In Chapter three of the Bangladesh Constitution there has been introduced an entrenched Bill of Human Rights known as Fundamental Rights substantially in accord with the rules of the International Bill of Human Rights. Rights enshrined in this chapter include such rights as equality of all irrespective of religion, race, caste, sex or place of birth, and entitled to equal protection of law, non-discrimination iii all matters including opportunity in public employment, right to protection of law, of life and personal liberty, safeguards as to arrest and detention, protection in respect of trial and punishment under retroactive law, freedom of movement and assembly, freedom of thought, conscience and speech, freedom of profession or occupation, freedom of religion, right to property etc.

What is significant to remember is this, none of these rights could be abridged by ordinary legislation and all existing laws inconsistent with the Fundamental Rights provision shall to the extent of such inconsistency become void on the commencement of the Constitution.

The second significant point remember is that the High Court Division under Article 102 has been conferred the jurisdiction to enforce any of the Fundamental Rights guaranteed under the Constitution. So, we may safely say that to the extent Fundamental Rights are in accord with human rights have been made Constitutionally enforceable by the Court, these human right have become the legal rights of the citizens of Bangladesh. It is of course to be observed that the enforcement of fundamental human rights under this Article is, as I am aware, suffers from restrictive interpretation of the Court on the expression “person aggrieved” to exclude what is known as public interest’ litigation. But our neighbouring country like India has already given 2 liberal extended meaning to include such litigations. The problem is a challenge for the lawyers as a class to come forward and press this point home which I, presume if this goal is diligently pursued, a liberal interpretation can be obtained from our Supreme Court.

Mention has to be made of Part-Il of the Constitution containing fundamental principles of state policy. In Part-II the Rights given are promotional and this part of rights are not legally enforceable’ Art. 8 (2) says: ‘The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Construction and of other laws of Bangladesh, and shall form the basis of the work of the state and of its citizen but shall note Judicially enforceable.[1]

The policies and enumeration rights set out of this part are: Promotion of local government institutions, partition of women in national life, democracy and human rights in which effective participation by the people through their elected representatives in administration at all levels shall be ensured, emancipation of peasants and workers: provision of basic necessities, rural development and agricultural resolution, free and compulsory education, public health and morality: work as a right and duty, and ensuring equal opportunity as given in Art. 9 (2) which says: ‘The State shall adopt effective measures to remove social and economic inequality between man and man and to ensure the equitable distribution of wealth among citizens and of opportunities in order to attain a uniform level of economic development throughout the Republic.


Before understanding fundamental rights one should have idea about rights and human 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. In a sense right is not created by law; it originates itself as an obvious result of mutual interaction between man and society.

Rights are primarily divided into two categories—moral rights and 1ega1 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 recognized by the positive law of the country and can be claimed on legal basis and the violation of which results in legal wrong. As mentioned earlier right originates in the society and remains as a moral right so long it is not recognized by law. Whenever a law recognizes it and secures its protection, it transforms into a legal right. All legal rights in this sense are moral rights and the distinction between the two is one of degree rather than of form.

What is Human Rights

The term “human right” which does not mean any right is used in a special sense. Human rights are those of legal and moral rights which can be claimed by any person for the very reason that he is a human being. These rights come with birth and are applicable to all people throughout the world irrespective of their race, colour, sex, language or political or other opinion. These are, therefore, those rights that are inherent in human person and without which they cannot live as human beings.’ Jaques Maritain says, “The human person possesses rights because of the very fact that it is a person, a whole, a master of itself and its acts and which consequently is not merely a means to an end but an end which must be treated as such these are things which are owed to man because of the very fact that he is man. It is also pertinent here to mention the comment of  Sridath Ramphal as to human rights —“They have their origin in the fact of the human condition, and because the have, they are fundamental and inalienable. More specifically, they were born not of man but with man.”[2]

Human rights, therefore, have two inherent characteristics— universal inherence and inalienability. These two characteristics distinguish the concept of human right from other right. Universal inherence means that these rights are universally inherent in all human beings and anyone can claim these rights after his birth. Inalienability as an essential feature of human rights means that these rights cannot be taken away; they cannot be the object of sale or purchase or any kind of transfer. In this sense human rights are different from citizens’ rights2 which are protected by the positive law of the state and the state can any time take away or abolish any citizen’s right. But human rights are rights that existed before the state came into being and for this they are natural and inalienable rights.

It is noteworthy that if ‘inalienability’ is considered as an essential element of human rights, there is a danger and confusion. Because a perusal of all human rights will give the idea that this element does not apply to all human rights. For example, right to property which is recognized in Article 17 of both the French Declaration on Rights of Man and Citizen, 1789 and the Universal Declaration of Human Rights, 1948. But this right is undoubtedly an alienable right. Only one common characteristic, can, therefore, be found for human rights and that is ‘universal inherence’. It is rather better to divide all human rights into two categories—fundamental or basic human rights like right to life, food, shelter, basic necessaries of life, speech etc. and other human rights.[3]

It is also important to indicate here that what has been told here so far about human rights is the only theoretical side of human right while the real picture is quite different. Because everywhere human rights are being violated; there are some human rights which can be taken away by the state, e.g, right to nationality, right to property etc. The truth is that the concept of human right is not at all a legal concept; it is purely a matter of international law. If a particular human right is recognized by a positive law of a state and is maintained through enforcement machinery only then it becomes legal and enforceable right. It is therefore; better to describe human rights as universal moral rights.

The concept of human rights has got its formal and categorical shape from the Universal Declaration on Human Rights adopted by the UNO in 1948 where 25 human rights have got their place. These 25 rights are mostly referred to as human rights. Of these rights 25 rights are civil and political rights and 6 are economic, social and political rights and 6 are economic, social and cultural rights.

Concept of 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.

Following the footsteps of the French Declaration of Rights of Man and Citizen, 1789 and the American Declaration of Independence, 1776 and then the incorporation of a Bill of Right in the US Constitution in 1791 most of the democratic countries with written constitution are including a chapter for Bill of Rights or Fundamental Rights with special sanctity. Why is such a trend being followed invariably in written constitutions?

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 can not 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. The object of the incorporation of fundamental rights in the US Constitution was pointed out by Justice Jackson—

“The very purpose of a Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy; to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s fundamental rights may not be submitted to vote, they depend on the outcome of no elections.”[4]

In Jibendra Kishor V. The Province of East Pakistan 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.”

The same view was reaffirmed by the Pakistan Supreme court in State V. Dosso. The Indian Supreme Court in Golak Nath V. State of Punjab4 held—

“The declaration of the fundamental rights of the citizens are inalienable rights of the people     The Constitution enables an individual to oppose successfully the whole community and the state to claim his right.”

Rights and freedoms form the bedrock of democracy. No democracy can function successfully in the absence of some basic freedoms. Again, modern democratic government is a party government. The party winning majority in the election form, the government. But coming into power the government may turn itself into a dictatorial one violating the basic rights of people and oppressing the opposition. The aim of having a declaration of fundamental rights in the Constitution is to prevent such a possible danger. In other words, they provide a restraint on the power of the government so that it cannot interfere with the peoples’ basic rights according to its whims. When rights and freedoms are placed in the Constitution they become the part of the supreme law and the government cannot take them away except by constitution amending process which is always a rigid one. This is why insertion of a Bill of Rights in a written Constitution is considered to be one of the safeguards of democracy.

It is important to mention here that in Britain there is no Bill of Rights; no formal declaration of any fundamental right has ever been made. It does not, of course, mean that the rights of the people are less guaranteed in Britain. What are fundamental rights under written constitution are all ordinary rights in Britain. There the protection of rights and freedoms rests not on constitutional guarantees but on supremacy of law, i.e. the rule of law, public opinion and strong common law traditions. Though the British parliament, under the doctrine of parliamentary supremacy, can any time abridge, modify or abolish any right of the people, it is the deep-rooted democratic traditions and vigilant public opinion which act as a constant check on the parliament to do that and the power of the executive is limited in the sense that it cannot interfere with the rights of the people without the sanction of law and it is, under the doctrine of rule of law, answerable to the courts for any action which is contrary to the law of the land. But these conditions do not prevail in other countries which are composed of diverse elements, having no deep-rooted traditions of individual liberty. Secondly, almost all the modern countries emerging from the bondage of colonialism had a painful experience of denial of people’s right. They, therefore, felt that mere custom or tradition alone cannot provide to some basic rights the same protection as their importance deserves. “The unique English tradition”, as Bowic says, “is not simply exportable and other nations have generally felt that their governments need the constant reminder which a bill of rights provides, while their people need the reassurance which it can supply”