A comparative analysis between the Constitution of Bangladesh and the Penal Code 1860 by Faysal Saleh Al Mahdi, University of Dhaka

Dr. Faysal Saleh Al Mahdi

University of Dhaka

Introduction

The Constitution of Bangladesh is the supreme law of the land, and if any other law is inconsistent with this constitution that other law shall, to the extent of inconsistency, be void.[1]

On the other hand, the Penal Code (Act XLV of 1860) is a statutory law, which deals with offences and their punishment in an exhaustive way. Every person becomes liable to punishment under this code for every act or omission contrary to the provisions thereof.[2]

There is a profound relation between the Constitution of Bangladesh and the Penal Code in terms of certain provisional purposes.

I’ll mainly focus on the relation between the Constitution and the Penal Code in terms of -

×          Public health,

×          Public morality,

×          Eve-teasing,

×          Limit of punishment,

×          Death penalty,

×          Unlawful confinement and Remand or custodial torture,

×          Forced labour,

×          Freedom of assembly,

×          Freedom of speech or expression,

×          Freedom of profession or occupation,

×          Freedom of religion and

×          Commutation of sentence

Public Health

According to the constitution, the state is under the fundamental responsibility to raise the level of nutrition and improve public health and to take measures to prevent the consumption of noxious foods, drink or of drugs injurious to the health.[3]

The constitution also ensures and protects the right to life for all people.[4] The right to health is included in the right to life. Without the implementation of the right to health and right to live in a healthy environment, the right to life is hampered. In the same view, it has been held in Dr. Mohiuddin Farooque v. Bangladesh[5] that the public functionaries are under obligation to preserve pollution free environment to protect life from all its ill-effects and necessary directions was given to them to take sufficient measures to control pollution by industries and factories. In the case, Advocate Zulhasuddin v. Bangladesh,[6] the relation of right to health with the right to life appeared more explicitly. In this case, the High Court Division found imposition of VAT (Value Added Tax) on receipts of medical and dental treatment, pathological laboratory and fees of specialized doctors to be ultra vires Articles 18 and 32. In the case Prof. Nurul Islam v. Bangladesh,[7] it was held that the right to life includes the right to protection of health.

The Penal Code also forbids all acts which are dangerous to public health. Under the Penal Code, every act which affects public health is reckoned as offence. The penal Code mentioned some offences relating to public health such as-

ü Any negligent or malignant act which is likely to spread infection of any disease dangerous to life. (Ss. 269-270)

ü Adulteration of food or drink intended for sale. (S. 272)

ü Sale of noxious food or drink. (S. 273)

ü Adulteration of drugs. (S. 274)

ü Sale of adulterated drugs. (S. 275)

ü Voluntarily fouling water of a public spring or reservoir. (S. 277)

ü Making atmosphere noxious to health. (S. 278)

Thus the state has a constitutional responsibility (to improve public health) and statutory authority (to tackle offences affecting public health).

Public Morality

Our constitution attributes a responsibility to the state to improve public morality. It mandates that the state shall take effective measures to prevent prostitution and gambling.[8] Also we know that freedom of speech or expression is a fundamental right ensured in our constitution.[9] But a law may impose reasonable restrictions on this right when it tends to undermine public morality. Thus our constitution put grave stress on public morality.

On the contrary, the Penal Code also attaches importance to public morality and declares every act affecting public morality to be offence.  

The penal Code mentioned some offences relating to public morality such as- 

ü Sale or distribution of obscene books, papers, pamphlets, drawings, paintings etc. to persons above the age of twenty. (S. 292)

ü Sale or distribution of obscene books, papers, pamphlets, drawings, paintings etc. to persons under the age of twenty. (S. 293)

ü Doing obscene acts or signing, reciting, or uttering any obscene songs, ballad or words in public place. (S. 294)

Thus the state has a constitutional responsibility (to improve public morality) and a statutory authority (to tackle offences affecting public morality).

Eve-teasing

Our constitution ensures freedom of movement in the art. 36 which is an important part of liberty. So, this right may also be protected by the due process clause of art. 31 which protects liberty of every citizen or resident of Bangladesh. One the other hand, our constitution imposes on the state the responsibility to secure to its citizens the right of education.[10]

Eve-teasing usually disturbs the freedom of movement, right to personal liberty, the right to education and more conspicuously the right to life.

The Penal Code deals with this offence in the sections 354 and 509. The state must tackle this offence very seriously with a view to securing the right to life, freedom of movement, right of personal liberty and the right to education for women and punish the woman-teasers under penal statutes.  

                                                         

Limit of Punishment

The Constitution ensures that no person shall be punished for the same offence more than once.  A person is not to be put twice in jeopardy for the same offence.[11]This principle has been incorporated in Article 35(2) of the Constitution.

The Penal Code under section 71 prescribes limit of punishment and prohibits double punishment for the same offence.

Death Penalty

The constitution provides that no person shall be deprived of life or personal liberty save in accordance with law.[12] The deprivation of life means total loss (death penalty) and deprivation of personal liberty means confining any person unlawfully or arbitrarily.

Art. 35(5) of the constitution provides that no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. The death penalty is obviously a cruel, inhuman and degrading punishment. But, Art. 35(6) of constitution provides an exception that the art. 35(5) shall not affect the operation of any existing law. Thus this provision allows death penalty in existing law or penal statute. The court must keep in view that life is the most precious thing and nothing can be more fundamental than preservation of life. Hence, deprivation of life can follow only when it is needed for the security of the state or the security of the ordered society.

The Penal Code imposes mandatory death penalty by section 303 which is a clear violation of Articles 31 and 32 of the constitution, because through these provisions the constitution-makers recognized the inviolability and sacrosanct nature of human life and liberty. The inherent philosophy behind these two provisions (Arts. 31 and 32) is to enhance and entrench the dignity of human life and liberty. That has clearly been violated by the mandatory nature of death penalty provided by penal law.

It would be pertinent to refer to the provision of the Penal Code which provide for death penalty for certain offences. Those offences are:

ü Waging or attempting to wage war against Bangladesh. (S. 121)

ü Abetment of mutiny, if mutiny committed in consequence thereof. (S. 132)

ü Giving or fabricating false evidence with intent to procure conviction of capital offence; if innocent person is convicted and executed thereby. (S. 194)

ü Murder. (S. 302)

ü Murder by life convict. (S. 303)

ü Abetment of suicide of child or insane person. (S. 305)

ü Attempt to murder by life convict , if hurt is caused (S. 307)

ü Voluntarily causing grievous hurt in respect of both eyes, head or face by means of corrosive substance , etc.(S. 326A)

ü Kidnapping or abducting a person under the age of ten (S. 364A)

ü  Decuity with murder. (S. 396)

In short, the dignity of man is inviolable. Therefore, any law that violates the dignity of man is unconstitutional. Whether the law violates the dignity of a man is a question of fact and depends upon what the dignity of man implies and to what extent the law violates that dignity.[13]

All punishments which are inhuman and cruel are violative of the dignity of man, as for instance, whipping, solitary confinement and barbarous invasion on human personality.[14]

Unlawful Confinement and Remand or Custodial Torture

Articles 31 and 32 of the constitution safeguard the life and liberty of the citizens. The right to life and liberty are such fundamental rights which are very basic among all other rights. The right to life and liberty cannot be curtailed by any illegal or unlawful action.

Article 33(1) of the constitution safeguards as to arrest and detention and this article mandates that the arrested person shall be informed of the grounds of arrest and shall have a right to be defended by a legal practitioner of his choice. Article 35(5) ensures that no person shall be subjected to torture, or to cruel, inhuman or degrading punishment or treatment.

Now-a-days, in Bangladesh, the police exercise the power of arrest or detention without warrant under Section 54 and the power of Remand under 167(2) of the Code of Criminal Procedure, 1898.

Such power is almost abused and the police sometimes arrest an innocent person without recording the grounds of such arrest and thereafter try to extort information or confession from the person arrested by physical or mental torture and in the process sometimes also cause death. Such kind of unlawful detention and confinement and custodial torture, cruel and degrading treatment in the name of remand is a totally violative of fundamental rights guaranteed under Articles 27, 31, 32, 33, and 35 of the constitution.[15]

Some specific provisions of the Penal Code are relevant here. They are-

ü Confinement by person having authority who knows that he is acting contrary to law. (S. 220)

ü Voluntarily causing hurt to extort confession, or to compel restoration of property. (S. 330)

ü Wrongful confinement to extort confession or compel restoration of property. (S. 348)

From the above discussion, it has become very evident that both constitutional provisions and penal statutes prohibit abusive exercise of power of detention or arrest and also the custodial torture in the name of remand.

Forced Labour

The Constitution of Bangladesh prohibits all forms of forced labour.[16] Generally “forced labour” means labour employed without the consent of the labourer. Slavery is a form of forced labour which involves the obligation to work for the benefit of master without the consent of the slave. Such kind of slavery is totally unconstitutional.

Buying or disposing of any person as a slave, habitual dealing in slaves are punishable under sections 370 and 371 of the Penal Code. The employment of child labour in any factory, mine or in any hazardous work is also unconstitutional.

Selling minor for the purpose of prostitution etc. and buying minor for the purpose of prostitution are punishable under sections 372 and 373 of the Penal Code. Under section 374 of the Penal Code unlawful compulsory labour is punishable.

Freedom of Assembly

The freedom of assembly is a fundamental right which is guaranteed under the constitution. The constitution guarantees that every citizen shall have the right to assemble and participate in public meetings and procession peacefully and without arms.[17] This right can be restricted only by a law imposed in the interest of public order or public health. The restriction must be reasonable and not arbitrary.

This right is the very essence of democracy. The right is subject to two limitations-

(a)   The assembly must be peaceful.

(b)  The members of the assembly must not bear arms.

The Penal Code mentions some grounds on which an assembly will be designated as an unlawful one and the state is authorized to restrict such an unlawful assembly. Section 141 of the Penal Code mentions five grounds on which the freedom of assembly can be curtailed. Those grounds are below-

1.     An assembly to overawe, by criminal force, the Government, Legislature or any public servant. 

2.     To resist the execution of any law or of any legal process.

3.     To commit mischief, criminal trespass or any other offence.

4.     To take, by criminal force or show of criminal force, possession of any property or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal rights.

5.     To compel, by criminal force or show of criminal force, any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Thus laws to punish an unlawful assembly within the meaning of section 141 of the Penal Code or authorizing the use of force to disperse an unlawful assembly is not inconsistent with the provisions of Article 37 of the Constitution.

Freedom of Speech and Expression

The right of every citizen to freedom of speech and expression is guaranteed under the article 39(2) (a) of the Constitution. This right is subject to reasonable restrictions.

This kind of right is available so long as it is not malicious or libelous and if the speech or expression is untrue or reckless, the speaker or the author does not get protection of the constitutional right.[18]

The Penal Code under the section 499 declares any imputation injuring the reputation of any person as an offence. The Penal Code also designed any kind of incitement or abetment of offence as an offence. 

So, in the name of freedom of speech or expression, no person can injure the reputation of another person[19] or abet or incite another person to commit an offence. Sedition is not allowed in the name of freedom of expression. The Penal Code defines sedition in section 124A. But comments expressing disapprobation of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, don’t constitute an offence of sedition.[20] The freedom of speech or expression is not available in case of deliberately wounding religious feelings. The Penal Code forbids deliberately wounding religious feelings under section 298.

Freedom of Profession or Occupation

The Constitution ensures the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business.[21] This a fundamental right which is subject to the reasonable restrictions. So, the state has the authority to restrict any kind of illegal profession, trade or business.

The Penal Code mentioned some offences relating to profession or occupation, trade or business and thus gave an elaborate view of some unlawful profession, trade or business.  

Some offences relating to trade or business as envisaged in the Penal Code are below –

ü Selling instrument for counterfeiting Bangladesh coin. (S. 234)

ü Import or export of counterfeits of Bangladesh coin. (S. 238)

ü Selling instrument for counterfeiting Gov. Stamp. (S. 257)

ü Sale of counterfeit Gov. Stamp. (S. 258)

ü Sale of false weight or measure. (S. 267)

ü Sale of noxious food or drink. (S. 273)

ü Sale of obscene books etc. (S. 292)

ü Importation of girls from foreign country for immoral purpose. (S. 366B)

ü Buying or disposing any person as a slave. (S. 370)

ü Habitual dealing in slaves. (S. 371)

ü Selling minor for purposes of prostitution etc. (S. 372)

ü Buying minor for purposes of prostitution etc. (S. 373)

ü Habitual dealing in stolen property. (S. 413)

ü Sale of printed or engraved substance containing defamatory matter. (S. 502)

Thus the state is constitutionally bound to ensure freedom of profession or occupation and at the same time bound to tackle offences relating to profession or occupation, trade or business under statutory law i.e. the Penal Code.

Freedom of Religion

Our constitution speaks about freedom of religion. Article 41(1) (a) of the constitution provides that every citizen has the right to profess, practice or propagate any religion. Article 41(1) (b) of the constitution provides that every religious community or denomination has the right to establish, maintain and manage its religious institutions. This fundamental right is also subject to reasonable restrictions.

The Penal Code, under ss 295 and 295A, forbids every act which disturbs the practice of any religion and also every act injuring place of worship or religious institutes. The Penal Code, under section 296, also forbids intentional disturbance to any religious assembly.

Commutation of Sentence

The Constitution ensures that the president has a power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.[22]

The Penal Code has a relation with the Constitution in this respect. The Penal Code provides some directions on how the president will commute the sentence of death[23] and the sentence of imprisonment for life.[24]

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[1]  Article 7(2) of the Constitution

[2]  The Penal Code,1860 Sec. 2

[3]  Article 18(1) of the Constitution

[4]   Article 32 of the Constitution

[5]  48 DLR 438

[6]  2010 BLD 1

[7]  52 DLR 413

[8]  Article 18(2) of the Constitution

[9]  Ibid. Article 39

[10]  Ibid. Article 15(a)

[11]  State v. Gopinath Ghose 29 DLR 366

[12]  Ibid. Article 32

[13]  A. K. M. Shamsul Huda, The Constitution of Bangladesh 481

[14]  The Provison of Punjab v. Begum Shamim Afridi  PLD 1973  Lah. 120

[15]   BLAST and others  v. Bangladesh and others 55 DLR (HCD) 2003

[16]  Article 34 (1) of the Constitution  

[17]  Ibid. Article 37

[18]  Saxena v. Chief Justice, AIR 1996  SC  2481

[19]  Rama Dayal v. MP, AIR 1978 SC 921

[20]  Explanation 2 to Section 124A of the Penal Code

[21]  Ibid Article 40

[22]  Article 49 of the Constitution

[23]  Section 54 of the Penal Code

[24]  Ibid. Section 55