Constitutional Law of Bangladesh (Human Rights: Article 26)

Introduction: Fundamental Rights are a set of human rights that are recognized under the laws of a country to protect their citizens. In Bangladesh, Fundamental Rights are protected by Part III of The Constitution of Bangladesh. Every citizens of our country are entitled to enjoy Fundamental Rights. Part III of our Constitution recognizes 18 human rights as our fundamental rights. People who are not the citizen of our country also entitled to enjoy 6 types of fundamental rights as a human being. That are Protection of right to life and personal liberty, safeguard as to arrest and detention, Prohibition of forced labor, Protection in respect of trial and punishment, Freedom of religion and Enforcement of fundamental rights.

 

Laws inconsistent with fundamental rights to be void: All existing law, inconsistent with fundamental rights, to the extent of such inconsistency is void and the State shall not make any law, inconsistent with any provision of fundamental rights. If made so, to the extent of such inconsistency is void. Nothing is amendable in this Article under Article 142.

 

Case references:

 

(1)   State Vs Dosso Case:

In State Vs Dosso case, Chief Justice Munir observed that, “The very essence of fundamental right is that it is more or less permanent and cannot be changed by the ordinary law.

 

(2)   Golaknath Vs State of Punjab Case:

 

Fact: The family of Henry & Golaknath had 500 acres of farmland in Punjab. According to Punjab Security and Land Tenures Act, the state government held that every brother can only keep 30 acres. Golaknath family was challenging this in the courts. The family filed a petition under Article 32, challenging The Punjab Act on the ground that, it denied their constitutional rights to acquire and hold property and practices any profession and to equality before law and equal protection of the law. They also mentioned the Seventeenth Amendment which was held the Punjab Act in the Ninth Schedule declared ultra vires.

 

Judgement: The court held that fundamental rights mentioned in Part III of the Constitution are given “transcendental position” and are beyond the reach of the Parliament. It also declared any amendment that takes away fundamental rights conferred by Part III as unconstitutional.

 

We know that, fundamental rights are the basic structure of the Constitution. Parliament may amend the constitution but cannot get away the fundamental rights.

 

(3)   Kesavananda Bharati Vs State of Kerala Case:

 

Fact: Kesavananda Bharati, head of Ednerr Matha, was challenging the Kerala government’s attempts under State Land Reform Act, to impose restrictions on the management of its property under Article 26, concerning the right to manage religiously owned property without government interference.

 

Judgement: The Supreme Court held that, while Parliament has wide powers, it did not have the power to destroy the basic elements of fundamental features of the constitution.