Discuss in light of Forced Labour
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. Constitutional law is a set legal rule which regulate the structure of the organs of the government, their functions, and their relationship with each other and other citizen. Although modern emphasis is on constitutionalism and constitutional government which not only recognize the need for governmental power, but also insists on limitations on the power of the government. Western institutional theories have concerned themselves with the problems of ensuring that the exercise of governmental power, which is essential to the relation of the values of their societies, should be controlled in order that it should not itself be destructive of the values it was intended to promote. A constitution is the governing wheel of the nation. Without constitution anarchy, will rule the nation. According to John Marshall Chief Justice of the United States (1801–35), constitution is creation of the people so it should reflect the interest of the people. Constitution of Bangladesh, under Article 7(1), declares that all power of the Republic belongs to the people.
· Constitution of Bangladesh: IN order to understand the constitutional law of a country we must not only refer to the laws and principle that exist outside the constitution, we must also acquaint ourselves with the historical background. The Constitution of Bangladesh came into operation in December, 1972. It was robust document. Not only did it embody the principles of constitutionalism, rule of law and human rights, it made specific provisions for realization of these lofty ideas.
· Fundamental Rights: Fundamental Rightsare a generally-regarded set of entitlements in the context of a legal system, wherein such system is itself said to be based upon this same set of basic, fundamental, or inalienable entitlements or “rights.” Such rights thus belong without presumption or cost of privilege to all human beings under such jurisdiction. Although the rights should not be granted absolute, as if granted without any qualification or limitation, may be harmful as absolutely free exercise of such rights by one may be destructive of similar rights of others.
· Fundamental Rights According to Bangladesh Constitution: Fundamental rights give the citizens dignity of life in an atmosphere of freedom and justice beyond the man-made fetters that had constricted their physical and mental horizons. Bangladesh constitutions part three can be classified into two groups. On the one side fall the rights which are general in nature covering the whole range of human activities and on the other hand falls the rights in respects of specific activities. The jurisdiction of the high court Division of the Supreme Court enforce the rights is defined in Article 102 of part Vl of the Constitution of 1972.
· Forced Labor: all work or service that is exacted from any person under the menace of any penalty and for which they said person has not offered him voluntarily .In practice, forced labour occurs when people are subjected to psychological or physical coercion in order to perform some work which they would otherwise not have freely chosen. The preamble of the Constitution states that it shall be a fundamental aim of the State to realize a socialism society in which the rule of law, fundamental human rights and freedom, equality and justice will be ensured.
Constitution of Bangladesh prohibiting all sorts of forced labor:
· Bangladesh Constitution states that all forms of forced labor are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
Article 34 guarantees that all forms of forced labor are prohibited, and any contravention of this provision shall be an offence punishable in accordance with law. Nothing in this article shall apply to compulsory labor by persons undergoing lawful punishment for a criminal offence, or required by any law for public purposes. The corresponding provision of the Indian Constitution is art.23 which stipulates that traffic in human beings and beggar and other similar forms of forced labor are prohibited. It is beyond the dignity of a person to be compelled to labor when he would not do so voluntarily. It includes every form of labor which is supplied under compulsion and not willingly and it is immaterial whether remuneration is paid or not. In the same way, forced labor is involved when a man is obliged to work at wages below minimum wages. Traffic in women and children also involve forced labor. Labor may be forced not only owing to physical force, but also account of a legal provision such as imprisonment or fine in case an employee fails to provide service, and also owing to hunger and poverty which compels a per son to accept employment for a remuneration which is less than the statutory minimum wages. Where a contract for personal service is enforceable under a penal law, the prohibition is attracted. Art.34 will be attracted where the penalty for default in rendering service is founded on custom or administrative fiat or in repayment of an alleged debt. But compulsion to do overtime is not forced labor because when the rules make liability to work overtime a term of employment, no question of force labor is involved as the worker entered into the employment contract voluntarily.
Nothing in this article shall apply to compulsory labor
· By persons undergoing lawful punishment for a criminal offence; or required by any law for public purpose.
Article 34(2) provides the exception to article 34(1). Compulsory labor by a person undergoing lawful punishment for a criminal offence or compulsory labor required by any law for a public purpose shall not attract the prohibition of article 34(1). However, if the exaction of hard labour is without payment of wages or even with payment of nominal wages this will be a case of forced labor violating article.34(1). The expression ‘public purpose’ is wide enough to include military and policy service as also social service.
Fundamental rights enshrined in the Constitution
The fundamentalrights of the people of Bangladesh have been enshrined in the constitution of the country.
· 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.
· 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.
· Nothing in this article shall apply to any amendment of this Constitution made under article 142.
According to Bangladesh constitution this article provides that all laws inconsistent with the fundamental rights as provided in PART three shall to the extent of the in consistent become void on the commencement of the constitution and the state shall not make any law inconsistent with those rights. In 1967 the Indian Supreme Court held in Golak Nath v. Punjab that a constitutional amendment by Act of Parliament was a ‘law’ within the purview of article 13(2) (corresponding to article 26 (2) of the constitution (First Amendment) Act, 1973 was passed incorporating clause (3) in art. 26 which states, “Nothing in this article shall apply to any amendment of this Constitution made under article 142”. Similar amendment has been made in article 142. Certain rights may, however, remain suspended under the provisions of articles 141(a), 141(b) and 141(c) during an emergency arising out of a threat to the country’s security or economic life. Fundamental rights give the citizens dignity of life in an atmosphere of freedom and justice beyond the man-made fetters that had constricted their physical and mental horizons. Modern judiciary is regarded as an excellent product of civilization to put the concept of justice to work in the midst of divergent forces with conflicting class or individual interests. Such conflicts make it difficult to bring about equilibrium in the society for a peaceful and orderly association of citizens for their common good. An independent judiciary and strong democratic institutions are the best guarantee against assaults on the rights of the citizens.
· The right to move the High Court Division in accordance with clause (I) of article 102 for the enforcement of the rights conferred by this Part of guaranteed.
· Without prejudice to the powers of the High Court Division under article 102, Parliament may be laws empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers.
According to Bangladesh constitution this article provides that the right to move the Supreme Court for enforcement of any of the fundamental rights is itself a fundamental right and it also enables Parliament to confer the jurisdiction to enforce fundamental rights on any other court, but such conferment cannot be in derogation of the power of Supreme Court under article 102(1) which means that such other court may be given concurrent, but not exclusive, power of enforcement of fundamental rights.
After analyzing and evaluating constitution of Bangladesh in respect to force labor and its violation punishment in relation to the fundamental rights it would be safe to come to a decision such as the fundamentalrights of the people of Bangladesh have been enshrined in the constitution of Bangladesh.
‘With so many of our fundamental rights hanging in the balance, it is not good enough to simply roll the dice, hoping a nominee has changed his past views. It’s not good enough to think, ‘this is the best we can expect’- Barbara Boxer
 Dulal v.District Magistrate. AIR 1958 Cal 365