What rights and remedies do you have under Article 40 (freedom of profession or occupation)?
Do you know what fundamental rights and remedies under Article 40 (freedom of profession or occupation) you have in the High Court Division? Do you know High Court is there for you to protect your rights of freedom of profession or occupation? Do you know what you can do when any authority violates the right of Freedom of profession or occupation? What the recourse or redress can you take when you have been subjected to restrictions on entering into any lawful profession or occupation or carrying on any lawful trade or business? If not, this piece of writing let’s you know your rights and remedies under article 40. A Writ Petition can be filed before the High Court Division if any authorities violate rights to the freedom of movement.
Article 40 of the Constitution of Bangladesh guarantees the freedom of profession, occupation, trade, or business. It ensures the right of every citizen to 1) enter into any lawful profession or occupation, 2) carry on any lawful trade or business. The State cannot arbitrarily prevent a citizen from earning into or carrying out a profession, occupation, trade, or business. When the state, statutory bodies, or public authorities impose arbitrary bans, creates unfair monopolies, cancels trade licenses, or violates the right to freedom of profession or occupation, a Writ Petition may be filed before the High Court Division of the Supreme Court of Bangladesh under Article 102.
Constitutional Provision:
Article 40 of the Constitution of Bangladesh guarantees the right of every citizen to:
1. Enter into any lawful profession or occupation
2. Carry on any lawful trade or business
When the guarantees are violated by the state, statutory bodies, or public authorities by any arbitrary bans on business or cancels of trade licenses a Writ Petition can be filed to secure the said guarantees.
Issues, Matters, and Grounds for Filing a Writ Petition under Article 40:
Arbitrary Refusal to Grant Professional License or Registration:
When a regulatory body (like a City Corporation, Trade Authority, or Professional Board) cancels a trade license, permit, or professional certification without a valid reason or prior hearing, a Writ Petition may be filed before the High Court Division of the Supreme Court of Bangladesh.
Issue: the state, statutory bodies, or public authorities may unlawfully refuse licenses or professional registrations required to practice a profession.
Grounds for Writ: A writ petition may be filed where licensing authorities reject applications without lawful reason, authorities act arbitrarily or discriminatorily, or applications are rejected without hearing or due process.
Example: A qualified doctor applies for registration but the authority refuses registration without valid legal justification. Such actions violate Article 40 of the Constitution.
Judicial precedent: The Court has consistently been holding that administrative authorities must act reasonably and within legal authority when regulating professions.
Trade License and Regulatory Harassment:
For example, a municipality refuses to renew the trade license of a restaurant because the owner is politically active, even though the restaurant meets all health and safety codes. This is an arbitrary interference with the right to "conduct lawful business." A Writ Petition can be filed to compel the authority to renew the license.
Professional Qualifications and Entry:
When the government passes a rule saying only graduates from a specific private university can practice a certain type of engineering, excluding qualified graduates from other accredited institutions, the rule violates of the right to enter a "lawful profession." The restriction is not a "reasonable qualification" but a discriminatory barrier. A Writ Petition can be filed to challenge the said restrictions.
Unlawful Closure or Suspension of Business:
Issue: a may sometimes close businesses without lawful authority.
Grounds for Writ: A writ petition may be filed where a business establishment is shut down by executive order without legal basis, or authorities cancel a trade license arbitrarily. Such actions violate Article 40 of the Constitution.
Example: Local administration orders a factory to close without following legal procedures in violation of Article 40 of the constitution.
Discriminatory Restrictions on Trade or Profession:
Issue: the state, government bodies, or public authorities may sometimes discriminate unfairly between citizens in granting professional opportunities. When the State restricts the right to "conduct business" by awarding public contracts or leases in a discriminatory manner, a writ petition can be filed.
Grounds for Writ: A writ petition may be filed where certain individuals are allowed to conduct business while others are denied without justification, or restrictions are imposed based on political affiliation or personal identity. Such actions violate Articles 27, 31, and 40 of the Constitution.
Example: Authorities issue trade licenses only to supporters of a particular political group.
Cancellation of Professional Registration without Due Process:
Issue: Government authorities sometimes cancel professional registration or licenses without hearing or proper procedure.
Grounds for Writ: A writ petition may be filed where professional licenses are revoked without notice or hearing, or disciplinary actions are taken without lawful procedure. Such action violates principles of natural justice.
Example: A lawyer or doctor’s professional registration is cancelled without giving the person an opportunity to defend himself.
Unlawful Government Monopoly over Trade:
Issue: Sometimes the Government authorities to monopolize certain businesses without legal authority. While the State can regulate trade, it cannot completely ban private citizens from a sector unless a law specifically creates a state monopoly for the public good, a writ petition can be filed.
Grounds for Writ: A writ petition may be filed where the government prevents citizens from conducting lawful business activities without statutory authority. Courts may intervene if the restriction violates constitutional freedom of trade.
Example: A government order prohibits private traders from conducting a particular lawful business without any legal basis.
Harassment or Obstruction by Public Authorities:
Issue: Authorities may obstruct lawful professions through harassment or abuse of power.
Grounds for Writ: A writ petition may be filed where regulatory agencies harass businesses without lawful authority, or authorities impose illegal inspections, fines, or closures. Such actions may violate constitutional and administrative law principles.
Example: A restaurant owner is repeatedly harassed by officials demanding unofficial payments in order to continue operating.
Excessive or Unreasonable Regulatory Restrictions:
Issue: Although regulation is permitted, restrictions must be reasonable and lawful. If the State sets "qualifications" that are not relevant to the profession but are designed to exclude a specific group of people, a writ petition can be filed.
Grounds for Writ: A writ petition may be filed where regulations impose unreasonable barriers to lawful professions, or government rules effectively prohibit legitimate business activities. Courts may examine whether the restriction is proportionate and lawful.
Example: A regulation imposes unreasonable licensing conditions that prevent most citizens from entering a profession.
The "Lawful" and "Qualification" Test:
The High Court applies two filters under Article 40:
1. Is the Business Lawful? You cannot claim a fundamental right to sell illegal drugs or trafficked goods.
2. Are the Restrictions Reasonable? The State can require a doctor to have an MBBS degree or a driver to have a license. These are "reasonable qualifications." However, if the State requires a street vendor to have a Master’s Degree, that would be "unreasonable."
Conclusion:
A Writ Petition may be filed where the state, government bodies, or public authorities arbitrarily refuse professional license or registration, government unlawfully closes or suspends business activities, restrictions on profession or trade are discriminatory, professional licenses are cancelled without due process, government imposes unlawful monopoly over trade, authorities harass or obstruct lawful professions, or regulatory restrictions are unreasonable or disproportionate.
MD. KAMRUZZAMAN
Advocate
Supreme Court of Bangladesh
And
A Fundamental Rights Activist
+8801971993639
lawyer.kamruzzaman@gmail.com