Assessing a Potential Constitutional Tort (State Negligence) Lawsuit with an Imaginary Title: “An Interested Legal Aid NGO (on behalf of the Victim, Abdul Kalam’s family and others) v State of Bangladesh”: State’s Liability to Pay Public Law Compensation

INTRODUCTION

In a Common law legal system practicing country, the Constitutional tort refers to a civil wrong, which illustrates the infringement of the individual’s fundamental rights by the government or its officials, guaranteed by the Constitutional law. Similarly, being one of the Common law countries, the supreme law of Bangladesh, the Constitution of the People’s Republic of Bangladesh has the fundamental rights, which are enshrined in Part III (Article 26 to Article 47A). Importantly, according to Article 44, these rights are secured, and the HCD is empowered to enforce these rights under Article 102(1) of the Constitution of Bangladesh. It is crucially noted that the Constitution has used the term “appropriate” with regard to giving or ordering such directions to any person or authority to enforce the fundamental rights of the Constitution. By analyzing this expression, it is thus argued that “compensation” can be sought by means of “appropriate” measure, as a remedy before the HCD, in case of the violation of the constitutional rights, or in other words, the constitutional tort. Therefore, the aggrieved person(s) in this potential lawsuit titled- “An Interested Legal Aid NGO (on behalf of the Victim, Abdul Kalam’s family and others) v State of Bangladesh” deserve the right to seek compensation before the HCD. In this regard, a question ascends which is related to the Sovereign immunity, since the prima facie case suggests that the government-oriented company, Dhaka Mass Transit Company Limited (DMTCL), is likely to be responsible. However, Article 146 of the Bangladesh Constitution mentions that: “the Government of Bangladesh may sue or be sued by the name of Bangladesh.” Therefore, the concept of sovereign immunity does not apply here, unlike the controversial proverb “the King can do no wrong.” Basically, it was accepted in the United States to discard tort claims. However, this principle has progressed, eventually. In the landmark case law, Dorset Yacht Company v. The Home Office, the House of Lords held that the Crown would be vicariously liable since the Borstal (a youth Centre) officers were in breach of their duty of care toward the trainees in the prison. Consequently, they escaped and damaged the plaintiff’s yacht. Therefore, the constitutional provision and the precedent of this landmark case clearly demonstrates that there would be no state immunity. Therefore, this article critically argues that DMTCL would be tortiously liable, and the victim’s family deserves the right to get the public law compensation from the government, without being prolonged judgment by the HCD, in order to uphold the principle- “justice delayed is justice denied.”

Thus, this article focuses on examining four research questions. Each research question shall be dealt with in light of the constitutional law of Bangladesh, principles of law of torts, and case law decisions related to public law compensation in order to strengthen the position of the victim(s) in this case law.

Research Question:

1.  Does the Victim’s family and others, or any concerned NGO, have the locus standi to file this suit before the HCD?

2.  How would the government-owned company, Dhaka Mass Transit Company Limited (DMTCL), be tortiously liable?

3.  Who will be responsible, and what sum of money should the victim’s family and others receive as compensation?

4.  What would be the time limitation to file the writ petition and to get the monetary compensation from the responsible party?

The above-mentioned research questions will be critically discussed in the following part of this article.

DETERMINING THE LOCUS STANDI OF THE PLAINTIFF TO INSTITUTE THE LAWSUIT AGAINST THE DHAKA MASS TRANSIT COMPANY LIMITED (DMTCL) OR THE STATE OF BANGLADESH.

A. Concept of locus standi

Simply speaking, locus standi refers to the legal right to appear before the court and sue against the responsible person. Prior to the restoration of the parliamentary system in 1991, according to Article 102(1) of the Constitution law of Bangladesh, locus standi was only restricted to someone whose fundamental rights had been directly violated. However, following this transition to democracy, the scope of constitutional litigation was to expand in consequence.¹ Now a question arises here: who would be the ‘aggrieved person?’ Generally, in the private tort law, in negligence, or in a fatal accident, the victim can file a suit before the lower courts, under the Fatal Accidents Act of 1855. However, if the act or omissions lead to a violation of fundamental rights by a public authority, it is considered as the Constitutional tort. In this regard, a Writ Petition can be filed under Article 102(1) of the Constitution of Bangladesh before the High Court Division (HCD) of the Supreme Court (SC). Hence, it is important to note that the ‘aggrieved person’ must submit an application to issue a writ petition. In this regard, the deceased and other two injured persons are the aggrieved party, since they have directly suffered the casualty. Therefore, it is argued that the family of members of the victim(s) deserves to be the aggrieved party and seek a remedy in light of the writ petition.  With regard to this, the current traditional practice of the Public Interest Litigation in Bangladesh depicts that a concerned Legal Aid Non-Governmental Organization (NGO) could play a decisive role in filing a writ petition in this potential tort suit. To illustrate, notably, a legal aid NGO named Bangladesh Legal Aid and Services Trust (BLAST) alone provided representation to claimants in over 200 compensation cases under the BLA between 2006 and 2019.² Besides, in particular, the use of Article 102(1) to claim compensation before the High Court Division has led to a significant, if emerging, body of jurisprudence on public law compensation.³ Therefore, an interested Legal NGO should come forward to file a writ petition to redress the public law compensation. Nowadays, the public interest lawyers and non-governmental organisations (NGOs) have begun to play an instrumental role in using Article 102(1) as a vehicle of relief for fundamental rights violations.⁴ Nevertheless, the obvious challenge would be the persuasion by the NGO to the HCD, since they are not the direct harm sufferer. In this regard, a landmark case decision has eliminated the uncertainty not to file the Writ Petititon reasoning not a direct sufferer, before the HCD. However, in 1997, in the landmark case of Dr. Mohiuddin Farooque v Bangladesh, the concept of locus standi was positively widened.⁵ Importantly, this expansion of locus standi under Article 102 would be decisive in changing the course of civil liability for human rights violations in Bangladesh forever.⁶ Therefore, in light of this landmark case, it is evident that, in the potential case of Abdul Kalam and others, any concerned Legal NGO shall have the locus standi to file a writ petition before the HCD.

B. Imposing Liability on the Dhaka Mass Transit Company Limited (DMTCL)

Traditionally, when a catastrophic incident happens, the question of tortious liability sets in motion. Similarly, the recent tragic incident in Bangladesh that poses some fundamental questions related to the legal duty of the government. To illustrate, the failure of complying with ensuring the individual’s safety, in other words, upholding the fundamental rights by the government agencies or its’ officials. Besides, it highlights the denial of performing a “reasonable duty of care” by the employees of the DMTCL.  Consequently, the negligence of the government agency, DMTCL, resulted in the violation of fundamental rights (ceasing or threatening the right to life of the victim(s)), under Article 32 of the Constitution of Bangladesh. In this regard, first and foremost, in order to make DMTCL liable, it is a must to prove ‘negligence’ on the part of the responsible party (DMTCL). Therefore, the elements of the “duty of care” must be explained. Crucially, the revolutionary case law- Donoghue v Stevenson [1932] that basically recognized the contemporary ‘law of negligence’ and the “neighbour principle.” So, the fundamental elements of negligence can be cited from this case law, and these are: ‘duty of care’, ‘breach of duty’, and ‘harm’. Although this is a private tort law case, the core elements of negligence remain identical irrespective of the type of law. Thus, the elements of negligence shall be explored accordingly, comparing with the case of Abdul Kalam and others.

1. Establishing Reasonable Duty of Care:

Lord Atkin emphasized that one must take a reasonable “duty of care” to prevent acts or omissions that are foreseeable and likely to injure others. In this landmark case, he used the term “neighbour” as an analogous meaning of the “persons”, who could be directly affected by the responsible person’s actions or omissions. Clearly, the Farmgate tragedy case also depicts that the employees of the DMTCL must had taken a reasonable “duty of care” to avoid the likely damage of Abdul Kalam and others. Also, this is a reasonable contemplation that the poor and defective infrastructure (specifically the pillar) of the metro rail would be an essential cause of an accident. However, the employees failed to perform their duty of care that a reasonable person would not have avoided. Therefore, the DMTCL owes a duty of care in this case. Moreover, another landmark case law, CCB Foundation v Government of Bangladesh and others [2016], also known as the ‘Jihad Case’ established the principle of a “reasonable duty of care” in the public tort law sphere. In this case, a 4-year-old boy, named Jihad, fell into an abandoned railway shaft and died, where the Supreme Court (SC) established a “reasonable duty of care” toward the victim.

2. Establishing Breach of Duty:

It is established that the employees of the DMTCL owe a “duty of care” toward the victim(s). Now, it would be claimed that the responsible party (DMTCL) had breached its “duty of care.” In this regard, it is significantly observed that ‘the incident comes approximately 13 months after a similar event on 18 September 2024, when a bearing pad fell from the Dhaka Metro Rail viaduct near the same station, suspending train services between Agargaon and Motijheel for 11 hours.’⁷ Also, Professor Hadiuzzaman of BUET’s Accident Research Institute mentioned that “the viaduct was installed without securing the rubber pad to hold the bearings”⁸. As a result, the rubber pad could not handle the extra pressure.”⁹ In addition, followed by the falling of the metro rail’s pad in 2024, the investigations report revealed that ‘DMTCL had been operating for nearly two years until 2024 without a mandatory safety certificate from the Dhaka Transport Coordination Authority (DTCA), violating legal requirements and no safety report had been submitted to the DTCA since operations began.’¹⁰ Consequently, all of these omissions by the DMTCL escalate the possibility of a potential accident, and eventually, the ‘incident’ in the form of ‘Farmgate tragedy’ took place in the year 2025. Perhaps, the DMTCL might argue that in 2024, a bearing pad numbered “pillar 430” fell; yet, in 2025, a bearing pad numbered “pillar 433” fell in the same station. So, they would not be liable for the incident. However, in the landmark case, Hughes v Lord Advocate [1963] AC 837, it was stressed that ‘the precise manner of the injury caused to the claimant and the extent of the injury need not be foreseeable.’ Furthermore, Lord Reid mentioned “this accident was caused by a known source of danger, but caused in a way which could not have been foreseen and in my judgment, that affords no defence.”¹¹ Likewise, comparing the judgment of the aforementioned case with this ‘Farmgate tragedy’ lawsuit, it is obvious that the source of danger, i.e., the hazardous condition of the ‘metro pillar’ and ‘bearing pad’, is not unknown. Simultaneously, the accident was foreseeable.  Irrespective of the foreseeability, therefore, it is established that the DMTCL had breached their “duty of care” which a reasonable person or an authority would have complied with. In a nutshell, the failure of taking necessary initiative to avoid a potential incident by the DMTCL results in owing a “reasonable duty of care” toward the victim(s).

On a different note, the breach of the “duty of care” by the DMTCL can also be proven in light of the principle, “But-for-test.”

3. “But for” test

The revolutionary case law, Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428, set the “but for” test principle, in order to establish factual causation in negligence. It determined that the defendant is not liable if the harm would have occurred, irrespective of the defendant’s breach of duty. In this case, the doctor failed to perform his duty to examine the patient. However, the negligence on the doctor’s part did not cause the death, since the patient would have died regardless of the doctor’s examination, due to the chronic arsenic poisoning. Conversely, the doctor would have been liable if the negligence contributed to the death of the patient, or in other words, if causation were established. Unlike this case law, importing the decision in the case of Abdul Kalam and others, it could be claimed that the negligence of the DMTCL employees had contributed to deteriorating the infrastructure of the ‘metro pillar’. Consequently, the ‘bearing pad’ from the metro pillar fell on the victim, who died, and two others were injured.  In this regard, the defendant might argue relying on the principle- “novus actus interveniens” which suggests an unforeseeable and independent act by a third party or the claimant that causes the injury. With regard to this, the case law, McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] held that the employer was negligent; as a result, the claimant suffered an injury to his leg. Following this, while he was in his recovery period, he suffered from a second injury due to his own negligence, which resulted in breaking his ankle. Then, the court held that his unreasonable action had breached the chain of causation. Comparing the facts of this case with the case of Abdul Kalam and others, however, the fact of the incident does not envisage anything that may break the chain between the defendant’s negligence and the resulting injury of the victim.  Hence, it is established that there is no emblem of breaking the chain. Therefore, the DMTCL had breached their duty of care without any shred of doubt.

4. Proving Harm

The last element of a negligence claim is harm, the damage a plaintiff suffers as a proximate result of a defendant’s breach of duty.¹² Similarly, in this case, the incident, i.e., the falling of the ‘bearing pad’, was a foreseeable outcome. Thus, it is clear that, if the defendant had complied with their duty of care, the incident would not have occurred. Consequently, the injury of two persons and the death of the victim occurred. Thus, the defendant would be liable in this potential lawsuit.

Therefore, the second research question about the liability of the responsible party (DMTCL or its employees) is proven. Hence, Dhaka Mass Transit Company Limited (DMTCL) shall be tortiously liable.

Now the question arises, who will be responsible for paying the amount of compensation to the victim(s) without unnecessary delays? So, this third research question is dealt with in the following manner.

C. Liability to pay compensation by the responsible party, to the aggrieved party(ies):

Upon discussing the first and second research questions, it is evident that the aggrieved party, i.e., the victim’s family, deserves compensation to be rewarded by the responsible party. Now, it would be crucial to determine the responsible party. It is proven that the DMTCL would be liable as a result of the negligence of their employees. In this regard, the DMTCL or in other word, the State is considered as the employer or master; and the officials, i.e., the employees, are considered as servants. In a common law country, such as Bangladesh, this relation between themselves is known as the master-servant doctrine.¹³ Hence, the Latin phrase, “respondeat superior,” is related here, which literally means “let the master answer”¹⁴ for the torts of his servants committed within the course and scope of their employment.¹⁵ Basically, this is a legal principle which is known as “vicarious liability.” According to Black ’s Law Dictionary, ‘vicarious liability is liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties’.¹⁶ Hence, in this case of Abdul Kalam and others, being the master, the government-owned Company (DMTCL) must respond instead of the employees. Also, it has been held that a corporation is vicariously liable for the acts of its officers performed in the exercise of their assigned functions and within the scope of their employment.¹⁷ Similarly, relying on the domestic case law decision with regard to the law of negligence, in Bangladesh Beverage Industries Limited v Rowshon Akhter (2016), the court awarded damages to the claimant on the ground of vicarious liability. In this landmark case, it was found that in the course of his employment, the driver was negligent, violated the law, and caused serious injury to the victim, which eventually led to his death in the hospital. Consequently, the trial court and both of the divisions of the SC have applied the doctrine of “vicarious liability.” Similarly, in this case of Abdul Kalam and others, the employees of the DMTCL were at work, in their course of employment, and according to the investigation report, they did not comply with the suggestions of the safety requirements. Hence, it is argued that the employees of Farmgate metro station were negligent. So, it is argued that the DMTCL would be vicariously liable instead of the employees. Therefore, in light of this doctrine of master-servant, the tortious liability shifts to the employer, the DMTCL. Similarly, for example, in 1998, due to the negligence of a police officer, a victim was wrongfully confined in jail for a period of six months. Hence, the court awarded BDT twenty thousand taka against the police officer on the grounds of violating the fundamental right of the accused. Therefore, this case has established a precedent to hold public officials accountable.¹⁸ Since the employees of the DMTCL are the public officials, they should also be held accountable for the casualty in Farmgate. However, the employees usually are not worth suing. Therefore, in light of the vicarious liability, being the state-owned company, either DMTCL or the State would be liable to pay the compensation to the victim’s family.

1. Challenge in determining the factors and quantifying the amount of compensation:

Since the second research question portrays that the victims deserve to be compensated, so in this part of the third research question, it would be discussed the complications in quantifying the precise amount of compensation will be discussed. Undeniably, the claimant can invoke compensatory claims to the court in light of Article 102(1) of the Constitution of Bangladesh. Also, unquestionably, the ultimate goal of the law of torts is to provide compensation to the victim who has suffered the loss due to the wrongful acts by the defendant. Similarly, the legal maxim, “restitutio in integrum” (“restoration to original condition”) suggests that to return the claimant or the victim to their preceding condition, when their position was unaffected. However, the law of torts does not provide a mechanism with regard to determining the factors that are relevant to assess the quantification of compensation. Therefore, in Bangladesh, to determine the amount of compensation, the case law decision plays a critical role in determining the compensation in this potential suit.

It is noted that, in this ‘Farmgate tragedy’ case, Abul Kalam was the sole breadwinner of his family.¹⁹ Thus, the death of this victim results in an uncertain future. In this regard, it is crucially noted that, ‘[t]he law of negligence does allow accident victims to recover damages for their secondary losses proximately flowing from a physical injury, including lost earnings and earning power, pain and suffering, emotional distress, and, in some jurisdictions, lost enjoyment of life.²⁰ In addition, the Bangladesh Beverage Industries Limited case, the Appellate Division specifically approved the observation of the High Court Division whereby the High Court Division opined that the judges are empowered to create new tort and also that the pain, agony, anguish, suffering, and loss of expectation of life are tortious liability for which monetary compensation can be awarded.²¹ In this case it is observed that, [t]he “assessment of damages in such a case must, therefore, necessarily be to some extent of a rough and approximate nature based more or less on guess work, for, it may will be impossible to accurately determine the loss which has been sustained by the death of a husband, wife, parent or child.²²” Therefore, similarly in this potential suit, the court may consider the crucial factors, such as ‘lost earnings’, ‘pain and suffering’, ‘loss of expectation of life’, and others which it deems to be relevant. Now, the complexities arise about quantifying the amount of compensation. In order to do so, the following part will highlight some case laws to justify the amount which may be awarded to Abdul Kalam’s family and other injured persons. Since this case is of State negligence, the victims must be awarded public law compensation. Thus, the following part of this paper shall focus on case laws that are related to public law compensation in support of the plaintiff’s position to claim compensation before the HCD.

Historically, the earliest case about public law compensation was Bilkis Akhter Hossain v Bangladesh.²³ In this case, due to the violation of the fundamental rights (unlawful arrest and detention) of the plaintiff’s husband, an opposition political member, the plaintiff sought exemplary monetary compensation. Eventually, the award was given to the plaintiff under Article 102(1) of the Constitution of Bangladesh. In this case, Hoque J held that since the HCD, under Article 102(1), has ‘extraordinary and inherent jurisdiction to pass any order as it deems fit and proper’, it could just as well order monetary compensation ‘considering the facts and circumstances of each case’.²⁴ Therefore, in this case of Abdul Kalam and others, it is argued that the HCD may exercise its own inherent power to consider the facts and circumstances to uphold justice and fairness for the victims.

Besides, another notable case law, CCB Foundation v Bangladesh 10 SCOB [2018] HCD, famously known as Jihad’s Case, is crucially relevant with regard to the case of Abdul Kalam and others in order to support them to seek compensation. The fact of this case mentions that the victim, Jihad, a four-year-old boy, fell into the uncovered shaft. So, applying the tortious principle, “res ipsa loquitur” (“the thing speaks for itself”), the Court found that it amounts to prima facie evidence of negligence as the shaft ‘should have remained covered’. Hence, the fire service and railway employees were held to be negligent. Eventually, the court relied on the doctrine of “vicarious liability” to hold the public authorities accountable for their employees’ negligence. It is pertinent to note that, on 5 August 2018, the Appellate Division upheld a High Court verdict that ordered Bangladesh Railway and Bangladesh Fire Service and Civil Defence to pay Tk 10 lakh each as compensation to the parents of Jihad, a four-year-old boy who died after falling into a shaft.²⁵ Importantly, it has been opined that “this case is immensely significant not only given the dearth of jurisprudence pertaining to a victim’s right to compensation for personal harm, but also because it sets a landmark precedent for holding public authority bodies liable for their employees’ negligence (be it a negligent act or negligent omission) by way of constitutional torts and strict liability.”²⁶

In addition, Rajib Hossain case²⁷, another example of the Constitutional tort case, which has been filed as a writ petition under Article 102 of the Constitution of Bangladesh. In this case, Rajib lost his hand after it got stuck between two speeding buses of BRTC and Sajan Paribahan, trying to overtake each other in the capital’s Bangla Motor area on April 3, 2018.²⁸ Later, Rajib, the victim, died from his injuries at Dhaka Medical College Hospital on April 17, 2018. Consequently, the High Court ordered the Bangladesh Road Transport Corporation (BRTC) and Sajan Paribahan to pay fifty lacs Taka as compensation to the family of Rajib Hossain, who died after losing his hand in a road accident.²⁹ It is clear that BRTC, a state-owned transport operator, had been accountable for the loss of life. Similarly, the precedent of this case law applies in this case of Abdul Kalam and others; therefore, the state-owned company DMTCL should be held liable as a result of the death and injury of the victims. So, in this case, instead of the DMTCL, the State would be responsible for paying the compensation.

Furthermore, another case law can be cited, which is known as Nirob’s case (2015). While playing, a 5-year-old child named Ismail Hossain Nirob fell into an open manhole and was later found dead at the opening of the manhole leading to the Buriganga River. CCB Foundation filed a PIL (CCB Foundation Vs. Government and Others, WP No. 13148 of 2015) and obtained Rule as to why compensation of Tk. 30 lakh should not be paid to the parents of Nirob.³⁰ Correspondingly, in this case of Abdul Kalam and others, upon filing a writ petition suit, the HCD may issue a rule favoring the plaintiff that- why the victim should not be awarded the compensation, in order to enforce the fundamental right. Hence, this case advocates that the State can be held liable in the manner of vicarious liability for negligence. Consequently, it is proven that, in the course of State negligence, the aggrieved party, Abdul Kalam and others, deserves the right to have their fundamental rights be enforced by receiving compensation.

Until now, the above-mentioned paragraph claims that the aggrieved party has the right to get monetary compensation from the responsible party. Therefore, the HCD should look into the case law decisions to determine the factors and set the monetary compensation.

Hence, a significant question arises as to what would be the time limitation to file a writ petition (if not filed yet), and how long does the victim’s family have to wait to get compensated? Therefore, the final research question about the time limitation subject to filling a writ, and to be compensated with the monetary award, will be highlighted in the following paragraph.

D. Time Limitation to file a writ petition for Constitutional Torts

In the civil laws of Bangladesh, any claim about the violation of the legal rights must be filed as a suit, in order to get back the right or office, within certain time limits, before the competent court. However, the scenario becomes ambiguous with regard to a claim of tort law, since the Limitation Act, 1980, does not provide a time-frame to file a suit before the lower court or to the HCD as a form of Writ petition, after the tort has been committed. In addition, there is no codified statutory Tort laws in Bangladesh that ought to have the time-limitation to claim tortious liability before the court. Consequently, the absence of a time limitation provision generates complications while seeking legal remedy before the court. In this regard, Article 120 of the Limitation Act, 1980 is relevant, since it mentions that, ‘suit for which no period of limitation is provided elsewhere in this schedule, the period of limitation is six years.’

In contrast, ‘[t]he Appellate Division of Supreme Court of Bangladesh’s judgment in the Bangladesh Beverage case was interpreted as affirming that tort actions were subject to a one-year limitation period in Bangladesh, not six years, as had been held in the High Court Division judgment’³¹. Therefore, it is evident that due to the absence of the statutory time-frame, the HCD may consider any reasonable time-frame which it deems fit. So, it is advised that the victims must be entitled to file a tortious liability suit (if not filed yet), before the HCD without making unjustified delays from the commission of the constitutional torts.

1. Time Limitation to get the Monetary Award:

Delaying in receiving compensation in our country is not an uncommon phenomenon, unfortunately. In Bangladesh Beverage Industries Ltd v Rowshan Akhter,³² which is possibly the best-known tort case in the country, litigation lasted 26 years³³. However, “the compensation has not been paid yet”.³⁴ Hence, it is clear that due to the absence of statutory tort legislation, the victims have to wait for an unreasonable time-frame.  Besides, in the landmark case of Jihad, the victim died in 2014. Later on, the High Court Division declared the judgment in 2016, while it released its judgment on 7th October 2017, and it awarded Tk. 20 lac as compensation to be paid to the parents of Jihad within 90 days from the date of the receipt of the judgment (Tk. 10 lakh by the Railway authority and Tk. 10 lakh to be paid by the Fire Service Authority)³⁵. Following this, neither of the statutory bodies did comply with the order; rather, they filed an appeal in the Supreme Court.³⁶. Later on, in 2018, ‘the Supreme Court yesterday upheld a High Court verdict that directed Bangladesh Railway and Bangladesh Fire Service and Civil Defence to give Tk 20 lakh as compensation to the parents of four-year-old Jihad[…].³⁷CCBF had to file a contempt of court proceeding, and after the contempt rule was issued by the Court, the State Bodies gave payment to the parents of Jihad³⁸. Thus, it demonstrates that the verdict of the court is not sufficient, and the necessity of introducing tort laws, including the time frame for getting compensation, must be taken into account. Finally, it is expected that, in the case of Abdul Kalam and others, if the defendant becomes responsible, the verdict by the HCD or SC must be executed without delays. Otherwise, it will lead to the violation of human rights.

2. How does the casualty of Abdul Kalam and others’ lawsuit amount to a violation of human rights?

The question of ensuring fundamental rights under the constitutional law of Bangladesh and human rights is connected to each other. In this regard, it is noted that part III of the Constitution guarantees a set of 18 human rights which are collectively known as ‘fundamental rights’ and have been made judicially enforceable.³⁹ Among them, the right to life under Article 32 of the Constitutional law of Bangladesh is a crucial one, which this paper is concerned with. This Article mentions that, “no person shall be deprived of life or personal liberty save in accordance with law.” However, the incident clearly portrays that the main victim, Abdul Kalam, had died, and the other two victims were injured due to the negligence of the employees of a state-owned company, DMTCL. Clearly, this is a violation of the guaranteed fundamental right under Article 32 of the Constitution of Bangladesh; also, a serious violation of human rights. Importantly, the right to judicially enforce any of the fundamental rights before the HCD is in itself a fundamental right.⁴⁰ Likewise, in this case, the victims of this potential lawsuit deserve the right to judicially enforce the “right to life.” Thus, it is argued that the writ petition by seeking “public law compensation” based on tortious liability in the HCD of the SC can be a safety valve for the victims of this case. Moreover, in both the Wahid Mia⁴¹ case and Catherine Masud⁴² case, the High Court Division emphasized the concept of “justice, equity and good conscience” for recognizing and developing the law of tort in Bangladesh. Therefore, in this case of Abdul Kalam and others, if the responsible party becomes liable, the HCD or the SC should uphold justice by ensuring public law compensation to the victims.

CONCLUSION

Upon critically examining this potential lawsuit, having an imaginary titled, “An Interested Legal Aid NGO (on behalf of the Victim, Abdul Kalam’s family and others) v State of Bangladesh”, it can be summarized that: the victim(s) family of Abdul Kalam and others or any of the Public Interest Litigation spirited NGO has the locus standi to file a writ petition before the High Court Division (HCD) of the Supreme Court (SC); and, they must file a writ petition(if not filed yet) without having unnecessary delays. Besides, employees of the DMTCL failed to exercise their duty of care, which resulted in the casualty of the Farmgate tragedy. So, the DMTCL shall be vicariously liable for this tortious liability. Furthermore, being a state-owned company, the liability to pay compensation by the DMTCL would be shifted to the government. Hence, the State shall pay the compensation to the victim(s) family without unnecessary delays, in order to uphold the human rights and to ensure the guarantee of the fundamental rights of the constitutional laws of Bangladesh. Consequently, it is opined that, in the absence of statutory tort laws, the Supreme court should play a pivotal role in ensuring public law compensation in such potential lawsuits.

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Footnotes

1. M Rafiqauzzaman, Public Interest Litigation in Bangladesh: A Case Study, 6 (1 & 2) Bangladesh Journal of Law 128, 131 (2002).

2. Taqbir Huda, Tire Them Out: Challenges of Litigating Compensation Claims under the Bangladesh Labour Act (BLAST, December 2020), ch 2

3. Ridwanul Hoque, Public Law Compensation in Bangladesh: Looking Within and Beyond, 1(2) Journal of Law and Development 1 (2010); Taqbir Huda ‘Fundamental Rights in Search of Constitutional Remedies: The Emergence of Public Law Compensation in Bangladesh’ (2021) 21(2) Australian Journal of Asian Law 27.

4. M Rafiqauzzaman, Public Interest Litigation in Bangladesh: A Case Study, 6 (1 & 2) Bangladesh Journal of Law 131-33 (2002).

5. Dr Mohiuddin Farooque v. Bangladesh, (1997) 49 DLR (AD) 1

6. Ibid (n 4) 132 (2002).

7. TBS Report, What safety concerns emerged after last year’s metro rail bearing pad fall? The Business Standard, Bangladesh (October 26, 2025, 02:50PM), https://www.tbsnews.net/explainer/what-safety-concerns-emerged-after-last-years-metro-rail-bearing-pad-fall-1269566

8. Ibid

9. Ibid

10. Ibid

11. Hughes v. Lord Advocate, (1963) AC 837, p. 847.

12. David A. Fischer, Successive Causes and the Enigma of Duplicated Harm, 66 Tenn. L. Rev. 1127, 1127 (1999)

13. Blanchard v. Ogima, (1968) 253 La. 34, 43, 215 So. 2d 902, 904-05

14. Black’s Law Dictionary 1591 (4th ed. 1968).

15. James v. Williams & Son, (1933)177 La. 1033, 1039, 150 So. 9, 11

16. Black’s Law Dictionary, 11^th edn.

17. Bright v. Bell, (1905) 113 La. 810, 37 So. 764

18. MD. Shahanewaz vs. Government of Bangladesh, 18 (1998) BLD (HCD) 337

19. District Report, Abul Kalam’s death shatters family; wife, children left without support, Dhaka Tribune, Bangladesh, (Oct 26 2025, 11:33 PM), https://www.dhakatribune.com/bangladesh/394891/family-mourns-the-loss-of-abul-kalam-uncertain

20. Dan B. Dobbs, The Law of Torts § 114, at 269 (2000); ch 25.

21. Bangladesh Beverage Industries Limited v. Rawshan Aktar and Ors, (2016) 4 CLR (AD) 411, para 27.

22. Ibid, para 29.

23. Bilkis Akhter Hossain v. Bangladesh, (1997) 17 BLD (HCD) 395.

24. Taqbir Huda, Bangladesh: A Constitutional Solution for a Tort Law Deficit?, in book: Civil Remedies and Human Rights in Flux: Key Legal Developments in Selected Jurisdictions 78 (Hart Publishing, February 2022). “As explained in the Introduction of the book, the ‘civil’ in ‘civil remedies’ is used in this chapter in a broad sense to cover not only those remedies available in private law, but also those available against the state and private parties under the Constitution. Therefore, it does not engage with the question of why public law compensation should be classified as a ‘civil’ remedy.”

25. Taqbir Huda, Judicial activism for constitutional torts, The Daily Star, Bangladesh, August 06, 2018

26. Ibid

27. Md. Ruhul Quddus and Ors. v. Bangladesh Road Transport Corporation and Ors., 6 (2018) CLR (HCD) 665.

28. Star Online Report, Death of Rajib: 2 bus drivers denied bail, The Daily Star, Bangladesh (May 20, 2018, 06.36AM), https://www.thedailystar.net/city/death-rajib-2-bus-drivers-denied-bail-1578960

29. Rahman, M., BRTC, Sajan ordered to pay Tk 50 lakh to Rajib‘s family, Dhaka Tribune, Bangladesh, June 20, 2019.

30. CCB Foundation: Projects and Achievement. https://www.probonoconference.org/wp-content/uploads/2020/09/Info-on-CCBF.pdf

31. Taqbir Huda, Vicarious Liability of Employers in the Law of Tort: Deciphering Bangladesh Beverage Industries vs. Rowsan Akhter and Others, 16(2) Bangladesh Journal of Law 119, 131–33 (2016)

32. Bangladesh Beverage Industries Ltd v Rowshan Akhter, (2010) 62 DLR (HCD) 483, 23

33. Ibid (n 24) 69 (Hart Publishing, 2022)

34. Rezaul Karim & Foisal Ahmed, Slow case settlement, no compensation to victims behind rising accidents: Experts, The Business Standard, Bangladesh, March 21, 2023

35. Ibid (n 30)

36. Ibid (n 30)

37. Staff Correspondent, Death of Jihad: SC upholds Tk 20 lakh compensation, The Daily Star, Bangladesh, (August 05 2018, 18:00 PM), https://www.thedailystar.net/city/bangladesh-supreme-court-upholds-high-court-verdict-over-jihads-compensation-1616245#:~:text=Footer,Daily%20Star’s%20Google%20News%20channel.

38. Ibid (n 30)

39. Bangladesh Const. art. 26-47A, part III (Fundamental Rights).

40. Bangladesh Const. art 44.

41. Wahid Mia alias Abdul Wahid Bhuiyan v. Dr. Rafiqul Islam and others, (1997) 49 DLR 302

42. Catherine Masud and others v. Md Kashed Miah and others, (2015) 67 DLR 523