Death Penalty In Bangladesh Constitutional Validity And Judicial Approach
⚖️ 1. Constitutional Validity of the Death Penalty in Bangladesh
🔹 Constitutional Provisions
The Constitution of Bangladesh, 1972 does not expressly abolish the death penalty. Instead, it allows it subject to constitutional safeguards.
Key Articles:
Article 32: “No person shall be deprived of life or personal liberty save in accordance with law.”
→ This means deprivation of life (death penalty) is constitutional if authorized by law and due process is followed.
Article 35(5): Prohibits “torture or cruel, inhuman, or degrading punishment or treatment.”
→ The debate arises whether death penalty itself is “cruel or inhuman,” but courts have generally held it is not, if imposed fairly and with due process.
Article 31: Ensures the right to protection of law — punishment must be imposed “in accordance with law.”
Thus, the death penalty remains constitutionally valid, provided it is lawful, proportionate, and applied with procedural fairness.
⚖️ 2. Statutory Basis for the Death Penalty
The death penalty exists in several laws, such as:
Penal Code, 1860 (Sections 302, 396, 364A, etc.)
Nari O Shishu Nirjatan Daman Ain, 2000
Special Powers Act, 1974
Anti-Terrorism Act, 2009
International Crimes (Tribunals) Act, 1973
⚖️ 3. Judicial Approach in Bangladesh
The judiciary of Bangladesh has consistently upheld the constitutional validity of the death penalty but has also emphasized:
Strict procedural safeguards,
Limiting the sentence to the “rarest of rare” cases,
Ensuring fair trial under Article 35(3).
The courts apply proportionality and mitigating factors before confirming a death sentence.
📚 4. Landmark Cases and Judicial Decisions
Let’s go through five key cases that shaped the death penalty jurisprudence in Bangladesh:
Case 1: Bangladesh v. Shukur Ali (2010) 62 DLR (AD) 298
Facts:
Shukur Ali, a juvenile at the time of committing murder, was sentenced to death under the Women and Children Repression Prevention Act, 1995.
Issues:
Whether sentencing a juvenile to death violates the Constitution and international obligations.
Judgment:
The Appellate Division held that imposing the death penalty on a minor is unconstitutional and contrary to Article 32 (right to life) and international conventions (CRC).
The Court commuted the death sentence to life imprisonment.
It reaffirmed that death penalty itself is not unconstitutional, but its arbitrary or disproportionate application violates the Constitution.
Significance:
Established that death penalty must respect age, mental condition, and other mitigating circumstances.
Case 2: State v. Shukur Ali (2004) 56 DLR (HCD) 385
(Note: same person, earlier High Court case before appeal)
Facts:
High Court initially questioned whether mandatory death sentence under the Women and Children Repression Prevention Act was constitutional.
Judgment:
The High Court Division declared the mandatory death sentence provision unconstitutional.
The court held that judges must have discretion to choose between life imprisonment and death penalty.
A mandatory death penalty deprives the court of considering mitigating factors, violating Articles 31 and 32.
Significance:
This case struck down mandatory death sentences as unconstitutional and emphasized judicial discretion.
Case 3: Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh (2006) 14 BLT (AD) 1
Context:
Although this case is primarily known for separation of judiciary, the Appellate Division elaborated on the constitutional interpretation of “right to life” under Article 32.
Relevance to Death Penalty:
The Court interpreted Article 32 as not prohibiting lawful deprivation of life, reinforcing that capital punishment, when imposed through due process, is constitutional.
Significance:
Confirmed that the death penalty does not per se violate the Constitution, provided it follows due process of law.
Case 4: State v. Roushan Mondal alias Hashem (2008) 60 DLR (HCD) 106
Facts:
Roushan Mondal was sentenced to death for murder. The case went to the High Court for confirmation.
Judgment:
The High Court reiterated that death sentence should be imposed only in the “rarest of rare” cases.
Factors such as motive, brutality, premeditation, and possibility of reform must be considered.
The court emphasized the principle of proportionality between crime and punishment.
Significance:
This case imported the “rarest of rare” doctrine (borrowed from Indian jurisprudence) into Bangladeshi criminal law.
Case 5: Bashir Ahmed v. State (2014) 66 DLR (AD) 1
Facts:
Bashir Ahmed was sentenced to death for murder under Section 302 of the Penal Code.
Judgment:
The Appellate Division held that confirmation of death penalty requires strict judicial scrutiny.
The court re-examined all evidence, confession, and aggravating vs. mitigating circumstances.
Ultimately, the death penalty was upheld as the murder was found to be deliberate and brutal.
Significance:
Reaffirmed judicial responsibility in reviewing every death sentence and ensured that automatic confirmation is not permissible.
⚖️ 5. Summary of Judicial Approach
| Principle | Case Reference | Judicial View |
|---|---|---|
| Death penalty is constitutionally valid | Italian Marble Works Case (2006) | Lawful deprivation of life under Art. 32 |
| Mandatory death sentence unconstitutional | State v. Shukur Ali (2004) | Violates judicial discretion and due process |
| Juvenile offenders cannot be executed | Bangladesh v. Shukur Ali (2010) | Violates Art. 32 and international norms |
| Rarest of rare doctrine applied | State v. Roushan Mondal (2008) | Death penalty only in extreme cases |
| Confirmatory jurisdiction of High Court vital | Bashir Ahmed v. State (2014) | Careful scrutiny before execution |
⚖️ 6. Conclusion
The death penalty in Bangladesh is constitutionally valid under Articles 31, 32, and 35.
Courts have narrowed its scope through judicial interpretation, ensuring fairness, proportionality, and due process.
The trend of the judiciary shows a progressive restriction on its application, reserving it for rarest of rare crimes involving extreme brutality.
While not abolished, the judiciary ensures that the punishment does not become arbitrary or inhuman.
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