What rights and remedies do you have under Article-39 (Freedom of Thought and Conscience and of Speech) ?
Do you know what fundamental rights and remedies under Article 39 (Freedom of Thought and Conscience and of Speech) you have in the High Court Division? Do you know High Court is there for you to protect your rights to the Freedom of Thought and Conscience and of Speech? Do you know what you can do when any authority violates the right of Freedom of Thought and Conscience and of Speech? What the recourse or redress can you to take when you have been subjected to stifling dissent, censoring the media, or punishing a citizen for expressing an opinion? If not, this piece of writing let’s you know your rights and remedies under article 39. A Writ Petition can be filed before the High Court Division any authorities violates rights to the freedom of movement.
Freedom of Thought and Conscience, and of Speech is a fundamental right guaranteed under Article 39 of the Constitution of the People’s Republic of Bangladesh. A Writ Petition may be filed before the High Court Division of the Supreme Court of Bangladesh under Article 102 when the fundamental rights guaranteed under Article 39 of the Constitution (Freedom of Thought and Conscience and of Speech) are violated by the State, public authorities, or statutory bodies. When the State or a public authority stifles dissent, censors the media, or punishes a citizen for expressing an opinion, a Writ Petition under Article 102 can be filed to protect these democratic pillars.
Article 39 protects three core democratic freedoms; 1) Freedom of thought and conscience – the right to hold personal beliefs and opinions, 2) Freedom of speech and expression – the right to express ideas through speech, writing, media, art, or communication, and 3) Freedom of the press – the right of media institutions to publish news and opinions.
Below are the major issues, matters, and grounds, with examples and judicial precedents:
Misuse of Criminal Laws to Suppress Speech:
Issue: Sometimes authorities use criminal laws to silence legitimate criticism or dissent.
Grounds for Writ: A writ petition may be filed where criminal proceedings are filed maliciously to silence expression, and laws are applied disproportionately to restrict speech.
Example: A journalist publishes an investigative report on corruption and faces criminal charges intended to intimidate the press. Courts may intervene where criminal prosecution violates constitutional freedoms.
Illegal Restriction on Freedom of Speech and Expression:
Issue: Authorities may attempt to suppress criticism or dissent without lawful authority.
Grounds for Writ: A writ petition may be filed where the government prevents individuals from expressing opinions, authorities impose restrictions on speech without statutory authority, and public officials suppress criticism of government policies.
Example: A public speaker is prohibited by police from delivering a lecture criticizing government policies, although there is no legal prohibition.
Judicial precedent: in the case of Bangladesh Sangbadpatra Parishad v Bangladesh, the Court held that freedom of speech and expression is essential in a democratic society and cannot be curtailed arbitrarily.
Unlawful Restrictions on Freedom of the Press:
Issue: Article 39 explicitly guarantees freedom of the press.
Grounds for Writ: A writ petition may be filed where authorities cancel or suspend the declaration of a newspaper without lawful procedure, government officials confiscate publications arbitrarily, and journalists are prevented from reporting news.
Example: A newspaper is forced to shut down by administrative pressure without any statutory order.
Judicial precedent: in case of Secretary Ministry of Information v Ekushey Television Ltd, the Court held that freedom of expression extends to electronic media and broadcasting.
Prior Restraint on Publication or Expression:
Issue: “Prior restraint” occurs when authorities prevent publication before it occurs.
Grounds for Writ: A writ petition may be filed where authorities impose pre-publication censorship, media organizations are required to seek prior approval before publishing content.
Example: A government department orders that a documentary film cannot be released without government approval, although there is no legal requirement.
Arbitrary Ban on Media or Broadcasting:
Issue: Government authorities may sometimes shut down media outlets without lawful authority.
Grounds for Writ: A writ petition may be filed where a television channel’s broadcasting license is revoked arbitrarily, and authorities block broadcasting without due process.
Example: A television station is ordered to stop broadcasting by executive direction without legal procedure.
Judicial precedent: in the case of Secretary Ministry of Information v Ekushey Television Ltd, the Court held that broadcasting is part of the constitutional freedom of expression.
Punishment for Expressing Personal Beliefs or Opinions:
Issue: Article 39(1) guarantees freedom of thought and conscience.
Grounds for Writ: A writ petition may be filed where individuals are punished solely for expressing personal beliefs, and public authorities penalize citizens for ideological or political opinions.
Example: A university student is disciplined for expressing political opinions in a peaceful discussion forum, Such actions may violate Articles 31 and 39 of the Constitution.
Conclusion:
A Writ Petition may be filed where, criminal laws are misused to suppress expression, authorities arbitrarily restrict freedom of speech and expression, government unlawfully interferes with freedom of the press, authorities impose prior censorship or prior restraint, media outlets are arbitrarily banned or shut down, or individuals are punished for expressing beliefs or opinions.
MD. KAMRUZZAMAN
Advocate
Supreme Court of Bangladesh
And
A Fundamental Rights Activist
+8801971993639
lawyer.kamruzzaman@gmail.com