CHAPTER-1
1.1 Introduction:
Equal dignity cannot be ensured to lower caste community unless the community is integrated with mainstream democratic process, which reflects the non-communal and secular spirit of our liberation war. Exploitation by the ruling class over the years has deprived the Dalit community (lower caste) members of every fundamental human right. In the name of establishing religion or achieving some targeted objectives, the ruling class has been exploiting the lower caste community for at least over 3000 years. Exploiting the members of lower caste community has been used as a technique by the ruling class to ensure their own empowerment
For a human being dignity means accepting he/she as a human being at first and then ensuring all his/her rights.
1.2 Importance of this research topic:
The violation of fundamental rights is not new on this earth and has been being practiced from the early history of the human civilization. The awareness among people concerning the fundamental rights enhanced by the extreme violation the fundamental rights during the 2nd World War. But in the developing and under developed countries, people are still less concerned about their fundamental rights though they are the worst sufferers of the violation of these rights.
The fundamental rights in Bangladesh are listed under Articles 27 to 44 of Part III, and the jurisdiction of the High Court Division of the Supreme Court to enforce the rights is defined in Article 102 of Part Vl of the Constitution of 1972. But general people are not conscious enough about these laws.
To eliminate the violation of fundamental rights from the society, we should make the general people aware of these laws. Moreover, probably the most important step to be made is to effectively implement these laws.
1.3. Methodology
The whole research paper has been done in an organized way. First, necessary divisions have been selected. Then, I made every possible effort to collect information required for each section. The methodology followed throughout the research paper has been pointed out bellow:
· Planning the whole research paper,
· Dividing the research paper into four sections:
· Taking advise from honorable course instructor regarding the collection of necessary information,
· Interviewing several renown lawyers,
· Conducting surveys,
· Screening the gathered information,
· Selecting the effective information that can be added in the paper,
· Updating and modifying the paper for several times.
CHAPTER-2
Fundamental Rights in the Constitution
2.1 Basis of the Fundamental Rights
Fundamental Rights The fundamental rights of the people of Bangladesh have been enshrined in the Constitution of the country. All past laws inconsistent with these rights were made void by the Constitution, and it enjoined upon the State not to make any law inconsistent with these rights. Certain rights may, however, remain suspended under the provisions of articles 141(a), 141(b) and 141(c) during an emergency arising out of a threat to the country’s security or economic life[1].
Fundamental rights give the citizens dignity of life in an atmosphere of freedom and justice beyond the man-made fetters that had constricted their physical and mental horizons. Modern judiciary is regarded as an excellent product of civilization to put the concept of justice to work in the midst of divergent forces with conflicting class or individual interests. Such conflicts make it difficult to bring about equilibrium in the society for a peaceful and orderly association of citizens for their common good[2]. An independent judiciary and strong democratic institutions are the best guarantee against assaults on the rights of the citizens.
2.2 Fundamental Rights:
The term fundamental rights is a technical one, for when certain human rights are written down in a constitution and are protected by constitutional guarantees they are called fundamental rights. They are fundamental rights in the sense that they are placed in the supreme or fundamental law of the land, which has a supreme sanctity over all other law of the land.
The French declaration of Rights of Man and Citizen 1789, and the American Declaration of Independence 1776, and the Incorporation of a Bill of Rights in the U S constitution 1791 most of the democratic countries with written constitution are including a chapter for Bill of Rights or Fundamental Rights with special sanctity[3].
The Object of enumeration of fundamental rights in a constitution is not to make them unalterable in any way but main object is that they cannot be taken away by ordinary process of law making. They are placed beyond the reach of the executive and the legislative to act in violation of them. Justice Jackson pointed out the object of the incorporation of fundamental rights in the US Constitution —-
“The very purpose of Bill of Rights is to withdraw certain subjects from the vicissitude of political controversy; to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts[4].
In Jibendr V.The Province of East Pakistan PLD 1957SC (PAK) 9, The Supreme Court of Pakistan held that,
“ The very conception of a fundamental right is that it being a right grunted by the constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a constitution to say that a right is fundamental but that it may be taken away by the law[5].’
[6].’
Rights and freedoms from the bedrock of democracy. No can function successfully in the absence of some basic freedoms Again, modern democratic government is apart government .The party winning majority in the election from the government. But coming into power the government may turn itself into a dictatorial one violating the basic rights for the people and oppressing the opposition. The aim of having a declaration of fundamental rights in the constitution is to prevent such a possible danger. In other words, they provide a restraint on the power of the government so that it cannot interfere with the peoples basic rights according to its whims[7]. When rights and freedoms are placed in the constitution they become the part of 5 the supreme law and the government cannot take them away except by constitution amending process, which is always rigid one. This is why insertion of a bill of rights in a written constitution is considered to be one of the safe guards of democracy.
It is important to mention here that in Britain there is no Bill of rights; no formal declaration of any fundamental rights has ever been made, it neither does nor, of course mean that the rights of the people are less granted in Britain what are fundamental rights under written constitution are all ordinary rights in Britain. There protection of rights and freedoms rests not on constitutional guarantees but on supremacy of law, i.e. the rule of law, public opinion and strong common law tradition s. though the British parliament , under the doctrine of parliamentary supremacy ,can any time abridge ,modify or abolish any rights of the people , it is the deep rotted democratic traditions and vigilant public opinion which act as a constant check on the parliament to do that and the power of the executive is limited in the sense that it cannot interfere with the rights of the people without the sanction of law and it is , under the doctrine of rule of law , answerable to the courts for any action which is contrary to the law.
2.3. Fundamental Rights Provisions the Constitution of People’s of Republic Bangladesh
The fundamental rights in Bangladesh are listed under Articles 27 to 44 of Part III, and the jurisdiction of the High Court Division of the Supreme Court to enforce the rights is defined in Article 102 of Part VI of the Constitution of 1972.
Articles 27 and 28 of the Constitution provide that all citizens are equal before law and are entitled to equal protection of law, and the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth[8].
Article 31 and 32 provide that to enjoy the protection of the law, and to be treated in accordance with law, is the inalienable right of every citizen, and no action detrimental to the life, personal liberty, body, reputation or property of any person shall be taken except in accordance with law[9].
Articles 29 provide that there shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic irrespective of religion, race, caste, sex or place of birth. Nothing in this article shall prevent the State from making special provision in favor of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic.
Article 33 provides that no person who is arrested shall be detained in custody without being informed 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. 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, and no such person shall be detained in custody beyond the said period without the authority of a magistrate except in the case of any person who for the time being is an enemy alien, or who is arrested or detained under any law providing for preventive detention[10].
Article 34 guarantees that all forms of forced labor are prohibited, and any contravention of this provision shall be an offence punishable in accordance with law. Nothing in this article shall apply to compulsory labor by persons undergoing lawful punishment for a criminal offence, or required by any law for public purposes[11].
Article 35 provides that no person shall be convicted of any offence except for violation of a 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. Every person accused of criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law[12]. No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
Article 36 provides that 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[13].
As per Articles 37 and 38 every citizen shall have the right to form associations or unions, 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 morality, public order or public health.
Freedom of thought and conscience is guaranteed in Article 39 of the Constitution. 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 offence the right of every citizen to freedom of speech and expression, and freedom of the press are guaranteed[14].
Article 40 provides that subject to any restrictions imposed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.
Article 41 provides that every citizen has the right to profess, practice or propagates any religion, and every religious community has the right to establish, maintain and manage its religious institutions.
Article 42 of the Constitution provides that every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law.
According to Article 43 every citizen shall have the right to be secured in his home against entry, search and seizure, and to the privacy of his correspondence and other means of communication.
Article 44 guarantees the right of every citizen to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of any of the fundamental rights conferred by Part III of the Constitution.
Law Conflicting with the Fundamental Rights Provisions of the Bangladesh Constitution:
There has been much discussion in Bangladesh on legislation that may be deemed as being inconsistent with the provisions relating to fundamental rights, as set out in the Constitution. There has also been considerable discussion in Bangladesh about the absence of implementation of the fundamental rights granted under the Constitution. The problem is further compounded by the fact that the fundamental rights provisions of the Constitution have been afflicted by their suspension under military governments, and in one case, by the declaration of emergency[15].
[22].
The Government (Servants Seniority of Freedom Fighters) Rules 1979 divided persons in the service of the Republic between freedom fighters and non-freedom fighters and granted two years antedated national seniority by legal fiction to freedom fighters. These Rule were held to be violate of the equality clauses of Articles 27 and 29 of the Constitution
Zainal Abedin Vs Government of Bangladesh 94 DLR 77
Conflict with rights may arise in other ways when a person becomes a licensor and license at the same time Conflict of interest may arise between the licensor and the licensee. Bangladesh Telegraph and Telephone Board (BTTB) and Rajdhani Unnayan Kartipakhya (RAJUK) grant license to other bodies to do business. At the same time they do business of their own. Thus the status of RAJUK or BTTB may create rights conflictive with other co-licensees. Such conflict may arise in cases where the government itself is the licensor and a para-statal is a licensee often the Board of Directors of such para-statal consists of people representing the government[23].
The laws, which would be, violate of the fundamental rights provisions of the Constitution may be categorized. Some laws are directly conflictive with fundamental rights for example, the Special Powers Act 1974. The vested and Non-Resident Property (Administration) Act 1974 some Martial laws.
Certain laws may derogate from the fundamental rights but they are not necessarily in conflict with the fundamental rights because they are protected by the Constitution itself – for example, personal laws.
There may be certain laws, which are not conflictive with the Fundamental Rights Provisions of the Constitution, but their non-compliance may cause a conflict with the fundamental rights guaranteed under the Constitution –for example the Secretarial Manual and Secretarial Procedures.
The absence of laws may create conflict with certain Fundamental Rights Provisions of the Constitution. Certain laws are not necessarily directly conflictive with the Fundamental Rights Provisions but their retrospective effect validated laws conflictive with the Fundamental Rights Provisions – for example the Constitution (5th Amendment) Act 1979 and the Constitution (7th Amendment) Act 1986. Both these Acts validated all actions taken under Martial Laws Proclamations.
2.7. Writ Petition under the Constitution of Bangladesh
If fundamental rights is violate the aggrieved party may take remedy by the Constitution of Bangladesh under Article 102.
According to Article 102 of the Constitution “The High Court Division on the application of any person aggrieved, may give such directions or order to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part 3 of this Constitution”.
The Supreme Court of Bangladesh can exercise this jurisdiction under Article 26 and 102 of the Constitution Judicial enforcement, on the other hand, is provided for with a view to enforcing fundamental rights against the executive. In other words, if any public authority violates any of fundamental rights enumerated in the Constitution, the right to move the highest court of the land for enforcing that right must be specifically guaranteed in the Constitution and it should be guaranteed as of an independent fundamental rights. This right is guaranteed in Article 44 and the High court division of the Supreme Court is empowered to enforce fundamental rights under Article 102 of the Bangladesh Constitution[24].
CHAPTER-3
VIOLATION OF FUNDAMENTAL RIGHTS IN BANGLADESH PERSPECTIVES
Under which applicable legal framework Military has presumed such a role in Law and Order and administration of justice?
If there is some legitimacy in Military’s mandate in administration of justice, then what exactly is the role of Military and police in Bangladesh?
[40]”
4.Violation of the Ahmadya Community’s Rights
Members of the “Ahmadiyya Muslim Jamaat”, a religious community which considers itself a sect of Islam, has been the target of a campaign of hate speech organized by a number of Islamist groups in the country in recent months.
4.1Oppression upon Ahmadiyya Community
These groups have mobilized crowds to chant anti-Ahmadiyya slogans, have sought confiscation of Ahmadi mosques, and have demanded that the government declare the sect non-Muslim. Members of the Ahmadiyya community in Bangladesh, about 100,000 in number, have been living in fear of attack, looting and killing since around October 2003 when the Anti-Ahmadi agitations began[41].
The agitators have been involved in “excommunication” and illegal house arrest of Ahmadis, the killing of an Ahmadi Imam (preacher), beating of Ahmadis, and marches to occupy Ahmadi mosques.
While the Government of Bangladesh has acted to prevent the crowds from entering Ahmadi mosques, it has taken no action against the perpetrators of the hate campaign. Fundamental rights of the Ahmadis have been further violated by a government ban on their publications.
Amnesty International is urging the Government of Bangladesh to ensure the safety and security of the Ahmadiyya community; uphold its members’ right to practice their religion without fear of persecution; lift the ban on their publications; and ensure that those responsible for attacks against Ahmadis are brought to justice[42].
4.2 “Excommunication” and illegal house arrest of Ahmadi villagers
On 21 October 2003, an estimated 100 people including women and children belonging to 17 Ahmadi families in the village of Uttar Bhabanipur in Kushtia District were declared “excommunicated” by a local Islamist leader opposed to the Ahmadis. Under his edict, Ahmadis were forbidden from buying or selling goods in their village, from harvesting their crop, from talking to each other in the presence of other villagers, and from sending their children to school[43]. They were effectively held under illegal house arrest with anti-Ahmadi Islamist activists enforcing the edict. Their plight ended after about 25 days when the Home Ministry intervened following intense lobbying of the ministry by leaders of the Ahmadiyya community. However, no one has been brought to justice for these illegal acts.
4.3 Killing of an Ahmadi preacher
Shah Alam, the Imam of a local Ahmadi mosque in the village of Raghanathpur Bak in Jessore District was beaten to death on 31 October 2003[44]. He was killed in front of his family by a crowd of some 90 men led by a local Islamist leader. They attacked him because he did not yield to their demand to recant his Ahmadiyya faith. During this attack, two other members of the community were severely beaten and injured. A First Information Report – FIR, which is required for a criminal investigation to begin – was accepted by the local police on the same day, but reportedly only after the Intervention from the Home Ministry. In the FIR, Shah Alam’s family has named 16 people as being directly involved in the beating and murder of Shah Alam. No one, however, has been arrested even though there is no obvious doubt about the identity of the assailants. No charges have been brought against anyone for this murder. At the same time, the brother of one of the assailants reportedly filed a case on 16 November 2003 against members of the Ahmadiyya community in the village, accusing them of taking non-Ahmadis hostage even though there has been no evidence of any such activity by the Ahmadis[45].
4.4 Street agitations against Ahmadis
The largest of the anti-Ahmadiyya agitations in the past six months took place on 21 November 2003. Moulana Moahmud Hossain Mumtazi, the leader of an Islamist group called Khatme Nabuwat, reportedly led thousands of young men on a march attempting to occupy an Ahmadi mosque in Tejgaon area of Dhaka. This event was followed by another big march on 5 December on the same mosque. During these events, the marchers were armed with sticks and bricks and were shouting hate slogans against Ahmadis. The group carried out similar anti-Ahmadiyya agitations every Friday of the week for several months, persisting in their demands for the Ahmadis to be declared non-Muslim.
The police took action to prevent the crowds from entering Ahmadi mosques. However, it took no action against the agitators who chanted anti-Ahmadi hate slogans, threatened to attack Ahmadis, and created an atmosphere of fear and intimidation for them.
4.5 The banning of Ahmadiyya publications
In a press release issued on 8 January 2004, the government announced that the publications of the Ahmadiyya community, including the Koran and any translations or interpretations of it, would be banned from the following day. No further information was made available and no government communication explaining this announcement was sent to members of the Ahmadiyya community[46]. The government press release said the ban had been imposed “in view of objectionable materials in such publications that hurt or might hurt the sentiments of the majority Muslim population”.
The ban highlighted the possibility that the government had yielded to pressure from anti-Ahmadi Islamist groups. According to reports in Bangladeshi newspapers, it had been imposed at the instigation of Islami Oikya Jote, a political party and junior partner in the coalition government.
The ban openly defies international human rights safeguards guaranteeing freedom of religion. Article 18 of the International Covenant on Civil and Political Rights (ICCPR) to which Bangladesh is a state party state:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching[47].”
In its General Comment on this article,, the Human Rights Committee (HRC) specifies that the freedom to manifest religion or belief —“Extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest.” The HRC further states that “the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.”
Similarly, according to the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, the right to freedom of thought, conscience, religion or belief includes the freedom to write issue and disseminate relevant publications in these areas.”
The right to freedom of expression is another fundamental human right and is provided for in Article 19 of the ICCPR:
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
There appears no basis for imposing the ban even under the Bangladeshi law. Fundamental rights including freedom of religion are guaranteed under Part 3 of the Constitution of Bangladesh. This is significant because the Constitution prohibits any laws inconsistent with the provisions of Part 3. Article 41.1 in Part 3 of the Constitution provides that:
“(a) Every citizen has the right to profess, practice or propagate any religion;
(b) Every religious community or denomination has the right to establish, maintain and manage its religious institutions;
In Part 3, the Constitution also prohibits discrimination on grounds of religion:
“28. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth”.
The Constitution similarly guarantees freedom of expression. Article 39 of the Constitution provides that:
“(1) Freedom of thought and conscience is guaranteed.
(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 offence-
(a) The right of every citizen of freedom of speech and expression; and
(b) Freedom of the press,
Are guaranteed”
While provisions for both these rights are subject to restrictions, the government’s explanation for the ban, namely that the publications “hurt or might hurt the sentiments of the majority Muslim population of Bangladesh,” cannot be accepted as reasonable grounds for restricting these rights. Members of religious majorities may often wish minorities to join the dominant religion, and feel hurt if they do not. This may be so especially in the case of sects of the same religion or separate religions relying on the same sources. However, accepting such wishes or feelings by majorities as legitimate reasons to limit minorities’ religious freedom would legitimize widespread oppression of minorities. In its General Comment on Article 18, the HRC stated that it “Views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.”
In this report, Amnesty International is highlighting in particular its concerns with regard to two specific laws that facilitate endemic human rights violations in Bangladesh: the Special Powers Act (SPA) which allows arbitrary detention for long periods of time without charge, and Section 54 of the Code of Criminal Procedure (Section 54) which facilitates torture in police or army custody.
Amnesty International recommends that the Government of Bangladesh repeals the Special Powers Act. It is further urging the government to review the Code of Criminal Procedure in order to establish clear and enforceable safeguards against abuse of Section 54 resulting in torture; to ensure that law enforcement agencies understand that torture is a criminal act; and to bring perpetrators of torture to justice.
Amnesty International also believes that the government should urgently address factors which contribute to human rights violations, such as impunity and corrupt practices in law enforcement, and establish an independent, impartial and competent body, such as a national human rights commission, to investigate human rights violations. Amnesty International would welcome the creation of such a body with appropriate power to investigate, and forward their information to the prosecutors so that they undertake prosecution of offenders. Such a body should, in collaboration with the Bangladesh Law Commission, review all laws that allow for impunity[52].
The implementation of these recommendations would be a decisive and welcome step towards the fulfillment of Bangladesh’s human rights obligations under international human rights treaties to which Bangladesh is a state party. These include the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women.
The current report also makes recommendations about the steps the government should take to ensure proper training of the law enforcement personnel and proper monitoring of their conduct so that they do not violate human rights.
5.1 Arbitrary Detention undermining the Judicial System
Each year, thousands of people are arbitrarily detained under administrative detention laws which deny them access to judicial remedies. The most commonly used of these laws is the Special Powers Act, 1974 (SPA).
The SPA overrides safeguards against arbitrary detention in excess of 24 hours in Bangladeshi laws. It allows the government not only to detain anyone without having to justify the detention before a court, but also to keep the detainee in prison initially for up to four months or, in certain cases, indefinitely, without charge.
Two authorities can invoke the SPA – a) the Government Section 3.1 of the Special Powers Act, 1974 (SPA), and b) the District Magistrate or an Additional District Magistrate Section 3.2 of the SPA. A SPA detention order issued by either of these authorities has the status of a warrant of arrest and is applicable in all parts of the country. A SPA detention order made by the government can remain in force indefinitely subject to confirmation by an Advisory Board (see below) but an order made by the District Magistrate or an Additional District Magistrate remains in force for 30 days “unless in the meantime it has been approved by the Government”. Section 3.3 of the SPA
In practice, when the government invokes the SPA, it is invariably to detain members of opposition parties. For example, see Bangladesh: Senior Awami League politician in danger of torture.
When the district magistrates invokes the Act, it is usually to secure the detention of someone whose release – whether or not on bail – would, in their opinion, cause the commission of a “prejudicial act”.
Under the act, the government can even determine the place and the condition of detention of the detainee:
5.2 Power to Regulate Place and Conditions of Detention
Every person in respect of whom a detention order has been made shall be liable
(a) to be detained in such place and under such conditions, including conditions as to discipline and punishment for breaches of discipline, as the Government may, by general or special order specify: and
(b) to be removed from one place of detention to another place of detention by order of the Government.”
The SPA provides that the grounds on which a detention order has been made should be communicated to the detainee “as soon as may be” but no later than 15 days from the date of detention “to enable him to make a representation in writing against the order”. However, there is no requirement to supply all the information on which the order is based to the detainee so that he/she knows the basis for the detention. The authority can refrain from disclosing “the facts which it considers to be against the specific interest to disclose[54]“.
The government is required to constitute an Advisory Board (AB) consisting of two persons “who are, or have been, or are qualified to be appointed as, Judges of the High Court” and a third person “who is a senior officer in the service of the Republic”, all appointed by the government. It is also required to place before this AB, within 120 days from the date of detention under the SPA order, “the grounds on which the order has been made and the representation, if any, made by the person affected by the order”. There is no right of legal representation before the Board.
The AB shall consider material placed before it and seek further information from the government or the detainee if necessary and submit its report to the Government within 170 days from the date of detention. In this report “the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned” will be specified. If the AB approves the grounds for detention, the prisoner shall remain in detention indefinitely and the only remedy will be a review of the case by the AB every six months. However, a detention order under the SPA may at anytime be revoked or modified by the government[55].
The SPA provides immunity from prosecution for the use – or abuse – of the Act by the government even when this contravenes fundamental rights.
“34. BAR ON JURISDICTION OF COURTS – Except as provided in this Act, no order made, direction issued, or proceeding taken under this Act, or purporting to have been so made, issued or taken, as the case may be, shall be called in question in any Court, and no suit, prosecution or other legal proceeding shall lie against the Government or any person for anything in good faith done or intended to be done under this Act.”
To ensure the supremacy of the SPA, it provides:
“34B. ACT TO OVER-RIDE ALL OTHER LAWS -The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Code or in any law for the time being in force.”
Although the SPA gives a wide discretion to the detaining authority to act according to its own opinion, in practice, most detention orders are declared unlawful by the high court – but only on procedural grounds. This is because the Constitution empowers the High Court to satisfy itself that a person is detained in custody under a lawful authority[56]. Obaidul Huq Chowdhury, Special Powers Act, Case Law: Abdul Latif Mirza vs. Bangladesh 31 DLR (AD).
Lawyers seeking to overturn a SPA detention order identify omissions or errors in the application of the SPA which allow the High Court to declare such orders illegal. For example, the grounds given may not fit the definition of “prejudicial act”, or the grounds for detention may not be communicated to the person within 15 days, as required[57].
According to a parliamentary sub-committee studying the use of the SPA from its inception in February 1974 until December 1998, at least 69,010 people had been detained under the law during this period. Of these, 68,195 (98.8%) detainees were eventually released after their detention was declared unlawful by the High Court on the grounds, for example, that the SPA orders had been vague, issued by unlawful authority, not placed before the Advisory Board within 120 days, or that different reasons for detention were mentioned in the order and in the affidavit-in-opposition, or the detaining authority failed to communicate the grounds for detention to the detainee within 15 days, or it failed to produce the necessary papers in court, or because of delays in ordering an extension of detention.[58] The three member sub-committee submitted its report to Parliament in September 2000, but opposed a proposed amendment to the SPA which would provide for financial compensations in those SPA orders declared unlawful by the High Court[59].
Calls for the repeal of the SPA have come from the Bangladeshi legal community and human rights organizations. It has also come from political parties but only when they are in opposition. When in government, they have defended the use of the SPA and maintained it.
Despite this pledge, the government continued to detain people under both the Special Powers Act and the Public Safety Act. Of these two laws, the Public Safety Act, which had been enacted by the previous government in February 2000 and which denied certain categories of prisoners the right to appeal for release on bail, was repealed by Parliament on 2 April 2002. However, the Special Powers Act still remains in force.
5.3. Lack of Independent Bodies to Investigate Human Rights Violations:
Fundamental rights are guaranteed by the Constitution of Bangladesh. These include freedom of movement, assembly, association, thought and conscience, speech and religion. The Constitution also guarantees equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth; equal rights for women and men in the public sphere; affirmative action “in favour of women or children or for the advancement of any backward section of citizens”; equal opportunities for employment save in areas where certain sections of the society are under-represented or in religious institutions which require “persons of that religion or denomination” or where the work “is considered by its nature to be unsuited to members of the opposite sex[60].”
Articles,(26-29.) Article 31 of the Constitution states:
“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.”
The Constitution includes provisions against unlawful detention and unfair trials – but it does not oppose administrative detention. Article 35 of the Constitution specifically prohibits torture:
“(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.”
The Penal Code the Penal Code (Act XLV of 1860) [as modified up to 30 September 1991], Bangladesh Government Press, Dhaka, 1998. Generally reflects the guarantees of fundamental rights set out in the Constitution. Nonetheless, violations that contravene some of the provisions of the Constitution as well as international human rights law continue to occur. Of these torture and arbitrary detention are widespread.
Government failure to protect people against human rights violations has followed a clear pattern. Except in cases where there is a public outcry – usually following the death of the victim as a result of torture or rape in custody by police or other security personnel Bangladeshi governments have hardly ever taken action to investigate the case. Under pressure from public opinion, the government may constitute a judicial inquiry but to Amnesty International’s knowledge, the terms of reference of such inquiries have never been made public. When the inquiry has been completed and its report submitted to the government, the authorities have not made the report public. Except in a few high-profile cases, successive governments have failed to prosecute the law enforcement personnel involved in acts of torture or other human rights violations.
The following case is a recent example: on 24 July 2002, police raided Shamsunnahar hall of residence at Dhaka University and subjected dozens of female students to brutal beatings. More than 50 students were reportedly injured[61]. Following widespread condemnation of the action, the authorities ordered a judicial inquiry which submitted its findings in September 2002. The inquiry reportedly confirmed police brutality and recommended that the perpetrators should be punished. However, as in the past, the report of this inquiry was not made public and there has been no news of any action taken by the government against the police personnel involved in the attack[62].
The failure of successive governments to address human rights violations in a consistent and effective manner points to the desperate need for an independent, impartial and competent human rights watchdog in the country – such as a National Human Rights Commission (NHRC). Human rights defenders and the international community have been urging Bangladeshi governments to set up a NHRC. Both the previous Awami League government and the present BNP government have acknowledged the necessity for its formation, but neither have taken the appropriate action to establish it.
In April 1995, the then BNP Government of Prime Minister Begum Khaleda Zia approved a project to assess the need for a NHRC and make recommendations on its establishment. This project was to start in July 1995, but it was delayed reportedly due to a political crisis in the country.
Work on the project formally began in July 1996 under the then Awami League Government of Prime Minister Sheikh Hasina. The project was supported by the United Nations Development Program which had assisted the establishment of such national institutions in a number of other countries.
In June 1997, Amnesty International published a report Bangladesh: Proposed standards for a national human rights commission,[63], Amnesty International publication, June 1997. in which it reviewed the content of the “Action research study on the institutional development of human rights in Bangladesh” which had been completed within the above-mentioned project. Amnesty International made a series of recommendations aimed at ensuring that the body be fully independent, empowered and effective in the promotion and protection of human rights in Bangladesh and providing redress to victims.
In March 1998, Amnesty International received an updated draft of the “Bangladesh Human Rights Commission Act, 1998”. The draft reflected most of the recommendations made by Amnesty International and Bangladeshi human rights groups. These recommendations were given in the Amnesty International report, Bangladesh: Proposed standards for a national human rights commission[64] and subsequent letters to the authorities with further recommendations. It was understood that the draft would be approved by the cabinet shortly and would be sent as a bill to Parliament soon.
However, by early 2000, the government had not yet placed the bill before Parliament. On 27 April 2000, Amnesty International conveyed its concern to the then Government of Prime Minister Sheikh Hasina about the lack of progress with regard to the establishment of the NHRC. It expressed concern about reports that a draft bill finalized and approved by the cabinet in April 1999 had been sent to a special review committee because the Home Ministry objected to some of its provisions. Amnesty International sought clarification from the government about this delay but received no reply.
In late 2001, Bangladeshi newspapers reported that on 10 December that year a cabinet committee headed by Moudud Ahmed, Minister of Law, Justice and Parliamentary Affairs, had been formed to examine the prospect of setting up the NHRC. Throughout 2002, there were sporadic news reports that work on finalizing a draft bill for a NHRC was under way.
On 23 January 2003, it was reported that the cabinet committee formed in December 2001 had finalized the draft bill, and that it would be placed before parliament on 3 February 2003. So far, however, there has been no further news about the status of the draft bill.
Amnesty International would welcome the creation of a National Human Rights Commission if it is empowered as an independent body to investigate all instances of human rights violations impartially and competently, regardless of the identity of the perpetrator or their links to political parties. However, Amnesty International recommends that such an initiative should be accompanied by a determined government policy aimed at holding the perpetrators of human rights violations fully accountable, thus ensuring that those who violate human rights cannot do so with impunity.
Amnesty International reiterates that while the creation of a national human rights commission can be an important mechanism for strengthening human rights protection, it can never replace, nor should it in any way diminish, the safeguards inherent in comprehensive and effective legal structures enforced by an independent, impartial, adequately resourced and accessible justice system. The creation of a national human rights commission should, therefore, go hand in hand with a thorough review of existing legal and other institutions in order to make these more effective instruments of human rights protection.
In October 2001, Amnesty International published a set of recommendations for the effective protection and promotion of human rights with particular reference to the establishment of national human rights institutions. Amnesty International believes that these recommendations are essential elements to ensure the independence and effective establishment and functioning of such institutions[65].
Amnesty International calls upon the Government of Bangladesh to incorporate these recommendations, alongside other guidelines such as the “Principles relating to the status of national institutions” (adopted in the UN Commission on Human Rights Resolution 1992/54, known as “the Paris Principles”), in the statute of the proposed national human rights commission in Bangladesh[66].
CHAPTER-6
Torture in Bangladesh
For many years, torture has been the most widespread and persistent human rights violation in Bangladesh but has been routinely ignored by successive governments since Bangladesh’s independence in 1971.
Children, women, the elderly, opposition politicians, criminal suspects, and innocent bystanders in the streets, have all been victims of torture. Perpetrators are most often police personnel but members of the armed forces carrying out law enforcement duties have also been involved in torture.
Methods of torture have included beating with rifle butts, iron rods, bamboo sticks, or bottles filled with hot water so they do not leave marks on the body, hanging by the hands, rape, “water treatment” in which hose pipes are fixed into each nostril and taps turned on full for two minutes at a time, the use of pliers to crush fingers, and electric shocks.
6.1. The failure to curb torture and impunity
Successive governments in Bangladesh have failed to prevent torture, despite provisions in the Constitution of Bangladesh and their obligation to provide durable and effective protection against torture to the people in the country under treaties which Bangladesh has ratified. These treaties – with the dates they were ratified – include:
the International Covenant on Civil and Political Rights (6 September 2000),
the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (5 October 1998),
Convention on the Rights of the Child (3 August 1990), and
The Convention on the Elimination of All Forms of Discrimination against Women (6 November 1984).
Amnesty International has documented instances of torture in Bangladesh for many years. In November 2000, it published a report entitled Bangladesh: Torture and impunity , which concluded that law enforcement agencies used torture for a variety of reasons, including to extract money from detained suspects or their families; as favor to local politicians in return for a bribe; and to obtain confessions from detainees[67].
Impunity is one of the major reasons why torture continues. Government authorities have persistently failed to bring perpetrators of torture to justice. Allegations of torture are rarely investigated, particularly when victims are members of opposition parties. On the rare occasions when allegations of torture have been investigated, this has usually been due to a public outcry generated by the death of the victim. In other cases, victims who have filed complaints about torture in police custody have been put under pressure by police to withdraw the case. This has most often been done by threats and intimidation, but in some instances, money has been offered to the victim in return for the withdrawal of the case as “out of court settlement”.
Furthermore, judicial proceedings against a public employee – including a police officer – can proceed only if the government authorizes that proceeding. Section 197 of The Code of Criminal Procedure (1898) [as modified up to 30 September 1993]. In practice, the government rarely does so.
In its November 2000 report, Amnesty International urged the Government of Bangladesh to establish clear and enforceable safeguards against abuse of administrative detention procedures resulting in torture; to ensure that magistrates do not ignore safeguards against unlawful detention when considering police request for prisoners’ remand; that magistrates ensure physical presence of the prisoner before them as required by law; that they do not ignore signs of torture on the prisoner’s body or the prisoners’ allegations of torture[68]. It also urged the government to ensure investigation of every allegation of torture through an independent and impartial inquiry; to make public the findings of all such inquiries ensuring that perpetrators are brought to justice; to introduce training for police, including in professional methods of investigation which exclude torture and by making clear to them that torture is a criminal act punishable by law; and to ensure that victims or their families are compensated.
Amnesty International sent this report to the then Prime Minister and to various government authorities in Bangladesh. In addition, Amnesty International members brought the matter to the attention of the Awami League government through letters or in representations they made to a number of Bangladesh diplomatic missions.
However, by the end of the tenure of the Awami League government, Amnesty International had received no substantive response to its recommendations, nor was it aware of any effective measures taken by the government to address the issue of torture and impunity in the country[69].
In January 2002, Amnesty International brought to the attention of the new BNP government its longstanding concern about torture. To date the organization has received no reply from the current BNP-led government either.
6.2. Government blocking judicial processes against torture
In April 2002, Amnesty International raised serious concern about steps taken by the Government to stop disclosure of information about a case of torture to a court. The prisoner, an opposition politician, was reported to have been held in early March 2002 in army custody and severely tortured. See Bangladesh: Government to stop disclosure of information on torture to the court, Amnesty International 19 April 2002[70]. The High Court ordered on 3 April 2002 that:
”To ascertain whether the accused was subjected to any torture as alleged, it is necessary to obtain a statement from the I.O. [Investigating Officer] who took the accused on remand and kept him in his custody for the purpose of interrogation for more than five days, for about seven days. So, he must explain in which places the accused was kept during this period of about seven days. Whether the accused was taken to the cantonment [military area] and if so, under whose order or authority”.
This High Court order was stopped on 8 April 2002 through a ”stay order” issued by the Appellate Division of the Supreme Court on an appeal by the Attorney General on behalf of the government. The High Court had also ordered on 3 April 2002 that a new medical board should be set up to examine the prisoner as there were grounds to believe that a previous medical board had failed to record or disclose the details of the alleged torture to the court. This order was also stopped by the same ”stay order” issued by the Appellate Division, through an appeal by the government.
Amnesty International has serious concerns in relation to such developments. It is the obligation of the authorities to investigate promptly, effectively, independently and impartially all allegations of torture, and to bring perpetrators to justice. Stopping the process of investigation reinforces a climate of impunity, violating not only fundamental rights enshrined in the Bangladesh Constitution but also international human rights standards. Article 12 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which Bangladesh is a party, states:
”Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”
Amnesty International was particularly concerned that the Government, instead of ensuring that Bangladesh’s competent authorities proceeded to a prompt and impartial investigation of the allegations of torture, was effectively blocking such an investigation. To date, no investigation of the allegations of torture made by the prisoner has been carried out.
6.3 Legislation facilitating torture
While the constitution of Bangladesh guarantees fundamental human rights and specifically forbids torture and while torture is a criminal act under the Penal Code, a number of laws in Bangladesh create the conditions which facilitate torture[71]. The most commonly used of these is Section 54 of the Code of Criminal Procedure (Act V of 1898). Section 54 enables the police to arrest anyone without a warrant of arrest and keep them in detention for up to 24 hours on vaguely formulated grounds – for details, see Appendix 1.
Any person arrested by the police can be detained for up to 24 hours. At the end of this period, the prisoner should be either released or produced before a magistrate – either to be formally charged with a criminal offence or to be remanded in custody for further investigation. According to reports from many sources, detainees arrested by the police are usually offered the option to buy their release through a bribe[72].
There is reportedly a lack of due diligence by magistrates in exercising their powers. They do not scrutinize the case to ensure that there are objective and legitimate grounds for remand, and do not record the reasons for ordering further remand in police custody – although this is a requirement under the Code of Criminal Procedure. Section 167 of the Code of Criminal Procedure There is persistent reports that magistrates do not take allegations of torture seriously, and rarely seek an investigation of these allegations. Often, they do not even record them.
Exact statistics on the number of people arrested under Section 54 are not available, partly due to the fact that the detention of many detainees who are released after the payment of a bribe is never recorded.
In all cases of detention under Section 54 of the Code of Criminal Procedure reported to Amnesty International, the detainees claimed that they had been tortured and that torture began from the moment of their arrest.
6.4 Legal immunity from prosecution to perpetrators of torture
On 9 January, President Iajuddin Ahmed issued “The Joint Drive Indemnity Ordinance 2003” which provided impunity to “members of the joint forces and any person designated to carry out responsibilities in aid of civil administration during the period between 16 October 2002 and 9 January 2003”. Under the ordinance, no civil or criminal procedure could be invoked against “disciplinary forces” or any government official for “arrests, searches, interrogation and [other] steps taken” during this period.
The Ordinance related to “Operation Clean Heart” which started on 17 October as a campaign against crime carried out jointly by army and police forces. The campaign was the government’s response to growing concern within Bangladesh and the international community about the continuing deterioration in law and order, including a rise in criminal activity, murder, rape and acid throwing.
As the campaign proceeded, there were mounting allegations of torture in army custody. At least 40 men reportedly died as a result of torture after being arrested by the army. The government acknowledged only 12 deaths and claimed they were due to heart failure. Families of the victims and human rights activists, however, claimed the deaths resulted from severe torture while in army custody.
Amnesty International called upon the government to withdraw the Ordinance, institute an effective, independent and impartial investigation of the deaths and other allegations of torture, and bring perpetrators to justice. Bangladeshi media as well as human rights organizations in the country also expressed serious concern about the ordinance.
Far from withdrawing the ordinance, the government placed it before parliament as “The Joint Drive Indemnity Bill, 2003”. The Bill was amended to provide the aforementioned immunity from prosecution in any “criminal or civil court or tribunal, including the Supreme Court” with the exception of “courts or tribunals constituted under laws governing the security forces and their members”. The “Joint Drive Indemnity Act, 2003” was passed by Parliament on 23 February 2003.
The legal status of the Act has been challenged before the High Court. Following a petition before the Court by a woman seeking compensation for her brother’s death allegedly as a result of torture in custody during “Operation Clean Heart”, the Court ordered the government on 13 April 2003 to explain within four weeks why the Joint Drive Indemnity Act, 2003 should not be declared illegal. ‘Why indemnity is not illegal – High Court ask government’[73].
Concern about the Act has continued to be raised within Bangladesh and internationally. At the conclusion of a four day visit to Bangladesh on 27 February 2003, a European Union parliamentary delegation stated:
“The recent indemnity law limiting retrospectively the possibility to prosecute members of the armed forces but in court martial, and totally indemnifying police forces and political personnel from acts of murder, torture, illegal arrests and other Human Rights violations committed during the ‘Operation Clean Heart’ is a blatant violation of the responsibility of Bangladesh to abide the Rule of Law[74].”
To the best of Amnesty International’s knowledge, no army or police personnel has been brought to justice for acts of torture allegedly perpetrated by the joint forces during this period – 17 October 2002 to 9 January 2003.
Amnesty International is concerned that the Joint Drive Indemnity Act, 2003, together with other legislation which allows the government to block judicial proceedings against officials, will only perpetuate the climate of impunity which prevails in Bangladesh, giving yet another signal to those who use torture that they can continue to do so with impunity.
v. High Court Ruling for Safeguards against Torture
On 7 April 2003, the High Court announced its judgment on a writ petition in public interest filed before the court in November 1998 by three Bangladeshi human rights organizations and five concerned individuals following the death of a man in police custody in July 1998. The petition sought mandatory guidelines to prevent torture in custody after arrest under Section 54.[75]
An authorized copy of the judgment is not available to Amnesty International at the time of writing. According to press reports and Bangladeshi lawyers contacted by Amnesty International, the judgment restricts arbitrary use of administrative detention law including the Special Powers Act. It makes it mandatory for the police to inform the family members of anyone arrested; for the accused to be interrogated by an investigation officer in prison instead of police interrogation cell, and behind a glass screen so that his/her family members and lawyers can observe whether or not he or she is being tortured; and for the detainee to receive medical examination before and after remand into police custody[76]. It empowers the courts to take action against the investigating officer on any complaint of torture if it is confirmed by medical examination. It directs the government to amend relevant laws, including Section 54, within six months to provide safeguards against their abuse, and recommends raising prison terms for wrongful confinement and malicious prosecution.
Amnesty International welcomes these recommendations and urges the Government of Bangladesh to implement them without delay.
CHAPTER-7
Supreme Court Judgment in 2001- that Impinge Upon Fundamental Rights
The judiciary of Bangladesh, particularly its superior tier, comprising the Supreme Court, has been seen as the most responsible organ of the State to ensure rule of law and justice. There is also a growing expectation that the judiciary, in administering justice, should not confine itself to municipal laws only, but should examine competent issues in the light of universal norms and principles of human rights and freedoms. This expectation has been advanced by the pronouncement of the Appellate Division of the Supreme Court that,
[109] and to its own earlier judgment, in Giasuddin vs. Dhaka Municipal Corporation[110], where it was observed that a public park is necessary for protecting health and hygiene of the inhabitants of the area by providing open space and gardens.
The Appellate Division upheld the decision of the High Court Division and observed that although under Section 2(h) of the Town Improvement Act, RAJUK may alter the layout plan, and this power must be exercised for the purposes of improvement. Parks and open spaces enjoyed by allottees of a planned township cannot be converted into residential plots. The Court also stated emphatically that conversion of such open spaces and parks into residential plots is not an improvement by any means and therefore exercise of such power is contrary to the purpose for which it is conferred under the Town Improvement Act.
This judgment not only provides a guideline for future environment-friendly urban planning but also gives a new interpretation to the term ‘improvement’, which will definitely go a long way in protecting and promoting the environmental rights of the citizens, in general and the inhabitants of the metropolitan areas, in particular. This decision is also an instance that our courts are sensitive to the protection of the environment and that the judiciary has a responsibility to see that administrative decisions are environment-friendly.
Right to Non-Discrimination: Citizenship Rights
The High Court Division, on a number of earlier occasions, has given judgments persistently upholding the right of citizenship acquired by birth and the judgment given in Annada Prosad Das vs. DC, Khulna and others[111] reflects this trend.Annada Prosad was born in village Dasani, Bagerhat Police Station, formerly in Khulna District. His parents were permanent residents of that village. He owned both moveable and immovable property in Bagerhat. He went to India during the War of Liberation in Bangladesh to save his life and returned after independence in December 1971. The defendants alleged that he was an Indian citizen and the Police served a notice upon him directing him to leave the country by 10 July 1972. It was also alleged that Annada Prosad left the country in 1965 with his family members permanently, although it was admitted by the defendant that he returned to the country after the war and was staying in his village home ‘illegally’.
The High Court Division, at the very outset of its judgment, cited Article 6(1) of the Constitution that the citizenship of Bangladesh shall be determined and regulated by law; and Section 2 of the Bangladesh Citizenship (Temporary Provisions) Order, 1972 (President’s Order No. 149 of 1972) prescribes the criteria for obtaining citizenship by birth[112]. The Court then referred to two decisions determining citizenship, namely Mirza Shaheb Ispahani vs. Bangladesh and Bangladesh[113] vs. Professor Golam Azam[114] and endorsed the view already taken by the Supreme Court that a person’s citizenship cannot evaporate simply because of a temporary absence from the country.The Court interpreted the provisions of the President’s Order No. 149 that the law makers had conceived that disputes regarding citizenship would only arise in the case of persons who were absent from Bangladesh on 25 March, 1971 and lived in any other country which was inimical to the War of Liberation in Bangladesh. The Court found that Annada Prosad was residing in India temporarily, so his activities could not be considered at all against the spirit of the war in Bangladesh. It also observed that India was not inimical to the liberation war but had a friendly relationship with Bangladesh
The Court unequivocally stated that the right of citizenship acquired by birth cannot be lost or destroyed unless it is proved that it has been given up and the person has acquired citizenship of any other country. Citizenship by birth is a complete legal right and a vested constitutional right which cannot be taken away or denied or lost with respect to a particular citizen due to temporary absence from Bangladesh or residence in any other country for a considerable number of years, unless and until it is found that s/he has abandoned or renounced her/his citizenship and acquired citizenship of another country.
The Court referred to the Indian case of Mohammad Ayub Khan vs. Commissioner of Police, Madras[115] and endorsed its spirit that unless and until the citizenship of a particular person in the manner as prescribed by rules terminates, the original citizenship cannot be lost or denied to them. It also referred to another Bangladeshi case, government of Bangladesh vs. Abdul Hoque[116], where it was held that temporary absence of a person from his country of birth and temporary residence in a foreign country at war or being engaged in military operation against Bangladesh, preventing him from returning home, shall not disqualify him from being deemed to continue to be resident in Bangladesh under the provisions of the President’s Order No. 149 of 1972.
7.8 Right to Life: Forced Eviction of Slum Dwellers
The right of urban slum dwellers not to be evicted from their homes without sufficient notice and prior arrangement for their rehabilitation had been upheld by the Supreme Court of Bangladesh in several earlier cases. The case of Kalam and others vs. Bangladesh and Others[117] is an instance where the Court, in line with those decisions, took a sympathetic view of slum dwellers’ right to shelter. The petitioners in this case resided in about 30 thatched shanty houses in Belalabad Bosti, located behind Holy Family Red Crescent Hospital in Dhaka. They had been living in that slum for about 30 years. On 16 April, 1994, the Ministry of Works and Urban Development, without any prior notice or announcement, started demolishing the shanty houses. At that time, a resident of Belalabad Colony and a journalist of repute rushed there, and at her request, the demolition operation was stopped. But the petitioners, being apprehensive of further attempts at forced eviction from the slum, filed a writ petition in the High Court Division.It was submitted on behalf of the petitioners that they were poor helpless persons, uprooted from different villages across the country, who had found work in Dhaka so as to survive with their families. With the consent of the original owner of the Belalabad Colony, they had raised small shanty huts in order to seek their livelihood. They submitted that they did not claim any proprietary right over the lands on which they raised the shanties and that their only prayer was to allow them to live in those shanties. They cited the High Court’s earlier decision in Ain o Salish Kendra (ASK) and others vs. government of Bangladesh and others[118] in support of their contention.
The Assistant Attorney General candidly conceded the plight of the slum dwellers of the Belalabad Bosti and assured the Court that the government was planning to find a suitable arrangement for the petitioners and other slum dwellers so that they were not thrown to the street without shelter. The Court observed that, Bangladesh came into being as a fulfillment of the dreams of the millions of Bangalis so that they can breathe in an independent country of their own. They knew that their country is not rich, but expected that social justice shall be established and the people shall be provided with the bare minimum necessities of life[119].The Court pointed out that the petitioners were pleading for a place so that they could earn their own livelihood and survive. The Court went on to observe, ‘it should not be forgotten that God in His unbounded mercy provides sunshine, air, water, food and all other amenities of life for all, high or low, rich or poor, for every living being, without any discrimination[120].’ The Constitution of Bangladesh envisaged a welfare state and held all citizens equal in the eye of the law, as such all citizens have got equal rights in every sphere of life including food, shelter, health care and education which are fundamental in nature. The Court remarked that it is not the fault of the slum dwellers that their government fails to provide them with such bare necessities of life and that, …they are only struggling a losing battle to earn for themselves and to care and provide the bare minimum necessities of life to their children, which are the primary objectives of any democratic government. After all, the slum dwellers, poorest of the poor they may be, without any future or dreams for tomorrow, whose every day ends with a saga of struggle with a bleak hope for survival tomorrow, but they are also citizens of this country, theoretically at least, with equal rights. Their fundamental rights may not be fully honored because of the limitations of the State, but they should not be treated, for any reason, as slaves or chattels, rather as equal human beings and they have a right to be treated fairly and with dignity, otherwise all commitments made in the sacred Constitution shall prove to be a mere mockery[121].
The Court, however, refrained from giving any direction to the government and accepted the assurance given on behalf of it that the petitioners and other slum dwellers of Belalabad Bosti will not be evicted without rehabilitation, according to the programmers of the government in this respect. This case illustrates that cooperative efforts by the executive and the judiciary may contribute to promoting and safeguarding the right to shelter of slum dwellers and other basic necessities of the vulnerable section of the society. Various human rights’ organizations have challenged evictions in the Court for over a decade now. The first writ petition challenging the eviction of Taltola Sweeper Colony at Gulshan was filed in 1989 and a stay order against eviction operation was obtained. Since then several writ petitions have been filed in the High Court challenging forced eviction of slum dwellers without sufficient notice and alternative arrangement for their rehabilitation. In at least two of such cases[122], the High Court laid down guidelines for the rehabilitation of the slum dwellers and stated that forced eviction without any alternative accommodation and rehabilitation was unlawful. The executive, however, has failed to heed such directions and successive governments have persisted in evicting slums with use of force and without undertaking any resettlement plan. The judgments against slum evictions thus have become almost in fructuous in the face of the defiance and obstinacy of the executive.
Right to Equal Protection of Law: Victim’s Rights the duty of the court in a criminal proceeding is not only to adjudicate upon the allegations made against the accused, but also to see that the safety of the informants or complainants is not jeopardized because of their involvement in the proceeding. This has been reiterated in Tayazuddin and another vs. The State[123], where the High Court Division has endeavored to view the question of the safety of the victims of an offence from the perspective of their fundamental rights.
Ferdousi Begum, a 15 year-old girl and an examinee of the Secondary School Certificate Examination, was burnt with acid allegedly thrown by Shakawat Hossain. It was alleged in the First Information Report that Shakawat used to proposition her whenever he found her alone. Shakawat’s father and uncle were informed of his behaviour but instead of disciplining him, they instigated him to harass her. Eventually on 10 February 2000, in a pre-planned way, Shakawat entered Ferdousi’s house and poured acid on her head, burning her head, face and different parts of the body. Some parts of the bodies of her brother’s wife and her aunt, who were nearby, were also burnt. Shakawat then fled. A case was filed accusing Shakawat, his father and his uncle. The latter two had filed a Criminal Appeal in which this judgment was given.
During the investigation conducted by the police, three witnesses confirmed that the father and uncle instigated Shakawat to keep propositioning Ferdousi and those them also exerted pressure on Ferdousi’s guardians for her marriage with Shakawat. When her guardians refused to comply, they instigated Shakawat to punish Ferdousi. Accordingly, Shakawat’s father and uncle were also charge-sheeted under the Nari O Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 (Cruelty to Women and Children [Special Provisions] Act, 1995). The uncle was arrested and granted bail by the Nari O Shishu Nirjatan Bishesh Adalat (Cruelty to Women and Children Special Court), Dinajpur. Later the father also surrendered to the court and was granted bail. However, on the date fixed for framing charges, the informant filed a petition for cancellation of the bail of the two accused, alleging that after their release on bail they were threatening the informant to withdraw the case. The informant also claimed that the father and uncle of Shakawat were threatening to kill anyone who gave evidence against them. Being terrorized by such threats, one of the witnesses filed a G.D. Entry. The trial court having heard both parties then cancelled the bail of the father and the uncle. Aggrieved by this order of cancellation of bail, the defendants preferred an appeal to the High Court, which was contested by the State and also by the victim Ferdousi and her mother. The High Court observed that the granting of bail in a non-bailable offence is a concession allowed to accused persons and it presupposes that this privilege is not to be abused in any manner. The grant of bail is a sort of trust reposed in an accused person by the Court. If it is found that the trust has been betrayed or the liberty granted has been abused, s/he disentitles her/himself to the privilege so granted. If it appears that it is no longer conducive to a fair trial if an accused person is allowed to retain her/his freedom during trial, the bail is to be cancelled and the accused person is to be committed to custody. The Court cautioned that indiscriminate bail enables the accused to exploit opportunities to interfere with the cause of justice by intimidating and suborning the witnesses. Regarding the offence that gave rise to the initiation of the criminal proceeding, the Court stated that the crime of acid throwing is a ‘a crime against humanity and society. In this type of dehumanizing act, society’s cry for justice becomes louder[124].‘ The Court observed, the crime was revolting and the perpetrators of the crime must be dealt with to reflect public abhorrence of the crime. The Court then observed that Article 27 (guaranteeing the right to equality before the law), Article 31 (the right to enjoy equal protection of law) and Article 32 (the right to life and personal liberty) of the Constitution, read together impose a duty and obligation on the State to protect and safeguard a citizen and ensure his/her security. The Court also cited Article 3 of the Universal Declaration of Human Rights, which states that everyone has a right to life, liberty and security of person. It noted that the informant, the victim, the mother of the victim and the witnesses in this case were entitled to protection of these rights by the State, acting through its law enforcing agencies and machinery. The Court then observed that in a democratic country governed by rule of law, the government is responsible for ensuring free and fair trial not only to the accused but also to the victims. It emphasized that ‘the Court is not only to see the right of the accused persons, but also to see the right of the victim of crime and society at large. The Court is to see that the victim of crime can have a trial free from all fear and insecurity[125].‘ Accordingly, the High Court Division concluded that in the interest of fair play, fair trial and justice, the accused were not entitled to remain free by way of bail but that they were to be put behind prison bars.
In this case, the Court went further and prescribed measures for the safety and security of the victim and witnesses as well. It directed the Secretary, Ministry of Home Affairs, the Inspector General of Police, the Deputy Inspector General of Police, Rajshahi Range and the Superintendent of Police, Dinajpur to take all steps to secure the safety of the informant, the victim and witnesses and to apprehend the absconding perpetrator of the crime.
This judgment promises to impact on the system of the administration of criminal justice in the country, inasmuch as it sets a precedent that the Courts must weigh the rights of both the accused and the complainant in an even manner in order to ensure that the scales of justice are balanced.
Krishna Gopal Bhowmik v Secretary Ministry of Home Affairs 31 DLR (AD) 145 (Bang SC AD), Jahanara Begum v The State 46 DLR 107 (Bang SC HCD) and Hasina Karim v The People’s Republic of Bangladesh 44 DLR 366 (Bang SC HCD), Abul Latif Mirza v The State 31 DLR (AD) 1 (Bang SC AD) considered)[138].
The DC of Naogaon told the C in an affidavit that Maulana Azizu Islam was arrested on December 6. I’ve others including the person who conducted the forced marriage are also in custody. At the initiative of local Union Parishad, Shahdia and Saiful are now living together, the DC added[143].
8.3 India -Vishaka v. State Of Rajasthan (1997.08.13) (Sexual Harassment), 08/13/1997
Judgment: This Writ Petition has been filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard such violations; and the resentment towards incidents of sexual harassment is also increasing[144]. The present petition has been brought as a class action by certain social activists and NGOs with the aim of focusing attention towards this societal aberration, and assisting in finding suitable methods for realization of the true concept of ‘gender equality’; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation. The immediate cause for the filing of this writ petition is an incident of alleged brutal gang rape of social worker in a village of Rajasthan. That incident is the subject matter of a separate criminal action and no further mention of it, by us, is necessary. The incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures. In the absence of legislative measures, the need is to find an effective alternative mechanism to fulfill this felt and urgent social need.
Each such incident results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right of Life and Liberty’. It is clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or business’. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. This class action under Article 32 of the Constitution is for this reason. A writ of mandamus in such a salutation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a “safe” working environment. Right to life means life with dignity. The primary responsibility fro ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressed requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.
The notice of the petition was given to the State of Rajasthan and the Union of India. The learned Solicitor General appeared for the Union of India and rendered valuable assistance in the true spirit of a Law Officer to help us find a proper solution to this social problem of considerable magnitude. In addition to Ms. Meenakshi Arora and Ms. Naina Kapur who assisted the Court with full commitment, Shri Fali S. Nariman appeared as Amicus Curiae and rendered great assistance. We place on record our great appreciation for every counsel who appeared in the case and rendered the needed assistance to the Court who has enabled us to deal with this unusual matter in the manner considered appropriate for a cause of this nature.
Apart from Article 32 of the Constitution of India, we may refer to some other provision which envisage judicial intervention for eradication of this social evil. Some provisions in the Constitution in addition to Articles 14, 19(1) (g) and 21, which have relevance are Article 15 provides that “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-
(1) The State shall not discriminate against any citizen on only of religion, race, caste, sex, and place of birth or any of them.
(2)Nothing in this article shall prevent the State from making any special provision for women and children[145].
“Article 42 provides that “Provision for just and humane conditions of work and maternity relief – The State shall make provision for securing just and humane conditions of work and for maternity relief[146].
“Article 51A provides that “Fundamental duties. – It shall be the duty of every citizen of India, – (a) to abide by the Constitution and respect its ideals and institutions.
(b) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.
Before we refer to the international conventions and norms having relevance in this field and the manner in which they assume significance in application and judicial interpretation, we may advert to some other provisions in the Constitution which permit such use. These provisions are…………..
Article 51 provides that “Promotion of international peace and security -The State shall endeavors to- (a) Foster respect for international law and treaty obligations in the dealings of organized people with one another;
Article 253 provides that “Legislation for giving effect to international agreements – Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”
Seventh Schedule.[147]”
Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.
In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and enabling power of the Parliament to enact laws for implementing the International Conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till the parliament enacts to expressly provide measures needed to curb the evil.
Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and o make their fundamental rights meaningful. Governance of the society by the rule of law mandates these requirements as a logical concomitant of the constitutional scheme. The exercise performed by the Court in this matter is with this common perception shared with the learned Solicitor General and other members of the Bar who rendered valuable assistance in the performance of this difficult task in public interest.
The progress made at each hearing culminated in the formulation of guidelines to which the Union of India gave its consent through the learned Solicitor General, indicating that these should be the guidelines and norms declared by this Court to govern the behaviour of the employers and all others at the work places to curb this social evil.
Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognized basic human right. The common minimum requirement of this right has received global acceptance.
The International Conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.
The obligation of this Court under Article 32 of the Constitution for the enforcement of these fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 as those representing the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary. The objectives of the judiciary mentioned in the Beijing Statement are “Objectives of the Judiciary 10. The objectives and functions of the Judiciary include the following:
(a) To ensure that all persons are able to live securely under the Rule of Law;
(b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and
(c) to administer the law impartially among persons and between persons and the State.
“Some provisions in the ‘Convention on the Elimination of All Forms of Discrimination against Women’, of significance in the present context are Article 11.
“States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on basis of equality of men and women, the same rights, in particular.
(a) The right to work as an inalienable right of all human beings;
(b) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.
Article 24 “States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention.”
The general recommendations of CEDAW in this context in respect of Article 11 are “Violence and equality in employment. Equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the work place[148].
Sexual harassment includes such unwelcome sexually determined behavior as physical contacts and advance, sexually colored remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints procedures and remedies, including compensation, should be provided.
States should include in their reports information about sexual harassment, and on measures to protect women from sexual harassment and other forms of violence of coercion in the work place.
“The Government of India has ratified the above Resolution on June 25, 1993 with some reservations which are not material in the present context. At the Fourth World Conference on Women in Beijing, the Government of India has also made a official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector; to set up a Commission for Women’s Rights to act as a public defender of women’s human rights; to institutionalizes a national level mechanism to monitor the implementation of the Platform for Action. We have, therefore, no hesitation in placing reliance on the above for the purpose of construing the nature and ambit of constitutional guarantee of gender equality in our Constitution.
The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to compass all the facets of gender equality including prevention of sexual harassment or abuse.
Independence of Judiciary forms a part of our constitutional scheme. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the fields when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms fro construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The High Court of Australia in Minister fro Immigration and Ethnic Affairs vs. Tech. 128 ALR 535, has recognized the concept of legitimate expectation of its observance in the absence of contrary legislative provision, even in the absence of a Bill of Rights in the Constitution of Australia.
In Nilabati Behera vs. State of Orissa 1993(2) SCC 746, a provision in the ICCPR was referred to support the view taken that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right’, as a public law remedy under Article 32, distinct from the private law remedy in torts. There is no reason why these international conventions and norms cannot, therefore, be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity[149].
In view of the above, and the absence of enacted law to provide fro the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasized that this would be treated as the law declared by this Court under Article 141 of the Constitution.
8.4. The Guidelines and Norms:
HAVING REGARD to the definition of ‘human rights’ in Section 2(d) of the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women.
1. Duty of the Employer or other responsible persons in work places and other institutions.
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as.
a) Physical contact and advances;
b) A demand or request for sexual favours;
c) Sexually coloured remarks;
d) Showing pornography;
e) Any other unwelcome physical verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment.
Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
3. Preventive Steps all employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place
should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to
conduct and discipline should include rules/regulations prohibiting sexual
harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid
prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure,
health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal Proceedings where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
6. Complaint Mechanism Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
7. Complaints Committee The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support service, including the maintenance of confidentiality
The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
8. Workers’ Initiative Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
9. Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.
10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly.
8.5. Hanufa case – pay RS 10 lakh
NEW DELHI, Jan 31: The Indian Supreme Court today asked the central government to pay RS 10 lakh as damage to a Bangladeshi woman, who was gang raped at the Yatri Niwas (retiring room) at the Howrah Railway Station in Calcutta on February 2, 1998, reports BSS.
The court comprising Justice Saghir Ahmed and Justice RP Sethi directed the central government to hand over the money within three months to the Bangladesh High Commissioner for payment to the victim. The Bangladeshi woman is a member of a union parishad.
The court delivered the judgment dismissing an appeal by the chairman, Railway Board and others against a judgment of the Calcutta High Court.
The High Court verdict came on a petition filed by a lawyer of Calcutta Mrs. Chandrima Das. It was alleged in the petition that the victim had come to Howrah from Bangladesh on her way to Ajmeer Sharif and stayed at the railway Yatri Niwas to arrange for her reservation in the train. She was gang raped by many, including employees of the Indian railways. A case was registered the next day with the General Railway Police Station (GRPS) there. While awarding the damages to the victim, the High Court observed that the rape was committed at the Yatri Niwas, belonging to the railways and was perpetrated by the railway employees.
“In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of fundamental rights which is involved. This court has already held rape as an offence which is violative of the fundamental right of a person guaranteed under Article 21 of the Constitution,” observed Justice Saghir Ahmed, and thus turned down the contention of the appellants that the petition was not maintainable under the public law.
“If any of such employees commits such an act, the union government, of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees,” Justice Saghir Ahmed observed. (BSS: 31 Jan 2000)
CHAPTER-9
Amnesty International Recommendations
Concerning the Special Powers Act Amnesty International considers the Special Powers Act a law designed to bypass safeguards against arbitrary detention. It allows the government to detain people who are not charged with recognizably criminal offences. It circumvents the rules of evidence and standard of proof in the criminal justice system, leaving individuals, who should be presumed innocent unless found guilty by a court, at risk of being punished without trial.
Amnesty International believes that it is a violation of fundamental human rights for states to detain people whom they do not intend to prosecute or deport.
An Amnesty International is therefore urging the Government of Bangladesh to repeal the Special Powers Act as it has pledged to do.
Concerning the use of Section 54 of Code of Criminal Procedure
Amnesty International particularly welcomes the High Court ruling on 7 April 2003 – for the establishment of safeguards against torture. In support of that ruling, Amnesty International reiterates the recommendations it has made to the present and previous governments of Bangladesh since November 2000. These are as follows:
Laski, Harold J., 1992, Grammar of Politics, Third Indian Reprint. Sidgwick, H.
Per Bimalendu Bikash Roy Chowdhury, J., 21 BLD (AD) (2001) 69.
53 DLR (2001) 138. Judgment delivered on 24 October, 2000.
One of these was by Mr. Mainul Husein, the then President of Supreme Court Bar Association, another by Mr. Rafique-ul Huq, Senior Advocate and 338 other Advocates of Bangladesh Supreme Court and a third by Mr. Moudud Ahmed, MP, on behalf of 110 members of the Parliament.
53 DLR (2001) 138, at p. 142, Para. 10.
Article 39(2) reads, “Subject to any reasonable restrictions imposed by law in the interests of the security of State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence, (a) the right of every citizen to freedom of speech and expression; and (b) freedom of press, are guaranteed.
In Razina vs. Metropolitan Police Commissioner, Ex Parte Blackburn (1968) 2 All ER 319: (1968) CA 150.
Ataur Rahman Khan vs. Mohammad Nasim and another, 52 DLR (2000) 16; discussed in Human Rights in Bangladesh 2000, ASK, p. 14 to 21.
These included the Bangladesh Society for the Enforcement of Human Rights (BSEHR), the Bangladesh National Women’s Lawyers Association (BNWLA), Bangladesh Manabadhikar Sangbadik Forum (Bangladesh Human Rights Journalists’ Forum) and Ain o Salish Kendra (ASK).
53 D.L.R. (2001) 1, in p. 9, para.10, per Mr. Md. Fazlul Karim J.
AIR 1986 (SC) 180.AIR 1986 (SC) 180.
53 DLR (2001) 1, in p. 18, para.35, per Md. Fazlul Karim J.
Dr. Faustina Pereira, Advocate, Supreme Court vs. State and others, 53 DLR (2001) 414: 21 BLD (HCD) (2001) 499.
Also coordinator of the Advocacy Unit of ASK.
Ibid., at p. 416, Para 10, per Md. Hamidul Haque J.
He gave this information in response to a telephonic enquiry from an ASK lawyer.
Criminal Miscellaneous Case No. 7782 of 2000. Judgment delivered on 27 March 2001, and published in the Daily Star on 26 August 2001.
Section 491(1): The High Court Division may, whenever it thinks fit, direct that a person within the limits of its jurisdiction be brought up before the Court; that a person illegally or improperly detained in public or private custody within such limits be set at liberty.
7 BLC (2002) 85. Judgment delivered on 6 November, 2001.
53 DLR (2001) 411, Judgment delivered on 9 July 2001.
According to Section 2 (f) of the Children Act, 1974, a ‘child’ means a person under the age of 16 years.
45 DLR 643.
49 DLR 53.
AIR 1986 (SC) 1977.
Salma Sobhan, Executive Director, Ain o Salish Kendra (ASK) vs. Government of Bangladesh and others, Writ Petition No. 6070 of 1997, Judgment delivered on 31 May, 2001.
53 DLR (AD), 2001, 79. Judgment passed on 3 May 2001.
AIR 1991 (SC), 1902. It was held in this case that ‘…when the law requires an authority to act or decide, if it appears to it necessary or if he is of opinion that a particular act should be done, then it is implicit that it should be done objectively, fairly and reasonably. Decisions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to persons affected yet the exercise of discretion is vitiated if the action is bereft of rationality, lacks objective and purposive approach. The action or decision must not only be reached reasonably and intelligibly, but it must be related to the purpose for which power is exercised. The purpose for which the Act was enacted is spelt out from the preamble itself, which provides for establishment of the Authority for development of the city of Bangalore and areas adjacent thereto. To carry out this purpose, the development scheme framed by the Improvement Trust was adopted by the Development Authority; any alteration in this scheme could have been made as provided in Sub-Section (4) of Section 19 only [if] it is resulted in improvement in any part of the scheme. As stated earlier, a private Nursing Home could neither be considered to be an amenity nor could it be considered an improvement over necessity like a public park. The exercise of power, therefore, was contrary to the purpose for which it is conferred under the statute.’
1997 BLD 577. The Court observed in this case, ‘The structure cannot be allowed to occupy the same on the plea of their indispensable accommodation to protect their life to the detriment of health and hygiene of the inhabitants of the area and the corporation is under legal obligations to evict such unauthorised occupants from the park and other facilities meant for public convenience and for maintaining the environment free from pollution and degradation.
53 D.L.R. (2001) 496. Judgment delivered on 28 June 2001.
Section 2 of the Order states that every person shall be deemed to be a citizen of Bangladesh whose father or grandfather was born in the territories now comprised in Bangladesh and who was a permanent resident of such territories on the 25th day of March, 1971 and continues to be a resident; or who was a permanent resident of such territories on the 25th day of March, 1971, continues to be a resident and is not otherwise disqualified from being a citizen by or under any law for the time being in force.
40 DLR (AD) 116.
46 DLR (AD) 192.
AIR 1965 (SC) 1623.
1982 BCR (AD) 143.
21 BLD (HCD) (2001) 446. Judgment delivered on 30 April 2001.
19 BLD (1999) 488. Judgment delivered on 29 July 2001.
21 BLD (HCD) (2001) 446, in p. 448, Para. 6 per Mr. A.B.M. Khairul Haque J.
One is Ain o Salish Kendra (ASK) and others vs. Government of Bangladesh and others [19 BLD (1999) 488], and the other is Modhumala vs. Government of Bangladesh (W.P. No. 59 of 1994).
21 BLD (HCD) (2001) 503. Judgment delivered on 29 July 2001.
Judgments were delivered on 12 July 2001.
Jugantor, 13 July 2001.
Sangbad, 11 June 2001.
Daily Star, 13 July 2001
Jugantor, 13 July 2001.
Prothom Alo and Ittefaq, 2 July 2001.
Sangbad, 27 May, and Bhorer Kagoj, 28 May 2001.
Ittefaq, 20 August 2001.
Sangbad, 7 August 2001.
W. P. No 2678/95 and W. P. No 2852/97.
Jugantor, 4 February 2002.
Daily Star, 9 December, 2001.
Ruhul Sah v State of Bihar
Government of East Pakistan v Rowshan Biyaha Shaukat Ali Khan 18 DLR (SC) 214 (Bang SC),
Government of West Pakistan v Begum Agha Abdul Karim Sherish Kashmiri
Amaratunge v Police Constables & Ors [1993] SAARC Law Journal 88 (SL SC).
Nilabati Behara v State of Orissa AIR 1993 SC 1960 (Ind SC).
Vishaka v. State of Rajastan ( 1997. 08.13) (Sexual Harasment), 08/13/1997.
Jibendr V.The Province of East Pakistan PLD 1957SC (PAK) 9,
State V. Dosso.
Golak Nath Vs State of Punjab,
Hamidul Huq Chowdhury Vs Bangladesh 1982, 34 DLR 190
Zainal Abedin Vs Government of Bangladesh 94 DLR 77
Abdul Latif Mirza vs. Bangladesh 31 DLR (AD).
Abbreviation:
HCD——————High Court Division
SC———————Supreme Court
AD——————–Appellate Division
AIR————–All India Report
PLD————-Pakistan Law Dictionary
NR————–The Non-Resident Property (Administration) Act 1974
SPA————-The Special Powers Act 1974
CrPC————–The Code of Criminal Procedure 1898
CPC —————–The Code of Civil Procedure 1908
IO——————-The Indemnity Ordinance 1975
OC——————The Official Secrets Act 1923
ITO—————–The income Tax Ordinance 1984
UP—————–Union Parishad
BNP————–Bangladesh Nationalist Party
BCDJC—————–Bangladesh Centre for Development, Journalism and Communication (BCDJC)
HRN———————- Human Rights Network
UN————————-United Nations
CHT———————–Chittagong Hill Tracts
FIR————————First Information Report
ICCPR——————-International Covenant on Civil and Political Rights (ICCPR)
HRC———————-Human Rights Committee
AI———————–Amnesty International
HHRC—————National Human Rights Commission
BSEHR—————Bangladesh Society for the Enforcement of Human Rights
ASK————Ain o Salish Kendra
CRC——————Convention on the Rights of Child
BGMEA—————–Bangladesh Garments Manufacturing and Export Association
RAJUK—————–Rajdhani Unnayan Kortripokkho
UDHR—————–Universal Declaration of Human Right
WP——————-Writ Petition
[1] Parliament passed the Leagal Aid Ain, 1999 and the Government has adopted a scheme of lefal aid.
[2] Maneka Gandhi v. India, AIR 1978 SC 597, 620.
[3] Ian Loveland – Constitutional Law, 1996, p. 560; see also H. W. R. Wade – Administrative Law, 6th ed. P. 30.
[4] West Virginia State Bd. Of Edn. V. Barnette, 319 US 624, 639.
[5] Jibendr V.The Province of East Pakistan PLD 1957SC (PAK) 9
[6] AIR 1967 SC 1643 (overrulled in Kesavananda Bharati v. Kerala, AIR 1973 SC 1461.)
[7] 9 DLR (SC)_ 21, 44; see also the odservation of Kaikaus J in Pakistan v. Syed Akhlaque Hussain, PLD 1965 SC 527, 580
[8] Part III, Art. 27 & 28 of the Constitution of the People’s Republic of Banglaadesh, 1972
[9] Part III, Art. 31 & 32 of the Constitutionof the People’s Republic of Bangladesh; 1972.
[10] Constitutional Law of Bangladesh; Islam Mahmudul; 2nd edition; p.283.
[11] Opcit. 8.
[12] Opcit. 10. p.284.
[13] Art. 36 of the Constitution of the People’s Republic of Bangladesh; 1972.
[14] Opcit. 8. p 285.
[15] Constitution and Constitutional Law of Bangladesh; Md. Abdul Halim p.99.
[16] Ibid. 15. p. 101.
[17] The vested and Non-Resident Property (Administration) Act 1974
[18]<span style=” of the Special Powers Act 1974
[19] Sec. 54 of the Code of Criminal Procedure.
[20] Section 2(1) of the Bangladesh Citizenship (Temporary Provisions) Order 1972.
[21] Provisions No. 5 of the Official Secrecy Act. 1923.
[22] Hamidul Huq Chowdhury Vs Bangladesh 1982, 34 DLR 190
[23] Zainal Abedin Vs Government of Bangladesh 94 DLR 77
[24] Powers empowered to the High Court Division under the Constitution of Bangladesh in Art.102.
[25] Informations taken from the Newspaper; named THE DAILY BANGLADESH OBSERVER. Dated 25 January 2003.
[26] BLAST Annual Report; 2002.
[27] Ibid. 15
[28] Ibid. 27.
[29] Ibid. 15.
[30] Taken from the Daily Star Newspaper; published as an article by Sahdin Malik, Journalist; p. 10.
[31] Ibid. 30.
[32] Annual Report of the Human Rights Commission, 2003
[33] Ibid. 18.
[34] The voices of AHRC taken from the Daily Star Newspaper.
[35] Ibid. 20.
[36] Annual Report of the Amnesty International, 2005.
[37] Ibid. 36.
[38] Article 2 of the International Covenant on the Civil and Political Rights, 1966.
[39] Opcit. 22.
[40] The Martial Law Proclamation and the Martial Law Regulations and Orders or other Orders made by President Moshtaque. All Courts including the Supreme Court ware denied any power to call in question or declare void or illegal Martial Laws the Second Proclamation Order No 3 of 1976 which also omitted the provision to Article 38 of the Constitution of the Peoples Republic of Bangladesh.
[41] The Daily Star, March 25, 2003.
[42] Ibid. 41.
[43] The Daily Observer, 22, October. 200.
[44] Ibid. 28. 1st Novenber 2003.
[45] Ibid. 29. November 17, 2003.
[46] Ibid. 45. January 9, 2004.
[47] International Covenant on Civil and Political Rights (ICCPR) 1966; Article 18.
[48] The Bangladesh Today, April 19, 2004.
[49] Ibid. 48.
[50] Annual Report of the Amnesty International, 2003.
[51] K. Hossain CJ. and s. Ahmed J refrained from passing on the constitutionality of the statute as, in their lordships view, the case could be disposed of on ground of malice in law alone.
[52] Proposal of AI, Published in the Annual Report of 2005.
[53] Prejudicial act defined in the Special Powers Act, 1974.
[54] Section 81 and 82 of the Special Powers Act. 1974
[55] Sections 9, 10, 11, 12, 13 of the Special Powers Act, 1974..
[56] Obaidul Huq Chowdhury, Special Powers Act, Case Law: Abdul Latif Mirza vs. Bangladesh 31 DLR (AD) 1, Al-Afsar Press, Dhaka, 1996, p.15
[57] Ibid. 56. p 25.
[58] See: ‘SPA mostly misused’, Daily Star, 8 September 2000.
[59] Ibid. 58.
[60] Constitution of the People’s Republic of Bangladesh [as modified up to 30 April 1996],
[61] Newspaper 25 July 2002
[62] Source: The Daily Star, 26 July 2002.
[63] AI Index: ASA 13/03/97
[64] AI Index: ASA 13/03/97
[65] See National Human Rights Institutions: Amnesty International recommendations for effective protection and promotion of human rights (AI Index: IOR 40/007/2001), Amnesty International publication, October 2001
[66] Ibid. 65.
[67] AI Index: ASA 13/07/00
[68] Report of the Amnesty Internatio0nal 2000, published by the concerned authority.
[69] Ibid. 68.
[70] AI Index: ASA 13/004/2002
[71] See Bangladesh: Torture and impunity (AI Index: ASA 13/07/00), Amnesty International, November 2000, section 7.1
[72] Section 61 of the Code of Criminal Procedure (Act V of 1898) [as modified up to September 1993], Bangladesh Government Press, Dhaka, 1993.
[73] The Daily Star, 13 April 2003.
[74] ‘European team urges Bangladesh to respect human rights, democratic values’, Agencies France-Presse, 27 February 2003, 17:02:00
[75] For more details about the petition, see Bangladesh: Torture and impunity (AI Index ASA 13/07/00), Amnesty International, November 2000, section 7.3, p.25
[76] Ibib. 50.
[77]. Per Bimalendu Bikash Roy Chowdhury, J., 21 BLD (AD) (2001) 69.
[78] .53 DLR (2001) 138. Judgment delivered on 24 October, 2000
[79].One of these was by Mr. Mainul Husein, the then President of Supreme Court Bar Association, another by Mr. Rafique-ul Huq, Senior Advocate and 338 other Advocates of Bangladesh Supreme Court and a third by Mr. Moudud Ahmed, MP, on behalf of 110 members of the Parliament.
[80]. 53 DLR (2001) 138, at p. 142, Para. 10.
[81]. Ibid, p.151, Para. 55.
[82]. Article 39(2) reads, “Subject to any reasonable restrictions imposed by law in the interests of the security of State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence, (a) the right of every citizen to freedom of speech and expression; and (b) freedom of press, are guaranteed.
[83]. In Razina vs. Metropolitan Police Commissioner, Ex Parte Blackburn (1968) 2 All ER 319: (1968) CA 150.
[84]. Ataur Rahman Khan vs. Mohammad Nasim and another, 52 DLR (2000) 16; discussed in Human Rights in Bangladesh 2000, ASK, p. 14 to 21.
[85].53 DLR (2001) 1.
[86]. These included the Bangladesh Society for the Enforcement of Human Rights (BSEHR), the Bangladesh National Women’s Lawyers Association (BNWLA), Bangladesh Manabadhikar Sangbadik Forum (Bangladesh Human Rights Journalists’ Forum) and Ain o Salish Kendra (ASK).
[87]. 53 D.L.R. (2001) 1, in p. 9, para.10, per Mr. Md. Fazlul Karim J.
[88].Ibid., in p.10, para.11, per Md. Fazlul Karim J
[89]. AIR 1986 (SC) 180.AIR 1986 (SC) 180.
[90].53 DLR (2001) 1, in p. 18, para.35, per Md. Fazlul Karim J.
[91]. Dr. Faustina Pereira, Advocate, Supreme Court vs. State and others, 53 DLR (2001) 414: 21 BLD (HCD) (2001) 499.
[92]. Also coordinator of the Advocacy Unit of ASK.
[93]. Ibid., at p. 416, Para 10, per Md. Hamidul Haque J.
[94]. Supra note 18
[95]. He gave this information in response to a telephonic enquiry from an ASK lawyer.
[96]. On 5 February 2001.
[97]. See Section 31.
[98]. Criminal Miscellaneous Case No. 7782 of 2000. Judgment delivered on 27 March 2001, and published in the Daily Star on 26 August 2001.
[99]. Section 491(1): The High Court Division may, whenever it thinks fit, direct that a person within the limits of its jurisdiction be brought up before the Court; that a person illegally or improperly detained in public or private custody within such limits be set at liberty.
[100]. Para 15. Per Mr. Altaf Hossain Khan, J.
[101].7 BLC (2002) 85. Judgment delivered on 6 November, 2001.
[102].53 DLR (2001) 411, Judgment delivered on 9 July 2001.
[103]. According to Section 2 (f) of the Children Act, 1974, a ‘child’ means a person under the age of 16 years.
[104].45 DLR 643.
[105].49 DLR 53.
[106]. AIR 1986 (SC) 1977.
[107]. Salma Sobhan, Executive Director, Ain o Salish Kendra (ASK) vs. Government of Bangladesh and others, Writ Petition No. 6070 of 1997, Judgment delivered on 31 May, 2001.
[108].53 DLR (AD), 2001, 79. Judgment passed on 3 May 2001.
[109]. AIR 1991 (SC), 1902. It was held in this case that ‘…when the law requires an authority to act or decide, if it appears to it necessary or if he is of opinion that a particular act should be done, then it is implicit that it should be done objectively, fairly and reasonably. Decisions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to persons affected yet the exercise of discretion is vitiated if the action is bereft of rationality, lacks objective and purposive approach. The action or decision must not only be reached reasonably and intelligibly, but it must be related to the purpose for which power is exercised. The purpose for which the Act was enacted is spelt out from the preamble itself, which provides for establishment of the Authority for development of the city of Bangalore and areas adjacent thereto. To carry out this purpose, the development scheme framed by the Improvement Trust was adopted by the Development Authority, any alteration in this scheme could have been made as provided in Sub-Section (4) of Section 19 only [if] it is resulted in improvement in any part of the scheme. As stated earlier, a private Nursing Home could neither be considered to be an amenity nor it could be considered an improvement over necessity like a public park. The exercise of power, therefore, was contrary to the purpose for which it is conferred under the statute.’
[110]. 1997 BLD 577. The Court observed in this case, ‘The structure cannot be allowed to occupy the same on the plea of their indispensable accommodation to protect their life to the detriment of health and hygiene of the inhabitants of the area and the corporation is under legal obligations to evict such unauthorised occupants from the park and other facilities meant for public convenience and for maintaining the environment free from pollution and degradation.’
[111].53 D.L.R. (2001) 496. Judgment delivered on 28 June 2001.
[112]. Section 2 of the Order states that every person shall be deemed to be a citizen of Bangladesh whose father or grandfather was born in the territories now comprised in Bangladesh and who was a permanent resident of such territories on the 25th day of March, 1971 and continues to be a resident; or who was a permanent resident of such territories on the 25th day of March, 1971, continues to be a resident and is not otherwise disqualified from being a citizen by or under any law for the time being in force.
[113]. 40 DLR (AD) 116.
[114].46 DLR (AD) 192.
[115]. AIR 1965 (SC) 1623.
[116].1982 BCR (AD) 143
[117].21 BLD (HCD) (2001) 446. Judgment delivered on 30 April 2001.
[118].19 BLD (1999) 488. Judgment delivered on 29 July 2001.
[119]. 21 BLD (HCD) (2001) 446, in p. 448, Para. 6 per Mr. A.B.M. Khairul Haque J.
[120]. Ibid.
[121]. Ibid.
[122]. One is Ain o Salish Kendra (ASK) and others vs. Government of Bangladesh and others [19 BLD (1999) 488], and the other is Modhumala vs. Government of Bangladesh (W.P. No. 59 of 1994).
[123].21 BLD (HCD) (2001) 503. Judgment delivered on 29 July 2001.
[124]. Ibid., in p. 509, Para. 25, per A.K. Badrul Huq J.
[125]. Ibid. in p. 510, Para. 26.
[126]. Judgments were delivered on 12 July 2001.
[127]. Jugantor, 13 July 2001.
[128]. Ibid.
[129]. Sangbad, 11 June 2001.
[130]. Daily Star, 13 July 2001
[131]. Jugantor, 13 July 2001.
[132]. Prothom Alo and Ittefaq, 2 July 2001.
[133]. Sangbad, 27 May, and Bhorer Kagoj, 28 May 2001.
[134]. Itefaq, 20 August 2001.
[135]. Sangbad, 7 August 2001.
[136]. W. P. No 2678/95 and W. P. No 2852/97.
[137]. Jugantor, 4 February 2002
[138] Jahanara Begum v The State 46 DLR 107 (Bang SC HCD) and Hasina Karim v The People’s Republic of Bangladesh 44 DLR 366 (Bang SC HCD)
[139] (Government of West Pakistan v Begum Agha Abdul Karim Sherish Kashmiri 21 DLR (SC) 1 (Pak SC) and Liversidge v Anderson [1942] AC 206 (UK E&W HL)
[140] Bangladesh v Dr Dhiman Chowdhury 47 DLR (AD) 52 (Bang SC AD) distinguished and Habiba Mahmud v Bangladesh 45 DLR (AD) 89 (Bang SC AD)
[141] Maharaj v Attorney General of Trinidad and Tobago [1978] 2 All ER 670 (T&T PC), Ruhul Sah v State of Bihar & Anor AIR 1983 SC 1086 (Ind SC), Bhim Singh MLA v State of Jammu and Kashmir AIR 1986 SC 494 (Ind SC)
[142] Nilabati Behara v State of Orissa AIR 1993 SC 1960 (Ind SC)
[143] The Daily Star, 2001/01/02
[144] Vishaka & Others. Vs. State Of Rajasthan & Ors. 13.08.1997 dd., Cji, Sujata V. Manohar, B. N. Kirpal JJ.
[145] Article 15 of the IndiaN Constitution
[146] Article 42 of the Indian Constitution.
[147] Ibid 146. Art. 253.
[148] Article 11 of tne Convention on the Elimination of the Woman and Children.
[149] Nilabati Behera vs. State of Orissa 1993(2) SCC 746,
[150] National Human Rights Institutions: Amnesty International’s recommendations for effective protection and promotion of human rights. See reference at endnote 22.
[151] Appendix 1: Section 54 of Code of Criminal Procedure (ACT V OF 1898)
[152] Appendix 2: Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Adopted by General Assembly resolution 55/89 Annex, 4 December 2000)
[153]. Daily Star, 9 December, 2001. xxx