Comparative study of penal provisions of SAARC countries


jivesBy Jivesh Jha–Although the South Asian Association for Regional Corporation (SAARC) member states share similarities in number of things, they continue to have differing penal provisions.

Even as Nepal managed to keep the British rule at arms’ length, the other nations of the globe failed to knock the boundaries of colonial rule and they were made bound to breathe under Britain’s thumb. After extending their colonial rule, the British parliament enacted and formulated laws to govern the Asian region. Keeping in mind the common practices prevalent in these nations, certain modifications were made by the British themselves.

Even after the post-independence, they—India, Pakistan, Bangladesh, & Srilanka–adapted those Colonial legislations instead of enacting new Penal Laws. However, they made certain modifications according to their normative structure in the line with their geographical, religious and customary practices.

After examining various Penal laws of SAARC nations, the author has reached to a conclusion that there appears differences in penal laws despite these countries have a common origin.

For the convenience of study and focusing on the offences which generally take place, the author has tend to categorize the criminal offences into two major sub-heads—offences against human body and offences against property. The former covers a wide range offences which inter alia include murder, hurt, assault, kidnapping, abduction, rape, etc, while the latter’s basic element rests upon dishonesty, which penal Codes of various countries describes the intention of causing wrongful gain to someone or wrongful loss to the other.

In the view of wide range of illegal deprivation of property, the penal Codes describe that theft, extortion, robbery and dacoity, cheating, mischief, criminal breach of trust and among others fall within the ambit of offences against property.

In South Asia, except Nepal, other countries have succeeded enough to draft their penal Codes for stipulating the punishment of criminal offences. However, the ‘General Code’ (Muliki Ain), which is likely to be repealed by Civil and Criminal Code Bill, deals with the criminal and civil offences in Nepal. Meanwhile, as the Indian Penal Code (IPC)-1860 is a colonial legislation; it was applicable to the whole of British India. After independence, the two splinter countries–Pakistan and Bangladesh—adopted the same statute of criminal law but with certain amendments and modifications in names of their Act. Unlike India, the Pakistan renamed it as Pakistan Penal Code (PPC)-1860, and Bangladesh makes it as Bangladesh Penal Code (BPC)-1860. The statute-1860 contains as many as 511 Sections.

As it’s unanimously accepted that crime never pays, the South Asian countries have embodied punishment provisions in their penal Codes to give a legal slap to the offenders in a bid to do justice with the victim.

Though the countries have agreed to live in an umbrella cooperation of SAARC, there leaves differing punishment provisions for the offences of similar nature.

Killing someone regardless of any motive and with an ill-intention is a big crime. In case of intentional murder, the law of Bhutan, Nepal and Srilanka envisions that murderer shall be punished with life-time imprisonment. Noted, these three countries have abolished death penalty. Adding one more feather to the cap of offender, the General Code of Nepal envisages that the murderer shall be awarded with life-time imprisonment along with confiscation of his entire property.

Allowing retributive mode of punishment to prevail, the Afghanistan Penal Codes (APC), which contains 514 Sections, has envisaged that death punishment (Sec. 395, APC) shall be awarded to the murderer. Unlike Afghanistan, the IPC-1860 in their Section of 302 provisions that whosoever commits murder shall be punished with imprisonment for life or death and shall also be liable for fine. The penal provision for murder (Sec. 302, BPC-1860) in Bangladesh stands on similar footing with India.

Exploring injunction of Islam, Penal Code of Pakistan in its Section 302 provides that the punishment for murder, also known as Qatl-i-amd, is governed by three categories of punishment: punished with death, or imprisonment of life, or punished with imprisonment of term which may extend to 25 years. The PPC-1860 also provides that the notion of ‘Qisas’, which means equal retaliation of causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed murder, shall be followed at the instance of the person (victim) claiming ‘Qisas’.

Moving neck-to-neck with Pakistan, the Islamic Republic of Maldives adopts the punishment for murder in the similar breath as of the former.

On the contrary, the rape cases are not only horrifically increasing in South Asia but its gearing pace globally.

The group of sections related to rape, i.e., 376, 376A-376E of IPC-1860, provides that the rapists shall meet the fate of rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life and also liable for fine, or capital punishment—depending on the severity of the case.

Similarly, the BPC-1860 in their Section 376 provides that whoever commits rape shall be punished with imprisonment for life or with imprisonment for term exceeding 10 years.

Likewise, Srilankan Penal Code under Section 364 provides that the rapist shall be punished for rigorous imprisonment for a term of not less than seven years, and not exceeding 20 years and with fine.

However, the penal laws of Bhutan governing the offences of rape find a consonance with its neighboring country Nepal.

The Bhutan Penal Code-2004, which contains 514 Sections, in its Chapter XIV provides that if the rape victim is below 12, if the rape victim is above 12, if the rape victim is pregnant, gang rape of above 12-18 and if it was a gang rape of below 12, the offender shall be punished with imprisonment of a term of 9-13 years, 5-9 years, 3-5 years, 9-13 years and life-imprisonment, respectively.

The General Code of Nepal provides that the offender shall be sent behind the bars for a term of not less than 10 years, extending up to 15 years where the rape victim is a minor girl of below 10. Similarly, imprisonment for a term of 8-12 years if minor girl is above 10 but below 14, imprisonment for 6-10 years where the victim is minor girl of 14 or above but below 16, imprisonment of 5-8 years where the victim is major of 16 or above but below 20, and imprisonment of 5-7 years where the victim is of 20 or above.

In across Nepal, the prudent sections of people have vented ire against the non-stringent mode of punishment for the rape, a heinous nature of crime. Ensuring a wider protection for woman of tender age, “The penal law of Nepal comes down heavily against those offenders committing violence on minor and without any iota of doubt it has succeeded an inch to make sure the wider protection to minor child,” opines Prashant Chauhan, a faculty of Law in Uttarakhand Technical University (UTU), Dehradun.

“The dual approach which categorizes the punishment according to the age of the victim appears to be very unreasonable and also fails to create deterrence in the mind of offender—especially when it comes to learn that the victim is a major.”

Shading light from psycho-legal perspective, Chauhan adds, “With the growing age and maturity, the level of understanding increases. When a woman is aware from the fact of through what pain she has undergone, it’s so natural that it will create a long-lasting imprint on her mind and soul. And, it’s not possible for every individual to fight that or come out of that in a convenient manner amid deep-seated gender bigotry.”

Another faculty of Criminal Law Devika Singh Rana says that the age should not be determining factor for punishment of such kind of heinous offences. “It appears that the Nepali legal system is yet to come down heavily on the rapists who have outraged the modesty of women of major age.” She maintains that “While the state is not being able to ensure wider protection to woman of major age, the offenders are yet to get their fingers burned.”

Showing satisfaction with the view of professors, crime correspondent and defense journalist Kamal Pariyar, who is currently associated with Republica Daily, finds the rape laws of Nepal not that stringent when compared with other countries. “I blame legislature (Government) the most for remaining negligent on this issue. The animosity has been set by the cases where the victims are still knocking the doors of courts and other enforcement agencies for getting justice,” says Pariyar.

In a shocker to the criminal justice system, “We have often seen that the policemen are taking initiatives to settle the rape cases by adjustments. Even the victims are asked to make an adjustment rather than choosing lengthy court procedures.” He further says that the long arm of the law is yet to reprimand the offenders heavily. “Even the police stations are not rape victim friendly. And, the victims are bound to be up in arms.”

When asked whether the eyebrows have been raised against non-stringent penal provisions, he says, “From the streets to the world of internet, we can witness the voices demanding a stringent penal law to deal with offences against women. Sadly enough, these voices are not raised with a heavy hand as even the activists are seasonal. The activists come at forefront to criticize the non-stringent penal provisions only at the time when such cases come into light.”

Nonetheless, though there are more than 60 different laws in force in   Afghanistan containing penal provisions, the Afghan Penal Code provisions that the rapists shall be sentenced to death within a week of the commission of offence brought into look. It is one of the sparkling features of APC-1976. And, it puts the APC-1976 at a different footing than other penal laws in Asian region.

Showing satisfaction on Islamic jurisprudence, the Pakistan brought ‘The Offence of Zina (Enforcement of Hudood) Ordinance, 1979’ to deal with the offence of rapes by repealing Section 376 of PPC-1860.

The Ordinance-1979 provisions that the he or she being guilty of rape shall be stoned to death at a public place; or be punished at a public place with whipping numbering one hundred stripes. In the explanation clause, it’s provided that the presiding officer of the Court must be a Muslim; however, if the accused is non-Muslim, there can be non-Muslim Presiding Officer. Further, Ordinance-1979 provisions that man or woman, who develops courtship or illicit relationship without being married to each other, shall have to meet same fate as of rapists.

The penal provisions of Maldives dealing with rape, extra-marital relationship, or illicit relationship stands on similar footing with Pakistan. The Maldivian law envisages that even a child of seven can be sentenced to death on an intentional heinous nature of crime.

Further, depending on severity of rape case, these Islamic countries have also set out similar punishment– life time imprisonment, death penalty, imprisonment of 10 years extending up to 25 years and also liable to fine.

Expressing a pledge on Islamic Sharia jurisprudence, the anti-terrorism Court of Lahore, Pakistan had ordered the noses and ears of two men cut off after they did the same thing to a young woman whose family spurned one of the men’s marriage proposals. While pronouncing the judgment in 2009, the court said it was within the purview of Islamic laws.

Similarly, in 1987, a Pakistan-based Session Court sentenced a couple–Mohammad Sarwar, 35 and Shahida, 26—to be buried up to their necks and stoned to death in public for committing adultery. Recently, in 2002, as stated earlier, Zafran Bibi was sentenced to death by stoning in North West Frontier province for adultery.

The penal provision for dealing with adultery in Maldives is similar to Pakistan.

However, entire SAARC member states, including Pakistan and Maldives, are signatory to ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ where they have vowed that their country will fully rule out the inhuman treatments.

However, in case of Nepal, if a case filled by aggrieved husband on offence of adultery, the adulterine and the woman involved is punished of imprisonment for a term ranging from one month to two months  and a fine of 1000 to 2000. (Chapter XVIII, Number 2, General Code).

Nonetheless, the IPC-1860 and BPC-1860 in their Section 497 provisions that the adulterine will be punished with imprisonment for a term which may extend to five years, or with fine, or both. Likewise, Afghan law provisions that the adulterine and the woman involved in it shall be sent behind for the bars for a term of 5-15 years. However, ensuring extraordinary protection to women, the Indian law provides an exemption from punishment to a woman found in adultery. Similarly, Bhutan and Srilanka also finds adultery as an offence and stipulates punishment for imprisonment ranging from 1-3 years and extends up to 5 years, respectively.

Though marital rape is subject of discussion, the penal code of Bhutan, Nepal, and Bangladesh provides imprisonment for a term of 1-3 years, 3-6 months, and for a term extend to two years, respectively.

Blowing the wind in contrary gesture, India, Pakistan, Srilanka, Maldives and Afghanistan firmly believe that husband will not be liable for punishment of rape even as he establishes intercourse with his wife without her consent.

At a time when the fetus determination and abortion is taking aerial route, the penal laws have termed such acts and omissions as misdemeanor, allowing simple imprisonment to prevail.

The penal laws of Bangladesh, India, Bhutan, Pakistan and Srilanka provision similar punishment for abortion standing at three years of imprisonment. However, imprisonment of 1-5 years is awarded in Nepal for the same offence. Similarly, Section 402 of Afghan Penal Code provides that imprisonment for a term extending seven years shall be sentenced for the guilty of abortion.

Similarly, in case of grievous hurt, the penal law of Nepal ensures punishment for exceeding 10 years with fine. However, in Maldives, the punishment for the same is imprisonment for a term of 5-10 years, extends to 5 years in Bhutan, extends to 10 years in Srilanka, and for the same offence the imprisonment extends to 10 years in India when Sec 323 along with Sec 324, 325, 326 A, 331, 328 and 333, IPC-1860. More, like India, there leaves similar provision for grievous hurt in Pakistan, Bangladesh and Afghanistan.

Ironically, the Nepali law counts the permanent disfiguration of face or causing mark or brand as a hurt but the same has been widely taken as grievous hurt by IPC-1860. Of eight, any hurt caused which makes a person unable to follow ordinary pursuits for 20 days has been  desig­nated as grievous hurt; however the same notion has not been adopted by Nepali penal provision.

Amid growing intolerance, making a gesture or about to use criminal force (often called Assault) is taking zenith. Though its’ the subject matter of tort, the penal Codes have envisaged criminal punishment, citing the criminality in it. The Maldivian Penal Law envisages minimum of 6 months of imprisonment extending up to 5 years, or/both fine of 5000  for Assault, while the BPC-2004 provides for a term of extending 1-3 years of imprisonment. And, the Srilankan, Indian, Pakistani and Bangladeshi law set aside its punishment as for a term of 3 months of imprisonment or fine. However, the Afghani law ensures 1 years of imprisonment or fine for the same. Even as the Nepal’s General Code provides punishment for battery, it was reluctant to enshrine the punishment for Assault.

On a separate context, the penal provision of India and Pakistan provides that nothing is an offence which is done by a child under seven years of age. However, there appears no absolute rule as regards the age of discretion. It differs from country to country. For instance, the age of complete immunity is 10 years in Bhutan, 8 years in Srilanka, and 9 years in Bangladesh. However, leaving no room for absolute immunity, the penal Codes of Afghanistan and Maldives envisages that half punishment shall be given to minor of below 10 and will be sent to correction house.

The doctrine of absolute immunity is popularly known by legal maxim of ‘doli incapax’.

On the other hand, the offences against property find a prominent place in penal Codes of South Asian countries.

Heralding similar nature of punishment for theft; the IPC-1860, BPC-1860 and PPC-1860 in their common Section 379 provisions that the guilt of theft shall be punished with imprisonment of a term extending three years, or fine, or both. Like India, the Srilankan, Bhutan, and Afghan penal Code also provisions similar punishment for theft. However, the adopting a soft-corner, Maldivian Penal Code provisions for imprisonment of a term ranging from 6 months-2 years for the guilty of theft.

Applying retributive approach, the General Code of Nepal provisions the guilt of theft shall be punished with fine of equal amount in question or be punished with imprisonment for a term of one month, which should not extend 8 years.

Meanwhile, in the case of guilty of criminal misappropriation of property, the penal Code of Bhutan, Srilanka, India, Pakistan, Bangladesh, Afghanistan, and Maldives provisions that the offender shall be booked for imprisonment for a term not extending up to three years, or fine, or both.

With the widening impunity, the kidnapping has become an unbecoming source of minting money.

The IPC-1860 finds a consonance with BPC-1860, PPC-18860 and Srilanka PC-1883 in heralding the punishment for kidnapping. The Codes set aside imprisonment for a term which may extend to 7 years along with fine—for the guilt of kidnapping. However, Afghanistan, Bhutan and Nepal sets out the punishment for the same as imprisonment ranging from 5-15 years, 5-13 years, and 7-15 years, respectively. Presenting differently, the Maldivian law punishes the offender connected with kidnapping in the line with Sharia jurisprudence.

Venting ire on the ill intent of causing loss or damage to other, the penal Codes have introduced the provision of Mischief. In case of India, the IPC-1860 provisions for imprisonment of a term extending three months, or fine, or both in Section 426. In addition to Sec. 426, the IPC-1860 has also envisaged punishment for imprisonment extending to 10 years in Section 436 on the event of mischief caused by fire or explosive substance with intent to destroy houses. However, Pakistan, Srilanka and Bangladesh share a similar story for the punishment of Mischief. Meanwhile, for the same offence, Maldives stipulates punishment of imprisonment for a term extending 6 months coupled with fine. Adopting a stringent move, the BPC-2004 and Afghan penal law provisions for imprisonment of a term not extending 3 years, or fine, or both and imprisonment for a term not extending 7 years, or fine, or both.

Likewise, in case of Forgery, the IPC-1860, PPC-1860, and BPC-1860 provide similar nature of punishment of imprisonment for a term which may extend to 2 years, or fine, or both, Section 465. However, elevating the term of imprisonment, the Srilankan Code introduces punishment for imprisonment for a term which may extend 5 years, or fine, or both under Section 454. Further, the Maldivian law has set out imprisonment for a term which may extend to 10 years, or fine, or both. The punishment of imprisonment for a term of 5-15 years has been embodied for forgery in Section 310 of Afghan Penal Code. Moreover, for the same offence, the Bhutanese law sends an offender into jail for a term of 9 years, which may not extend to 13 years. Similarly, the Nepali law makes punishment for a term of 3-10 years of imprisonment for the same offence.

In case of extortion, the BPC-2004, APC-1976, Maldives, and SPC-1883 provision for punishment of with or without fine, along with imprisonment for a term of 5-9 years, 3-5 years, 2-7 years, and 3-10, respectively. However, regarding punishment for the same offence, India, Pakistan and Bangladesh punish the offender with imprisonment for a term which may extend to three years, or fine, or both.

It is a well-settled principle that five fingers are like ‘brothers’ but not equal. In the similar vein, though the member nations of SAARC are associated to each other for a cause, nevertheless is different in every manner—be it constitutionally or geographically.


Distinguishing Penal Provisions in SAARC Nations:      

  1. Afghanistan:

 

  • Judges shall be punished for making unlawful judgments and they can be sent behind the bars for a term of one year which may extend up to 5 years, Section 283, APC-1976.
  • A person who cuts the trees have to meet the fate of imprisonment for a term of three months, a fine of 5000 and compensation for the loss, Section 345, APC-1976.
  • On the event of consuming alcohol, and narcotic substances, one can be punished with imprisonment for a term of 3-6 months and fine, Section 349, APC-1976.
  • Adultery: imprisonment of 5-15 years,
  • Section 27 defines Crime. However, other countries’ statute has not defined the same.
  • As many as 25 Sections deals with death penalty
  • Showing slides, pictures contrary to culture of Afghanistan leads to imprisonment for 2 years and fine of 24,000; Section 236.
  • Newsmen, editor, columnist, publisher and among other media content writer can also be punished with imprisonment of a term of 2 years when found disseminating information contrary to the culture of Afghanistan, Section 237.
  • Public servant taking bribe: 2-10 years of jail, Section 255.
  • A person who lowers or tears the flag of Afghan: 5-15 years of jail, Section 218
  • When minor commits crime, including a child of below 12, he/she is sent to reformation homes.

 

  1. Bangladesh

 

  • Establishing sexual intercourse without the consent of wife constitute marital rape

 

  1. Bhutan:

 

  • Doli Incapax: Child of below 10
  • Pick-pocketing: value-based sentencing
  • Money laundering: value-based sentencing
  • Prostitution: jail imprisonment extends up to 13 years
  • Consuming liquor at public place: fine
  • Environmental pollution: 1-3 years of jail

 

  1. Srilanka:

 

  • Marrying again during the life-time of husband or wife leads to punishment of imprisonment for a term of 7 years and fine.

 

  1. Maldives

 

  • On intentional crime committed by a child of seven, he/she can be sentenced to death him/her
  • Disobedience of Sharia Law: severe punishment
  • Adultery, extra-marital relationship, illicit relationship, rape and pre-marital sex: public stoning, striping at public place, and stoned to death in case of rape
  • Blasphemy: stoned to death, or death penalty
  • Criticizing Islamic laws or Allah or Quran: stoned to death, or death penalty

 

  1. Pakistan

 

  • Insulting or defamation of Islam, holy personages, prophet Mohammad and religious artifacts is a bigger crime than all other crimes
  • A person charged under Blasphemy (Section 295 B & 295 C, PPC-1860) goes down the sand as the law provisions for death penalty or life-time imprisonment and also fine
  • Adultery, illicit relations, and pre-marital sex: stoning at public place, or stripping
  • Rape: publically stoned to death or death penalty or life-time jail
  • The judicial decision is awarded in the line with retributive (tooth for tooth)mode of punishment

 

  1. Nepal:

 

  • Minor below 16
  • No one shall injure four-footed animal even such an animal causes loss to one’s crops
  • Any person kills or injures that other person, who was killing cow or ox shall not be held guilty
  • Killing of cow or bullock leads to punishment of imprisonment for a term of 12 years and instigators meet the fate of jail for 6 years
  • A person kills Yak: fine of 40 rupees for each Yak
  • Grievous hurt caused to a cow: 2 years of jail

In what being seen as different political parties and other donors in the name of secularism —overtly and covertly—have expedited their efforts to lift the ban of cow slaughtering. However, as cow is considered to be a sacred animal in Nepal and often respected as mother,the parliament should not repeal the provisions which bans the cow slaughtering. And, if the parliament suceeded to lift the ban of cow slaughtering, it will be a severe attack on Hinduism and yesteryears Hindu Nation. Moreover, it will pose a question mark on whether our legislation is serving popular concerns or not. This is the crucial time for the parliament to live up to the expectations of the Nepali citizen as a whole.

 

  1. India:
  • Right of private defense extends to causing death of other on the vent of acid attack, Section 100, IPC-1860.
  • Unnatural sexual offences (sex between gay, lesbian, or transgender and sex with an animal) leads to punishment of imprisonment for life or imprisonment which may extend to 10 years and also fine, Section 377, IPC-1860.

(Mr. Jivesh Jha is currently pursuing Masters Degree in Dehradun, India. He can be reached at: [email protected])

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