TRW Insight / Writ series
When the State or a regulated operator violates the right to life, the High Court Division can order payment under Article 102. Knowing the threshold, the leading cases and how quantum is fixed decides whether a petition ends in money or a token award.
Compensation in writ petition practice: the constitutional basis
Compensation in writ petition proceedings is one of the most practical remedies the High Court Division of Bangladesh can grant, and one of the least understood. When a child falls into an uncovered shaft, a bus crushes a pedestrian, a hospital fire kills patients or a person dies in custody, the victim's family rarely has the time or money for a ten-year civil suit. Article 102 of the Constitution offers a faster route: a writ petition asking the court to declare that a fundamental right has been violated and to order the State, or in some cases a private body, to pay.
This guide explains where the power comes from, how the courts have developed the doctrine of constitutional tort, which cases matter, how quantum is fixed, how the Appellate Division has shaped and sometimes slowed the remedy, and what a petitioner must do to turn a rule nisi into money actually paid. It also covers the 2025 and 2026 developments that now sit alongside the writ remedy, including the new enforced disappearance law.
Summary: The High Court Division can award monetary compensation under Article 102 where a fundamental right, usually the right to life under Article 32, has been grossly violated by a public authority, and sometimes by a private body performing a function affecting the public. The remedy is public law compensation based on strict liability, it sits alongside civil and criminal remedies, and quantum is fixed as a lump sum case by case.
Key point: Public law compensation is reserved for clear and serious violations. The Appellate Division has narrowed the early approach to "exceptional cases", and the High Court Division has said compensation follows only where the violation is gross and shocks the conscience of the court. Plead the right, the breach and the loss with evidence from day one.
At a glance
Source of power
Article 102(1) lets the High Court Division give any appropriate direction to enforce fundamental rights, which the courts read as remedial, not merely injunctive.
Constitutional tort
Liability is strict, sovereign immunity is no defence and the award is separate from private law damages.
Threshold
Only gross violations that shock the conscience, typically death, maiming or prolonged unlawful detention.
Quantum
A rough, lump-sum figure fixed case by case; reported awards range from a few lakh to Tk 50 lakh.
Enforcement
Interim payment orders, Appellate Division stays and contempt proceedings decide whether the money arrives.
Table of Contents
Where the power to award compensation comes from
The starting point is Article 102(1) of the Constitution, which empowers the High Court Division, on the application of any person aggrieved, to give such directions or orders to any person or authority as may be appropriate for the enforcement of the fundamental rights in Part III.[1] Article 44 guarantees the right to move the High Court Division for that purpose. Nothing in either provision mentions money. The power to award compensation in writ petition proceedings is therefore a judicial reading of the word "appropriate", not an express grant.
The courts have adopted that reading. In a 2023 judgment the High Court Division, relying on the Appellate Division's decision in Government of Bangladesh v Nurul Amin, 67 DLR (AD) 352, described Article 102(1) as "not only injunctive in ambit but also remedial in scope", and held that it supports an order to pay compensation.[3] The fundamental rights most often invoked are equality before law and protection of law under Articles 27 and 31, the right to life and personal liberty under Article 32, and the safeguards against torture and arbitrary detention in Article 35.[2]
Why a writ rather than a civil suit
Bangladesh has no codified law of tort, and ordinary damages suits are slow, expensive and uncertain. Commentators and practitioners have repeatedly described tort remedies as cumbersome and out of reach for many victims of rights violations.[4] A claim for compensation in writ petition form is heard by a Division Bench on affidavit evidence, can produce interim directions within days and binds the State directly. The trade-off is that the court will not hold a full trial on disputed facts, so the case must be clear on the papers.
Constitutional tort and public law compensation explained
A constitutional tort is a violation of a fundamental right by the State or its functionaries that causes harm. The remedy is public law compensation, which differs in kind from damages in a private suit. In Z I Khan Panna v Bangladesh, 7 SCOB [2016] HCD 7, the High Court Division, drawing on Indian authority including Rudul Sah v State of Bihar, Nilabati Behera v State of Orissa and D K Basu v State of West Bengal, accepted four propositions that now frame the doctrine.[2]
- Compensation for a fundamental rights violation is a public law remedy based on strict liability.
- Sovereign immunity is not a defence.
- The State cannot escape responsibility for the unlawful acts of its functionaries, even though criminal liability remains personal to the wrongdoer.
- The award is palliative and is in addition to, not instead of, civil and criminal remedies.
The same judgment declared the indemnity law passed for the 2002-2003 "Operation Clean Heart" joint forces drive void, holding that a blanket statutory bar on suits could not shut out victims of custodial deaths and torture.[2] That point matters in practice: the State cannot legislate away the constitutional remedy.
Strict liability, not vicarious liability
The High Court Division has drawn a clear line between the two systems. Private law damages rest on vicarious liability, and sovereign immunity may still be argued there. Public law compensation rests on the authority's own direct and strict liability, so the petitioner does not need to prove which individual officer was negligent.[3] Commentators have also argued that the Rylands v Fletcher strict liability principle should extend to inherently dangerous State activity, such as flying training aircraft over a dense urban area.[4]
Leading cases on compensation in writ petition proceedings
The case law has grown incrementally, often through public interest petitions filed by lawyers or rights organisations within days of an incident reported in the press. The decisions below are the ones most often cited, and each one opens a different door.
Bilkis Akhter Hossain: the pioneering case
Bilkis Akhter Hossain v Bangladesh, 17 BLD (HCD) 395, decided in 1997, is regarded as the first case in which the High Court Division recognised public law compensation.[3] [4] The High Court Division approached compensation on a case-by-case basis; the Appellate Division later replaced that lenient test with a stricter requirement that compensation be confined to exceptional cases.[4] Every subsequent petition has to be pleaded against that tighter standard.
The Jihad case: State negligence and the right to life
In December 2014 four-year-old Jihad fell into an unprotected well shaft in the Shahjahanpur Railway Colony in Dhaka; his body was recovered the day after the rescue agencies had called off the search.[5] In Children's Charity Bangladesh Foundation v Bangladesh, reported at 5 CLR (HCD) 278 (2017), the High Court Division ordered Bangladesh Railway and the Fire Service and Civil Defence to pay Tk 10 lakh each, Tk 20 lakh in all, to the parents.[3] [5] The Appellate Division declined to stay the order and later upheld it, which commentators treat as the moment constitutional tort took firm root in Bangladesh.[4] [5]
Russel Sarker: liability of a private operator
On 4 April 2018 a Green Line Paribahan bus ran over car driver Russel Sarker in Dhaka, and he lost his leg. A writ petition filed on 13 May 2018 produced a rule the next day asking why Tk 1 crore should not be paid. On 12 March 2019 the High Court Division ordered Green Line to pay Tk 50 lakh for treatment within two weeks, and the Appellate Division dismissed the company's stay application.[6] The case is significant because the paying party was a private bus company, extending public law compensation beyond the State.[4]
Industrial and hospital fires
After the Tazreen Fashions fire of November 2012, a writ petition by three academics led the High Court Division in November 2013 to direct the government and the BGMEA to pay Tk 7 lakh to each of twenty further victims' families, following the parties' own recommendations.[8] After the May 2020 fire in the Covid-19 isolation unit of United Hospital, Dhaka, the High Court Division ordered initial payments of Tk 30 lakh per family and issued a rule on a Tk 15 crore claim; the Appellate Division reduced the interim figure to Tk 25 lakh per family, payable within 30 days.[7]
Compensation beyond physical injury
The remedy is not confined to deaths and injuries. In Munshi Mohiuddin Ahmed v Bangladesh, Writ Petition No 10660 of 2021, decided on 3 August 2023, a law graduate whose result was wrongly withheld for about fourteen years because a university failed to re-examine his script obtained Tk 18 lakh, payable within two months with 5 per cent annual interest on default.[3] The court treated the university's own inaction as the source of direct liability.
Custodial deaths, torture and enforced disappearance
Custodial violence is where public law compensation was born in comparative law, and where Bangladesh now has the densest statutory overlay. The Z I Khan Panna judgment recognised a right to compensation for violations of Articles 27, 31, 32, 35(3), 35(5) and 40, and confirmed that victims and families may pursue civil and criminal cases against the personnel responsible and also seek writ compensation.[2]
The Torture and Custodial Death (Prevention) Act 2013 adds a criminal-court route. In the Johnny custodial death case, prosecuted under section 15 of that Act, the High Court Division upheld orders requiring each convicted police officer to pay Tk 2 lakh to the victim's family; BLAST reported the appellate verdict on 11 August 2025.[11] Statutory compensation of this kind is paid by the individual offender and depends on a conviction, which is why families often pursue the writ remedy against the State in parallel.
The 2026 enforced disappearance law
On 6 September 2026 Parliament passed the Enforced Disappearance Prevention and Redress Bill 2026, replacing the lapsed 2025 ordinance. It creates a dedicated compensation fund, recovers compensation from convicted persons' assets with the State paying where recovery fails, funds legal, medical and rehabilitation support, and requires investigation and trial within 120 days.[12] For victims of disappearance, the statutory scheme will now be the first port of call, with the writ remedy available where the scheme is not implemented or proves inadequate. Our sibling guide on custodial death compensation in Bangladesh covers that route in detail.
How quantum of compensation in writ petition cases is fixed
There is no statutory tariff and no table of multipliers. The Z I Khan Panna bench said the High Court Division may award "adequate" compensation and that the amount must vary from case to case.[2] The Munshi Mohiuddin bench held that physical, mental and financial loss of this kind cannot be calculated precisely, that any assessment is necessarily rough and approximate, and that the award should be a lump sum. It declined the Tk 30 lakh claimed, took account of the university's financial constraints and treated part of the award as a deterrent.[3]
The factors that recur across reported orders are the gravity of the violation, the age and earning capacity of the victim, the number of dependants, the cost of treatment, the degree of fault or indifference shown by the authority, and the payer's capacity. Interim figures are frequently tied to treatment costs, as in Russel Sarker.[6] Where facts are contested, the Appellate Division has preferred an independent assessment: in the case of Rajib Hossain, who lost his arm between two buses in April 2018, it stayed a Tk 1 crore High Court order and directed that a committee determine the amount and responsibility.[9]
Practitioners have long criticised the resulting inconsistency. At a 2018 BLAST seminar speakers noted that awards varied widely, were sometimes token or confused with costs, and called for quantum guidelines; that call remains unanswered.[4] The practical response is to plead a reasoned figure, supported by income evidence, medical bills and a dependency schedule, rather than an arbitrary round number.
Procedure for compensation in writ petition claims: from filing to payment
A petition for this remedy follows the ordinary Article 102 procedure explained in our guide to the writ petition in Bangladesh, with three additional demands: evidence of loss, identification of the right payer, and a strategy for interim relief. The sequence below reflects how we prepare these cases.
Secure the evidence
Collect post-mortem or medical reports, inquiry reports, photographs, press reports, income records and treatment bills before the facts go cold.
Identify the right and the breach
Plead the specific fundamental right, usually Article 32, and the precise duty the authority or operator failed to perform.
Join every payer
Name the responsible ministry, statutory authority, regulator and any private operator so the court has someone it can order to pay.
Plead a reasoned figure
Support the amount claimed with a dependency schedule, lost earnings, treatment costs and the gravity of the violation.
Seek a rule and interim payment
Ask for a rule nisi and an immediate interim direction tied to treatment or funeral costs.
Defend the stay hearing
Prepare to oppose the respondent's chamber and leave applications in the Appellate Division within days.
Press for final determination
Answer the affidavit-in-opposition, address any committee assessment and argue quantum at the final hearing.
Enforce compliance
Use compliance dates, progress hearings and contempt to turn the order into payment.
Two procedural points deserve emphasis. First, the Limitation Act does not apply to Article 102, but delay must still be explained; the Munshi Mohiuddin court accepted illness and reliance on the university's assurances as reasons.[3] Second, a public interest petitioner can file, but the court will want the victim or family before it before money is paid, so involve them from the outset.
Interim payments and Appellate Division stays
The most valuable order is often the interim one. In Russel Sarker, United Hospital and the Jihad case, money was ordered before final hearing, and the Appellate Division's refusal to stay those orders was decisive.[5] [6] [7] Equally, a chamber judge stay can freeze a High Court order for months, as Rajib Hossain's family learned.[9] Expect the respondent to seek a stay within days and be ready to defend the order on the papers.
Securing compliance
An order is not a payment. Where an authority ignores a final order, the petitioner's remedy is contempt and a further application in the same writ for compliance reporting. Courts have used short payment deadlines, progress hearings and compliance reports to compel payment, as in the Russel Sarker litigation.[6] Build compliance reporting into the draft order you ask the court to make.
Who can be ordered to pay
Any claim for compensation in writ petition proceedings must first identify the payer. The natural respondent is the State, acting through the ministry or statutory authority responsible for the function that failed: Bangladesh Railway and the Fire Service in Jihad's case, the ministry and the employers' association in Tazreen, a public university in Munshi Mohiuddin.[3] [5] [8]
The harder question is when a private body can be made to pay through a writ. Russel Sarker and United Hospital show the High Court Division will do so where the private party operates in a regulated public field such as passenger transport or healthcare and its failure engages the right to life.[6] [7] The limits are discussed in our sibling guide on the writ against a private company in Bangladesh.
Join every potentially responsible authority as a respondent. Courts have apportioned liability between two agencies, as in the Jihad award, and a missing respondent cannot be ordered to pay.[5] Where a regulator failed to supervise a private operator, plead both.
Choosing the right route
A claim for compensation in writ petition proceedings is not the only option, and in some cases it is not the best one. The table compares the main routes. On a phone, scroll it sideways.
| Route | Forum | Who pays | Speed | Key point |
|---|---|---|---|---|
| Writ petition (Article 102) | High Court Division | State authority; sometimes a regulated private operator | Interim orders in days; final orders in months or years | Strict liability; gross violations only |
| Civil suit for damages | Civil court | Defendant found liable | Slow; full trial | Detailed proof of negligence and loss |
| Torture Act 2013, section 15 | Criminal court | Convicted individual offender | Tied to the criminal trial | Requires conviction |
| Enforced disappearance scheme 2026 | Statutory fund and courts | Fund, offender's assets, then the State | 120-day trial target | New in 2026; implementation pending |
| Executive ex gratia payment | Government or employer | Government or industry body | Can be quick | Discretionary; often lower amounts |
The routes can run together. The High Court Division has confirmed that writ compensation does not bar civil or criminal proceedings, and the criminal court's order against an individual officer does not extinguish the State's own liability.[2] Choose the lead route by asking where the evidence is strongest and who has the money to pay.
Common mistakes in seeking compensation in writ petition proceedings
The same errors recur in unsuccessful petitions, and most are avoidable at the drafting stage.
- Pleading negligence without a right. The petition must identify which fundamental right was violated and how; an ordinary accident without an authority's breach of duty will not cross the threshold.
- Relying only on news reports. Press reports start the case, but medical records, post-mortem reports, inquiry reports and income evidence win it.
- Asking for an unexplained sum. A Tk 1 crore prayer with no breakdown invites an independent committee or a token award.
- Missing a respondent. If the operator, the regulator and the owning ministry are not all joined, the court may have no one it can order to pay.
- Ignoring the stay hearing. The respondent's leave petition to the Appellate Division is where many awards stall.
- Forgetting the statutory schemes. Torture, disappearance and other special laws now carry their own compensation routes, and the court will ask whether they were used.
What to watch in 2026
Three developments will shape the remedy over the coming year. First, the Milestone School and College aircraft crash of 21 July 2025 remains the test case for State liability for military activity over a civilian area: the High Court Division issued a rule on adequate compensation, yet one year on families reported that no compensation had been finalised and that the assistance offered was inadequate.[4] [10] Second, the Enforced Disappearance Prevention and Redress Act's compensation fund will show whether statutory schemes can deliver faster than the courts.[12] Third, there is a continuing call for the Appellate Division to settle principles on quantum and early payment.[7]
For petitioners the message is consistent. The law on compensation in writ petition proceedings is settled enough to rely on and flexible enough to reach new situations, but it rewards careful evidence and a realistic prayer. Our constitutional and writ litigation practice acts for victims, families and public interest petitioners, and also advises authorities and operators facing compensation claims. For the wider rights framework, see our guide to fundamental rights in Bangladesh.
Frequently asked questions
Can the High Court Division award compensation in a writ petition?
What is a constitutional tort in Bangladesh?
It is a violation of a fundamental right by a public authority or its functionaries that causes harm. The remedy is public law compensation based on strict liability, without a sovereign immunity defence.[2]
Which was the first public law compensation case in Bangladesh?
How much compensation do courts usually award?
Can a private company be ordered to pay compensation through a writ?
Is there a time limit for filing a compensation writ?
The Limitation Act does not apply to Article 102, but unexplained delay can defeat the petition. File promptly and explain any gap with evidence.[3]
Does writ compensation stop a criminal case or civil suit?
No. Public law compensation is palliative and in addition to civil and criminal remedies against those responsible.[2]
Can the court order an interim payment before the final hearing?
What compensation is available for custodial torture or death?
What changed for enforced disappearance victims in 2026?
Parliament passed the Enforced Disappearance Prevention and Redress Bill 2026 in September, creating a compensation fund, recovery from offenders' assets and State payment where recovery fails.[12]
Source register
Primary legal and regulatory sources
Materials checked on 23 October 2026. Confirm the current official text before relying on any provision.
- Constitution of the People's Republic of Bangladesh (Articles 27, 31, 32, 35, 44 and 102) — Laws of Bangladesh
- High Court Division, Z I Khan Panna v Bangladesh, Writ Petition No 7650 of 2012 (13 September 2015), 7 SCOB [2016] HCD 7
- High Court Division, Munshi Mohiuddin Ahmed v Bangladesh, Writ Petition No 10660 of 2021 (3 August 2023)
- The Daily Star, Law & Our Rights, 5 August 2025 — Victims' right to public law compensation
- The Daily Star, 7 November 2017 — Govt must pay Tk 20 lakh to Jihad's family
- The Daily Star, 31 March 2019 — Pay Tk 50 lakh to Russel by Wednesday: SC to Green Line
- The Daily Star, Law & Our Rights, 2021 — Apex court guidelines to ensure quick compensation for accidents (United Hospital fire)
- The Daily Star, 24 November 2013 — Compensate 20 more Tazreen fire victims' families: HC
- Prothom Alo, 23 May 2019 — HC order on Rajib's compensation deferred
- The Financial Express, 21 July 2026 — Milestone tragedy one year on: compensation remains in limbo
- BLAST press release, 11 August 2025 — High Court verdict in the Johnny custodial death case
- The Daily Ittefaq, 7 September 2026 — NHRC and enforced disappearance bills passed amid opposition walkout
Related TRW assistance
Move from information to a defined next step
TRW acts for victims, families and public interest petitioners seeking compensation under Article 102, and for authorities and operators defending such claims. Explore our constitutional and writ litigation practice or contact TRW to discuss your matter.