DIFFERENCE BETWEEN HUMAN RIGHTS AND FUNDAMENTAL RIGHTS: EXPLORE THIS LEGAL GUIDE

Universal Inherent Human Rights

Firstly, 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.

Secondly, the source of a fundamental right is the Constitution, whereas the source of human rights is international law.

Thirdly, 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.

Fourthly, 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.

Fifthly, fundamental rights are largely applicable to the citizens while human rights are universally applicable to all human being.[1]

Fundamental Rights: Enshrined in the Constitution

The insertion of fundamental rights in a constitution becomes meaningless if it is not provided by the Constitution for easy and effective procedure for their enforcement. And this easy and effective enforcement should be available not only against the executive but also against the legislative. If the executive does anything in violation of fundamental rights, the citizens must have a remedy. Similarly if the legislature enacts any law which is inconsistent with any of the fundamental rights, there must be procedure to declare that law unconstitutional. The idea of protection of fundamental rights can be best understood from the American Declaration of Independence, 1776 where it is stated—

“That all men are created equal, that they are endowed by their creator with certain inalienable rights; that among these are life, liberty and pursuit of happiness;

that to secure these rights governments are instituted among men deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it and to institute a new one.”

The Declaration, therefore, has laid the utmost emphasis on the enforcement of rights that if the peoples’ rights for the protection of which the government is formed, cannot be enforced then the government would be useless. The importance of remedies to enforce fundamental rights has also got recognition in article 8 of the Universal Declaration of Human Rights, 1948 which states—

“Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted him by the constitution or by law.”

To this respect the Pakistan Supreme Court in Moudoodi V. Government held—

The basic principle underlying a declaration of Fundamental Rights in a Constitution is that it must be capable of being enforced not only against the executive but also against the legislature by judicial process.”[2]

Constitutional Scope in Bangladesh

Though it is a claim of a written constitution embodying fundamental rights that effective constitutional remedies for the enforcement of fundamental rights should be provided for by the Constitution itself, practical experience teaches us that some of the written constitutions do not specifically provide for the remedies in the Constitution. The US and the French Constitutions are two of them. But most of the written constitutions provide for the right to constitutional remedies in case of violation of fundamental rights.

This right to constitutional remedy has two dimensions- judicial review and judicial enforcement.’ Judicial review about fundamental rights is provided for with a view to enforcing fundamental rights against the legislature. In other words, if the legislature passes any law which is inconsistent with the fundamental rights, the highest seat of the judiciary must have the jurisdiction to declare that law unconstitutional. The Supreme Court of Bangladesh can exercise this jurisdiction under Articles 26 and 102 of the Constitution.

[3] Judicial enforcement, on the other hand, is provided for with a view to enforcing fundamental rights against the executive. In other words, if any public authority violates any of the fundamental rights enumerated in the Constitution, the right to move the highest court of the land for enforcing that right must be specifically guaranteed in the Constitution, and it should be guaranteed as of an independent fundamental right. This right is guaranteed in article 44 and the High court Division of the Supreme Court is empowered to enforce fundamental rights under Article 102 of the Bangladesh Constitution.

As mentioned earlier, the US Constitution, incorporating a Bill of Rights, does not specifically provide for constitutional remedies for the enforcement of fundamental rights. In other words, no right has been created, as has been in the Constitution of Bangladesh, India, Pakistan etc., in the US Constitution in favour of citizens to move the Supreme Court for the enforcement of any of the Bill of Rights.

The direct enforcement procedure of fundamental rights in USA is dealt with the Judiciary Act of 1789 and the US Supreme Court hears the fundamental rights cases only in its appellate jurisdiction.³ In France, the position is also a narrower one. The French Constitution provides neither any right to constitutional remedies nor is any court in France empowered to declare a law which is inconsistent with fundamental rights unconstitutional.

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 first be divided into two groups:

1. 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.
2. 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.

Restriction on Fundamental Rights

The enjoyment of rights can nowhere be seen in an absolute position, for the enjoyment of one’s right in society is subject to the enjoyment of others’ rights. Moreover, modern states are welfare states where collective interests are given priority over individuals’ rights or interests.

Unrestricted individual liberty becomes a licence and jeopardises the liberty of others. “Civil liberties as guaranteed by the Constitution imply the existence of an organised society maintaining public order without which liberty itself would be lost in the excess of unrestrained abuses”.’ If individuals are allowed to have absolute freedom of speech and action, the result would be chaos, ruin, and anarchy. On the other hand, if the state has absolute power to determine the extent of personal liberty, the result would be tyranny.

So restrictions may be imposed on the enjoyment of fundamental rights for the greater purpose of public welfare. This idea has got recognition in Article 29(2) of the Universal Declaration of Human Rights, 1948

“In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely to secure due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”.

It is also worthy here to mention the judgment of Justice Mukharjee in Gopalan V. State of Madras[4] —

“There cannot be any such thing as absolute or uncontrolled liberty wholly free from restraint, for that would lead to anarchy and disorder. The possession and enjoyment of all rights…..   ….. are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, general order and morals of the community.”

Keeping in line with this idea, restrictions have been imposed on some fundamental rights under the Bangladesh constitution. On the basis of this restriction, all fundamental rights enumerated in the Bangladesh Constitution may be classified into the following three groups.[5]

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 on them. They are following:

1. Equality before law (Art. 27)
2. Discrimination on grounds of religion, etc. (Art. 28)
3. Equality of opportunity in public employment (Art. 29)
4. Prohibition of foreign titles etc. (Art. 30)
5. Safeguards as to arrest and detention (Art. 33)
6. Prohibition of forced labour (Art. 34)
7. Protection in respect of trial and punishment (Art. 35)
8. Enforcement of fundamental rights (Art. 44).

Rights on which reasonable restriction can be imposed:

They are following:

1. Freedom of movement (Art. 36)
2. Freedom of Assembly (Art. 37)
3. Freedom of Association (Art. 38)
4. Freedom of thought and conscience and of speech (Art. 39)
5. Freedom of religion (Art. 40)
6. Protection of home and correspondence (Art. 43)

The grounds for restricting these rights have been laid down by the respective sections—

1. in the public interest (Art. 36)
2. in the interest of public order or public health (Art. 37)
3. in the interest of public order or morality (Art. 38)
4. in the interest of the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence (Art. 39)
5. in the interest of the public order and morality (Art. 41)
6. in the interest of the security of the state, public order, public morality, or public health. (Art. 43).

In the case of above mentioned fundamental rights, the parliament can, by law, impose only a reasonable restriction as mentioned in the respective articles. The reasonability of the law can be examined by the Supreme Court, and if the restriction seems to be unreasonable, the court can declare the law illegal. It was held in Chintainoni Rao V. State of Madhya Pradesh’ —

“Legislation which arbitrarily invades the right cannot be said to contain the quality of reasonableness    The determination by the legislature of what constitutes a reasonable restriction is not final or conclusive; it is subject to the supervision of courts.”

A perusal of the nature of restriction over the above-mentioned fundamental rights also reveals the idea that the Constitution of. Bangladesh has struck a balance between the guarantee of individuals’ rights and the collective interests of the community. Because, as mentioned above, the concept of public interest, morality, public order, security of the state, public health etc., all are collective interests. The maintenance of social order and peace depends principally on safe enjoyment of these collective interests, which would remain unprotected, leading to a realm of anarchy had there been no provision to impose reasonable restrictions on individuals’ liberty.

Fundamental rights which have been

practically left to the legislature:

There are some rights on which parliament can by law, impose any restriction it pleases. They are following:

1. Right to protection of law (Art. 31)
2. Protection of right to life and personal liberty (Art. 32)
3. Right to lawful profession, occupation or business (Art. 40)
4. Protection of property rights (Art.42)

It has been detailed in the Constitution that the enjoyment of these rights shall be ‘by law’, ‘except following 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:

1. i) if the law imposing restriction is a valid one;
2. ii) if the right has been infringed or abridged by the law.

For example, it was the law that a person could not possess more than 300 bighas of land. Then a change was made in the law that one could not possess more than 100 bighas of land, and the present law provides that one cannot possess more than 60 bighas of land. Even in near future parliament may make law that one will possess not more than 30 bighas. If the penalty for a particular offence is life imprisonment, the parliament can, by law, substitute it for death sentence, and the court cannot declare the law illegal howsoever unreasonable it is.

1. Jain, M.P.: Ibid., P.459
2. Fox, V. New Hampshire, (1941) 321 US 569 at P. 574
3. This grouping has been done according to the judgment of the Supreme Court of Pakistan in Abu Al’a Maudoodi V. Government of West Pakistan, quoted by Pirzada, Shairfuddin. Ibid, P101