BLAST and Others Vs. Bangladesh and Others [2015] 67 DLR (AD) 185

Facts of the Case

The constitutionality of section 6(2) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, (Ain ⅩⅤⅡ of 1995) and section 34 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (Ain Ⅷ of 2000) has been called in question by the appellant Md. Sukur Ali, a death row convict, who has been convicted by the Nari-O-Shishu Nirjatan Bishesh Adalat, Manikgonj for sexually assaulting to death and the High Court Division also confirmed the death sentence and this Division also affirmed the sentence. A review petition was also filed before this Division. This review petition was also dismissed. Thereafter the appellant along with another moved the High Court Division challenging the mandatory death penalty provided in section 6(2) of the Ain as ultra vires the Constitution.

Issues

Whether section 6(2) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and section 34 of the Nari-O-Shishu Nirjatan Daman Ain,2000 are ultra vires the Constitution.

Decision

The High Court Division upon hearing the parties though declared section 6(2) of the Ain, 1995 ultra vires the Constitution, refrained from declaring section 34 of the of 2000 unconstitutional and also did not declare the sentence of the condemned prisoner to be unlawful. But the Appellate Division of the Supreme Court declared that —

    ü  Sub-sections (2) and (4) of section 6 of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, Sub-sections (2) and (3) of section 34  Nari-O-Shishu Nirjatan Daman Ain, 2000 and section 303 are declared ultra vires the Constitution.

    ü  Despite the repeal of the Ain of 1995, the pending cases and pending appeals in respect of those offences shall be tried and heard in accordance with the provisions of the Ain of 1995, but the sentences prescribed in respect of similar nature of offences in the Ain of 2000 shall be applicable.

    ü  There shall be no mandatory sentence of death in respect of an offence of murder committed by an offender who is under is sentence of life imprisonment.

    ü  The appellant Md. Shukur Ali brutally killed the victim after rape, and there is no ground to commute the sentence and accordingly, his sentence was confirmed.

Observation

It was observed that the provision of mandatory death penalty is ultra-vires in the Constitution, inasmuch as, when the legislature prescribes any punishment as mandatory, the hands of the court become a simple rubber stamp of the legislature, and that this certainly discriminates and prejudices the court’s ability to adjudicate properly taking into account all facts and circumstances of the case. It violates due process of law and the constitutional rights of the people. A provision of law that deprives the court to use of its beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore without regard to the gravity of the offence cannot but be regarded as harsh, unfair and oppressive. The legislature cannot make relevant circumstances irrelevant, or deprive the court of its legitimate jurisdiction to exercise its discretion not to impose the death sentence in appropriate cases. Determination of appropriate measures of punishment is judicial and not executive functions. The court will enunciate the relevant facts to be considered and the weight to be given to them having regard to the situation of the case. Therefore there is no hesitation in holding the view that these provisions are against the fundamental tenets of the Constitution, and therefore, ultra vires the Constitution and accordingly, they are declared void.

Cases referred

      Ø  B.G Goswami vs Delhi administration (1974) 3 SCC 85

      Ø  Maneka Gandhi vs. Union of India (1978) AIR  SC 597

      Ø  Fox vs. The Queen (2002) 2 AC 284

      Written By---

      Md Ismail Hossain

      Department of Land Management and Law

      Jagannath University, Dhaka