Sutapa Devi Saha, Advocacy Intern, Map of Justice
১১ জুলাই, ২০২৪
Right to equality is one of the fundamental rights enunciated under the Constitution of Bangladesh. It ensures that every individual is treated equally before the law and is not discriminated based on religion, race, sex or place of birth.[1] Through such prohibition of differential treatment, the Constitution has also enabled the equality of opportunity for all the citizens.[2] This right to equality is essential for the development of a just and fair society where everyone has the opportunity to achieve their full potential.[3]
Right to Equality in the Constitution of Bangladesh:
The Constitution of Bangladesh firmly establishes the right to equality through the following provisions: Article 27 on equality before the law; Article 28 on discrimination on the basis of race, religion, sex, or place of birth; and Article 29 on equal opportunity in public employment.
Equality Before the Law & Equal Protection of Law: Every citizen is entitled to have equal protection under the law and should be treated equal before the law.[4] Broadly, rights are categorized under two parts: (i) Positive Rights, & (ii) Negative Rights. Rights bestowed to restrict a group of people from doing something, and rights bestowed by requiring another group of people to conduct something.[5] The citizens' fundamental rights are bestowed upon them to benefit them in one way or the other. Without objective laws and judicial standards of measure, the idea of equality resonates with an improvised notion of substantive equality that, by establishing its roots in current knowledge, emphasizes a four-pronged strategy: to alleviate disadvantage; to confront stigma, stereotyping, violence, and prejudice; to strengthen voice and participation; and to welcome diversity and bring about structural change.[6] The Constitution has enabled the doctrine of Positive Discrimination or called as Affirmative Action[7], especially for the welfare of women, children, and any marginalized group of citizens, by taking into account the complex nature of inequality.[8]
Equitable Rights and Non-Discrimination: No differential treatment is allowed on the basis of religion, race, caste, sex, or place of birth under the article 28 of the Constitution of Bangladesh.[9] For instance, when a government department posts a job opening, applicants must be judged only on their qualifications and merit, not on the basis of their gender, race, religion, or place of birth. If two candidates are equally qualified, then a Female candidate ought to have the same opportunity as a Male candidate and vice versa. In all areas of the State and public life, women shall enjoy the same rights as males.[10] Furthermore, women working in the public sector must be paid equally to males for doing the same amount of work. The non-discrimination extends to both educational facilities and public parks or recreational areas. This implies that public and private organizations providing educational services or public amenities[11]. The phrase "disability, liability, limitation, or condition" is used specifically in the statement, meaning that people cannot be negatively affected by the stated grounds.[12] For instance, a physically challenged student ought to be granted the same admissions privileges in a public university as a normal student. In a same vein, public parks and recreational centres have to be accessible to all people, regardless of background. Nothing in this article prohibits the State from creating special arrangements for the advancement of any underprivileged group of citizens, including women and children. This section defines affirmative action or positive discrimination, which is the legal basis for the state's implementation of policies intended to further the interests of marginalized communities.[13] Affirmative action refers to policies that take factors like race, religion, sex, or socioeconomic status into consideration to benefit an underrepresented group, often to counter the effects of historical discrimination.[14]
Equality of Opportunity in Public Employment: Article 29 of the Constitution of Bangladesh takes a mixed viewpoint on affirmative action and equality. Although Articles 29(1) and 29(2) place a strong emphasis on non-discrimination and formal equality, Article 29(3) permits exceptional measures to be taken in order to strengthen backward sectors, which in turn promotes substantive equality.[15] In order to guarantee their participation in governance, the government may set aside a specific number of civil service positions for members of underrepresented communities.[16] Similarly, religious establishments such as madrasas may set aside teaching positions for adherents of their respective faiths in order to preserve religious instruction. Certain physically demanding positions, like those in the military, may be assigned to men only if it is determined that women are not fit for them because of their physical requirements.[17]
In Conclusion, the Constitution of Bangladesh ensures not only equality before the law and equal protection of law but also prohibits discrimination or preferential treatment on the ground of religion, race, caste, sex, or place of birth.
[1] The Constitution of Bangladesh, Article 27
[2] The Constitution of the People’s Republic of Bangladesh, Preamble.
[3] ibid
[4] Constitution of Bangladesh, (n1).
[5] Oishika Banerj, 'Conflicting rights perspective – equality and positive discrimination', Blog IPleaders, 28 November 2020. <https://blog.ipleaders.in/conflicting-rights-perspective-equality-and-positive-discrimination/ > accessed 10 July 2024.
[6] Catherine Barnard and Bob Hepple, ‘Substantive Equality’ (2000) 59(3) The Cambridge Law Journal 562, 566; Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14(3) International Journal of Constitutional Law 712, 727.
[7] ‘Positive Discrimination’ is the practice of favoring social groups who are frequently subjected to unfair treatment because of their gender, color, or other characteristics. And, "Affirmative Action" are referred to as Positive actions which performed to boost the participation of women and minorities in traditionally underrepresented fields of work, education, and culture. See <https://dictionary.cambridge.org/dictionary/english/positive-discrimination>; <https://plato.stanford.edu/entries/affirmative-action/> accessed 10 July 2024.
[8] Bangladesh Constitution (n 2) arts 14, 28(4), and 29(3).
[9] Mahmudul Islam, Constitutional Law of Bangladesh, 3rd edn (Mullick Brothers, 2020) 169.
[10] Anuj Garg v. Hotel Association of India, AIR 2008 SC 663.
[11] Pannalal Binraj v. India, AIR 1962 SC 386.
[12] Mahmudul Islam, Constitutional Law of Bangladesh, 3rd edn (Mullick Brothers, 2020) (170-173).
[13] Jashim Ali Chowdhury , ‘How Bangladesh Can Approach Constitutional Equality’ (Whiteboard Magazine, 1st December 2021) https://whiteboardmagazine.com/2691/how-bangladesh-can-approach-constitutional-equality/ accessed 7 July 2024.
[14] ibid
[15] Imranul Kabir, ‘Quota System in Bangladesh’ (BDLD Blog, 15th April 2018) https://bdlawdigest.org/quota-system-in-bangladesh.html accessed 7 July 2024.
[16] Menon v.Rajasthan, AIR 1968 SC 81.
[17] Mahmudul Islam, Constitutional Law of Bangladesh, 3rd edn (Mullick Brothers, 2020) 229.