Offence of 'murder after rape'

Having law background, many of us often face the question that whether death penalty has been abolished in Bangladesh after the recent debate concerning Shukur Ali's case. The Supreme Court of Bangladesh on 5 May 2015 ruled over the unconstitutionality of certain provisions regarding mandatory death penalty for the offence of 'murder after rape'. This rule in Bangladesh Legal Aid and Services Trust (BLAST) and others v Govt. of Bangladesh and others has given rise to confusion in the society. Same question has been evoked even throughout social media.

Legally speaking, the provision of capital punishment for this heinous crime has not been abolished by the recent decision of the Supreme Court; but it still remains with an option of life term imprisonment and fine as punishment if death sentence is not awarded to the offender. So, this is upon the Court to grant death penalty or life term imprisonment after analysing the facts and evidences of each case. 

The Prevention of Oppression against Women and Children (Special Provisions) Act of 1995 was repealed in 2000 by the Prevention of Women and Children Oppression Act of 2000 (as amended up to 2003). Section 34(2) of the Act of 2000 provides that though the Act of 1995 has been repealed by the current Act; the cases which are pending or filed under the Act of 1995 will be tried and disposed of under the previous Act, i.e. the Act of 1995.

The Appellate Division of the Supreme Court of Bangladesh declared unconstitutional the following legal provisions in BLAST case: sub-sections (2) and (4) of section 6 of the Prevention of Oppression against Women and Children (Special Provisions) Act of 1995; section 34(2) of the Prevention of Women and Children Oppression Act of 2000; and section 303 of the Penal Code of 1860. According to sections 6(2) and 6(4) of the Act of 1995, the Court is empowered to award death penalty for the offence of 'murder after rape', if the accused gets proved guilty. Similarly, section 303 of the Penal Code authorises the Court to punish an accused with death penalty, if he/she is found guilty of committing murder while serving his/her sentence of 'imprisonment for life' in prison.

These legal provisions are declared unconstitutional as they violate articles 7 (constitutional supremacy); 26 (laws inconsistent with fundamental rights to be declared unconstitutional); 27 (right to equality before law); 32 (right to life); and 35 (prohibition on cruel and degrading treatment or punishment) of the Constitution of People's Republic of Bangladesh. However, under the Act of 2000 there remains two options for the Court to punish the offender with – either capital punishment or life term imprisonment with fine of taka one lakh. Moreover, the Court is directed to decide on the question of punishment after considering the gravity of the crime.

On 11 June 1996, Shukur Ali, a 14-year old boy living in Manikganj, raped and subsequently killed a 7-year old girl. Both the accused Shukur Ali and the victim deceased girl were children as per the then Children Act of 1974 (that has been revised in 2013). On 12 July 2001, the trial-Tribunal established under the Act of 1995 found Shukur Ali guilty under sections 6(2) and 6(4) of the Act of 1995 for the offence of 'murder after rape', and sentenced him with death penalty. Later, on appeal filed by Shukur Ali, both the High Court Division and the Appellate Division of the Supreme Court upheld the judgment of the trial-Tribunal.

In 2005, a renowned human rights organisation BLAST filed a writ petition (see, BLAST and another v Bangladesh and others, Writ Petition No. 8283 of 2005) challenging Shukur Ali's sentence and constitutionality of section 6(2) of the Act of 1995. The High Court Division delivered its judgment on 2 March 2010, in which it declared section 6(2) unconstitutional on the ground that the provision of awarding mandatory death penalty curtails the discretionary power of the Court. By time, this Act of 1995 was also repealed in 2000.

However, the High Court Division upheld the verdict of the trial-Tribunal and stayed the execution of Shukur Ali's death penalty until an appeal in the Appellate Division gets disposed of. In this regard, the Appellate Division of the Supreme Court on 5 May 2015 decided that the offenders could be awarded with capital punishment or life term imprisonment with a fine of maximum one lakh Taka for killing the victim girl after rape, by abandoning the provision of mandatory death sentence for the offence under the Act of 1995.

On 3 August 2015, the Appellate Division in deciding on a review petition commuted the death penalty of Shukur Ali by awarding him with life term imprisonment. A four-member bench of the Appellate Division headed by Honourable Chief Justice Mr. Surendra Kumar Sinha issued the order after disposing of a petition filed by Shukur Ali seeking review of his death penalty.

The Supreme Court of Bangladesh has declared mandatory death penalty unconstitutional under the Act of 1995. However, the Court has now the discretion to award the offender with death sentence or life term imprisonment – under the Act of 2000 – depending on the gravity of the offence.

THE WRITER IS A LECTURER OF LAW, DEPARTMENT OF LAW & JUSTICE, SOUTHEAST UNIVERSITY.