Fundamental Rights in the Constitution of Bangladesh

a. Definition
b. Evolution of Fundamental Rights
c. Fundamental Rights in the USA Constitution
d. Why these rights have been called fundamental rights?
e. Fundamental Rights in the Constitution of Bangladesh
f. Persons entitled to Fundamental Rights
g. Basic characteristics of fundamental rights given in our Constitution
h. Enforcement of Fundamental Rights
i. Effect of violation of Fundamental Rights
j. Fundamental rights in the constitution of Bangladesh

What is Fundamental Rights (FR)?

The term FR is a technical one, for when certain HRs are written down in a Constitution and are
protected by Constitutional guarantees they are called FR.

Evolution of Fundamental Rights

Historical survey:
 Greek and Roman political philosophy-Herodotus-isonomia (equality of law) , isotimia,
isogoria
 Stoicism- demanded equal status for the inhabitants of the Empire
Middle Ages
 The doctrine of natural rights of man was well established
 1188- principle of Habeas Corpus was acknowledged by Alfonso IX at the Cortes of
Leon
 June 15, 1215- Magna Carta
 1355- due process of law (British parliament)
Seventeenth Century
 1 679- Habeas Corpus Act secured the security of the citizen from false imprisonment.
 1689- bill of Rights
 1690- Social Contract theory by John Lock, 1762- Social Contract theory by famous
Frenchman Jean Jacques Rousseau.
Bill of Rights (US)
 1641- Massachusetts colony promulgated ‘the body of Liberties’
 June 12, 1776- Virginia adopted a Declaration of Rights drafted by George mason
 July 4, 1776- Declaration of American Independence. Its principles were derived from
the writings of the great English philosophers in particular john Locke.
 1789- Bill of Rights
  1789- Declaration of the Rights of Man and of the Citizens (French)
 1792- The Rights of Man by Thomas Paine
Constitution of Nineteenth Century
 Sweden- 1809, Spain- 1812, Norway- 1814, Belgium- 1831, Denmark- 1849 etc.
Post First World war
 Germany and most of the new European States.
 1918- Russian Constitution
 1928- Turkish Constitution
 1931- Constitution of China
 1937- Irish Free States
Post Second World War
 1946- Japan
 1947- Italy
Declaration of Human Rights
 1948- UDHR
Post Declaration Constitutions
 1949- India
 1956- Pakistan
 1972- Bangladesh

FUNDAMENTAL RIGHTS IN THE US CONSTITUTION:

The modern trend of guaranteeing fundamental rights to the people may be traced to the
Constitution of the USA. The original constitution as drafted in the year 1787 did not contain any
fundamental right. There was trenchant criticism of the US Constitution on this point. Following
the spirit of the MAGNA CARTA of the British and the DECLARATION OF THE RIGHTS OF
MAN AND THE CITIZENS OF FRANCE, the Americans incorporated the BILL OF RIGHTS
in their constitution in the year 1789 in the form of TEN AMENDMENTS and thus the
Americans were the first to give Bill of Rights a constitutional status.
PURPOSE:- In West Virginia State Board of Education v. Barnette, JUSTICE JACKSON
explaining the nature and purpose of Bill of Rights in the USA observed:- “The very purpose of
the Bill of Rights was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials, to establish them as
legal principles to be applied by the courts. One’s right to life, liberty and property, to free
speech, a free press, freedom of worship and assembly and other fundamental rights may not be
submitted to vote; they depend on the outcome of no elections.”

Why these rights have been called Fundamental Rights?

Dr B R Ambedkar, the Chairman of Drafting Committee (Indian Constitution), clarified that

 a. These rights have been provided a special status in the Constitution regarding their
abrogation or amendment by the State,
b. Any law of the land which so ever curtails or abrogates the fundamental rights will be
null and void to that extent and
c. The citizens can move the courts to retain these rights if these are violated. Thus these
rights have a special status in our constitution and it is not easy for the state to snatch or
cu rtail these rights in normal circumstances.

Fundamental Rights in the Constitution of Bangladesh

18 fundamental rights have enumerated in Part III of the Constitution commencing from article
27 to 44. All these 18 rights can be classified under the following categories;

a. Right to Equality (Art. 27-29)

b. Right to life, Liberty and protection of law (Art. 31-35)
c. Right to Freedom (Art. 36-41)
d. Right to property and privacy (Art. 42and 43)
e. Right to Constitutional Remedies ( Art. 44)

Persons entitled to Fundamental Rights

All the rights guaranteed in part iii of the Constitution are available to the citizens of Bangladesh
against go vernmental and local authorities. Only the rights guaranteed by arts. 31, 32, 33, 34,
35, 41(2) and 44 are available to non citizen also. Citizen means a person who is a citizen of
Bangladesh according to the law relating to citizenship.

Basic characteristics of fundamental rights given in Bangladeshi Constitution:

a. These rights are specified and numerable in their nature. There are five rights
b. These rights are not absolute or unlimited. The State can restrict the fundamental rights in
respect of national security and integrity, public welfare, social harmony and other related
matters. The number of restrictions is so high that these were severely criticized by in
constituent Assembly.
c. The fundamental rights can be suspended, amended or curtailed by the state if the
circumstances demanded so. (see articles 141B and 141C)
d. These rights are justiceable i.e. if the state or any other agency curbs or snatches the rights of
any citizen/s then the latter can approach the courts to restore these rights and the court can
issue the appropriate writ/s ( Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo
Warranto under Articles 44 and 102) and direct the state not to do such activities which are
curtailing the individual/s rights. The court can also declare these activities ultra vires, hence
null and void (Art. 13).
e. There is lack of economic rights i.e. right to work, right to economic security etc. in our
constitution and most of the rights provided are of political and social in nature.
f. The fundamental rights are negative in character as they imposed restriction on the state
authority to ascertain these rights for individual.

ENFORCEMENT OF FUNDAMENTAL RIGHTS

Most of the written constitution provide for the right to constitutional remedies in case of
violation FR. Exception is also available. The US and the French Constitution are two of them.
This right to Constitutional remedies has two dimensions

a) Judicial review (against legislature) (art. 26 & 102)

b) Judicial enforcement (against executive) (art. 44 & 102)

Article 44 provides that

 The right to move the High Court Division in accordance with clause (1) of article 102,
for the enforcement of the rights conferred by this Part is guaranteed.
 Without prejudice to the powers of the High Court Division under article 102, Parliament
may by law empower any other court, within the local limits of its jurisdiction, to
exercise all or any of those powers.

Article 102(1) states that

The High Court Division on the application of any person aggrieved may give such directions or
orders to any person or authority, including any person performing any function in connection
with the affairs of the Republic, as may be appropriate for the enforcement of any of the
fundamental rights conferred by Part III of this Constitution.

Effect of violation of Fundamental rights

Article 26 (1) states that 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, while
Article 26 (2) states that 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.
Fundamental rights in the constitution of Bangladesh

Sl Article Description of Rights

1 27 Equality before law:  All citizens are equal before law and are
entitled to equal protection of law.

2 28(1) Discrimination on grounds of religion, etc: The State shall not

discriminate against any citizen on grounds only of religion, race,
caste, sex or place of birth.

3 28(2) Equality between men and women: Women shall have equal rights
with men in all spheres of the State and of public life.

4 29(1) Equality of Opportunity in Public Appointment: There shall be

equality of opportunity for all citizens in respect of employment or
office in the service of the Republic.

5 31 Right to Protection of Law: To enjoy the protection of the law, and

to be treated in accordance with law, and only in accordance with
law, is the inalienable right of every citizen, wherever he may be,
and of every other person for the time being within Bangladesh, and
in particular no action detrimental to the life, liberty, body,
reputation or property of any person shall be taken except in
accordance with law.

6 32 Protection of Right to Life and Liberty: No person shall be

deprived of life or personal liberty, save in accordance with law.

7 33 Safeguard as to Arrest and Detention: (1) No person who is

arrested shall be detained in custody without being informed, as soon
as may be, of the rounds for such arrest, nor shall he be denied the
right to consult and defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a period of
twenty-four hours of such arrest, excluding the time necessary for
the journey from the place of arrest to the Court of the magistrate,
and no such person shall be detained in custody beyond the said
period without the authority of a magistrate.

8 34 Prohibition as to forced labour: All forms of forced labour are

prohibited and any contravention of this provision shall be an
offence punishable in accordance with law.

9 35 Protection in respect of trial and punishment: (1) No person shall

be convicted of any offence except
 for violation of a law in force at the time of the commission of  the
act charged as an offence, nor be subjected to a penalty greater than,
or different from, that which might have been inflicted under the law
in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence
more than once.
(3) Every person accused of a criminal offence shall have the right to
a speedy and public trial by an independent and impartial Court or
tribunal established by law.
(4) No person accused of any offence shall be compelled to be a
witness against himself.
(5) No person shall be subjected to torture or to cruel, inhuman, or
degrading punishment or treatment.

10 36 Freedom of Movement: Subject to any reasonable restrictions

imposed by law in the public interest, every citizen shall have the
right to move freely throughout Bangladesh, to reside and settle in
any place therein and to leave and re-enter Bangladesh.

11 37 Freedom of Assembly: Every citizen shall have the right to

assemble and to participate in public meetings and processions
peacefully and without arms, subject to any reasonable restrictions
imposed by law in the interests of public order or public health.

12 38 Freedom of Association: Every citizen shall have the right to form

associations or unions, subject to any reasonable restrictions
imposed by law in the interests of morality or public order.

13 39 Freedom of thought and conscience and speech: Freedom of

thought and conscience is guaranteed.

14 40 Freedom of profession or occupation: Subject to any restrictions

imposed by law, every citizen possessing such qualifications, if any,
as may be prescribed by law in relation to his profession, occupation,
trade or business shall have the right to enter upon any lawful
profession or occupation, and to conduct any lawful trade or
business.

15 41 Freedom of religion : (1) Subject to law, public order and morality

–
(a) every citizen has the right to profess, practise or propagate any
religion;
 (b) every religious community or denomination has the right
to establish, maintain and manage its religious
institutions.
(2) No person attending any educational institution shall be required
 to receive religious instruction, or to take part in or to attend any
religious ceremony or worship, if that instruction, ceremony or
worship relates to a religion other than his own.

16 42 Rights to property: Subject to any restrictions imposed by law,

every citizen shall have the right to acquire, hold, transfer or
otherwise dispose of property, and no property shall be compulsorily
acquired, nationalised or requisitioned save by authority of law.

17 43 Protection of home and correspondence: Every citizen shall have

the right, subject to any reasonable restrictions imposed by law in
the interests of the security of the State, public order, public morality
or public health –
(a) to be secured in his home against entry, search and
seizure; and
(b) to the privacy of his correspondence and other means of
Communication.

18 44 Enforcement of fundamental rights: The right to move the High

Court Division in accordance with [Clause (1)] of article 102, for the
enforcement of the rights conferred by this Part is guaranteed.