Being followed by the democracy-oriented atmosphere of 1990s, the background of Kudrat-E-Elahi case created an ample opportunity for the judiciary to revitalize the status of the directive principles in order to establish “judicial entitlement” in policy activism. This opportunity was miserably misused even by the learned judges of “the golden age of our judiciary.” By overruling the illuminating observations of Justice Naimuddin Ahmed given in the HCD, the Appellate Division took an orthodox view of non-justiciability doctrine. Thus in this case, the Apex court of our country once again fails to understand the “implementation agenda” that is inherent in the scheme of fundamental principles itself.
The case of Kudrat-E-Elahi Panir and others v. Bangladesh concerned a challenged to the Ordinance abolishing the elected Upazila Parishads and vested in the Government all rights, power, authorities and privileges of the dissolved Upazila Parishads. The Appellants, some chairman of dissolved Upazila Parishad, unsuccessfully challenged the law in the high court division and then obtaining appeared before the Appellate Division by leave to appeal.
One of the grounds was that the ordinance being inconsistent with article 9 and 11 runs against the spirit of the constitution and becomes void by operation of article 7(2). It was clearly seen that the Ordinance was clearly against the articles 9 and 11, but the problem was that the articles 9 and 11 are in the II containing the Fundamental Principles. Thus the debate goes over the issue of the legal and constitutional status of these principles and consequence of their non-implementation.
In the High Court Division, Justice Naimuddin Ahmed unsuccessfully tried to introduce a new interpretative technique in order to safeguard the promise of our socio-economic rights as enshrined in Part-II of the constitution. In so doing, he identifies three probable situations that may be envisaged in the context of the fundamental principles of state policy:
a) First, the Government may not implement the fundamental principles by legislative enactment of executive actions.
b) Secondly, a legislative act or an action may not conform to the fundamental principles.
c) Thirdly, there may be a legislative act or an executive action in clear violation of the fundamental principles.
For the first and second situations, he then clearly denies the possibility of any judicial interference and thus adhered to the non-justiciability doctrine in almost a similar fashion. In his words:
“In the first contingency the court has no jurisdiction to direct the legislature to enact laws or the executive to act for implementing the Fundamental Principles and in the second contingency also the court cannot intervene and say that the legislative act or the executive action is invalid not being in conformity with the fundamental principles and also cannot issue directions to make them in conformity with these principles.”
However, he took a different view as regards the judicial implication of third possibility. Thus according to him, where any legislative or executive action clearly negates or violates the directive principles, the court can be said to have the power to strike down such actions. In this respect, he proposed a modified reading of the non-justiciability doctrine by saying:
“…it does not mean that since the Court cannot compel the enforcement, the executive or legislature are at liberty to flout or act in contravention of provisions laid down in Part-II of the Constitution….and [thus] at the same time it means that the court has the power to intervene when the Government flouts and whittles down the provisions of this part.”
In connection to his argument, he referred to the following observation of Justice Badrul Haider Chowdhury made in the case of Anwar Hossain v. Bangladesh (the famous 8th Amendment case):
“Though the directive principles are not enforceable by any Court, the Principles laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It is a protected Article in our Constitution and the legislature cannot amend this Article without referendum. This alone, shows that the directive principles cannot be flouted by the executive. The endeavor of the Government must be to realize these aims and not to whittle them down.”
The Appellate Division of our Supreme Court has not, however, accepted the argument of Justice Naimuddin Ahmend and criticized his observation by saying it a “mere hypothesis”. In the main judgment, Shahabuddin Ahmed CJ held that Articles 9 and 11 being located in part II of the constitution are not judicially enforceable. If the state does not or cannot compel the state to do so and other such fundamental principles also stand on the same footing. To clarify the constitutional position of the fundamental principles regarding their enforceability, he therefore says:
“The reason for not making these principles judicially enforceable is obvious. They are in the nature of people’s programme for socio-economic development of the country in peaceful manner not overnight, but gradually. Implementation of this programmes require resources, technical know-how and many other things, including mass-education. Whether all these prerequisites for a peaceful socio-economic revolution exist is for the state to decide.”
In the same judgment, Justice Mustafa Kamal concurs with Justice Shahabuddin Ahmed and elaborates his reasoning by relying on two vital points:
1) Dealing with the voidability of legislation on the ground of inconsistency with fundamental principles, Justice Mustafa Kamala emphatically denied the possibility of calculating fundamental principles to work as a double-edged sword like fundamental rights. In this regard, he says that while there is a specific provision in the constitution dealing with laws that are inconsistent with fundamental rights, there is no specific provision regarding laws that are inconsistent with the fundamental principle of state policy. To him the omission is deliberate and calculated, and thus the fundamental principles cannot have the same status as that of fundamental rights.
2) In so far as the legal and constitutional status of fundamental principles is concerned, Mustafa Kamal observed that the constitution itself in article 8(2) recognizes that fundamental principles of state policy are not laws but ‘principles’ that have to be applied by the state when making laws. By referring to the “definition of law” as provided in Article 152(1) of the constitution, he says that “[t]o equate ‘principles’ with ‘laws’ is to go against the law of the Constitution itself….Not being laws. These principles shall not be judicially enforceable.” Thus according to him, Article7(2) cannot be interpreted to say that if any other law is inconsistent with the ‘principle’ mentioned in part II then that law to the extent of inconsistency shall be void.
Justice Mustafa Kamal has, however, evaluated the status of the fundamental principles by letting them serve as the useful “beacon of light.” As regards the enforcement mechanism, he then categorically observed that judicial enforcement is not the only way to enforce these principles. The court is not, as he says, “the only light at the end of the tunnel.” Thus according to him, if the Parliament goes berserk by violating these principles , public opinion, political party and election will be effective ways to put a check on the clock.
At this point, it is arguable that the attitude of our Appellate Division towards the fundamental principles shows the greatest setback in understanding the mandate of the constitution in general, and realizing the aims and objectives of incorporating these principles in particular. More importantly, its orthodox reading of the non-justiciability doctrine results in the total disregard to the “judicial entitlement” in policy activism. Thus at that time, while the Indian judiciary was in a mood to give a fillip to the directive principles, our judiciary completely crippled them down.
The failure of our judiciary to catch the “comparative insights” has not, however, lasted long. The judiciary has immediately taken itself away from the “holting place” of Kudrat-E-Elahi case. With the winds of the trans-judicial influence, and as a response to the world’s growing move towards monism, our judiciary has also starded to nurture the seeds of judicial activism, especially in realising the socio-economic rights. The imports of this “judicial rethinking” have been reflected in some of the later cases touching the provisions of fundamnetal principles.