What Fundamental Rights do I have in High Court when being discriminated?
Answer:
Do you know your fundamental rights when you are discriminated in the public spheres, employment, public service or admission to any educational institution? Do you know what you can do against the said discriminations on the grounds of religion, race, caste, sex or place of birth, or being a woman? What the recourse or redress can you to take when you have been subjected to any disability, liability, restriction or condition with regard to employment, public service or admission to any educational institution? If not, let’s go to know your rights. Under Article 28 of the Constitution of Bangladesh, a Writ Petition can be filed before the High Court Division (HCD) under Article 102 whenever the State or a public authority practices discrimination based on religion, race, caste, sex or place of birth, or being a woman.
Here are the specific issues and matters where a Writ can be filed, illustrating with examples and judicial precedents:
Gender Discrimination in Public Employment (Article 28.2):
This is one of the most litigated areas. When a woman is denied a job, a promotion, or certain benefits that are available to her male counterparts, it constitutes a direct violation of the Article 28.2.
Issue: When a woman is denied a job, a promotion, or a specific posting despite being qualified, or when a recruitment circular excludes a gender without a "reasonable classification."
The HCD has consistently held that women have equal rights in all spheres of state and public life. In various cases, the court has struck down administrative decisions that prevented women from joining specific cadres or services solely because of their gender.
Example-1: A government circular for the post of "Police Sub-Inspector" or "Primary School Teacher" stating that only males are eligible, without showing that the job is physically impossible for women to perform.
Example-2: A government department issues a circular stating that only male candidates are eligible for the post of "Night Shift Supervisor," assuming women cannot work at night.
Judicial Precedence: In Bangladesh vs. Zakia Akter, the court emphasized that women have equal rights in all spheres of state and public life. Any administrative rule that bars women from a profession solely because of their gender is void.
Discrimination in Admission to Educational Institutions (Article 28.3):
No citizen can be denied admission to a state-run or state-aided school/college based on their religion, caste, or birthplace. When a state-run or state-aided school, college, or university denies admission to a student based on their religion, caste, or place of birth, the said student can file a writ petition in the High Court Division against the said discriminatory rule, notice or denial.
For Example: A public medical college or university implements a "District Quota" that is so disproportionate that a student with higher marks from one district is denied a seat while a student with significantly lower marks from another district is admitted, without a valid "backwardness" justification.
Judicial Precedence: The courts have consistently held that admission criteria must be reasonable. If a student is otherwise qualified but rejected based on a "prohibited ground" (like religion), a Writ of Mandamus can be filed to compel the institution to grant admission.
Judicial Precedent: in Azizul Hoque vs. University of Chittagong, the court dealt with the legality of admission criteria. It established that while the State can make "special provisions" for backward sections (Art 28.4), any criterion that is purely discriminatory based on "place of birth" or "religion" without a rational nexus to the objective is liable to be struck down.
Discriminatory Laws or Statutory Rules:
If a law, Rule, by law, notification or any provision treats citizens differently based only on the said grounds mentioned in the Article-28, it can be challenged by filling a Writ Petition in the High Court Division of the Supreme Court of Bangladesh.
Example-1: A law that provides that female government employees must retire at age 57, while male employees in the same rank can work until 59.
In a case, the court struck down a rule where air hostesses were forced to retire upon their first pregnancy. The court termed it an "insult to motherhood" and a violation of the right to equality.
MD. KAMRUZZAMAN
Advocate
Supreme Court of Bangladesh
And
Fundamental Rights Activist