Nari-O-Shishu Nirjatan Daman Ain, 2000

Sections 9(1), 9(4)(ka), 11(ka), and 30 of the Nari-O-Shishu Nirjatan (Daman) Ain, 2000 (as amended in 2003) prescribe the mandatory imposition of either the death penalty or imprisonment for life in certain offences. While the intention of the legislature in enacting such stringent provisions was undoubtedly to deter heinous crimes against women and children, the mandatory nature of these punishments raises profound constitutional and jurisprudential concerns.

At the heart of the issue lies the principle of separation of powers, expressly recognized under Article 22 of the Constitution of Bangladesh. The essence of this principle is that the legislature enacts laws, the executive implements them, and the judiciary interprets and applies them in individual cases. By prescribing a rigid and inflexible sentence that leaves no discretion for judicial assessment, the legislature has effectively encroached upon the judiciary’s constitutional function. This removes the courts’ ability to weigh extenuating or mitigating circumstances, such as the age of the offender, the degree of culpability, the presence of remorse, or other factors that might warrant a lesser sentence.

Such mandatory provisions reduce the judiciary to a mere mechanical instrument of the legislature, compelling judges to impose punishments without the exercise of independent judicial reasoning. In this sense, the judiciary is relegated to the role of a “rubber stamp,” undermining its independence and violating the doctrine of judicial discretion, which is a cornerstone of justice delivery.

Furthermore, this legislative overreach contravenes the doctrine of the basic structure of the Constitution. The basic structure doctrine, though not expressly codified, has been firmly recognized in constitutional jurisprudence as encompassing the rule of law, judicial independence, and separation of powers. By removing judicial discretion in sentencing and dictating mandatory outcomes, the legislature has not only blurred the separation of functions but has also undermined the constitutional guarantee of fair trial and proportionality of punishment.

It is also worth noting that international human rights standards, including jurisprudence under the International Covenant on Civil and Political Rights (ICCPR), discourage the imposition of mandatory death sentences, holding that such penalties violate the right to life and the right to a fair trial. Modern sentencing philosophy emphasizes proportionality, individualization of punishment, and rehabilitation—principles incompatible with rigid mandatory sentencing schemes.

In light of these considerations, the provisions of Sections 9(1), 9(4)(ka), 11(ka), and 30, to the extent that they impose mandatory death or life sentences without scope for judicial discretion, are inconsistent with the constitutional framework of Bangladesh. They undermine both Article 22 and the broader doctrine of basic structure. Therefore, these provisions are liable to be declared ultra vires the Constitution, paving the way for a sentencing framework that is both just and constitutionally sound.