1. INTRODUCTION
Under the Constitution of Bangladesh, housing or shelter has not traditionally been considered a right, but a basic necessity and one of the fundamental principles of state policy. The Constitution is explicit about the non-justiciability of the provision of housing as well as other necessities like food, clothing, education, and medical care.Footnote 1 The state, however, has an international obligation to ensure housing for all, with special attention required for the disadvantaged individual or community.Footnote 2 The outcomes of recent public interest litigations (PILs) on slum evictions also suggest that judicial consideration of the basic necessity of housing as a core component of the justiciable right to life is evolving. However, domestically, the prevalence of inadequate legislative and policy measures severely jeopardizes the capacity of the state to fulfil its obligations and undermines the gains of the courts to date.Footnote 3
This problem is further aggravated by the systematic and state-induced forced demolitions of slums that started even before the birth of the country in 1971. To ameliorate this situation, since the late 1990s, several local non-governmental and human rights organizations have started to file petitions on behalf of impoverished slum dwellers. Alongside their efforts, the Supreme Court of Bangladesh has taken a forward-looking approach by issuing orders against the government to stop hostile slum demolitions. Various agencies have widely applauded the rulings of the court for recognizing slum dwellers’ need for housing as integral to their right to life and livelihood, and for directing the government to make arrangements for resettlement before any eviction attempt.Footnote 4
However, critics argue that these decisions have achieved only symbolic justice by failing to improve the status quo of the evicted slum dwellers. The steady flow of cases on slum evictions reflects the continued eviction practice in Bangladesh and indicates that the state is still far from fulfilling its obligations under international and national human rights instruments that recognize the right to housing and prohibit forced evictions. Continued non-compliance with the court orders by government authorities due to a gross lack of political will has been identified as the major factor contributing to this failure.Footnote 5
Successful implementation of progressive social rights judgments largely depends on the nature of judicial remedies as well as the sociopolitical and legal contexts, such as courts’ legitimacy in society, political will, states’ implementation capacity, authority of judicial decisions, and vigilance of the litigants.Footnote 6 Although the political branch of the government is the principal organ for implementing courts’ decisions, judicial remedies can nevertheless play a complementary role in influencing political compliance. In this context, in comparison to traditional remedies such as declarations, recommendations, damages, or negative injunctions, legal scholars and judicial practices in numerous jurisdictions, as discussed in this article, suggest a preference for the structural injunction or retention of judicial supervision to effectively influence the implementation of court orders.
While the conventional remedial strategies in social rights litigation constitute only one-shot or monologic remedies, continued judicial monitoring throughout the implementation of a court order creates a space for dialogue and collaboration between the court and the policy-makers.Footnote 7 Thus, it enables the judiciary to prevent the executive from taking arbitrary ownership of the social rights delivery system by infringing people’s rights, liberty, dignity, or freedom, through either retrogressive action or gross resistance.Footnote 8
The Supreme Court of Bangladesh has yet to adopt this remedy in litigations on forced slum evictions. It rather orders weak remedies like declarations and recommendations, which are deficient in monitoring compliance. Since the implementation of court orders is reflective of the strength of judicial decisions,Footnote 9 this problem of non-implementation becomes concerning, indicating that weak remedies contribute to the non-implementation of the court orders in forced slum eviction litigations, as has been the case in other jurisdictions.Footnote 10
Notwithstanding the benefits to be gained from the remedy of the structural injunction, it is not a perfect remedy. Indeed, its increased application by the courts should be approached with an understanding of the potential impediments that could operate to limit its success as a method of achieving greater social justice. The Bangladesh Supreme Court faces several real and compelling challenges relating to its constitutional authority and institutional capacity that hinder remedial innovation. For example, concerns about the separation of powers, resource scarcity, and the weak protection afforded to housing in the constituional as well as the legislative provisions result in the court’s deference to the executive authority. This paper, however, argues that the Bangladesh Supreme Court has the capacity to overcome these challenges. The existence of positive constitutional values on establishing socioeconomic justice, remedial developments in comparative jurisdictions, remedial authority of the court under the constitutional dispensation, and, overall, the adoption of the structural injunction by the court in other rights litigations have provided sufficient impetus for the court’s capacity. In support of this key argument, the paper examines both theoretical and practical perspectives on the structural injunction and the court’s ability to adopt this remedy in the cases of forced slum evictions.
To contextualize the seriousness of the problem, first, the meaning of forced slum eviction and its nexus with homelessness and the right to adequate housing is illuminated, and dynamics of forced slum evictions in Bangladesh are analyzed. It then delves into a normative and legal analysis of judicial remedies. Following an initial examination of the legislative and policy framework that primarily determines the scope of judicial intervention, this part also discusses the remedial approach of the court in the PILs on forced slum evictions. Lastly, the paper critically analyzes the structural injunction and the challenges before the Bangladesh Supreme Court and, in so doing, reveals the capacity of the court to adopt this remedy.
To date, numerous scholarly studies, mostly descriptive and empirical, have been conducted on forced slum evictions in Bangladesh, their human rights impact, and the legal and policy implications of the issue. Relatively few researchers have focused on the judicial role in combating forced slum evictions and realizing the right to housing of the homeless slum dwellers, and none has comprehensively researched judicial remedy. A few critics have supported the application of the structural injunction remedy, but their critiques deal with the judiciary’s role in constitutional rights or basic necessities more generally. This paper, therefore, fills in the current gaps and opens up space for further research on this issue.
2. UNDERSTANDING FORCED SLUM EVICTIONS IN BANGLADESH
2.1 Forced Slum Evictions, Homelessness, and the Right to Adequate Housing: Meaning and Nexus
Housing today means not merely a roof over one’s head or the existence of four walls. It rather contemplates “adequate housing” that requires enabling a person to live a standard life with dignity, peace, and security, such that his or her capability is utilized and expanded. To meet this standard, the components of adequacy must include the presence of legal security of tenure; availability of services, materials, facilities, and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy.Footnote 11
Contrary to the provision of adequate housing, homelessness indicates a situation of deprivation and vulnerability that prevents a person from leading a minimum standard of living. Hence, homelessness is defined by the absence of the components of adequacy contributing to appropriate housing.Footnote 12 Indeed, the eradication of homelessness constitutes a prerequisite for ensuring “adequate shelter for all.” A holistic definition of homelessness equates it with “rootlessness” and “resourcelessness” in addition to its traditional and physical understanding as “rooflessness.” This is consonant with the subjective conception of home as including both the social and economic aspects, as reflected in the notion of the right to housing.Footnote 13
The term “forced eviction” or “forced slum eviction” seems an apparent tautology, as eviction implies the use of force. However, a deeper analysis of the term reveals that “forced eviction” is nothing but a form of arbitrary displacement, where the evictees, having inferior power status to the authority that carries out the evictions, have very little say in the eviction process and are deprived of legal or other protection.Footnote 14 Lack of protection occurs when there is no arrangement for adequate resettlement and compensation, an absence of due process in carrying out the eviction, a violation of the state’s domestic and international human rights obligations on fair eviction, and no scope for challenging the decision or the process of the eviction.Footnote 15 Thus, forced eviction intensifies “inequality, social conflict, segregation and ghettoization” by leading to irreparable discrimination against the already deprived and marginalized individuals or communities.Footnote 16 Consequently, in certain circumstances, an inevitable slum eviction would still be considered forced eviction, even with a court order, if the eviction process does not satisfy the international human rights standards on eviction and the related state obligations.Footnote 17
An appropriate connection among forced evictions, homelessness, and the right to adequate housing may be found in General Comment No. 7 of the United Nations Committee on Economic, Social and Cultural Rights (CESCR). The Committee observed that “[e]victions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights.”Footnote 18 Within the broad range of human rights, the right that is primarily violated and that ultimately affects other human rights is the right to adequate housing.Footnote 19 Thus, forced evictions constitute the primary cause of homelessness and deprivation of the right to adequate housing.
Forced evictions manifestly violate the right to adequate housing, which is prima facie a socioeconomic right, and grossly affect the enjoyment of all human rights.Footnote 20 Because of the indivisibility of civil-political and socioeconomic rights, the exercise of all human rights, ranging from the right to food to the right to life, are dependent on the right to adequate housing.Footnote 21 For this reason, to realize and protect the right to adequate housing, all states are under an obligation, as derived from the international human rights agenda, to refrain from forced evictions. Subject to this obligation, an eviction is justified only in exceptional circumstances, as a last resort. It is lawful only when it strictly follows international human rights standards and is compatible with the principle of reasonableness and proportionality.Footnote 22
The practice of forced evictions is defined as “the permanent or temporary removal against the will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”Footnote 23 In brief, it is “a method of de-housing,”Footnote 24 through involuntary displacement of persons from their usual abode. The nexus between forced slum evictions and homelessness can be understood through the nature and scope of homelessness. Evictions mainly affect three groups of people that include, first, the economically and socially marginalized community, second, the poorest, and, third, people who live with insecure tenure.Footnote 25 Slum dwellers, falling into all these categories, singly comprise the most affected group in comparison to other groups, such as women, children, youth, disabled, indigenous people, elderly people, and minorities, either religious or ethnic.Footnote 26 Besides, as to the situations that lead to evictions, slum clearance has been identified as one of the principal types.Footnote 27
2.2 The Dynamics of Forced Slum Evictions in Bangladesh
Being an enduring manifestation of poverty, deprivation, social exclusion, and inequality, slums pose a worldwide challenge to humanity and society. Slums or low-income settlements represent an extreme form of homelessness where the inhabitants live without access to basic services and facilities.Footnote 28
As in other developing countries, slums in Bangladesh are largely visible in the major urban areas,Footnote 29 as they are considered mainly to be the by-product of rapid urbanization.Footnote 30 It is estimated that 61.6% of the total urban population in Bangladesh lives in slums, this figure being the highest among all the South Asian countries.Footnote 31 Although the percentage decreased to 55.1% in 2016,Footnote 32 slum people still constitute more than half of the urban population. A 2014 report on slum areas and floating population counted 13,938 slums (592,998 slum households) with 2,227,754 inhabitants in the urban areas of Bangladesh.Footnote 33 From 1997 to 2014, over a period of 14 years, the country saw an increase of 66% in the number of slums.Footnote 34
Although informal settlements have a long history in Bangladesh, the rise of slums dates back to 1971 when, immediately after independence, a large number of poor and destitute people relocated to all the major cities in search of livelihood and found accommodation in slums.Footnote 35 Alongside urbanization, several push-and-pull factors, such as excessive population growth, rural-urban migration as a result of natural calamities, poverty, and lack of livelihood opportunity, have contributed to the continued influx of the slum population.Footnote 36 In conjunction with unplanned urbanization, these causes have put excessive pressure on limited land resources and have contributed to making housing a challenging need.Footnote 37
Being a poverty trap, slum life is the best indicator of measuring poverty,Footnote 38 and slums constitute the highest deprived places of the urban area.Footnote 39 Therefore, the visible face of urbanization in Bangladesh is rightly characterized as the “urbanization of poverty.”Footnote 40 Poverty being the significant problem typical of slum dwellings, slum settlers in Bangladesh continuously face other challenges relating to the exercise of their rights and their ability to obtain the basic survival needs. The basic need of housing remains the most crucial of the various basic necessities. To those living in slums, however, housing means nothing more than living in squalid and insecure squatter settlements.Footnote 41 Such inadequate housing conditions reveal the country’s failure to recognize the right of all persons to housing under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and to fulfil its pledge to take appropriate steps for the progressive realization of this right. Unfortunately, no government has made any notable effort toward providing a sustainable solution to this housing problem. This misfortune has been exacerbated by the repeated instances of forced slum eviction by the government agencies, mostly in the name of development and without any measure of alternative arrangements for resettlement.Footnote 42
The history of slum evictions in Bangladesh dates back to before independence, to the mid-1970s.Footnote 43 After independence, the first large-scale eviction took place in 1975.Footnote 44 Since then, there have been numerous instances of slum eviction by successive regimes, especially in Dhaka, where the highest number of slums exists. It is estimated that at least 135 slums were subject to evictions from 1975 to 2005 throughout Bangladesh.Footnote 45 Between 1996 and 2004, across the major cities of Dhaka, Chittagong, and Khulna, the number of slum evictions was 115, resulting in the displacement of approximately 3 million people.Footnote 46 In Dhaka alone, between May and August 1999, evictions occurred in 44 slums, rendering 19,432 families, consisting of 116,562 slum dwellers, homeless.Footnote 47 Between 2006 and 2008, approximately 60,000 people were evicted from 27 slums.Footnote 48 Outside Dhaka, on 14 October 2014, at least 300 slums were subject to evictions in Chittagong in a one-day attempt.Footnote 49 The actual number of evictions is, in fact, much higher than the official figures suggest, as many cases go unreported.Footnote 50
A human rights analysis of forced slum evictions conceives of evictions as violations of the right to housing and other human rights, the realization of which remains a commitment by the government of Bangladesh. Meanwhile, an economic analysis calculates the costs of evictions arising from the loss of households and assets, and from the negative financial effect on the livelihood of the evictees. Such an analysis considers evictions as impediments to the reduction of extreme poverty, this being one of the core development agendas of the country.Footnote 51 Although all of these harms have long-term effects, the loss and sufferings of the displaced slum dwellers are the most direct and immediate during evictions.
3. JUDICIAL REMEDIES FOR FORCED SLUM EVICTIONS IN BANGLADESH
3.1 Judicial Remedies and Forced Slum Evictions
The indivisibility, interdependence, and interrelation of rights in the international and domestic human rights jurisprudence, the rise and consolidation of democratic constitutionalism along with the constitutionalization of rights over the last couple of decades have successfully shifted the ideological debate surrounding the justiciability of socioeconomic rights towards the practical discussion on their judicial enforcement.Footnote 52 In the broad realm of socioeconomic rights, the right to adequate housing, as it is now conceived, most evinces this transformation of perspectives. Originating as a soft right under the Universal Declaration of Human Rights (UDHR) and later reaffirmed by the ICESCR, it has been widely incorporated into the core international and regional human rights instruments as well as in numerous national Constitutions, laws, and policies, attracting varying levels of protection.While realization of this right, as an integral component of the right to life, promotes the availability of housing for all persons and protects the interests of disadvantaged social groups, its exercise precludes forced evictions.Footnote 53
Over time, both of these aspects have come to attain a more concrete shape as a result of their acknowledgement by the national courts of numerous jurisdictions adjudicating on forced evictions. These courts have accommodated the view that evictions primarily affect the right to housing of the most vulnerable sections of society. Contemporary contestation concerning the right to housing and protection from forced evictions, like other social rights, therefore, is more about the “technical and jurisdictional issues” of the adjudication process and concentrates on the proper judicial role, as largely expressed through judicial remedies.Footnote 54
Forced slum evictions violate the right to adequate housing, which is primarily categorized as a right of socioeconomic type. The UDHR explicitly states that “[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by the law.”Footnote 55 As the declaration universally applies to all rights, without drawing any division between civil-political and socioeconomic rights, an effective remedy as contemplated by it logically embraces both sets of rights. Furthermore, the CESCR emphasizes that, irrespective of the domestic jurisdiction concerning the justiciability of social rights, courts are capable of adjudicating these rights or, at the very least, their minimum content.Footnote 56 Thus, there exists recognition for judicial remedies.
Critics of judicial remedies for socioeconomic rights violations, however, argue that judges are ill-equipped to adjudicate violations of social rights, as this would exceed their constitutional authority and institutional capacity. Ordinarily, the executive organ of the government is the proper authority on this, and anything otherwise throws undesirable confusion over the judicial role.Footnote 57 These critics also contend that the effective remedies do not necessarily mean judicial remedies. They rather prefer alternatives to judicial remedies, such as administrative remedies, legislative responsiveness to public advocacy campaigns, or reports by the Human Rights Commissions, believing that these avenues provide greater flexibility and responsiveness than formal court-based adjudication for ensuring successful social rights litigation.Footnote 58
However, in conceding the insufficiency of these alternatives, the CESCR insists on the availability of judicial remedies as a viable option. As the CESCR reiterates:
By the same token, there are some obligations, such as (but by no means limited to) those concerning non-discrimination, in relation to which the provision of some form of judicial remedy would seem indispensable in order to satisfy the requirements of the Covenant. In other words, whenever a Covenant right cannot be made fully effective without some role for the judiciary, judicial remedies are necessary.Footnote 59
The committee further asserts that, as for civil and political rights, judicial remedies are essential for socioeconomic rights. Any discrepancy would, therefore, drastically curtail courts’ ability to protect the rights of the most marginalized segment of society.Footnote 60
Thus, slum dwellers either forcibly evicted or living under threats of eviction should have the right of access to timely and appropriate remedies, including judicial remedies.Footnote 61 Given the fact that, just like other rights, the right to housing “can be effectively enforced through sustainable and meaningful remedies”Footnote 62 and that “the ineffectiveness of the court orders or decisions is substantially determined by the assurance that they will be enforced,”Footnote 63 scope for judicial remedial intervention to vindicate forced slum evictions is warranted.
3.2 Legislative Basis of Judicial Remedies for Forced Slum Evictions in Bangladesh
In Bangladesh, the provision for housing has a weak constitutional status. It is placed in the chapter on fundamental principles of state policy of the Constitution and is termed as a basic necessity of life, instead of being recognized as a right.Footnote 64 Furthermore, an explicit constitutional bar on its justiciability exists, as the fundamental principles “shall not be judicially enforceable.”Footnote 65
These constitutional limitations perhaps contribute to the inadequate domestic legal framework for the protection of slum dwellers from forced eviction. At the time of writing, the Government and Local Authority Lands and Buildings (Recovery of Possession) Ordinance 1970 remains the only law on eviction to the extent that it deals with removing unauthorized tenants. These tenants are persons who have no legal title to the lands or buildings and who, therefore, unlawfully remain in possession of their dwellings without permission from the designated government authority.Footnote 66 Whenever any eviction attempt occurs, they are entitled to 30 days’ notice as a due process requirement of lawful evictions.Footnote 67 Slum dwellers, having no legal ownership over their residences in most cases, meet the criteria for illegal occupants. However, as the ordinance is only limited to government-owned areas, its procedural protection does not cover slum dwellers living on private land and buildings.
Notwithstanding the absence of legislation dealing with evictions, the National Housing Policy 1993 represents the first policy initiative to provide substantive protection to slum dwellers. It does so by prioritizing housing for the poor and the prevention of evictions in the absence of alternative accommodation.Footnote 68 This policy has been subsequently reaffirmed by the Draft National Housing Policy 2016. However, the policy has not been passed yet and being not a law, it has no binding legal effect.
The inadequacy of these protection measures lies in stark contrast to the Constitution, which envisions a socialist state that strives to achieve economic and social justice with an emphasis on equality, fundamental human rights, and freedom.Footnote 69 After all, Bangladesh is a State Party to the core international human rights instruments that envisage the protection of different aspects of social rights such as, the ICESCR, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms Discrimination Against Women, the Istanbul Declaration of Human Settlement 1996, and a signatory to the Global Strategy for Shelter to the Year 2000. Thus, the country has recognized housing as a human right and committed to taking effective measures to prevent unlawful evictions.
Having borne witness to the unbearable miseries of the evicted and homeless slum dwellers since the late 1990s, numerous human rights and non-governmental organizations have started to challenge the arbitrary evictions by government agencies through PILs. As mentioned above, under the constitutional scheme, the violation of the basic necessity of housing due to forced slum evictions cannot be litigated in the courts. The legislative protection of the substantive right of the slum dwellers to be protected from evictions is, moreover, shabby. So what has facilitated these organizations’ attempts to litigate forced slum evictions?
Three intertwined factors have been key to catalyzing their efforts. The first is the presence of the justiciable right-to-life clause in the Constitution as one of the fundamental rights.Footnote 70 The litigating organizations have successfully argued that the provision of housing should be considered an integral component of the right to life. Thus, eviction, being violative of the basic necessity of housing, results in the violation of the right to life.Footnote 71 This has provided a ground for indirect enforcement of forced eviction through public interest litigations under Article 102(1) of the Constitution.Footnote 72
Second, the Constitution empowers the High Court Division to issue an order on the application of “any person aggrieved” in the absence of an equally efficacious remedy.Footnote 73 By employing a liberal analysis, the Supreme Court has extended the concept of “aggrieved persons” to include individuals or groups other than the actual victim. Thus, any person or association who has a genuine cause or interest can come before the court when a public wrong violates the enjoyment of the fundamental right of an indefinite number of people.Footnote 74 Such an expansion of the ground to litigate has provided the willing organizations with the leverage to file a petition against forced eviction on behalf of the slum dwellers who would otherwise be barred from coming before the court, as a result of either being ignorant of their rights or living on the periphery of power dynamics.
Third, the evolution and increase of the scope of PILs, from the traditional civil and political rights to the socioeconomic rights such as, in particular, the right to environment, or other basic necessities like education, medical care, or food,Footnote 75 alongside the accommodating attitude of the judiciary, have had a snowball effect on the emergence and growth of PILs challenging forced slum evictions in Bangladesh.
3.3 Remedies for Forced Slum Evictions: Approach of the Bangladesh Supreme Court
From a list of these cases, it can be discerned that the most litigated issue, with respect to violations of the housing provision, concerns the state-induced forced demolitions of urban slums. These cases are not focused on the individual, but rather form part of a strategic litigation to protect the collective interest of the slum dwellers by putting an end to the continuous practice of forced evictions. The first of these initiatives emerged in 1989 with the filing of a writ petition by the Ain o Salish Kendra, a local human rights organization, against the government for arbitrarily demolishing the Taltola Sweeper Colony of Dhaka. Although the court ruled in favour of the evicted slum dwellers, it awarded only a stay order or interim injunction.Footnote 76
Almost ten years later in 1999, following a series of slum demolitions in Dhaka, several local human rights and non-governmental organizations filed the oft-cited Slum Dweller’s case. The case produced two significant outcomes. First, the court recognized that the protection of slum dwellers from forced evictions is integral to their right to life and livelihood. Second, for the first time, the court affirmed the right to alternative accommodation of the slum people before evictions. In its remedial order, the court came up with detailed guideline for lawful eviction, as follows:
There should be a survey of all the families residing in any particular slum. There should be master plan or rehabilitation scheme or pilot projects to rehabilitate the slum dwellers. The slum dwellers should be given option either to go and live at their respective rural villages or to stay in an urban area. … slum dwellers who do not opt for going to the rural home … should be given a choice either to live in the slum or to elsewhere to live on therein. In case of their choice to stay in slums, they should be rehabilitated … Footnote 77
Later, in the Kalam case, the High Court Division liberally interpreted the principle of nondiscrimination and equality as the highest standard for directing the state’s commitment to social justice, fairness, and dignity and to ensuring the enjoyment of constitutional rights by all people. The court, however, did not give any guideline as to how this standard should be satisfied, but rather took into account the government’s promise to rehabilitate the evicted slum dwellers.Footnote 78
In an incidental case, a human rights organization anticipated the state-led demolitions of the Gudaraghat/Vashantek slum of Dhaka for the purpose of implementing several housing projects and filed a writ petition on behalf of 127 slum families who had been living there for almost 20 years. At first, the High Court Division issued a rule nisi against the government to show cause as to why the threatened eviction without maintaining the due process of law should not be declared invalid, being violative of the slum dwellers’ constitutional right to life.
In the final judgment, by referring to the Indian case, Olga Tellis,Footnote 79 the court observed that the fundamental principles of state policies, despite their non-justiciability, are equally important as fundamental rights in the governance of the country. Collectively, they determine the state’s obligation, whether affirmative or negative. The government has a positive obligation to protect the fundamental right to life and livelihood of its people. The fundamental principle of the basic necessity of housing is integral to the right to life and livelihood, and hence is judicially enforceable. This remains even truer for the homeless and helpless slum dwellers, most of whom have migrated to cities for a better life and who, having nowhere to go, have ended up living a life of extreme deprivation in slums. Due to economic constraints and resource scarcity, of course, the state is not in a situation to provide housing for all people, or at least to the slum-dwelling populations. However, in accordance with its negative obligation, the state must ensure that no one is deprived of his right to livelihood and life without the due process of law. If eviction becomes necessary, there should be a prior master plan or pilot projects for rehabilitation, keeping in mind the best interest of those who dwell in slums.Footnote 80 The court then held that the government must postpone its eviction plan until appropriate measures were put in place to undertake and finish the rehabilitation scheme for the slum dwellers within two years of the judgment.
The views of the court, as mentioned in the above cases, were also reaffirmed on procedural grounds in the subsequently litigated actions. For example, in the Aleya Begum case,Footnote 81 the court observed that no one should be evicted against his or her free will. In the Modhumala case,Footnote 82 the court held that a service of notice within a reasonable time must be antecedent to the eviction of slum dwellers.
Now, the question is: to what extent have these judicial decisions been implemented to change the situations of the evicted slum dwellers or to prevent forced slum evictions? It is reported that, even though the slum dwellers succeeded in the Taltola Sweeper Colony case, between 1989 and 1998, more than 20 slums were demolished, leaving over 1 million slum settlers homeless.Footnote 83 In violation of the detailed guidelines on slum eviction, several hostile evictions were attempted by the government. Ironically, in some cases, the displaced slum settlers again were forcibly evicted despite having stay orders from the court.Footnote 84 A spate of eviction attempts in disregard of the court’s orders has been a very frequent occurrence, even when the slum in question was the subject of a case awaiting final judgment. An example can be found in the case of the Korail slum eviction in which a stay order was sought in order to maintain the status quo of the respective slum dwellers. On 4 April 2012, while a decision on the writ petition against the eviction was pending, a sudden eviction at the slum was pursued. It was one of the largest evictions to take place, occurred in the absence of measures for rehabilitation, and left approximately 2,000 slum families homeless.Footnote 85
These instances of state-initiated forced slum evictions continue, despite the repeated and clear directives of the Supreme Court on eviction and resettlement. Although petitions challenging the forcible removal of several slums remain pending at the time of writing, the government has yet to make a comprehensive and sustainable master plan for rehabilitation of the affected slum dwellers. Rehabilitation projects, such as the Gharey Phera (“Back to Home Programme”), Asrayan (“Village Shelter Programme”), and Aadarsha Gram (“Ideal Village Project”) have been grossly insufficient for bringing about any tangible benefit to the evicted slum dwellers.Footnote 86
All these instances reveal that, despite the precedent set by the highest judiciary in Bangladesh, slum dwellers have been evicted in a wanton manner and continue to live under the constant threat of eviction. Ongoing disregard of the court directives by the government clearly indicates a culture of active state resistance to judicial authority, as well as a repudiation of the state’s own obligation to protect the life and livelihood of the slum dwellers. Although PILs on forced slum evictions has contributed positively to mobilizing legal action and providing access to justice for the victims, the impact of judicial remedies has been minimal in terms of bringing about any meaningful behavioural change on the part of the government agencies. Consequently, the evictees may have attained a victory at the court, but their successes have failed to translate into reality outside the court premise.
Since the success of social rights adjudication depends vitally on the implementation of court orders,Footnote 87 the above instances of tardy implementation hence prove that still there is a long way to go. The preceding analysis reveals that the court has either avoided ordering any remedy, has opted for a stay order due to the government’s promise to implement a rehabilitation scheme, or has issued weak remedies, such as a recommendation or a declaratory order. These remedies are not robust enough to ensure implementation of and compliance with court orders.
Although almost three decades have passed since the filing of the first PIL on slum eviction, these judicial decisions have influenced the policy-makers only to the limited extent that they have modified their policies or have stopped government agencies from taking retrogressive measures. Meanwhile, the plight of the helpless evictees lacks redress and, being homeless, they are forced to live in deplorable conditions.
4. REVIEW OF THE STRUCTURAL INJUNCTION: CHALLENGES AND SCOPE OF THE BANGLADESH SUPREME COURT
4.1 Pros and Cons of the Structural Injunction
Judicial remedies in the context of socioeconomic rights litigations may range from affirmation of rights or identification of violations to complex policy-making through active judicial engagement. Hence, courts’ remedial approach is either weak or strong. Where it is weak, a court may adopt a declaratory order stating that laws or actions are in breach of a social right obligation, thereby leaving it to the state to devise a remedy requiring specific actions to be taken. A court’s approach may be strong in cases where the government is ordered to stop the illegal activities, or where the structural injunction is ordered, through which the judiciary retains a supervisory role over the implementation of its order.Footnote 88 Also, in some cases, courts adopt modest and conversational remedial approaches, such as the “meaningful engagement remedy.”Footnote 89
Indeed, courts’ remedial decisions are very much context-specific. As the South African Constitutional Court in the Foses case noted:
Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced.Footnote 90
Supporting the context specificity, scholars and judicial practices throughout the world have been singling out the structural injunction as an effective remedy in social rights adjudication in contrast to traditional remedies like declaratory or mandatory orders.Footnote 91 But what is implied in the structural injunction that has led to this trend? The following discussion analyzes the answer from both theoretical perpestives and practical contexts.
In its most simplistic meaning, the “structural injunction enables a court to dictate how, when and in what ways a state must change its behavior to provide for the protection of people’s rights.”Footnote 92 Hence, it is a reformative remedy. The root of this remedy lies in the systematic violation of human rights, in general. Socioeconomic rights violations may largely occur due to malafide institutional practice or discriminatory state policies. Redressing this situation, therefore, requires a structrual change to these faulty institutional and policy set-ups. PILs on systematic social rights violations require the active engagement of the judges in their administration and implementation, in addition to the legal issues.Footnote 93 Hence, by ordering the structural injunction, judges aim to restructure existing bureaucratic deficiency to the extent it is threatening to the constitutional and public values.Footnote 94 In sum, it requires “the violator to rectify the alleged breach under the court’s supervision.”Footnote 95 Its ongoing nature is facilitated by the court’s retention of jurisdiction over the implementation of its order to ensure the state’s compliance. Critics, however, point out several arguments against the use of the structural injunction in social rights litigation. In brief, the most cited among them are, first, that the court’s supervision over governmental plans may lead to prohibitive enforcement costs and huge resource diversion.Footnote 96 As such a remedy requires continued judicial involvement; it represents an ambitious undertaking for a judiciary whose resources are constrained.
Second, implementation of this remedy violates separation of powers among the state organs by creating space for judicial usurpation of legislative or executive activities.Footnote 97 In the Eldridge case, the Canadian Supreme Court preferred a declaratory remedy to the injunctive relief, as the former abrogates the judge’s scope to dictate on the legitimate political functions.Footnote 98 Therefore, in the Treatment Action Campaign case, the South African Constitutional Court observed:
Courts are ill-suited to adjudicate upon issues where Court orders could have multiple social and economic consequences for the community. The Constitution contemplates rather a restrained and focused role for the Courts, namely, to require the State to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation. Such determinations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets. In this way, the judicial, legislative and executive functions achieve appropriate constitutional balance.Footnote 99
Third, this remedy demands that judges must diligently employ legal, political, as well as analytical skills. In practice, however, judges are often institutionally ill-equipped to adopt the remedy on such terms.Footnote 100 Fourth, the state actors responsible for implementing a plan under the structural injunction may remain reluctant to have the plan approved by the court or may fail to submit the plan to the court in due course.Footnote 101 And, lastly, the the structural injunction is a time-consuming remedy, as it engages the judge in a full-time supervisory role.Footnote 102 In effect, it hinders the capacity of the court to deal with other pending litigations.
The following arguments, however, counter these objections to the adoption of the structural injunction. First the structural injunction denotes a response to the inadequacy of conventional judicial remedies. Since the systematic state-induced violations of social rights are too “defused or nebulous, damages, for example, as a one-shot remedy may not be able to repair the harm.”Footnote 103 Traditional remedies are premised on a monologic process requiring no conversation between the judiciary and policy-makers. Judges grant weak or deferential remedies like a declaratory relief or a recommendation usually on the basis that the defaulting state organ will comply with the court order. By contrast, strong or intrusive remedies like mandatory, prohibitive, or negative orders assert courts’ intention to decide the case once and for all. But what would happen if the government were to remain irresponsive to courts’ orders? The most effective solution, in this case, is the adoption of a remedy that aims to identify and tackle the root of the problem through dialogue with the government.Footnote 104 Being a continuous remedy, the structural injunction facilitates this possibility, as it is based on the principle that implementation of judicial orders must be accompanied by political compliance. As the structural injunction does not dictate the details of state policies and rather engages with the government in the formulation and implementation of policies, it potentially reduces the chance of reluctance and thus becomes capable of tackling the systematic harm.
Second, it would be erroneous to say that the structural injunction transgresses the separation of powers among the governmental organs. In the Swann case, while granting the structural order, the US Supreme Court rightly asserted that “[r]emedial judicial authority does not put the judges automatically into the shoes of the school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.”Footnote 105 The legitimate basis for interfering with the political functions emanates from the misconduct, demonstrated unwillingness, or incapacity of policy-makers to perform the state’s obligations, whether affirmative or negative. By ensuring more co-operation from the executive or legislature and by balancing conflict, this remedy offers a more effective solution.Footnote 106 Perhaps its greatest benefit is not that it enables courts to act, but rather that its breadth prevents policy-makers from retrogressive acts and ensures accountability. It is, therefore, rightly observed that structural interdicts:
have contributed to a better understanding on the part of public authorities of their constitutional legal obligations in particular cases, whilst it has also assisted the judiciary in gaining a valuable insight in the difficulties that these authorities encounter in their efforts to comply with their duties.Footnote 107
Third, the structural injunction is not a time-consuming remedy. Rather, it manages the delay that is needed to implement a court order. Conventional remedies opt for immediate redress of the violation. In systematic harm, however, where the delay is inevitable, the long-term remedy is the most appropriate.Footnote 108 For example, in the Brown case, the US Supreme Court acknowledged the potential delay due to complex administrative and bureaucratic processes. The court then allowed itself the additional time needed for carrying out the ruling.Footnote 109 Indeed, the inclusion of a time limit, within which the required standard for government action must be realized, and implementation of the court’s monitoring role together ensure the progressive realization of rights and inhibit systematic violation.
Fourth, social rights litigation is largely about pro-poor litigation by targeting eradication of deprivation and inequality. In contrast to the individualized enforcement, negative injunction, or weak remedies, the structural injunction, when it is claimed and issued, achieves this purpose effectively.Footnote 110 It is directed at implementing the judicial order as a precondition for successful social rights adjudication. At the operational level, being a systematic relief as opposed to an immediate relief, it vitally benefits the lower-income groups in three ways: first, by assisting them in the costly follow-up of the implementation stageFootnote 111 ; second, by making provision for a collective remedy to ensure distributive justiceFootnote 112 ; and, last, by altering adverse governmental practices and procedures in order to prevent recurrence of violations.Footnote 113 Now, if any court wants to adopt the structural injunction, should it order the remedy regularly or only in exceptional circumstances?
The remedial choice of the judiciary largely depends on the nature of the political context. Weak remedies work well in a rights-responsive system. An interpretation of judicial remedies from “Constitutional Dialogue” theory suggests that courts should either adopt a weak rights-strong remedies approach to adjudicate the negative dimension of social rights and strong rights-weak remedies approach to the positive dimension. When a right is weakly protected under the constitutional or legislative scheme, and the state remains overly insensitive to its duty to protect it, a weak remedy may contribute to making the right weaker.Footnote 114
Even an incrementalist like King, who argues for judicial avoidance in social rights litigation, acknowledges the need for the structural injunction, albeit advocating its occasional use. According to King, courts should opt for non-intrusive or weak remedies in circumstances where favourable political conditions prevail, as expressed through the presence of an independent and non-partisan judiciary, a democratic polity with a sincere and serious commitment to basic rights, and a competent and non-corrupt bureaucracy. When, on the other hand, an alternative remedy, such as administrative remedy, is available, courts should choose non-intrusive or weak remedies. When, however, these are absent, and when the state chronically and patently ignores its constitutional and legal obligations, the structural injunction is the last-resort remedy.Footnote 115
In discussing the use of the structural injunction in South Africa and Canada, Roach and Budlender argue that:
declarations and requirements that governments report to the public will often be sufficient in those cases where governments are merely inattentive to rights, stronger remedies involving mandatory relief and requirements of governmental reporting to the courts may be necessary in some cases, and particularly where governments are incompetent or intransigent with respect to the implementation of rights.Footnote 116
How can a court overcome its resource constraints and influence political compliance in the follow-up process? The structural injunction is a conversational remedy intended to foster dialogue between policy-makers and the judiciary. However, for the judiciary to employ the structural injunction successfully, it would be preferable for it to opt for multi-faceted organizational collaboration. This can be done by engaging the key stakeholders in the litigation process, such as the judicial commission, human rights commission, ombudsman, human rights organizations, civil society groups, etc. An example can be sought from Abuja, Nigeria, where a National Advisory Board has been established to start a co-operative dialogue with the government on access to land, secure land tenure, and affordable housing. The board consists of representatives of the government, private sector, media, judiciary, traditional and religious communities, as well as international specialists.Footnote 117 While this is not an example of the structural injunction per se, it denotes how the judiciary and the executive can collaborate to achieve housing policy objectives. In this regard, on the capacity of the Indian judiciary, the Supreme Court of India observed: “[t]he Court is entitled to, and often does, seek the assistance of expert panels, Commissioner, Advisory Committees, Amici, etc.”Footnote 118
4.2 Use of the Structural Injunction by National Courts
Due to the inherent potential of the structural injunction, numerous national courts over the years have successfully adopted this remedy in rights litigation.Footnote 119 This tendency suggests that the need for this remedy is justified and that the Bangladesh Supreme Court also can legitimately exercise its supervisory jurisdiction. The following discussion examines a few examples from US, Canadian, Indian, South African, and Colombian courts.
The commonly cited school desegregation case, Brown II is the first case where the US Supreme Court insisted on exercising judicial supervision over the implementation of its order.Footnote 120 In accordance with its idealized vision of reforming public institutions and protecting disadvantaged groups, the court in a subsequent case observed that “[o]nce a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad.”Footnote 121 Over the years, the court successfully ordered this remedy in numerous social rights cases ranging from prison reform to employment discrimination.Footnote 122 This remedy emerged and continued to develop as a response to the failure of traditional remedies in effectuating constitutional compliance.Footnote 123
The Canadian trial courts during the 1980s attempted to issue the structural interdict in some social rights cases, mainly those on minority language.Footnote 124 Later, in 2003, the Canadian Supreme Court observed that the trial judge could, after ordering the government to provide for minority-language schools, issue the structural injunction to enable it to supervise the government’s compliance via receipt of regular progress reports.Footnote 125
From 1997 onwards, the Colombian Constitutional Court has issued the structural injunction in a number of cases with varying levels of success. Among these, the most cited is the Displaced Persons case of 2004. In that case, a constitutional complaint (“Tutela”) was filed against the state for its failure to provide emergency relief and the basic necessities like food, shelter, housing, health, and education to the Internally Displaced Persons (IDPs). Following its order to rectify the alleged violation, the court retained its supervisory authority over the case. According to the court:
the State’s response has serious deficiencies in regards to its institutional capacity, which cross-cut all of the levels and components of the policy, and therefore prevents, in a systematic manner, the comprehensive protection of the rights of the displaced population. The tutela judge cannot solve each one of these problems, which corresponds to both the National Government and territorial entities, and to Congress, within their respective margins of jurisdiction. Nevertheless, the above does not prevent the Court, in verifying the existence of a situation of violation of fundamental rights in concrete cases, from adopting corrections aimed at ensuring the effective enjoyment of the rights of displaced persons, as it will do in this judgement, nor from identifying remedies to overcome these structural flaws, which involve several State entities and organs.Footnote 126
An empirical study on the aftermath of this case reveals that the decision influenced the government to draft a co-ordinated national policy on the IDPs, allocating an increase of budgets to ensure the enjoyment of the minimum content of their basic necessities. The case also resulted in increased collaboration among the related agencies. Although not all the basic necessities were improved at the same rate, the situation of the IDPs, at least regarding their enjoyment of health and education, was materially and substantially changed.Footnote 127
The Indian Supreme Court also embraced a similar approach. On the need for the structural injunction, a judge of the Indian Supreme Court once contended that, in social rights litigation,
the court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the responsibility for the organization of the proceedings, moulding of the relief and this is important also supervising the implementation thereof.Footnote 128
This attitude was adequately reflected in the popularly known Right to Food case. In this case, a writ petition was filed against the federal government for its unfair food distribution policy. It was alleged that the government was storing rather than distributing a huge amount of grains even when the people were suffering in chronic famine. In addition to its initial declaratory order, the court issued several interim orders relating to the creation of special programmes for delivering food to poor families, implementing a complex food-to-work campaign and creating a school lunch programme for children. Notably, the court retained supervisory jurisdiction over the case. In doing so, it appointed a judicial commission consisting of two members to monitor the implementation by collecting information and mediating on policy changes with the state.Footnote 129 The case resulted in the successful implementation of the “Mid-Day Meal Scheme” (MDMS) in several provinces.Footnote 130
Looking to South Africa, which is the pioneer of social rights litigation, it is found that, initially, the South African Constitutional Court had a strict reservation to order the structural remedy in social rights cases.Footnote 131 By contrast, the High Court in some cases adopted this remedy, although those decisions were later reversed by the Constitutional Court. However, due to gross non-implementation of those judgments, it appeared doubtful whether weak remedies could bring any difference in the lives of the impoverished litigants.Footnote 132 The declaratory orders of the Grootboom or the Treatment Action Campaign cases, for instance, failed to improve the litigants’ condition on the ground. Consequently, in recent years, there has been a shift in the Constitutional Court’s remedial choice toward the adoption of structural injunction through some progressive judgments.
Among multiple numbers of eviction cases, Occupiers of 51 Olivia Road was the first case where the Constitutional Court ordered the structural injunction, albeit merely an interim structural injunction.Footnote 133 The court’s order required the parties to
engage with each other meaningfully … in an effort to resolve the difference and difficulties aired in [the application] in light of the values of the Constitution, the constitutional and statutory duties of the municipality and the rights and duties of the citizens concerned.Footnote 134
The Constitutional Court manifestly ordered the structural injunction in two eviction cases, popularly cited as Pheko Footnote 135 and Schubart Park.Footnote 136 In Pheko, the municipality was alleged to have evicted the litigants forcefully without providing any alternative accommodation. The Constitutional Court ordered both the parties to engage in discussion to reach an equitable solution. However, following the municipality’s repeated non-compliance with this order, the court in the contempt proceeding finally adopted the structural injunction. This case provides a good illustration of the authority of the court to retain supervisory jurisdiction at the implementation stage and of the circumstances under which adoption of such remedy is appropriate. The court observed as follows:
disobedience towards Court orders or decisions risks rendering our courts impotent and judicial authority a mere mockery ... . Courts have the power to ensure that their decisions or orders are complied with by all and sundry, including organs of state. … this Court should exercise its supervisory jurisdiction to enable the respondent to report to the Court about whether land has been identified and designated to develop housing for the applicants.Footnote 137
The structural injunction was ordered in Schubart Park for similar reasons. In both the cases, however, this was not issued as an independent remedy, but rather was coupled with the declaratory orders.
Although the Constitutional Court is experimenting with the use of the structural injunction as a remedial strategy, nevertheless, the above decisions are helpful for indicating the changed attitude of the South African judiciary. These cases also demonstrate that judicial supervision is an effective way of creating a dialogue with concerned state agencies and related stakeholders with a view to achieving a meaningful outcome, particularly when economic insecurity and resource constraints exist.Footnote 138
4.3 Scope of the Bangladesh Supreme Court to Adopt the Structural Injunction: Overcoming the Challenges
The circumstances of developing countries present some unique challenges that may vitally influence the remedial decisions of courts in general, and particularly impact upon the adoption of the supervisory remedy. In the face of systematic violation of socioeconomic rights, these challenges include poverty, as well as poor governance, legislative and executive inertia, inadequate implementation of the separation of powers, lack of judicial independence, enforcement costs, or judicial unwillingness to be creative by crossing courts’ traditional limit.Footnote 139 As Khan points out, PIL challenges in Bangladesh have increasingly been framed as actions brought to protect fundamental rights, in an effort to ensure government accountability, including in the case of slum evictions.Footnote 140 However, as the Supreme Court’s decision in the Slum Dwellers case demonstrated, the court had found it difficult to resist political pressure from the executive to allow the government’s actions to proceed unhindered by court order.Footnote 141 Hence, she suggests that support for plaintiffs from the political opposition, media, and international community in cases of social rights violations would assist in addressing the problem of the judiciary reluctant to impose stronger remedies such as the structural injunction on government authorities.Footnote 142
There are two key challenges that have prevented the Bangladesh Supreme Court from adopting the structural injunction in litigation concerning forced slum evictions. While the first relates to doubts as to the constitutional authority of the judges, the second is about concerns as to their institutional capacity. Confusion as to the constitutional authority stems from the weak constitutional content of the basic necessity of housing, which, being a directive principle, is subject to progressive realization and resource constraints. Hence, the judges doubt their legitimacy to order the structural injunction so as to remedy the violation of this provision.Footnote 143
Moreover, the conservative perspective on the constitutional separation of powers bars the judiciary from supervising the actions of policy-makers. This confusion time to time is expressed through a restrained understanding about the nature of fundamental principles and corresponding obligations to realize social rights.Footnote 144
However, the basic necessities, as directive principles, inform the spirit of the Constitution. Therefore, despite these being judicially non-enforceable, the Constitution does not discharge the state from realizing its constitutional commitment to create an equal and just society by eradicating all forms of exploitation and discrimination.Footnote 145 Due to complexity in identifying states’ duty for the realization of socioeconomic rights, in the international human rights discourse, in recent years, there has been a normative shift from the “obligations approach” to the “violations approach.”Footnote 146 While the former insists on the positive state obligations the realization of which is subject to progressive realization and resource availability, the latter emphasizes on the negative obligation to enforce social rights whenever there occurs a violation.
The “violations approach” considers three categories of violations. These are, first, violations caused by domestic laws or policies; second, violations resulting from discriminatory measures and practices; and, third, violations due to the failure to perform the minimum core obligations.Footnote 147 Protection of the right to housing from these violations does not have economic implications, but rather imposes an immediate duty upon states, the violation of which calls for judicial protection. As a result, although it may not be possible for a poor country to ensure housing for all, the government cannot derogate from its obligation to stop forced slum evictions.Footnote 148
The Supreme Court of Bangladesh also seemed to take into account this development in perspective. In one case, the court observed that:
the slum dwellers, poorest of the poor they may be, without any future or dreams for tomorrow, whose every day ends with a saga of struggle with a bleak hope for survival tomorrow, but they are also citizens of this country, theoretically at least, with equal rights. Their fundamental right may not be fully honoured because of the limitations of the State but ... they have got a right to be treated fairly and with dignity, otherwise all the commitments made in the sacred Constitution of the People’s Republic, shall prove to be a mere mockery.Footnote 149
This approach, however, is only limited to the interpretation of the state’s procedural duty on forced slum evictions and is yet to be reflected in the remedial order. As discussed earlier, the Supreme Court of Bangladesh has been greatly influenced by the “violations approach” as applied in the Indian Olga Tellis case. But the decision of the case is criticized for being extremely deferential and recognizing only the procedural rights of the evicted pavement dwellers instead of bringing about any tangible outcome.Footnote 150 Indeed, the case is significant for locating the wrong done by the state. However, to effectively redress an alleged infringement, a reasoned extension of this approach to the remedial orders may direct the judiciary to innovate an effective remedy like the structural injunction. The PUCL case constitutes a good example where the Indian Supreme Court enforced the violation of the provision of food as a justiciable content of the right to life and successfully ordered several structural orders. Instead of following the remedial approach of Olga Tellis, the Bangladesh Supreme Court can apply the PUCL approach in forced slum evictions litigations, since the constitutional provisions on housing and food of both the countries impose similar state obligations.
Also, the constitutional scheme does not mandate a strict separation of powers. In reality, absolute separation of powers is neither possible nor desirable. The Constitution of Bangladesh, therefore, provides for checks and balances among the three organs of the state. The Supreme Court acts as the guardian of the Constitution and thus can review and strike down unconstitutional legislative and administrative actions. The dominance of constitutional supremacy over parliamentary supremacy explicitly mandates such a role of the court that can extend to its remedial authority.Footnote 151 Particularly, to redress forced slum evictions, the judiciary can validly exercise its broad remedial authority and devise any remedy, however strong, if it is satisfied that the remedy will be efficacious within the constitutional scheme. This is because, first, as mentioned earlier, by liberal interpretation of Article 102(1) of the Constitution, the court has extended its remedial power to redress forced slum evictions as violations of the fundamental right to life. Second, the High Court Division, in exercise of its equitable authority, can issue necessary relief beyond the “equally efficacious remedy” to enforce the “principle of legality” under Article 102(2) of the Constitution.Footnote 152 Third, the Appellate Division has wide remedial authority to issue any order at its discretion to do “complete justice” while securing the litigants’ fundamental rights.Footnote 153
The second challenge, relating to the institutional incapacity of the judiciary due to resource constraints, can also be overcome. Some might argue that it would be financially burdensome for the Bangladesh Supreme Court to order the structural injunction when it has to operate within a limited budget. Another concern suggesting the court’s inadequate institutional capacity is the court’s huge case-load. Faced with the enormous volume of cases, judges may find it ineffective to order the structural injunction, as this remedy requires constant judicial engagement.
Practically, however, resource constraint is not a challenge unique to this remedy.Footnote 154 Remedies like declarations or recommendations as adopted by the Bangladesh Supreme Court in the forced slum eviction cases also involved economic implication, as they were not decided overnight. Besides, the structural order of the Indian Supreme Court in the Right to Food case demonstrates a practical example that even a resource-constrained court can employ the structural injunction. Since the Supreme Court of Bangladesh also adopted this remedy in some cases, as discussed later in this part, cost alone does not constitute a strong reason to deny the structural injunction to redress forced slum evictions.
Speedy disposal of cases is necessary to avoid any backlog. Where the systematic violation is the issue, the primary concern of the court is to ensure the systematic prevention of violations, which, as mentioned earlier, may require significant periods of time to implement. The structural injunction is not about the lone involvement of the court. Alongside judicial activism, full compliance with social rights judgments requires greater collaboration among the institutions of government and governance.Footnote 155 This co-operation will help the court indirectly to minimize and share any burden, whether that is due to resource constraint or overwhelming case-load. As a result, numerous efforts have been made by national courts to employ a participatory remedial strategy at the follow-up stage. This has been done by appointing judicial commissioners,Footnote 156 or by collaborating with the relevant stakeholders such as the Human Rights Commission,Footnote 157 civil societies, and litigating organizationsFootnote 158 to strengthen courts’ institutional capacity. The Bangladesh Supreme Court has sufficient scope to employ this participatory remedial strategy. For instance, the National Human Rights Commission of Bangladesh, under its governing legislation, is empowered to investigate and monitor the human rights situations of the country. Whenever needed, the Supreme Court can also require a report from the commission on any pending matters concerning the violation of fundamental rights.Footnote 159
Lastly, one practical example furthers this discussion on the ability of the Bangladesh Supreme Court to adopt the structural injunction. This remedy is not alien to judges. The judiciary has successfully experimented with this remedy in some important civil and political rights cases. In the Separation of Judiciary case, the High Court Division issued a landmark judgment by ordering the government to separate the judiciary from the executive, so that the court’s order could be implemented within two months. The decision was later reaffirmed by the Appellate Division. With the government evincing continued reluctance over a period of eight years, the judiciary continued to rely upon its monitoring authority. This strong judicial involvement resulted in the long overdue separation of the judiciary from the executive arm of government.Footnote 160 Furthermore, in the well-known Prisoners case, a petition was filed challenging the illegal detention of foreigners in several jails. The court ordered the government to initiate necessary institutional reform. The designated persons from the jail authority, including the superintendent of the Central Jail and IG Prison, were ordered to submit a time-bound report on the release of those prisoners.Footnote 161
At the same time, apart from pure civil and political rights cases, the court has appeared to extend this remedial authority to cases that are widely related to the development or the environment taking into consideration the fundamental principles of state policies. In 2009, in the popularly known Pure Food caseFootnote 162 concerned with preventing widespread food adulteration, the High Court Division directed the government to establish a food court and to appoint an adequate number of public food analysts in every district in accordance with the Pure Food Ordinance 1959. The government was ordered to implement this direction within one year from the judgment. The court also directed the government to report on its progress on a timely basis. In consequence to this ruling, the government has appointed a number of food analysts, although the food court is yet to be set up in every district apart from the metropolitan areas.Footnote 163 In another case, two human rights organizations filed a writ petition challenging that excessive imposition of charges in the name of admission fees or compulsory donations by the private educational institutions of all levels (primary, secondary, and higher secondary) were inconsistent with the relevant laws and policies. They also challenged that the Ministry of Education, Ministry of Primary and Mass Education, Directorate of Primary Education and Higher Education, and all education boards had failed to act as per their constitutional and legal obligations by not investigating the allegations of fee increases, not taking steps against the wrongdoers, and not remedying the plights of the victims. The High Court Division issued a rule nisi as well as an interim order directing the ministry to take immediate steps for complying with their constitutional and statutory duties. The court also ordered the respondents to submit a report within three months on its progress to implement the directives. Importantly, by affirming the rule and order, the court adopted a continuing mandamus upon the Ministry of Education (Respondent No. 1) to ensure that its policy regarding admission fees were being followed absolutely and that educational institutions could not cause any prejudice to the students’ interests.Footnote 164 Thus, if the court can order the structural injunction in a case concerning food or education, it can also do so in the cases of forced slum eviction. All these cases concern the basic necessities, and present similar challenges to the judiciary.
Arguably, to overcome the challenges above to the ordering of the structural injunction, there must be an increase in the judicial willingness to adopt this remedy, and this requires the presence of two factors. Since remedy selection depends on the role perception of the court,Footnote 165 “a change in the judges’ intellectual and functional perceptions of law, justice and their judicial authority” is needed in the first instance. In addition, in order to effectuate that role, judges need to cultivate the “application of judicial pragmatism and/or craftsmanship to engage with the government branches” in the litigation process.Footnote 166
5. CONCLUSION
Conventional judicial remedies, such as declarations or recommendations, proceed on the assumption of good-faith compliance on the part of governments. Consequently, these remedies are inappropriate to bring about compliance where governments are either incompetent or unwilling to implement the judicial decrees. The structural injunction, by contrast, being a dialogic remedy, engages the relevant state agencies in a collaborative process to ascertain an amicable solution that is capable of enforcement. Continuous non-implementation of court orders by governments, brought to light by the forced slum evictions litigation in Bangladesh, presents an appropriate circumstance for the application of this remedy. Given the court’s capacity to overcome the challenges in adopting this remedy, hence, it is legitimate for the judges to retain supervision over the execution of the court’s orders on forced slum evictions.
The structural injunction, however, cannot operate in a vacuum. Just like the success of social rights litigation, the success of this remedy is believed largely to be contingent on a favourable political contextFootnote 167 ; on a strong support structure, consisting of vigilant rights-advocacy lawyers or organizations and responsive enforcement agencies ready to initiate legal mobilization; and also on a shift in the political culture.Footnote 168 The situation of Bangladesh is challenging, as the court faces persistent confrontation with the political executives,Footnote 169 who may refuse to respond even to the structural injunction. The court, therefore, should innovate ways of effectively collaborating with these actors while ordering the structural injunction. Such a judicial role is much needed in a state like Bangladesh, where the social inequality and injustice experienced by slum dwellers has thus far prevailed over any demonstration of the constitutional commitment to ensure social justice and equality to those affected by state-initiated hostile evictions of slums.
