When laws fail to protect | The Daily Star
12:00 AM, December 08, 2018 / LAST MODIFIED: 04:11 PM, December 08, 2018

When laws fail to protect

There is no dearth of laws in our country to protect people from danger. But none of them could protect Aritry Adhikary, a ninth-grade student of the city's Viqarunnisa Noon School & College, who took her life on Monday hours after she and her parents were allegedly insulted by some teachers of the school. She has become the latest victim of the lax rule of law. Aritry would not have taken her life had the rule of law prevailed.

Let's now focus on our legal system the state has built to protect its citizens. Article 35 (5) of the Constitution unequivocally says: “No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.” It is one of the fundamental rights of the people of Bangladesh. No law can be made defying the fundamental rights including this one. Even if parliament makes any law undermining any of the fundamental rights, the law shall be declared void by the Supreme Court.

Isn't the alleged behaviour with Aritry and her parents by some teachers of the school “cruel, inhuman and degrading?”

Can anyone treat another in such inhuman and degrading manner? No. This is a criminal offence punishable with jail term and fine according to the Anti-Torture and Custodial Death (Prevention) Act, 2013. The law defines torture both physically and mentally. Any degrading treatment causes mental torture according to this law which has been made in light of the Article 35 (5) of the Constitution. By enacting the law, Bangladesh has fulfilled its commitment to the international community as being a signatory to the UN convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment it pledged to take legislative initiative to prevent acts of torture.

What is torture? According to Article 1 of the convention “the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

Each person has his/her own idea of self-esteem. Everyone reacts in his/her own way. Aritry also reacted in her own way as she could not bear the burden of the inhuman and degrading behaviour she and her parents had to face. Was there any instigation or abetment to make Aritry take her life?

What is instigation or abetment? Our Penal Code in Section 107 says: “A person abets the doing of a thing, who, Firstly; instigates any person to do that thing; or Secondly; engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly; intentionally aids, by any act or illegal omission, the doing of that thing.”              

And instigating any person to commit suicide is a grave offence. Section 305 of the Penal Code says: “If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication commits suicide, whoever abets the commission of such suicide shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine.”

The Penal Code in Section 306 also speaks about abetting suicide. It says: “If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

If we analyse the two sections—305 and 306—we will find the Penal Code focus more on the offences in regard to instigating a child or someone who is mentally insane to commit suicide, as they are categorised as being emotionally more vulnerable than adults.

Chhattisgarh High Court of India in an order in June 2017 observed that if the accused had created circumstances that led to a situation which made a person feel totally frustrated and, thereafter, commit suicide; it may amount to abetment punishable under Section 306 of the Indian Penal Code.

We have the same Section 306 in our Penal Code 1860 which was enacted during the British rule.

For people, life is more precious than anything. The Penal Code also discourages committing suicide by criminalising any attempt to commit suicide. The Section 309 says whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

If Aritry failed to kill herself she could have been charged with an offence under section 309. But she did not fail. She is now above all the laws which could not protect her and cannot punish her. Her death is not a mere death. It's a protest against the corrupt and immoral system that, in recent years, has forced more and more children to take their lives.

It should be kept in mind that the main purpose of the law is to protect people from danger, manage societal life and achieve conditions for life to prosper. The law guarantees the life and limits the criminal by imposing an order. But if laws are not properly enforced, nobody is held accountable for wrongdoings and unlawful acts. In such a situation, the purpose of making laws becomes redundant.


Shakhawat Liton is Planning Editor, The Daily Star.


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