Article 23.

National culture- The State shall adopt measures to

conserve the cultural traditions and heritage of the people, and
so to foster and improve the national language, literature and the
arts that all sections of the people are afforded the opportunity
to contribute towards and to participate in the enrichment of the
national culture.

National culture means the set of norms, behaviors, beliefs and customs that
exist within the population of a sovereign nation. The word ‘culture’ has
three meanings: Literally it means tilling the soil: cultivation. Metaphorically
the word is used for the training or refining of the mind: civilization.
However, in the past decades a broader metaphorical meaning has become
popular, derived from anthropology: collective ways of acting, thinking, and
feeling. ‘Culture’ in this sense is “the collective programming of the mind
that distinguishes the members of one group or category of people from
others”.

Article 23A. The culture of tribes, minor races, ethnic sects and
communities- The State shall take steps to protect and develop
the unique local culture and tradition of the tribes, minor races,
ethnic sects and communities.

An ethnic group or ethnicity is a named social category of people who

identify with each other on the basis of shared attributes that distinguish
them from other groups such as a common set of traditions, ancestry,
language, history, society, culture, nation, religion, or social treatment
within their residing area. Ethnicity is sometimes used interchangeably with
the term nation, particularly in cases of ethnic nationalism, and is separate
from, but related to the concept of races.

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Ethnicity can be an inherited status or based on the society within which one
lives. Membership of an ethnic group tends to be defined by a shared
cultural heritage, ancestry, origin myth, history, homeland, language or
dialect, symbolic systems such as religion, mythology and ritual, cuisine,
dressing style, art or physical appearance. Ethnic groups often continue to
speak related languages and share a similar gene pool.

The term tribe is used in many different contexts to refer to a category of

human social group. The predominant usage of the term is in the discipline
of anthropology. The definition is contested, in part due to conflicting
theoretical understandings of social and kinship structures, and also
reflecting the problematic application of this concept to extremely diverse
human societies. The concept is often contrasted by anthropologists with
other social and kinship groups, being hierarchically larger than a lineage or
clan, but smaller than a chiefdom, nation or state. These terms are equally
disputed. In some cases tribes have legal recognition and some degree of
political autonomy from national or federal government, but this legalistic
usage of the term may conflict with anthropological definitions.

Article 24. National monuments, etc.- The State shall adopt

measures for the protection against disfigurement, damage or
removal of all monuments, objects or places of special artistic or
historic importance or interest.

Definition of national monument: a place of historic, scenic, or scientific

interest set aside for preservation usually by presidential proclamation

Article 25. Promotion of international peace, security and

solidarity- The State shall base its international relations on the
principles of respect for national sovereignty and equality, non-
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interference in the internal affairs of other countries, peaceful
settlement of international disputes, and respect for
international law and the principles enunciated in the United
Nations Charter, and on the basis of those principles shall –
(a) strive for the renunciation of the use of force in international
relations and for general and complete disarmament;
(b) uphold the right of every people freely to determine and
build up its own social, economic and political system by ways
and means of its own free choice; and
(c) support oppressed peoples throughout the world waging a
just struggle against imperialism, colonialism or racialism.

Under this Article, promotion of international peace, security and solidarity

of the Government of Bangladesh with other countries particularly with
Muslim countries are to be maintained and strengthened.

In the case of Saiful Islam Dilder V. Bangladesh, 50 DLR-318,

A.M.Mahmudur Rahman,J. interpreted Article 25 of the Constitution and
opined that fundamental principle of State Policy cannot he enforced by
court, nevertheless the fundamental principles of State Policy is fundamental
to the governance of Bangladesh, and serve as a tool in interpreting the
Constitution on the strength of Article 8(2) of the Constitution. Paragraph 6
of the decision reads as follows:
"The learned Advocate relying upon Article 25 of our Constitution
contended that Anup Chatia, if extradited to India the government
would violate the mandate of Article 25. The contention on the facts
of this case is totally misconceived. Rather the Government can take
help of Article 25 for the purpose to extradite Anup Chatia to Indian
Authority in order to base its international relations on the principle

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 of respect for national sovereignty and equality, non-interference in
the internal affairs of other countries."

Article 26. Laws inconsistent with fundamental rights to be void-

(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.

Art.26 provides that all existing laws inconsistent with the fundamental
rights as provided in Part III shall to the extent of the inconsistency become
void on the commencement of the Constitution and the State shall not make
any law inconsistent with those rights.

Right means a claim of some interests adversed by an individual or a group

of individuals which has either moral or legal basis and which is essential
for his development in the society.

Rights are primarily divided into two categories moral rights and legal
rights. Moral rights are those rights which have their basis on the rule of
natural justice and the violation of which results in moral wrong. Legal
rights, on the other hand, are those rights which are recognised by the
positive law of country and can be claimed on legal basis and the violation
of which results in legal wrong.

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Fundamental Rights:
The term fundamental right is a technical one, for when certain human rights
are written down in a Constitution and are protected by constitutional
guarantees they are called fundamental rights. They are called fundamental
rights in the sense that they are placed in the supreme or fundamental law
of the land which has a supreme sanctity over all other law of the land.

The object of enumeration of fundamental rights in a constitution is not to

make them unalterable in any way but main object is that they cannot be
taken away by ordinary process of law making. They are placed beyond the
reach of the executive and the legislative to act in violation of them.

In Jibendra Kishor V. The Province of East Pakistan PLD 1957 SC (PAK) 9,

the Supreme Court of Pakistan held
‘’The very conception of a 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 that
it may be taken away by the law”.

Distinction between Human Rights and Fundamental Rights

 All fundamental rights are human rights but all human rights are not
fundamental rights. Fundamental rights are those of human rights
which are placed in a written constitution. Human rights. Therefore,
are the whole of which fundamental rights are a part.

 The source of a fundamental right is the Constitution whereas the

source of human rights is the international law.

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  Fundamental rights have territorial limitations i.e. they have no
application as fundamental rights outside the territory of a particular
state. But human rights have no territorial limitations they have
universal application.

 Fundamental rights are protected by constitutional guarantees and can

be enforced through the state courts. But there is no effective
enforcement machinery for human rights.

 Fundamental rights are largely applicable to the citizens, while human

rights are universally applicable to all human being.

Fundamental Rights in the Constitution of Bangladesh

18 fundamental rights have been enumerated in the Constitution
commencing from Article 27 to 44. All of these rights are civil and political
rights. These 18 fundamental rights may be firstly divided into two groups:

a. Rights granted to all persons- citizens and non-citizens alike- These are
six rights enumerated in Articles 32, 33, 34, 35, 41 and 44 of the Constitution.
b. Rights granted to citizens of Bangladesh only- These are 12 rights
enumerated in Articles 27, 28, 29, 30, 31, 36, 37, 38, 39, 40,42 and 43.

Absolute Rights:
Some rights have been kept in an unfettered form in the sense that
parliament cannot, except as provided in the Constitution, impose any
restriction over them. They are following:
I. Equality before law (Art. 27)
II. Discrimination on grounds of religion etc. (Art. 28)

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 III. Equality of opportunity in public employment (Art. 29)
IV. Prohibition of foreign titles etc. (Art. 30)
V. Safeguards as to arrest and detention (Art. 33)
VI. Prohibition of forced labour (Art. 34)
VII. Protection in respect of trial and punishment (Art. 35)
VIII. Enforcement of fundamental rights (Art. 44).

Rights on which reasonable restriction can be imposed:

They are following:
I. Freedom of movement (Art. 36)
II. Freedom of Assembly (Art. 37)
III. Freedom of Association (Art. 38)
IV. Freedom of thought and conscience and of speech (Art. 39)
V. Freedom of religion (Art. 40)
VI. Protection of home and correspondence (Art. 43)

The grounds for imposing restriction on these rights have been laid down
by the respective sections:
I. In the public interest (Art. 36)
II. In the interest of public order or public health (Art. 37)
III. In the interest of public order or morality (Art. 38)
IV. In the interest of the security of the state, friendly relation with
foreign state, public order, decency or morality or in relation to
contempt of court. defamation or incitement to an offence (Art. 39)
V. In the interest of the public order and morality (Art. 41)
VI. In the interest of the security of the state, public order
VII. Public morality or public health. (Art. 43).

Fundamental rights which have been practically left to the

legislature:

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There are some rights on which parliament can by law impose any restriction
it pleases. They are following:
I. Right to protection of law (Art 31)
II. Protection of right to life and personal liberty (Art. 32)
III. Right to lawful profession, occupation or business (Art. 40)
IV. Protection of property right (Art.42)

It has been detailed in the Constitution that the enjoyment of these rights
shall be 'in accordance with law', 'except in accordance with law', 'subject to
any restriction imposed by law' etc. Therefore, the parliament can impose
any restriction over these four rights. And the court cannot examine the
reasonability of the restriction; it can see only the following two things:
i) If the law imposing restriction is a valid one;
ii) If the right has been infringed or abridged in accordance with the
law.

Article 27. Equality before law- All citizens are equal before law
and are entitled to equal protection of law.
Art.27 provides that all citizens are equal before the law and are entitled to
the equal protection of law. It combines the English concept of equality
before law and the American concept of equal protection of law. 'Equality
before law' means that among equals law shall be equal and shall be equally
administered. There shall not be any special privilege by reason of birth,
creed, etc. 'Equal protection of law' means that all persons in like
circumstances shall be treated alike and no discrimination shall be made in
conferment of privileges or imposition of liabilities. The first part is negative
while the second is positive in approach. Equality before law is involved in
the enforcement of law, while equal protection of law involves the validity
of a law. But these are not independent or severable concepts in their
application and will often be found to overlap each other (Dr. Nurul Islam v
Bangladesh 33 DLR (AD) 201).

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Several decisions of the Supreme Court of Bangladesh have judicially
enunciated two conditions, namely,
I. The classification must be founded on an intelligible differential
which distinguishes those that are grouped together from other
II. The differential must have a rational relation to the object sought
to be achieved by the law under challenge.

Doctrine of classification
Art.27 does not guarantee absolute equality requiring the law to treat all
persons alike. The principle of equality does not mean, equality of operation
of legislation upon all citizens of the State. All persons are not alike and
nothing can be a greater inequality than to treat unequals as equals (S.A.
Sabur v. Returning Officer, 41 DLR (AD) 30).

The principle of equality does not require universal application of laws for
all persons. By nature, attainment or circumstances all persons are not in the
same position and the varying needs of different classes of persons often
require different treatment. The very purpose of legislation is to draw the
line in such a way that different people are treated differently. The right to
equality stated in simple terms means that persons under like circumstances
and conditions should be treated alike both in the conferment of privileges
and in the imposition of liabilities.

The principle requires that no person or class of persons shall or class of

persons shall be denied the same protection of laws which is enjoyed by
other persons or other class of persons in like circumstances in their lives,
liberty and property and pursuit of happiness.

When a provision of law is made applicable to all persons forming a class, it

does not violate equality clause (Bangladesh Krishi Bank v. Meghna
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Enterprises, 50 DLR (AD) 196). In the application of the principle it has
always been recognised that classification of persons or things is in no way
repugnant to the equality doctrine, provided the classification is not
arbitrary or capricious, but is reasonable and bears a fair and substantial
relation to the object of the legislation.

Reasonableness: Classification which is unreasonable can be challenged

in Court and to this extent the policy of legislation is open to scrutiny by
Court. The element of reasonableness is an important criteria in determining
rights to equality. This aspect is decided in the following decisions of both
the Divisions of the Supreme Court:
I. Nurul Islam —VS- Secretary, Ministry of Law, 46 DLR (AD) 188
II. Retired Govt. Employees —VS- Bangladesh, 46 DLR 427
III. Abdul Mannan Khan —VS- Bangladesh, 42 DLR 316.

Reasonable classification
A classification will be reasonable if it is based upon material and substantial
difference having a reasonable relation between the objects or persons dealt
with and the governmental objective sought to be achieved by the legislation
in question. To pass the test of constitutionality, the classification made in
the legislation must satisfy two conditions-
(i) The classification must be logically correct, i.e. must be founded
upon some intelligible differentia which distinguish the persons
or things grouped together from others left out of the group, and
(ii) The differentia must have a rational relation or nexus to the
object sought to be achieved by the statute in question (S.A.
Sabur v. Returning Officer, 41 .DLR (AD) 30; Retd. Govt.
Employees Assn. v. Bangladesh, 46 DLR 426).

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When of the two similarly situated surplus government servants, one is
differently treated from the other in the matter of counting past services for
fixation of seniority after absorption on the basis of a fortuitous fact that one
got the nomination for absorption while in service and the other got it after
the post was abolished; the equality clause is violated (Director General, NSI
v. Sultan Ahmed, 1 BLC (AD) 71).

The classification of banks, insurance companies and other financial

institutions for putting embargo on nomination of director on the Board of a
financial institution has been found to be reasonable (City Bank Ltd. v.
Bangladesh Bank, 51 DLR (AD) 262).

Bases of classification: Classification can be made on different bases, but

it is not possible to fully describe the different bases of classification.
Whatever be the base of classification, it must have a rational relationship
with the object of the law which prescribes the differential treatment of
persons, things, occupations, business or property.

Classification is often made upon the traits, attributes or characteristics of

persons sought to be dealt with by a particular legislation. When such traits,
attributes or characteristics have rational relationship with the object of the
law, such classification is held to be valid. A classification is unreasonable
which is based on such mere physical characteristics as height, weight,
complexion, mentality or other personal attributes which pertain solely to
the particular person and not to a relation that person may bear to others in
human conduct and activity. Personal qualifications on which classification
is sought to be made are many and include race, caste, religion, colour, sex,
place of birth, age, marital or family status, fitness, literacy, alienage, military
service, labour union membership, residence, property ownership and
wealth and poverty. Classification has often been made on the basis of
personal characteristics such as insanity or illegitimacy. Individuals cannot

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be accorded discriminatory treatment because of their social or political
attitudes.

Classification on the basis of race, caste, religion, sex or place of birth is

generally suspect and will be found invalid unless it can be shown that it
subserves a legitimate governmental objective (Chittaranjan v. Secy.
Judicial Department, 17 DLR 451).

Equal and unequals:

Unequals are not only permitted to be treated unequally but also they are to
be so treated. Under mentioned cases illustrate the above propositions:
(i) Bangladesh —VS- Md. Azizur Ahmed, 46 DLR (AD) 19.
(ii) Secretary of Aircraft Engineers of Bangladesh & another VS-
Registrar of Trade Unions others, 45 DLR (AD) 122
(iii) Nurul Islam another —VS- The Secretary, Ministry of Law, Justice
& others, 46 DLR (AD)- 189

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