By the word ‘reasonable restriction’ we easily understand restriction of a person or group of persons which is reasonable to the betterment or safeguard for the general people of the society. That means if they are not restrained in due time they may cause damage to the public peace or shifty or public disorder. In another name it is called ‘Preventive detention’ this prevention is made before the occurrence analyzing the facts and circumstances of the matter by the executive with their power without interference or permission of judiciary.
Now the question is what authority do we have to make such ‘preventive detention’? In our constitution, though it gave us fundamental rights (in Part III) and it is guaranteed by the judiciary (Article 44 & 102) but it put a full stop imposing preventive detention on Article 33. (3). (b). That article empowered other laws i.e. special power act 1974, Section 144 of Code of Criminal Procedure etc. [i]
Though we believe our legislative made these provisions for the betterment of the state, empowered the executive but time to time there were questions by individuals and people seeking their right conflicted between the provisions, come to judiciary as the people of republic has that right and analyzing the objection made to the Court, The Court assist the executive and give some certain procedure to be followed by the executive to make such order or to restrain certain person.
One of the landmark cases is “Saiyyd Abul A’la Maudoodi vs. The Government of West Pakistan” 17 DLR (SC) 1965 p. 209. By that case, several important decisions have come out.
When ‘reasonable restriction’ may in force:
- If there is continuous extension of threatening situation it is justified to prevent that power by detention to avoid grave consequence which might not be avoidable by any other way. 1
- The restriction should not be subjective but it must be objective in nature.1
- To declare anything reasonable some abstract term is not enough there must be full explanation of cause of that restriction.[ii]
When ‘reasonable restriction’ may not in force:
- A reasonable restriction cannot completely deny his all rights for uncertain time.1
- The person has the right to know the reason of his restriction.1
- No law providing for preventive detention shall have any authority of detention of a person for a period exceeding six months unless an Advisory Board consisting of three persons[iii]
- Where fundamental Right is denied and the reason is not sufficient, the relief against that detention cannot be refused.1
- The court has the power to correct the executive excesses1
- The court shall not entertain on any order made by the executive but the executive must provide satisfaction on the question raised before the court. 1
The principle of natural justice Audi Alteram partem (Hare the other party) must be applied during the making or the decision (of detention) 1
[i] The Constitution of the people’s republic of Bangladesh, special power Act 1974, sec 144 of CrPC
[ii] “Saiyyd Abul A’la Maudoodi vs. The Government of west Pakistan” 17 DLR (SC) 1965 p. 209
[iii] Section 33(4) and 9 of The Special Powers Act 1974
iv The Constitutional Law of Bangladesh – M. Jashim Ali Chowdhury
v PREVENTIVE DETENTION IN BANGLADESH: A GENERAL DISCUSSION – Md. Ashraful Arafat Sufian