For the families of those over 700 who went missing under Hasina’s 15 years rule, the legal vacuum only aggravates a psychological wound. Families are consistently experiencing prolonged grief, PTSD, and ambiguous loss, which the International Convention for the Protection of all Persons from Enforced Disappearance (ICPPED) acknowledges as forms of trauma in Article 24, defining family members also as victims. This blog contends that constitutional tort remedies under public law can be followed for judicial recognition of that harm.

The Legal Vacuum

Bangladesh signed up to the ICPPED in August 2024, but there is no national law that criminalises forced disappearance. However, the Constitution supplies the building blocks of a remedy. Articles 44 and 102 create the enforcement mechanism: Article 44 guarantees the right to move the High Court Division (HCD) to enforce fundamental rights, and Article 102 vests it with writ jurisdiction over the State. The substantive rights lie in Part III, principally Article 27 (equality before the law), Article 31 (protection of the law) and Article 32 (life and personal liberty).

In practice, this route is only partially effective. In habeas corpus petitions by families of the disappeared, the HCD has often confined itself to directing police to trace the missing person, declining to find State responsibility or award compensation where security agencies are the alleged perpetrators, treating the petitions as unresolved missing-person inquiries rather than proven violations. The UN Working Group on Enforced or Involuntary Disappearances’ June 2025 study visit highlighted this structural issue.

Public Law Torts and State Accountability

A public law tort is a claim, brought under constitutional writ jurisdiction rather than ordinary private law, in which the court awards compensation against the State for breaching fundamental rights. In DK Basu v State of West Bengal 1997 (1) SCC 416, the court ruled that ‘custodial torture and illegal detention were actionable through constitutional writs, independent of criminal liability.’ The Bangladesh HCD adopted the same reasoning in CCB Foundation v State of Bangladesh (2017), where a child died after falling into an uncovered pipe. The HCD held that this violation of the right to life under Article 32 of the constitution was a public law tort and awarded compensation directly against the State.

The doctrine applies squarely to enforced disappearance, which engages the rights to life and liberty, the protection of the law (Art 31), and equal protection (Art 27). It also differs usefully from an ordinary rights petition. A habeas corpus claim asks only that the body be produced. A constitutional tort claim asks the court to find that a violation occurred and to award compensation. That is why it is more likely to be enforced. Most importantly, it acknowledges the mental anguish suffered by family members as a compensable injury.

International Jurisprudence: Legal Recognition of Psychological Harm

International courts have solidly established that psychological damage inflicted by the State during the disappearance is a legal injury. The InterAmerican Court of Human Rights in Velásquez Rodríguez v Honduras (1988) held that ’the victim’s family was entitled to reparations for the crime of enforced disappearance, and that delayed claims can be pursued.’ In Bazorkina v Russia (2006), the European Court of Human Rights also found that the mental anguish arising from the disappearance was covered by Article 3 of the ECHR, and awarded damages to the mother of the disappeared detainee.

These precedents provide a basis for a framework where Bangladesh’s judiciary can hold the state accountable for enforced disappearance as a violation of fundamental rights (under sections 27, 31, and 32 of the Constitution). Rather than declaring a breach of fundamental rights, the public law tort doctrine allows the court to award compensation for state abuse of powers and psychological harms. The judiciary will likely be more willing to apply this doctrine because of evidentiary issues and the unequal sides of the state and the victims.

Conclusion: Civil Remedies as a Form of Recognition

It is now more important than ever to intervene in the lapsing of the Ordinance. While the legislature has been stalled and the BNP-led government has committed itself to introducing a revised bill at a future date, families may have only one legal avenue available to them at present for seeking recognition and redress: the tort claims route. However, civil remedies cannot take the place of criminal accountability.

Therefore, where prosecutions continue to stall in the political realm, a doctrine of “constitutional tort” found in Bangladeshi, Indian, and international precedent gives the judiciary an opportunity to establish what international law already recognizes: that enforced disappearance causes harm to not only the victim, but also to the families.

Section 8(1)(j), as it stood for two decades, was never a blank cheque for disclosure. Whether the context was a widow was asking why her husband’s provident fund was withheld, a journalist tracking how a government contract was awarded, or an applicant wanting to know why her application was rejected, the section housed a crucial safeguard. This was in the form of an Information Officer tasked in each case with answering the question: does the public interest here outweigh the privacy cost? That requirement, to actually think about the balance between access to information and the protection of privacy, was the point.

Section 44(3) of the DPDP Act brought into force in November 2025 has removed that safeguard from the statute. The new Section 8(1)(j) exempts from disclosure “information which relates to personal information.” There is no balancing exercise. Section 8(1)(j) now allows information offices of the government to withhold information that is deemed ‘personal’ even if it has significant connection to a public activity or public interest. There is no public interest override built into the clause itself.

The government will likely argue that Section 8(2) still allows for disclosure in the public interest. But Section 8(2) vests that discretion in the public authority as an institution, not in the Information Officer sitting across the counter from you. The Constitution Bench in CPIO, Supreme Court of India v. Subhash Chandra Agarwal was clear that Section 8(2) does not create an enforceable right to disclosure in the first instance; it only permits disclosure at a later stage where the public authority decides that the larger public interest justifies it. In practice, this means that the override exists on paper but not in the room where an RTI application is actually decided. Even if Section 8(2) still permits disclosure in theory, making the override more restrictive means the default shifts toward non-disclosure, so it becomes a practical basis for denying information altogether unless the applicant can clear a much higher threshold of public interest.

This matters constitutionally for two reasons. First, the right to information is part of free speech under Article 19(1)(a) and, under Article 14, it is difficult to justify a law that treats a politician’s appointment file the same way it treats someone’s medical record. The amended RTI clause now uses the term “personal information” without explaining what it means, and it removes the public-interest balancing test that once kept the provision in check. Read with the DPDP Act’s broad definition of personal data, this gives public authorities room to withhold far more than truly private material, including routine records of public administration.

Secondly, the Supreme Court in K.S. Puttaswamy v. Union of India held that restrictions on fundamental rights must be proportionate. Further, in the context of Article 21 of the Constitution of India, the Court clarified that any invasion of privacy must be sanctioned by law and must follow a procedure that is fair, just, and reasonable.

Parliament already had a court-approved, less restrictive alternative: the old balancing clause. It did not need to invent a new answer. It chose to delete the old one. That is what makes the amendment constitutionally vulnerable. The amendment is not a proportional restriction on the right to information as it nullifies the right in respect of personal information in the hands of public authorities, even if that information may serve a public interest in holding the government accountable.

What has been lost is not a technicality. It is the legal acknowledgment that privacy and transparency are not enemies. They are, as Banisar put it, twin instruments of accountability, pulling in the same direction most of the time. The old Section 8(1)(j) held both values together. The new forfeits accountability in valorising privacy. The amendment violates Article 14 and 21 of the Constitution of India because it restricts the right to information in a disproportionate and unreasonable manner, for the ostensible purpose of protecting personal information and the right to privacy.

As of early 2026, nearly a quarter of U.S. states have engaged in some form of mid-decade redistricting in anticipation of the 2026 congressional race. Texas, at the behest of the Trump Administration, acted first this past summer, and California responded in kind via popular referendum. And just this month, the Supreme Court let the California maps stand (as it did last December for the Texas maps). According to the National Conference of State Legislatures, twelve other states made mid-decade changes to their congressional maps – a number of those specifically for gaining partisan advantage.

Opening the door to rampant, legislature-initiated mid-decade redistricting allows politicians to openly redesign districts in anticipation of specific elections to maintain power rather than waiting for the decennial census to redistrict. There is no federal constitutional or statutory rule limiting the frequency of redistricting. And the fact that the Rucho decision prevents federal courts from hearing partisan gerrymandering claims leaves states nearly unconstrained around the when and why of redistricting, at the expense of voters’ voices.

Modern mid-decade redistricting is rare. Lawsuits under the VRA or other state or federal law may require the redrawing of districts. However, most states over the twentieth and early twenty-first centuries limited redistricting on their own initiative to once a decade, after the constitutionally required decennial census. This allows the districts drawn to reflect the electorate – the people – who then elect their representatives. Redistricting mid-decade to force a partisan advantage likely shifts a state’s representation away from the state’s partisan balance, thus ensuring that the congressional delegation fails to reflect the partisan makeup of the voters.

Moreover, engaging in redistricting only once per decade allows that decade for the voters to dictate the interests of their politicians (or remove unresponsive politicians) rather than letting politicians (re-)create districts suitable for their re-election. This promotes the ultimate accountability that voters expect in a democracy. That said, it is legal for politicians in power to draw districts within the once-a-decade process to protect their own political interests (unless state law forbids it). But the ten-year window sets the expectations of competition in a district and prevents the opportunism that can be spurred by shifting voter views.

This movement towards unfettered partisan gerrymandering is intertwined with the constitutional and statutory rules prohibiting gerrymandering on the basis of race – now, the only federal constraints on redistricting. Section 2 of the VRA prevents racial vote dilution. The Court, in Shaw v. Reno in 1994 and three decades of case law thereafter, has interpreted the Constitution to prevent state legislatures from making race the predominant reason for drawing a political district.

But even this doctrine is shifting towards deference to elected legislatures’ preferences, as illustrated by the current redistricting debacle. In Texas, after rejecting the Trump administration’s political argument for mid-decade gerrymandering, the Trump Department of Justice argued to Texas that its congressional maps contained unconstitutional racial gerrymanders. Only then did Texas engage in mid-decade redistricting. Despite a district court order enjoining the 2025 maps as racial gerrymanders, the U.S. Supreme Court, in Abbott v. League of United Latin American Citizens, overruled that finding on the grounds of deference to the state and let the maps proceed for the 2026 election. In California, after Proposition 50 passed, California Republicans and the U.S. Department of Justice sued California in Tangipa v. Newsom, alleging that the Proposition 50 maps were racial gerrymanders because they focused on “Voting Rights Act districts.” The lower federal court rejected the argument for a preliminary injunction, and the Supreme Court, without comment, allowed the lower court ruling to stand. Thus, both Texas and California’s mid-decade gerrymanders may go forward for the 2026 congressional election.

The new normal is that the doctrines designed to prevent impermissible racial segregation in elections are now used as proxies for the fight over partisan gerrymandering. But the Court’s increasing deference to state legislatures regarding racial gerrymandering claims is limiting the ability of these doctrines to be a check on gerrymandering. This shift is poised to increase further as the Court reconsiders Section 2 of the VRA and its applicability to redistricting disputes in Louisiana v. Callais.

While considering the consequences of Callais for race and redistricting merits its own discussion – to come in a subsequent blog post — suffice it to say here that this trend towards partisan, mid-decade redistricting nearly absent judicial guardrails sets a dangerous precedent for decades to come.  It risks furthering partisan manipulation and political entrenchment that makes voters a means for politicians’ ends, rather than allowing voters the authentic opportunity to hold politicians accountable. And the preference for such legislative discretion may serve to hollow out the core of political civil rights doctrine: the protection of the people from political racial segregation.