Only two years after the Constitution came into force, an advocate challenged the 1974 Land Boundary Agreement with India. He lost on timing, but the Appellate Division’s approach to standing opened the door to public interest litigation in Bangladesh.
Kazi Mukhlesur Rahman v Bangladesh (1974): The Berubari Case and the Birth of Public Interest Standing
29th Sep 2026, author: admin
| CASE AT A GLANCE | |
|---|---|
| Citation | (1974) 26 DLR (SC) 44 |
| Court | Appellate Division, Supreme Court of Bangladesh |
| Bench | Sayem CJ (author), Mahmud Hossain, Abdullah Jabir and Ahsanuddin Chowdhury JJ |
| Year | 1974 |
| Outcome | Appeal dismissed as premature; petitioner's standing accepted; cession of territory held to need legislative sanction. |
ARTICLE TEXT
Few cases in Bangladesh’s legal history have had so much influence while losing on their own facts. Kazi Mukhlesur Rahman v Bangladesh, decided by the Appellate Division in 1974, arose from the first great constitutional controversy of the new Republic: whether the government could give part of the country’s territory to India by treaty. The petitioner did not win. But the way the court dealt with his right to be heard laid the foundation on which public interest litigation in Bangladesh was later built.
The Background
On 16 May 1974, the Prime Ministers of Bangladesh and India signed the Land Boundary Agreement, often called the Mujib–Indira Agreement, to settle long-standing problems on the border left by Partition. Under the agreement, Bangladesh would give up its claim to the southern half of Berubari Union No. 12, an area of about 2.64 square miles. In return, Bangladesh would keep the enclaves of Dahagram and Angarpota, and India would lease the Tin Bigha corridor to Bangladesh so that those enclaves could be reached from the mainland.
Kazi Mukhlesur Rahman, an advocate, filed a writ petition challenging the agreement. The High Court Division rejected it summarily but certified that the case involved a substantial question of constitutional law, which allowed an appeal to the Appellate Division under Article 103(2)(a).
The Issues
The Appellate Division had to decide two main questions. First, could an ordinary citizen, who did not live in Berubari and had no property there, challenge the agreement at all? In other words, did he have locus standi, the legal right to bring the case? Second, could the executive government give away territory by treaty without the approval of Parliament?
The Decision
The court, speaking through Chief Justice ASM Sayem, dismissed the appeal unanimously on the ground that it was premature. The agreement had not yet been ratified, and until ratification and the exchange of instruments it had no legal effect. There was, as yet, nothing for the court to strike down.
On standing, however, the court took a generous view. It held that the question of locus standi is not a rule of jurisdiction but a matter of the court’s discretion. Where a case raises a constitutional issue of grave importance, the court may hear a citizen who is not personally affected in the traditional sense. The court also noted that every citizen has the right under Article 36 to move freely throughout Bangladesh and to reside and settle in any part of it. A transfer of territory could therefore touch the rights of all citizens, not only those living in the area.
On the second question, the court accepted that making treaties is an executive function. But it recognised that an agreement involving the cession of Bangladeshi territory could not be carried out by executive action alone. It needed legislative sanction, because Article 2 of the Constitution defines the territory of the Republic.
The Aftermath
Parliament responded quickly. The Constitution (Third Amendment) Act 1974, passed in November 1974, amended Article 2 to give effect to the agreement. Full implementation, however, took four decades. The exchange of enclaves between the two countries was finally completed in 2015, after India passed its own constitutional amendment.
Why It Matters
The case matters for three reasons. First, it established early that treaties affecting the territory of the Republic are subject to the Constitution, and that the executive cannot bypass Parliament on such questions. Second, it showed the Appellate Division’s willingness to decide constitutional questions at the right time, refusing to rule on an agreement that had not yet taken effect. Third, and most importantly, its treatment of standing as a flexible, discretionary rule gave later judges the doctrinal basis they needed. When the Appellate Division expanded the meaning of “person aggrieved” in Dr Mohiuddin Farooque v Bangladesh in 1996, it looked back to Kazi Mukhlesur Rahman as its starting point.
For law students, the case is a reminder that a judgment’s lasting value often lies in its reasoning rather than its result. A petitioner who lost his appeal gave Bangladeshi citizens a way into court that thousands have used since.
Sources
- vLex, Kazi Mukhlesur Rahman v Bangladesh: https://vlex.com/vid/kazi-mukhlesur-rahman-v-870079617
- Judgment review (Shishir Manir): https://static.shishirmanir.com/uploads/store/judgmentreview/1b36a419-0738-42d8-9552-72a71dc836b6/document/c10a1914b4bca8971319bca0bc9494cd.pdf
- IISTE, article on the Berubari case and the Third Amendment: https://www.iiste.org/Journals/index.php/IAGS/article/download/26379/27014
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