Jannatul Ferdous, Advocacy Intern, Map of Justice
৭ সেপ, ২০২৪
Introduction:
Right to Respect for Private and Family Life, Home and Correspondence a human right recognised worldwide under the Universal Declaration of Human Rights (UDHR) Article 12[1] along with Article 8 of the European Convention on Human Rights (ECHR).[2] The aforementioned Human Right ensures the privacy of an individual’s private life by providing security in their house as well as their communication with others without any arbitrary or unlawful interference or attacks.[3] This right is also recognised internationally under Article 17 of the International Covenant on Civil and Political Rights (ICCPR).[4] The protection of home and correspondence is also recognised in Article 43 of the Constitution of the People’s Republic of Bangladesh (Constitution) as one of the Fundamental Rights under Part-III.[5]
Significance of Protection of Home and Correspondence:
Article 43 of the Constitution of Bangladesh states, “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 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.”[6] As a member of the International community, Bangladesh took necessary steps by ratifying the ICCPR in 2000 to incorporate the right to privacy in the national legal framework to secure each citizen concerning the security of their residence and correspondence without a search warrant or permission of the concerned citizen, no legal authority shall interfere into a citizens private life.[7] As a member of the United Nations, Bangladesh is also committed to ensuring human rights in the national legal framework. That’s why Bangladesh adopted one of the human rights, which is the right to privacy under article 12 of UDHR, which also gives protection of the citizens' homes and communications. Even without lawful reason, no legal authority could tape or track the communications of a citizen, for example, any phone call or social media conversation. If it is necessary for the sake of investigation, it should only be used for that purpose; rather, it could not be exposed in public which would be a serious violation of this article.[8]
In Bangladesh, several case decisions have encouraged the judiciary to establish fundamental rights. In Bangladesh vs H.M Ershad (2001), the Court held that without duly authorised by law, a police officer or any legal authority could not enter into any citizen’s house and conduct the search or seize anything without the permission of that citizen.[9]Another case, The State and Others vs Oli and Others (2019), established the right to privacy in private life. In this case, the Supreme Court of Bangladesh held that without a formal request from the concerned mobile company (both private and public company) or permission of the concerned person, no person could obtain mobile phone records other than this would amount to a serious violation of the constitutional right to privacy.[10]
Scope of Protection of Home and Correspondence:
Article 43 of the Constitution of Bangladesh gives security to the citizens of Bangladesh in their homes as well as their private lives. Besides this constitutional provision, there are sort of national laws which ensure the right to privacy, as this is a fundamental right of a citizen. For instance, sections 405,407,408, and 409 of the Penal Code 1860,[11]sections 122,124,126,127 and 129 of the Evidence Act 1872,[12] section 47 of The Code of Criminal Procedure 1898,[13] section 132 of the Code of Civil Procedure 1908,[14] sections 18,26,29,34 of the Digital Security Act 2018,[15]section 30,54,57 of the Information and Communication Technology (ICT) Act 2006,[16] and section 7 of the Right to Information Act 2009.[17]
The Constitution and aforementioned national laws protect citizens' homes from unwanted entry or unwarranted searches, and without permission, no citizen's communication can be traced or published socially.
Though Bangladesh recognised the right to privacy at home and communication as a fundamental right through the Constitution, and to support this, many national laws ensure this right, but it is still not an absolute right.[18] In the Constitution, the right to privacy at home and correspondence has been stated but with the exception that it is subject to any reasonable restrictions imposed by law for the sake of the state and public interest, which means this right can be violated by the concerned authorities by imposing any reasonable restrictions.[19] The term ‘reasonable restrictions’ has not been specifically described in the Constitution, under which the aforementioned right would not be applicable. As a result, the legal authority could use this word arbitrarily.[20] For example, section 97A(1) of the amendment of the Telecommunication Act 2001 in 2006 was highly criticised by human rights activists. As per this section, the Government has the power to permit any investigative authority or law enforcement authority to record any citizen’s phone record for the sake of public interest, which directly violates the aforementioned fundamental right.[21]
In a landmark case of India named Justice K.S. Puttaswamy v. Union of India the Supreme Court held that the right to privacy is a fundamental right and there should be logical, proportional, and for the sake of public interest reason to breach it, it should not be used as a tool of government’s oppression.[22]In Bangladesh, if the aforementioned fundamental right is violated, an individual has the option to file a writ petition under Article 102 of the Constitution. Additionally, they could also file a criminal complaint, a civil suit for damages, or initiate a public interest litigation (PIL), or seek Judicial Review.[23]
Conclusion:
The right to privacy in the case of Home and Correspondence is a fundamental right that is recognised by the Constitution of Bangladesh as well as UDHR, ECHR, and ICCPR. By determining the term ‘reasonable restrictions’ in the aforementioned right, every executive and legal authority of Bangladesh has to protect this aforementioned right so that a citizen of Bangladesh can sleep peacefully in their home and feel safe regarding any sort of communication with others.
[1]Universal Declaration of Human Rights (UDHR), art 12.
[2]European Convention on Human Rights (ECHR), art 8.
[3]ibid.
[4]International Covenant on Civil and Political Rights (ICCPR), art 17.
[5]Constitution of the People’s Republic of Bangladesh, 1972, art 43.
[6]ibid.
[7]MdToriqul Islam, ‘An assessment of privacy regime in Bangladesh: A legal analysis’ (2022) 13 (2) UUM Journal of Legal Studies 92<https://repo.uum.edu.my/id/eprint/29095/1/UUMJLS%2013%2002%202022%2077-108.pdf> accessed 30th August 2024.
[8]ibid.
[9]H M Ershad v Bangladesh (2001) BLD (AD) 69.
[10]The State and others vs Oli and Others Lex/BDHC/0128 (2019).
[11]The Penal Code,1860, ss 405,407,408,409.
[12]The Evidence Act,1872, ss 122,124,126,127,129.
[13]The Code of Criminal Procedure,1898, s 47.
[14]The Code of Civil Procedure,1908, s 132.
[15]The Digital Security Act,2018, ss 18,26,29,34.
[16]The Information and Communication Technology (ICT) Act, 2006, ss 30,54,57.
[17]The Right to Information Act, 2009, s 7.
[18]Md. Toriqul Islam (n 7) 97-99.
[19]ibid.
[20]Constitution of the People’s Republic of Bangladesh, 1972 (n 5).
[21]The Telecommunication Act,2001, s 97A(1).
[22]Justice K.S. Puttaswamy v Union of India [2017] 10 (SCC) 1.
[23]Md. Toriqul Islam (n 7) 84-92.