Virtual court: Forming High Court division bench essential

The upper courts in countries across the world have been disposing issues regarding basic rights with special emphasis, but the High Court in Bangladesh is not being able to properly do so due to the system.

It’s a matter of the highest concern that several articles of the constitution have been in an ineffective or semi-effective state, but it’s undeniable that the effectiveness of any constitutional provision cannot be reduced.

The effectiveness of article 102 in the constitution is the most crucial. According to the article, the High Court, as per the plaintiff’s petition, can issue a rule or order for the concerned authority or person for infringement of basic constitutional rights. This requires a division bench formed with two justices. The High Court division has only 13 single benches. There is no government holiday for over a month for the division having 80 justices. But it’s not clear who among the rest of the justices, as per the constitution, are actually sitting for which purpose for over a month?

Though there are debates among the lawyers over virtual or actual court, they can coordinate if a division bench is formed without any delay. A single bench cannot issue a rule and therefore cannot hand over the final verdict. The writ benches, however, can issue interim orders on a limited scale, but the state is not proactive to follow such rules. In many cases, the state has been filing appeals against the temporary orders of the single High Court benches. Overall, tradition of implementing basic citizen rights through courts is being infringed.

This should be noted that, final verdicts in cases other than writs, too, cannot be handed down due to lack of division bench. The anticipatory bail petitions too are postponed and the lawyers’ concerns over this are comprehensible. If permitted, the bail seekers can physically appear at the court. Sherpur is an example in this regard. The Supreme Court had asked the lower courts to dispose ‘crucial issues including bail of undertrials’.

Between 31 May and 5 June, the Sherpur judicial magistracy held more surrender hearings from common defendants than the undertrials. The defendants appeared in the empty court where the judges and lawyers virtually took part in the hearing. The Sherpur lawyers’ association appreciated this as the condition of defendant’s physical appearance was fulfilled. Health measures had also been maintained. Among 600 accused, about 100 had to go to prison. This is implementable across the whole country as well at the upper courts.

There is a pressure to completely stop the virtual court. It would be suicidal to do so. The Supreme Court, too, is against the government's e-judiciary policy. According to a 4 July Supreme Court circular, surrenders would be physical at lower courts. But benches and bars that want to carry out these virtually should not be stopped either. Both the systems can run together.