CONSTITUTIONAL LAW

ONLINE CLASS - 06

CHAPTER 10
FUNDAMENTAL RIGHTS & THEIR ENFORCEMENT
10.1. Human Rights
In the primary sense of the term, Human Rights mean those rights
which are inherent in a human person. A human being is entitled to
those rights simply for the reason that he is a human being. That
means that a man takes birth in this earth with certain rights which
form part of his personality and without which he cannot qualify as a
human. Hence, Human Rights have at least two characteristics:
First, these are inalienable. Nobody can negotiate his human
rights for any other worldly gains or consideration; say for example,
his right to life may never be waived;
Second, being inherent in human being, these are not subject of
any state recognition. These rights take birth with mankind. And so
they pre-date the State itself. What a state can at best do is that it can
pledge to protect the human rights in way better than it was protected
earlier. Human Rights are rights not because that State has
recognized them as such. Rather a State becomes a just state when it
respects the human rights. You may or may not have a Constitution
or your constitution may be written or unwritten, your human rights
are always with you. The American Declaration of Independence in
1776 bears testimony to this truth:
We hold these truths to be self evident
that all men are created equal,
that they are endowed by their creator with certain unalienable rights,
that among these are Life, Liberty and the pursuit of Happiness
that to secure these rights, Governments are instituted among men,
deriving their just powers from the consent of the governed, and
that whenever any form of government becomes destructi ve of these
ends, it is the right of the People to alter or abolish it.
The verdict was appealed against and the Appellate Division
(AD) found that the HCD Bench disposing the suo moto rule was
lacking in jurisdiction. As per Section 561A of the Code of
Ciminal Procedure, to take suo moto cognizance of a matter, the
concermed HCD Bench must have a related issue pending before it.
Since there was no such related issue pending before the concerned
Bench, the AD found the Court lacking in jurisdiction. Though it
might have stopped at this stage, the Appellate Division continued
into the merit of the HCD judgment in consideration of the
constitutional implications and importance of the issue before hand.
The Appellate Division confirmed an earlier decision of the
HCD in Khandker Mudarresh Elahi v. Government of Bangladesh
54 DLR 47, "Hartal or strike per se enforced through persuasion
unaccompanied by threat, intimidation, force or violence is a
democratically recognized right of the citizens guaranteed under the
Constitution."" In fact the AD was willing not to explore the way of
defining a new offence which was the job of the legislature.
Separation of power demands some self restraint on the part of the
judiciary. Since the provisions were already there in criminal laws
for legal action against any person for infringement of any law and
order, there was no need to declare such infringements criminal
offences. 27 Again, lest this should be taken as a green signal for
calling hartal, the Appellate Division endeavored further to hold:
We have no hesitation in holding that enforcing hartal by force
leading to violence, death and damage to the life and property of
the citizens is not only illegal but also liable to be detested and
punished as per law of the land in existence. These are already
cognizable offences under the Penal Code and other penal laws of
the land.
So it is accepted that the calling of hartal is not illegal per se. But
given the painful observation of the highest Court it definitely
becomes ill-legal in the sense that it has every potential of infringing
the fundamental right of the people to decide whether to observe it or
not.

10.2. Fundamental Rights

Fundamental rights are those of the human rights which get
specialized treatment by being written down in the constitution or
Some other basic document. The purpose behind such writing down
or enlisting of selected rights is mainly the convenience. The States
want to take some concrete obligation upon it so that at least the
designated or specified human rights get preferential treatment and
the state becomes bound in pen and ink to respect, protect and ensure
the uninterrupted enjoyment of these rights. So the fundamental
rights form a portion of the wide ranging human rights. The Constitution by
inserting a list of fundamental rights in itself enables
an individual to oppose successfully the whole community and the
state to claim his right.
political umbrella, the States around the world follow some political
doctrines. A socialist state usually considers the right to basic
necessities of life as most important and recognizes the surety of a
reasonable standard of life as fundamental. On the other handa
western liberal democratic country considers the civil political rights
In selecting the rights which are to be protected under the State
to be most important.
In Bangladesh we have followed the trend already established in
most of the third world countries. Some rights known as civil
political rights have found place in the constitution in Part III
(Fundamental Rights) while some other rights which are known as
SOcio-economic rights have found place in the Constitution in Part II
(Fundamental Principles of State Policy).

10.3. Fundamental Rights in the Constitution

Part III of the Constitution has accommodated individual as well as
collective rights of the citizens of Bangladesh. A total of 18 rights
have been enlisted and guaranteed. Some of these are absolute and
subject to no restriction. Some of them are qualified and the State
may impose reasonable restriction on them for the sack of public
policy, public health, public morality,. public interest, etc. The Rights
finding place in the Constitution are:
- Equality before law (Article 27)
Discrimination on grounds of religion, etc (Article 28)
 Equality of opportunity in public employment (Article 29)
Right to protection of law (Article 31)
Protection of right to life and personal liberty (Article 32)
Safeguards as to arrest and detention (Article 33)
Prohibition of forced labour (Article 34)
Protection in respect of trial and punishment (Article 35)
Freedom of movement (Article 36)
Freedom of assembly (Article 37)
Freedom of association (Article 38)
Freedom of thought and conscience, and of speech (Article 39)
Freedom of procession or occupation (Article 40)
Freedom of religion (Article 41)
Rights of property (Article 42)
Protection of home and correspondence (Article 43) &
Enforcement of fundamental rights (Article 44)
As per Article 141B, six of these rights, however, may be curtailed
during the continuance ot emergency. These are the rights mentioned
in Articles 36, 37, 38, 39, 40 and 42.

10.4. Sanctity of Fundamental Rights

The fundamental rights have oot a highly emphasized importance in
the Constitution. Article 26 Wih which Part II of the Constitution
starts says:
(1) All existing law inconsistent with the provisions of this Part
shall, to the extent of such inconsistency, become void on the
commencement of this Constitution.
(2) The State shall not make any law inconsistent with any
provisions of this Part, and any law so made shall, to the extent of
such inconsistency, be void.
(3) Nothing in this article shall apply to any amendment of this
Constitution made under Article 142.
Article 26(1)) ensures that no law existing in Bangladesh on the date
of the commencement of the Constitution shall be allowed to remain
in force if it is found to be inconsistent with any of the fundamental
rights mentioned in the Constitution. Article 26(2) enjoins upon the
State the duty not to legislate in violation of any of the fundamental
rights. There is, however, the scope of reasonable restriction which
may be imposed under the Constitution. If any law is made in
contravention of the fundamental rights, that law shall be void to the
extent of inconsistency. At this stage of the discussion what Justice
Munir held in Jibendra Kishore v. Province of East Pakistan 9 DLR
(SC) 21 is worth quoting:
The very conception of fundamental right is that it being a right
guaranteed by the constitution cannot be taken away by the law
and it is not only technically inartistic but a fraud on the citizens
for the makers of a constitution to say that a right is fundamental
but it may be taken away by ordinary law of the land
Article 26(3) however makes it clear that though Parliament cannot
make laws inconsistent with the fundamental rights, it should not
necessarily mean that the Parliament cannot alter, abolish or include
one or more fundamental rights by amending the Constitution itself.
That is why it is provided that the restriction put in clause () and (2)
shall not limit the Parliament's power of amending the Constitution
under Article 142. As a further clarification, Article 142(2) also
provided that 'nothing in Article 26 shall apply to any amendment
made under this Article."
However the 15th Amendment to the Constitution has made the
scenario altogether different. The clause (3), though left untouched
by the 15h Amendment, has lost its significance in the sense that
newly added Article 7B has made the fundamental rights
unamendable. Artivcle 142(2) has been omitted by the 15
Amendment.

10.5. Laws inconsistent with Fundamental Rights

Following are some examples showing how the fundamental rights
are invoked by the Court to invalidate a Law on the ground of
inconsistency with fundamental rights.

10.5.1. Discrimination in absence of guideline

Muhibur Rhaman Manik v Bangladesh & ors 23 BLD (HCD)  264
Druto Bichar Tribunal Ain 2002 (Speedy Trial Tribunal Act, 2002)
was passed in the Parliament to dispose of some grievous criminal
offences on an urgent basis. Section 5 of the Act provides that only
those cases which are transferred by Gazette Notification from the
Court of Sessions or Special Court or from Court of Magistrate to the
Speedy Trial Tribunal shall be tried under this law. As per Section 6
cases relating to offences of murder, rape, fire arms, explosive
substances and drugs may be transferred by the Government in
public interest'
Mr. Muhibur Rahman Manik was a lawmaker in the 7
Parliament from Awami League, the main opposition party in the 8
Parliament. His case was transferred from the trial court to Druto
Bichar Tribunal by the order of the Ministry of Home affairs. Now
in the W/P brought by Muhibur Rahman Manik the vires of Sections
5 and 6 were challenged. The petition was heard and disposed of by
the High Court Division Bench of Md. Hamidul Haque J and Zinat
Ara JJ.
Barrister Amirul Islam argued that while deciding to transfer a
case, there was ample scope of discrimination. In absence of any
guideline prescribed in Section 6, the government got unfettered
power to pick and choose any accused in any case for harassment
which offended the Article 27 equality clause. The Attorney General
Advocate Hasan Arif, however, argued that by the transfer of the
case, the petitioner was not at all discriminated. The procedure to be
followed in the Druto Bichar Tribunal was more or less the same
and the petitioner had no reason to be worried.
While deciding the issue of discrimination, the court emphasized
on the point that the procedure of the Tribunal and ordinary courts
were more or less the same. Discrimination would be established
only if it could be found that accused persons of the same footing or
standing were tried under separate procedure of trial." In this case,
there was no probability of persons committing the same class of
offence facing trial in two different forums under two separate
procedures of trial.
10.5.2. Laws with retrospective operation
Article 35(1) of the Constitution provides for freedom from ex post
facto legislation. It says that a person shall not be punished for an act
which was not regarded as offence at the time of its occurrence, nor
shall he be punished with penalty greater than that might be inflicted
at the time of the occurrence. This means that the State cannot make
a law defining a new crime or imposing a greater penalty and give
the law a retrospective effect covering past incidents.
Sheikh Hasina v. Bangladesh (2008) 13 BLC (HCD) 121
Section 3(3a) of the Emergency Powers Ordinance (EPO) 2007
empowered the government to initiate special measures to conduct
effectively and speedily any investigation, trial, and appeal regarding
auny offence during the continuance of Emergency. It also provided
that any by-laws made in this regard (in this case the Emergency
Powers Rules) may be given retrospective operation. Accordingly.
Rule 19E of the Emergency Power Rules (EPR) provided that the
government may place within the ambit of EPR any case concerning
offences under certain laws.
The petitioner, a former Prime Minister, challenged the legality
of a governmental order putting within the purview of the EPR, the
trial of a criminal charge against her involving allegations that
precede the promulgation of emergency.
governmental action was that Sheikh Hasina was effectively
The effect of this
deprived of the right to seek bail.
The HCD found the language of the EPO 'clear and
unambiguous' and concluded that it did not clearly authorize trial of
offences committed before the promulgation of Emergency. The
Court relied on the prohibition of ex post facto laws in Article 35(1)
of the Constitution to hold that that the retrospective operation of the
EPR to conduct trial of pre-Emergency offences was unlawful.
On appeal in Bangladesh v. Sheikh Hasina," however, the AD
followed quite a different path. Based on the mere text of Article 35
(1) of the Constitution, it found that the prohibition as to operation of
ex post facto laws concerned only with 'conviction or 'sentence',
not the 'trial of the offence concerned. It argued that since the
government applied the EPR only for the purpose of trial of an
offence and did not create any new offence in retrospection, the rule
against ex post facto laws was not violated.'

10.6. Enforcement of Fundamental Rights

Article 44 of the Constitution guarantees the right to move the High
Court Division in accordance with Clause (1) of Article 102 for the
enforcement of fundamental rights. Under clause l of Article 102
the High Court Division may issue directive or order against 'any
person or authority including any person performing any function in
connection with the affairs of the Republic' for the enforcement of
fundamental rights guaranteed in Part IlI of the Constitution.
As an additional benefit, a citizen is entitled to the benefit of writ
urisdiction under Article 102(2) of Constitution which may or may
not involve a claim of fundamental rights. Here the High Court
Division exercises its power of judicial review by issuing writs in the
nature of prohibition, mandamus (do it), certiorari (lack or excess of
jurisdiction) and quo warranto against the concerned public
functionaries and a writ of habeas corpus [have the corps (body)
before us (Court)] against anyone, including a private individual, if
there is a violation of any relevant provision of the Constitution.

10.7. Reasonable Restriction on Fundamental Rights

Absolute or unrestricted fundamental rights do not and cannot exist
in any modern state. Since the disappearance of laissez fare and the
emergence of the welfare state, it is generally acknowledged that the
individual can have no absolute or unfettered right in any matter and
the welfare of the individual. As a member of the collective society,
lies in hapPPy compromise between his rights as an individual and the
interests of the society to which he belongs. There is a measure of
control and the regulation of the right of each individual in the
interests of all.
The right to determine the reasonableness of the restriction vests
in the court and it requires no mention that there can be no absolute
test of reasonableness which would be applicable to all
circumstances. It is now settled that restriction imposed under anyof
the limitation prescribed in constitution or law in order to be valid
must be proximately related to the object which the legislature seeks
to achieve.

10.7.1. Restriction on Freedom of Religion

Dewanbagh Darbar Sharif v. Bangladesh 7 MLR (HC) 309
A serious clash arose between the Dewan Bagh devotees and the
Islami Shashantantra Andolan of the Pir Shaheb Charmonai.
Dewanbaghis claim to practice Sufism in their own way which is
anti-islamic in the eyes of the Pir Shaheb Charmonai. During 1999
on the eve of Ahsekey Rasul Shammelon the followers of Pir Shaheb
Charmonai declared to take possession of the Dewanbagh premises
and went in action. A violent clash brook out between the two rival
factions resulting in death of several people including the damage to
the government and private property. Police entered the Dewanbagh
premises and drove away the rival factions. Thereafter for a long
period of two and half years the devotees of Dewanbagh were not
allowed to enter the premises to perform their religious ceremonials
on the excuse that allowing them to enter there would result in law
and order situation. Pir of Dewanbagh brought a writ petition in the
High Court Division arguing that though the government may put
reasonable restriction on the right to religion under Article 41 of the
constitution, it cannot altogether prohibit the right. The government
argued that still there was commotion in the area and if the petitioner
along with his devotees was allowed to enter the campus there would
be serious clash again.
Interpreting the Article 41, the Court held that the enjoyment of
fundamental rights as mentioned in sub-clauses (a) and (b) of clause
(1) of Article 41 may be restricted by any law or order on ground of
public order and morality. But any such restriction must be
reasonable. What is reasonable may depend on the facts and
circumstances under which such restriction is imposed. Such
restriction may be imposed to regulate the activities of a religious
group. However, a total prohibition on religious activites may be
imposed only in extreme cases." Since this two and half years
restriction amounted to a total ban on religious activity, the Court
ordered the government to allow the devotees to enter the
Dewanbagh Sharif. Had there been any law and order concern, the
government was to be ready to tackle it by the help of law and order
force.

10.7.2. Publication attacking the religious sentiment

Bangladesh Anjumane Ahmadia v. Bangladesh 45 DLR  185
In this case a book titled Islanm-e-Nabuat published by the Ahmadia
Muslim Jamat contained the argument that Prophet Hazrat
Mohammad (Sm) was not the last Prophet and there may be further
revelation in future according to the promises of Allah. As a
fulfillment of that promise, Allah sent Hazrat Miraza Golam Ahmad
in the first part of 1400 Hiziri as Prophet to rescue the mankind.
Considering the religious sensitivity it may create in the public mind,
the government confiscated the copies of the book and prohibited its
marketing.
challenging the decision of the govt., the petitioner claimed that they had freedom of
religion and expression as per
Articles 41 and 39." Justice Sultan Hossain Khan argued that bulk of
the Muslims in Bangladesh are devoted to their beliefs and have
Cem faith and beliet that the Prophet Hazrat Muhammad (SM) is the
ct nrophet and AlQuran is the last book of revelation and that there
al be no prophet after him. The book being outrageous and
ffensive to their feelings, the government was justified in putting
rpctriction over the freedom of expression of the petitioner.

10.7.3. Reasonable restriction on Freedom of Association

Oli Ahad v. Govt. of Bangladesh 26 DLR  (1974) 376
Section 144 CrPC empowers the District or Local Authority,
representing the executive organ of the State, to make prohibitory
orders having the effect of restricting the exercise of a fundamental
right in an emergency as a temporary measure. This may be for
preventing certain nuisance, danger to human life or health.
disturbance of the public tranquility, a riot or an affray.
The Sarbadaliya Oikya Front decided to hold a meting on 30
June 1974 in Paltan Maidan. The Government declared Section 144
in the area prohibiting all public procession, meeting and gathering
until further order. Oli Ahad, a leader of the Front, challenged the
order on the ground of mala fide. Dr. Aleem-Al-Razee appearing on
behalf of Oli Ahad made a 'half-hearted' attempt to challenge the
constitutionality of Section 144 CrPC itself." The Court comprising
Justice DC Bhattacharya and Justice A R Chowdhury held:
Having regard to the fact that the object of prevention of the
apprehended danger to human life, disturbance of the public
tranquility, riot or an affray is closely allied to the interests of
public order, we are of opinion that the restriction on the individual
Tignt as contemplated in.. .section 144(1) cannot be said to be
unreasonable and as such the aforesaid provision of the Code
cannot be held to unconstitutional.
HOwever on the specific incident of declaring Section 144 CrPC in
Paltan Maidan, the Court tested whether it was a reasonable
restriction or not:
The Magistrate charged with the duty of exercising such power is
therefore required to state the material facts on the basis of which
the formation of the opinion has been made, and it is for the court
to see whether the preventive action curbing the fundamental right
is reasonable in the interest of the Public Order.

10.7.4. Search without warrant

Govt of Bangladesh v. HM Ershad 52 DLR (AD)  162
HM Ershad was ousted from the presidency on 6.12.1990 and his
belongings in the Sena Bhaban were handed over to his authorized
agent. The agent kept those articles including a Jeep in an almost
abandoned house. In the mean time Ershad was convicted on
corruption charge and during the pendency of his appeal, the
government on 07.05.92 raided that house, seized those articles
including the Jeep. Thereafter HM Ershad filed a petition where he
pleaded the violation of his fundamental right to be free from entry
and search and seizure. The High Court Division upheld his
contention in light of Article 43(a) of the Constitution.
The government filed a leave to appeal petition against the order
of the High Court Division. In the Appellate Division, Additional
Attorney General Mahbubey Alam claimed that by entry and seizure
no fundamental right of the petitioner was violated. That was
indirectly to say that state had a right to enter the premises of private
person as a matter of course." However he failed to show any
warrant of search and seizure before the court.
The Court held that in absence of any warrant the raid conducted
and articles seized belonging to the petitioner was violative of
Article 43(a) of the constitution. Only a search conducted with a duly
issued search warrant by a competent Court under Section 96 CrPC
could be a reasonable restriction on the rights enumerated in Article
43(a) of the Constitution.

10.1.5. Right to privacy regarding property or wealth

Tarique Rahman v. Anti Corruption Bureau 52 DLR (HCD)  518
The petitioner, the Senior JOint Secretary of Bangladesh Nationalist
Darty (BNP) was called upon, under Section 4 of the Anti Corruption
Act 1957 to supply his wealth statement. The petitioner challenged
uires of Section 4 of the Act, among others on the ground of being
contrary to Article 35(4). Rejecting the contention the court held:
There is no fundamental right to privacy or secrecy in respect of
property and wealth of a person and therefore calling upon the
petitioners to submit statement of their properties does not violate
any fundamental right guaranteed by the Constitution. The
petitioners by the impugned notices have not been accused of
possessing properties disproportionate to their known source of
income. Therefore they cannot be said to interfere with the
fundamental right guaranteed by Article 35(4) of the
Constitution.
10.7.6. Fundamental Right to call Hartal?
Abdul Mannan Bhuyian v. State 60 DLR (AD) 49
A Division Bench of the High Court Division issued a suo moto rule
in 1999 asking the Secretary Generals of AL and BNP and the
Government of Bangladesh to show cause as to why the pro-hartal
and anti-hartal activities being cognizable offence should not be
stopped." Barrister Md Shawkat Ali Khan and Barrister Md.
Jamiruddin Sarker were requested to brief the Court as amicus curie.
The Secretary General of BNP appearing before the Court submitted
that hartal was a historically recognized democratic right of the
people to express their disapproval of governmental activities. The
High Court Division made its role absolute by declaring violence and
coercion for or against hartal a criminal offence. Interestingly,
nowhere in the judgment, calling for a hartal was declared
unconstitutional. The stare decisis of the judgment was that all
activities in favor or against the hartal were cognizable criminal
offence and accordingly the law enforcement agencies and courts
were bound to take legal action against those who would force
anybody in favor or against hartal.
The verdict was appealed against and the Appellate Division
(AD) found that the HCD Bench disposing the suo moto rule was
lacking in jurisdiction. As per Section 561A of the Code of
Ciminal Procedure, to take suo moto cognizance of a matter, the
concermed HCD Bench must have a related issue pending before it.
Since there was no such related issue pending before the concerned
Bench, the AD found the Court lacking in jurisdiction. Though it
might have stopped at this stage, the Appellate Division continued
into the merit of the HCD judgment in consideration of the
constitutional implications and importance of the issue before hand.
The Appellate Division confirmed an earlier decision of the
HCD in Khandker Mudarresh Elahi v. Government of Bangladesh
54 DLR 47, "Hartal or strike per se enforced through persuasion
unaccompanied by threat, intimidation, force or violence is a
democratically recognized right of the citizens guaranteed under the
Constitution."" In fact the AD was willing not to explore the way of
defining a new offence which was the job of the legislature.
Separation of power demands some self restraint on the part of the
judiciary. Since the provisions were already there in criminal laws
for legal action against any person for infringement of any law and
order, there was no need to declare such infringements criminal
offences. 27 Again, lest this should be taken as a green signal for
calling hartal, the Appellate Division endeavored further to hold:
We have no hesitation in holding that enforcing hartal by force
leading to violence, death and damage to the life and property of
the citizens is not only illegal but also liable to be detested and
punished as per law of the land in existence. These are already
cognizable offences under the Penal Code and other penal laws of
the land.
So it is accepted that the calling of hartal is not illegal per se. But
given the painful observation of the highest Court it definitely
becomes ill-legal in the sense that it has every potential of infringing
the fundamental right of the people to decide whether to observe it or
not.

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