way to be released from wrongful or unjustifiable confinement, whether it be in a private or public custody. Mandamus are orders issued by the High Court of Justice under the authority of writ law that are directed to any person, business, or lower court and force them to carry out specific legal obligations pertaining to their position. The Superior Court issued the writ of certiorari, which instructed a lower court - civil or criminal - to forward the record of all cases that were pending there to the Superior Court for review and resolution. The prohibition writ prohibited a lower temporal court or an ecclesiastical court from carrying out actions that were beyond their jurisdiction or against the laws of the realm. In fine the writ of quo warranto offers protection from unlawful takeover or occupation of any public office, franchise, or right. To avail the right of protection of fundamental rights following conditions must be fulfilled: 

a) An individual who feels aggrieved must submit an application to issue a writ;

b) The High Court Division must be satisfied that no alternative or efficacious legally available remedy is as effective as this one;

c) It is carried out by someone carrying out duties related to the Republics or a local authoritys operations, and

d) The act is not legally allowed.

a) An individual who feels aggrieved must submit an application to issue a writ

In order to enforce any of the fundamental rights guaranteed by Part III of the Constitution, the High Court Division may, upon the application of any person who feels aggrieved, issue any directives or orders to any person or authority, including any person carrying out any function related to the affairs of the Republic. (art. 102(1), The Constitution of Bangladesh) It is rather evident from the aforementioned article that the aggrieved party must submit an application. In addition to other elements of sustaining a case, such as the certainty of contesting parties, the locus standi of the injured party, etc., the purpose of filing an application is to bring the Courts attention to a specific case of infringement. So according to the literal reading of Article 102, a court in Bangladesh cannot file a writ petition on its own but in the case of Mohammad Tayeeb vs. Bangladesh there was no formal application - not even a telegram or letter - but the learned Judges of the High Court Division, upon seeing the news article about Shahida, issued a suo moto rule. Mentionable that this practice was first introduced as part of the judicial activism in Sunil Batra vs. Delhi Administration, and it is now widely recognized in India. (AIR 149 SC 1982).

b) The High Court Division must be satisfied that no alternative or efficacious legally available remedy is as effective as this one

The Supreme Court of Bangladesh must determine, in accordance with Article 102 of the Constitution, that the party aggrieved has exhausted all other equally effective legal remedies before issuing any prerogative writs. (Howlader, 2006) In the case of Shafiqur Rahman vs. Certificate Officer the court opined that the exercise of the writ jurisdiction is positively barred if the alternative remedy is both sufficient and similarly effective. The writ is, however, preserved in a few extraordinary circumstances when the other remedies are not exhausted. According to the ruling of the High Court Division a writ petition is viable even if the appellate remedy has not been exhausted (Farzana Hoque v. Dhaka University). 

c) It is carried out by someone carrying out duties related to the Republics or a local authoritys operations

 In order for Article 102(2) to be invoked, the petitioner must be aggrieved by an action taken by a person or local government body that is acting "in connection with the affairs of the Republic.". No warrant will be issued against the person if he is not carrying out any duties related to the operations of the Republic or a local authority. As in Abdur Rahman vs. Bangladesh Kazi Ebadul Haque J., Observed, the officer of a corporation is not subject to a writ petition since he was not involved in any activities related to the local authority or the republic. The decisions of the abovementioned cases have given a crystal clear idea that writ petition cant be filed against any private person. 

(d) The act is not legally allowed

 The High Court Division has the right to declare the act of any authority unlawful and to forbid further action if it is carried out without jurisdiction or in excess of jurisdiction. In Abdul Khaleque vs. Court of Settlement,  Kazi Shafiuddin, J. observed: "There can be no doubt that if a Tribunal or Court acts wholly without jurisdiction, its action would be a nullity.” 

Application of law of tort in Bangladesh

Tort is a private wrong for which the injured party may recover damages, i.e. monetary compensation and the application is not as frequent in Bangladesh as there are no statutes purely respecting tort Law. But there is a maxim under the law of tort that Ubi jus ibi remedium which is a Latin legal maxim that translates to "where there is a right, there is a remedy." It summarizes the conception that the law gives the party who has been wronged, a proportionate remedy or relief when their legal rights are infringed.  So to afford effective remedy likewise most of the countries in the world the judiciary in Bangladesh has to follow the precedent or judge made Law as there is no codified Law on tort law. To flourish judicial activism in the arena of tort law, judiciary can take help of some enactments whereas the remedy may be provided namely; The penal Code, 1860, The Fatal Accidents Act, 1855, The Code of Civil Procedure,1908, Bangladesh Labour Act,2006 and The Constitution of peoples Republic of Bangladesh, 1972.  Generally, the common law and civil law jurisdictions govern private law torts in Bangladesh, and the relevant civil courts and tribunals may initially receive a lawsuit alleging a private law tort. Conversely, constitutional torts are enforced by the High Court Division in accordance with Article 44 and Article 102(1) of the Constitution. The High Court Division and Appellate Division of the Supreme Court have rendered a number of significantly significant rulings thus far that have directly influenced the development of tortious responsibility rules within our jurisdiction (Haider, 2021).

 Constitutional tort

 A breach of ones constitutional rights by a public servant causes to arise the issue of constitutional tort. Generally speaking, a constitutional tort is a legal mechanism that permits the state to be held vicariously liable for the deeds of its agents. Under the English Common Law, the maxim was that "The King can do no wrong" and consequently, the King was immune from responsibility for the wrongdoings of its subordinates. But, Crown Proceedings Act, 1947 altered the status of abovementioned ancient Common law maxim. Prior until now, the King could not be sued in tort for wrongs that were either done by its servants while they were employed or wrongs that were legitimately sanctioned by it. As the States powers grew, the Crown Proceedings Act, 1947 was established, making the Crown accountable for tort committed by its employees in the same way that a private person would be.

Similarly, in America, the state was held accountable by the Federal Torts Claims Act of 1946. A cause of action is created by the alleged constitutional breach, which is different from any other state tort remedy that might be available. “Constitutional tort” is a predominantly academic term originating in the aftermath of the Supreme Courts decision in Monroe vs. Pape  which held that “42 U.S.C. § 1983 provides a separate federal remedy for individuals suing state or municipal government officers who have violated their constitutional rights.” The Supreme Courts ruling in the case of Monroe v. Pape (1961) was that the lower courts interpretation of § 1983 was incorrect. The Court explained that “[t]he federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” In other words, regardless of state laws ability to rectify the constitutional breach, the Court determined that a § 1983 cause of action was admissible. According to this interpretation, official acts that are illegal under state law and for which there is a remedy are likewise illegal under the statute, which greatly increased the legislations usefulness as a tool for upholding constitutional rights in court. ( L. Wells, 2020; Arifuzzaman et al., 2021)

Also, in India Article 300 of the Indian Constitution enumerates the States accountability for acts committed by the Government under law of tort. The origins of constitutional torts can be found in the Acts passed by the British East India Company. It was first included in section 65 of the Government of India Act of 1858. The Government of India Act of 1935s section 176 carried over this further. As a result, section 176 served as the foundation for article 300 of the Indian Constitution. The Constitutions Article 300 allows lawsuits and legal actions to be brought against the state under the Union of Indias name. Therefore, the states tortious obligation results from the vicarious liability of its servant in performance of non-sovereign functions. (Legal services in India,n.d.) This question was first arisen in the case of P. & O. Steam Navigation Co. vs. Secretary of State, where the facts of the case were that a servant of the plaintiffs business was traveling down a Calcutta route in a carriage pulled by two of the plaintiffs horses. He was involved in an accident that was brought on by government employees carelessness. The plaintiff sued the Secretary of State for India for damages related to the accident-related loss. The court decided that the rule applied to the East India Company and distinguished between functions that are performed by sovereign entities and those that are performed by private individuals.  In subsequent case of Rudal Shah vs. State of Bihar in accordance with article 32 of the Constitution, a public interest litigation matter was submitted to the Supreme Court. Rudal Shahs release from unauthorized custody as well as compensation was requested in the petition. Rudal Shah was detained in 1953 on suspicion of killing his spouse.  In 1968 he was acquitted. In spite of his acquittal, he was incarcerated for 14 years. The state was ordered by the court to compensate the petitioner with 30,000 rupees. In this decision, the Supreme Court granted damages for the infringement of basic rights, setting a precedent for state culpability in cases involving such violations. Not only India but also Sri Lanka has taken on aspects of the Indian jurisprudence to constitutionalize some areas of private law and develop its own public law model of tort adjudication (Abeyratne, 2018).

Constitutional tort law in Bangladesh

In Bangladesh, there is no legislation, which governs the liability of the State for the torts committed by its servants like other countries. But High Court Division in recent trend has made the state liable under law of tort and granted relief for the infringement of fundamental rights. This is called constitutional tort law. In the Jihads case (10 SCOB [2018] HCD) the court has upheld this constitutional tort law. In this case Jihad who was a four-year-old child, fell into an unprotected pit owned by the railway authority on December 26, 2014. Shortly after the respondents gave up on their rescue attempt, saying there was "no sign of the boy inside the well," his body was found the next day by a group of volunteers using a homemade gadget. By applying the tortuous principle of res ipsa loquitur, which means "the thing speaks for itself," the Court inferred the negligence of the fire service and railway employees. It then applied the doctrine of vicarious liability to hold the relevant public entities accountable for the negligence of their employees. By using constitutional torts and strict liability, it is a historic precedent that holds public organizations accountable for the carelessness of their employees. The court noted that there has been a violation of fundamental rights (right to life) and that the HCD is free to determine the appropriate amount of compensation based on the specific facts of each case. The court determined that Bangladesh Railway, Bangladesh Fire Service, and Bangladesh Civil Defense would each pay BDT 10 lakh of the BDT 20 lakh compensation.

Beside Jihads case, constitutional tort also has been applied in another case ([2019] 7 CLR, HCD) 665) where Rajib, a 22-year-old student, had his right hand severed, as a result of a collision between two buses, which were competing to reach commuters at a particular bus stop. A public interest lawyer after the accident sued the BRTC and Swajon Paribahan Ltd under Article 102(1) claiming 10 million BDT as compensation for Rajib. The HCD established an independent committee to inquire about the accident and then basing on the findings it pointed out the negligence of both companies. In this case compensation has been afforded also by the court for the violation of right to life as a fundamental right.

Protection of fundamental rights by applying law of tort

In Bangladesh, the protection of fundamental rights is a preventive remedy rather than curable one which is very frequent in practice although Article 102(1) of our constitution has given mandate to provide any kind of appropriate orders and directions to the aggrieved party. Even more significantly, it was argued by Mahmudul Islam, one of the leading constitutional scholars in Bangladesh, that the wording of Article 102(1) seems permissive to any kind of remedy, since it states that the HCD ‘may give such directions or orders necessary to enforce fundamental rights. Sometimes it has been also said that it is not discretionary with the High Court Division to grant relief under Article 102(1) but obligatory in an appropriate case. (Kochuni V. Madras, 1959) Further it has been confirmed that The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law may give any orders by the application of any person aggrieved. (art. 102, The Constitution of Peoples Republic of Bangladesh, 1972) So it is relatable to mention that an aggrieved party can claim any remedy which is appropriate and just. As the type of relief that can be awarded, is not specified by the Constitution the High Court Division is responsible for determining the appropriate remedies based on the specific facts of each case. The High Court Division has recommended more precisely that court is competent to award compensation if fundamental rights are infringed by the colourable use of power by police under s. 54 and s.167 o Code of Criminal Procedure, 1898.( Blast vs Bangladesh, 2003) Even the aggrieved party will be entitled to call in aid the writ jurisdiction of the High Court Division for reparations by way of pecuniary compensation to be paid to them by the State party for the unlawful and unconstitutional State actions during the ‘Operation Clean Heart. (Z. I. Khan Panna Vs Bangladesh & ors, 2016) In an Indian case (Mehta V. India, 1987) it was also determined that it need not be limited to injunctive relief that stops the violation of a fundamental right in certain situations, it may be remedial relief that offers compensation for a breach that has already occurred. Indian Supreme Court did not rest merely giving declarations or directions; where the situation demanded, it granted exemplary costs. Furthermore, it has been emphasized in a positive way to do anything by the court for the complete justice. 

Verma J notably added. “If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law is to be real, the enforcement of the right in case of every contravention must also be possible in the Constitutional scheme, mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily accessible when supplicated by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies where more appropriate.” Thus, it is appropriate to applaud the new remedy since it would significantly alleviate the suffering of victims of violations of their right to life and personal liberty as guaranteed by Article 21, as well as the suffering of their dependents, for violations of other fundamental rights. (Sircar, 1995) So it may be stated that protection of fundamental rights can be enforced not only by prevention but also by remedial measures but our judiciary was reluctant to provide this remedy and finally the court has stepped into the new era of providing compensation under tort law for the violation fundamental rights in Bangladesh. There are two cases named CCB Foundation and Md Ruhul Quddus vs Government, where in the former case the railway authority was negligent to maintain the drainage system and a child named Jihad died by falling in it. A writ petition was filed against the state under art.102 (2) of the Constitution of Peoples Republic of Bangladesh for the protection of right to life (art. 32, Constitution of Peoples Republic of Bangladesh), and the state was vicariously liable for the act of railway authority and has given compensation to the victims family. The latter case, Rajib, a boy was a passenger inside the BRTC bus and the sudden collision caused him to fall off the vehicle, while his right hand got stuck in the narrow space left between the two buses and was almost instantly severed. 

Afterwards he was died and the HCD ordered compensation of 5 million BDT, to be paid jointly by BRTC and Swajon Paribahan Ltd. for their negligent behavior. By initiating these decisions, the mechanism of enforcing fundamental rights has got a new characteristic which is named as constitutional compensation. It is extremely significant because it established a precedent for holding public bodies accountable for the negligence (whether intentional or inadvertent) of their employees through strict liability and constitutional torts (T. Huda, 2018).

In reference to earlier deliberation, it can be stated that constitutional tort law is a new dimension of legal mechanism which ensures compensation based fundamental right in Bangladesh. Before initiating constitutional tort law, the court used to provide preventive remedy only in case of violation of fundamental rights. But the HCD (High Court Division) through case laws introduced this new tool of curative one. Under this curative mechanism the government has to pay compensation for the infringement of fundamental rights which will tend the govt. more dutiful. In Bangladesh most of the cases relating to tortious liability remain without any remedy specially the case of negligence on behalf of person in connection with the affairs of the Republic or local authority or statutory body. If the court becomes more affirmative to provide the remedy under constitutional tort law the state will be more careful and functional towards the people. This paper has also made a scope for further research upon remedying the event of negligence of government authority and vicarious liability.

Recommendation

The court needs to proceed and think very positively regarding the allocation of compensation in this type of case but the positive mind should be used sparingly as there is no hard and fast rule for calculating compensation. Before awarding compensation, the court should consider the gravity and importance of each case and apply a judicious mind. Liberal interpretation in enforcing fundamental right and providing appropriate remedies and directions relating thereto can help to maintain rule of law in our country.

1. Lawyers should be more affirmative to initiate the case of constitutional tort Law. They should come forward to initiate Public Interest Litigation (PIL) for this kind of remedy. It is evident that due to the high litigation cost most of the cases relating to constitutional tort comes to an end by compromise. For social obligation lawyers should facilitate low cost to this kind of litigation which will enhance the dutifulness and awareness of govt. authority.
2. Most of the people are not aware of this kind of remedy, and so it is much needful to enhance the knowledge about the aforementioned matter. In a democratic country like Bangladesh, people are the source of all powers and this power can be exercised by enforcing fundamental rights. 
3. The government should enact appropriate legislation to govern the constitutional tort Law. Likewise, many nations in the world if the state enacts laws relating to that the stakeholders shall be more affluent in affording remedy.

The author acknowledges the continuous support of her family and close ones, which greatly contributed to this scholarly pursuit.

The author declares that there are no conflicts of interest related to this research paper. The paper outlines the authors interpretation based on personal reasoning and thought.