At the outset, it is to be mentioned that “the base reason for deferral in indulgence of justice in Bangladesh as well as is underprivileged judge-population fraction,” (Supreme Court of India, 2002: June 10, 2006). It is an established opinion that judiciary is one of the peak significant organs of the State. The judiciary is the last resort for aggrieved people in invoking shelter against the encroachment of their right. In the contemporary age, the perception of separation of judiciary and independence of judiciary is a red-hot issue and also become a precondition for democracy and the rule of law. Like all other things, the mandate for decentralization of higher judiciary for relaxed access of justice by the citizen is upgrading gradually. There is no alterative approach rather than to afford easy access of justice from the judiciary to the resident of the state. In this case, sometimes easy access to justice is possible by subordinate judiciary because of their delegation but it becomes a hurdle for higher judiciary as to easy access to justice by the citizen of the country. This easy access to justice by the citizen can only be possible when decentralization of higher judiciary of a state is ensured. Every Judiciary is for the betterment of the citizen of the State. So, easy access justice from the higher judiciary through the decentralization of it should be organized by the state itself.

In a democratic state, though the judiciary is independent and separated from the executive or others organs but if the higher courts of that state are not dispersed, the citizen of that state cannot avail the eventual fruit of justice because of non-decentralization of the higher judiciary and thats why many people fear to go on with litigation in the higher court. This article is connected with the devolution of the higher judiciary and access to justice by the citizen of Bangladesh and India along with a proportional discussion between their state of affairs and standard. This paper also defines the way out of the prevailing inadequacy of delegation of higher judiciary between the two. Apart from these, the object of this article is to debate the establishment of the higher judiciary of Bangladesh and India and also the reorganization of higher judiciary of these countries. A comparative study of the access of justice from these higher courts will be discussed along with recommendations for each country for guaranteeing the decentralization of higher judiciary.

The Notion of Regionalization of Higher Judiciary

Higher Courts mean those Courts which are grander to trial court. Usually, any court which is superior to a Court of District level can be viewed as upper court. In practice, this Court exercises the power for the implementation of fundamental rights which are secured by the Constitution of the State. In Bangladesh, higher court means the Supreme Court of Bangladesh which is composed by the Appellate Division and the High Court Division. In India, higher court comprises both the Supreme Court of India and High Courts for Indias different States. In a nutshell, a higher court refers to courts whose configuration, powers, functions, and other characteristics are specified in the allied states constitution.

In this research paper higher courts are indicated through the courts whose standards are alike to High Court and Supreme Court. Normally, Higher Judiciary includes those Courts whose composition, powers and functions are designated in the Constitution. As well, the higher court is entitled to interpret any question of law or any obscurities relating to the clarification of the constitution of that state by exercising the jurisdiction of judicial review. The decentralization of higher judiciary means that outspread of higher judiciary amenities to different spaces of the country so that the people of that country may have easy access to justice, with fewer disturbances and with an inadequate cost. Noticeably, the purpose of decentralization of higher judiciary is to simplify the shield of the right of the citizen of the state and to support or shelter them against any flouting of their rights. Reorganization of higher Judiciary can aid to nose-dive the illegal act of the government or can announce any law as void which is inconsistent with the constitution of that state.

Badrul Haider Chowdhury J. Said, “Delegation of judiciary is plausible in so far as the trial courts are associated, but such attempt in the domain of superior judiciary has been denigrated by the jurists far less (sic) in the case of the highest court of the country.”   

The concept of decentralization of higher judiciary can be found in the United States, the United Kingdom, and Australia, as well as in the Indian Subcontinent, specifically Pakistan and India. In the United States, each state has its own Supreme Court, however in the United Kingdom; there are various circuit benches of different divisions such as the Queens Bench, Chancery Bench, and so on. In Australia, several states have different Supreme Courts, which correlate to the Supreme Courts of Queensland. In Pakistan, the Supreme Court has four circuit benches, while the four High Courts have circuit benches in different parts of their respective provinces. In India, there is different circuit Benches of different High Court in different parts of the state.

The end product of devolution of superior judiciary was considered in the background of England and America. “The decentralization of judicial organization and the administration of justice are thought by some to be lethal to the maintenance of an accurate judicial power, and the anxiety is strengthened for those who see a hazard in the new importance attaching to the place of legislation as a source of law,”(David, Rene., & Brierley, John E.C., 1978). Independence of the judiciary is not an abstract concept. According to Bhagwati,J., “if there is one principle which runs through the all-inclusive fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is commended with the assignment of keeping every organ of the State within the limits of the law and by this means making the rule of law a significant and effective.” He stated that judges must uphold the essential idea of the rule of law, which reads, “Be you ever so high, the law is above you.” This is the concept of judicial independence, which is critical for the development of genuine participatory democracy, the preservation of the rule of law as a viable concept, and the provision of social justice to the most vulnerable members of society. It is this principle of independence of the judiciary which must be kept in mind while interpreting the appropriate provisions of the Constitution (S.P. Gupta and others Vs. President of India and others AIR 1982 SC 149).

Upper Judiciary in Bangladesh

The Supreme Court of Bangladesh, which is comprised of the Appellate Division and the High Court Division, is referred to as the higher judiciary in Bangladesh [The Constitution of the Peoples Republic of Bangladesh, Article 94 (1)].     

The Supreme Court of Bangladesh

Before the independence of Bangladesh, this Court was known as the Dhaka High Court and had operated under that name since 1947. During the liberation war in 1971, this Court was divided into two distinct Courts; however, pursuant to a provision of the Bangladesh Constitution that went into effect on December 16, 1972, the Supreme Court of Bangladesh and the High Court of Bangladesh were merged once more after independence and renamed the Supreme Court of Bangladesh, encompassing its two divisions, the Appellate Division and the High Court Division.

Later on, at the time of martial law government in 1976 again it was divided into two distinct Courts and was named as the Supreme Court of Bangladesh and the High Court of Bangladesh. This lasted for a very brief time. They were once again joined in a court known as the Supreme Court of Bangladesh, which is made up of two divisions: the Appellate Division and the High Court Division. By Martial Law Proclamation Order No. 11 of 1982 High Court Division of the Supreme Court was swapped by four permanent Benches at Dhaka, Rangpur, Jessore and Comilla. Consequently three more permanent Benches were established in Chittagong, Sylhet and Barisal. Lawyers started movement against such disintegration of the High Court Division. When the Constitution was invigorated the permanent Benches outside the capital were preserved as Sessions of the High Court Division outside the capital. Lawyers contended that this was unconstitutional and there was stalemate. On 9.6.1988 Art.100 of the Constitution was modified by setting up six permanent Benches in Rangpur, Jessore, Barisal, Chittagong, Cumilla and Sylhet and the Honorable President was authorized to fix the regional jurisdiction of the permanent Benches by notification and thereby to shorten the territorial jurisdiction of the High Court Division in the permanent seat. The honorable President issued notifications and as a result the High Court Division and permanent Benches had reciprocally exclusive jurisdiction. The honorable Chief Justice framed rules imparting the idea of “cases arising out of an area” and providing for allocation of pending proceedings from High Court Division to permanent Benches. Writ Petitions were filed challenging the amendment and the Rules on several grounds, the most notable of which is that High Court Division of the Supreme Court with quorate judicial power over the Republic is an elementary structure of the Constitution which cannot be transformed or spoiled and the amendment is void having rendered the High Court Division with full judicial power over the entire Republic non-existent. The High Court Division rejected to issue a Rule stating that the challenged amendment did not undermine the fundamental structure of the Constitution because the High Court Division has full powers and jurisdiction under Article 100(5) of the Constitution. By a majority of 3:1 the Appellate Division held that the amendment of Article 100 is to be void (Anwar Hossain Chowdhury Vs. Bangladesh & Others,1988., Jalaluddin Vs. Bangladesh & Others,1988., and Ibrahim Sheikh Vs. Bangladesh & Others, 1989 arising out of Writ Petitions No. 1252,1176 and 1283 of 1988), 1). 

In 1982, the Chief Martial Law Administrator established permanent Benches of the High Court Division in Rangpur, Jessore, Barisal, Chittagong, Cumilla, and Sylhet with definite exclusive territorial jurisdiction and adjudicatory powers to try specific cases, with the exception of Admiralty and company matters, which remain with the High Court Divisions permanent seat in the capital. The Proclamation (Third Amendment) Order of 1986 declared the permanent benches to be “sessions of the High Court Division, and these sessions of the High Court Division were called Circuit Benches.”

In the name of permanent benches, the amendment is intended to create seven separate High Court Divisions. Because a decision made by one permanent bench will not bind another permanent bench, there is a chance that differing opinions will render the binding effect envisioned in Article III unconstitutional when the Constitution is being interpreted or a matter of general public significance comes up. As a result, one of the fundamental tenets of the Constitution will be eliminated when one of the Supreme Courts fundamental constitutional responsibilities is nullified. The concept of the Supreme Court of Bangladesh, which includes both the Appellate Division and the High Court Division, is unique, and it has been designed to keep the Supreme Court, the highest judicial Organ of the State, in line with Article l, which states that “Bangladesh is a unitary, independent, sovereign Republic.”

Like the permanent seats of the other two organs, namely the executive and the legislative, seat of the Supreme Court is in the Capital of the Republic. This integrated Supreme Court is a part of the basic structure of the constitution; it cannot be scratched directly or indirectly. Separation of the High Court Division from the Supreme Court is not permissible because it is not a fundamental part of the Supreme Court, nor it is permissible to create a separate High Court under the Supreme Court as it will run counter to the unitary character of the State opening a door for eventual fragmentation of the State. The High Court Division of the Supreme Court has a higher status than a Provincial High Court in a Federal State, such as India or Pakistan, where the High Court is headed by a Chief Justice, because the High Court Division is an integral part of the Supreme Court, which is led by the countrys Chief Justice, and its territorial jurisdiction is co-extensive with that of the Appellate Division, which covers the entire Republic. 

S. Ahmad J. “The concept of the Supreme Court of Bangladesh, which includes both the Appellate Division and the High Court Division, is unique, and it has been designed to keep the Supreme Court, the highest judicial organ of the State, in line with Article 1, which states that “Bangladesh is a unitary, independent, sovereign Republic.”... This integrated Supreme Court is a part of the basic structure of the Constitution; it cannot be violated directly or indirectly... The High Court Division, as an integral part of the Supreme Court, is overseen by the countrys Chief Justice and has geographical authority throughout the Republic…The States unitary character has been reflected in the judiciary, one of the three State organs, with the formation of a cohesive Supreme Court. When its integrity is dented, disturbed, or shattered, more High Courts than one are likely to be formed, either directly or indirectly, under the guise of permanent Benches, rendering them independent of one another. More permanent seats than one are not permitted if the Supreme Court wants to remain an assimilated judicial arm of the State at the apex.”

The challenged amendment, in the guise of creating “permanent benches,” has actually twisted new courts parallel to the High Court Division as envisaged by Articles 94, 101, and 102. So the essential structural pillar, the judiciary, has been shattered, and the Republics plenary judicial power, assigned to the High Court Division, has been taken away.

Higher Judiciary of India

In this part of the research, the devolution of higher judiciary of India will be debated along with their seat and circuit Benches. Indias legal system consists of the Supreme Court of India and twenty-five subordinate High Courts. These courts have jurisdiction over a single state, a union territory, or a combination of states and union territories. A pyramid of subordinate courts exists beneath the High Courts, including civil courts, family courts, criminal courts, and numerous more District courts. High Courts are established under Part VI, Chapter V, and Article 214 of the Indian Constitution (Fligh Courts of India, 2024).

One of the most distinguishing elements of the Indian Constitution is that, despite the adoption of a federal system and the existence of Central Acts and State Acts in their respective jurisdictions, it has often allowed for a single coherent system of Courts to monitor both Union and State laws.(Constitution: Supreme Court of India, October 20, 2024). It is a mark of our democracy that, under the aegis of the Indian Constitution, the legislative, executive, and judicial branches of government have consistently pledged to provide an equitable and impregnable framework for delivering justice to all. The purpose of an enlightened and self-governing government is to provide a framework for the common man in which the rule of law prevails and justice is administered without fear or favor (PM Speech: Prime Minister of India, 2024).

The Supreme Court of India

On January 26, 1950, the Supreme Court of India was established. After that, the Court evolved into its current form in 1958. The Republican India structure contains a provision for the formation and structure of the Supreme Court of India [The Constitution of the Republican India, Article 124 (1)]. The Supreme Court shall sit in Delhi or in such other place or places as the Chief Justice may specify with the Presidents assent from time to time (The Constitution of the Republican India, Article 130). The renunciation of justice through delay is the prime disdain of law, but in India, it goes beyond mere ridicule; the delay actually kills the countrys entire legal system. This has resulted in people settling disputes on their own, increasing the number of criminal syndicates in the country and casting doubt on peoples trust in the rule of law (Outsourcing and the Globalizing Legal Profession, 2024; Pourshah MH., 2024).

Justice Bhagwati touches that the countrys judiciary is on the threshold of breakdown caused by the substantial accumulation of cases in Courts. “It is not just a crunch; the judiciary is on the margin of downfall in consequence of the considerable number of arrears, principally to the extent that the High Courts and the lower Courts are concerned.” He points out that there are about over 30 million cases pending countrywide and says that most of the problems have been resulted from the executives indifference and insensitivity. Furthermore certainly a good number of people are failure to file the higher Courts in time (India Development Foundation, 2024).

The High Courts of India

There shall be a High Court for every single State (The Constitution of the Republican India, Art. 214. Retrieved October 11, 2024). The High Court stands at the head of a States judicial administration. There are 25 High Courts in the country having Jurisdiction over more than one State. Among the union Territories Delhi alone has a High Court of its own. Other six Union Territories come under the Jurisdiction of unalike State High Courts (Indiana Judicial Branch: Judiciary Home-IN.gov., July 14, 2024). All offenses, including those carrying the death penalty, may be tried in the states High Courts, which are the main civil courts having original jurisdiction. Nonetheless, the greater part of the work of the most High Courts consists of Appeals from lowers courts and writ petitions in terms of Article 226 of the Constitution of India. The exact jurisdiction of each High Court varies (High Courts of India, June 12, 2024).

Several High Courts feature both an original and appellate side for civil and criminal cases. For example, the Delhi and Madras High Courts have both appellate and original jurisdiction, whereas the Bangalore High Court does not. The high courts pecuniary jurisdiction varies by state (Local Development Framework, November 05, 2024).

Proportional Study

In this part of this research, a comparative study on reorganization of higher judiciary of Bangladesh, India i.e., the seat of the Supreme Court and the seats of the High Court of these countries will be compared with each other.

As to the Seats of Supreme Court

As previously stated, Bangladeshs Supreme Court is divided into two divisions: the Appellate Division and the High Court Division. The Appellate Division of the Supreme Court of Bangladesh has only one permanent seat, which is in Dhaka, the capital. In reality, it would be preferable to split the High Court Division from the Appellate Division and establish a distinct Supreme Court, akin to India, Pakistan, or any other state. It should be planned to establish circuit benches of the Appellate Division of the Supreme Court in other parts of Bangladesh, such as Pakistan, so that people can quickly seek redress from the higher judiciary. Bangladesh lags considerably behind other countries, such as India and Pakistan, when it comes to Supreme Court delegations. For that, the devolution of higher judiciary in Bangladesh is very crucial issue.

The Supreme Court of India sits in Delhi or in other locations as the Chief Justice may specify with the Presidents assent. There is a provision for regionalization of the Supreme Court of India, but it has been infrequently used throughout history. The reason for this is because it is difficult and impossible to set up or build Supreme Court benches outside of Delhi immediately since certain procedural considerations must be met and the Presidents consent is required. It would be better to have a circuit Bench of the Supreme Court in each and every State of India, so that, the people can have easy access in taking shelter the from the higher judiciary. 

The Central Government is also agreed to have, as a final point, plunged the suggestion for the establishment of a bench of the Supreme Court in Chennai early, and the Centre appears to have ignored a proposal from the Parliamentary Committee on Home Affairs to establish regional Supreme Court benches in Chennai, Calcutta, and Mumbai. This ruling is primarily consistent with the indisputable decision of the Supreme Courts entire Bench in 1999 to oppose the formation of such courts on the grounds that it would disrupt the courts unitary nature, pervert it, and undermine their integrity (India Together: The news in proportion., July 08, 2024).

As to the Seats of the High Court

In terms of high court regionalization, Bangladesh lags considerably behind India. In India, there are 25 High Courts and certain Circuit Courts. However, in India, the number of High Courts may be extended to one per state, along with Circuit Courts. In Bangladesh, the High Court Division, which is similar to the High Court, has a permanent seat in Dhaka and no circuits or permanent benches outside of Dhaka, Bangladesh, though Article-100 of the Bangladesh Constitution provides for the possibility of temporary High Court Benches to be established by the honorable Chief Justice of Bangladesh with the permission of the President of Bangladesh. Since there is no prohibition or restriction on establishing a provisional or circuit bench of the High Court Division of Bangladesh outside of the capital city of Dhaka, the Honorable Chief Justice of Bangladesh may establish temporary or circuit benches in the Divisional cities. As a result, the Bangladeshi people will have easier access to the benefits of higher justice.

The reorganization of the Higher Judiciary is critical for the poor, who do not have easy access to it. During the presidency of General Hussein Muhammad Earshad, six permanent benches of the High Court Divisions were established in Comilla, Chittagong, Rangpur, Sylhet, Jessore, and Barisal by amending the Peoples Republic of Bangladesh Constitution. However, according to the Higher Judiciarys decision in the well-known case of Anwar Hossain Chowdhury Vs. Bangladesh, also known as the famous 8th Amendment case, those benches were stopped because this amendment contradicted the fundamental feature of the Peoples Republic of Bangladeshs constitution. In reality, such a modification necessitated a referendum in accordance with the Constitutions process for amending such a basic part of the Bangladesh Constitution, which was not carried out. Perhaps if they were portable or circuit benches, they would be more successful. It would be preferable to amend the Peoples Republic of Bangladesh Constitution to support a referendum, as well as to include a provision in the Constitution establishing a permanent Bench of High Court Division in each Divisional City of Bangladesh, with some Circuit Benches in former Greater Districts. If done, the High Courts regionalization will be akin to that of India or Pakistan.

(1) The amendment to Article 100 is unconstitutional because it has destroyed a critical limb of the judiciary, namely the Supreme Court of Bangladesh, by establishing rival courts to the High Court Division under the guise of permanent Benches convening full jurisdictions, powers, and functions.

(2) Amendment to Article 100 is unconstitutional and meaningless because it contradicts Articles 44, 94, 101, and 102 of the Constitution. The amendment has extracted the Articles 108, 109, 110, 111 and 112 as insignificant and it has directly violated the Article 114.

(3) The amendment is illegitimate unlawful because there is no mechanism for transferring cases from one permanent bench to another permanent bench, which is required for the administration of justice (See: AIR 1979 SC 478).

(4) The transfer of judges under a reckoning provision is a violation of Article 147.

(5) It has not simply arrangement a permanent Bench like Indian jurisdiction, because, the Indian High Courts have territorial jurisdiction and in setting up the Benches for determining cases in far-flung area the legislative language is “to exercise the jurisdiction and powers for the time being bestowed in the High Court with regard to cases arisen in the districts,”

(6) There was no clear forward-looking conflict, but an attempt was made to determine whether the Court could serve the bad part of the enactment while ignoring the positive part. The answer is no, because the amendments determination to establish permanent benches with full authority, functions, and jurisdiction over the High Court Division is doubtful. The remaining elements of the amendment Articles are so enmeshed with the framework that they cannot be separated. As a result, the entire Article may be deemed ultra-vires. The High Court of Bangladesh was formed by Presidents Order No. 5 of 1972. It inherited the power, functions, and jurisdiction of the now-defunct Dhaka High Court. Later, under Presidents Order No. 91 of 1972, an appellate forum was established, namely the Appellate Division, to hear appeals against the High Courts decision. The Dhaka High Court was established in 1948, following the Indian Independence Act of 1947. It is frequently claimed that the High Courts of India are not governed by the Constitution. These are caused by standard legislation. There was no constitutional amendment that established the permanent benches.

The 8th Amendment was thus ratified on June 9, 1988, and the President issued a notification on June 11 indicating the locations of the permanent benches. The Chief Justice then issued a notification, which established the following benches: 

(a) Rangpur Permanent Bench

(b) Barisal Bench

(c) Jessore Bench 

(d) Sylhet Permanent Bench 

(e) Comilla Permanent Bench

(f) Chittagong Permanent Bench

(g) And the residuary area was apportioned by the recommendation of the Supreme Court of Bangladesh.

Dr. Kamal Hossain, on behalf of the appellant, argued that the amending authority is a power within and under the Constitution, not a one outside and above it. It does not provide Parliament the authority to weaken or repeal any basic characteristic or structural pillar of the Constitution. Clause (5) of amended Article 100 and notifications issued thereunder are unconstitutional because: (a) it violates the principle of separation of powers and amounts to the transfer of fundamental power, which is not permissible and not sanctioned by Art. 142; (b) it institutes a change in the basic structure of the Constitution, which is not authorized by Art. 142; and (c) no consultation as required by Clause (5) was conducted. Consultation envisioned by Article 100(5) means full, considerable and operational consultation based on contemplation of relevant data or ingredients which must be well-found and in the present case no such consultation was held (Mridhas case, 25 DLR 335, p. 344).

The amended of Article 100 unpleasantly disturbs the efficacy of the High Court Division as it fallouts in (a) vagueness, (b) likelihood of assortment of proceedings, (c) diversity and clashes of decision, (d) breaks in the exercise of jurisdiction, (e) difficulty in setting-up separate specialized benches for civil, criminal and constitutional matters.

The amending power under Article 142 is recognized as power inside the Constitution rather than above and beyond it, and it is not an endless power. Any power of amendment under the Constitution is subject to limitations. The structural pillars or core framework of the Constitution, as acknowledged by its framers, cannot be altered by a simple exercise of amending power. The power to alter does not extend to the extinguishment of the constitutional structural pillars or basic framework [Murphy: Constitutions, Constitutionalism and Democracy; Baxi: “Some reflections on the nature of Constituent power in Indian Constitution: Trends and Issues,” (1978), pp.123].

Barrister Syed Ishtiaq Ahmed stated, “The Constitution has established a framework with its own stability, beauty, and charm. It is built around three pillars: the history of the peoples struggle for independence, independence, and the rule of law. “The Supreme Court is one of these structural pillars.” This power is granted to the Parliament by the Constitution and is not a power beyond or above it. Parliament is a creation of the Constitution, and it cannot exercise its authority to change the core framework of the Constitution.

The respondents contended that the establishment of permanent benches by the impugned amendment is nothing new, as permanent benches of the High Court have already been created in India and Pakistan, and that similar establishments cannot be faulted. The argument fails to recognize that the provincial High Courts of India are substantially different from the High Court Division of the Supreme Court of Bangladesh. Those Provincial High Courts have limited geographical jurisdiction and so cannot exercise writ authority outside their regional boundaries. In the case of Asghor Hossain Vs. Election Commission (20 DLR SC 322), the High Courts of India do not form the Constitution. The benches of such High Courts, whether permanent or not, in outlying districts of the provinces are likewise recognized by regular legislation. There was no confused amendment to the Constitution, and no constitutional question was addressed.

Barrister Amir-Ul-Islam stated that the Republics unitary nature is a core component of our Constitution, as is the Supreme Courts quorate judicial power, which is perfectly consistent with the Republics unitary character. The challenged modification not only weakens and exaggerates the judicial power of one of the Supreme Courts separate Divisions, but it also denies the Republics unitary nature. The challenged amendment attempts to turn the clock back more than 200 years; it was conceivable under the High Court of Judicature Act of 1861 to limit the territorial jurisdiction of High Courts, but it is not permitted by our Constitution.

The Attorney General continued: “Bangladesh is a unitary Republic and its legislature is the supreme law making body for the entire country, a fact which has to be kept in view in mounting the amending power under Article 142, Subject to the express limitation under clause (1A) of Art. 142, the amending power is inclusive and is not subject to any other restraint or limitation.” The establishment of such benches does not imply the formation of more than one High Court. The formation of benches has not been addressed since it has destroyed the fundamental framework of the constitution (Bhuwal Vs. Dy. Director, Consolidation, AIR 1977 All 488, p. 37).

Mr. Syed Istiaq Ahmed Chowdhury further stated that this amendment has ten effects:

(i) Modifies the Supreme Courts permanent seat; 

(ii) Forms six permanent benches; 

(iii) Inaugurates permanent benches at designated locations with Martial Law exemption; 

(iv) Establishes permanent benches with specific jurisdictions, powers, and functions. 

(v) Establishes territorial limitations for permanent benches. 

(vi) Surrounds the High Court Divisions permanent seat. 

(vii) Allows for the transfer of High Court Division judges through a reasoning provision. 

(viii) Gives the Chief Justice the authority to transfer judges without any guidelines or safeguards.

(ix) The President has the authority to allocate areas of jurisdiction to the permanent benches.

(x) The Chief Justice has the authority to make rules for “incidental” matters related to the permanent benches.

The modifying power allows for the adoption of legislation that encourages the constitutions growth rather than its annihilation. Unlike other High Courts of the Subcontinent, the High Courts of India do not have unrestricted jurisdiction over the whole region. As a result, the concept of eternal benches of Indian jurisdiction is unimaginable because the laws are not in part material. The High Court Division is a vital part of the Supreme Court. It possesses complete power. The Parliament, as a legislative body, lacks the constituent power to amend the Constitution in violation of the essential conception, thus extinguishing it. “Mr. Amir-ul-Islam denied that the changed Article had undermined the Republics unitary nature. Mr. M. Nurullah, the learned Attorney General, contended that the change was made for the benefit of the public. The Attorney General noted that the change was designed to deliver justice to the people at a reduced cost.” Mr. Asrarul Hossain, appearing as Amicus Curiae, argued that the change is within the scope of Parliaments modifying authority. 

S. Ahmed I stated, “The High Court Divisions power to transfer any case from one subordinate court to another or to withdraw it to itself under Article 110 has been regarded as negative; at best, this power may now be exercised by the six Benches and the High Court Division sitting in the permanent seat over their respective subordinate courts.” The superintendence and control over subordinate courts under Article 109 is a comparable case. Regarding the obligatory consequence of judgment under Article 111, the judgment of one Bench or Court is not binding on another Bench/Court or the Courts subordinate to it; thus, contradicting verdicts are quite possible. Although the Supreme Court is the only Court of Records under Article 108, the change has resulted in the establishment of numerous more Courts of Records.”

According to the provisions of the Bangladesh Constitution, the permanent seat of the Supreme Court, i.e., the Appellate Division and the High Court Division, shall be in the capital of Bangladesh, but the session of the High Court Division may be held at such other place or places as the Chief Justice may, with the approval of the President, from time to time appoint (The Constitution of the Peoples Republic of Bangladesh, Art. 100).

B. H. Chowdhury J stated, “The censured modification, in an illusive manner under the name of fashioning “permanent Benches,” has indeed shaped new courts similar to the High Court Division as expected in Articles 94, 101, and 102. As a result, the essential structural pillar, the judiciary, has been destroyed, and the Republics full judicial power placed on the High Court Division has been revoked.” The amended Article 100 is unconstitutional because it has ruined the judiciarys most important appendage, the Supreme Court of Bangladesh, by establishing rival courts to the High Court Division disguised as permanent Benches with full jurisdictions, powers, and functions of the High Court Division. S. Ahmed J stated, “One of our societys ultimate goals is to uphold the rule of law for all citizens, and to that end, Part IV and other provisions were incorporated into the Constitution. 

Now, as a result of the challenged change, the framework of the rule of law has been drastically reduced, and the High Court Division has been divided into sixes and sevens-six at the permanent Benches and seven at the permanent seat of the Supreme Court.” Now, the Appellate Division of the Supreme Court of Bangladesh has two benches, whereas the High Court Division has approximately thirty-five beaches. All benches in both divisions are located in Dhaka, the capital of Bangladesh.

Finally, it is very consistent that our judiciarys job is to protect citizens rights and make sure they carry out their responsibilities within the bounds of the law and in accordance with the spirit of our Constitution (PMSpeech: Prime Minister of India, 2024). Influence should not come in the way of special consideration of justice (The Daily Jang: Latest News, Breaking News, Pakistan, 2023). Independent judiciary is essential to democracy and the rule of law. The delegation of the Higher Judiciary is another important issue in the modern era. In India, the number of High Court is growing day by day because of their devotion of dissemination the fruit of justice to all levels of citizen without any menaces. Now in India, there are twenty five High Courts. It will not be a matter of wonder if India founds one High Court for each state like Pakistan very soon. It is true that to some extent lower judiciary has now unlocked the door for the poor people to take lawful shelter. Indisputably, it would be much effective if the regionalization of higher judiciary is guaranteed. But Bangladesh is far behind from India though about 50 years more of its independence has already been passed. 

Nothing takes place in a day and everybody should be idealist that free-fair and unbiased judiciary are associated with democracy which is expanding day by day. Most importantly, separation, independence, and regionalization of the court are necessary for a pure democracy and the rule of law. People can utilize their fundamental rights when they are in danger or under the desecration of the law, and they can defend themselves against illegal and unlawful intrusion by reorganizing the higher courts. Regionalization of higher judiciary can guarantee justice to the poor people with a limited cost otherwise maximum time they are impotent to exercise their rights through judiciary because of high expenses which caused them serious loss of life and right to property. In addition to these, appropriate infrastructure development, the nomination of more qualified and unbiased judges, and the hiring of enough personnel are all necessary to ensure the delegation of higher judiciary. These requirements can be met with just the states will and are not particularly difficult. In a few years, the state might make it feasible. To raise the bar for democracy, human rights, and the rule of law, the state must ensure that citizens can easily receive justice from the higher judiciary. Benches of the High Court Division outside the capital are not a new feature; they should have been established to make justice accessible to the people at a moderately lower cost and for the sake of public interest.  The High Court Divisions judges exercise all of the divisions powers and jurisdictions wherever they sit. During the Supreme Courts vacation, a judge may exercise the jurisdiction of the High Court Division from any location other than the High Court Divisions usual seat. 

The establishment of permanent Benches is just a functional reorganization of the Judges of the High Court Division who will sit on the permanent Benches and in the permanent seat; the High Court Division remains a single, inseparable entity. The preamble has no authority to restrict or prohibit the main power of amendment, nor can it imply any prohibition or restriction on such amending rights (Keshavanandas case, AIR 1973 SC 1461, Para 112; L.C. Golok Naths case, AIR 1967 SC 1643 and Berubaris case, AIR 1960 SC 845). Article 7 of the Constitution includes no new information, and other constitutions address similar assertions. The Constitutions of India and Pakistan are the supreme laws of both countries in the absence of such a statement (Golak Naths Case, AIR 1967 SC 1643 and Fazlul Quader Chowdhurys case PLD 1963 SC 486). Declaration of Supremacy of Constitution in Article 7 does not at all restrict the amending power of the Parliament which has unencumbered power of amendment subject to the curb kept in check in clause (1A) of Article 142. The independence of the judiciary and the separation of powers are fundamental principles of our Constitution, yet the challenged amendment has had no effect on the independence of the judiciary or the distribution of powers among the legislative, administration, and judiciary. The guidelines specified by the Honorable Chief Justice under Article 100 (6), which are relevant to the provision of Article 100 (5), are intra-vires. According to Article 100 (5), permanent benches have jurisdiction over the areas given to them, while the High Court Division has authority over the areas that have not been assigned. It appears that the transfer of outstanding cases from the High Court Division at the permanent seat to permanent benches is merely a far-reaching consequence of Article 100 (5), and so the regulations are intra-vires. The Chief Justices rules violated Article 100 and cannot be sustained. The essential structure of the Constitution in terms of the Supreme Court, which has plenary judicial jurisdiction over the entire Republic, has been shattered, with the exception of Article 142s limitations on modifying power. Therefore, in order to avoid hardship and trouble, the annulment should be made prospective even though the contested change as it pertains to Article 100 should be proclaimed ultra-vires. As in the early of the research paper, the higher judiciarys delegation has been emphasized as a tool to directly protect state citizens rights in the legal system; the need for the higher judiciarys privilege is also demonstrated in the interim. In the process, their more promising positions will also be taken into consideration for the benefit of the states citizens. This investigation should also focus on the potential solution. Comparing the higher judiciaries of Bangladesh, India, and Pakistan, it is obvious that Indias higher judiciary, including the High Court and Supreme Court, is more devolved than Bangladeshs. It would be preferable to establish at least one Supreme Court Bench or seat in each province of India, as well as to familiarize one High Court in each province of India with adequate circuit Benches of the High Court at various locations within a single province. In the case of Bangladesh, it would be better to amend the Peoples Republic of Bangladesh Constitution to create two separate courts in the higher judiciary, such as the High Court and the Supreme Court of Bangladesh. Therefore, it would be better to set up six circuit benches of the Supreme Court in each Divisional City in addition to the Supreme Court of Bangladesh. Every Divisional City in Bangladesh shall have a permanent High Court Division Bench, with some Circuit Benches in certain districts, according to the High Court of Bangladesh. The Honorable Chief Justice of Bangladesh may set up interim or circuit benches in eight Bangladeshi divisional cities until and unless the countrys constitution is changed in this way. If it is carried out, the High Court Divisions restructure may resemble that of Pakistan or India.

M.A.M.B. Conceptualization, writing the original draft of the manuscript, and M.N.I. Investigation, reviewing, supervision, editing, and corresponding of the manuscript.

First and foremost, the authors would like to thank the Almighty for granting them the strength, knowledge, ability, and opportunity to conduct this research study. Without His blessings, this work would not have been completed satisfactorily. The authors would like to express their heartfelt appreciation to their mentors, Professor Dr. M. Anisur Rahman and Professor Dr. M. Ahsan Kabir, Department of Law, University of Rajshahi, Bangladesh, for their proper supervision and enthusiastic encouragement. Finally, the authors thank anonymous reviewers and the journal editor for their insightful suggestions and comments that helped to improve the manuscript too.

There is no conflict of interest from the authors end with respect to the research work.