In early 1980s, the case of Bangladesh v. Winifred Rubie shows the lack of judicial insights of our Apex court in recognizing and vitalizing the status and function of fundamental principles. In this case, the Appellate Division of the Supreme Court goes against the observation of the High Court Division by narrowing down the plausibility of judicial interpretation in the light of fundamental principles.
In this case, the High Court Division faced a question as to whether a requisition order of the landed property locating the Wills Little Flower School was for “public purpose”. In interpreting the term “public purpose”, the High Court division referred to the fundamental principles of state policy (particularly Article 17) and held that the school (Wills Little Flower Scholl) being a private school with a reasonable high tuition fee was serving the affluent few of the society rather than the mass people. The High Court division opined that “public purpose” must be interpreted in the light of Article 17 of the Constitution which mandates the state to work for the mass-oriented uniform system of education. In rejecting the observation of the HCD, the Appellate division observed:
“As for the state policy of education it is unfortunate that the learned judges have taken upon themselves as enquiry which is neither warranted by law in the Constitution and the constitutional mandate provides in chapter on directive Principles of state policy that these are not enforceable in the court.”
The Appellate Division’s reaction to the observation of HCD deserves a serious criticism. It is generally argued that in promoting the non-justiciability doctrine, the Appellate Division clearly deviates from the constitutional demarcation of “judicial enforcement” and “judicial interpretation”. Thus by criticizing the observations of the AD, Mr. Mahmudul Islam explains the correct position in the following words:
“…in order to find the meaning of ‘public purpose’ in relation to education, the High Court Division was not only entitled, but was also under constitutional obligation, to consider whether the requisition of property for a school of the type involved could be said to serve a public purpose when Article 17 mandates the State to adopt effective measures for the purpose of establishing a uniform, mass-oriented and universal system of education.”
It is clear that the attitude of the Appellate Division reflected in the Winifred Rubie case results in undermining the constitutional status of fundamental principles in one hand, and creating a barricade on the judicial policy activism on the other. However, the greatest roadblock in the way of realizing the importance and efficacy of the fundamental principles comes from a somewhat “pathetic pronouncement” of Kudrat-E-Elahi case which takes a decade to come after the Winifred Rubie.
