Equal Rights for Women
Article 28(2) of the Constitution of Bangladesh guarantees that women shall have equal rights with men in all spheres of the State and public life. This provision in favour of women makes an advance over the Constitutions of other South Asian countries including India, Nepal and Pakistan. But this clause does not help her in all spheres of life except the spheres of the State and public life. This “equal rights” provision is not applicable to those rights which are governed by the personal laws (e.g. in case of Muslims by Sharia).[1] But human rights activist explains it negatively:
This limitation has been implied from the inherently ambiguous nature of the equality guarantee itself as in Bangladesh where it appears to be qualified by the pharse “State and public life.”[2]
Women are Favoured : Law Making Power of the State
The Constitutions of Bangladesh, India, and Nepal empower the State for making special provision(s) for the protection and the interests of women or in favour of women.[3] The State is empowered by these provisions for making laws to help the womenfolk in the competition where they are in a weaker position. Art. 15(3) of the Constitution of India reads : “Nothing in this article shall prevent the State from making any special provision for women and children.” This provision is an exception to the rule against discrimination provided in Arts. 15(1) and 15(2) of the Constitution.[4]
Art. 15(3) of the Constitution of India permits the State to make special provision for women and children. In fact, making a special provision is not the same as taking decisions in favour of women.[5] In this regard the Allahabad High Court observes that special provision for women as a class can be made, but not to benefit an individual woman.[6]
In Dattatraya Motiram v. State of Bombay,[7] Chief Justice Chagla observes that as a result of the joint operation of Art. 15(1) and Art. 15(3) the State should discriminate in favour of women against men, but it could not discriminate in favour of men against women. This observation has also been supported in Smt. Choki v. State of Rajahthan[8]. This contraction of Art. 15(1) and Art. 15(3) would be applied to existing as well as future law.[9] In this regard Chief Justice Chhagla in Dattatrayas Motiram More v. State of Bombay[10] observes :
It is impossible to argue that the constitution did not permit laws to have special provision for women if the laws were passed before the constitution come into force but permitted the legislature to pass laws in favour of women after the commencement of the constitution. If a law discriminating in favour of women is opposed to the fundamental rights of citizens, there is no reason why such law should continue to remain in statute book … But the exception made to Article 15(1) by Article 15(3) is an exception which applies both to existing laws and to laws which the state makes in future.
This special treatment for the vulnerable group, women and children is for the interest of the society itself.[11] Accordingly, in a case of conflict between Art. 27 and 28(3) of the Constitution of Bangladesh, the latter will prevail.[12]
The Penal Code also has special treatment in favour of women. In this regard section 497 of the Bangladesh penal code dealing with the offence of adultery is mentionable. The Section[13] reads :
Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.[14]
The Section expressly excludes the woman who equally participates in the crime from participation in the crime form being punished as an abettor. Only man is liable to be punished under the Section. The constitutionality of the Section was challenged as violative of Articles 14 and 15 of the Constitution of India.
In this regard, the judgment of Hon’bel Supreme Court of India in Yusuf Abdul Aziz v. State of Bombay[15] is a landmark in the history of the constitutional validity of the penal provision(s) protecting women. In the case a complain under section 497 was filed against the petitioner. He immediately applied to the High Court of Bombay (now Mumbai) to determine the constitutionality of the Section. The High Court upholds it as constitutional. Then the petitioner filed an appeal before the Supreme Court under Article 132(1) 134(1) of Constitution. Section 497 was challenged on the ground that it was violative of Article 14 and 15 of the Constitution of India, which guarantee a right to equality. The historic judgement was delivered by a bench consisting of Chief Justice Mahajan, Justice B.B. Mukerjee, Justice S. R. Das, Justice Bose and Justice Ghulam Hasan. Delivering the Judgement of the Court Jostice Bose observes :
Article 14 is general and must be read with the other provisions which setout the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two Articles read together validate the impugned clause in Section 497 of penal Code.
The validity of the Section was also upheld by the Supreme Court in Smt. Sowmithri Vishnu v. Union of India.[16]
[1] Salma Khan, The Fifty Percent : Women in Development and Policy in Bangladesh (Dhaka : University Press Limited, 1988), p. 15.
[2] Sara Hossain, “Equality in the Home : Women’s Rights and Personal Laws in South Asia,” in Human Rights of Women : National and International Perspective, ed. Rebecca J. Cook, 2nd ed. (Philadelphia : University of Pennsylvania Press, 1995), 474 as quoted in Khabir Uddin Ahmed, “Fundamental Rights of Women in Bangladesh Constitution and Muslim Law : A Comparative Study,” Unpublished Ph.D. dissertation, Institute of Bangladesh Studies, Rajshahi University, Bangladesh, 1999 : 56.
[3] The Constitution of Bangladesh, Art. 28(4); the Constitution of India, Art. 15(3) and the Constitution of Nepal, Art. 11(3).
[4] Art. 15(1) reads : “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Art. 15(2) reads : “No citizen shall on grounds only of religion, race, caste, sex, place of birth or any or them be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of general public.”
[5] Ahmed, Ibid., p. 57.
[6] Savitri v. K.K. Bose, AIR 1972 All. 305.
[7] AIR 1953 Bom. p. 482.
[8] AIR 1957 Raj. p. 10.
[9] R.G. Chaturvedi, rev., Chaudhury and Chaturvedi’s Law of Fundamental Rights, 3rd ed. (Allahabad : Law Book Company, 1985), p. 288.
[10] AIR 1953 Bom. 311 (314).
[11] M.V. Pylee, India’s Constitution (Bombay : Asia Publishing House, 1963), p. 87.
[12] Munim, Ibid., p. 280.
[13] The Section is also in the Indian Penal Code with the Same number.
[14] The (Bangladesh) Penal Code, as modified up to 30 September, 1991.