Laws, Special Laws and Effects

- Madam Justice Kashefa Hussain

Law - Dictionary Series

Published On - March 7, 2018 [Vol. 8, Jan - Jun, 2018]

The certitude that Laws and the various boughs, limbs and offshoots flowing from it are created and enacted, for the benefit of man and society at large and no vice versa corroboration is needed. With the evolution of human society, each society grew and evolved its own laws & rules in keeping with the customs, conventions, bias and prejudices of a particular society. Religion undoubtedly played, and till date performs, a major role in the making of laws in many societies.

The history of the laws of Bangladesh are no exception. Although most of our statutory laws are a continuation evolving from the colonial era , yet many new laws were enacted from time to time to accommodate the contemporaneous scenarios of an ever changing society , not to speak of the personal laws relating to marriage , inheritance etc which are essentially guided by the religion of the individual .

There is no denying that these laws have for the major part evolved proving to be beneficial towards the interest of the citizens including all others subject to such. But yet unfortunately enough, in many instances several of the laws reigning over our statutory regime have contrarily proved to be stringent and indifferent towards the interest of the citizen and the common man.

Some of the statutory laws particularly in the garb of “special” laws conversely timed out to be almost inimical and hostile to the ordinary citizens in general and to the individual in particular.

There are numerous examples of some of the rigidly stringent enactments which often fail to ensure proper justice and fairness in judicial proceedings. Moreover in all practicalities some of the special laws enacted often have discriminatory effects leading to lack of fairness, failing to ensure “Justice” within its proper definition. Judges are bound by the laws and the duty of judges are to interpret the laws, and at the most develop them. But enacting the laws , rules , whatsoever are the duty of the legislators and to those to whom the task of formulating laws are often delegated to.

While deciding a case, sometimes it can be quite frustrating for judges when faced with a provision of a statute or rules, by rules etc which are either inadequate or discriminatory in themselves, leaving narrow scope to ensure justice to the common citizen or any other person subject to the said laws.

The effect of a few of the laws enacted as “Special Law” have sometimes proved to be discriminatory and draconian on the face of it.  Instances of such statutory provisions can be found in the Ortho Rin Ain of 1991. This enactment is by its very language a partial, discriminating law, being preferential to the Banks and the other financial institutions within its purview. At the onset, the law provides that the bank/ financial institution can file a case against any person who allegedly owes money to it, but not vice versa.

The procedure of recovery of loans from the ” judgment debtor is harsh and inequitable to say the least . Moreover the Ortho Rin Ain provides little scope to ensure the transparency of the banks in its dealings with clients. The law has been designed in a manner which is expressly favourable towards banks/financial institutions.

The Courts even if aware of the discriminatory attitude of the law cannot but only interpret the law as it is and decide the case likewise.

Section 34 of the Ortho Rin Ain is a clear specimen of a draconian provision in the garb of “Special Law”. It is the provision empowering any Ortho Rin Adalat to pass an order for civil confinement / prison of the judgment debtor on the prayer of the decree holder (bank) in the event of nonpayment of the decretal amount .This particular provision itself can lead the bank to misusing or abusing the option. True, provision of civil prison is there in the Code of Civil Procedure too. But CPC being a part of the general law, while interpreting it, the courts have the discretion to balance it with equity. But unfortunately, so far as Special Laws are concerned the courts are bound to a strict interpretation of it, leaving little or no room for equitable considerations. In society, though not in all cases, sometimes the loanee is unable to pay off a mortgage or loan or a decretal amount due to compelling circumstances beyond his control. The civil courts often recognise such exigencies a person may be faced with (pursuant to evidential support) and can arrive at an equitable finding striking a proportionate balance between Justice and equity tempered with compassion. Such equity or compassion is next to impossible while sitting as Justice in an Ortho Rin case or similar special laws. Although the Ortho Rin Ain is of civil nature and in the absence of specific provisions , the provisions of the CPC are applicable , but , for the provisions specifically provided for, the only option is to follow the “special” provisions of the Ain causing discrimination and partiality towards the banks or any financial institutions, often causing misery to the loanee/judgment debtor.

Another example of the propensity of “special” laws leaning more towards benefits of banks lacking transparency in procedural laws finds expression in Section 138 of the Negotiable Instruments Act [xxvi of 1881]. The procedure laid down in Section 138 (1) (a) (b) (c) categorically states the rigorous and inflexible procedure followed up by a “notice” to the drawer of a dishonored cheque leading to the harsh consequence of “rigorous imprisonment for a term of one year or with fine or with both” on the event of failure to pay within 30 days of receipt of the notice _ The language of Section 138 of NI Act , in particular the provision of “rigorous imprisonment” denotes the event of cheque dishonor as a criminal offence , but the Act has however not balanced the rigorous provision with adequate rules and procedures providing for transparency of the bank in its dealings with the deposits , accounts etc of any account holder who might have accounts/deposits with any bank. These incidents of the laws are threatened with the serious imbalance between the criminal sanctions provided for in Section 138 on one hand and the significant absence of rules providing for transparency and accountability of the banks towards the public and the judiciary while dealing with a case under the provisions of the Act.

Needless to state that such discriminating provisions, lacunas and inadequacy may end up causing severe imbalance and disharmony both from a societal perspective and from commercial aspects. Such discriminatory laws are not desirable and the apprehension lies that they may lead to social and economic disharmony.

Anyone conversant with the Income Tax Act 1984 cannot overlook some of the harsh provisions of the Ordinance which prima facie appear discriminatory in approach, conflictive and inconsistent with the fundamental rights guaranteed under our Constitution. The glaring example of such inconsistency and conflict with the constitution is particularly Section 117 of the Ordinance. The provisions of this section expressly empower an income tax authority to enter the premises of any person, including the residence of any person, on the ground that the concerned authorities have “reason to believe” that any person, subject to tax is somehow is in possession of money, documents etc and which that person is not accounting for to evade taxation. Clothing a concerned income tax official with such sweeping power to enter upon a person’s private premises relying on “reason to believe” can be a dangerous precedent violating the right to privacy including safety and security. Section 117 is directly conflictive with Article 43 (a) of the Constitution which guarantees protection to “be secured in a person ‘s home against entry , search and seizure”  Though the Article qualifies such protection subject to “conditions”  imposed by law,  yet only ” reason to believe “hardly denotes or ensure much transparency or clarity in the whole exercise of power to enter a person ‘s private premises on the pretext of having “reason to believe” only and may result in violation of fundamental rights guaranteed under the Constitution.

Extending these thoughts to personal laws, for instance, The Family Courts Act 1885 consist of serious lacunas and disabling provisions which should be addressed by legislators to ensure equality and harmony in procedural law. Section 20 of this Ordinance has proved to be a disabling section debarring the applicability of the Evidence Act 1872 and saving Sections 10 and 11, stating that no other provisions of the Code of Civil Procedure 1908 shall apply in proceedings before a Family Court. Proceedings in a Family Court are essentially civil in nature, but yet, the disabling Section 20 has lead to unequal treatment between a family court proceeding and in a proceeding under the Code. Because of the disabling Section 20, one of the consequences of the disabling provision is the unavailability of the scope to amend a plaint in a Family Court proceeding. Amendment of plaint is available Under Order 6 Rule 17 of the CPC applicable to Suits and proceedings of civil nature. It is to say the least, considerably frustrating to find that there is no scope to amend a plaint in a proceeding in a Family Court. The disability created by Section 20 is by now settled by decisions including that of our Appellate Division, reported in 1BLC AD page 24 in the case of Md Azad Alam vs Jainab Khatun where it was held that, “in view of the bar of Section 20 of the Family Courts Ordinance, the plaint cannot be amended”.

This disability is much to the detriment of the plaintiff in a Suit before a Family Court, given that a situation in all probabilities may arise where there could even be an arithmetical or inadvertent mistake, not due to any fault of the plaintiff and which, because of the disabling Section 20, the plaint cannot be amended. It is to be noted that a large number of these Suits are tiled for dower, maintenance, maintenance of children etc, where the plaintiff is the wife. This indifference of the law apart from unequal treatment among Suits of similar nature also works against the material interests of the plaintiff –wife, depriving her of the accurate amount of money and / or economic and /or other material benefits that she may be entitled to in accordance with law.

Upon research and scrutiny, several other lacunas, inadequacy and discrimination may be divulged, but an exhaustive list of which is difficult to complete. It is desirable for the larger interest of all that the legislators and others to whom the task of making laws and rules are often delegated to, should address these lacunas, inadequacy and discrimination in the “special” provisions of laws discussed here including lacunas and discrimination that may exist in any other enactment. Amendments, changes and supplements in several laws are imperative for ensuing parity, equal treatment, good governance and Justice. And it is hoped that the legislators will not remain indifferent to their task.

About The Writer

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Madam Justice Kashefa Hussain

High Court Division, Supreme Court of Bangladesh.

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