Effectiveness and Weakness of Legislation:
Constitutional guarantees in favour of women and laws enacted for their protection and benefit have not had much real impact on their lives. The harsh reality is that women in South Asia in general and in the Indian Sub-continent in particular are less powerful, less educated, less well to do than men and more exploited at almost every level of society.
The incidents of violence against women e.g. kidnapping, family violence, dowry, wife beating, sexual exploitation, trafficking and the like have been increasing gradually. Despite the constitutional provisions for equality, social justice and protection of women these continue. Jurist observes: “such offences are not merely a problem of law enforcement but are also indicative of the disabilities and inequalities from which the women in our country continue to suffer….”[1] This is the reality also for India and Nepal.
In case of Bangladesh, the then Chief Martial Law Administrator in 1983 enacted the first special legislation, the Cruelty to Women (Deterrent Punishment) Ordinance, 1983. This law was enacted in response to the widespread and gradually increasing oppression on women and children. This was done with a view to remove the drawback of the existing law[2] enacted during the colonial rule. The 1983 Ordinance provides provisions for penalising offences related to kidnapping or abduction of women for unlawful or immoral purposes (Section 4), trafficking in women (Section 5), rape (Sections 7 and 8), causing death for dowry (Section 6) etc. But it had no provision for penalising offences relating to oppression on children, which was underlined as a major drawback of the legislation.
With the existence of the law the oppression on women and children had been increasing alarmingly. As a result, the weakness of the 1983 Ordinance appeared to the administration and judiciary without further delay. The Parliament during the then Government of the Bangladesh Nationalist Party (BNP) once again enacted a new legislation titled Nari-O-Shisu Nirjatan (Bishesh Bidhan) Ain, 1995[3] [The Oppression on Women and Children (Special Provision) Act, 1995] in 1995. This (new law) repealed the 1983 Ordinance. The 1995 Act decreased the punishment for “trafficking in women” from “death or imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years, and shall not be less than seven years and shall also be liable to fine” to “life imprisonment and in addition to fine also.” Unlike the 1983 Ordinance the 1995 Act provides for 14 years rigorous imprisonment and fine for disposing or otherwise obtaining possession of a woman to import or export, let to hire to be engaged in prostitution or illicit intercourse or unlawful and immoral purposes [Section 8(2)]. Accordingly, it provides for the punishment of life imprisonment or rigorous imprisonment for 10 years which may not be less than seven years and in addition fine for offences related to kidnapping or abduction of women (i) to be engaged in prostitution or other unlawful or immoral purposes; (ii) to be married against her will; and (iii) to be forced or deceitful intercourse (Section 9). The law, for the first time provided punishment directly for trafficking in children. The penalty was death sentence or life imprisonment (Section 12).
The new legislation having 29 sections provided for provisions for special court, time limit for investigation, trial procedure, special powers for Magistrates etc.
But within a very short time, the loopholes of the new legislation were (1995 Act) exposed to a great extent. It was observed that stringency was more emphasised instead of normal implementation during enactment of the law. It provided that the arrested person (accused) would not be granted bail[4] within 90 days.
Section 18 of the Act provided for the tenure of 60 days for investigation of any complaint under the Act. In special circumstances, the court could extend the time for 30 days more. There was no provision for punishment of the Investigation Officer if s/he failed to complete the investigation within the stipulated time (maximum 90 days). It was not clearly mentioned that what would be the position of a case if the investigation were not completed timely. Press reports indicate that the “non-bailable” provision of the Act become a weapon for harassing “innocent public.” The Act provided the penalty of death sentence for offences like acid burn (Section 5), rape (Section 6), killing for dowry (Section 10), child trafficking (Section 12) etc. For other offences, the penalty ranged from life imprisonment to rigorous imprisonment for 14 years. The oppression on women and children has been increasing gradually. With the enactment of “special laws” for women and children the phenomena of filing “false case” has increased sharply. The judge, lawyer and investigating authority (police) acknowledged it. This is going on for harassing others. As a result the rate of conviction is very few under the Act. Though it also resulted from faulty complaint and charge sheets, lack of evidences, absence or irregular presence of eyewitnesses, faulty trail procedure and other things. These influence high rate of acquittal.
[1] Justice Latifur Rahman, inaugural address at the National Seminar on Human Rights & Role of Lawyers organised by the Bangladesh Bar Council, Cox’s Bazar, Bangladesh 26-27 November, 1999.
[2] The Penal Code (Act No. XLV of 1860).
[3] Act No. XVIII of 1995, approved by the President of the People’s Republic of Bangladesh on 16 July, 1995 and published in the Bangladesh Gazette (Additional Issue), 17 July, 1995.
[4] Section 26, Accused person would not be granted bail without holding hearing of the complaint. If the court is convinced that there are reasonable grounds for conviction in the complaint bail would bot be granted.
After enactment of the Oppression on Women and Children (Special Provision) Act, 1995 the number of cases filed under the Act is 3,646 in 1996, 5,543 in 1997 only in first six months of 1999. The increasing rate from 1996 to 1998 is 102 percent. Within one year, from 1996 to 1997, the number of registered cases increased by 60 percent. With the increasing of number of case, the rate of conviction decreased.
In 1996, 2,733 out of 3,646 cases were charge sheeted (75%). Final report was made for 906 cases (25%). Conviction was made only for 207 cases (19%) and for 1,068 cases accused were acquitted.
Under the 1995 Act the rate of conviction was 19.26 percent in 1996 which decreased to 14.08 percent in 1997. The rate of acquitted cases was 80.74 percent in 1996. This increased to 85.92 percent in 1997.
Though separate data for trafficking cases are not available, but the figure mentioned earlier indicate the ‘over all’ picture of the ‘special legislation’ enacted ‘in favour of women and children.’
Given the example of the Oppression on Women and Children Tribunal,[1] in last 28 months completed by February 1999, the court has completed trial of 3000 cases. Besides, 1,356 cases were under trial. Among completed cases conviction was possible only for 55 cases (15.33%). The accused was sentenced with different punishment including life imprisonment. The main cases behind acquittal of large number of cases were identified as lack of eyewitness and evidences. Since the punishment is stringent for offences related to oppression on women and children the complaint and accused come to a negotiation and proceed accordingly. As the trial is time consuming the complaint become frustrated.[2]
According to a press report,[3] 2,615 cases have been filed under the 1995 Act in last five years, 1996 to 2000 in the district of Bogra only. The interesting thing is that till December 2000 only 25 cases have been finalised. Due to faulty charge sheets, absence or irregular presence of complaint and eyewitnesses, the concerned court has so far discharged 715 cases. Police officials in Bogra indicate that 95 percent of the cases filed under the 1995 Act are “false”. These cases were filed in different police stations and courts. The year-wise number of discharged cases in the district is: 89 out of 142 in 1996; 184 out of 268 in 1997; 172 out of 502 in 1998; 207 out of 798 in 1999 and 63 out of 905 in 2000. The percentage of discharged cases is 62% in 1996; 68% in 1997; 34% in 1998; 25% in 1999 and 6% in 2000.[4]
The Sangbad, a vernacular daily from Dhaka headlines that “Misuse of Oppression on Women and Children Act in Bogra, 281 cases in six months, half are ‘false”.[5] According to the report, during the period from 1 July to 30 June 1998, 281 cases have been registered with 11 police stations in Bogra under the 1995 Act. Among the case, 191 are for oppression on women and 90 for oppression on children. The report discloses that most of the complaint of the said cases were accused in different cases earlier. They filed new cases to harass the eyewitnesses, even complaints of the previous cases. Some lawyers reportedly encourage to file “false cases” for their “professional gains”. The case of Bogra was not the only one. The same thing is going on in other districts.
With this backdrop, the 1995 Act earned enormous criticism within two years of its enactment. The Government initiated to enact a new law for penalising oppression on women and children back in 1998. Finally, the new legislation titled Nari O Shishu Nirjatan Daman Ain, 2000 (the Oppression on Women and Children Control Act, 2000) was enacted in 2000. This routinely repealed the 1995 Act. The new law among others penalises offences related to filling “false case”. The punishment is maximum seven years rigorous imprisonment and fine (Section 17).
Though, to evaluate the effectiveness and weaknesses of the new legislation more time would be needed but in the meantime some sections of the Act have come under criticism.
The law empowers the Tribunal[6] to order for keeping the victim, women and children in a place run under the authority of the Government for the purpose of the Act or in other suitable organisation or in the custody of a person, which is considered suitable by the Tribunal. This can be done if the Tribunal has the reason to believe that the victim needs ‘safe custody’ during the trail of any offence under the law (Section 31). But to keep any person in the ‘safe custody’ is contrary to the spirit of the Constitution. Eminent Lawyer, Barrister Amirul Islam has rightly challenged the constitutional validity of the provision questioning: “What is the right of the law and law enforcing agency which cannot protect life and dignity of a women to became a custodian for her security?”[7] He suggests to consider will, opinion, intellectual ability, relatives and circumstances of the woman before keeping her in jail in the name of the “safe custody.”
So far, few positive sides of the existing law have been explored. Unlike the previous Ordinance and Act, the new one does not totally prohibits granting of bail. But it empowers the tribunal to exercise its discretion in this regard (Section 19). There are also provisions for recommending “departmental punishment” by the Tribunal if the concerned Investigation officer and doctor[8] failed to perform their duties (Section 18 and 32).
In the case of Bangladesh, it is proved that the stringent law is not the solution of the problem. What is more important is that proper implementation of the law, widely acknowledged by the jurist, lawyer and human rights activists.
However, the enactment of three legislation “in favour of women and children” in last 17 years has made the efficiency of the legislator questionable.
[1] Established on 26 October 1996 with one Judge as quoted in The Daily Ittefaq, Dhaka, 7 March 1999, 16-15.
[2] Ibid.
[3] The Daily Jugantor (Dhaka), 10 March, 2001, P. 9.
[4] Ibid.
[5] The Sangbad, 27 July, 1998.
[6] The Oppression on Women and Children Control Tribunal, constituted under section 26 of the 2000 Act.
[7] The Daily Ittefaq, Dhaka, 9 February, 2000, p. 7.
[8] Responsible for medical examination of the rape victim.
3.7) Dowry
Marriage negotiations for Bangladeshi Muslims involve various financial transactions including primarily the religiously sanctioned dower (mahr). Added to mahr, the practice of dowry or joutuk, demands made by the husband’s side to the bride’s side, have in the last few decades become a widespread practice supported neither by state law nor personal laws, but apparently designed to strengthen traditional patriarchal assumptions. The dowry system is not recognised in the religion or the law of the Muslim societies but has spread into it. Conversely, Islamic law provides dower to enhance the status of women. Why should Muslim women, who are supposed to be protected by dower, become victims of dowry? While recent scholars have admitted the fact that dowry has spread to the Muslim communities, they have largely ignored the position of Muslim women within this discourse.
Dowry deaths are a common phenomenon in South Asia. These deaths of women are usually caused by the same persons who are legally and socially enjoined to protect them, i.e. their husband or in-laws.
The Dowry Prohibition Act of 1980 prohibits the taking or giving of dowry. The Repression Against Women and Children Prevention Act of 2000 Defines Dowry as: Money, goods or other property given or promised directly or indirectly by the brides side to the groom or his father, mother or any other person from the bridegrooms side at the time of marriage as consideration or condition of the marriage and any such money, goods or property demanded from the bride or the bride’s side by the groom, his father or mother or any person from the groom’s side [Section 2(j)] .
The Repression of Women and Children Prevention Act of 2000 Section 11 States:
If any woman’s husband or husband’s father, mother, guardian, relation or any person acting for the husband, causes the death of that woman for dowry or attempts to cause death or injures such woman for dowry or attempts to cause such injury the husband or husband’s father, guardian, relation or any person shall:
- For causing death be punishable by death penalty or for attempt to cause death by life imprisonment and in both cases shall be liable to pay additional fine:
- For causing injury shall be punishable by rigorous life imprisonment or for attempt to cause injury be punishable by rigorous imprisonment up to the term of maximum fourteen years but not less that five years and In both cases be liable to additional fine.
Under the Dowry Prohibition Act, 1980.Agreement for giving or taking dowry is void. Magistrate court has jurisdiction over the matter. But in our social context, still now dowry is very common in marriage in different form. The purpose of this act is not properly frustrated; it creates at least public awareness. We have to practice to go for legal help and try to remove dowry from society.
3.8) Restrictions on Child Marriage:
Child marriage is the sickness of our society . It is a very common phenomenon in our country.Under the Muslim law, marriage is a contract between two individuals and to make it valid the consent of both partners in the presence of two witnesses is essential. With regard to child marriage, the law states that should a girl be married off by her parents during infancy, the marriage must be endorsed or dissolved by the girl on her attaining puberty. In a bid to restraint child marriage, the Child Marriage Restraint Act 1929 (amended in 1984) raised the minimum age of marriage for both women and men. The 1984 amendment fixed the minimum age at 18 for women and 21 years for men. But widespread contravention’s of this law proves that its enforcement is very weak, and there is hardly any prosecution for any breach of this law..
In accordance with section 4 of the child Marriage Restraint act,1929 child marriage is punishable offence, solemnizing child marriage and the guardians also liable to punishment. Women’s are not liable to punishment under this act, I think it is questionable. Union parishad or paurashava or municipal corporation within the area shall bring the complaint and any first class Magistrates have jurisdiction to take cognizance the offence. Bringing allegation process is very complex, I think it should be liberal. In our social context, the objects of the act is not totally frustrated, at brings public awarness.