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Landmark Judgments on Violence Against Women and Children from South Asia

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Landmark Judgments on Violence Against Women and Children from South Asia Landmark Judgments on Violence Against Women and Children from South Asia Supported by: South Asia Regional Initiative/Equity Support Program This Compilation of Judgments is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents do not necessarily reflect the views of USAID or the United States Government. Acknowledgement The Regional Action Forum on “Improving the Implementation of Laws Protecting Women and Children” is a platform of dedicated individuals/experts from government, civil society, the judiciary and academia from four countries – Bangladesh, India, Nepal and Sri Lanka. Supported by the SARI/Equity Program, the Forum members meet regularly to discuss and act upon common issues of importance for the region. Thus, the Forum membership agreed to undertake the compilation of progressive, precedent-setting judgments on violence against women and children from the four countries in the hope that this compilation would foster information sharing and replication of progressive judgments across the region for the benefit of women and children victims of violence. SARI/Equity acknowledges with gratitude the valuable contributions of the Regional Action Forum members, National Core Groups1 and Consultants in the selection of the judgments and in the preparation of synopses for each of them and of various other materials. Special thanks go to the Editor of the Publication, Ms.Aparna Bhat, Member of the Regional Action Forum and Advocate at the Supreme Court of India, who consolidated the contributions into the current publication. We sincerely hope that it will become an “easy reference book” for judges, prosecutors, lawyers and concerned individuals and contribute to the development of a progressive jurisprudence in the region. The AED-SARI/Equity Team 1 For the list of members of the Regional Action Forum and its National Core Groups please see the back page of this document. Table of Contents Page No. Preface I List of Judgments III Chapter I Court Hierarchy 1 Chapter II Trafficking and Commercial 13 Sexual Exploitation Chapter III Sexual Assault and Rape 81 Chapter IV Sexual Harassment at Workplace 349 Chapter V Child Abuse 391 Chapter VI Domestic Violence 475 Annexure Relevant provisions of laws Bangladesh 645 India 651 Nepal 661 Sri Lanka 671 Index of Key Words 677 PREFACE Violence against women and children has no boundaries, regional disparities or cultural constraints. While its nature, causes and circumstances may have a given cultural background, violence against women and children unfortunately exists throughout the world without exception. Attempts at addressing and combating violence against women and children have taken various forms including legislative interventions followed by judicial interpretations of the same. While the law and the legal system alone may not be sufficient to combat violence against women and children, in instances where cases are brought forward, the legal system needs to be well equipped to deal with each of those cases in a sensitive and expeditious manner. Laws are the reflection of a society’s needs at any particular time. They therefore change with the times. Likewise, the manner in which violence is being perpetrated changes in society. Therefore, the mechanisms that a society sets up to combat violence will have to take into account the varying ways in which violence is being perpetrated. Experience sharing about handling such cases can provide greater insights into solving similar cases and in understanding the different ways in which problems can be addressed and good practices be arrived at. Unfortunately, exercises of experience sharing for prosecutors and the judiciary have hardly ever been considered. The present publication is an attempt to document the best practices of the superior judiciary in four South Asian countries, namely Bangladesh, India, Nepal and Sri Lanka. At the First Meeting of the Regional Action Forum on “Improving the Implementation of Laws Protecting Women and Children” held at Colombo in May 2004, it was the unanimous view of all those present that there was a strong need to pull together the most progressive judgments in the area of violence against women and to disseminate them widely amongst practitioners so that the rich jurisprudence that existed in this part of the globe be shared and made use of throughout the region. It was agreed by all that this exercise should be a positive one, using only key judgments that have long lasting Landmark Judgments on Violence Against Women and Children from South Asia I implications and can be referred to as case law beneficial for espousing the cause of women and children; and that the number of judgments should be limited to a maximum of 30 judgments per country - at the Supreme Court or High Court level. It was also strongly felt that such a compilation had to be updated regularly – for example every six months - and that the publication must be made freely available both in print and electronic form. Following that Colombo Meeting, a group of experts representing the four countries spearheaded the exercise of collecting judgments and preparing their synopses. Following that exercise the classification of the judgments under various categories was undertaken and the number of chapters decided. One of the challenges faced during the compilation process was the large number of judgments from the Indian Supreme Court compared to those of other countries. Given the mere geographic size of India and the number of cases filed, it is quite natural that more cases from India were available. In order to ensure equitable representation from all the four countries, only a select group of judgments from India has therefore been included here. During research, it was also noticed that there were some excellent judgements from certain district courts in Nepal. Even though these do not have any precedentiary value, as apparently they are being referred to in a large number of cases, it was decided to include them as well. This compilation is not completely reflective of the legal systems in the four countries since only reported judgments but no interim orders or “un-reported judgments” have been included. It is also possible that certain judgements which are widely used in certain regions have been inadvertantly not included. The Editor II Preface LIST OF JUDGMENTS Page Number Country Judgment Synopsis Judgment Trafficking and Commercial Sexual Exploitation Bangladesh Society for the 15 22 Enforcement of Human Rights (BSEHR) vs. Government of Bangladesh and others Highlight z Establishing the rights of sex workers to an occupation and residence z Guidelines on the rehabilitation of sex workers Bangladesh Mr. Abdul Gafur vs. Secretary, 17 46 Ministry of Foreign Affairs, Govt. of Bangladesh and Anr Highlight z Recognising repatriation as a fundamental right z Emphasising the State’s responsibility in ensuring repatriation Vishal Jeet vs. Union of India 18 50 Highlight z Asked governments to set up advisory committees to make suggestions for the eradication of child prostitution z Asked the central government to evolve schemes to ensure proper care and protection to the victim girls and children India Prerana versus State of Maharashtra 19 56 and others Highlight z Children rescued from brothels should be treated as “children in need of care and protection” under the Juvenile Justice (Care and protection of children) Act, 2000 Landmark Judgments on Violence Against Women and Children from South Asia III Page Number Country Judgment Synopsis Judgment z A lawyer representing the accused should not represent the victims z Drew parallels between the Immoral (Traffic) Prevention Act and the Juvenile Justice (Care and protection of children) Act, 2000 His Majesty’s Government on the FIR 20 68 of Urmila Thapa Magar vs. Krishna Prasad Pudasaini Highlight z Interpreted one of the clauses of the Human Trafficking (Control) Act, 2043 BS which said that the crime of taking a person to a foreign land for trafficking would be established even if any person was arrested within the territory of Nepal, while in the process of taking the person to a foreign land z Gave the benefit of doubt to the accused and not to the victim Nepal His Majesty’s Government on the FIR 21 74 of Tara Devi Dahal vs. Durga Dhimal Highlight z Burden of proof on the accused z Victim’s statement should be considered trustworthy until otherwise proved by the defendant Sexual Assault and Rape Moinul Haque and Anr. Vs. the 84 99 Bangladesh State Highlight z Death sentence for rape Al Amin vs. State IV List of Judgments Page Number Country Judgment Synopsis Judgment Al Amin Vs. State 84 108 Highlight • Established that the absence of a charge of rape in the FIR is not an evidence that it was added later for embellishment; • Established the social responsibility of the State and other public institutions, and the appropriate punishments in case these officials failed to discharge their responsibilities; • Asked the state to provide appropriate monetary compensation to the victim Azad Miah and Md. Azad vs.The 86 143 State Highlights • If the confessional statement was recorded as per the provisions of the Code of Criminal Procedure, then the trial is not vitiated. Abdus Sobhan Biswas vs. State 86 147 Highlights • Unless it is proved otherwise, the statement of the prosecutrix has to be believed. Bazlu Talukder vs. The State 87 154 Highlights • Benefit of the doubt given to co- accused cannot be a ground to set aside a well founded conviction against the principal accused. Landmark Judgments on Violence Against Women and Children from South Asia V Page Number Country Judgment Synopsis Judgment Rajib Kamrul Hasan and 3 others vs. 87 156 State Highlights • No prejudice would be caused to the rights of the accused, if they are convicted for a minor offence on the basis of evidence available, when they are charged for a major offence.
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