Abstract
Constitutional tort, though not a new concept in Bangladesh, has not evolved on a large scale after witnessing a great violation of any fundamental right guaranteed in the Constitution. Liberalizing the compensational jurisprudence in case of grave violation of fundamental rights is the modern view adopted by the Supreme Court of Bangladesh even though our Constitution does not preclude its guardian to take any weapon to protect the victim of such fundamental rights guaranteed there. Article 102(1) of the Constitution of Bangladesh ensures the enforceability of fundamental rights and it has the discretion to heal the victim in any manner whatsoever it thinks fit. India, the country next to us, progresses a long road ahead of us in acknowledging constitutional tort and in restoring the natural or proper condition as far as suitable despite their clear provision of 'sovereign immunity'. However, Bangladesh is currently following the same path and adopting quite a liberal, though not fully liberal, approach in granting proper relief, i.e., awarding compensation, to the victim in case of violation of fundamental rights by any authority. This article shows different case laws where the highest court of the country directed the public authority to pay-compensation for violating constitutional torts. This article recommends a convention or tradition of the Supreme Court to follow the precedent of awarding compensation in cases of constitutional tort. Since Article 102 guarantees relief of the person aggrieved against 'any person or authority', gradually the liability of the state authority is shifting to the persons who are under the control of the state and held vicariously liable for such constitutional tort which opens a new scope for making them accountable for violation of fundamental rights of the citizens.
Authors
- Abdan — Shakura