Chapter One

Introduction
1.1 Background of the Problem
One of the intrinsic instincts of human being is the desire of being free. The sense of freedom
makes them distinct from other animals. The struggle for freedom of expression is an old aged
struggle of groups and individual against their political environments. The term freedom of
expression may be synonymously used as freedom of speech, freedom of thought and
conscience, freedom of press, right to information, access to information etc. Freedom of
expression is a fundamental right in modern societies, and it has particular significance in
relation to the well-functioning of the constitutional democratic process. 1 This freedom of
expression and of speech is essential to the development of human personality and every person
should be free in his thought and conscience. 2 On the other hand, freedom of speech is essential
for the development and functioning of democracy.3 Without freedom of speech, there cannot be
any democracy and the first thing an autocrat does is to curb the freedom of speech. 4 So freedom
of speech and expression can be defined as the cornerstone of democratic rights and freedoms. In
its very first session in 1946, before any human rights declarations or treaties had been adopted,
the UN General Assembly adopted resolution 59(I) stating "Freedom of information is a
fundamental human right and ... the touchstone of all the freedoms to which the United Nations
is consecrated."4

1.2 Statement of the Problem

Now a days freedom of speech and expression has got its place in many international documents
like UDHR, ICCPR, CEDAW etc., along with this it is also found in the constitution of almost all
of the civilized nations of the world. However, the constitutions are providing this right but there
is also a provision imposing restrictions over the freedom of speech and expression. These
restrictions create great obstacles to democracy. In the Constitution of the Peoples Republic of
Bangladesh, there is also enumeration of the right of freedom of speech and expression and there

1 Sara Hugelier, Freedom of expression and transparency: two sides of one coin (2010-2011),
Jg. 47, Jura Falconis, <http://www.law.kuleuven.be/jura/ > accessed 14 November 2014.

2 Mahmudul Islam, Constitutional Law of Bangladesh, pg.329, third edition, Mullick Brothers
(2012)

3 Farid Ahmad vs West Pakistan, PLD 1965 Lah 135

4 Freedom of expression, < http://www.hrea.org/index.php?base_id=147> accessed 15

November 2014

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is also a provision restricting freedom on the basis of national security and other issues. Art.
39(1) of the Constitution of the Peoples Republic of Bangladesh states Freedom of thought and
conscience, and of speech and the following sub art. 39(2) states the restrictions. Though the
restriction over freedom of speech and expression impede the idea of democracy but it can be
imposed where there is a real risk of harm to a legitimate interest, meaning there is a significant
risk of imminent harm, the risk is of serious harm, that is to say violence or other unlawful
action; there is a close causal link between the risk of harm and the expression; the expression
was made with the intention of causing the harm. 5 In Bangladesh it is seen that the ruling party
for the sake of their own interest impose restriction upon the constitutional right of Freedom of
Speech and Expression. As a result the elementary ideology of democracy is hampered.

1.3 Purpose of the Study

General: The general objective of the study is to achieve the clear concept on Rights to Freedom
of Assembly and Expression under Constitution of Bangladesh and International Human Rights
Law.
Specific:
To gain legal knowledge on fundamental rights of human
To identify the restriction of human rights
To identify the legal remedies on freedom of assembly and expression

1.4 Significance of the Study

Concepts of freedom of speech and expression can be found in early human rights documents
like Magna Carta of 1215, Englands Bill of Rights 1689, the Declaration of the Rights of Man
and of the Citizen, adopted during the French Revolution in 1789. 6 Today the idea of freedom of
expression has been recognized in many international, regional and national laws of different
States. International laws like Universal Declaration of Human Rights (UDHR) adopted in 1948
mentioned about freedom of opinion and expression. In its article 19 it states that,

5 Md. Ziaur Rahman, Democracy: Freedom of Speech and Floor-crossing interface (2010),
Volume I, The Northern University Journal of Law, ISSN 2218-2578

6 David Smith, Time line: a history of free speech. The Guardian (London, 02 Feb2006)
<http://www.theguardian.com/media/2006/feb/05/religion.news> accessed 13 November 2014.

2
Everyone has the right to freedom of opinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers.7
Again the right is enshrined in the 2nd paragraph of article 19 of the International Covenant on
Civil and Political Rights (ICCPR). It is stated in it that,
Everyone shall have the right to freedom of expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media of his choice. 8

1.5 Scope of the Study

Furthermore, freedom of expression has also been incorporated in some regional laws like article
10 of the European Convention on Human Rights, article 13 of the American Convention on
Human Rights and article 9 of the African Charter on Human and Peoples' Rights.
National law like constitutional laws of different states protects the freedom of speech and
expression. As for example article 39(2) (a) of the Constitution of Peoples Republic of
Bangladesh protects the right to freedom of speech and expression. Like as article 19(1) (a) of
the Constitution of India, article 19 of the Constitution of the Islamic Republic of Pakistan,
article 14(1) (a) of the Sri Lankan Constitution and almost all the constitution of different states
over the world protects the freedom of speech and expression.
Being a common law country Bangladesh follows precedent i.e. case laws. In the case of Dewan
Abdul Kader v. Bangladesh910, freedom of speech has been explained and it is stated as a right to
express one's own opinion absolutely freely by spoken words, writing, printing, painting or in
any other manner which may be open to the eyes and ears. It thus includes expression of one's
ideas on any matter by any means including even gestures, postures, banners and signs. It
appears that this freedom is wide enough to include expression of one's own original ideas and
also expression of one's opinion in the form of comments, explanations, annotations, solutions
and answers to questions on the ideas expressed by others. It, therefore, means the expression of
one's idea, whether the idea is an original idea, or explanations, commentaries, or annotations of
the original idea expressed by another.

7 Universal Declaration of Human Rights, Article 19

8 The International Covenant on Civil and Political Rights (ICCPR), Article 19

9 Ibid

10 BLD 418 (1994)

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1.6 Definition of the Terms
Freedom of speech is a civil liberty.7 The term freedom means the right to do or say what anyone
wants without any person stopping him. 11 And expression means things that people say, write or
do in order to show their feelings, opinions and ideas. 12 By considering the preceding meanings,
it can be said that freedom of expression means that the right to say, write or do in order to show
feelings without anyones restriction on it. Again Expression can include having views or
opinions, speaking aloud, publishing articles or books or leaflets, television or radio
broadcasting, producing works of art, communication through the internet, some forms of
commercial information and many other activities. 13

1.7 Limitation of the Study

I have faced some unexpected obstacle which were-

Lack of enough relevant research work for why the study could not be reviewing the
literature perfectly

Insufficient data sources and methodological limitation also the big restriction

Time limitation one of the major factor when done this research work

11 OXFORD Advanced Learners Dictionary, Ninth Edition.

12 Ibid

13 Freedom of expression explained, < http://www.brightknowledge.org/knowledge-bank/law-

andpolitics/spotlight-on-law/freedom-of-expression-explained > accessed 14 November 2014

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 Chapter Two
Review of Literature

2.1 Introduction

The doctrine of fundamental rights is feature of United States law under which certain
human rights that enshrined in the US constitution are given a high degree of judicial
deference in conflicts between individual liberty and governmental intrusion. Although many
fundamental rights are also more widely considered to be human rights. The classification of
a right as fundamental invokes specific legal tests used by courts to determine the carefully
contained conditions under which the United States Government and the various state
governments may impose limitations on this right.

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 force with conflicting class or individual interests.
Such conflicts make is 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.

This dissertation is mainly focusing on the features of fundamental rights in the constitution
of Bangladesh inspired by the Universal Declaration of Human Rights, 1948; the
constitution of Bangladesh enumerated some basic civil and political rights common to most
liberal democracies and also insures the rights to constitutional remedies for the protection of
these rights. In addition, the fundamental rights of the constitution of Bangladesh are aimed
at overturning the inequalities of past social practice. I prohibit discrimination on the
grounds of religion, race, sex, color place of birth and forbid trafficking human being and
forced labor.

Thomas Jefferson said, We hold these truths to be self-evident. That all men are created
equal. That they are endowed by their creator with certain inalienable secure these rights,
government are instituted among men, deriving their just powers form the consent of the
governed. That whenever any form of government becomes destructive of those ends, it shall
be the right of the people to alter or abolish it and to institute new government, laying its

5
foundations upon such principles, and organizing its power in such forms, as shall seem to
them most likely to affect their safety and happiness.

This easy is merely focusing on the features of fundamental rights as have been preserved in
the constitution of Bangladesh. The frames of Bangladesh have been discussed in Article
basis starting from the preamble of the constitution. The frames of these constitutions
practically show concern for necessity of protecting human rights and ensuring fundamental
freedoms. In the preamble of the constitution they declared that it shall be a fundamental
object of the state to realize through the democratic process a society free from exploitation,
a society in which the rule of law, the fundamental human rights and freedom, equality and
justice, political, Economical and social will be secured for all citizens.

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. Rights and
freedoms from 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 in
to power the government may turn itself into a 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 order words, they provide a restraint on
the power of the government so that it cannot interface with the peoples basic rights
according to its whims. When rights and freedom are placed the part of the supreme law and
the government cannot take them away except by constitution amending process which is
always a right one. This is why insertion of a Bill of right in a written constitution is
considered to be one of the safeguards of democracy. Bangladesh accepted fundamental
rights and incorporated the same in their constitution. Within less than a year after the
emergence of Bangladesh as a new, independent, sovereign republic, the constitution of
Bangladesh was passed, though; however, it came into force on December 16, 1972, the first
anniversary of the day of liberation.

2.2 What is Rights?

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Before understanding fundamental rights are should have idea about rights and human rights.
Rights mean a claim of some interests adverted by an individual or a group of individual
which has either moral or legal basis and which is essential for his development in the
society. In a sense right not created by law it originates itself as an obvious result of mutual
interaction between man and society. Rights are primarily divided in to two categories-moral
rights and legal rights.

2.3 What are Human rights?

The term human rights which does not mean any right is used in special sense. Human
rights are those of legal and moral rights which can be claimed by any person for the very
reason that is a human being. These rights come with birth and applicable to all people
throughout the world irrespective of their race, color, 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.

2.4 What are fundamental rights?

The term fundamental right is a technical one, for when certain human rights are written
down in a constitution and protected by constitutional guarantees they are called
fundamental rights. They are called fundamental rights in that sense that they are placed in
the supreme or fundamental law of the land which has a supreme society over all other law
of the land. Article 26 to 47 of Bangladesh constitution confers a number of substantive
fundamental rights on every citizen of Bangladesh e.g. the right to freedom of expression,
assembly, association, movement and profession

2.5 Distinction between Human rights and Fundamental rights

There are some Fundamental distinction between directives and fundamental rights:

7
First, when certain human rights are written down in a Constitution, a supreme law, and
protected by constitutional guarantees they are called fundamental rights. Directive
principles, on the other hand, are polices relating to social, economic and cultural rights
which are to be followed in governance of the country.

Second, fundamental rights are enforceable in a court of law and they create justiciable
rights in favors of individuals. And the courts can enforce them against the government.
Again, the courts are competent to declare as void any law that is inconsistent with any of
the fundamental rights. The directives, on the other hand, are not enforceable in a court of
law and they do not create any justiciable rights in favour of individuals. The court can not
compel the government to carry out any of the directives. Again, the courts cannot declare
any void, which is otherwise valid, on the ground that it contravenes any of directives
principles.

Third, fundamental rights are mandatory in nature whereas directives are declaratory in
nature as they have expressly been excluded from the preview of the courts.

Fourth, the fundamental rights create negative obligation on the state, i.e., the state is
required to refrain from doing something. The directives, on the other hand, impose positive
obligation on the state i.e., to implement these principles the state will have to achieve
certain ends by its actions.

Fifth, the directive principles may be described as inchoate fundamental rights while the
fundamental rights are full-fledged i.e. the former requires legislation to become effective
while the latter need not requires such legislation. And so long there is no law carrying out
the policy laid down in directives neither the state nor an individual can violate any existing
law or legal right under the colour of directive principles.

Sixth, Fundamental rights are primarily aimed at assuring political freedom to citizens by
protecting them against excessive state action while directive principles are aimed at
securing social and economic freedom by appropriate state action.

2.6 Nature of Fundamental Rights

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The Fundamental Rights were intended to serve three important purposes, namely:
1. to prevent the Executive from acting arbitrarily;
2. to ensure some amount of security and protection to various types of minorities; and
3. to promote and foster social revolution by establishing the conditions necessary for
achieving justice, social, economic and political.
The immutability and permanence of the Fundamental Rights were sought to be established
first on the reasoning that these rights are rooted in the doctrine of natural law and were,
therefore, natural rights as expressed in the traditional parlance and secondly, on the ground
that they have been given a place of permanence by the constitution within its scheme. But
the Fundamental Rights as contained in part III of the constitution, are neither rooted in the
doctrine of natural law nor did they base on the theory of reserved rights. They are conferred
rights and embody the social values of the present generation. As the social values are not
static, the Fundamental Rights are subject to changes and modifications in order to fulfill the
aspirations of man in the context of his changed conditions and environment in which he
lives.

9
2.7 Classification of Fundamental Rights
The Fundamental Rights enumerated in the Bangladesh Constitution may be classified in to
following three groups:
A. Absolute Rights:
1. Equality before law, (Art. 27).
2. Discrimination on grounds of religion etc (Art.28).
3. Equity of opportunity in public employment (Art.29).
4. Prohibition of foreign titles etc (Art.30).
5. Safe guards 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).
B. Rights on which reasonable restriction can be imposed:
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.
C. Fundamental rights which has been practically left to the legislature
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 right (Art.42)

2.8 Fundamental Rights in Bangladesh constitution

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:
a. 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.
b. 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.

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2.9 Freedom of movement
Rights of locomotion is an important part of liberty, the right of a person to move freely to
reside where he will and to work where he will is connected with his livelihood and pursuit of
happiness. Even though this right may be protected by the due process clause of art, 31, as an
important segment of liberty, the frames of the constitution made special provision to protect
the freedom of movement of citizens, Art.36 provides that subject to reasonable restrictions
imposed by law in the public interest, every citizen has the right to move freely through out
Bangladesh, to reside and settle in any place in Bangladesh, and to leave and re-enter
Bangladesh.
In the case of Dr. Mohiuddin farooque v. Bangladesh and others, Mustafa Kamal, j. held at
paragraph 31 as under: These rights, attached to a citizen are not local. They pervade and
extend to every inch of the territory of Bangladesh stretching up to continental shelf.

2.10 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.

2.11 Freedom of Association

The very existence of democracy is dependent on the right to form associations, without the
right there cannot be any political party which is an essential institution of democracy. The
right of free association is closely allied with the freedom of speech and which is a right to
free speech, and foundation of a free society.

2.12 Freedom of thought, conscience speech and press

Freedom of thought and conscience is essential to the development of human personality and
every person should be free in his thought and conscience. On the other, freedom of speech is
essential for the development and functioning of democracy. Without freedom of speech there
cannot be any democracy and the first thing and autocrat does is to curb the freedom of
speech.
In the case of Bangladesh National curriculum and Text Board v. A. M Samsuddin and
others, A.T.M. Afzal, c.j. held at paragraph 32 while interpreting Article 32(2) as under: The
right to freedom of speech and expression as claimed by the writ petitioners does not extend
to the right of printing and publishing of note books or textbook prepared and published by

11
the textbook board under stationary authority the court was not justified in declaring the
impugned Act to be ultra vires of Article 39(2) of the constitution.

2.13 Modification of rights in respect of disciplinary law

Article 45 is a modification of rights in respect of disciplinary law. The provisions of part III
will not be applicable to the members of disciplined forces for ensuring proper discharge of
their duties or maintenance of discipline in that force, disciplinary law is kept out of the ambit
of enforcement of fundamental rights.

2.14 Power to provide indemnity

Article 46 grants indemnity by law in respect of acts dines during the national liberation
struggle or the maintenance or restoration or order in any area in Bangladesh.

2.15 Saving for certain laws

47 certain laws have been saved and Clause (1) of this Article grants immunity form
challenge on the ground of violation of fundamental rights. Clause (2) gives the protection of
certain laws in first schedule in spite of the inconsistency with any provision of the
constitution. Clause (3) of this article provides for detention, prosecution and punishment for
genocide, war crimes against humanity under international law and in case of conflict with
any provision of this constitution, the law made for such detention, prosecution or
punishment of any person under international law shall not be void.

2.16 Inapplicability of certain Articles

The persons in respect of whom Clause (3) of Article 47 applies shall be precluded from
moving the Supreme Court for any remedy under the constitution. It provides for
inapplicability of certain Article of this part mentioned in Article 47(A) of the constitution.
In the above-named the Article basis starting from the preamble, Security for the
fundamental rights in Bangladesh constitution.

2.17 Supremacy of the Fundamental Rights

Supremacy of the Fundamental Rights is safeguarded by the constitution of Bangladesh. It is
a rigid constitution; it can be amended by two third majorities of the parliament members.
The constitution but not parliament is supreme. It is stated in the preamble that it is our sacred
duties to safeguard protects and defend this constitution and to maintain its supremacy as the

12
embodiment of the will of the people of Bangladesh. Article 7 states all powers in the
Republic belong to the people and their exercise on behalf of the people shall be affected only
under and by the authority of this constitution. This constitution is as the solemn expression
of the will of the people. The supremacy of law of republic and if any other law is
inconsistent with constitution that other law shall to the extent of the inconsistency to void.
Article 26 states that all existing laws inconsistent with the provisions of this part i.e.
Fundamental Rights, shall to the extent of such inconsistency become void on the
commencement of this constitution. The state shall not to make any law inconsistent with the
provision of this part and any law so made shall to the extent of such inconsistency is void.
Under article 102 the Supreme Court has been empowered to scrutinize the government
actions done is violation of Fundamental Rights. Again under Article 7 and 26 the Supreme
Court exercises the power of judicial review i.e. to examine the constitutionality of any law
passed by the parliament.

2.18 Imposition of Restriction over Fundamental Right

The enjoyment of rights can now where be seen in an absolute position, for the enjoyment of
ones 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 individuals rights or
interests. Unrestricted individual liberty becomes a license are jeopardizes the liberty of
others. Civil liberties as guaranteed by the constitution imply the existence of an organized
society maintaining public order without liberty it sells 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 Gopolan 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

13
conditions as may be deemed by the governing authority of the country essential to the safety,
healthy, peace, general order and morals of the community.

2.19 The Enforcement of the Fundamental Rights

The insertion of fundamental rights in a constitution in a constitution becomes meaningless
rights 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. Similar 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 in alienable 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 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 than the government would be useless, the
importance of remedies to enforce fundamental rights has got recognition in article 8 of the
universal declaration of human rights, 1948 which states-
Everyone has the right on an effective remedy by the competent national tribunal for acts
violating the fundamental rights granted him by the constitution or by law.
Briefly discussion Article basis starting from Fundamental rights in Bangladesh constitution.
1. Laws in consistent with Fundamental rights to be void
Article, 26 Provides that all existing laws inconsistent with the fundamental rights as
provided in part III shall to the extent of the inconsistency become void on the
commencement of the constitution and the state shall not make any law inconsistent with
those rights. In our jurisdiction, the case of Anwar Hossain v. Bangladesh, popularly known
as the constitution (Eight Amendment) case has also expressed the same view.
In that decision, Shahabuddin Ahmed, j. held at paragraph 381, as under: As to the
constituent power, that is power to make a constitution, it belongs to the people along. It is
the original power. It is doubtful whether it can be vested in the parliament, though opinion
differ, people after making a constitution give the parliament power to amend it in exercising

14
its legislative power strictly following certain special procedures constitutions of Anwar
Hossain v. Bangladesh popularly known as the constitution (Eight Amendments) case has
also expressed the same view. In that decision, Shahabuddin Ahmed, j. held at paragraph
381, as under As to the constituent power, that is power to make a constitution, it belongs to
the people along. It is the original power. It is doubtful whether it can be vested in the
parliament, though opinion differ, people after making a constitution give the parliament
power to amend it in exercising its legislative power strictly following certain special
procedures constitutions of some countries may be amended like any other status following
the ordinary legislative procedure. Even if the constituent power is vested in the parliament
the power is a derivative one and the mere fact that an amendment has been made in exercise
of the derivative constituent power will not automatically make the amendment immune from
challenge. In that sense there is hardly any difference whether the amendment is a law, for it
has to pass through the order in validity test my considered opinion therefore is that an
amendment of the constitution is not included in law within the meaning of Article 7 in the
same way as it is not law in Article.
2. Equality before law
Article 27 guarantees every citizens right to equality before the law and the equal protection
of the laws. It combines the English concept of equality before law and the American concept
of equal protection of law.
Equality before law means that among equals law shall be equal and shall be equally
administered. There shall not be any special privilege by reason of birth, creed etc. Equal
protection of law means that all persons in like circumstances shall be treated alike and no
discrimination shall be made in conferment of privileges or imposition of liabilities. The first
part is negative while the second is positive in approach. Equality before law is involved in
the enforcement of law, while equal protection of law involves the validity of a law. But these
are not independent or severable concepts in their application and will often be found to
overlap each other this article more than others firmly embodies the concept of rule of law the
establishment of which is one of the prime objectives of the constitution.
3. Discrimination on grounds of religion etc
Art. 28 has been introduced to make classification only or grounds of religion, race, caste, sex
or place of birth parse unreasonable except when a provision is made in favor of women,
children and backward section of citizens.
As a matter of fact, this article projects the citizen against discrimination. The state can not
discrimination only on the grounds as mentioned in Article 28, but with some other national

15
factor, the discrimination would be valid. The crucial word in this Article is discrimination
which means making an adverse destination with regard to or distinguishing unfavorably
from others.
4. Equality of opportunity in public employment
Clause (1) of Article 29 of the constitution guarantees equality of opportunity for all citizens
in the matter of employment or office in the service of the Republic. The expression the
service of the Republic means any service, post or office whether in a civil or military
capacity, in respect of the government of Bangladesh and any other service declared by law to
be a service of the Republic. Equality of opportunity in respect of employment under this
clause means equality as between members of the same class of employees and not equality
between members of separate classes. This clause gives effect to the doctrine of equality in
respect of appointment as well as promotion. Inequality of opportunity for promotion
between holders of posts in the same grade may be an infringement of this clause, but those
who hold post in different grades are not entitled to invoke it. When an application for a post
has been made, it must be considered on merits. Clause (2)
Prohibits discrimination in respect of employment an office in the service of
Bangladesh on the grounds only of religion, race, caste, sex or place of birth. Where selection
for promotion to the next higher grade is on the basis of seniority cum-merit a public
servant is entitled to claim relief under this clause if he is placed in the placed in the list of
seniority contrary to the rules governing seniority. Clause (3) provides an exception by
restricting the operation of clauses (1) and (2) of Article 29. A provision an exception can not
be so interpreted as to nullify or destroy the main provision.
In the case of Bangladesh v. Azizur Rahman, will interpreting Article 29 of the
constitution, Equal opportunity held at paragraph 44 as under: The guarantee of equal
opportunity in respect of employment is available at the stage of initial appointment and of
promotion. Merely because chances of promotion of the write petitioners may be said to have
been affected by the impugned rules of 1990 would not amount to denial of equality of
opportunity in respect of the employment, as chances of promotion are not conditions of
service. As a matter of fact, no writ petitioners have been deprived of the right to be
considered for promotion and as such, the submission that they have been denied the right of
equal opportunity in respect of future employment is untenable and there is in fact no
violation of Article 29(1) of the constitution.

16
5. Prohibition of foreign titles, etc
Article 30 provides that No citizen shall, without the prior approval of the president, accept
any title, honor, award or decoration from any foreign state.
6. Right to protection of law
Article 31 deals with the protection of law to be enjoyed by citizens and persons residing in
Bangladesh and in particular, in respect of life, liberty, body, reputation and property. The
term in accordance with law is akin to American concept.
7. Protection of Right to life and personal liberty
No personal shall be derived of life on personal liberty saved in accordance with law. In the
case of Islam Mahmud v. Bangladesh, H.m.Habibur Rahman, j. held that the detaining
authority must have some jurisdictional facts for detaining an individual, since the detaining
authority is curtailing the liberty of a citizen by detaining him on preventive detention; it is
exercising a non-judicial authority. To curtail fundamental rights of personal liberty enshrined
in the constitution it is essential that the detaining authority.
Must have report and materials that is jurisdictional facts for exercising power to detain the
detune under the special power Act.
8. Safeguards as to arrest and detention
Article 33 consists of two parts: Clauses (1) and (2) relate to persons otherwise than a
preventive detention of law. Clauses from (3) to (6) apply to person arrested or detained
under preventive detention. This Article provides for protection against unreasonable arrest
and detention. This Article provides for some specific procedural safeguard as in clause (1) of
33, a person in detention is entitled to know the grounds of his arrest and he cannot be denied
the right to consult or be defended by a lawyer of his/her choice. In clause (2) a person
arrested must be produced before the nearest magistrate within twenty four hours excluding
the tie for such journey. The Article provides for certain substantive and procedural safeguard
in respect of deprivation of life and personal liberty as a matter of fact, disclosure of grounds
of arrest and detention before a magistrate even mandatory, under clause (1) of Article 33.
There are numerous judicial decisions of the supreme court of Bangladesh on the question of
preventive detention and the safeguards to be observed have become a highly specialized
subject. Clause (4) provides that no person can be detained at the first place exceeding six
months and during this time he must be given an opportunity to be heard by an Advisory
Board. This clause also speaks of the constitution of the board. Clause (5) of Article 33
provides for early communication of grounds of detention of such person, the provision of
this clause also authorizes the detaining authority for not disclosure of facts in public interest.

17
In the case of professor Ghulam Azam v. Bangladesh, Md. Abdul jalil, j. held at paragraph 25
asunder: From the facts and circumstances as discussed above we are of the opinion that the
petitioner having been living in Bangladesh is entitled to the protection under Article 33(5) of
the constitution and as such the detaining authority was under constitutional obligation to
communicate grounds of detention as soon as may be, but no grounds were communicated
within such long period of more than 1 year and 3 months.31
9. Prohibition of forced labour
Clause (1) of Article 34 prohibits all forms of forced labour and any contravention of this rule
has been made punishable in accordance with law. Clause (2) prevents persons undergoing
punishment for sentence given by a court of law from invoking the prohibition against forced
labour provided in the proceeding clause and further the state is empowered to require
compulsory services for public purposes. The Article does not expressly mention slavery as
has been mentioned in the thirteen Amendments of the United States constitution, and though
there is no longer the remotest likelihood of enforcing such institution the prohibition against
forced labour would extend to it if at all any attempt is made to introduce it.
10. Protection in respect of trial and punishment
Article 35 guarantees a cluster of rights in respect of trial and punishment. Clause (1)
provides protection against ex post facto laws, clause (2) provides guarantee against double
jeopardy, clause speedy and fair trial: clause (4) grants privilege against self incrimination
and clause (5) prohibits torture and cruel, inhuman or degrading punishment. Clause (6)
provides that nothing in clause (3) or clause (5) shall affect the operation of any existing law,
which prescribes any punishment or procedure for trial.
11. Freedom of movement
Rights of locomotion is an important part of liberty, the right of a person to move freely to
reside where he will and to work where he will is connected with his livelihood and pursuit of
happiness. Even though this right may be protected by the due process clause of art, 31, as an
important segment of liberty, the frames of the constitution made special provision to protect
the freedom of movement of citizens, Art.36 provides that subject to reasonable restrictions
imposed by law in the public interest, every citizen has the right to move freely through out
Bangladesh, to reside and settle in any place in Bangladesh, and to leave and re-enter
Bangladesh.
In the case of Dr. Mohiuddinfarooque v. bangldesh and others, Mustafa Kamal, j. held at
paragraph 31 as under: These rights, attached to a citizen are not local. They pervade and
extend to every inch of the territory of Bangladesh stretching up to continental shelf.

18
12. 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.
13. Freedom of Association
The very existence of democracy is dependent on the right to form associations, without the
right there can not be any political party which is an essential institution of democracy. The
right of free association is closely allied with the freedom of speech and which is a right to
free speech, and foundation of a free society.
14. Freedom of thought, conscience speech and press
Freedom of thought and conscience is essential to the development of human personality and
every person should be free in his thought and conscience. On the other, freedom of speech is
essential for the development and functioning of democracy. Without freedom of speech there
can not be any democracy and the first thing and autocrat does is to curb the freedom of
speech.
In the case of Bangladesh National curriculum and Text Board v. A.Msamsuddin and others,
A.T.M. Afzal, c.j. held at paragraph 32 while interpreting Article 32(2) as under: The right to
freedom of speech and expression as claimed by the writ petitioners does not extend to the
right of printing and publishing of note books or textbook prepared and published by the
textbook board under stationary authority the court was not justified in declaring the
impugned Act to be ultra vires of Article 39(2) of the constitution.
15. Freedom of profession or occupation
Article 40 provides that every citizen shall have the right to enter upon any lawful profession
or occupation and to conduct any lawful trade or business.
16. Freedom of religion
Article 41 ensures that every citizen has the right to profess, practice or propagate any
religion and every religious community on group can establish, maintain and manage its
religious institutions subject to reasonable restriction imposed by law on the ground of public
order and morality.
17. Rights to property
Article 41 guaranteed that every citizen has right to acquire, hold, transfer or otherwise
dispose of property, subject to restrictions imposed by law compulsory acquisition,
nationalization and requisition of property is not permissible without the authority of law.

19
18. Protection of home and correspondence
Article 43 ensures the citizens right to be secured in his home against entry, search and
seizure and also to the privacy of his correspondence and other means of communication.
Restriction can be imposed on such rights on the ground of security of the state, public order,
public morality and public health. This article guarantees the privacy of home and
correspondence and communications.
19. Enforcement of fundamental rights
Article 44(1) provides that the right to move the Supreme Court for enforcement of any of the
fundamental rights is itself a fundamental right. Art. 44(2) 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 the Supreme Court under Art. 102(1) which means that such
other court may be given concurrent, but not exclusive, power of enforcement of fundamental
rights. The Court must always have the power of enforcement of fundamental rights.

Modification of rights in respect of disciplinary law

Article 45 is a modification of rights in respect of disciplinary law. The provisions of part III
will not be applicable to the members of disciplined forces for ensuring proper discharge of
their duties or maintenance of discipline in that force, disciplinary law is kept out of the ambit
of enforcement of fundamental rights.
Power to provide indemnity
Article 46 grants indemnity by law in respect of acts dines during the national liberation
struggle or the maintenance or restoration or order in any area in Bangladesh.
Saving for certain laws
47 certain laws have been saved and Clause (1) of this Article grants immunity form
challenge on the ground of violation of fundamental rights. Clause (2) gives the protection of
certain laws in first schedule in spite of the inconsistency with any provision of the
constitution. Clause (3) of this article provides for detention, prosecution and punishment for
genocide, war crimes against humanity under international law and in case of conflict with
any provision of this constitution, the law made for such detention, prosecution or
punishment of any person under international law shall not be void.
Inapplicability of certain Articles
The persons in respect of whom Clause (3) of Article 47 applies shall be precluded from
moving the Supreme Court for any remedy under the constitution. It provides for
inapplicability of certain Article of this part mentioned in Article 47(A) of the constitution.

20
In the above-named the Article basis starting from the preamble, Security for the
fundamental rights in Bangladesh constitution.

2.20 Supremacy of the Fundamental Rights

Supremacy of the Fundamental Rights is safeguarded by the constitution of Bangladesh. It is
a rigid constitution; it can be amended by two third majorities of the parliament members.
The constitution but not parliament is supreme. It is stated in the preamble that it is our sacred
duties to safeguard protects and defend this constitution and to maintain its supremacy as the
embodiment of the will of the people of Bangladesh. Article 7 states all powers in the
Republic belong to the people and their exercise on behalf of the people shall be affected only
under and by the authority of this constitution. This constitution is as the solemn expression
of the will of the people. The supremacy of law of republic and if any other law is
inconsistent with constitution that other law shall to the extent of the inconsistency to void.
Article 26 states that all existing laws inconsistent with the provisions of this part i.e.
Fundamental Rights, shall to the extent of such inconsistency become void on the
commencement of this constitution. The state shall not to make any law inconsistent with the
provision of this part and any law so made shall to the extent of such inconsistency is void.
Under article 102 the Supreme Court has been empowered to scrutinize the government
actions done is violation of Fundamental Rights. Again under Article 7 and 26 the Supreme
Court exercises the power of judicial review i.e. to examine the constitutionality of any law
passed by the parliament.

2.21 Imposition of Restriction over Fundamental Right

The enjoyment of rights can now where be seen in an absolute position, for the enjoyment of
ones 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 individuals rights or
interests. Unrestricted individual liberty becomes a license are jeopardizes the liberty of
others. Civil liberties as guaranteed by the constitution imply the existence of an organized
society maintaining public order without liberty it sells 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

21
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 Gopolan 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,
healthy, peace, general order and morals of the community.

2.23 The Enforcement of the Fundamental Rights

The insertion of fundamental rights in a constitution in a constitution becomes meaningless
rights 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. Similar 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 in alienable 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 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, can not be enforced than the government would be useless, the
importance of remedies to enforce fundamental rights has got recognition in article 8 of the
universal declaration of human rights, 1948 which states-
Every one has the right on an effective remedy by the competent national tribunal for
acts violating the fundamental rights granted him by the constitution or by law.

22
2.24 Effect of Violation Of Fundamental Rights
Art. 26(1) provides that all existing law inconsistent with the provisions of Part III shall, to
the extent of inconsistency, become void on the commencement of the Constitution, while art.
26(2) provides that the State shall not make any law inconsistent with any provisions of Part
III, and any law so made shall, to the extent of inconsistency, be void. Questions arise as to
whether a law inconsistent with the provisions of Part III becomes void ab initio or simply
unenforceable and whether the effect of inconsistency is the same in respect of the pre-
constitution and post-constitution laws.
The American Constitution does not contain any provision similar to art.7 or art.26 of the
Constitution. Applying the general principles of constitutional law the American Supreme
Court held early that an unconstitutional law is in reality no law and is wholly void; it
imposes no duties and creates no rights and it confers no power or authority and justifies no
act performed under it. But an all-inclusive statement of a principle of absolute retroactive
invalidity was later found to be not justified. It was held that an unconstitutional statue is not
necessarily a nullity; it may have consequences binding upon people. Proceeding on the
principle that a statue declared unconstitutional is void in the sense that it is inoperative or
unenforceable and remains in a dormant state or hibernation, it was held by the federal Court
of Appeal that a statue once declared unconstitutional and later held to be constitutional does
not require re-enactment to restore its operative force.
The Indian Constitution contains art.13 which is similar to art.26 of the Constitution. So far
as the pre-constitutional laws are concerned, the Indian Supreme Court held that the
provisions relating to fundamental rights are not retrospective in operation on the
commencement of the Constitution, and any pre-constitution law, to the extent of
inconsistency with fundamental rights, is void in the sense that it is unenforceable; when it
was passed it was valid and with
The commencement of the constitution its operation is eclipsed by the provisions of the
constitution. If the constitution is so amended as to remove the inconsistency, the law
becomes operative without re-enactment. But the law remains valid all the time as against
those who are not entitled to fundamental rights. So far as post-constitutional law the Indian
Supreme Court held the view that such a law is void ab initio and anything done under the
unconstitutional law, whether closed, completed or inchoate, will be wholly illegal; such a
law is not revived by any subsequent event. The court seems to have shifted form this
position in Gujarat v. Shri Ambica Mills wherein it took the view that where fundamental

23
rights have been conferred only on some persons, natural or justice, a pre-constitution or
post-constitution law contravening those rights is void qua those persons on whom the rights
have been conferred, but is valid qua other person on whom those rights have not been
conferred and it cannot be said that such a law is still-born or non est; the doctrine of eclipse
equally applies to pre-constitution and post-constitution laws which violate rights conferred
only on some persons.
The Pakistan Constitution of 1956 contained provisions similar to art.26 of the Constitution.
In East Pakistan vs. Mehdi Ali Khan the Pakistan Supreme Court was dealing with a pre-
constitution law and following the line adopted by the American Supreme Court made a
distinction between the legislatures inherent luck of power to enact a law in which case the
law is void ab initio and a limitation put on the power of a competent legislatures which
renders the law void only to the extent of inconsistency in the sense that it cannot be applied
to a particular case. Art.6 of Pakistan Constitution of 1962 contained a similar provision.

2.25 Prohibition of Foreign Title

The modern State is a sovereign State. It is, therefore, independent in the face of other
communities. It may infuse its will towards them with a substance which need not be affected
by the will of any external power. It is, moreover, internally supreme over the territory that it
controls. It issues order to all men all association within that area; it receives orders from
none of them. Its will is subject to no legal limitation of any kind. What it purposes is right by
the mere announcement of intention.
But such a theory of sovereignty has at least three aspects from which it demands a careful
scrutiny. It needs in the first place, historical analyses. The State as it now is has not escaped
the categories of time. It has become what it is by virtue of an historical evolution. That
development both explains the character of its present power and, at the last, offers hints as to
its possible future. It is, secondly, a theory of law. It makes of right merely the expression of a
particular will, without reference to what that will contains. Such a definition, as will be seen,
has about it an unquestionable logic; but the assumptions upon which it is compelled to build
make it valueless for political philosophy.
The modern theory of sovereignty is, thirdly, a theory of political organization. It insists that
there must be in every social order some single centre of ultimate reference, some power that
is able resolve disputes by saying a last word that will be obeyed. From the political angle,
such a view, as will be argued, is of dubious correctness in fact; and it is at least probable that
it has dangerous moral consequences. It will be here argued that it would be of lasting benefit

24
to political science if the whole concept of sovereignty were surrendered. That, in fact, with
which we are dealing, is power; and what is important in the nature of power is the end it
seeks to serve and the way in which it serves that end. These are both questions of evidence
which are related to, but independent of, the rights that are born of legal structure. For there is
historically, no limit to the variety of ways in which the use of power may be organized. The
sovereign State, historically, is merely one of those ways, an incident in its evolution the
utility of which has now reached its apogee. The problem before us has become, because of
the unified interests of mankind, that of bending the modern State to the interests of
humanity. The dogmas we use to that end are relatively of little important, so long as we are
assured that the end is truly served.
Necessity in prohibiting foreign title.
Its not needed to prohibit the foreign title because, all human beings are born free and equal
in dignity and rights. They are endowed with reason and conscience and should act towards
one another in a spirit of brotherhood. So every person shall have the right to move freely
throughout in the world. The present civilization is not closed in any special territory. In this
present era of information and technology, all types of works have fallen into the same
boundary. Thought of people are not limited. As this is the time of globalization, the problem
and solution of all people should be solved in the same way.
And thats why it is not necessary to prohibit the foreign title.
Suspension of Fundamental Rights during emergency.
There are emergency provisions in the constitution of some countries but nowhere it is
exactly defined what emergency is. Normally emergency means an unexpected occurrence
requiring immediate action. The idea of suspension of some fundamental rights in time of
emergency is common to all legal systems. Somewhere the constitution itself and somewhere
a special law makes provisions in legal terms for situations of crisis when states of emergency
may be involved.
The necessity for suspension of certain rights in times of emergency is internationally
recognized. Almost all regional and international instruments of human rights make
provisions for suspension of rights in cases of emergency. Article 4(1) of the international
covenant on civil and political rights, 1966, article 15 of the European convention for the
protection of Human Rights and Fundamental Freedom 1950 and article 27 of the American
convention on Human Rights, 1969 make, more or less, the same provision to the effect that
in time of war, public danger, or other emergency that threatens the independence or security
of a state party, it may take measures derogating from its obligation under the convention.

25
Bangladesh has been under a state of Emergency since January 11, 2007. This is the fifth time
this has happened since the independence issued by the president clearly declared that the
right to lodge cases with the courts in order to reinstate the fundamental rights ensured in part
III of the constitution shall remain suspended during the State of emergency according to the
Article 141B and 141C of the constitution of Bangladesh. Article 141B concerns the
suspension of provisions of certain article during emergencies and Article 141C concerns the
suspension of enforcement of fundamental rights during January 25, 2007. Both the
ordinance and the rules have empowered the law and order maintaining force to arrest
citizen without a warrant, Around 55,000 military personnel were already deployed on
December 9, 2006- 33 days before the store of Emergency to aid the civil administration for
the maintenance of law and order in the country according to the Home Ministrys
proclamation.
1.While a proclamation of Emergency is in operation, the president may, on the written
advice of the prime Minister, [by order], declare that the right to move any court for the
enforcement of such of the rights conferred by part III of this constitution as may be specified
in the order, and all proceedings pending in any court for the enforcement of the right so
specified, shall remain suspended for the period during which the proclamation is in force or
for such shorter period as may be specified in the order.
2. An order made under this article may extend to the whole of Bangladesh or any part
thereof.
3. Every order made under this article shall, as soon as may be, be laid before parliament.

2.26 Amendment Relating to Enforceability of Fundamental Rights

Two very significant events have taken place which have had significant events taken place
which have had significant consequence upon the operation and enforcement of the
fundamental rights. One is the proclamation of emergency throughout the country on
December 28, 1974 whose effect, however is bound to be short lived. As consequences of this
proclamation an order was passed on the court of law during the continuance of the
emergency. As soon as the emergency ends, these rights will be revived. The other event
which is of permanent nature is the enactment of the constitution (Fourth Amendment) Act,
1975 on January 25, 1975. So far, the changes effected by the forth amendment to the
constitution related to the enforcement of the fundamental rights, its is unusualness is as
attractive as it is full of significance, if not for any other reason, at least for introducing a
unique and unprecedented departure from the normal constitutional pattern followed

26
elsewhere. Under unlamented provisions of articles 44 and 102 of the constitution, any
citizen or in some cases, any person aggrieved by an infraction of any of the fundamental
rights could move the supreme court for the necessary relief. Besides, being in conformity
with the constitutional principles followed in countries which declared similar rights in their
constitutions, the provisions relating to enforcement of fundamental rights by the supreme
court as originally incorporated in article 44 and 102 of the constitution were considered
necessary for three reasons, namely, rights of citizens declared under the constitution should,
in fitness of thing and in accord with constitutional propriety, be adjudicated upon by one of
the principal organs of government, namely, the highest tribunal, the supreme court of
Bangladesh, for, in many cases involving the breach of fundamental rights the respondent
against whom remedy would be sought is one or the remaining two organs of the
government, namely, the executive or the legislature. Since the constitution declared the
fundamental rights, they are limitation on the powers of the legislature as well as the
executive and whether such limitations have been transgressed by them determination, by an
independent and impartial body or tribunal, involving high policy considerations. Secondly,
such adjudication by the highest tribunal in the country was preferred because it is likely to
command respect both of the rulers and the governed, perhaps, quite understandably, more
than any other tribunal or court set up under an act of parliament. Thirdly, such means of
enforcement would ensure speedy remedy, the number of appeals against an order made by
the court would be minimized; under the un amended provision of articles 44 and 102 only
one appeal from such an order lay to the appellate division of the court. If leave to appeal was
granted to be it under article 103(3), or a certificate to appeal was granted by the High court
Division under article 103(2) of the constitution.
Changes made by the 5th Amendment:
The 5th Amendment brought, inter alias, the following important changes in the constitution:
1. Part VIA of the constitution dealing with one party system as introduced by the 4 th
Amendment was omitted.
2. The independence of judiciary which was completely destroyed by the 4 th Amendment
was restored partially (Articles 96 and 116).
3. The jurisdiction of the High court Division of the Supreme Court to enforce
fundamental rights was restored to its original position as was in the original
constitution (Article 44 and 102).]
4. Provision of supreme judicial council in respect of security of tenure of the judges of
the Supreme Court was interested (Article96).

27
5. The provision of absolute veto power of the president introduced by the 4 th
Amendment was abolished (Article 80).
6. A provision of referendum in respect of amendment of certain provisions of the
constitution was inserted and to that end a new clause IA was created in Article 142.
7. Religious words BISMILLAHIR RAHMANIR RAHIM was inserted in the
beginning of the constitution i.e. above the preamble.
8. In the original constitution it was provided in Article 6 that citizens of Bangladesh
would be known as BANGALEES But this was changed and it was provided now
that citizens would be known as Bangladeshis.
9. One of four major fundamental principles of state policy SECULARISM was
omitted and in its place a new one the principle of absolute trust and faith in the
Almighty Allah was inserted (Article 8).
10. One of four major fundamental principles of state policy socialism was given a new
explanation to the effect that socialism would mean economic and social justice
(Article 8).
11. A new article 145A was created where it was provided that all international treaties
would be submitted to the president who should cause them to be laid parliament.
12. Another new Article 92A was created where by the president was given power to
expend public moneys in certain cases.
13. Article 58 was amended to the effect that four-fifths of the total number of minister
should be taken from among the members of parliament. It was also provided that the
president would appoint as prime Minister the Member of Parliament who appeared to
him to command the support of the majority of the members of parliament.

28
 Chapter Three
Research Methodology

3.1 The Qualitative Paradigm

The design of the research study begins with the selection of a topic and a paradigm. Researcher
has applied qualitative method to complete this research as well. Qualitative data was collected
from different types of legal books, articles, journals and websites. From the beginning of the
research, the researcher takes logical steps to prove the topic as fruitful and significant for further
research.

3.2 Researchers Role

The present research work has been done by on basis of qualitative methods, for why the
researcher has to reveal several books to develop the structural form of the research. The related
research work has been followed as per the necessities of the topic.

3.3 Data Source

To fulfill the research work, researcher captured the relevant data from the secondary sources.
The secondary data was collected from several books, journals, articles and websites. After that
researcher reviewed literature as well to perform this work more than developed.

3.4 Analysis of Documents and Verifications

The relevant data were analyzed and reviewed as per the necessities of the study. In this research,
researcher used footnotes for every resource, for book reference there was notify the book name,
author name, and publication, date and page numbers, for websites researcher point out the link
of those sites and also give the date of last access.

29
 Chapter Four
Research Findings

4.1 Perspective of Democracy

One of the patulous terms in political science is democracy. 14 Democracy derived from the Greek
word demos or people, is defined, basically, as government in which the supreme power is
vested in the people. The 16th US president Abraham Lincoln defined democracy as a
government of the people, by the people and for the people. Moreover, the term democracy
refers very generally to a method of group decision making characterized by a kind of equality
among the participants at an essential stage of the collective decision making. 15 Four aspects of
this definition should be noted, first, democracy concerns collective decision making, by which it
means decisions that are made for groups and that are binding on all the members of the group,
secondly, this definition means to cover a lot of different kinds of groups that may be called
democratic, thirdly, the definition is not intended to carry any normative weight to it, fourthly, the
equality required by the definition of democracy may be more or less deep. 16 David Bentham
said regarding democracy that when we speak of democracy, we have learnt to think of
institutional arrangements such as competitive elections, multi-party-ism, the separation of
powers, and so forth.18 In that sense, democracy is the institutionalization of freedom. 17 Freedom
is an important aspect of democracy. This is manifested in majority rule, and in the centrality of
the legislative body through which the people's representatives act. This is a formal aspect of
democracy.

4.2 Compatibility of the Freedom of Speech with Democracy

14 A.K.M Shamsul Huda, The Constitution of Bangladesh, Chittagong, 1997, Vol-1, p. 202

15 Tom Christiano, "Democracy", (2008) The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward
N. Zalta (ed.), < http://plato.stanford.edu/archives/fall2008/entries/democracy/ > Accessed 10 November 2014

16 Ibid 18 David Beetham, Democracy and Human Rights: Civil, Political, Economic, Social and cultural
Rights, in Dr. Mizanur Rahman (ed), Human Rights and Empowerment, ELCOP,Dhaka, 2001, p.19

17 Ibid 20 see note 8

30
Freedom of speech is one of the basic rights in democracy.18 The basic rights are the common
threads of a democracy. Some democratic nations guarantee it in their Constitutions or bill of
rights.19 For other nations it has evolved through common law. Freedom of speech and freedom
of press are fundamental personal rights and liberties which are the foundation stones of
democratic institutions.23 Freedom of speech is essential for the development and functioning of
democracy.20 Without freedom of speech there cannot be any democracy. 21 The freedom consists
of the right to express freely ones conviction and opinion on any matter orally or by writing,
printing or any other mode addressed to the eyes and ears of other persons. 22 Freedom of speech
and expression is not confined to any particular field of human interest 23 but guarantees the
broadest exercise of the right for religious, political, economic, scientific or informational ends. 24

4.3 Freedom of Speech and Expression in the Constitution of Bangladesh

Article 39 of the Constitution of Peoples Republic of Bangladesh contains the right of freedom
of speech and expression in the title of "Freedom of thought and conscience, and of speech". It is
stated in the said article that,
(1) Freedom of thought and conscience is guaranteed.
(2) Subject to any reasonable restrictions imposed by law in the interests 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 (a) the right of every citizen to
freedom of speech and expression; and
(b) freedom of the press, are guaranteed. 25

18 Ibid

19 Ibid 23 See note 15 page 494

20 Mahmudul Islam, Constitutional Law of Bangladesh, pg.329, third edition, Mullick Brothers
(2012)

21 See note 4

22 See note 2 page 330

23 Thomas v. Collins 323 US 516

24 Douglas v. Jeanette 319 US 157

25 The Constitution of the Peoples Republic of Bangladesh, Article 39

31
From the above article it becomes clear that the right of freedom of speech and expression has
been guaranteed by the constitution of Bangladesh but it has been made subject to reasonable
restrictions.

4.4 Democracy in the Constitution of Bangladesh

Bangladesh is a democratic country since its birth in 1972. There is mention of democracy in
many places of the Constitution of the Peoples Republic of Bangladesh. In para 2 and 3 of the
preamble there is express provision regarding democracy and in para 4 there is an implication
regarding democracy.26 Again democracy can be found in article 8(1) and 11 of the constitution. 27

4.5 Restrictions over freedom of speech and expression

Article 39(2) of the Constitution of the Peoples Republic of Bangladesh imposes certain
restrictions over the freedom of speech and expression. If we consider the above mentioned
article then we can find some grounds or elements based on which restrictions are imposed, these
are:
In the interests of the security of the State Friendly relations with foreign states
Public order
Decency or morality
Contempt of court
Defamation
Incitement to an offence

4.6 In the interests of the security of the state:

Free expression of opinion and ideas is possible in organized society and to preserve the right it
is necessary to prohibit utterances which threaten to overthrow an organized government by
unlawful or forceful means.28 The security of the State is a matter of concern when there is
serious and aggravated form of public disorder as distinguished from ordinary breach of public or

26 The Constitution of the Peoples Republic of Bangladesh, Preamble

27 Ibid Article 8 & Article 11

28 Strombrog v. California, 283 US 359

32
public safety which does not involve any danger to the State. 29 Freedom of expression must yield
when security of State is involved. 30 A reasonable restriction on the exercise of the right to know
or right to information is always permissible in the interest of security of state. 31 Security of the
state has to be distinguished from the security of the government. 32 Peaceful and orderly
opposition of the government with the object of changing the government cannot be
suppressed.33 The security of the state is a matter of concern when there is a serious and
aggravated form of public disorder as distinguished from ordinary breach of public order or
public safety which does not involve any danger to the state. 34 The security of the State is
endangered by crimes of violations intended to overthrow the government, 35 by wagering war or
rebellion against the government, or by external aggression or war, but the security of the State is
not endangered by minor breaches of public order or tranquility, such as unlawful assembly, riot
affray, rash driving and the like. However, incitement to violent crimes like murder which is an
offence against public order may endanger the security of the state. 36

4.7 Friendly relations with foreign states

Foreign relations are always a touchy matter and the state cannot be embarrassed by irresponsible
statements inside the country touching sensitive issues of internal affairs. 37 The object of this
restriction on freedom of speech is the prevention of slander and libel against foreign States in
the interest of friendly relations with them. 38 Moreover article 25 of the Constitution of the
peoples Republic of Bangladesh has also implicated about keeping friendly relation with the
foreign states.

29 seenote 8

30 Attorney General v. Leveller Magazine Ltd. , (1979) AC 440

31 PUCL v. India AIR 2004 SC 1442

32 See note 2 page 340

33 Herndon v. Lowry, (1937) 301 US 242

34 see note 37

35 Santokh Singh v. Delhi Administration, AIR 1973 SC 1091

36 Bihar v. Sailabala AIR 1952 SC 329

37 see note 2 page 344

38 Ibid 43 Madhu Limaye v. S.D.M Monghyr, AIR 1971 SC 2486, 2495

33
4.8 Public order
The expression Public order includes absence of all acts which are a danger to the security of
the State and absence of insurrection, riot, turbulence or crimes of violence, but not acts which
merely disturb the security of others. 43 According to the constitution of Bangladesh reasonable
restriction can be imposed upon freedom of speech and expression by law in the interest of
public order. The expression in the interest of enables parliament to make laws to curb the
tendency to break the peace, even though no breach of the peace has actually taken place. 44
However, for restriction to be valid, the exercise of the right must have a rational nexus with the
possible reach of public order.45 Whether in particular case an utterance would have a tendency to
create a breach of public order is to be determined objectively from the circumstances in which
the utterance is made, the nature of the audience and the like. 46 In the interest of public order, the
State may prohibit creating loud and raucous noises in streets and public places 47, regulate the
hours and the place of public discussion 48 and the use of the public streets for the purpose of
exercising the freedom of speech.49

4.9 Decency or morality

A law may impose reasonable restrictions on speech which lead to undermine public morality. 50
Whether any speech is likely to undermine decency or morality is to be determined to the
probable effect it may have on the people to whom it is addressed. 51 The test of judging a work
should be that of ordinary man or common sense and prudence and not an out of the ordinary or
hypersensitive man.52 The concept of obscenity has different meaning in different cultures; even
it is different between or among communities in the same culture. 53 So, age, culture and the like
of the audience thus become material. Use of mere abusive language without any suggestion of
obscenity to the person in whose presence it is uttered will not be a speech offending decency or
morality.54 Publication of indecent material cannot enjoy the protection of Art.39. 55 A political
party opposed to abortion in 2002 general election submitted for broadcasting a video that
contained graphic footage of an actual abortion including image of aborted foetuses which
B.B.C. refused to transmit on grounds of taste and decency. The judge refused permission to
apply for judicial review. The court of appeal reversed the decision, but the House of Lords set
aside the judgment of the Court of Appeal holding that on the basis accepted by the claimant that
party political broadcasts were subject to the same restriction on transmission of offensive
material as other programmes there had been no ground for interfering with the decision of the

34
BBC that, applying the standard laid down by parliament, the claimants video should not be
transmitted.56
Obscenity means offensive to modesty, or decency; lewd, filthy, repulsive. 39 In Roth v. United
States40, the Supreme Court defined obscenity as something which to the average person,
applying contemporary community standard, the dominant theme of the material taken as a whole
appeals to prurient interest. The court defined prurient as material having a tendency to excite
lustful thoughts. Even an immodest representation may not be reasonably restricted in the
interest of decency or morality if it conduces to the propagation of ideas and information of
public interest, e.g., books on medical science. 41 A balance must be struck between freedom of
speech and expression and public decency and morality, but when morality or decency is
substantially transgressed, freedom of speech must give way.42

4.10 Contempt of court

Contempt of court is also regarded as one of the ground to restrict the freedom of speech and
expression. In the exercise of the right to freedom of speech and expression, nobody can be
allowed to interfere with the administration of justice 61 or to lower the prestige or authority of the
court even in the garb of criticizing judgments of the court. 43 Freedom of speech and expression
is important, but much more important is the effectiveness of the administration of justice
without which the rights guaranteed by the Constitution will merely be embellishment. 44 It is for
this reason that the constitution specifically provided for the Supreme Courts power to commit
for contempt of court.45 However the law relating to contempt of court must be reasonable and
must not be as such as stifles the freedom of speech and expression. 46

39 Ranjit Singh v. Maharashtra, AIR 1960 SC 881

40 (1957) 354 US 476

41 See note 58

42 Ibid 61 Namboodripad v. Nambair, AIR 1970 SC 2015

43 Daphtary v. Gupta, AIR SC1132

44 See note 2 page 349

45 Ibid

46 Ibid 66 See note 2 page.350

35
4.11 Defamation
Reputation is a valuable asset or property of a man. 66 Nobody should be allowed to injure the
reputation of a man in the name of freedom of speech and expression. 47 The freedom is available
so long as it is not malicious or libelous and if the speech or expression is untrue and reckless,
the speaker or the author does not get protection of the constitutional right. 48 The American
Supreme Court held that libelous utterances are outside the area of constitutionally protected
speech.49

4.12 Incitement to an offence

Incitement to an offence is also considered to a ground to restrict the freedom of speech and
expression. This ground will permit legislation not only to punish or prevent incitement to
commit serious offences like murder which lead to breach of public order, but also to commit any
offence which according to the General Clauses Act means any act or omission made punishable
by any law for the time being in force. 50 It is not permissible to instigate another to do any act
which is prohibited and penalized by any law.51

4.13 Reasonableness of restrictions imposed over Freedom of Assembly and

Expression
The question of reasonableness behind the restriction imposed over the freedom of speech and
expression is a matter of great discussion and sometimes it becomes a relative matter based on
circumstances. In determining the reasonableness of a restriction upon the freedom of speech and
expression, a reasonable balance must be struck between the need for the freedom in a
democratic system of government provided for by the Constitution and the social interest in the
prevention of disorder and anarchy.52 As for example though a person is under an order of
detention, he continues to possess his fundamental right to read 53 but he may be prevented from

47 Gertz v. Robert Welch, Inc, (1974) 418 US 323

48 Saxena v. Chief Justice, AIR 1996 SC 2481

49 New York Times Co. v. Sullivan, (1964) 376 US 448

50 See note 2 page 352

51 Daphtary v. Gupta AIR 1971 SC 1132

52 Santosh Singh v. Delhi Administration, AIR 1973 SC 1091

53 Maharastra v. Probhakar. AIR 1966 SC 424

36
reading a literature which is prejudicial to the security of the state or any other social interest
mentioned in the restriction clause as envisaged in the provision relating to freedom of speech
and expression.54 The restriction is to be imposed by law and when discretion is conferred on any
authority, the law should provide sufficient guidelines for the exercise of the discretion. 55 If the
law is vague or arbitrary, or is disproportionate to the mischief sought to be remedied or the
restriction has no rational connection with the permissible grounds of restriction, or there is no
procedural safeguard against an arbitrary exercise of the power under the law, the restriction
imposed will be unconstitutional. 56 Generally, a restriction imposed will be unconstitutional if it
is indefinite in duration unless it can be shown that a permanent restriction is necessary in the
facts and circumstances of a given case.

4.14 Restriction over Freedom of speech and expression and its effects over
Democracy
Bangladesh is a democratic country since 1971. After few years of practicing parliamentary
democracy since its liberation, Bangladesh went through a serious political instability with the
staging of coups and counter coups. Several political ups and downs like introduction of one
party system by Sheikh Mujibur Rahman which was known as BAKSAL, military rule by Ziaur
Rahman and HM Ershad and irresponsible competition of political parties to capture power have
placed the democratic journey of the countries at stake. 57 However, the nation has restarted her
journey to democracy with over throw of Ershad in 1990 but the path is not moisturized till now,
though as an independent nation, Bangladesh has passed about forty three years but the
achievements in the spheres of democracy and development are not noteworthy. 58 And still the
democracy is facing problems. Though the Constitution of Peoples Republic of Bangladesh
guarantees freedom of speech and expression under article 39, but such freedom is subject to
reasonable restrictions. Again, peoples speech and expression is mostly expressed through press
and media. There is also restriction imposed upon press. The committee to protect journalists

54 Narayana v. Kerala, AIR 1973 Ker 97

55 Shuttlesworth v. Birmingham, (1969) 394 US 147

56 See note 2 page 353

57 Ms. Amrita Chowdhury, Democratic Deficit in Bangladesh: A Cause for Concern (2010)
<www.globalindiafoundation.org/democratic%20deficit.pdf> accessed on 25 October 2014

58 Mohammad Tarikul Islam,Freedom of press in democracy :Bangladesh perspective, [2007] ,

Vol. 29, Asian Affairs, page. 44-60.

37
(CPJ) declared Bangladesh to be one of the most violent places in the world for reporters. 59 In
deed, investigative journalism has become an increasingly hazardous occupation in Bangladesh. 60
The journalists are harassed in Bangladesh in different ways. Libel and defamation cases against
journalist are used as tools of harassment. Although turning to procedures laid out in the law,
rather than resorting to extra-legal measures such as roughing up and intimidating individuals on
ransacking offices, may appear democratic, the uses and interpretation of the law leave much
room for manipulation.61 Many laws in Bangladesh compel journalists to practice some degree of
self-censorship, when even a case is filed under section 501 of the penal code, which relates to
printing or engraving matter known to be defamatory. The courts response is to issue an arrest
warrant rending investigation, it has become a practice in Bangladesh that on the day of the first
hearing, the court issues a warrant and in most cases, irrespective of the charges gravity,
journalists are ordered to be arrested immediately. It has been a long-standing demand of the
press that the practice on issuing warrants be changed so that journalists are not inhibited by the
fear of arrest even if their report is based on facts. 62
In addition to this provision, there are certain other provisions of the penal code, viz., sedition
(section 124 A), defamation (section 499-502), statements conducing to public mischief (section
505), offence relates to obscenity (sections 292 and 293), deliberate and malicious acts intended
to outrage religious feelings of any class by insulting its religion on religious feelings (section
295A) etc. manipulation of which allow the govt. to intrude on the free and fair exercise of
freedom of press, the Official Secrets Act, 1923 restricts the journalists to have access to official
materials.63 The administration is a vital source of news as it is the arena where corruption,
mismanagement are most likely to take place the bureaucracy in Bangladesh till looks at the
press with suspicion and fear, and tries to avoid the journalists. 64 This is a stumbling block to the
growth and impact of freedom of speech and expression and of the press for an accountable and
efficient democratic system in Bangladesh.
Political parties in Bangladesh influence the role of press to a great extent. To fulfill their own
needs political parties often violate all the fundamental rights guaranteed in the constitution. The

59 Ibid

60 Ibid

61 Ibid

62 Ibid

63 Ibid

64 Ibid

38
takeover of power by care-taker Govt. backed by the military in 11 January, 2007 shown a new
dimension of violation restricting the right of freedom of speech and expression and postponing
the basic ideology of democracy.65
Almost 18 months after the military takeover, the country held what were generally regarded as
free and fair elections on December 29, 2008, bringing Sheikh Hasinas AL-led alliance to
power. Though the Government was committed to uphold the ideology of democracy but it cant
be seen in their activities. Despite repeated promises to promote freedom of expression,
government actions in the last few years have raised serious questions about its commitment to
press freedom. Newspapers and TV stations must obtain government permission to operate, and
the government can cancel publication rights at its discretion. The government has shut down
two TV stations named as Channel One and Jamuna TV and also canceled the publication rights
of the Bangla daily newspaper Amar Desh, and indirectly interfered with the publication of news
items and editorials highly critical of government policies and programs. 66 It has also made
decisions to block Facebook and Youtube without reasonable grounds. 67 In addition, the
government has significant control over several broadcast media outlets and owns the only
national terrestrial channel, the public BTV. The governments long pattern of harassment of
Amar Desh continued until it shut the paper down in June 2010. 68 It is also engaged in extensive
legal harassment of the editor, Mahmudur Rahman, who is known to be a close ally of opposition
leader Mrs. Khaleda Zia and a former energy adviser to the BNP government. 69 Rahman was
arrested on charges of fraud and defamation in June 2009. He was held on charges of sedition
and reportedly tortured while in custody, then sentenced to six months imprisonment on charges
of contempt in another case. 70 A regional human rights organization claims that the government

65 Professor Emajuddin Ahamed, Democracy in Bangladesh: Prospects and problems, The Bangladesh
Chronicle (Bangladesh, 19 December 2013) <
http://www.bangladeshchronicle.net/index.php/2013/12/democracy-in-bangladesh-prospects-andproblems/>
accessed 20 November 2014

66 Bangladesh: Government should stop the repression of freedom of expression and release the detained
media-professionals, Asia Human Rights Commission, June 3, 2010,
<http://www.ahrchk.net/statements/mainfile.php/2010statements/2582/> in Fahimul Quadir, Countries at the
crossroads 2011: Bangladesh (Freedom House, 2011)
<https://freedomhouse.org/report/countriescrossroads/2011/bangladesh#.VHF5asl9vIV> accessed 20 November
2014

67 Ibid

68 Ibid

69 Ibid

70 Ibid

39
has been suppressing the media in fear of criticism of its own actions that threaten the democratic
process and the upholding of the rule of law in Bangladesh. 71 Criminal libel laws were used to
silence voices critical of the government and key members of the ruling party.
The March, 2011 dismissal of Nobel laureate and political critic Dr. Muhammad Yunus as the
managing director of Grameen Bank makes it apparent that the current government has little
patience for dissident voices. Yunuss removal suggests that the current government will not
hesitate to push forward state frontiers to maintain its control over civil space. 92
In the year of 2012, a young lecturer of Jahangirnagar University, Savar, Dhaka, posted a
Facebook status while in Australia on educational leave regarding a tragic road accident of a
creative film director Tareq Masud and mismanagement of the concerned authority relating to
licensing of drivers along with the Prime minister. The highest court of Bangladesh had asked the
government to bring sedition charges against this lecturer as it advocates unlawful conduct
against the government.72 Moreover, amendments brought to the ICT Act, 2006 through the ICT
(Amendment) Act, 2013 gives law enforcers broad powers of arrest and are restrictive to online
expression.73 As we know in democratic society, every citizen has the right to criticize the
mismanagement of the Government. But, if criticizing results in the people charged with sedition
then it harms the essential elements of democracy.
The present elected Government of Bangladesh on the election of 5 January 2014 has been
elected through an election where the major opposition party BNP did not take part. They may
be lawful under the 15th Amendment of the constitution, but its legitimacy remains subject to
question. And the present Government is violating many of the fundamental rights including the
right to freedom of speech and expression of the people specially the people belonging to the
opposition. As a result of this the core ideology of democracy is to some extent destroyed in this
country.

71 Ibid 92 Fahimul Quadir, Countries at the crossroads 2011: Bangladesh (Freedom House, 2011)
<https://freedomhouse.org/report/countries-crossroads/2011/bangladesh#.VHF5asl9vIV> accessed 20
November 2016

72 Elin Saha, Facebook and freedom of speech, Dhaka Tribune (Dhaka 20 June 2013)
<http://www.dhakatribune.com/long-form/2013/jun/20/facebook-and-freedom-speech-0> accessed on 20
November 2014

73 Bangladesh: Lack of protection for journalists and online activists, (ARTICLE 19, 02 May 2014)
<http://www.article19.org/resources.php/resource/37538/en/bangladesh:-lack-of-protection-for-journalistsand-
online-activists> accessed on 21 November 2014. ----------

40
4.15 Findings

Freedom of expression is an important indicator of a democratic society and development. If

freedom of expression is prevailing in a country or society, other democratic rights and
freedoms will automatically be ensured. Because, by exercising the freedom, people can
participate in decision-making through free access to information and ideas. To understand
the presence of freedom of expression and right to information, we need to understand the
local political context, history and cultures. Bangladesh is politically a highly polarized and
divided country. The guarantees of the rights do not depend only on the relevant laws, but
social, political and cultural processes. The restrictions over the freedom of speech and
expression as envisaged in the Constitution is the main hindrance to it, if it is exploited
unreasonably to fulfill the interest of a single community or in the interest of the ruling party.
The present condition of the freedom of speech and expression in Bangladesh is
questionable. Though there is minimum freedom of speech and expression in Bangladesh,
but it is not enough to turn Bangladesh into a successful democratic country. The most
necessary thing to maximize the freedom of speech and expression in Bangladesh is that the
ruling party should not use the restriction envisaged in the Constitution to fulfill their own
interest. If it can be ensured then we might be able to see an ideal Bangladesh, as a model of
democracy in the world.

4.16 Some Case studies On The Fundamental rights:

Case Reference no.1

Dr. Nurul Islam v. Bangladesh

Fact of the case

The appellant Dr. Nurul Islam was appointed an assistant surgeon in 1952(in East Bengal)
and by successive promotions he became the Director and professor of medicine of the
Institute of post-graduate and Research in 1971(in Bangladesh).In November, 1978 the Govt.
issued a notice where by the appellant was relieved of his duties as professor of Medicine; he
was to continue as Director of the institute which was made a non-practicing post. The
appellant challenged this notice in the High Court Division by write petition no. 571 of
197889 and a bench of the High Court Division on 6-12-79 declared the notice to have been

41
issued without lawful authority. The government as found by the Supreme Court , reacted to
the High Court declaration by ordering the retirement of the appellant from service under
sub-section(2)of section 9 of the public servants Retirement Act, 1974 which is to the effect
that the Govt. is empowered to retire a govt. servant on the completion of 25 years service .
The appellant again challenged this order in a fresh write petition to the High Court Division
on the ground, amongst others, that the retirement order is just a measure of punishment on
him for his successful challenge of the Governments previous notice declared to have been
issued without lawful authority. The High Court Division in the present instance refused with
the Govt.s decision in retiring the appellant 4/s 9(2) of the public service retirement Act and
gave him no relief where upon the appellant move the Appellate Division as against the
aforesaid decision of the High Court Division alleging, inter alia,malafide in the Government
in causing his premature retirement; he further stated that there are in the cadre as many as 34
doctors who have completed 25 years service and many of whom were senior to the appellant
in service but none of them had been retired . It was therefore contended that the impugned
notification issued on June 5, 1980 was issued for collateral purposes the provisions of
Article 27 and 29 of the constitution appellant was not given any opportunity of being heard
before the impugned notification was issued it was violated of Article 135 of the constitution.

Judgment of the case

Article 27 of the constitution which speaks of entitled to equal protection of law interpreted
by R.Islam, J.at paragraph 87 as under:

The principle on which the doctrine of equal protection of laws is founded is that persons in
similar circumstances must be governed by the same laws. The legislative classification by
itself does not offend against the principle of equal protection of the laws provided the laws
operate equally in all members of the said class or group. For valid legislation, classification
must be reasonable for the purpose of legislation, should be based on proper and justifiable
distinction, should not clearly arbitrary and should have all reasonable relation to the objects
and to the public purpose sought to be achieved by the legislation.

Case reference no 2

University of Dhaka v.Dr.S.Hussain and another

42
Fact of the case

The principle of protection as provided in Article 35 of the constitution was invoked in as

much as presidents order No. 67 of 1972 does not contain any express words giving
retrospective effect, but the statute is prospective in nature only. Dr. Sayed Sajjad Hossain,
who was the vice chancellor of the DhakaUniversity during the war Liberation. His case was
referred to the First screening Board constituted under the presidents order No. 67 of 1972.
The screening Board found him guilty. Accordingly, the respondent was dismissed from his
service. The dismissal order was challenged before the High Court Division. The High Court
Division upheld the order of dismissal.

Judgment of the case

B.H.Chowdhury, J. in paragraph 45 as held as follows:

In view of the matter the opinion of the activities attributed to the respondent Dr. Sajjad
Hossain and Dr. Mohar Ali allegedly were performed in 1971 do not come within the
mischief of the presidents order No. 67 of the 1972. Such activities are punishable under
presidents order No. 8 of 1972 which was given retrospective effect. Both the respondents
were given clemency and in the write petition they quoted the statement of the prime minister
as mentioned in the press note. After assurance of such clemency, it was not permissible for
initiation of any proceedings. Presidents order NO.67 of 1972, however, has no manner of
application because it was not given respective effect.

43
 Chapter Five
Conclusion

I have been observed that the constitution of Bangladesh has included all the basic attributes
of fundamental rights. But practically sometimes the government is compelled to violate the
fundamental rights of the people in Bangladesh due to some unavoidable circumstances. The
ruling class should be truly respectful to the fundamental rights of the people. There should
not be any international barrier Created by government for political interest and to oppress
the opposite. It is the responsibility of the government to limit the events to violate the
fundamental rights of the people and try their best respond these rights in some very rare
cases where there is no really no other alternative and which is truly done for the sake of the
country s overall benefit with no purpose of self-interest of the ruling party some more
restriction and controlling can be developed in the constitution of our country to regulate and
prevent the indiscriminate and whimsical violation of the rights by the ruling power
furthermore, the consciousness rights. So their rights cannot be violated by the ruling class
for their self-interest.

44
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Jeremy McBride, Freedom of Association, in The Essentials of... Human Rights, Hodder
Arnold, London, 2005, pg.18-20

Freedom Of Assembly "Constitution of Bangladesh: Chapter III". Prime Minister's Office.

Retrieved 2 October 2011.

"The Italian Constitution" (PDF). The official website of the Presidency of the Italian
Republic.

"Constitution of Russia: Article 30". Adopted at National Voting on December 12, 1993.

Ten Cate, Irene M. (2010). "Speech, Truth, and Freedom: An Examination of John Stuart
Mill's and Justice Oliver Wendell Holmes's Free Speech Defenses".

Yale Journal of Law & the Humanities. 22 (1). Article 2. "[A] central argument for freedom
of speech in On Liberty is that in order to maximize the benefits a society can gain ... it must
permanently commit to restraining dominant groups from their natural inclination to demand
conformity."

Wragg, Paul (2015). "Free Speech Rights at Work: Resolving the Differences between
Practice and Liberal Principle" (PDF).

"Article 19". International Covenant on Civil and Political Rights. Office of the United
Nations High Commissioner for Human Rights; adopted and opened for signature,
ratification and accession by UN General Assembly resolution 2200A (XXI) of 16 December
1966, entry into force 23 March 1976. 23 March 1976. Retrieved 13 March 2014.

45