On July 11, 2024, the High Court Division (HCD) released the full text of its significant ruling from August 3, 2023, in the case of Zakir Hossain vs. The State (Criminal Appeal No. 3043/1991). In this ruling, the HCD acquitted Zakir Hossain of smuggling charges, overturning his three-year jail sentence imposed by the trial Court. The case was initially filed by Border Guard Bangladesh (BGB) in 1987 after allegedly Indian saris were seized from Zakir Hossain’s house during a bust near the Jashore border.  But later, it was proven that according to section 2(a) of  The Record of Jute Growers (Border Areas) Act, 1974, the BGB exceeded their jurisdiction and searched his home beyond that area.  He was acquitted because the BGB exceeded their authority, making the case not maintainable.

One interesting point about this judgment is that the country’s apex Court suggested border security and land management to Parliament. Though, with noble intentions, some observations in the case are remarkable. During the judgment, the honorable HCD told the Parliament to declare a specific stretch of land along the border as property of the Border Guard Bangladesh (BGB). The Court stated that a 10-kilometre buffer zone should be inside Bangladesh’s borders as state property under BGB’s jurisdiction to improve national security. The Court further observed that private property owners affected by this decision would receive compensation for government-owned properties of equal value. The ruling also reserves the 8–10-kilometer zone for BGB training facilities and their operational missions. This advice appeared to be directive and was not an issue; they are in obiter.

However, the suggestion to declare a 10-kilometre buffer zone as BGB property raises practical and legal questions. Creating a buffer zone, per the directions of the Court, would surely take away the property rights of the landowners in the said zone. It would have been beneficial if the High Court Division had elaborated more on these critical questions, as the rationale behind the judgment appears questionable. While trends in border security are undoubtedly crucial, the creation and operation of the buffer zone, along with handling land acquisitions, may present numerous feasibility issues. These issues would require the involvement of policymakers and law enforcement agencies. Decisions about border management involve complex geopolitical considerations, typically addressed through extensive legislative debates and executive actions, alongside expert advice and public discourse, which has not been adequately contemplated in this scenario.

The Court’s suggestion to establish a 10-kilometer buffer zone as BGB property reflects judicial activism as it implicates discussing policy matters beyond the immediate legal dispute, possibly overstepping traditional judicial boundaries. Judicial activism is a judicial philosophy in which Courts go beyond the letter of the law to address broader societal implications. It often reflects personal views that go beyond strict legal texts or precedents. An example of judicial activism is the United States Supreme Court’s decision in Roe v. Wade, in which the Court extended the right to privacy beyond existing precedents to address broader reproductive rights issues. In countries where judicial activism is more pronounced, such as India, the judiciary maintains a cautious approach to policy formulation. Look at a recent Supreme Court of India (SCI) judgment in Small Scale Industrial Manufacturers Assn. v. Union of India (2021); the SCI said that Courts should refrain from interfering with government policies unless considered arbitrary and unconstitutional. Judicial intervention is warranted only when arbitrary policies violate constitutional, statutory, or legal provisions.

Now, let’s look at this decision from HCD of Bangladesh from the perspectives of jurists like Alexander Bickel and Ronald Dworkin. Alexander Bickel advocated for judicial restraint. He argued that to preserve democratic processes and legislative authority, judges should practice self-restraint to uphold the judiciary’s credibility and respect the separation of powers within government. In contrast, Ronald Dworkin proposed a more expansive role for judges. He contended that judges interpret laws following moral and political principles, ensuring they align with fundamental rights and constitutional values. Dworkin’s viewpoint supports judicial activism to shape laws and policies that uphold these core principles. The HCD’s recommendation to establish a 10-kilometre buffer zone as BGB property reflects a departure from conventional judicial roles. Given this context, it is evident that the judge in this case aligns more closely with Dworkin’s perspective.

This directive spurs dialogues about its alignment with democratic governance and legislative authority. Many democratic societies, which have arguably one of the most potent Courts, typically exercise caution and refrain from intervening in policy matters unless there are clear constitutional or legal violations. This cautious approach differs from the more direct and assertive intervention seen in this directive from the Court. Although the Bangladesh High Court Division’s judgment may have stemmed from valid national security and law enforcement concerns, the approach and consequences of its directives to Parliament present challenges. Effective governance requires balancing judicial activism and respect for legislative authority.