The Constitution of Bangladesh established the Supreme Court of Bangladesh, the country’s apex court, comprising the High Court Division and the Appellate Division in Article 94. The High Court Division hears cases from subordinate courts, and the Appellate Division hears appeals from the judgments, decrees, orders, or sentences of the High Court. The Supreme Court is one court with two divisions located in the capital, and its judges preside over proceedings in “benches.”

Prior to the retrospection, right after assumption of power and suspension of the Constitution by Chief Martial Law Administrator H.M. Ershad in 1982, initially three permanent Benches of the High Court Division at Rangpur, Comilla, and Jessore were established with jurisdiction over all the districts of respective divisions through the Martial Law Proclamation (Second Amendment) Order, 1982. Due to such decentralization of the judiciary, difficulties of people from all walks regarding filing lawsuits, cost of cases, managing litigations, and time were lessened. Subsequently, positive responses from the citizens fuelled the creation of three more permanent Benches of the High Court Division in Barisal, Sylhet, and Chattogram. In contrast, lawyers initiated a movement opposing decentralization due to its hindrance to their interests, such as losing clients, dropping the financial curve, etc.

These permanent Benches were designated as Circuit Benches by an amendment of the Proclamation. On 10November, 1986, martial law was withdrawn and the constitution was restored. All these permanent or circuit Benches were legalized through the Constitution (Seventh Amendment) Act, 1986. However, after issuing some notifications, the then Chief Justice declared these Benches as “sessions” within the meaning of Article 100 of the Constitution, additionally permitting these Benches to function as “permanent” courts. These notifications raised questions about their constitutional validity and added fuel to lawyers’ sustained movement since 1986 against the dismantling of the High Court Division. Justice Mustafa Kamal inscribed that to set at rest the unrest, the Constitution (Eighth Amendment) Act, 1988, was created to confirm the formation and function of permanent Benches of the High Court Division at the same places where Circuit Benches and Sessions were held during the Martial Law period by amending Article 100 of the Constitution.

The part of the eighth amendment that amended Article 100 of the Constitution was challenged in Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Spl.) 1. Anwar Hossain Chowdhury was the Chairman-elect of the Union Council, who filed a writ petition arguing that the constituent power of parliament materially altered the basic structure of the constitution through this amendment. The High Court Division, Dhaka Bench, rejected the petition, which was then followed by an appeal to the Appellate Division. 

The Appellate Division of the Supreme Court, by a majority of 3:1, declared the amendment of Article 100 ultra vires and void on the ground that the High Court Division with plenary judicial power over the Republic was a basic structure of the Constitution, and the amendment having rendered the plenary judicial power of the High Court Division non-existent damaged the basic structure of the Constitution. The Court accepted the argument that the unitary character of the Supreme Court was affected due to the diffusion of the High Court Division. It was successfully contented that the independence of the judiciary as a basic feature was also dismantled.

Justice ATM Afzal, the only dissenting judge, opined that the High Court Division’s plenary power and integrity were unaffected by this amendment. He remarked, “High Court Division has been treated separately in the constitution, and the amendment is just an extension of that treatment.” He further analysed that the impugned amendment belongs to the domain of policy, but the court is concerned with constitutionality, not policy. Affirming with him, Dr. M Jashim Ali Chowdhury, a Lecturer of Law at the University of Hull, quotes, “If the overall objective of the Constitution is ensuring justice for the people, then decentralization of the higher judiciary was definitely a positive step towards that direction. In no sense was the independence of the judiciary, the ultimate basic structure, hampered.”

Many countries adopted different mechanisms to provide service of higher judiciary locally; among them, circuit courts are widely known. Circuit courts or circuit benches refer to temporary or itinerant courts that hold proceedings in various locations for a specific period in a year. These courts may be part of or associated with a high court system or positioned between the subordinate court and the higher judiciary. The primary objective of these courts is enhancing access to justice in remote or underserved areas. In England and Wales, there are six circuits where judges sit in the Crown and County Courts, comprising jurisdiction of civil, criminal, and other matters. Circuit judges, who typically handle cases in the County Courts, can also be assigned to sit as High Court judges in district registries all over the country. The district registry functions as a local branch of the High Court of Justice where High Court cases of civil matters can be issued and heard. 

In Australia, there is a Supreme Court for every state and territory. Moreover, the High Court of Australia, being the highest court in the country, operates registries in different cities to ensure feasible access to the court’s services. The High Court of South Africa is divided into fourteen provincial divisions, each with jurisdiction over that geographical area. Furthermore, the High Court also functions as circuit courts sitting at least twice a year to serve more rural areas. The High Court of New Zealand has 19 court locations throughout the country. In India, there are 25 High Courts, each having jurisdiction over a state or a union territory. Pakistan has five High Courts, each located in the provincial capital.

“The permanent seat of the Supreme Court shall be in the capital, but sessions 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” mentioned in Article 100 of the Constitution of Bangladesh certainly provides a room and foundational basis for circuit bench. But there are currently no circuit benches of the High Court in Bangladesh.

According to the annual report of the Supreme Court of Bangladesh, from 2011 to 2015, the pendency of the consolidated cases with the High Court Division increased from 279436 to 394225, while the disposal of cases reduced from 68912 to 37753. It is reported that one of the major reasons behind this backlog situation is insufficient physical facilities, which includes lack of required courts, unavailability of equipment, etc. Moreover, the High Court Circuit Bench Implementation Council, formed by lawyers from Chattogram, stated that 1.75 lakh of the 28 lakh cases in courts were filed only in Chattogram city. As cases are filed from different corners of the country, thus, to improve this legal logjam, implementing Circuit Bench of the High Court in each division or any suitable mechanism initially may hypothetically somewhat be a progressive catalyst.

It is inconvenient for financially insolvent litigants of remote areas to carry a case in High Court. The obstacles that deprive them from seeking justice include geographical barriers, transportation costs, costly litigation, and so forth. Decentralization of the higher judiciary would be a vital step towards reducing travel burden, efficient case management, effective maintenance of records, speedy disposal of cases, expanding the reach of justice to the door of common people, saving time, and creating a cost-effective environment. 

Recently, Mohammad Easin Arfat Shazzad, an advocate of the Supreme Court of Bangladesh, sent a draft of establishing a “Circuit Court of Appeal” across the country to the Ministry of Law, Justice, and Parliamentary Affairs. It has been evident in different countries that the decentralization of the higher judiciary has played an immense role in making justice accessible to the common people. Either it be a circuit bench or by adopting any mechanism or unique channel, decentralization would create a feasible pathway for masses to seek justice from higher judiciary.