The brutal sexual assault carried out on female visitors at Teacher Student Centre (TSC) of University of Dhaka on the occasion of Pahela Baishakh (the first day of Bengali year) has left all conscious people shocked and agitated. This was only one of the multiple incidents of sexual harassment reported on that festival day and we have been witnessing a sharp increase in the number of similar crimes for last two decades. It is now pertinent to figure out, why, despite having a number of laws, policies and directives of the judicial authorities, women are still falling victim to such harassment on a regular basis.

Back in 2009, the people of Bangladesh experienced mass protests and demonstrations that took place against perpetrators in the wake of ‘eve-teasing’ phenomenon. Spontaneous efforts of civil society members along with judicial activism resulted in two separate rulings of the High Court Division. The momentum got a positive pulse when the Government took initiatives in the light of the directions by creating few separate cells coupled with empowering mobile court magistrates to punish the accused of a sexual harassment incident.

Unfortunately, that movement slowly came to a halt with the passage of time straying the implementations halfway and, eventually, we forgot what those directions were and what directions are yet to be implemented for ensuring a women-friendly society. It is, in fact, the continuation of our legacy of fierce reacting when an incident takes place and ignoring that one too, when another issue emerges.

Before analyzing the implementation status of the existing legislation concerning sexual harassment, it is necessary to examine the content and context of these legal mechanisms.

Tracing back almost two centuries of our legal system’s history, we find Section 509 of Penal Code, 1860 that penalizes the ‘insult of the modesty of a woman through uttering words, making any sounds of gesture or exhibiting any object, or intruding upon the privacy of such woman’ with a punishment of not more than 1 year. The inadequacy of this provision was barely felt and challenged in the orthodox society until the pattern and curse of sexual violence transforms differently in the public and private sphere of our modern times.

Later in the independent Bangladesh, our constitution makers attempted to bring women in equal footing with men through a number of  provisions in the Constitution. They pledged to ensure participation of women in every sphere of life (Article 19), prohibit discrimination on the ground of sex (Article 28), establish a free and compulsory education for all (Article 17) and so on. Hence, the situation seemed to be more women friendly than ever. For responding to the immediate necessity, however, Dhaka Metropolitan Police Ordinance, 1976 (Sections 7576), Oppression of Women and Children (Special provisions) Act, 1995 (Repealed in 2000) and Prevention of Oppression of Women and Children Act, 2000 (Section-10) and an amendment in 2003 of that very law categorically contributed to combating the situation of sexual harassment. Significantly, none of the law has ever attempted to define ‘sexual harassment’ as a crime and still there exists the trend. This urges us to examine if there is any imbalance between the steps of empowering women and the existing legal protection regime.

The reality is, when women are advancing for unprecedented development in almost all sectors, they are facing challenges which are also ‘unprecedented’ in nature. The positive measures, including their working opportunities coupled with their subsidized education have been vehemently jeopardized because of widespread maltreatment and sexual harassment against them in the name of ‘eve-teasing’, stalking, rape and other sexual violence both on physique and psyche of women.

Boishakh-Assault-DU
Heinous assault on number of women was carried out by a group of attackers on April 14, 2015, the Bangla new year’s day. Photo Credit: Dhaka Tribune

In order to effectively deal with the issue, we have to perceive that a woman’s living style and her freedom of choices cannot be taken as a justification to commit and allow sexual violence against them. In addition, it is important to figure out and reconsider the inner factors that are rooted in our attitude and behavior towards women and femininity. Only such an investigation can help us perceive how the attitude of our lawmakers tends to portray women as property more than an entity of equal status in laws. Needless to say, the similar attitude that is crafted in most of our family teachings, social norms and educational system is what contributes to strengthen patriarchal society even today.

The High Court Division in the case of BNWLA vs Bangladesh reported in 31 BLD (2011) 324 proposed some ways of addressing this issue of sexual harassment. Firstly, their lordships remarked that legislature should formulate laws in order to create ‘deterrence’; and secondly, the Court suggested the inclusion of the definition of ‘sexual harassment’ in the 2000 Act to specify the ambit of it so that the very provisions can be reshaped to be more about preventive than retributive. The Court apprehended the misuse and abuse of it being very vague and subjective in nature.

In response to the Court’s interim rule during the hearing of the case, the Ministry of Law, Justice and Parliamentary Affairs informed the court that there is an amendment under a process which will serve that purpose. But the Ministry could not complete its process even in last 4 years by inserting Section 10(a) followed by Section 10 of Prevention of Oppression of Women and Children Act, 2000. However, this section penalizes touching the body of women for gratification of sexual desire with a punishment of 3-10 years of imprisonment. Consequently, without a proper legal definition of ‘sexual harassment’, the law creates no deterrence let alone being preventive to address the issue and the recent incidents are enough to corroborate this claim. Even the inclusion of Section 509 in the schedule of Mobile Court Act, 2009 that allowed magistrates to take immediate steps on the spot could not prevent some unwanted menaces as it is not always desirable to have magistrates everywhere.

However, in midst of this challenge and limitations, in the case of Ms. Salma Ali (BNWLA) v Bangladesh & Others reported in 14 BLC (2009) HCD 694, the Court tried to innovate a way out by engaging the society to combat sexual harassment. The Court emphasized on building a social safety net and directed to create local committees consisting of local inhabitants in the concerned workplaces. However, it did not provide a direction to formulate committees outside workplaces.

Apart from this measure, the High Court Division  in BNWLA (2011) case came up with a number of supplemental arrangements, amongst others, to create a separate cell or unit in every police station for tackling this issue, to monitor the situation with the help of the ‘District Law and Order Committee’ and local people, and to broadcast this heinous act by the mass media.

The court suggested the strengthening of victim and witness protection system along with directing the government to enact laws to ensure admissibility of audio-visual evidences. It also recommended that such evidences should be regarded as the sole evidence for conviction in this type of crimes (Direction No.09 in the BNWLA case of 2011).

At the backdrop of latest Pahela Baishakh incidents, we find the relevance and utility of this direction when a group of people tries to conceal the real incidences despite the existence of sufficient audio-visual evidence, which were later uploaded online as well. We should take the resort of  audio-visual evidences to bring the real perpetrators under the process of law and justice irrespective of their political or ideological backgrounds.

To lessen the rates of sexual harassment, our collective initiative is also required. The Government should implement the Court’s decision and introduce necessary legislative and administrative reforms as soon as possible. Additionally, the Government should fulfill its obligation to international human rights instruments like The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) comprehensively in promoting equality and ratify the optional protocol of CEDAW where there remain some improved mechanisms of individual complaints in the case of non compliance.

These measures are essential to ensure a society where positive attitudes towards women will allow them to participate in every sphere of life. Family has the important duty of teaching a child to respect each human being irrespective of their gender. Our curriculum of all types of education should also be revisited to remove the discrepancies, if any. Only then women of Bangladesh can become properly educated and economically empowered to stand up with rigour and determination for their legal right and safety.

To conclude, every attack on the dignity of women is an attack on the dignity of us all. We cannot make the environment safer overnight, but at least we can think differently to start the journey afresh. Let the task be started by improving our own attitude towards a woman so that she never feels insecure and vulnerable among us.

The author is thankful to the Editorial Team of Dhaka Law Review, for comments and suggestions on an earlier draft of this article.

Citation:

Muhammad Omar Faruque, “Combating Sexual Harassment: A Contextual Analysis of Existing Legal Mechanism” (DHLR Blog, 30 April 2015) http://www.dhakalawreview.org/blog/2015/04/combating-sexual-harassment-830

 

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Comments to: Combating Sexual Harassment: A Contextual Analysis of Existing Legal Mechanism
  • May 1, 2015

    As law students, we all are well apprised of the fact that law always can’t prevent crimes, and criminals usually don’t heed to or bother about punishment. Therefore, I think attitudes or respect of every individual towards human being irrespective of man and woman does really matter to lessen such sort of heinous crimes especially sexual abuse from the society. And we need to concentrate or emphasize on ameliorating our positive attitudes from the very root of the society, not on laws solely. One’s psychology, mentality imagination and thoughts can never be controlled or purified even with the strict enforcement of law.

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