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Evidence Act

Humiliating provision for women scrapped

Published : 04 Nov 2022 09:42 PM

Rights activists and legal experts had long been demanding removal of some controversial provisions, including the provision that allows questioning the character of rape victims in the court, from the Evidence Act. 

The 150-year-old law that was enacted during the British colonial period exists with the controversial provision of humiliating women till the modern era.

Section 146(3) of the ‘Evidence Act, 1872’ allows questions to be raised about the character of witnesses, while Section 155(4) allows the defence counsel in a rape case to show that the victim was of generally immoral character in order to impeach her creditworthiness in a court. 

At last, the law has been amended to remove the controversial provisions. The much talked about ‘Evidence Act (Amendment) Bill, 2022’ was passed unanimously in the Parliament on Thursday in a bid to prevent lawyers from questioning rape victim’s character during cross-examination and also to make digital evidence admissible in courts.

The fresh law said that in a trial for an offence of rape or attempt to rape, no questions can be asked in the cross-examination regarding the victim’s character or previous sexual encounters.

It also mentioned that such questions can only be asked with the permission of the court, and only if it is necessary in the interest of justice. 

The passage of this amendment will repeal the existing section 146(3) and 155(4) of the Evidence Act, 1872. 

Section 146(3) of the old law says, “When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend – to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.”

Section 155(4) says, “When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.”

Law Minister Anisul Huq placed the bill in the Parliament, which was passed unanimously by a voice vote.

Opposition BNP and Jatiya Party MPs thanked the government for placing the bill, saying that through its passage, the provision so humiliating for women in the 150-year old law has been repealed.

Terming the bill historic and time befitting, the opposition MPs also said this long-standing demand of rights activists has finally been fulfilled.

 While placing the bill in the House, Anisul Huq said that there has been a trend of raising obnoxious questions about a victim’s character. Now, no such question can be asked without the court’s permission.

Rights activists and legal experts have also welcomed the move as the character of sexual violence victims can no longer be brought into question and digital evidence can be produced in courts.

They said that the amended law will help the rape survivors who are routinely blamed and shamed in courts about their character, social class, attire, past sexual history, and lifestyle.

According to the proposed law, digital record or electronic record means any record or information generated, prepared, sent, received or stored in magnetic, electro-magnetic, optical or micro films, computer memory, computer-generated microfiche including audio, video, DVD, CCTV footage, drone data and records from cell phone, hardware, software or any other digital device as defined in Digital Security Act, 2018.

After the law comes into effect following President’s endorsement, there will be an opportunity to take pictures, videos and audio recordings captured through digital devices as evidence in any case. 

Five examples given in Section-3 of Evidence Act, 1872 as ‘documents’ don’t include the current digital cameras, video, audio, or any other visual records held on mobile phone sets.

No direct evidence is available in many incidents that include crimes like killing which might have occurred in a remote area. CCTV camera footage and videos captured on mobile phone sets can play an important role as evidence in such cases.

Since the use of electronic devices as evidence is not mentioned in the five documents, people seeking justice are being deprived of justice during the trial. 

The law doesn’t guarantee the safety of witnesses. Prosecution fails to produce witnesses in the court in many sensational cases due to lack of proper security. Witnesses receive threats many times. As a result, they don’t want to testify against influential people. So, it is not possible to prove the allegations in many criminal cases in absence of witnesses for which sometimes the real accused are acquitted. 

Against this backdrop, digital evidence is very important now to ensure speedy trial and justice.

Earlier, some controversial provisions of the ‘Evidence Act, 1872’ were challenged in the High Court. 

On November 14 in 2021, some rights platforms-- Bangladesh Legal Aid and Services Trust, Ain o Salish Kendra (ASK) and Naripokkho-- filed a writ petition in this regard. The writ petition remains pending for hearing.

On November 16 in 2021, an HC bench wanted to know what steps the government has taken to repeal Section 155 (4) of the ‘Evidence Act, 1872’.

Earlier on August 28 in 2019, the special HC bench of Justice Md Shawkat Hossain, Justice Md Ruhul Quddus and Justice ASM Abdul Mobin in observation in a verdict said, the Evidence Act should be made up-to-date or a new law should be enacted to deal with the technological developments as well as electronic records or documents. This is a demand of time after unimaginable development of Information and Communication Technology and its use in commission of various offences. 

The-then Chief Justice Syed Mahmud Hossain in 2020 had said that the century-old Evidence Act of 1872 needs to be updated by incorporating the provisions for using digital evidence. The law plays a pivotal role in the effective functioning of the judicial system, and victory or defeat in a case depends mostly on evidential acumen or the lack of it. The Evidence Act is a great piece of law, but it needs to be updated to meet the challenges of 21st century when technology is changing rapidly, he had added.