DR NEELIMA IBRAHIM VS BANGLADESH 32 DLR 1980

 

 Statement of the Fact:

The petitioner was a member of Bangladesh Mahila Samity and she was the president of its central executive committee on 19-04-1980 when the impugned order was communicated to her. An Adhoc Committee was appointed for performing specified duties under the order dated 28^th February,1972. Another Adhoc Committee was constituted by the Government under Article 3 of P.O 117 of 1972 to frame a constitution and an election was held in 1973. After the expiry of the term of that election another election was held on 1976. With due authority of the Samity the date for election of the Management Committee was fixed on the 28^th April, 1980. In the evening of the 19^th April the petitioner received the impugned order. The petitioner moved this application both as a member of the Samity as well as the President of its Management Committee.

 

Argument from the petitioner:

It was argued that

Ø  President’s Order no. 117 of 1972 was ultra vires to the Constitution because it had violated the freedom of association guarantee under Article 38 of our Constitution.

Ø  The power under Article 03 of the President’s Order was not available to the Respondent as the Adhoc Committee that had earlier been appointed was replaced by a duly elected Committee of Management under Article 04 of the Order.

Ø  The impugned was in violative of the principle of Natural Justice and it was passed Malafide on the eve of election when all the preparations for holding the election for the Central Executive Committee were taken.

Argument from the Respondent:

It was argued that

Ø  The petitioner had no locus standi. The petition was bad for not imp leading necessary parties. The President’s Order was not only an existing law at the time of the commencement of the Constitution but it was later amended by the Parliament by Act no XXIX of 1973. There was no violation of Principle of Natural Justice or there was no existence of Malafide intention.

Issue:

Whether the President’s Order no.117 of 1972 was declared lawfully maintaining the corresponding provisions of the Constitution?

Decision:

President’s Order no.117 of 1972 was totally void under Article 26 of our Constitution .

Reasoning behind the decision:

The above decision was taken on the following grounds:

Ø  The impugned order was not in consistence with the freedom of association under the Article 38 of our Constitution and the restriction imposed by the order was not reasonable.

Ø  The impugned order had violated the principle of audi alteram partem meaning listening to the other side.

Ø  The impugned order was intended to preempt the election which was scheduled to be held on 20^th April, 1980 which revealed that it was passed without application of mind and it was Malafide in law.

Ø  There was no material in the order or affidavit showing any instance that Bangladesh Mahila Samity was indulging in political activities contrary to its aims and objectives and against the Public Interest.

Ø  The petitioner had a right to move to this court for seeking enforcement of a right conferred by Part III of the Constitution. The impugned order adversely affected the petitioner’s right as a member of the Samity. In the Article 7 of the Order it was written that no court would entertain any suit galling into action so it was not possible for the petitioner to move to any civil court for her remedy.

Ø  The application was not bad for none joining of necessary or proper parties because no one would be affected if the impugned law was held to be void.

Principle:

Principles came out from the case are-

Ø  The court can determine whether the restriction is reasonable or not but can not say why it is imposed.

Ø  A law should be interpreted in such a manner that it should rather be saved than destroyed.

Ø  When an order providing subjective satisfaction violates any fundamental right can be declared void.

Ø  A constitutionally good law may be badly administered but that will not make that law unconstitutional. Again a Constitutionally bad law may be intelligently administered avoiding a collision with any of the fundamental rights but that will not make the law constitutionally enforceable.

Importance of the case:

From the judgment of this case it came out that before taking action against any particular member of an association it is the principle of law that the accused must be given the opportunity of defending the accusation if there is no restriction in the law under which he has been convicted. The determining power whether a restriction is reasonable or not is entrusted upon the clearly disclosed otherwise that restriction will violate one of the fundamental rights of Part III of our Constitution under Article 38.