Rights what are basic is consider as fundamental. Those are significant than other rights. Many other countries preserve fundamental rights in their constitution. In Bangladesh side fundamental rights has a great role by its obeying and as well as effectiveness. It is universal truth that “rights are for the people, by the people and the people”
We are the people of twenty-first centuries. Here peoples are absolute for their basic needs and fundamental rights. What are not one-man show but it is for mass people. Now we may discuss about the multi-lateral sides of fundamental rights.
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.
Before understanding fundamental rights one should have idea about rights and human rights. Rights means a claim of some interests adverse by an individual or a group of individuals which has either moral or legal basis and which is essential for his development in the society.
Human rights: -
The term “Human rights” which does not mean any right is used in a special sense. Human rights are those of legal and moral rights which can be claimed by any person for the very reason that he is a human being
These rights come with birth and applicable to all people through out the world irrespective of their race, sex, caste, 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. Sridath Rampal as to human rights-“They have their origin in the fact of the human condition and because the have, they are fundamental and inalienable. More specifically, they were born not of man but with man.”
Human rights, therefore, have to inherent characteristics-Universal inherent and inalienability.
Fundamental rights: - The term “Fundamental rights” is a technical one, for when certain human rights are written down in a constitution and are protected by constitutional guarantees they are also called fundamental rights. They are called fundamental rights in the sense that they are placed in the supreme or fundamental law of the land, which has a supreme sanctity over all other law of the land.
Following the footsteps of the French Declaration of rights of Man and Citizen, 1789 and the American Declaration of the US constitution in 1791 most of the Democratic countries with Fundamental rights with special sanctity.
The object of enumeration of fundamental rights in a constitution is not to make them unalterable in any way but main object is that they cannot be taken away by ordinary process of law making. They are placed beyond the reach of the executive and the legislative to act in violation of them.
Justice Jackson pointed out the object of the incorporation of fundamental rights in the US constitution—“The very purpose of a bill of rights is to withdraw certain subject from the vicissitudes of political controversy; to place them beyond the reach of majorities and principles to be applied by the courts. One’s ... fundamental rights may not be submitted to vote, they depend on the outcome of no election.”
What is voted cannot be blotted. Human rights and as well as fundamental rights have two different pathways. So we may distinguish of these two sorts of rights. What’s are as followed: -
Firstly, all fundamental rights are human rights but all Human rights are not fundamental rights. Fundamental rights are those of human rights, which are placed in a written constitution. Human rights, therefore, are the whole of which fundamental rights are a part.
Secondly, the source of a fundamental right is the constitution whereas the source of Human rights is the international law.
Thirdly, fundamental rights have territorial limitations i.e. they have no application as fundamental rights outside the territory of a particular state. But human rights have no territorial limitation; they have universal application.
Fourthly, fundamental rights are protected by constitutional guarantees and can be enforced through the state courts. But there is no effective enforcement machinery for human rights.
Fifthly, fundamental rights are largely applicable to the citizens while human rights are universally applicable to all human being.
Keeping in line with this idea restriction has been imposed on some fundamental rights under the Bangladesh constitution. On the basis of this restriction all fundamental rights enumerated in the Bangladesh constitution may be classified into following three groups: -
A. Absolute rights:
Some rights have been kept in an unfettered form in the sense that parliament cannot, except as provided in the constitution, impose any restriction over them. They are following: -
Equality before law (Art.27): All citizens are equal before law and are entitled to equal protection of law.
Discrimination on grounds of religion etc. (Art.28): The state shall not discriminate against any citizens on grounds only of religion, race, caste, sex place of birth.
Equality of opportunity in public employment (Art.29): There shall be equality of opportunity for all citizens in respect of employment or office in the service of the republic irrespective of religion, race, caste, sex or place of birth. Nothing in this article shall prevent the state from making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the republic.
Prohibition of Foreign titles etc. (Art.30): No citizen shall, without the prior approval of the president, accept any title, honour, award or decoration from any foreign state.
Safeguards as to arrest and detention (Art.33): No person who is arrested shall be detained in custody without being informed of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, and no such person shall be detained in custody beyond the said period without the authority of a magistrate except in the case of any person who for the time being is an enemy alien, or who is arrested or detained under any law providing for preventive detention.
Prohibition of forced labour (Art.34): all forms of forced labour are prohibited, and any contravention of this provision shall be an offence punishable in accordance with law. Nothing in this article shall apply to compulsory labor by persons undergoing lawful punishment for a criminal offence, or required by any law for public purposes.
Protection in respect of trial and punishment (Art.35): No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence. Every person accused of criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law. No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
Enforcement of fundamental rights (Art.44): the right of every citizen to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of any of the fundamental rights conferred by Part III of the Constitution.
B. Rights on which reasonable restriction can be imposed:
They are following:
Freedom of movement (Art.36): Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.
Freedom of assembly (Art.37): 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.
Freedom of Association (Art.38): Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order.
Freedom of thought and conscience and speech (Art.39): 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 the right of every citizen to freedom of speech and expression, and freedom of the press are guaranteed.
Freedom of religion (Art.41): every citizen has the right to profess, practice or propagate any religion, and every religious community has the right to establish, maintain and manage its religious institutions.
Protection of home and correspondence (Art.43): every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law.
The grounds for imposing restriction on these rights have been laid down by respective section:
1. in the public interest (Art.36)
2. in the interest of public order or public health (Art.37)
3. in the interest of public order or morality (Art.38)
4. in the interest of the security of the state, friendly relation with foreign state, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence (Art.39)
5. in the interest of the public order and morality (Art.41)
6. in the interest of the security of the state, public order, public morality or public health (Art.43)
C. Fundamental rights which have been practically left to the legislature:
There are some rights on which parliament can by law impose any restriction it pleases. They are following:
Right to protection of law (Art.31): Enjoy the protection of the law and to be treated in accordance with law, is the inalienable right of every citizen.
Protection of right to life and personal liberty (Art.32): No action detrimental to the life, personal liberty, body, reputation property of any person shall be taken except in accordance with law.
Right to lawful profession, occupation or business (Art.40): subject to any restrictions imposed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.
Protection of property right (Art.42): every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law.
No more stony to sleep for our right. So none can scope the touch of Fundamental rights.