Chapter Two

Conceptualization

2.1 Introduction
2.2 Rights
2.3 Fundamental Rights
2.4 Constitution
2.5 Fundamental Principles of State Policy
2.6 Historical Background

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2.1 Introduction: Fundamental rights grant the citizen’s dignity of life in an atmosphere of
freedom and justice beyond the man made chains 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 different force with conflicting class or individual interests.
Such conflicts make is difficult to bring about balance 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. 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. 1

2.2 Rights: Rights are legal, social, or ethical principles of freedom or entitlement; that is,
rights are the fundamental normative rules about what is allowed of people or owed to people
according to some legal system, social convention, or ethical theory. Rights are of
essential[citation needed] importance in such disciplines as law and ethics, especially theories of
justice and deontology.

The history of social conflicts has often involved attempts to define and redefine rights.
According to the Stanford Encyclopedia of Philosophy, “rights structure the form of
governments, the content of laws, and the shape of morality as it is currently perceived”. 2 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

1
Fundamental Rights in Bangladesh Constitution, linkedin, at, [Link]
bangladesh-constitution-bdlex-manupatra (Accesses on: 28/03/24)
2
Rights, wikipedia, at, [Link] (Accessed on: 28/03/24)

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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. 3

2.3 Fundamental Rights: The fundamental rights of the people of Bangladesh have been
enshrined in the constitution of the country. All past laws inconsistent with these rights are made
void by the Constitution, and it enjoins upon the State not to make any law inconsistent with
these rights. Certain rights may, however, remain suspended under the provisions of Articles
141(a), 141(b) and 141(c) during an emergency arising out of a threat to the country’s security or
economic 4 life. Fundamental rights give the citizens dignity of life in an atmosphere of freedom
and justice beyond the man-made fetters that had constricted their physical and mental horizons.
Modern judiciary is regarded as an excellent product of civilization to put the concept of justice
to work in the midst of divergent forces with conflicting class or individual interests. Such
conflicts make it difficult to bring about equilibrium in the society for a peaceful and orderly
association of citizens for their common good. An independent judiciary and strong democratic
institutions are the best guarantee against assaults on the rights of the citizens. The fundamental
rights of the people in Bangladesh are listed under Articles 27 to 44 of Part III, and the
jurisdiction of the high court Division of the Supreme Court to enforce the rights is defined in
Article 102 of Part Vl of the Constitution of 1972.

2.4 Constitution: Constitution of the People’s Republic of Bangladesh was adopted by the
Constituent Assembly on 4 November 1972 and came into force on 16 December of the same
year, marking the Victory Day. The Constitution has 153 Articles arranged under eleven parts
and 4 schedules entitled the Republic, Fundamental Principles of State Policy, Fundamental
Rights, the Executive, Prime Minister and the Cabinet, the Legislature, Legislative and Financial
Procedure, Ordinance Making Power, Judiciary, Elections, Comptroller and Auditor General,
Services of Bangladesh, Public Service Commission, Emergency Provisions, Amendment of the
Constitution, and Miscellaneous. The Constitution has declared Bangladesh a Republic
3
Fundamental Rights in the Constitution of Bangladesh, lawhelpbd, at,
[Link] (Accessed on: 29/03/24)
4
Fundamental Rights, banglapedia, at, [Link] (Accessed
on: 28/03/24)

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committed to the principles of democracy and human rights; rule of law; freedom of movement,
assembly and association; freedom of religion and international peace and harmony. Since 1972,
the Constitution has undergone seventeen amendments and changes, some by way of
constitutional amendments and some under Martial Law Proclamation Orders. The form of
government has also undergone changes quite a number of times. Bangladesh began its
constitutional journey with an ad hoc Constitution under the Proclamation of Independence
Order (10 April 1971) investing the president (of the mujibnagar government) with all executive
and legislative authority and the power to appoint a prime minister. This proclamation order was
replaced by the Provisional Constitution of Bangladesh Order, 1972 which declared the members
elected to the National Assembly and Provincial Assemblies of Pakistan in the elections held in
December 1970 and March 1971 as the Constituent Assembly of the Republic. The Order
changed the form of 5government to a parliamentary system with a cabinet of ministers headed
by the Prime Minister. The Constitution was fundamentally amended in January 1975. Under the
Constitution (Fourth Amendment) Bill 1975, the parliamentary system was abandoned and the
presidential system introduced. From 15 August 1975 to 9 April 1979, there were several rounds
of martial laws interspersed with civil governments. The governments, civil or military, during
the period had neither abrogated the Constitution nor observed it fully. Every regime ruled partly
by decrees, partly by Constitution. All the constitutional anomalies were regularized and
confirmed under the Constitution (Fifth Amendment) Act, 1979. Under this amendment all
Proclamations, Martial Law Regulations, Martial Law Orders and other laws and tribunals made
during the period from 15 August 1975 to 9 April 1979 were ratified and confirmed. The
subsequent Martial Law Proclamation, Chief Martial Law Administrator’s Orders, Martial Law
Regulations and Ordinances were confirmed and ratified by the Constitution (Seventh
Amendment) Act, 1986. The multi-party presidential form of government had continued down to
1991 when the Constitution was again amended in favour of a parliamentary system of
government. Under the Constitution (Twelfth Amendment) Act, 1991, the Prime Minister
became the executive head, and the President the constitutional head. The executive power of the
Republic, according to the twelfth amendment, shall be exercised by the Prime Minister, and
his/her cabinet shall be collectively responsible to the Parliament. However, all executive actions
of the government shall be expressed to be taken in the name of the President, though the

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Constitution, banglapedia, at, [Link] (Accessed on: 28/03/24)

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presidency is vested with practically no executive power. Theoretically, the President has the
power to appoint the Prime Minister and the Chief Justice. But such power is formal and
symbolic. The President, like the Crown of Britain, holds dignity and grace, not power. A very
significant amendment to the Constitution is the Constitution (Thirteenth Amendment) Act, 1996
which provided for a Non-Party caretaker government which shall work during the period from
the date on which the Chief Adviser enters office after Parliament is dissolved till the date on
which a new Prime Minister enters upon his or her office. The Non-Party Caretaker Government,
which is headed by a Chief Advisor, is collectively responsible to the President. Under the
Constitution (Fifteenth Amendment) Act 2011, the provision for Caretaker Government has been
removed.

2.5 Fundamental Principles of State Policy: 6 Fundamental Principles of State Policy

enshrined in Articles 8 to 11 and 13 to 25 of Part II of the Constitution of the People’s Republic
of Bangladesh. According to Article 8, as amended by the Proclamations Order No. 1 of 1977,
the principles of absolute trust and faith in Almighty Allah, nationalism, democracy and
socialism meaning economic and social justice, together with the principles derived from them,
shall constitute the fundamental principles of state policy, and that absolute trust and faith in
Almighty Allah shall be the basis of all actions. The Article also says that the principles set out in
Part II shall be fundamental to the governance of Bangladesh, shall be applied by the state in the
making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of
Bangladesh, and shall form the basis of work of the state and of its citizens, but shall not be
judicially enforceable. Article 9 of the Constitution, also amended by the same Order, speaks of
promotion of local government institutions with special representation from peasants, workers
and women. Article 10, also amended by the Order, enjoins upon the state to take steps to ensure
participation of women in all spheres of national life. Article 11, amended by the Constitution
(Fourth Amendment) Act, 1975 and the Constitution (Twelfth Amendment) Act, 1991, says that
the country shall be a democracy in which fundamental human rights and freedom, and respect
for the dignity and worth of the human person shall be guaranteed, and in which effective
participation by the people through their elected representatives in administration at all levels
6
Fundamental Principles of State Policy, banglapedia,at, [Link]
title=Fundamental_Principles_of_State_Policy (Accessed on: 28/03/24)

5
shall be ensured. Article 12 which spoke of secularism and freedom of religion was omitted by
the Proclamation Order No. 1 of 1977. Article 13 says that the people shall own or control
instruments and means of production and distribution through state ownership, cooperative
ownership and private ownership. Article 14 enjoins upon the state to emancipate the toiling
masses of peasants and workers and the backward sections of the people from all forms of
exploitation. Article 15 makes it a fundamental responsibility of the state to secure for its citizens
the provision of the basic necessities of life, the right to work, the right to reasonable rest,
recreation and leisure, and the right to social security. Article 16 says that the state shall take
effective measures to ensure balanced development of the rural areas so as to remove the
disparity in the standards of living between the urban and the rural people. Article 17 asks the
state to take effective measures to provide free and compulsory education to all children, and
remove illiteracy as fast as possible. Article 18 asks the state to take effective measures to
improve the level of nutrition and public 7 health, and to prevent alcoholism, addiction to drugs,
prostitution and gambling. Article 19 asks the state to take effective measures to ensure equality
of opportunity for all citizens, and uniform level of economic development throughout the
country. Article 20 says that work is a right, a duty and a matter of honour for every capable
citizen, and everyone shall be paid according to his work, and that the state shall endeavour to
create conditions in which human labour, whether intellectual or physical, shall become a fuller
expression of creativity and of the human personality. Article 21 says that it is the duty of every
citizen to observe the Constitution and the laws to maintain discipline, to perform public duties
and to protect public property, and that every public servant has a duty to strive at all times to
serve the people. Article 22 asks the state to ensure the separation of the judiciary from the
executive organs of the state. Article 23 asks the state to adopt measures to conserve the cultural
traditions and heritage of the people and to foster and improve the national language, literature
and the arts. Article 24 enjoins upon the state to take measures to protect monuments of national
importance. Article 25 directs the state to base its international relations on the principles of
respect for national sovereignty and equality, non-interference in the internal affairs of other
countries, peaceful settlement of international disputes, and respect for international law and the
principles enunciated in the UN Charter. By an amendment made by the Proclamation Order No.

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Fundamental Principles of State Policy, banglapedia,at, [Link]
title=Fundamental_Principles_of_State_Policy (Accessed on: 28/03/24)

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1 of 1977, it also asks the state to endeavour to consolidate, preserve and strengthen fraternal
relations among Muslim countries based on Islamic solidarity.

2.6 Historical Background: 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. 8

Ancient Origins:

Ancient Codes: Early legal codes like the Code of Hammurabi (1754 BC) and the Laws of
Manu (c. 200 BC) laid down principles that governed the rights and duties of individuals,
although they were not universally applied.

Philosophical Foundations:

Greek and Roman philosophers like Socrates, Plato, and Cicero discussed concepts of natural
law and justice, influencing later ideas on individual rights.

Medieval to Enlightenment Era

Magna Carta (1215):

The Magna Carta in England established the principle that everyone, including the king, was
subject to the law, and it included protections for certain rights.

Petition of Right (1628):

Another English document that laid down liberties of the subjects that the king was prohibited
from infringing.

Age of Enlightenment:

8
Fundamental rights,linkedin,at, [Link]
bdlex-manupatra#:~:text=Fundamental rights in the constitution,the protection of these rights. (Accessed on:
28/03/24)

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 Philosophers like John Locke, Jean-Jacques Rousseau, and Montesquieu introduced ideas of
natural rights, social contract, and separation of powers, shaping modern understanding of
individual rights.

19th to 20th Century

Universal Suffrage Movements: Movements in the 19th and early 20th centuries expanded the
idea of rights to include political participation, especially for women and marginalized groups.

Universal Declaration of Human Rights (1948):

Adopted by the United Nations, this landmark document enshrined the rights and freedoms of all
human beings.

Constitutional Developments:

Post-WWII constitutions, such as the Indian Constitution (1950), incorporated comprehensive

lists of fundamental rights inspired by earlier documents and the global human rights movement.

Modern Context

International Human Rights Treaties:

Treaties like the International Covenant on Civil and Political Rights (1966) and the European
Convention on Human Rights (1950) further codified and protected fundamental rights on a
global scale.

Fundamental rights have thus evolved from ancient legal traditions through philosophical
discourse, revolutionary declarations, and modern international agreements, shaping the
contemporary framework for human rights protection.