What rights and remedies do you have under Article-36 (Freedom of Movement) ?
Do you know what fundamental rights and remedies under Article 36 (Freedom of Movement) you have in the High Court Division? Do you know High Court is there for you to protect your rights to the freedom of movement? Do you know what you can do when any authority violates the right of freedom of movement? What the recourse or redress can you to take when you have been subjected to any restriction, ban, or embargo to go abroad and re-enter in Bangladesh? If not, let’s go to know your rights under article 36. A Writ Petition can be filed before the High Court Division any authorities violates rights to the freedom of movement.
Article 36 of the Constitution of Bangladesh guarantees the Freedom of Movement, which is a vital civil liberty. It ensures that every citizen can move, reside, and travel without arbitrary interference from the State. A Writ Petition before the High Court Division of the Supreme Court of Bangladesh may be filed under Article 102 of the Constitution when the fundamental right guaranteed in Article 36 (Freedom of Movement) is violated by the State, law-enforcement agencies, airport authority, or any public body.
Article 36 of the Constitution of Bangladesh guarantees the Freedom of Movement, which includes the right to move throughout the country, reside anywhere within it, and the right to leave and re-enter Bangladesh. However, this right is not absolute; it is subject to "reasonable restrictions imposed by law in the public interest."
When this right is violated by the executive branch—most commonly at airports or through internal travel bans—a Writ of Mandamus or Certiorari can be filed under Article 102.
Article 36 guarantees three main rights to every citizen (subject to reasonable restrictions imposed by law in the public interest); 1) the right to move freely throughout Bangladesh, 2) the right to reside and settle in any place in Bangladesh, and 3) the right to leave and re-enter Bangladesh. If these rights are restricted without lawful authority or beyond reasonable limits, a citizen may seek constitutional remedy through a writ petition.
Below are the major issues, matters, and grounds with examples and judicial precedents:
ILLEGAL RESTRICTION ON MOVEMENT WITHIN BANGLADESH:
Constitutional principle: Citizens have the right to move freely anywhere within the territory of Bangladesh, unless restrictions are imposed by law for public interest.
Grounds for Writ: A writ petition may be filed when, authorities prevent a person from travelling within the country without legal authority, police impose arbitrary restrictions on movement, and local administration confines a person to a particular district or area without legal basis, authorities restrict movement based on a general claim of national security, vague public interest, or "investigation" without providing specific evidence or following due process.
For example: A political activist is ordered by police not to leave his district, even though there is no court order or statutory authority.
Judicial precedent: In the case of Aruna Sen, arbitrary restriction on personal liberty and movement is unconstitutional.
PREVENTING A CITIZEN FROM LEAVING BANGLADESH:
Constitutional principle: Article 36 guarantees the right to leave Bangladesh, unless restricted by law.
Grounds for Writ: A writ petition may be filed when a person’s passport is seized without lawful authority, immigration authorities prevent departure from the country without legal basis, or government imposes travel restrictions without statutory authority.
Example: A businessman is stopped at the airport and not allowed to travel abroad, even though there is no court order or legal prohibition.
Stopping Citizens at the Airport:
The most common issue under Article 36 arises when citizens are stopped at Hazrat Shahjalal International Airport by immigration police despite having valid visas and no formal court restrictions.
Example-1: A businessman or politician is stopped from boarding a flight to London for a "security check", though no criminal case is pending against them.
Example-2: The government attempted to restrict an individual from going abroad citing that they were needed for an investigation, despite no formal charges being filed in court.
Example-3: The Anti-Corruption Commission (ACC) tried to prevent a suspect from leaving the country during an inquiry.
Example-4: A loan recovery court (Artha Rin Adalat) imposed travel restrictions on a person using its inherent powers.
Court Ruling-1: In the case of Mosharraf Hossain, the Appellate Division held that the Right to go abroad is a fundamental right under Article 36. The executive cannot restrict a person's movement simply by an executive order; it must be backed by a specific law and meet the test of "reasonableness."
Court Ruling-2: In the case of Moosa Bin Shamsher, the Court ruled that unless there is a specific order from a competent court, the ACC or any other agency cannot arbitrarily block a citizen’s movement at the airport.
Court Ruling-3: In the case of Mujibur Rahman vs. Judge Artha Rin Adalat, High Court clarified that while courts can impose restrictions, it must be done strictly "in accordance with law." It reaffirmed that the right to leave and re-enter the country is a constitutional guarantee that cannot be taken away by mere executive whim.
Impounding Passports as Punishment:
If the government refuses to issue or renew a passport, refuses to renew it, seizes or impound a passport without a lawful reason, effectively trapping a citizen within or outside the country. When law enforcement (like the Special Branch or ACC) prevents a citizen from going abroad (e.g., at immigration) without a court order or a specific law. The government sometimes refuses to issue or renew passports to dissidents or suspects to keep them within the country indefinitely.
Example: A citizen's passport application is "held up" indefinitely by the Passport Office due to an unfavorable "police verification" that cites political affiliation rather than criminal activity.
Judicial precedent: Restricting movement without lawful authority violates constitutional freedoms.
PREVENTING A CITIZEN FROM RE-ENTERING BANGLADESH:
Constitutional principle: Article 36 also protects the right of a citizen to re-enter Bangladesh.
Grounds for Writ:
A writ petition may be filed if a citizen abroad is denied entry into Bangladesh without legal justification, or authorities cancel or confiscate travel documents arbitrarily.
Example: A Bangladeshi citizen returning from abroad is refused entry into Bangladesh despite holding valid citizenship.
Judicial principle: Courts have consistently held that a citizen cannot be arbitrarily deprived of the right to return to his own country.
ILLEGAL EVICTION OR FORCED RELOCATION:
Constitutional principle: Citizens have the right to reside and settle in any place in Bangladesh.
Grounds for Writ: A writ petition may be filed when authorities forcibly evict citizens without due process of law, or a citizen is prevented from living in a particular area without lawful authority.
Example: A local authority forcibly removes residents from their homes without legal notice or procedure.
Judicial precedent: in the case of Kudrat E Elahi Panir, government actions affecting fundamental rights must comply with constitutional safeguards and due process.
ARBITRARY TRAVEL BANS OR EXIT RESTRICTIONS:
Grounds for Writ: A writ petition may be filed when authorities impose informal travel bans, or government agencies place a person on a travel restriction list without legal authority.
Example: An investigative agency instructs immigration officials not to allow a person to travel abroad, even though no law authorizes such restriction.
Courts have emphasized that executive orders cannot override constitutional rights without statutory authority.
DISCRIMINATORY RESTRICTIONS ON MOVEMENT:
Constitutional principle: Freedom of movement must be enjoyed equally by all citizens.
Grounds for Writ: A writ petition may be filed if movement restrictions are imposed based on political belief, religion, ethnicity, or personal identity.
Example: Police allow general public movement but restrict only members of a particular political group from travelling.
Remedies the High Court Division May Grant:
When Article 36 is violated, the High Court Division of the Supreme Court of Bangladesh may declare the restriction illegal or unconstitutional, issue Mandamus directing authorities to allow movement, quash unlawful administrative orders through Certiorari, order release from unlawful detention, and provide constitutional protection of fundamental rights.
Conclusion:
A Writ Petition may be filed when 1) movement within Bangladesh is restricted without lawful authority, 2) a citizen is prevented from leaving Bangladesh illegally, 3) a citizen is denied re-entry into Bangladesh, 4) authorities forcibly evict or prevent residence without due process, 5) government imposes arbitrary travel bans, 6) restrictions are discriminatory or politically motivated, or 7) preventive detention laws are misused to restrict movement
MD. KAMRUZZAMAN
Advocate
Supreme Court of Bangladesh
And
A Fundamental Rights Activist
+8801971993639
lawyer.kamruzzaman@gmail.com