A number of 3 Constitutions have been adopted in Bangladesh till now. First one is the Proclamation of Independence that was adopted on 10 April 1971 with effect from 26 March 1971, the Day of Independence of Bangladesh. Second one is the Provisional Constitution of Bangladesh Order of 11 January 1972. The third or the present one has been being in force since 16 December 1972. Several provisions on human rights are found in the first one and the present Constitution. But many of the rights failed to be incorporated in the present one. These have been shown in the present article and accordingly recommended to be incorporated in the Constitution so that it may gain the quality of a perfect human rights instrument in the world that may become an ideal to be followed by the countries with the aspiration to uphold human dignity through adopting precise human rights provisions in their constitutions.
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:
- 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.
- 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 over Fundamental Rights
The enjoyment of rights can nowhere be seen in an absolute position, for the enjoyment of one’s right in the society is subject to the enjoyment of others’ right. Moreover, modern states are welfare states where collective interests are given priority over individual’s 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 itsell 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 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 for the purpose of securing 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 —
“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 restriction has 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 following three groups.
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:
- Equality before law (Art. 27)
- Discrimination on grounds of religion etc. (Art. 28)
- Equality of opportunity in public employment (Art. 29)
- Prohibition of foreign titles etc. (Art. 30)
- Safeguards as to arrest and detention (Art. 33)
- Prohibition of forced labour (Art. 34)
- Protection in respect of trial and punishment (Art. 35)
- Enforcement of fundamental rights (Art. 44).
Rights on which reasonable restriction can be imposed:
They are following:
- Freedom of movement (Art. 36)
- Freedom of Assembly (Art. 37)
- Freedom of Association (Art. 38)
- Freedom of thought and conscience and of speech (Art. 39)
- Freedom of religion (Art. 40)
- Protection of home and correspondence (Art. 43)
The grounds for imposing restriction on these rights have been laid down by the respective sections—
- in the public interest (Art. 36)
- in the interest of public order or public health (Art. 37)
- in the interest of public order or morality (Art. 38)
- 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)
- in the interest of the public order and morality (Art. 41)
- 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 parliament can by law impose only 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 constitute a reasonable restriction is not final or conclusive; it is subject to 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 individual’s 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 restriction on individual’s 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:
- Right to protection of law (Art. 31)
- Protection of right to life and personal liberty (Art. 32)
- Right to lawful profession, occupation or business (Art. 40)
- 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.
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.