What rights and remedies do you have under Article 43 (protection of home and correspondence)?
Do you know what fundamental rights and remedies under Article 43 (protection of home and correspondence) you have in the High Court Division? Do you know High Court is there for you to provide protection of home and correspondence? Do you know what can you do when any authority violates the privacy of home and correspondence? What the recourse or redress can you take when you have been subjected to violation of privacy of home and correspondence? If not, this piece of writing let’s you know your rights and remedies under article 43. A Writ Petition can be filed before the High Court Division if any authorities violate rights to property.
The Constitution provides two specific guarantees to every citizen. Article 43(a) provides protection of the home. The right to be secured in one's home against entry, search, and seizure. This means a person's house is their sanctuary, and the police cannot enter without following the procedures laid down in the Code of Criminal Procedure (CrPC). Article 43(b) provides privacy of correspondence. The right to the privacy of letters, emails, phone calls, and other means of communication. When the rights under Article 43 is violated by the State, law-enforcement agencies, or any authority performing functions in connection with the affairs of the Republic, a Writ Petition may be filed before the High Court Division of the Supreme Court of Bangladesh under Article 102.
Constitutional Provision:
Article 43 of the Constitution of Bangladesh provides Every citizen has the right (a) to be secured in his home against entry, search and seizure, and (b) to the privacy of his correspondence and other means of communication. This Article protects the constitutional right to privacy and personal security.
Issues, Matters, and Grounds for Filing a Writ Petition under Article 43:
Illegal Entry into a Person’s Home:
Issue: Law-enforcement authorities may sometimes enter private residences without lawful authority.
Grounds for Writ: A writ petition may be filed where police or government officials enter a home without a valid warrant or legal authority, or authorities conduct raids without following due procedures.
Example: Police officers enter a citizen’s home late at night without a search warrant or reasonable legal justification.
Judicial precedent: in the case of BLAST, the court issued guidelines to prevent arbitrary police action, illegal search, and intrusion into private homes.
Illegal Search and Seizure:
When law enforcement enters a private residence or office without a valid search warrant or "reasonable grounds" as defined by the Code of Criminal Procedure (CrPC), a writ petition can be filed against such illegal search and seizure.
Issue: Authorities cannot conduct search and seizure operations arbitrarily.
Grounds for Writ: A writ petition may be filed where police conduct searches without legal authorization, or property is seized without lawful procedure.
Example: Law-enforcement officers search a residence and confiscate documents without producing a search warrant.
Judicial principle: Courts require that search and seizure must be conducted strictly in accordance with law.
Unlawful Surveillance of Communications:
Intercepting phone calls, SMS, or digital messages without a specific order from the competent authority or in violation of the Telecommunication Act, a writ petition can be filed against such unauthorized phone tapping.
Issue: Article 43 protects the privacy of correspondence and communication.
Grounds for Writ: A writ petition may be filed where government agencies intercept telephone calls without lawful authority, or authorities monitor emails, letters, or electronic communication unlawfully.
Example: A law-enforcement agency secretly monitors a citizen’s phone calls without a legal order. Such surveillance violates constitutional privacy rights unless authorized by law.
Interception or Opening of Private Correspondence:
Opening private letters, packages, or accessing private email/cloud accounts without legal authorization are the acts of violation of correspondence privacy.
Issue: Citizens have the right to privacy in letters and personal communications.
Grounds for Writ: A writ petition may be filed where authorities open or confiscate private mail without legal authority, or government agencies intercept correspondence without lawful procedure.
Example: Postal authorities open and inspect private letters without any legal authorization. This violates Article 43(b).
Unauthorized Digital Surveillance or Data Monitoring:
Issue: Modern communication includes emails, messaging apps, and digital communications.
Grounds for Writ: A writ petition may be filed where authorities monitor digital communications without legal authorization, personal online data is collected without lawful basis, or Data when the State leaks or fails to protect personal data collected for administrative purposes e.g. NID or census data.
Example: A citizen discovers their private phone conversations have been recorded and leaked to social media by an investigative agency, despite the citizen not being an accused in any national security case.
Example: Government agencies collect private social media communications without court approval. Courts may treat this as a violation of constitutional privacy protections. State authorities must act strictly within the limits of law when conducting searches or surveillance.
Arbitrary Seizure of Personal Documents or Property from Home:
Issue: Authorities may sometimes confiscate personal belongings without lawful process.
Grounds for Writ: A writ petition may be filed where police seize documents, computers, or personal items without warrant, or authorities retain seized property without legal justification.
Example: Police seize a journalist’s laptop during a raid without proper legal authorization. Such action violates Article 43(a).
Harassment or Repeated Intrusion into Private Residence:
Issue: Repeated intrusion into a person's home may violate personal security and privacy.
Grounds for Writ: A writ petition may be filed where authorities repeatedly conduct raids or searches without reasonable legal grounds, or government officials harass individuals by frequent intrusion into their homes.
Example: Police repeatedly visit and search a person's house without any pending investigation or lawful warrant. Such actions may be challenged as abuse of power.
Judicial Approach: The Supreme Court of Bangladesh has emphasized that privacy and personal security are essential components of fundamental rights.
Conclusion:
A Writ Petition may be filed where, authorities enter a home without lawful authority, police conduct illegal search and seizure, government agencies intercept communications unlawfully, authorities open or confiscate private correspondence, digital communications are monitored without legal authorization, personal documents or property are seized unlawfully, and authorities repeatedly intrude into private residence without justification.
MD. KAMRUZZAMAN
Advocate
Supreme Court of Bangladesh
And
A Fundamental Rights Activist
+8801971993639
lawyer.kamruzzaman@gmail.com