indian stamp Act 1899

The basic purpose of Indian Stamp Act, 1899 is to raise revenue to Government. However, over a period of time, the stamped document has obtained so much value that a ‘stamped document’ is considered much more authentic and reliable than an un-stamped document.

Power of Parliament in respect of stamp duty - Parliament can make law in respect of Stamp Duty. It can prescribe rates of stamp duty. The stamp duty rates prescribed by Parliament in respect of bill of exchange, cheques, transfer of shares etc. will prevail all over India. However, other stamp duty rates prescribed by Parliament in Indian Stamp Act, 1899 (e.g. stamp duty on agreements, affidavit, articles of association of a company, partnership deed, lease deed, mortgage, power of attorney, security bond etc.) are valid only for Union territories. In case of States, the rates prescribed by individual States will prevail in those States.

Powers of State Government of Stamp Duty - State Government has powers to fix stamp duties on all documents except bill of exchange, cheques etc. Rates prescribed by State Government will prevail in that State. State Government can make law for other aspects of stamp duty also (i.e. matters other than quantum of duty). However, if there is conflict between State law and Union law, the Union law prevails [Article 254 of Constitution].

Instruments chargeable to stamp duty - Instrument includes every document by which any right or liability, is, or purported to be created, transferred, limited, extended, extinguished or recorded [section 2(17) of Indian Stamp Act]. Any instrument mentioned in Schedule I to Indian Stamp Act is chargeable to duty as prescribed in the schedule [section 3]. The list includes all usual instruments like affidavit, lease, memorandum and articles of company, bill of exchange, bond, mortgage, conveyance, receipt, debenture, share, insurance policy, partnership deed, proxy, shares etc. Thus, if an instrument is not listed in the schedule, no stamp duty is payable. ‘Instrument’ does not include ordinary letters. Similarly, an unsigned draft of an agreement is not an ‘instrument’.

Duty payable when several instruments - In case of sale, mortgage or settlement, if there are several instruments for one transaction, stamp duty is payable only on one instrument. On other instruments, nominal stamp duty of Re. 1 is payable [section 4(1)]. If one instrument relates to several distinct matters, stamp duty payable is aggregate amount of stamp duties payable on separate instruments [section 5]. However, it may happen that one instrument covering only one matter can come under more than one descriptions given in Schedule to Stamp Act. In such case, highest rate specified among the different heads will prevail [section 6].

Powers to reduce stamp duty - Government can reduce or remit whole or part of duties payable. Such reduction or remission can be in respect of whole or part of territories and also can be for particular class of persons. Government can also compound or consolidate duties in case of issue of shares or debentures by companies [section 9(1)]. ‘Government’ means Central Government in respect of stamp duties on bills of exchange, cheque, receipts etc. and ‘State Government’ in case of stamp duties on other documents [section 9(2)].

Mode of payment of stamp duty - The payment of stamp duty can be made by adhesive stamps or impressed stamps. Instrument executed in India must be stamped before or at the time of execution (section 17). Instrument executed out of India can be stamped within three months after it is first received in India [section 18(1)]. However, in case of bill of exchange or promissory note made out of India, it should be stamped by first holder in India before he presents for payment or endorses or negotiates in India [section 19].

Valuation for stamp duty - In some cases, stamp duty is payable on ad valorem basis i.e. on basis of value of property etc. In such cases, value is decided on prescribed basis.

Adjudication as to stamp duty payable - Adjudication means determining the duty payable. Normally, the person paying the duty himself may decide the stamp duty payable and pay accordingly. However, in cases of complex documents, the person paying the duty may not be sure of the stamp duty payable. In such case, he can apply for opinion of Collector. He has to apply with draft document and prescribed fees. Collector will determine the stamp duty payable as per his judgment [section 31(1)].

What is meant by ‘duly stamped’ - ‘Duly stamped’ means that the instrument bears an adhesive or impressed stamp not less than proper amount and that such stamp has been affixed or used in accordance with law in force in India [section 2(11)]. In case of adhesive stamps, the stamps have to be effectively cancelled so that they cannot be used again. Similarly, impressed stamps have to be written in such a way that it cannot be used for other instrument and stamp appears on face of instrument. If stamp is not so used, the instrument is treated as ‘un-stamped’. Similarly, when stamp duty paid is not adequate, the document is treated as ‘not duly stamped’.

Instrument cannot be accepted as evidence if not duly stamped - An instrument not ‘duly stamped’ cannot be accepted as evidence by civil court, an arbitrator or any other authority authorised to receive evidence. However, the document can be accepted as evidence in criminal court.

Case when short payment is by mistake - If non-payment or short payment of stamp duty is by accident, mistake or urgent necessity, the person can himself produce the document to Collector within one year. In such case, Collector may receive the amount and endorse the document that proper duty has been paid [section 41].

Stamp duty on Receipt - Stamp Duty on receipt is Re. 1 for receipt above Rs. 5,000. Receipt includes any note, memorandum or writing [whether signed by any person or not] (a) where any money, or any bill of exchange or promissory note is acknowledged to have been received or (b) where any other movable property is acknowledged to have been received in satisfaction of a debt or (c) whereby any debt or demand is acknowledged to have been satisfied or discharged or (d) which signifies or indicates any such acknowledgment [section 2(23)].

Stamp duty on transfer of shares in a company or body corporate - It is 50 Paise for every hundred rupees or part thereof of the value of share. [It is 75 Ps as per Article 62 of Schedule I to Stamp Act, reduced to 50 Ps per Rs 100 vide notification No. SO 198(E) dated 16.3.1976]. As per section 21, the duty has to be calculated on the basis of market price prevalent on date of instrument and not on the face value of shares.

Stamp Duty on transfer in Depository Scheme - If the company issues securities to one or more depositories, it will have to pay stamp duty on total amount of security issued by it and such securities need not be stamped. [section 8A(a) of Stamp Act]. If an investor opts out of depository scheme, the securities surrendered to Depository will be issued to him in form of a certificate. Such share certificate should be stamped as if a 'duplicate certificate’ has been issued. [section 8A(1)(b) of Indian Stamp Act]. If securities are purchased or sold under depository scheme, no stamp duty is payable.

indin partnership Act 1932

The Indian Partnership Act was passed in 1932 to define and amend the law relating to partnership. Indian Partnership Act is one of very old mercantile law. Partnership is one of the special types of Contract. Initially, this was part of Indian Contract Act itself (Chapter IX - sections 239 to 266), but later converted into separate Act in 1932.

The Indian Partnership Act is complimentary to Contract Act. Basic provisions of Contract Act apply to contract of partnership also. Basic requirements of contract i.e. legally enforceable agreement, mutual consent, parties competent to contract, free consent, lawful object, consideration etc. apply to partnership contract also.

Partnership Contract is a ‘concurrent subject’ - ‘Contract, including partnership contract’ is a ‘concurrent subject, covered in Entry 7 of List III (Seventh Schedule to Constitution). Indian Partnership Act is a Central Act, but State Government can also pass legislation on this issue. Though Partnership Act is a Central Act, it is administered by State Governments, i.e. work of registration of firms and related matters is looked after by each State Government. The Act is not applicable to Jammu and Kashmir.

Unlimited liability is major disadvantage - The major disadvantage of partnership is the unlimited liability of partners for the debts and liabilities of the firm. Any partner can bind the firm and the firm is liable for all liabilities incurred by any firm on behalf of the firm. If property of partnership firm is insufficient to meet liabilities, personal property of any partner can be attached to pay the debts of the firm.

Partnership Firm is not a legal entity -  It may be surprising but true that a Partnership Firm is not a legal entity. It has limited identity for purpose of tax law. As per section 4 of Indian Partnership Act, 1932, 'partnership' is the relation between persons who have agreed to share the profits of a business carried on by all or any one of them acting for all. - - Under partnership law, a partnership firm is not a legal entity, but only consists of individual partners for the time being. It is not a distinct legal entity apart from the partners constituting it - Malabar Fisheries Co. v. CIT (1979) 120 ITR 49 = 2 Taxman 409 (SC).

Firm legal entity for purpose of taxation - For tax law, income-tax as well as sales tax, partnership firm is a legal entity - State of Punjab v. Jullender Vegetables Syndicate - 1966 (17) STC 326 (SC) * CIT v. A W Figgies - AIR 1953 SC 455 * CIT v. G Parthasarthy Naidu (1999) 236 ITR 350 = 104 Taxman 197 (SC). Though a partnership firm is not a juristic person, Civil Procedure Code enables the partners of a partnership firm to sue or to be sued in the name of the firm. - Ashok Transport Agency v. Awadhesh Kumar 1998(5) SCALE 730 (SC). [A partnership firm can sue only if it is registered].

Partnership, partner, firm and firm name -  “Partnership” is the relation between persons who have agreed to share the profits of business carried on by all or any to them acting for all. - - Persons who have entered into partnership with one another are called individually “partners” and collectively “a firm”, and the name under which their business is carried on is called the “firm name”. [section 4].

“Business” includes every trade, occupation and profes­sion. [section 2(b)]. Thus, a ‘partnership’ can be formed only with intention to share profits of business. People coming together for some social or philanthropic or religious purposes do not constitute ‘partnership’.

Partners are Mutual agents - The business of firm can be carried on by all or any of them for all. Any partner has authority to bind the firm. Act of any one partner is binding on all the partners. Thus, each partner is ‘agent’ of all the remaining partners. Hence, partners are ‘mutual agents’.

Oral or written agreement - As per normal provision of contract, a ‘partnership’ agreement can be either oral or written. - - Agreement in writing is necessary to get the firm registered. Similarly, written agreement is required, if the firm wants to be assessed as ‘partnership firm’ under Income Tax Act.  A written agreement is advisable to establish existence of partnership and to prove rights and liabilities of each partner, as it is difficult to prove an oral agreement. - - However, written agreement is not essential under Indian Partnership Act.

Sharing of profit necessary - The partners must come together to share profits. Thus, if one member gets only fixed remuneration (irrespective of profits) or one who gets only interest and no profit share at all, is not a ‘partner’. - - Similarly, sharing of receipts or collections (without any relation to profits earned) is not ‘sharing of profit’ and the association is not ‘partnership’. For example, agreement to share rents collected or percentage of tickets sold is not ‘partnership’, as sharing of profits is not involved. - - The share need not be in proportion to funds contributed by each partner. - - Interestingly, though sharing of profit is essential, sharing of losses is not an essential condition for partnership . - - Similarly, contribution of capital is not essential to become partner of a firm.

Number of partners - Since partnership is ‘agreement’ there must be minimum two partners. The Partnership Act does not put any restrictions on maximum number of partners. However, section 11 of Companies Act prohibits partnership consisting of more than 20 members, unless it is registered as a company or formed in pursuance of some other law.

Mode of determining existence of partnership - In determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together. [section 6].

Mutual agency is the real test - The real test of ‘partnership firm’ is ‘mutual agency’, i.e. whether a partner can bind the firm by his act, i.e. whether he can act as agent of all other partners.

Partnership at will - Where no provision is made by contract between the partners for the duration of their partnership, or for the determination of their partnership, the partnership is “partnership at will”. [section 7]. - - Partnership ‘at will’ means any partner can dissolve a firm by giving notice to other partners (or he may express his intention to retire from partnership) - - Partnership deed may provide about duration of partnership (say 10 years) or how partnership will be brought to end. In absence of any such term, the partnership is ‘at will’. - - In case of ‘particular partnership’, the partnership comes to end when the venture for which it was formed comes to end.

Determination of rights and duties of partners by contract be­tween the partners - Subject to the provisions of this Act, the mutual rights and duties of the partners of a firm may be determined by con­tract between the partners, and such contract may be express or may be implied by a course of dealing. - - Such contract may be varied by consent of all the partners, and such consent may be express or may be implied by a course of dealing. [section 11(1)]. - - Thus, partners are free to determine the mutual rights and duties by contract. Such contract may be in writing or it may be implied by their actions.

Dutiesand mutual rights  of partners - Subject to contract to contrary, partners have duties and mutual rights as specified in Partnership Act-

Every partner has right to take part in business - Subject to contract between partners (to the contrary), every partner has right to take part in the conduct of the business. [section 12(a)]. - - Thus, every partner has equal right to take active part in business, unless there is specific contract to the contrary. Even if authority of a partner is restricted by contract, outside party is not likely to be aware of such restriction. In such case, if such partner acts within the apparent authority, the firm will be liable for his acts.

The property of the firm - Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business. - - Unless the contrary intention appears, property and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm [section 14].

Partner to be agent of the firm - Subject to the provisions of this Act, a partner is the agent of the firm for the purposes of the business of the firm. [section 18].

Implied authority of partner as agent of the firm - Subject to the provisions of section 22, the act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm, binds the firm. The authority of a partner to bind the firm conferred by this section is called his “implied authority”. [section 19(1)]. -

Partners jointly and severally liable acts of the firm - Every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he is a part­ner. [section 25]. ‘An act of a firm’ means any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm [section 2(a)]. ‘Joint and several’ means each partner is liable for all acts. Thus, if amount due cannot be recovered from other partners, any one partner will be liable for payment of entire dues of the firm.

Partner by Holding out - ‘Holding out’ means giving impression that a person is partner though he is not. This is principle of ‘estoppel’. If a person gives an impression to outsiders that he is partner of firm though he is not partner, he will he held liable as partner, if third party deals with the firm on the impression that he is a partner. Similarly, if a person retires from the firm but does not give notice of retirement, he will be liable as a partner, if some third party deals with the firm on the assumption that he is still partner.

Minors admitted to the benefits of partnership - A person who is a minor according to the law to which he is subject may not be a partner in a firm, but, with the consent of all the partners for the time being, he may be admitted to the benefits of partnership. [section 30(1)].

Rights of minor - Minor (who is admitted to benefit of partnership) has a right to such share of the property and of the profits of the firm as may be agreed upon and he may have access to and inspect and copy any of the accounts of the firm. [section 30(2)]. [Since the word used is ‘may’, it seems that right of minor to inspect accounts can be restricted by agreement among partners].

Minor’s share liable but not minor himself - Such minor’s share is liable for the acts of the firm, but the minor is not personally liable for any such act. [section 30(3)].

Reconstitution of a Partnership Firm - A partnership firm is not a legal entity. It has no perpetual existence as in case of a company incorporated under Companies Act. However, the Act gives the partnership limited rights of continuity of business despite change of partners. In absence of specific provision in partnership deed, death or insolvency of a partner means dissolution of the firm. However, partnership can provide that the firm will not dissolve in such case.

Change in partners may occur due to various reasons like death, retirement, admission of new member, expulsion, insolvency, transfer of interest by partner etc. After such change, the rights and liabilities of each partner are determined afresh. This is termed as reconstitution of a firm.

Dissolution of a Firm - A partnership firm is an ‘organisation’ and like every ‘organ’ it has to either grow or perish. Thus, dissolution of a firm is inevitable part in the life of partnership firm some time or the other.

Dissolution of a firm without intervention of Court can be (a) By agreement (section 40) (b) Compulsory dissolution in case of insolvency (section 41) (c) Dissolution on happening of certain contingency (section 42) (d) By notice if partnership is at will (section 43).

A firm can also be dissolved by Court u/s 44.

Dissolution of partnership and dissolution of firm - The dissolution of partnership between all the partners of a firm is called the dissolution of the firm. [section 39]. - - . As per section 4, Partnership is the relation between persons who have agreed to share profits of business carried on by all or any of them acting for all. - - Thus, if some partner is changed/added/ goes out, the ‘relation’ between them changes and hence ‘partnership’ is dissolved, but the ‘firm’ continues. Hence, the change is termed as ‘reconstitution of firm’. However, complete breakage between relations of all partners is termed as ‘dissolution of firm’. After such dissolution, the firm no more exists. Thus, ‘Dissolution of partnership’ is different from ‘dissolution of firm’. ‘Dissolution of partnership’ is only reconstruction of firm, while ‘dissolution of firm’ means the firm no more exists after dissolution.

Mode of dissolution of firm - Following are various modes of dissolution of firm. * Dissolution by agreement - [section 40]. * Compulsory dissolution in case of insolvency - [section 41] * Dissolution on the happening on certain contingencies [section 42] * Dissolution by notice of partnership at will  [section 43(2)] * Dissolution by the court

Consequences of dissolution of firm - After firm is dissolved, business is wound up and proceeds are distributed among partners. The Act specifies what are the consequences of dissolution of a firm.

Sale of goodwill of firm after dissolution - Business is attracted due to reputation of a firm. It creates a ‘brand image’ which is valuable though not tangible. ‘Goodwill’ is the value of reputation of the business of the firm. Goodwill of a firm is sold after dissolution either separately or along with property of firm. - - As per section 14, property of partnership firm includes goodwill of the firm. - - Goodwill is the reputation and connections which the firm establishes over time, together with circumstances which make the connections durable. This reputation enable to earn profits more than normal profits which a similar business would have earned. Goodwill is an intangible asset of the firm.  - -

In settling the accounts of a firm after dissolution, the goodwill shall, subject to contract between the partners, be included in the assets, and it may be sold either separately or along with other property of the firm. [section 55(1)].

Settlement of accounts after dissolution - Accounts are settled after a firm is dissolved as provided in the Act. A firm is said to be ‘wound up’ only after accounts are fully settled.

Registration of Firms - Registration of firm is not compulsory,  though usually done as registration brings many advantages to the firm. Since ‘partnership contract’  is a ‘Concurrent Subject’ as per Constitution of India, registration of firms and related work is handled by State Government in each State. Section 71 authorises State Government to make rules for * prescribing fees for filing documents with registrar * prescribing forms of various statements and intimations are to be made to registrar and * regulating procedures in the office of Registrar.

Partner cannot sue if firm is unregistered - No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or an{ person alleged to be or to`have been a Ápartner in the fir} unless the firm is registered and the person suing!is or has been shown iø the Register of Firms as a partner in the firm.$ [section 69(1)]. - - Thus, a partner cannot sue the firm or any otheÄ ” partner if firm is unregistered. - - If third party files suit against a partner, he cannot claim of set off or institute other proceeding to enforce a right arising from a contract. - - Suit or claim or set off upto Rs 100 can be made as per section 69(4)(b), but it is negligible in today’s standards. - - Criminal proceedings can be filed, but civil suit is not permissible.

Unregistered Firm cannot sue third party - No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. [section 69(2)].  - - If third party files suit against the unregistered firm, the firm cannot claim set off or institute other proceeding to enforce a right arising from a contract. - - Suit or claim or set off upto Rs 100 can be made as per section 69(4)(b), but it is negligible in today’s standards. - - Criminal proceedings can be filed, but civil suit is not permissible

indian cintrect Act

indian contrect Act

Defamation law and free speech

 The law of defamation is supposed to protect people's reputations from unfair attack. In practice its main effect is to hinder free speech and protect powerful people from scrutiny. This leaflet provides information about legal rights and options for action for people who may be threatened by a legal action or who are worried about something they want to say or publish.
What it is
The basic idea of defamation law is simple. It is an attempt to balance the private right to protect one's reputation with the public right to freedom of speech. Defamation law allows people to sue those who say or publish false and malicious comments.
There are two types of defamation.
* Oral defamation -- called slander -- for example comments or stories told at a meeting or party.
* Published defamation -- called libel -- for example a newspaper article or television broadcast. Pictures as well as words can be libellous.
Anything that injures a person's reputation can be defamatory. If a comment brings a person into contempt, disrepute or ridicule, it is likely to be defamatory.
* You tell your friends that the boss is unfair. That's slander of the boss.
* You write a letter to the newspaper saying a politician is corrupt. That's libel of the politician, even if it's not published.
* You say on television that a building was badly designed. That's libel due to the imputation that the architect is professionally incompetent, even if you didn't mention any names.
* You sell a book that contains defamatory material. That's spreading of a defamation.
The fact is, nearly everyone makes defamatory statements almost every day. Only very rarely does someone use the law of defamation against such statements.

Defences

When threatened with a defamation suit, most people focus on whether or not something is defamatory. But there is another, more useful way to look at it. The important question is whether you have a right to say it. If you do, you have a legal defence.
If someone sues you because you made a defamatory statement, you can defend your speech or writing on various grounds. There are three main types of defence:
* what you said was true;
* you had a duty to provide information;
* you were expressing an opinion.
For example:
* You can defend yourself on the grounds that what you said is true.
* If you have a duty to make a statement, you may be protected under the defence of "qualified privilege." For example, if you are a teacher and make a comment about a student to the student's parents -- for example, that the student has been naughty -- a defamation action can only succeed if they can prove you were malicious. You are not protected if you comment about the student in the media.
* If you are expressing an opinion, for example on a film or restaurant, then you may be protected by the defence of "comment" or "fair comment," if the facts in your statement were reasonably accurate.
* There is an extra defence if you are a parliamentarian and speak under parliamentary privilege, in which case your speech is protected by "absolute privilege," which is a complete defence in law. The same defence applies to anything you say in court.
The same basic defences apply throughout Australia, although the things you have to prove to apply them may differ. For example, in some Australian states, truth alone is an adequate defence. In other states, a statement has to be true and in the public interest -- if what you said was true but not considered by the court to be in the public interest, you can be successfully sued for defamation.

What can happen

* You can be threatened with a defamation suit. You might receive a letter saying that unless you retract a statement, you will be sued. There are numerous threats of defamation. Most of them are just bluffs; nothing happens. Even so, often a threat is enough to deter someone from speaking out, or enough to make them publish a retraction.
* Proceedings for defamation may be commenced against you. This is the first step in beginning a defamation action. Statements of claim, writs or summons shouldn't be ignored. If you receive one, you should seek legal advice.
* The defamation case can go to court, with a hearing before a judge or jury. However, the majority of cases are abandoned or settled. Settlements sometimes include a published apology, sometimes no apology, sometimes a payment, sometimes no payment. Only a small fraction of cases goes to court.[1]

The problems

There are several fundamental flaws in the legal system, including cost, selective application and complexity. The result is that defamation law doesn't do much to protect most people, but it does operate to inhibit free speech.
* Cost. If you are sued for defamation, you could end up paying tens of thousands of dollars in legal fees, even if you win. If you lose, you could face a massive pay-out on top of the fees.
The large costs, due especially to the cost of legal advice, mean that most people never sue for defamation. If you don't have much money, you don't have much chance against a rich opponent, whether you are suing them or they are suing you. Cases can go on for years. Judgements can be appealed. The costs become enormous. Only those with deep pockets can pursue such cases to the end.
The result is that defamation law is often used by the rich and powerful to deter criticisms. It is seldom helpful to ordinary people whose reputations are attacked unfairly.
* Unpredictability. People say and write defamatory things all the time, but only a very few are threatened with defamation. Sometimes gross libels pass unchallenged while comparatively innocuous comments lead to major court actions. This unpredictability has a chilling effect on free speech. Writers, worried about defamation, cut out anything that might offend. Publishers, knowing how much it can cost to lose a case, have lawyers go through articles to cut out anything that might lead to a legal action. The result is a tremendous inhibition of free speech.
* Complexity. Defamation law is so complex that most writers and publishers prefer to be safe than sorry, and do not publish things that are quite safe because they're not sure. Judges and lawyers have excessive power because outsiders cannot understand how the law will be applied. Those who might desire to defend against a defamation suit without a lawyer are deterred by the complexities.
* Slowness. Sometimes defamation cases are launched years after the statement in question. Cases often take years to resolve. This causes anxiety, especially for those sued, and deters free speech in the meantime. As the old saying goes, "Justice delayed is justice denied."
In Australia, a common sort of defamation case brought to silence critics is political figures suing, or threatening to sue, media organisations. The main purpose of these threats and suits is to prevent further discussion of material damaging to the politicians. Other keen suers are police and company directors. People with little money find it most difficult to sue.
In the United States, there are hundreds of cases where companies sue individuals who oppose them. For example, citizens who write letters to government bodies opposing a real estate development may be sued by the developer. Also sued are citizens who sign petitions or speak at public meetings. Defamation is the most common law used against citizen protest, but others are used such as business torts, conspiracy and judicial process abuse. These uses of the law have been dubbed "Strategic Lawsuits Against Public Participation" or SLAPPs. Companies have little chance of success in these suits, but that doesn't matter. The main object in a SLAPP is to intimidate citizens, discouraging them from speaking out. SLAPPs are increasingly common in Australia too.

Media power and defamation

One of the best responses to defamatory comments is a careful rebuttal. If people who make defamatory comments are shown to have gotten their facts wrong, they will lose credibility. But this only works if people have roughly the same capacity to broadcast their views.
Only a few people own or manage a newspaper or television station. Therefore it is difficult to rebut prominent defamatory statements made in the mass media. Free speech is not much use in the face of media power. There are cases where people's reputations have been destroyed by media attacks. Defamation law doesn't provide a satisfactory remedy. Apologies are usually too late and too little to restore reputation, and monetary pay-outs do little for reputation.
Most media organisations avoid making retractions. Sometimes they will defend a defamation case and pay out lots of money rather than openly admit being wrong. Media owners have resisted law reforms that would require retractions of equal prominence to defamatory stories.
By contrast, if you are defamed on an electronic discussion group, it is quite easy to write a detailed refutation and send it to all concerned the next hour, day or week. Use of defamation law is ponderous and ineffectual compared to the ability to respond promptly. This suggests that promoting interactive systems of communication as an alternative to the mass media would help to overcome some of the problems associated with defamation.

Examples

* Physicist Alan Roberts wrote a review of a book by Lennard Bickel entitled The Deadly Element: The Men and Women Behind the Story of Uranium. The review was published in the National Times in 1980. Bickel sued the publishers. He was particularly upset by Roberts' statement that "I object to the author's lack of moral concern." There was a trial, an appeal, a second trial, a second appeal and a settlement. Bickel won $180,000 in the second trial but received a somewhat smaller amount in the settlement.[2]
* Sir Robert Askin was Premier of the state of New South Wales for a decade beginning in 1965. It was widely rumoured that he was involved with corrupt police and organised crime, collecting vast amounts of money through bribes. But this was never dealt with openly because media outlets knew he would sue for defamation. Immediately after Askin died in 1981, the National Times ran a front-page story entitled "Askin: friend to organised crime."[3] It was safe to publish the story because, in Australia, dead people cannot sue. (In some countries families of the dead can sue.)
* In 1992, students in a law class at the Australian National University made a formal complaint about lecturer Peter Waight's use of hypothetical examples concerning sexual assault. Waight threatened to sue 24 students for defamation. Six of them apologised. Waight then sued the remaining 18 for $50,000 for sending their letter to three authorised officials of the university. He later withdrew his suit. Subsequently the students' original letter of complaint was published in the Canberra Times without repercussions.[4]
* In 1989, Tony Katsigiannis, as president of the Free Speech Committee, wrote a letter published in the Melbourne Age and the Newcastle Herald discussing ownership of the media. Among other things, he said of a review of the Broadcasting Act "that its main concern will be to save the necks of the Government's rich mates." Although he mentioned no names, he and the newspaper owners were sued for defamation by Michael Hutchinson, a public servant who headed the review of the Broadcasting Act. Hutchinson sued on the basis of imputations in the letter, which can be judged defamatory even when not intended by the writer. Hutchinson said he wouldn't accept just an apology; he wanted a damages payment and his legal costs covered. Katsigiannis received $20,000 worth of free legal support from friends, but after three exhausting years of struggle he agreed to a settlement in which he apologised but Hutchinson received no money.[5]
* In 1985 Avon Lovell published a book entitled The Mickelberg Stitch. It argued that the prosecution case against Ray, Peter and Brian Mickelberg -- sentenced to prison for swindling gold from the Perth Mint -- was based on questionable evidence. The book sold rapidly in Perth until police threatened to sue the book's distributor and any bookseller or other business offering it for sale. The Police Union introduced a levy on its members to fund dozens of legal actions against Lovell, the distributor and retailers. The defamation threats and actions effectively suppressed any general availability of the book. Over a decade later, none of the suits against Lovell had reached trial, but remained active despite repeated attempts to strike them out for lack of prosecution.[6]
* In the late 1970s, fisherman Mick Skrijel spoke out about drug-running in South Australia. Afterwards, he and his family suffered a series of attacks. The National Crime Authority (NCA) investigated Skrijel's allegations but in 1985 ended up charging Skrijel for various offences. Skrijel went to jail but was later freed and his sentence set aside. In 1993, the federal government asked David Quick QC to review the case; Quick recommended calling a royal commission into the NCA, but Duncan Kerr, federal Minister for Justice, declined to do so. Skrijel prepared a leaflet about the issue and distributed it in Kerr's electorate in Tasmania during the 1996 federal election campaign. Kerr wrote to the Tasmanian media saying he would not sue Skrijel but that he would sue any media outlet that repeated Skrijel's "false and defamatory allegations." The story was reported in the Financial Review but the Tasmanian media kept quiet.[7] Skrijel's view is that most media wouldn't have published much on his case no matter what and that defamation law provides a convenient excuse for media not to publish.

Options

In practice, the structure of the court system and the media serve the powerful while doing little to protect the reputation of ordinary people. They undermine the open dialogue needed in a democracy. There are various options for responding to uses of defamation law to silence free speech. Each has strengths and weaknesses.

Avoid defamation

Writers can learn simple steps to avoid triggering defamation threats and actions. The most important rule is to state the facts, not the conclusion. Let readers draw their own conclusions.
* Instead of saying "The politician is corrupt," it is safer to say "The politician failed to reply to my letter" or "The politician received a payment of $100,000 from the developer."
* Instead of saying "The chemical is hazardous," it is safer to say "The chemical in sufficient quantities can cause nerve damage."
* Instead of saying, "There has been a cover-up," it is safer to say "The police never finalised their inquiry and the file has remained dormant for nine years."
Be sure that you have documents to back up statements that you make. Sometimes understatement -- saying less than everything you believe to be true -- is more effective than wide claims.
If you are writing something that might be defamatory, it's wise to obtain an opinion from someone knowledgeable. (Remember, though, that lawyers usually recommend that you don't say something if there's even the slightest risk of being sued.)
Another way to avoid being sued for defamation is to produce and distribute material anonymously. Some individuals produce leaflets. They are careful to use printers and photocopiers that cannot be traced. At times when few people will notice them, they distribute the leaflets in letterboxes, ready to dump the remainder if challenged. Gloves of course -- no fingerprints. For those using electronic mail, it's possible to send messages through anonymous remailers, so the receivers can't trace the sender.
These techniques of avoiding defamation law may get around the problem, but don't do much to eliminate it. They illustrate that defamation law does more to inhibit the search for truth than foster it. If an anonymous person circulates defamatory material about you, you can't contact them to sort out discrepancies.

Say it to the person

Send a copy of what you propose to publish to people who might sue. If they don't respond, it will be harder for them to sue successfully later, since they haven't acted to stop spreading of the statement. If they say that what you've written is defamatory, ask for specifics: which particular statements or claims are defamatory and why? Then you can judge whether their objections are valid.
It's not defamatory to criticise a person to their face or to send them a letter criticising them. It's only defamation when your comments are heard or read by someone else -- a "third party."

Keep a copy for posterity

If you have to censor your writing or speech to avoid defamation, keep a copy of the original, uncensored version -- in several very safe places. Save it for later and for others, perhaps after all concerned are dead. You might also inform relevant people, especially those who might threaten defamation, that you have saved the uncensored version.[8]
Defamation law distorts history. How nice it would be to read the uncensored versions of old newspapers, if only they existed! By saving the unexpurgated versions, you can help challenge this whitewashing of history.

Call the bluff

If you are threatened with a defamation action, one strategy is to just ignore it and carry on as before. Alternatively, invite the threatener to send the writ to your solicitor. Most threats are bluffs and should be called. The main thing is not to be deterred from speaking out. The more people who call bluffs, the less effective they become.
If you receive a defamation writ, try to find a solicitor who is willing to defend free speech cases at a small fee or, if you have little money, no cost. Shop around for someone to defend you. You can try public interest groups, contact the Communications Law Centre at the University of New South Wales (The White House, UNSW, Sydney NSW 2052; phone 02-9663 0551; fax 02-9662 6839), or ask members of Whistleblowers Australia. If you send us information about your case, we may be able to refer you to a suitable person.

Use publicity

Just because you are sued doesn't mean you can't say anything more. (Many organisations avoid making comment by saying that an issue is sub judice -- under judicial consideration -- but that's just an excuse.) You can still speak. In particular, you can comment on the defamation action itself and its impact on free speech. It's also helpful to get others to make statements about your case.
A powerful response to a defamation suit is to expand the original criticism. Defamation suits aim to shut down comment. If enough people respond by asserting their original claims more forcefully and widely, this will make defamation threats counterproductive.
Helen Steel and Dave Morris, members of London Greenpeace, produced a leaflet critical of McDonald's. McDonald's sued. Steel and Morris, with no income, defended themselves. They used the trial to generate lots of publicity. Because of the trial, their leaflet has reached a far greater audience than would have been possible otherwise. The whole exercise has been a public relations disaster for McDonald's.

Recommend law reform

Law reform commissions have been advocating reform of defamation law for decades. Possible changes include:
* public figure defence so that it's possible to make stronger criticisms of those with more power;
* adjudication outside courts, to reduce court costs;
* elimination of monetary pay-outs, requiring instead apologies published of equal prominence to the original defamatory statements.
In spite of widespread support for reform among those familiar with the issues, Australian law remains much the same. That's because it serves those with the greatest power, especially politicians who make the law and groups that use it most often.
Fixing the law is at most part of the solution. It's also necessary to change the way the legal system operates.

Campaign to reform the legal system

Any change that makes the system cheaper, speedier and fairer is worth pursuing. The sorts of changes required are:
* reducing costs that are disproportionate to damage done or large compared to a party's income;
* allowing court orders to remove tax deductibility for the legal costs of corporations assessed to have acted high-handedly;
* making laws simpler;
* introducing compulsory conciliation;
* speeding up legal processes.
There's a much better chance of change when concerned individuals and groups organise to push for change. This involves lobbying, writing letters, organising petitions, holding protests, and many other tactics. In the United States, campaigning by opponents of SLAPPs has resulted in some states passing laws against SLAPPs.

Speak out

Petitions, street stalls and public meetings can be used to directly challenge the use of defamation law against free speech. One possibility is to circulate materials that have been subject to defamation threats or writs. Another is to protest directly against those who attempt to use defamation law to suppress legitimate comment. If enough people directly challenge inappropriate uses of the law, it will become harder for it to be used.

Conclusion

Defamation law doesn't work well to protect reputations. It prevents the dialogue and debate necessary to seek the truth. More speech and more writing is the answer to the problem rather than defamation law, which discourages speech and writing and suppresses even information that probably wouldn't be found defamatory if it went to court. Published statements -- including libellous ones -- are open, available to be criticised and refuted. The worst part of defamation law is its chilling effect on free speech.
The most effective penalty for telling lies and untruths is loss of credibility. Systems of communication should be set up so that people take responsibility for their statements, have the opportunity to make corrections and apologies, and lose credibility if they are repeatedly exposed as untrustworthy. Defamation law, with its reliance on complex and costly court actions for a tiny fraction of cases, doesn't work.
Defamation actions and threats to sue for defamation are often used to try to silence those who criticise people with money and power. The law and the legal system need to be changed, but in the meantime, being aware of your rights and observing some simple guidelines can help you make informed choices about what to say and publish.

Selected references

ABC All-Media Law Handbook: for Journalists, Presenters, Program Makers, Authors, Editors and Publishers (Sydney: Australian Broadcasting Corporation, 1994, 2nd edition).
Sharon Beder, "SLAPPs: Strategic Lawsuits Against Public Participation," Current Affairs Bulletin, Vol. 72, No. 3, October/ November 1995, pp. 22-29.
Robert Pullan, Guilty Secrets: Free Speech and Defamation in Australia (Sydney: Pascal Press, 1994).

The principal author of this document is Brian Martin, with extensive advice and comment on drafts from Richard Blake, Sharon Callaghan, Michael Curtis, Don Eldridge, Chris Fox, Judith Gibson, Jack Goldring, Mary Heath and Mick Skrijel. Rocco Fazzari and Jenny Coopes kindly granted permission to reproduce their cartoons.


Whistleblowers Australia
PO Box U129, Wollongong NSW 2500
Phone: 02-9810 9468
E-mail: bmartin@uow.edu.au
Web: http://www.bmartin.cc/dissent/contacts/au_wba/

November 1996

Footnotes

1. In one study of Australian defamation cases, only one out of five suits went to trial: Michael Newcity, "The sociology of defamation in Australia and the United States," Texas International Law Journal, Vol. 26, No. 1, Winter 1991, pp. 1-69. For the latest developments in Australian defamation law, see the journal Defamed (NSW Young Lawyers, 170 Phillip Street, Sydney NSW 2000).
2. David Bowman, "The story of a review and its $180,000 consequence," Australian Society, Vol. 2, No. 6, 1 July 1983, pp. 28-30.
3. David Hickie, "Askin: friend to organised crime," National Times, 13-19 September 1981, pp. 1, 8
4. Graeme Leech, "Lecturer drops suits against students," Australian, 28 April 1993, p. 13; Andrea Malone and Sarah Todd, "Facts and fiction of the Waight saga," Australian, 5 May 1993, p. 14.
5. Robert Pullan, Guilty Secrets: Free Speech and Defamation in Australia (Sydney: Pascal Press, 1994), pp. 27-28.
6. Avon Lovell, The Mickelberg Stitch (Perth: Creative Research, 1985); Avon Lovell, Split Image: International Mystery of the Mickelberg Affair (Perth: Creative Research, 1990).
7. Richard Ackland, "Policing a citizen's right to expression," Financial Review, 9 February 1996, p. 30.
8. Be aware, though, that you might be called to produce this material as part of the discovery process in a defamation action!

HUMAN RIGHT OF BANGLADESH CONSTITUTION
29 years ago from 'today - 4 November 2001', the people of Bangladesh gave to themselves, a Constitution. "In our Constituent Assembly, this eighteenth day of Kartick 1379 BS, corresponding to the fourth day of November 1972 AD, do hereby adopt, enact and give to ourselves this Constitution", the preamble of the Constitution of the People's Republic of Bangladesh solemnly testifies. The quest of the Bengalis for political emancipation through constitutional rule and democracy culminated into a liberation war in 1971 out of which Bangladesh was born. The struggle was closely linked with the aspirations of the people for establishing a civil society with an orderly and just government elected through free and fair choice in a democracy where fundamental human rights are guaranteed and where an independent judiciary acts as the custodian of the constitution. This is the genesis of the Constitution of the People's Republic of Bangladesh as the people of Bangladesh made pledge to themselves after a heroic struggle for national liberation. The Constitution came into force on 16 December 1972.A voyage to the past


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Bangladesh was physically liberated on 16 December 1971. The government of Bangladesh immediately set up a Constituent Assembly composed of the members of the Pakistan National and East Pakistan Assemblies elected in 1970, to draft a Constitution for Bangladesh. The Constituent Assembly held its first session on 10 April 1972 and passed the Constitution on 4 November 1972. The Constitution was authenticated by the Speaker on 14 December 1972 and came into force on 16 December 1972. Our Constitution owes its origin in the Proclamation of Independence (10 April, 1971), which is, no doubt, the culmination of a long struggle of the people through history for achieving self-determination. In tracing the constitutional development in Bangladesh, it is important to first study the Proclamation of Independence itself.The original Constitution of Bangladesh introduced a parliamentary form of government with the President as its constitutional head. It provides a responsible executive, a non-sovereign legislature and an independent judiciary with appropriate separation of powers, and checks and balances among them. The supreme law of Bangladesh, the Constitution, confers only limited law making competence on Parliament. Unlike the British Parliament, the Bangladesh Parliament is created by, and operative under a written constitution. Parliament does not possess any intrinsic law-making power, which derives from the constitution. The parliament cannot make any law in contravention with the provisions of the constitution. Article 26(2) iterates, "The state shall not make any law inconsistent with any provision of this part, and any law so made shall, to the extent of such inconsistency, be void."

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The Constitution embodies the principle of ministerial responsibility, both individual and collective, to the parliament and ultimately to the people, the source of "all powers in the republic". Bangladesh started its journey with a parliamentary form of democracy, derailed afterwards from the fundamental aspiration of democratic governance by introducing one-party

political system with an 'all powerful head of the state-the President'. The change took place in early 1975 by way of a notorious amendment to the Constitution. Through the infamous Constitution (Fourth Amendment) Act, 1975, one party dictatorial system known as 'BAKSAL' was substituted for a responsible parliamentary system. The 12th Amendment to the Constitution re-established the parliamentary form of government in 1991. The last amendment to the Constitution has added a unique feature. The Constitution (Thirteenth Amendment) Act, 1996 introduced the provision of 'Non-Party Caretaker Government' to the Constitution of Bangladesh. It will work during the period from the date of which the Chief Adviser of this government enters upon office after parliament is dissolved or stands dissolved by reason of expiration of its term till the date on which a new Prime Minister enters upon his office after the constitution of parliament The preamble of the Constitution

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The preamble of the Constitution of Bangladesh proclaims that the high ideals of 'absolute trust and faith in the almighty Allah', 'nationalism', 'democracy' and 'socialism meaning economic and social justice' shall be the fundamental principles of the Constitution. It also states that it shall be a fundamental aim of the State to realise a socialist society in which the rule of law, fundamental human rights and freedom, equality and justice will be ensured. The preamble recognises the fundamental aim of the state as to realise the 'democratic process' for establishing a socialist society, free from exploitation. The framers conceived of a democratically run welfare state to eliminate inequality of income and status and standards of life.The fundamental principles of state policy
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Part II (Articles 8-25) of the Constitution gives an account of the fundamental principles of State policy. The four 'high ideals' mentioned in the preamble along with other specific economic, social and political goals shall be fundamental the governance of Bangladesh, shall be applied by the State in the making of laws and interpreting the Constitution. They will be the basis of work of the State and of its citizens. They will not be enforceable in the court of law. The principles, among others, include: I) promotion of local government institutions composed of representatives of the area concerned and with special representations of peasants, workers and woman to build democratic structures at the grass-root level, (b) participation of women in all spheres of national life, (c) guarantee of fundamental human rights and freedoms and respect for the dignity and worth of human persons and effective participation by the people through their elected representatives in administration at all levels .In short, the Republic is a people's one, and the process of governance is democratic. One of the most significant characteristics of the democratic governance is representative local government. It guarantees the right of the people to elect their representatives who take charge of the statecraft.Fundamental rights

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For realisation of the aim mentioned in the preamble and some of the fundamental principles of the state policy, Part III of the Constitution provides for a catalogue of rights as fundamental, which the state is mandated to guarantee for its citizenry. Provisions of the Constitutions including fundamental rights governing political activity and the ways in which they are operated/interpreted in practice can be summarised as follow:Equality before Law and Equal Protection of Law: Article 27 provides that all citizens are equal before the law and are entitled to equal protection of law. It combines the English concept of equality before law and the American concept of the equal protection of law.

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Freedom of Movement: Article 36 provides that subject to reasonable restrictions imposed by law in the public interest, every person has the right to move freely through out Bangladesh, to reside and settle in any place in Bangladesh and to leave and re-enter Bangladesh.Freedom of Assembly: Article 37 provides that every citizen shall have the right to assemble and participate in public meetings and processions peacefully and without arms. This right can be restricted only by a law imposed in the interest of the public order or public health.Freedom of Association: Article 38 secures the freedom of association of citizens upon which the very existence of democracy is dependent. Right to form associations or unions is guaranteed subject to any reasonable

restrictions imposed by law in the interests of morality or public order.Freedom of Expression: Freedom of expression is secured in Article 39, which provides guarantee for freedom of thought, conscience, speech and press. Restrictions on the exercise of freedom of speech and expression can be imposed by law on a number of grounds: security of the state, friendly relations with foreign states, public order, decency, morality or in relation to contempt of court, defamation, or intention to an offence.

Enforcement of Fundamental Rights: Article 44 categorically states that the right to move the High Court Division in accordance with Article 102(1), for the enforcement of fundamental rights enumerated in Part III including the above-mentioned rights.
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There are other constitutionally guaranteed rights too. The future of the constitutional governance lies with the implementation of the liberal provisions of the Constitution. When rights will be guaranteed, scopes for social responsibilities will be widened.

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A difficult journey towards constitutional governance. The whole process of institutionalisation of democracy perhaps begins with

the process of having representatives at various levels of governance. Being under military rule for almost one-third of the period since the independence of the country, when the supreme law of the land- the Constitution was either suspended or parts of it remained in abeyance, the people of Bangladesh hardly had the opportunity to exercise democratic rights and practice freedom. The local government units have been routinely manipulated by all the previous governments. The purpose was to create

respective rural support base for the ruling party. The effective participation by the people through their elected representatives in

administration at all levels, as envisaged in article 11 of the Constitution, has not yet been ensured.

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A Constitutional government is enshrined with a value system, which ensures societal change as well as justice. Every country has a constitution but may not have a constitutional government. A constitutional government requires primacy of rule of law. Bangladesh is abundant with constitutional provisions and statutory laws guaranteeing political freedom. However, the

existence of a number of repressive laws undermines the 'de jure' pledges of freedom. Sadly the 'hard earned democracy' has not yet obtained an institutional shape. Bangladesh's politics remain confrontational and inimical to reform. There is no system of accountability within the existing 'political party mechanisms'. The judiciary is still not functionally independent of the executive. The aspiration of the Constitution as reflected in Article 22 ("The state shall ensure the separation of the judiciary from executive organ of the state") has not yet been materialised. With the installation of a newly elected government in power, it is the earnest hope of the people that they will act to preserve, protect and defend the Constitution both in letter and in spirit.
A.H.Monjurul Kabir,

Director of LAW WATCH, a centre for studies on human rights

PART III FUNDAMENTAL RIGHTS






Article 26: Laws inconsistent with fundamental rights to be void

1. All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.



2. The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.



3. Nothing in this article shall apply to any amendment of this Constitution made under article 142.



Article 27: Equality before law

All citizens are equal before law and are entitled to equal protection of law.



Article 28: Discrimination on grounds of religion, etc

1. The State shall not discriminate against any citizen on grounds only of religion, race caste, sex or place of birth.



2. Women shall have equal rights with men in all spheres of the State and of public life.



3. No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution.



4. Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.



Article 29. Equality of opportunity in public employment

1. There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic.



2. No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic.



3. Nothing in this article shall prevent the State from -



i.making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic;

ii.giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination;

iii.reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex.



Article 30: Prohibition of foreign titles, etc

No citizen shall, without the prior approval of the President, accept any title, honour, award or decoration from any foreign state.



Article 31: Right to protection of law

To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.



Article 32: Protection of right to life and personal liberty

No person shall be deprived of life or personal liberty save in accordance with law.



Article 33: Safeguards as to arrest and detention:

1. No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.



2. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.



3. Nothing in clauses (1) and (2) shall apply to any person-



i.who for the time being is an enemy alien; or

ii.who is arrested or detained under any law providing for preventive detention.



4. No law providing for preventive detention shall authorise the detention of a person for a period exceeding six months unless an Advisory Board consisting of three persons, of whom two shall be persons who are, or have been, or are qualified to be appointed as, Judges of the Supreme Court and the other shall be a person who is a senior officer in the service of the Republic, has, after affording him an opportunity of being heard in person, reported before the expiration of the said period of six months that there is, in its opinion, sufficient cause for such detention.



5. When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order.



6. Parliament may be law prescribe the procedure to be followed by an Advisory Board in an inquiry under clause (4)



Article 34: Prohibition of forced labour

1. All forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.



2. Nothing in this article shall apply to compulsory labour.



i.by persons undergoing lawful punishment for a criminal offence; or

ii.required by any law for public purpose.



Article 35: Protection in respect of trial and punishment

1. No person shall be convicted to any offence except for violation of al law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from that which might have been inflicted under the law in force at the time of the commission of the offence.



2. No person shall be prosecuted and punished for the same offence more than once.



3. Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law.



4. No person accused of any offence shall be compelled to be a witness against himself.



5. No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.



6. Nothing in clause (3) or clause (5) shall affect the operation of any existing law which prescribes any punishment or procedure for trial.



Article 36: Freedom of movement

Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.



Article 37: Freedom of assembly

Every citizen shall have the right to assemble and to participate in public meetings and processions peacefully and without arms, subject to any reasonable restrictions imposed by law in the interests of public order health.



Article 38: Freedom of association

Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order;



Article 39: Freedom of thought and conscience, and of speech

1. Freedom or thought and conscience is guaranteed. Freedom of thought and conscience, and of speech.



2. Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense-



i.the right of every citizen of freedom of speech and expression; and

ii.freedom of the press, are guaranteed.



Article 40: Freedom of profession or occupation

Subject to any restrictions imposed by law, every citizen possessing such qualifications, if any, as may be prescribed by law in relation to his profession, occupation, trade or business shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.



Article 41: Freedom of religion

1. Subject to law, public order and morality-



i.every citizen has the right to profess, practice or propagate any religion;

ii.every religious community or denomination has the right to establish, maintain and manage its religious institutions.

2. No person attending any educational institution shall be required to receive religious instruction, or to take part in or to attend any religious ceremony or worship, if that instruction, ceremony or worship relates to a religion other than his own.



Article 42: Rights to property

1. Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalised or requisitioned save by authority of law.



2. A law made under clause (1) shall provide for the acquisition, nationalisation or requisition with compensation and shall either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be assessed and paid; but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate.



3. Nothing in this article shall affect the operation of any law made before the commencement of the Proclamations (Amendment) Order, 1977 (Proclamations Order No. I of 1977), in so far as it relates to the acquisition, nationalisation or acquisition of any property without compensation.]



Article 43: Protection of home and correspondence

Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health-



1.to be secured in his home against entry, search and seizure; and

2.to the privacy of his correspondence and other means of communication.



Article 44: Enforcement of fundamental rights

1. The right to move the 22[High Court Division] in accordance with 23[clause (I)] of article 102 for the enforcement of the rights conferred by this Part of guaranteed.



2. Without prejudice to the powers of the 22[High Court Division] under article 102, Parliament may be law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers.]



Article 45: Modification of rights in respect of disciplinary

Nothing in this Part shall apply to any provision of a disciplinary law relating to members of a disciplined force, being a provision limited to the purpose of ensuring the proper discharge of their duties or the maintenance of discipline in that force.



Article 46: Power to provide indemnity

Notwithstanding anything in the foregoing provisions of this Part, Parliament may be law make provision for indemnifying any person in the service of the Republic or any other person in respect of any act done by him in connection with the national liberation struggle or the maintenance or restoration of other in any area in Bangladesh or validate any sentence passed, punishment inflicted, forfeiture ordered, or other act done in any such area.



Article 47: Saving for certain laws

1. No law providing for any of the following matters shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridge, any of the rights guaranteed by this Part-



i.the compulsory acquisition, nationalisation or requisition of any property, or the control or management thereof whether temporarily or permanently;

ii.the compulsory amalgamation of bodies carrying on commercial or other undertakings;

iii.the extinction, modification, restriction or regulation of rights of directors, managers, agents and officers of any such bodies, or of the voting rights of persons owning shares or stock (in whatever form) therein;

iv.the extinction, modification, restriction or regulation of rights of search for or win minerals or mineral oil;

v.the carrying on by the Government or by a corporation owned, controlled or managed by the Government, of any trade, business, industry or service to the exclusion, complete or partial, or other persons; or

vi.the extinction, modification, restriction or regulation of any right to property, any right in respect of a profession, occupation, trade or business or the rights of employers or employees in any statutory public authority or in any commercial or industrial undertaking;

vii.if Parliament in such law (including, in the case of existing law, by amendment) expressly declares that such provision is made to give effect to any of the fundamental principles of state policy set out in Part II of this Constitution.

2. Notwithstanding anything contained in this Constitution the laws specified in the First Schedule (including any amendment of any such law) shall continue to have full force and effect, and no provision of any such law, nor anything done or omitted to be done under the authority of such law, shall be deemed void or unlawful on the ground of inconsistency with, or repugnance to, any provision of this Constitution;

Provided that nothing in this article shall prevent amendment, modification or repeal of any such law.



3. Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.]

Article 47A: In applicability of certain article

1. The rights guaranteed under article 31. clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies.
2. Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.]