KAZI MUKHLESUR RAHMAN VS BANGLADESH 26 DLR SC 1974

 

 Statement of the Fact:

The Appellant prayed before the High Court Division for a declaration that agreement between the People’s Republic of Bangladesh and Republic of India signed on 16 May, 1976 by the Prime Ministers of the two countries (Known as Delhi Treaty) involved cession of Bangladesh territory was without lawful authority and of no legal effect. The appeal arose out of an application under Article 102(2)(a)(ii) of the Constitution. The application was summarily dismissed by the learned judges of High Court Division who however granted the applicant certificate under article 103(2)(a) of the Constitution.

Argument from the petitioner:

It was argued that

 Since the remedies under Article 102(2) of our Constitution are discriminatory the words ANY PERSON AGGRIEVED should be construed liberally and given a wider meaning. 

 The Appellant was under an impending threat of deprivation of his fundamental right under Article 36 of the Constitution and his right of franchise. On this connection the court considered the case Blackburn vs Attorney General where a point was raised whether Blackburn had the standing before the court and Court allowed his locus standi.

  

Argument from the Respondent:

It was argued that

 The application before the High Court Division was premature because the Delhi Treaty was in terms stipulated to come into effect only upon hearing of the event or ratification and exchange of the instruments of ratification.

 The treaty making being an act of state which was not amenable to judicial review.

 Appellant was not a resident of any part of the territories involved in the Delhi Treaty. So, appellant could have no interest there in which could be affected by the treaty and as such he was not a person aggrieved within the meaning of Article 102(2) of our Constitution.

 The certificate granted for the appeal by High Court Division was plainly defective and consequently the appeal was incompetent. The question was raised whether Article 55(2) of our Constitution by which the Prime Minister exercises the executive power of the Republic and authorizes him to enter into an international agreement of of the kind as Delhi Treaty. This is a Constitutional question which was summarily dismissed by the High Court Division. So, the appeal before the Appellate Division was not competent.

Issue:

Whether the petitioner is an aggrieved person within the meaning of Article 102(2) of our Constitution and has the locus standi in this case?

Decision:

The appeal was liable to be dismissed in the view of the findings that the application under Article 102(2)(a)(ii) of the Constitution was premature.

Reasoning behind the decision:

The above decision was taken on the ground that Delhi Treaty would be subject to ratification and it would take effect from the date of exchange of the instruments of ratification. So, there could not be no question of document being declared to be done without lawful authority when the document itself stipulated that it would be effective only on happening of a certain event in future.

Principle:

The question of locus standi does not involve Court’s jurisdiction to hear a person but of the competency of the person to claim hearing and that is the Court’s discretion to decide upon the consideration of facts and circumstances of the case.

 

Importance of this case:

In this case the meaning of the phrase ANY PERSON AGGRIEVED under Article 102(2) and on what considerations the court will grant locus standi of any applicant was clearly and elaborately discussed. The petitioner Kazi Mukhlesur Rahman was given locus standi taking him a person aggrieved within the meaning of Article 102(2) because the impugned treaty would put him under an impending threat of deprivation of fundamental right under Article 36 of our Constitution and his right of franchise. Though the treaty making was an act of the state the jurisdiction of the court could not be excluded by merely raising the plea of the act of the state. So, the court’s jurisdiction was enlarged upon the executive act where there is a question of fundamental right of the citizens.