What are 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 are applicable to all people throughout the world
irrespective of their race colour six language or political or other opinion. These are therefore those
rights that are inherent in human person and without which they can not live as human beings. Human
Rights are concerned with the dignity and worth of the individual.

Jaques Maritain says, The Human person possesses rights because of the very fact that it is a person
possess rights because of the very fact that it is a person a whole a master of itself and its acts and
which consequently is not merely a means to an end but an end which must be treated as such ———
these are things which are owed to man because of the very fact that he is man.

It is important to mention the comment of sridath Ramphal as to Human Rights the human condition
and because the have they are fundamental and inalienable. More specifically they are born not of man
but with man.

Human Rights have to inherent characteristics universal inherence and inalienability. These two
characteristics distinguish the concept of Human Right from other right. Universal inherence means that
these rights are universally in horrent in all human beings and anyone can claim these rights after his
birth. Inalienability as an essential feature of Human Rights means that these rights can not be taken
away. They can not be the object of sale or purchased or any kind of transfer. In this sense Human Rights
are different from citizens rights which are protected by the positive law of the state and the state can
any time take away or abolish any citizen’s right. But Human Rights are rights that existed before the
state come into being and for this they are natural and inalienable rights.

What is Human Rights:

The word “human” evolved from Latin word “humanus” which means “any view in which interest of
human welfare is central.

Human rights which are typically called natural rights of rights man are those rights that are inherent in
human person and without which a man can not live as human being. Since human rights came with
birth and every person is entitled to them because of the very fact that he or she is a human, they are
applicable to all people throughout the world irrespective of their race, sex, colour, language, and
religion, Political or other opinion. Human rights are concerned with the dignity and worth of the
individual.

It is important to mention the comment of Sridath Ramphal as to human rights, “they have their origin
in the fact o t e human condition, and because the have, they are fundamental and enable. More
specifically they are born not of man but with man.”

Human rights therefore two inherent characteristics

Universal inherence, and

Inalienability

But the term “inalienability does not apply to all human rights.

e.g. rights to property.

Everywhere human rights are being violated; there are some human rights which can be taken away by
the State e.g. right to property, freedom of expression, right to assembly etc, on the ground of
emergency or for the (so called ) welfare of the citizen.

The truth is that the concept of human right is not at all a legal concept; it is purely a matter of
international law. If a particular human right is recognized by a positive law of a State and is maintained
through enforcement machinery only then it becomes legal and enforceable right. It is, therefore, better
to describe human rights as universal moral rights. In this regard Article-2(7) of UN charter may be
adduce, “Nothing contained in the present charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require the members
to submit 1’ such matters to settlement under the present charter; but this principle shall not prejudice
the application of enforcement measures under chapter VII.’

It is mentionable that chapter-VII discusses about “Action with respect to threats to the peace, breaches
of the peace and acts of aggression.”

Historical Background of Human Rights:

The Charter of the United Nations for the first time internationalized human rights and Fundamental
freedoms. Besides Islamic States, human rights law initially developed as a part of constitutional law of
the individual States. Although some scholars claimed to be able to trace a rudimentary concept of
human rights back to stoic philosophy of classical times via the natural law jurisprudence of Grotias and
the jus natural of Roman law, it seems evident that of the modern concept are to be found in the English
American and French revolution of the seventeenth and the eighteenths centuries. Magna Carta of
1215, The petition of Rights 1628 the Act of settlement. 1701. the American Declaration of 1776, e me
can Bill of Rights. 1 of Rights of Man aged of Citizen. 1789. were miles in the road in which the individual
acquired protection against the capricious acts of kings and despots and the right to lead a free life in a
free society. The UN Charter ado the and signed on 6 June, 1 by the to a ten. It is possible to speak that
of the advent of systematic within the in system is only with entry into force of that United Nations
Charter on 24th October 1945. There are specifiable in the charter of human rights and freedom but no
where does it catalogue or define them. The specific references are mentioned in the preamble of the
UN Charter and in article-1(3). article- 13 (1) (b). article, article Para-2,article-68’ and article 76(C) of the
Charter It is pertinent to mention that article-10. article-56 and artic e-71 of the Charter also impliedly
states for the promotion and protection of Human Rights. The Universal Declaration of Human Rights
(PHR) adopted on_ 10(11 December 1984 gave the enumeration of “human rights and fundamental
freedoms which was not ca exorcized or clearly defined in the charter. The Universal Declaration
proclaims two broad categories of rights: civil and political rights on the one hand and economic, social
and cultural rights on the other hand. Article-3 to 21 deals with civil and political rights while articles 22
to 7 deal wit economic, social and cultural rights. The philosophical postulates based are laid down as
“All Human beings are born free and equal in dignity and rights”. The ‘Declaration is based on the
Principle of equality and non-discrimination as regards the ‘enjoyment of all the rights and freedoms set
forth in it for all without distinction as to race, sex, colours, language or religion. Everyone as a member
of society, is entitled to t e economic, social and cultural rights which are indispensable for human
dignity and the free development of personality, is another cornerstone of the Declaration.’0 Thus the’
concept of human rights has got its formal and cat al shape from’ the UDHR adopted by the UN in 1948
where twenty five rights have got their place. These 25’ rights of theses 25 rights are civil and political
social and cultural rights according to the Declaration the rights and freedoms enumerate would.
Constitute for the moment the catalogue of rights and freedoms to which reference is made in the
Charter. It is accepted that the Declaration, as distinct from the two covenants, is or may not a legally
binding documents.

Human rights in the constitution of Bangladesh:

18 fundamental rights have been enumerated in the Constitution commencing from Article 27 to 44. All
of those rights are civil and political rights. These 18 fundamental rights may be firstly divided into two
groups.
 Rights granted to all persons- citizens and no citizens alike. These are six rights enumerated in Articles
32, 33, 34, 35, 41 and 44 of the Constitution.

Rights granted to citizens of Bangladesh only. These are 12, rights enumerated in Articles 27, 28, 29,
30, 31, 36, 37, 38, 39, 40, 42 and 43.

Fundamental Principles of State Policy:

Participation of women in National life. Ant: Steps shall be taken to ensure participation of women in
all spheres of national life.

Democracy and human rights. The Republic shall be a democracy in which fundamental human rights
and freedoms and respect for the dignity and worth of the human person shall be guaranteed.

The people shall own or control the instruments and means of production and distribution, and with
this end in view ownership shall assume the following forms—

(a) State ownership, that is ownership by the State on behalf of the people through the creation of an
efficient and dynamic nationalized public sector embracing the key sectors of the economy;

(b) Co-operative ownership, that is ownership by co-operatives on behalf of their members within
such limits as may be prescribed by law; and

(c) Private ownership, that is ownership by individuals within such limits as may be prescribed by law.

It shall be a fundamental responsibility of the State to emancipate the toiling masses—the peasants
and workers—and backward sections of the people from all forms of exploitation.

It shall be a fundamental responsibility of the State to attain, through planned economic growth, a
constant increase of productive forces and a steady improvement in the material and cultural standard
of living of the people, with a view to securing to its citizens

(a) The provision of the basic necessities of life, including food, clothing, shelter, education and
medical care;
(b) the right to work, that is the right to guaranteed employment at a reasonable wage having regard
to the quantity and quality of work;

(c) the right to reasonable rest, recreation and leisure ; and

(d) the right to social security, that is to say, to public assistance in cases of undeserved want arising
from unemployment, illness or disablement, or suffered by widows or orphans or in old age, or in other
such cases.

The State shall adopt effective measures to bring about a radical transformation in the rural areas
through the promotion of an agricultural revolution, the provision of rural electrification, the
development of cottage and other industries, and the improvement of education, communications and
public health, in those areas, so as progressively to remove the disparity in the standards of living
between the urban and the rural areas.

The State shall adopt effective measures for the purpose of—

(a) Establishing a uniform. Mass-oriented and universal system of education and extending free and
compulsory education to all children to such stage as may be determined by law.

(b) Relating education to the needs of society and producing properly trained and motivated citizens
to serve those needs;

(c) Removing Literacy within such time as may be determined by law.

(1) The State shall regard the raising of the level of nutrition and the improvement of public health as
among its primary duties, and in particular shall adopt effective measures to prevent the consumption,
except for medical purposes or for such other purposes as may be prescribed by law, of alcoholic and
other intoxicating drinks and of drugs which are injurious to health.

(2) The State shall adopt effective measures to prevent prostitution and gambling.

(1) The State shall endeavor to ensure equality of opportunity to all citizens.
(2) The State shall adopt effective measures to remove social and economic inequality between man and
man and to ensure the equitable distribution of wealth among citizens, and of opportunities in order to
attain a uniform level of economic development throughout the Republic.

(1) Work is a right, a duty and a matter of honour for every citizen who is capable of working, and
everyone shall be paid for his work on the basis of the principle from each according to his abilities to
each according to his work”.

(2) The State shall endeavor to create conditions in which, as a general principle, persons shall not be
able to enjoy unearned incomes, and in which human labour in every form, intellectual and physical,
shall become a fuller expression of creative endeavour and of the human personality.

(1) 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.

(2) Every person in the service of the Republic has a duty to strive at all times to serve the people.

The State shall adopt measures to conserve the cultural traditions and heritage of the people, and so
to foster and improve the national language, literature and the arts that all sections of the people are
afforded the opportunity to contribute towards and to participate in the enrichment of the national
culture.

(1) The State shall 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 United
Nations Charter, and on the basis of those principles shall—

(a) Strive for the renunciation of the use of force in international relations and central and complete
disarmament;

(b) Uphold the right of every people freely to determine and build up its own social, economic and
political system by ways and means of its own free choice and
(c) support oppressed peoples throughout the world waging a just struggle against imperialism,
colonialism or, racialism.

(1) The State shall endeavor to consolidate, preserve and strengthen fraternal relations among Muslim
countries based on lslamic is solidarity.

(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made
shall, to the extent of such inconsistency, be void.

All citizens are equal before law and are entitled to equal protection of law.

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or
place of birth.

(2) Women shall have equal rights with men in all spheres of the State and of public life.

(3) No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any
disability, liability, restriction or condition with regard to access to any place of public entertainment or
resort, or admission to any educational institution.

(4) Nothing in this article shall prevent the State from making special provision in favour of women or
children or for the advancement of any backward section of, citizens.

(1) There shall be equality of opportunity for all citizens in respect of employment or office in the
service of the Republic.

(2) No citizen shall, on’ grounds only of religion, race, caste, sex or place of birth, be ineligible for, or
discriminated against in respect of, any employment or office in the service of the Republic.

(3) Nothing in this article shall prevent the State from—

(a) 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;

(b) giving effect to any law which makes provision for reserving appointments relating to any religious or
denominational institution to persons of that religion or denomination:

(c) reserving for members of one sex any class of employment or office on the ground that it is
considered by its nature to be unsuited to members of the opposite sex.

No citizen shall, without the prior approval of the President, accept any title, honour, award or
decoration from any foreign state.

To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance
with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the
time being within Bangladesh, and in particular no action detrimental to the life, liberty, body,
reputation or property of any person shall be taken except in accordance with law.

No person shall be deprived of life or personal liberty saves in accordance with law.

(1) No person who is arrested shall be detained in- custody without being informed, as soon as may be,
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.

(2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-tour hours of such arrest, excluding the time necessary for the
journey from the place of arrest to the court of the magistrate, and no such person shall be detained in
custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply to any person—

who for the time being is an enemy alien or

(b) who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a period
exceeding six months unless an Advisory Board consisting of three persons, of whom two shall be
persons who are, or have been, or are qualified to be appointed as, Judges of the Supreme Court and
the other shall be a person who is a senior officer in the service of the Republic, has, after affording him
an opportunity of being heard in person, reported before the expiration of the said period of six months
that there is, in its opinion, sufficient cause for such detention.

(5) When any person is detained in pursuance of an order made under any law providing for preventive
detention, the authority making the order shall, as soon as may be, communicate to such person the
grounds on which the order has been made, and shall afford him the earliest opportunity of making a
representation against the order:

Provided that the authority making any such order may refuse to disclose facts which such authority
considers to be against the public interest to disclose.

(6) Parliament may by law prescribe the procedure to be followed by an Advisory Board in an inquiry
under clause.

(1) All forms of forced labour are prohibited and any contravention of this provision shall be an
offence punishable in accordance with law.

(2) Nothing in this article shall apply to compulsory labour—

(a) by persons undergoing lawful punishment for a criminal offence or

(b) required by any law for public purposes.

(1) 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.

(2) No person shall be prosecuted and punished for the same offence more than once.
(3) Every person accused of a criminal offence shall have the right to a speedy and public trial by an
independent and impartial court or tribunal established by law.

(4) No person accused of any offence shall be compelled to be a witness against himself.

(5) No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.

(6) Nothing in clause (3) or clause (5) shall affect the operation of any existing law which prescribes any
punishment or procedure for trial.

Subject to any reasonable restrictions imposed by law in the public F 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.

Every citizen shall have the right to assemble and to participate in F 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.

Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions
imposed by law in the interests of morality or public order:

(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.

 Subject to any. restrictions imposed by law, every citizen possessing such qualifications, if any, as may
be prescribed by law in relation to his profession, occupation, trade or business shall have the right to
enter upon any lawful profession or occupation, and to conduct any lawful trade or business.

(1) Subject to law, public order and morality—

(a) every citizen has the right to profess, practice or propagate any religion

(b) every religious community or denomination has the right to establish, maintain and manage its
religious institutions.

(2) No person attending any educational institution shall be required to receive religious instruction, or
to take, part in or to attend any religious ceremony or worship if that instruction, ceremony or worship
relates to a religion other than his own. .

(1) Subject to any restrictions imposed by law, 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.

(2) A law made under clause (1) shall. provide for the acquisition, nationalization or requisition with
compensation and shall either fix the amount pf compensation or specify the principles on which, and
the manner in which, the compensation is to be assessed and paid but no such law shall be called in
question in any court on the ground that any provision in respect of such compensation is not adequate.

(3) Nothing in this article shall affect the operation of any law made before the commencement of the
Proclamations (Amendment) Order, 1977 (Proclamations Order No. I of 1977), in so far as it relates to
the acquisition, nationalization or acquisition of any property without compensation.

Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the
interests of the security of the State, public order, public morality or public health—

(a) to be secured in his home against entry, search and seizure and
(b) to the privacy of his correspondence and other means of communication.

(1) The right to move the High Court Division in accordance with clause of article 102, for the
enforcement of the rights conferred by this Part is guaranteed.

(2) Without prejudice to the powers of the 2[High Court Division] under article 102, Parliament may by
law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those
powers.

Fundamental Principles of State Policy:

Modern states are welfare states and the principal purpose of such a state is public welfare. This trend
of public welfare is being, to some extent, reflected in most of the written constitutions of states when
they adopt some directive principles in their constitutions. The underlying philosophy behind the
adoption of such principles is that they will obligate the state to take positive action in certain direction
in order to promote the welfare of the people and achieve economic democracy.

The idea of directive principles in the Constitution was first introduced in the Irish Constitution of 1937.
Article 45 of the Irish Constitution provides some principles under the head~ of Directive Principles of
Social Policy.” Following this Irish example the idea has got place in the Burma (Mayanmar) in 1949 of
India in 1950, of Pakistan in 1956 and 1962 and so has been the case of the Bangladesh, Constitution of
1972. The principles have been adopted under the heading of “Directive Principles of state Policy’ in the
Indian Constitution “Principle of State Policy in the Pakistan Constitution of 1962 and “Fundamental
Principles of state Policy” in Bangladesh constitution.

“Directive or Fundamental Principles of State Policy” as a term of constitutional jurisprudence has not
got any universal definition. But as the term indicates it means primarily those principles which are
considered fundamental in the matters of policy formulating by the government. From the view point of
Bangladesh Constitution it may be said that Fundamental Principles of State policy are those principles
which act as fundamental guide to the policy making, be it social, economic, administrative or
international, governance of the country, making laws and interpreting the Constitution and laws.

Nature of Directive Principles

‘A distinguishing feature of directive principles which is invariably found in all constitutions adopting
these principles is that these are not enforceable in a court of law This non-justifiability of these
principles have paved the way for critics to portrait them in variety of descriptions.

First, these are described as ‘beau ideal” in the Constitution, i.e., the highest standard of excellence in
the Constitution. Because they embody the principles of high ideals like economic emancipation,
eradication of poverty, illiteracy etc.

Second, these are described as ‘veritable dustbin of sentiment,’ for they are the best idealistic words
written down in the Constitution without providing anything for their enforcement. They are, therefore,
nothing but the mere expression of good sentiment of the Constitution makers.

Third, these are sometimes described as ‘decorative in the Constitution.’ Tushar Chatterjee a
communist member of Indian parliament beanery harsh in assessing the utility of the directives, T1enfed
that he could not but feel that these solemn declarations in the Constitution were not directives but
mere decorative in the constitution.

Professor K.C. Wheare has described them as ‘paragraphs of generation Constitution. He has severely
critcised insertion of such decoratives in the Constitution. He has doubted “whether there is any gain, on
balance, from introducing these paragraphs. of generalities into a Constitution anywhere at all, if it is
intended that the Constitution should command the respect as well as the affection of the people. If the
Constitution is to be taken seriously, the interpretation and fulfillment of these general objects of policy
will raise great difficulties for courts and for legislatures into conflict and disrepute. If these declarations
are, however, to be neglected, if they are to be treated as Swords’, they will bring discredit upon the

Professor Ivor Jennings has also questioned the reasonableness of in inserting such directives in a
Constitution when he describes them as “the ghost of Sidney and Beatric Webb Stalk through the pages
of the text” and “expression of Febian Socialism without socialism.”

Fourth, these principles are also described as “a moral homily on the one hand, and as a manifesto of
aims and aspiration of the other hand”,2 for they are all principles relating to economic, social and
cultural rights which are not a matter of immediate achievement. They are goals to which the state has
to reach and, keeping in line with the socio-economic progress, the state will implement them step by
step. They, therefore, work as programmes of the government.
Economic Social and Cultural Rights are Enumerated in the Directive Principles of State policy:

It has been almost a common feature of all the constitutions containing directive principles that the part
of these directives of the Constitution contains economic, social and cultural rights whereas the part of
fundamental rights contains civil and political rights. Economic, social and cultural rights lave found their
origin primarily in the Socialist and Marxist revolution of the early 20th century. Following the S6cialist
October revolution this new of citizens’ rights first got constitutional recognition in the Soviet
Constitution of 1918. Thenceforth they are – being gradually included~ in most modern constitutions as
‘programme’ or ‘manifesto’ rights of a promotional nature. They are rights of promotional nature in the
sense that their implementation and enforcement depends on the economic progress and availability of
resources in the country. If these rights are placed in the part of fundamental rights of the Constitution,
then the state would be legally bound to enforce them and the citizens would have a legal right to get
them enforced through the courts and it would virtually lead a developing state with limited resources
into a precarious problem. This is why all economic, social and cultural rights are placed in the part of
directive principle as rights of a promotional nature not with any constitutional guarantee to enforce
them immediately but with pledge to take steps to the maximum of available resources with a view to
achieving progressively the full realization of these rights. On the other hand, the enforcement of civil
and political rights is not necessarily connected with the economic progress and natural resources; they
can be enforced in almost every circumstance.

Significance of the Directive Principles

Whei1 he directive principles are not judicially enforceable it is very natural to comment that they are
mere decorative in the Constitution and most of the prominent writers, as mentioned earlier, have
strongly criticized their inclusion in the Constitution. But it is not proper to says that they are totally
useless. They have some important significance.

First, directive principles have great political importance. If the government fails to carry out these
directives no court can compel the government to implement them. Yet these principles have been
declared to be fundamental in the governance of the country and a government which rests oh popular
vote can hardly ignore them. “If any government”, as Dr. Ambedker said, “ignores them, they will
certainly have to answer before the colectbrate at the election time”. It is, therefore, not correct to
criticise these principles as meaningless and useless. The actions of the government under democratic
system are subject to scrutiny by the masses and the opposition. If the government, being in favourable
situation and proper means to implement these, pursues a policy not in accordance with the principles
or fails to implement these, it would be a patent weapon at the hand of the opposition to discredit the
government. If the government violates fundamental rights it has to answer before the court but if it
neglects directives it has to answer before the highest tribunal—the public opinion which will bring its
ultimate fall in the next election. Thus the sanction behind directive principles is a political one which
has a greater importance than fundamental rights in respect of keeping a continuing responsible
government.

Second, the directives have a great role to play in the interpretation of the Constitution and other laws.
Though courts can not declare a law invalid on the ground that it contravenes a directive principle,
nevertheless the constitutional validity of many laws can be maintained, as has been done in India,’ with
reference to the directives so that they do not serve as ‘mere homily’. Article 8(2) of the Constitution
specifically allowed to refer to these principles for understanding the meaning of the provisions of the
constitution which are doubtful or ambiguous. Moreover, like the Magna Carta in England and the
Declaration of Independence in. America these directives are behind to influence the judges to a great
extent in interpreting the Constitution and law. In interpreting fundamental rights the expressions like
‘public interest’, ‘public purpose’, ‘reasonable restriction’ etc. may be explained by the courts in the light
of and paying due emphasis on these directives since the Constitution holds, them fundamental in the
governance of the country.

Third, directive principles have both idealistic and educative value. They have idealistic value in the
sense that they outline the ideal of a welfare society. They emphasise, in amplification of the preamble,
that the goal of the body polity of the state is a welfare state where it has a positive duty to ensure to its
citizens social and economic justice and dignity of individuals. And by the proper implementation of
these directives that goal can be realised. They have educative value in the sense that they are
permanent reminder for those in power for the time being that the goal of the state is to introduce
economic democracy.