Publicly Shaming is one of the oldest tactics used for dispersing the crowd. From the very beginning of British Raj in this Subcontinent, the police, public officials and other law enforcing agencies are using this method for punishing the mass people. Along with public shaming, brutal force like indiscriminate baton charge, whipping, beating, lashing are also used widely in the countries like Bangladesh, India & Pakistan, the countries which got their independence from the British after being dominated for about 200 years.
These heinous, cruel, inhuman forms of punishment thus was not included in The Penal Code, 1860. Penal Servitude e.g. imprisonment with hard labour had been in the section 53 of the Code as a form of punishment but that has been also repealed in 1949. But in the section 2 of The Whipping Act. 1990, whipping has also been added as another form of punishment in addition to punishments mentioned in the section 53 of The Penal Code, 1860. Though the extent of this act is limited to some offences but still our law enforcing agencies are using this form of punishment along with the other methods which they are not empowered to.
Earlier, government had announced general holiday, shutting down all the educational institutions, limited public transport and closing public and private sectors except emergency services in order to prevent the spread of the deadly virus Covid-19. The government also deployed armed forces on the street to assist civil administration maintaining social distance countrywide.
But a lot of reports have been published alleging that the armed law enforcing agencies are using unlawful forces like torturing, publicly shaming the citizens by different ways, lashing and other humiliating, degrading punishment. During this lockdown in India, a 32 year old man who was out to buy milk dies after beaten up by police in the streets. In this 20th century, death by these inhuman, cruel treatment cannot be expected at all from the countries recognizing certain fundamental rights.
The Constitution of the People’s Republic of Bangladesh in the part 3 guarantees certain fundamental rights for her people. Article 35 clause 5 states that no person shall be subjected to torture, cruel, inhuman or degrading punishment or treatment. This is one of the core fundamental rights and this right of protection doesn’t curtail automatically through proclamation of emergency as this right has not been included in the several rights mentioned in Article 141B of the Constitution.
The Human Rights Act, 1998 of the UK guarantees her people to certain fundamental rights which also includes freedom from torture and inhuman or degrading punishments. According to the Article 3 of The Human Rights Act, 1998, torture occurs when someone deliberately causes very serious and cruel physical or mental suffering to another person. Inhuman treatment or punishment is treatment which causes intense physical or mental suffering including serious physical assault, cruel or barbaric detention, threatening to torture someone, if the threat is real and immediate. This article also states that, degrading treatment means treatment that is extremely humiliating and undignified.
Article 5 of the Universal Declaration of Human Rights 1948 also signifies that no individual shall be subjected to torture or cruel, inhuman, degrading treatment or punishments. Article 7 of the International Covenant on Civil and Political Rights, 1966 also declares the same that there shall be no torture or cruel treatment to any individual.
One of the most significant international human rights treaties exclusively dealing to prevent torture and other acts of cruelty is the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment adopted by the General Assembly of the United Nations in the year 1984. In Article 2 of the convention it has directed the states to take effective measures to prevent acts of torture under the states jurisdiction. Article 4 has clearly stated that every state party should ensure that all forms of torture are offences under her criminal law. Bangladesh is one of the signatories of the convention and has ratified it in 1988. Torture even for extorting confession is declared to be an offence under the section 330 of The Penal Code, 1860. This emphasizes that through any means no torture can be inflicted upon any person illegally.
A lot of declarations have been made regarding this basic human right. Almost all the nations of the world has recognised it as one of the fundamental right. We should also scrutinise what the executive governing provisions provides about their duties towards the mass people as most of the allegations are against them.
Article 21 clause 2 of the Constitution states that every person in the service of the Republic has a duty to strive at all times to serve the people. Schedule 3 of The Code of Criminal Procedure, 1898 gives a lot of powers to the Executive Magistrate appointed under Section-10 of the Code. None of these provisions empowers them to publicly shame the people through any means.
Section 89 of The Police Regulations Bengal has strictly stated that the officers shouldn’t carry any canes or sticks while on duty except lathis. Moreover, the section prohibits carrying private fire arms for the officers under the rank odbSub-inspector.
Many officers may want to take defence of superior orders in case of torture. But Article 2(3) of the Convention Against Torture and other Cruel Inhuman or Degrading Treatment or Punishment stated that ‘Superior Orders’ cannot be justification of torture.
Human Rights Standards and Practice for the Police has stated about using force that, Non violent means are to be attempted first. Force can be used for law enforcement purposes when strictly necessary. It has also stated that the foece has to be proportional to lawful objectives and no excuse or exception shall be allowed for unlawful use of force.
Despite all of these legal provisions the incidents of cruel, inhuman act is not declining. Recently, report has been published in national dailies that a public servant while exercising power of the Executive Magistrate, publicly humiliated 3 senior citizens only for not wearing masks. There has been also incident of another public servant ordering his personal assistant to beat people with sticks for been on the roads during lockdown. Everyday the newspapers are publishing news about the police using unreasonable brutal force against the public.
When one of the core fundamental rights of the people is being violated at a large scale, the prime remedy open to the people for infringement of their fundamental right is to resort to the higher judiciary. Under Article 44 of the Constitution, any aggrieved person can move to the High Court division filing a writ petition in accordance with Article 102(1) of the Constitution for the enforcement of fundamental right.
The High Court division pursuant to the writ filled may make an order directing any person, public officials or local authority to refrain from doing or to-do what he is required by law to do. A single bar against this enforcement is, as per Article 141C the president may keep suspend the right to move the High Court division while the proclamation of emergency is in operation. But as soon as the proclamation of emergency ceases to operation the enforcement of fundamental right is retained to the people.
The government servants found guilty of such offences may be punished lightly or severely by the authority like suspension, demotion, compulsory retirement as per the section 32 of the ‘Civil Service Act, 2018’. Also under the section 12 of the DMP Ordinance 1976, the Police Commissioner may dismiss, remove, forfeit certain benefits of the subordinate officers if they are found guilty of offences like misconduct, negligence of duty, breach of discipline etc.
The government has tried a lot to prevent the spread of the deadly virus Covid-19. Law enforcing agencies are meant to keep the discipline in the country throughout that time and all the other times. If there is any breach of orders by the citizens, there exists other options to prevent the people. Causing severe damage to the Human Dignity is not a way to maintain discipline in the society. In this regard, the law enforcing agencies should be more rational and reasonable in applying force to maintain discipline and social distance in the society.