Following the rising violence against women, especially rape incidents throughout the country, the protection of woman and child has become the center point of discussion. As these incidents seem to be irresistible, curbing the violence against women has become a challenge for us. In the present context, there is no doubt that people who are committing crime against women and children must be punished and ensure justice. On the other hand, it is also necessary to protect innocent people from malicious prosecution. There is a common trend in Bangladesh to use the public emotion and opinion against the opponents. As a result, there is a very high chance of using the laws regarding the woman and child protection in favour of someone's heinous purpose. Unfortunately, this problem always overlooked for some reasons as believed that saying something against the misuse of laws those are made for the protection of women, is similar to saying something against woman's rights. The crying and sufferings of the people because of the misuse of this Act always went unnoticed and unheard in the pretext of protecting women's rights.
In Bangladesh, Women & Children Repression Prevention Act 2000 considered as one the most effective law addressing violence against women. This Act contains severe provisions for prevention of offences related to oppression on women and children trafficking and kidnapping of children and woman, rape, death resulting from rape and dower, sexual harassment etc. However, Women & Children Repression Prevention Act 2000 is seriously been misused from the time of its enactment. This law is been used as an instrument of humiliation, extortion and harassment. Not only the rate of conviction in the cases regarding violence against women and children is very low, it has also failed to usher in the expected results in punishing actual criminals for committing violence against women.
The abuse of this law has a very adverse impact on our legal system. Many innocent people are suffering for this law. At the same time, it is facilitating further malpractices in the legal system. It has caused loss of substantial resources of the state and society as good amounts of working hours are spend by the complaints or informants, police, jail personnel, judges and the support personnel and staff of the courts, lawyers. Friends and relatives of the accused, victims and witnesses and their associated costs and expenditures are also a factor to consider regarding misuse of resources. Thousands of innocent persons have been into the jailed for many months, including scores of older men, women and children. Even organizations working for women's rights acknowledge that, plaintiffs who are aggrieved with minor conjugal issues misusing this law. Ultimately, this situation deprives everyone from the possibilities of remedies. Women often file false graver allegations against their husbands or convinced by their lawyers to do so although the conjugal issues may not be that much serious. If proved guilty, that innocent husband receives conviction; but if proved innocent, the aggrieved women lose the chances of reconciliation.
The weakness of this law has been hidden in some of its sections which seem harmless on the face of it .For example section 19 of this Act makes all the offences punishable under this Act as 'cognisable'. According to Sec.4 (1) (f) of Code of Criminal Procedure (CrPC), a 'cognisable offence' is one for which a police officer can arrest someone without any warrant. Because of that, a person accused under the Women & Children Repression Prevention Act 2000 may possibly arrest immediately. Section 18 of the Act further says that, any investigation of an offence under this Act shall be completed within the period of sixty days from the date, any information regarding the offence is received or the Magistrate passed the order for investigation. Provided that, if the investigating officer satisfies the Tribunal by showing special causes that it is proper to extend the time for investigation for the end of justice. The Tribunal may order to complete the investigation within the extended period not more than thirty days.
From the discussed provisions, it is evident that law requires every case to be investigated followed by the Police Report to be submitted to the Court. In the meantime, the offence in question is an arrestable (cognisable) one. That is why the law-enforcing agency is in duty and they are bound to arrest the accused person pending the outcome of the investigation as per law. After the accused is been arrested, he may pray before the Tribunal under section 19 to enlarge him on bail.
Moreover, under section10(2), Any indecent gesture if done with sexual urge will be deemed as sexual oppression for which the punishment is imprisonment for either description which may extend to seven years but not less than two years of rigorous imprisonment. On many occasions it is found that women are taking resort to this section as it is very easy to claim that an indecent gesture was made as result of which many men are facing long term imprisonment. Unfortunately, in most of the cases it is used for character assassination and for some other evil purposes. The government has undoubtedly made a mistake by treating eve teasing an offence under the Women and Children Repression Prevention Act. This will create scopes for harassing innocent people and may often result in awarding of serious punishment for a minor incident of eve teasing.
In addition, section19 (2) has made all offences under this Act as non-bailable. This is the most lucrative part of the law for many insincere lawyers and complainants. If someone wants to harass any person and keep him or her behind the bar for few days, nothing will serve him as good as this law. It is very unlikely to get bail under this act because of section 19(2). As this section says that, a person will never get bail if the complainant does not get the opportunity for hearing on the application to release him; and the Tribunal is satisfied as such, considering the complaint, that there is sufficient ground for to be convicted, or the person is , a woman or a child or physically disabled and the Tribunal is not satisfied that justice will not be impeded if he is not released on bail. Unofficially it has become a trend in the judiciary to refuse the bail if any case if filed under this act.
Since the provisions under the Women & Children Repression Prevention Act 2000 are considerably harsh against the accused, to protect malicious prosecution, section 17 provides for rigorous imprisonment for a term not exceeding seven years and fine in case if someone lodges a false complain or files a false case with intent to cause harm to other person. Furthermore, to avoid the arrest the accused may try to get anticipatory bail from the High Court Division under section 498 of the CrPC. However, none seems to be interested to file a case for malicious prosecution since in most of the cases people are happy enough to get rid of the tiring trial process.
Another drawback of this law is that, the offence under this Act is not compoundable which makes it impossible to withdraw a case when the parties of the suit want to do so. In case of dowry or family dispute matters, the parties usually realize their mistakes and want to come to conciliation. But, in absence of any provision to compound the matter such attempt goes in vain. Some dishonest police officers are even making huge money to give final report when the parties want to settle the matter in between them. Outside court settlement or any kind of alternative dispute resolutions are can be said is not in the reach under this law.
The flaws of Women & Children Repression Prevention Act 2000 have a very adverse impact directly on society as a whole and deserve our attention now more than ever. Therefore, this law needs to be amended to meet the social outcry. The following reforms can make a positive difference: Firstly, the law should be amended to make the lawyer responsible as well with the complainants as in most of the cases they are encouraging people to file false case under this law also offences under this Act should be made either non-cognisable or bailable. Secondly, the definition of the sexual harassment should be changed so that minor offence like eve teasing does not fall under this act.
Thirdly, Government and law enforcing agency should let the people know about severe punishment if any false case filed under the Act also, some offences that involve family problem can be made compoundable. Finally, public awareness should be built against any kind of abuse of law.
The writer is Lecturer, State University Bangladesh.