Bangladesh and India were a single State before 1947. So they inherit the same system of criminal justice.
The State of Bangladesh inherits laws and legal system existing in Pakistan, which was also a single State named India before 1947. Like India and Pakistan, the Code of Criminal Procedure (CrPC) and the Penal Code, in amended forms govern the criminal justice system in Bangladesh. The Penal Code contains provisions for penalising crimes related to adduction, kidnapping, subject to slavery, keeping in confinement, buying or disposing any person as a slave and selling for purpose of prostitution which in general cover trafficking. Sections 360, 362, 363, 365, 366 (A), 366 (B), 367, 368, 369, 370, 371, 372, 373 and 374 of the Code have provisions for penalising such crimes.
Like India, no Bangladeshi legislation-already repealed or now existing aims to abolish prostitutes and prostitution as such and make it per se a criminal offence or punish a woman as she prostitutes herself. But the law was or is to inhibit or abolish commercialised vice namely the trafficking in women (and children) for the purpose of prostitution as an organised crime.
Punishment under the Penal Code
The penalty for kidnapping any person is imprisonment of either description for a term, which may be extended to seven years and also fine. For kidnapping a person under the age of ten years and to be engaged in slavery, the punishment is death sentence or life imprisonment or rigorous imprisonment for a term, which may be extended to 14 years and shall not be less than seven years. If the kidnapped person is a major one, the punishment is imprisonment for either description for a form may be extended up to ten years and fine also.
The punishment for inducing or forcing or seducing any women under the age of 18 years to illicit intercourse with another person is imprisonment which may be extended to ten years and fine also.
The penalty for importing any woman under the age of 21 years into Bangladesh from any country to be forced or seduced to illicit intercourse with another person is imprisonment, which may be extended to 10 years and fine.
The Code also penalises crime related to enslavement. The punishment for importing, exporting, removing, buying, selling or dispensing of any person as a slave (or accepts, receives or detains against his/her will) is imprisonment of either description for a term which may be extended up to seven years and also fine. If anyone habitually deals in slaves the punishment is life sentence or imprisonment of either description for term not exceeding 10 years and also fine.
For selling or buying or hiring or disposing of any person, under the age of 18 years with intent that such person shall (at any age) be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, the punishment is imprisonment of either description for a term which may be extended to 10 years and also fine.
Having provisions for penalising crime relating to violence against women the Penal Code has been failing remarkably. The Code provides punishment of imprisonment ranging from only one year to 14 years for crime related to trafficking.
As overall incidents of violation of human rights of women had been increasing dramatically at the early 80s, women’s and human rights organisations were demanding special law with deterrent effect to stop violence against women and children.
In this circumstances, the then Chief Martial Law Administrator promulgated the Cruelty to Women (Deterrent Punishment) Ordinance, 1983. The expedition to promulgate such a law was “to provide for deterrent punishment for cruelty to women.”
The Cruelty to Women (Deterrent Punishment) Ordinance, 1983
The provision of the Ordinance overrides provisions contained in any other law. This was the first legislation in Bangladesh, which provides penalty for crimes related to ‘trafficking in women’ specifically. Section 5 of the Ordinance reads as ‘whoever imports or exports, or sells, lets to hire or otherwise disposes of or buys, hires or otherwise obtains possession of any woman of any age with intent that such woman shall be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such woman will be employed or used for any such purpose shall be punishable with 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.’
When a woman is sold or let for hire or otherwise disposed of to a prostitution or to any person who manages it, the person disposing of such a woman shall be presumed to have disposed of her with the intent that she would be used for the purpose of prostitution, until contrary is proved. The gist of the offence is the exercise or effective control over a woman with intent that such a woman would be used for the purpose of prostitution or illicit intercourse. The intention may be gathered from the facts proved.
The law also provided the punishment with imprisonment for life or rigorous imprisonment for a term, which may extend to 14 years and fine also for the crime related to kidnap or abduction of woman for unlawful or immoral purposes. Earlier, the punishment for kidnapping any person was imprisonment of either description for a term, which may extend to 10 years and fine also. So the law of 1983 has increased the penalty.
The Oppression on Woman and Child (Special provision) Act, 1995
This law was enacted with a view to penalise heinous crimes relating to oppression on women and children. With the enactment of this law the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 was repealed. Like the 1983 Ordinance the 1995 Act also override other relevant laws.
The Act of 1995 further strengthened the penalty for trafficking in woman. It also provided life imprisonment and fine for crime related to import, export, buy or sell or hire or otherwise transfer a woman to be engaged in prostitution or illicit intercourse or for immoral purposes. The punishment for obtaining possession of a woman for importing, exporting, hiring or transferring otherwise to be engaged in prostitution or illicit intercourse or for immoral purposes was rigorous imprisonment for 14 years and fine. This law provides life sentence to rigorous imprisonment, which may not be less than seven years and also fine for offence related to kidnapping or adduction of a woman to be engaged in prostitution or to be used for immoral purposes; forced marriage; forced or deceitful intercourse. For crime relating to trafficking in a child the law, for the first time, provided the punishment of capital punishment or life imprisonment (Section 12).
Special Features of the Oppression on Women and Children (Special Provision) Act, 1995
Unlike the 1983 Ordinance the 1995 Act had some special features. The new law provided provisions for trial of offences relating to oppression on women and children by special courts (Section 15). There should be a special court in every district headquarter for training the crime covered by the 1995 Act (Section 16). The government could also established special courts in other places, if necessary, by Gazette notification. The court would be formed with a District and Session Judge. This also included Additional District and Session Judge.
The Oppression on Women and Children Control Act, 2000:
The law has been passed to facilitate enactment of necessary rules for controlling oppression on women and children strictly. With the enactment of this new law the Oppression on Women and Children (Special Provision) Act, 1995 has been repealed. Like special laws of 1983 and 1995, the new one of 2000 also overrides other relevant laws.
Special Features of the Act
The Oppression on Women and Children Control Act, 2000 has been enacted with a view to control ‘oppression’ as a whole on the vulnerable group of our society, women and children strictly. The new legislation has some special features.
The newly enacted law provides punishment of death sentence or life imprisonment or rigorous imprisonment which may be extended up to 20 years but not less than 10 years and also fine for offence related to trafficking in women. The punishment would be death sentence or rigorous imprisonment for life and fine if the victim is a child.
The punishment for abducting a woman or child to be engaged in prostitution or unlawful or immoral purposes is life imprisonment or rigorous imprisonment up to 14 years and in addition fine.
Rape is the common consequence of trafficking. The Act provides the penalty for rapping a woman or child, a rigorous imprisonment for life and also fine. If the victim dies following the rape the punishment would be death sentence or rigorous imprisonment and fine of taka not less than one lakh. The same penalty would be sentenced to each of the gang if any woman or child dies following a gang rape.
Section 26 of the Act deals with the formation of special tribunals. It provides that there would be the Oppression on Women and Children Control Tribunal in each district headquarter to try offences under the Act. The Government can establish more than one tribunal in a district, if necessary. The tribunal would be constituted with one Judge in the rank of District and Session Judge. This includes Additional District and Session Judge also.
The tribunal would not accept any offence for trial without a written report submitted by a police officer not bellow the rank of a Sub-Inspector (SI) or other authorised person designated by the government [Section 27(1)]. The tribunal may accept any complaint directly in exceptional cases [Section 27(1)].
The offences under the Act are cognisable and non-bailable. Only for exceptional circumstances, the tribunal may grant bail (Section 19).
The offence under the Act have to be investigated out by the concerned police officer within 60 days from receiving information regarding happenings of the Offence or being ordered by the Magistrate for the investigation. The Investigation officer may be granted 30 days more if s/he could convince the Tribunal that more time is needed for fare justice (Section 18).
The hearing of a case continues in the Tribunal in every working day until it comes to an end. The trial of a case has to be completed within 180 days after being accepted for trial by the tribunal (Section 20). The trial can be done in absence of the accused person(s) (Section 21).
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….” 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 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 [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 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.
STATEMENT OF CASES RELATING TO TRAFFICKING IN WOMEN DURING 1996 TO 1999
|No. of Cases||No. of Trafficked Women||Recovery of Trafficked Women||Total No. of Accused||No. of Accused Arrested|
|Up to September 1999||31||46||28||104||34|
Source : Bangladesh Bar Council, Human Rights and Role of Lawyers, ud.
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, 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.
According to a press report, 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.
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”. 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 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?” 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 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.
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.
- Constitutional guarantees:
The Constitutions of Bangladesh India and Nepal guarantee equality of status and opportunities to men and women. More over the States are empowered by the Constitutional provisions for making provisions both general and special for the welfare of women.
The Constitutions of these three selected countries guarantee various fundamental rights irrespective of sex. A women as a citizen of the country enjoys these rights. The following fundamental rights are available for both men and women.
Right to Equality
“Equality before law” has a place in almost all the written Constitutions that guarantee fundamental rights. Both the expressions have also been used by the UDHR. These terms have been adopted from the English Constitution, which implied absence of special privilege in favour of any person. It provides that all citizen are equal before the law and thus implies “equality of treatment in equal circumstances,” e.g. application of the same law alike and without discrimination to all persons similarly situated.
The formula as stated in the relevant Articles of the Constitutions of Bangladesh, India and Nepal contain the English concept of equality before law and the American concept of equal protection of law. But the concept is not independent and severable in their application and will be found to overlap each other. But it is a guarantee against discrimination both in conferment of privileges and imposition of liabilities.
In fact the concept “Equality before law,” derived form the English Constitutional law follows from the ‘rule of law.’ The latter connotes the undisputed supremacy of law. This supremacy of law is for giving security to the rights of individual who are the citizens of a democratic State.
Every modern State, at least theoritically has accepted the principle of equality before law. Its acceptance is found in the provisions of the most of the written Constitutions.
Generally, equality before law meant that among the equals law shall be equal and shall be equally administered. There shall not be any special privilege for the reason of birth, creed etc.
In the case of Sheikh Abdus Sabur v. Returning officer it was observed that:
Equality before the law does not mean absolute equality of man, which is physically impossible, but the denial of any special privileges by reason of birth, creed or the like, in favour of any individual and also the equal subjection of all individuals and classes to the ordinary law of the land administered by the ordinary law courts.
The Appellate Division of the Supreme Court of Bangladesh further observed:
“Equality before law” is not to be interpreted in its absolute sense to hold that all persons are equal in all respects disregarding different conditions and circumstance in which they are placed or special qualities and characteristics which some of them may posses but which are lacking in others.
Though personal laws existing in South Asian countries provide that male and female are not of ‘equal status’ in terms of inheriting property. But the Indian Supreme Court observes that in case of division of property after the death of the father, sons, wife and daughters are entitled to inherit his estate including alienated property even though the wife and daughters are under the customary laws incompetent to challenge the alienation.
The Constitution of Bangladesh further provides that women shall have equal rights with men in all spheres of State and of public life.
Right to Non-Discrimination
The Constitutions of Bangladesh, India, and Nepal prohibit classification of citizens on grounds of only religion, race, caste, sex or place of birth.
Discrimination indicates an unjust, unfair or unreasonable bias in favour of one and against other. The general meaning of ‘discriminated against’ is to ‘make an adverse distinction with regard to,’ ‘distinguish unfavorable from others.’
Article 28(1) of the Constitution of Bangladesh provides that state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. This Article corresponds to Article 15(1) of the Indian Constitution and Article 11(3) of the Nepali Constitution. According to Durga Das Basu the scope of the Article 15 of the Indian Constitution is very wide. Article 15(1) reads “The State Shall not discriminate against any citizen on grounds of only religion, race, caste, sex, place of birth or any of them,” The plain meaning of the prohibition is that no person belonging to a particular religion, cast, sex etc. shall be treated unfavourably by the State when compared with persons of any other religion or sex merely on the ground that s/he belongs to the particular religion or sex. But discrimination will not be unconstitutional if there is any other ground or consideration for the differential treatment in addition to those prohibited by the Article.
Right to Equal Protection of Law
Right to equal protection of law is an important fundamental right. Article 31 of the Bangladesh Constitution provides that right to protection of the law and to be treated in accordance with law is the inalienable right of every citizen. This is also applicable for the person residing in Bangladesh for the time being. And no action detrimental to the life, liberty, body, reputation or property of any person shall be taken in accordance with law.
Article 140 of the Indian Constitution provides : “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Article 11(1) of the Nepali Constitution also provides that “… No person shall be denied the equal protection of the laws.”
In Mofizur Rahman v. Bangladesh the Appellate Division of the Supreme Court of Bangladesh observes that “every action affecting a citizen’s right must be taken in accordance with law or under the authority of law and not according to the whims of the person in authority or under any executive fiat.”
Right to Equality of Opportunity in Employment
The Constitution provides equality of opportunity for all citizens in respect of employment or office in the service of the Republic and prohibits discrimination or ineligibility on grounds only of religion, race, caste, sex or place of birth.
Article 16(1) of the Constitution of India provides equality of opportunity in matters relating to employment or appointment to any office of the state. The right to equality is only in employment or appointment under the State. This relates to the matter of recruitment, promotion, wages, termination increments, leave, gratuity, pension, age of retirement, etc. But this equality is amongst the equally placed persons, equality amongst the same class of persons and not amongst different classes of persons.
The Constitution lists specific grounds on which citizens are not to be discriminated against each other. These are religion, race, caste, sex, descent, place of birth etc. Gender based discrimination is specifically prohibited by the Constitution. Sex shall not be the sole ground of ineligibility for any post.
Right to Life and Personal Liberty
The Constitutions of Bangladesh, India, and Nepal guarantee right to life and personal liberty. Article 32 of the Constitution of Bangladesh reads : “No person shall be deprived of life or personal liberty save in accordance with law.” This Article corresponds with Article 21 of the Constitution of India and Article 12(1) of the Constitution of Nepal.
The very objective of the provision is that no man (human being) can be subjected to any physical coercion that does not admit of legal justification. It means that no member of the Executive are entitled to interfere with the liberty of a citizen unless s/he can support her/his action by some provision of law.
Therefore, when the State or any of its agents deprives an individual of his/her personal liberty, the law should justify such action and the procedures prescribed by such law have to be observed “strictly and scrupulously.”
Right to Privacy
Except as provided by the law, the right to privacy of the person, house, property, document, correspondence, or information of anyone is inviolable. This relates to Article 43 of the Bangladesh Constitution and Article 21 of the Indian Constitution.
Right to Freedom
Articles 36 to 41 of the Bangladesh Constitution provide for citizen right to freedoms of movement; assembly, association; thought and conscience, and expression; profession or occupation; religion; and property. These articles provide that subject to any reasonable restrictions imposed by law, public order and morality in the public interest or in the public order or Public health or the State, friendly relations with foreign States or in relation to contempt of court, defamation or enticement to offense as the case may the citizen or people residing in Bangladesh for the time being are entitled to enjoy the rights mentioned above.
These rights relate to Articles 12, 17 and 19 of the Constitution of Nepal. These, except right to religion and right to property corresponds to Article 19 of the Constitution of India.
Right Against Exploitation
As mentioned earlier Article 21 of the Constitution of India guarantees right to life and personal liberty. But “Right to life” does not merely mean animal existence. It means some thing more, e.g. the right to live with dignity. Thus, rape is a crime against basic human rights and is also violative of the victims right to life guaranteed in Art. 21. Art. 23 of the Constitution has categorically prohibited “traffic in human beings and begging and other similar forms of forced labour…” Similarly, Art. 24 prohibits employment of child (including a female child) below the age of 14 years in any factory or mine or in any other hazardous works.
The Constitution of Nepal also prohibits “Traffic in human beings, slavery, serfdom or forced labour in any form…” Any contravention of the provision shall be punishable by law.
Unhopefully, the Constitution of Bangladesh does not prohibit “traffic in human being” directly. But it prohibits all forms of forced labour which is a major consequence of trafficking. Besides, Art. 18(2) of the Constitution provides for the State for adopting “effective measure to prevent prostitution” which is also a consequence of trafficking.
Women’s Special Fundamental Rights:
Most of the fundamental rights guaranteed in the Constitutions of Bangladesh, India and Nepal are both for men and women. But there is some exception also. Some fundamental rights are exclusively for women. These rights give them (women) equal status, at least theoretically with men and empower the state to adopt laws or provisions in favour of women. These fundamental rights are exclusively for women.
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). 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.”
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. 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.
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. 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.
In Dattatraya Motiram v. State of Bombay, 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. This contraction of Art. 15(1) and Art. 15(3) would be applied to existing as well as future law. In this regard Chief Justice Chhagla in Dattatrayas Motiram More v. State of Bombay 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. Accordingly, in a case of conflict between Art. 27 and 28(3) of the Constitution of Bangladesh, the latter will prevail.
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 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.
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 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.
- Low of Women under the Penal Code:
Women’s several rights and protection of law have been established in the Penal Code (Act no. 45 of 1860) and jurisdiction is given to the criminal courts. The following provisions are available in the penal code for the protection of women:
Section 366- kidnapping, abducting or inducing woman to compel her marriage,
Section 372 – selling minor for the purpose of prostitution etc.
Section 372- buying minor for the purpose of prostitution etc.
Section 375- rape,
Section 376- punishment of rape (punishment of rape goes to Nari-O-Shishu Nirjaton Daman Ain-2000),
Section 312- causing miscarriage,
Section 313- causing miscarriage without women’s consent,
Section 314- death caused by act done with intent to cause carriage, if act done without women’s consent,
Section 493- cohabitation caused by a man deceitfully inducing a belief of lawful marriage,
Section 494- marrying again during life time of husband and wife,
Section 495- some offence with concealment of favor marriage from person with whom subsequent marriage is contracted,
Section 446- marriage ceremony fraudulently gone through without lawful marriage,
Section 497- adultery,
Section 498- enticing or taking away or detaining with criminal intent a married woman,
Section 509- word, gesture or act intended to insult the modesty of a woman.
These protection of women by the penal code runs in corroboration with Cr.P.C. 1898, Evidence Act, 1872 and some other criminal laws. In our social context, these laws do not run in its full rhythm.
 Act XLV of 1860, 6 October, 1860. The law has successively been amended by A.O. 1937 and A.O. 1947 Sch. and the Bangladesh Laws (Revision and Declaration) Act, 1973 [Act VIII of 1973], Second Sch.
 Section 367.
 Section 366A.
 Section 366B.
 Section 370.
 Section 371.
 Section 372 and 373.
 Section 2.
 Amended by Act 37 of 1988 with effect from 10 July, 1988.
 Matiur Rahman v. The State, 21 DLR 903; 15 DLR WP 55; 15 DLR WP 115.
 T. Ammal v. S. Goundan, 24 Cr. L.J. 100; 29 Cr. L.J. 993.
 The Cruelty to Women (Deterrent Punishment) Ordinance, 1983, Section.4.
 The Penal Code, Section 364.
 Act XVII of 1995. The 1995 Act has been repealed by the Oppression on Women and Children Control Act, 2000.
 The Oppression on Women and Children (Special Provision) Act, 1995, Section 29.
 Ibid., Section 3.
 Ibid., Section 8(1).
 Ibid., Section 8(2).
 Ibid., Section 9.
Act No. VIII of 2000. Published in the Bangladesh Gazette on 14 February, 2000.
 Preamble of the Law.
 The Oppression on Women and Children Control Act, 2000, Section 34.
 Section 3.
 Section 5. Woman means female of any age [Section 2(8)].
 Section 6. Child means any person not over 14 years of age [2(k)].
 Section 7.
 The Penal Code, Section 375.
 The Oppression on Women and Children Control, Act, 2000, Section 9(1).
 Section 9(2).
 Section 9(3).
 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.
 The Penal Code (Act No. XLV of 1860).
 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.
 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.
 Established on 26 October 1996 with one Judge as quoted in The Daily Ittefaq, Dhaka, 7 March 1999, 16-15.
 The Daily Jugantor (Dhaka), 10 March, 2001, P. 9.
 The Sangbad, 27 July, 1998.
 The Daily Ittefaq, Dhaka, 9 February, 2000, p. 7.
 Responsible for medical examination of the rape victim.
 USA Constitution, Sec. 1 of 14th amendment : ‘No state shall … deny to any person within its jurisdiction the equal protection of laws.’ Myanmar Constitution, Sec. 13 : “All citizens irrespective of birth, religion, sex or race are equal before law, that is to say, there shall not be any arbitrary discrimination between one citizen or class or citizens and others.” The Constitution of the People’s Republic of Bangladesh (hereafter, Bangladesh Constitution) Art. 27 : ‘All citizen are equal protection of law.’ The Constitution of India, Art. 14 : “The State shall not deny to any person equality before the law or the equal protection of the equal protection of the laws within the territory of India.” The Constitution of the kingdom of Nepal (hereafter Nepal Constitution), Art. II : “All citizen shall be equal before the law. No. person shall be denied the equal protection of the laws.”
 The Universal Declaration of Human Rights, 1948, Art. 7 : “All are equal before the law and are entitled without any discrimination to equal protection of the law.”
 Dicey, Law of the constitution, 10th ed. P. 49.
 Jagannath Prasad v. State of U. P., AIR 1961 SC 1245.
 Dr. Nurul Islam v. Bangladesh (1981) 33 DLR (AD) 201.
 Mahmudul Islam, Constitional Law of Bangladesh (Dhaka : Bangladesh Institute of Law and International Affairs, 1995), p. 79.
 Laxminarayan v. Collector, AIR 1956 MB 163.
 Islam, op. cit., 88.
 Islam, Ibid.
 Sheikh Abdus Sabur v. Returning Officer (1989) 9 BLD (AD) 25 at 35.
 Ibid., (1989) 9 BLD (AD) 25 at 36.
 Mashan v. Taj Ram AIR 1980 SC 558; Giani Ram v. Ramjilal AIR 1969 SC 1144.
 Art. 28(2)
 Bishnu Charan Panda v. State of Orissa (1982) 54 Cut LT 337.
 Kathi Raning v. State of Saurashtra (1952) SCR 435 (442); Jonaba Dalia Parveen v. Bangladesh Biman Corporation (1996) 16 BLD (HCD) 357.
 Durga Das Basu, Introduction to the Constitution of India, 18th ed., (New Delhi :Prentice Hall of India Private Limited, 1997), p. 90.
 Yusuf v. State of Bombay AIR 1954 S.C 321.
 (1982) 34 DLR (AD) 321.
 Bangladesh Constitution, Art. 29(1) and 29(2); Indian Constitution, Art. 16 and Nepali Constitution, Art. 12(2)(e).
 Art. 16(1) : “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state”.
 Anjani Kant, Women and the Law (New Delhi : A.P.H. Publishing Corporation, 1997),
 Basu, Ibid., 104.
 Ram Narain v. State of Bombay, (1952) S.C.R. 652.
 The Constitution of Nepal, Art. 22.
 Kant, Ibid., 144.
 Bodhisattwa Gautam v. Subhra Chakraborty (Ms) (1996) ISCC 490 (499-500).
 Art. 20.
 Art. 34.
 Salma Khan, The Fifty Percent : Women in Development and Policy in Bangladesh (Dhaka : University Press Limited, 1988), p. 15.
 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.
 The Constitution of Bangladesh, Art. 28(4); the Constitution of India, Art. 15(3) and the Constitution of Nepal, Art. 11(3).
 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.”
 Ahmed, Ibid., p. 57.
 Savitri v. K.K. Bose, AIR 1972 All. 305.
 AIR 1953 Bom. p. 482.
 AIR 1957 Raj. p. 10.
 R.G. Chaturvedi, rev., Chaudhury and Chaturvedi’s Law of Fundamental Rights, 3rd ed. (Allahabad : Law Book Company, 1985), p. 288.
 AIR 1953 Bom. 311 (314).
 M.V. Pylee, India’s Constitution (Bombay : Asia Publishing House, 1963), p. 87.
 Munim, Ibid., p. 280.
 The Section is also in the Indian Penal Code with the Same number.
 The (Bangladesh) Penal Code, as modified up to 30 September, 1991.
 AIR 1954 SC 321.
 (1985) Cr. L. J. 1302 (SC).