Human rights treaties propagate three core obligations -- respect, protect, and fulfill -- to ensure human rights in different national jurisdictions.
At the root level, a country has to respect the human rights of an individual or a group, by not interfering with their enjoyment of human rights; secondly, it has to protect an individual or a group from human rights abuses; lastly, the state has to always endeavour to fulfill the positive means of enjoying human rights by an individual or group. Article 27 of International Covenant on Civil and Political Rights 1966, solemnize the practice.
But the current scenario of Bangladesh endorses the absence of the last two human rights obligations. The amount of vandalism, torture, clashes, and murder Bangladesh has experienced during the Hindu community’s biggest festival due to certain baseless allegations proves that Bangladesh has failed as a state to protect and fulfill the basic human rights of citizens.
Both communal violence and religious intolerance are outcomes of that negligence or short-sightedness, which the constitution of Bangladesh does not approve of. This clashes with the constitutional spirit of Bangladesh.
Secularism and religious freedom are a part of those four basic structures of Bangladesh’s constitution. Secularism means both freedom of religion and freedom from religion. Secularism being a basic structure, the government will take care of the secular welfare of the state in general without considering religion or no religion.
Justice Lutfur Rahman, in one of the commentaries on the Bangladeshi constitution, said that religion is everyone’s personal concern. Hence, the state should treat religion as an individual’s identity following the discourse of secularism.
Apart from that, the administration’s failure to provide protection from vandalism and other forms of torture to the Hindu families during their biggest festival lies in the failure of upholding a secular discourse. Also, the number of clashes frequently occurring across the country provide a picture of secular (!) welfare in the form of negligence from state administration.
Can the state deny the liability of not providing sufficient protection to minorities?
The answer is, emphatically, no. In general, a state is liable to ensure security and protection for every individual in the state without the consideration of religious majority or minority. But a state with unharmonious religious sentiments and intolerance towards minorities requires special protection.
The discussion of special protection gets its validity from Articles 28(4) and 29(3) of Bangladesh’s constitution. These articles come under the doctrine of reasonable classification that encourages the state to take necessary measures to protect vulnerable groups or minorities.
After communal clashes and vandalism, the Bangladesh Hindu Buddhist Christian Unity Council urged for a protection law and for a minority council to protect minority religious groups. Articles 28(4) and 29(3) also would support the enactment of such an act and establishment of the council. These demands somehow meet the “intelligible differentia” sought by reasonable classification due to the circumstances Bangladesh witnessed intermittently.
Justice ATM Afzal, in Sheikh Abdus Sabur v Returning Officer, said that the state, in exercising its government power, has to make laws differently for different groups or classes to attain the objective of their constitutional policies. Also, the state has to utilize the doctrine of reasonable classification in a way that it becomes a useful servant of democracy and state administration. To use the doctrine as a useful servant, Bangladesh needs logically correct classification of its citizens and solemnization of secularism to some extent.
All of these arguments may be the prospects of handling similar situations in the future. But the liability of the state administration in dealing with contemporary circumstances across Bangladesh won’t lessen with any amount of defense.
The Bangladesh government took far harsher measures within the quickest possible time to handle some of the national crises in the past three years. As the issue has created terror and violence across the country, it required comprehensive, and immediate steps. Failure to take the steps has led to further communal clashes across the country.
Clearly, Bangladesh as a state has failed to comply with the perambulatory spirit of the constitution. Also, the state’s negligence towards handling the situation has violated the propagation of Article 12(3) (abuse of religion for political purpose) and 12(4) (persecution of the people of a particular religion). In the current case, state actors didn’t do the misnomers, but in no way can it bypass its liability, because the state has failed to protect the violation of human rights and the basic structure of the constitution by non-state actors.
Surely, the state’s failure to protect Hindus from serious harm by non-state actors questions the efficiency of state mechanism. Bangladesh needs to overcome the situation to ensure a harmonious future for religious communities. Minority protection laws may work as an aid to it.
Sakhawat Sajjat Sejan is Lecturer, Department of Law, Feni University.