An evening with the Padma

Nilufar Yesmin Biswas, on 3rd December 2009.

To my friend Moumita

In the evening when you messaged me that you were unable to continue the friendship between us, I was neither shocked, nor surprised. Because, I always keep myself ready to embrace traumatic return from my friends. Because I know love and pain are two sides of the same coin. Because I know whom I will give much, s/he will give back to me that much, sometimes in the way I gave, sometimes in a quite diametrically opposite way. I don’t expect any ‘good’ return from my friends, but I am always prepared to receive ‘trauma of friendship’.

In my early age, I heard a song ‘Ektai kotha achhe Banglate, mukh r buk bole eksathe, se holo bondhu’ (There is a word in Bengali, which comes simultaneously from heart and mouth, and that is ‘friend’). I don’t know whether this Bengali song is fit in this 21st century’s modern universe, but I still believe in it. I love my friends. I care for all of them. The result is mixed: some of them have become world’s best friends; some of them have shown they were not appropriate for friendship. But all they are my friends.

As friendship has a special meaning for me, it encompasses all my friends – so-called and real. But the problem is that I cannot explain this meaning of friendship. It is a heartfelt perception of friendship, which only my friends can understand; it is not expressible in words. Simply speaking, it is more than any bloodline relationship. There are many families where brothers and sisters don’t have good terms with one another, sometimes they even conspire against other. But they cannot deny their relationship, because of blood. Similarly, friendship cannot be denied, because of ‘the friendship’.

There may be ‘good’ friends, ‘bad’ friends, but that does not make a friend foe. ‘Bad’ friends are just ‘not good’ friends.

When this is about depth of friendship, my conception about the nature of friendship is also outdated. For me, friendship is an in-depth relationship combining trust, support, communication, loyalty, understanding, empathy, and intimacy. Being able to trust and relax with a friend is a big part of friendship.

As my idea about friendship is like this, when I call someone my friend, s/he becomes very special to me.

Of course, I understand ‘friend’ and ‘girlfriend’ are different. I know all the tips how to date a ‘girl’ whom I want to make my ‘girlfriend’. I know how to deal with an ‘already girlfriend’. Some of the very common tips which I offer to my friends - who are in a fix how to approach their ‘dream girls’ - are like below:

1. Go slowly. Don’t hurry to express your feelings. Your desperation may dump the whole plan.
2. Don’t call more than once a day at the initial stage. Your repeated calls or sms signifies your impassioned attraction for her/his and it may result in negativity.
3. Don’t be too available. Being available every time s/he calls, or responding to each whimsical call means you have enough time to spare, and you are both workless and worthless.
4. Don’t give much information about you just in first stage. Make yourself mysterious and attractive.
5. Don’t try to learn much about his/her personal things. Then s/he will understand your motive, before s/he understands you and your ‘self’.

And etc etc.

But neither of these tips is applicable for friendship. There is no place of courtesy, mystery in friendship. There is no place for hiding, hoax or humiliation in friendship. Your friend is another ‘self’ of you existent in another body. If you stand before a perfect mirror, it will show how you are really; if you are a perfect friend, you friend will get his/her reflection in you.

Moumita, I took you as my friend. I wanted to know what you are really. I wanted to let you know my ‘self’ also. But everything went in a way, which you did not like.

But it is alright. The decision taken by a genius and intelligent girl like you can not be wrong. I will not go even to analyse your decision that why you took such a decision, where my fault was or where you were more righteous than me. I just request you, please don’t misunderstand and mis-explain my communication. Please don’t chastise our 28 hours exiting friendship!

I am sorry for everything which obliged you to take a prompt decision to discontinue our friendship.

Moumita, many times I have poured my love, my affection, my respect and appreciation on wrong persons, in wrong places. Still I don’t know whether you were a wrong person or wrong place. Whatever may be, I don’t mind. I like to explore and navigate in the world of friendship. You are just a conscious resident of that world.

I wish you all the best.

Zahid

The Village Court: A neglected but potential rural justice forum

Zahidul Islam Biswas

VILLAGE level traditional juridical mechanism named 'shalish' is active in rural Bangladesh from time immemorial. An informal justice mechanism, Shalish is: 'basically a practice of gathering village elders and concerned parties, exclusively male, for the resolution of local disputes. Sometimes Chairmen and elite members of the Union Parishad are invited to sit through the proceedings. Shalish has no fixed dimension and its size and structure depend entirely on the nature and gravity of the problem at hand (Sumaiya Khair: 2001).'

While the above description may suggest that a shalish is a 'calm deliberation, with the parties patiently putting forth their perspectives and impartial facilitators soberly sorting through the issues' but actual shalish is of peculiar character. Stephen Gloub describes his impression flowing from the observations of over a dozen shalish sessions during the 1990s as follows:

'The actual shalish is often a loud and passionate event in which disputants, relatives, (shalish panel) members and even uninvited community members congregate to express their thoughts and feelings. Additional observers adults and children alike gather in the room's doorway and outside. More than one exchange of opinions may occur simultaneously. Calm discussions explode into bursts of shouting and even laughter or tears. All of this typically takes place in a crowded school room or other public space, sweltering most of the year, often with the noise of other community activities filtering in from outside. The number of participants and observers may range from a few dozen to well over one hundred (Stephen Gloub: 2003).'

However, shalish mechanism as a justice forum has some specific characteristics. It is a completely informal mechanism which has no specie procedure to follow. The adjudicators (shalishkar) of a shalish do not have any legal authority, but they get social authority from their seniority, wisdom, economic and religious status or by way of village politics. For delivering justice, shalish mechanism uses no specific law but the notion of justice emanated from religious guidance and sense of social wellbeing.

A shalish may involve voluntary submission to arbitration (which, in this context, involves the parties agreeing to submit to the judgment of the shalish panel), or mediation (in which the panel helps the disputants to try to devise a settlement themselves) or a blend of the two. 'Shalish addresses almost all type of disputes- civil, criminal or family. These often involve gender and family issues, such as violence against women whether within or outside marriage, inheritance, dowry, polygamy, divorce, maintenance for a wife and children, or a combination of such issues. Other foci include land conflicts as well as other property disputes (Stephen Gloub: 2003).

The purpose of Shalish is to dispose off different type of local disputes locally, speedily and amicably without resorting to formal expensive and lengthy court procedures. While it is undeniable that shalish has been successful 'in some measure at providing acceptable judgments and solutions (Fazlul Haq: 1998)', it is also a bare truth that this purpose of the shalish mechanism has been frustrated time and again due to various socio-economic and religious grounds.

In the absence of specified law, process and accountability, the forum has been a vehicle for imposing subjective notion of justice by the socially, economically or religiously powerful people. While socially and economically powerful people have got this forum as a platform for enforcing their dominance over disadvantaged portion of the society, the religious leaders have used this forum as an instrument for practicing their religious dogmas.

These malpractices or biases in the shalish system are broadly categorized as class-based and gender-based. One the one hand, the powerful portion of the society have supported their class against disadvantaged group, on the other hand the patriarchal society, sometimes with the assistance of the religious leaders, has uphold their patriarchal notion of justice. The statement gets support from the following paragraphs.

'Although shalish members have the option of engaging in either mediation or arbitration to reach a solution, most commonly choose arbitration. This method involves unilateral decisions made by officiating members, whereas mediation engages opposing parties in reaching solutions of mutual satisfaction…Although the decisions are not always fair and equitable, they tend to carry a great weight within the community because they are issued by well-known and powerful villagers...'

Sometimes solutions are arbitrary and imposed on reluctant disputants by powerful village or community members. Such “solutions” are based less on civil or other law than on subjective judgments designed to ensure the continuity of their leadership, to strengthen their relational alliances, or to uphold the perceived cultural norms and biases. The shalish also is susceptible to manipulation by corrupt touts and local musclemen who may be hired to guide the pace and direction of he process by intimidation. Furthermore, because the traditional shalish is composed exclusively of male members, women are particularly vulnerable to extreme judgments and harsh penalties (Sumaiya Khair: 2002).'

Against this backdrop, Village Court are created in 1976 with the objectives that poor village shall get easy access to justice without any cost, they can be freed from accepting unwanted decision given by the dominant or elite classes of village in the name of justice and disputant parties can be able to solve their problems by themselves with a little or necessary assistance from these dispute resolution forums.

It is mentionable that the Village Courts are statutory courts and are composed of with local government (Union Parishad) representatives (as community leaders) and members from disputant parties. But these courts are legally required to follow informal procedure of trial or dispute settlement, meaning thereby that the application of Code of Civil Procedure, Code of Criminal Procedure and Evidence Act has been barred. Also is barred the appointment of lawyers. The underlying argument is that the disputant parties will be able to discuss all their problems without any reservation or hesitation and can take an amicable and justifiable decision. However, decisions of these courts are as binding as those of any other formal courts of the country. In a word, both these forums are examples of accommodation of formal courts and traditional knowledge and wisdom.

Noticeably, though a long time has passed after introducing this village justice mechanism, the government of the country has not undertaken any research to assess the performance of the judicial institution, or to assess whether the institution is being able to fulfil the aims they were introduced to meet. However, some non-government organizations and some private individuals in the recent years have conducted some small scale researches on the village courts that show that the performance of the arbitration council and village courts is very poor and unsatisfactory.

Though this Union Parishad administered dispute resolution forum does 'not impose the fatwas and harsh punishments that the extreme forms of the traditional practice entail', often 'the reality of village courts does not differ substantially from that presented by the traditional process.' A number of sources suggest that the dynamic and the membership of the Village Courts often resemble the traditional form of shalish in terms of being either biased or ineffective at providing justice for the disadvantaged, including women (Stephen Gloub: 3003).

In the like manner, a Bangladesh Ministry of Women's and Children's Affairs paper quotes the head of a local social service NGO as saying that dispute settlement by Union Parishad members 'ignore the rights of (sexually abused) women and girls and either dismiss the case or award them money as compensation.' As an Asia Foundation report suggests: 'UP Chairmen, who are often overwhelmed with many disparate responsibilities and little governmental support, tend to view family disputes and other violations of law as low priorities. Many UP Chairmen and members are also ill-informed in the law, and some are reportedly corrupt and politically motivated, causing them to act with prejudice (Sumaiya Khair: 2002).'

In this way, various research literatures reveal that the Village Court, a state-led rural justice institution, has not succeeded to be adequately reliable judicial forum for vulnerable rural communities. Still traditional shalish are rampant, perpetuating the regimes of impoverishment. Hopefully, some NGOs have been supporting local dispute resolution as an alternative forum of state-led and traditional forums of rural justice. These NGOs supported programmes run by knowledgeable law officers and well-prepared documents have been seeing the light of success gradually. But these NGOs legal aid activities cover hardly 1% of around 70,000 Bangladeshi villages. According to a UNDP report, two third of the disputes do not enter the formal court process. So still two-third disputes are disposed off in traditional Shalish, Village Courts, Arbitration Council or they remain unsettled.

When these traditional shalish system as well as semi-formal judicial bodies like village courts and arbitration councils are failing to give substantive justice, the socio-economic conditions of majority of the Bangladesh village people and lengthy process of the formal courts are preventing them to move to the formal judicial system.

The outcome is that vast majority of the people of the country is still out side the net of 'access' to justice, let alone access to 'justice'. However, a simple reading of the Village Court Ordinance implies that almost all major aspects of an effective justice system have been addressed in the law. A proper implementation of the law could improve the state of 'access' to justice dramatically. But that did not happen. Then why the mechanism is not working effectively is a question to be researched. Though there have been some researches on it, I think those researches are not adequate to address the issue properly. It is time government undertook an in-depth study, not a fly-in-fly-out study, to dig out the problems of the rural justice system and address those problems without delay.

The writer, an advocate of the Supreme Court of Bangladesh, is currently with the Centre for the Study of Law and Governance, JNU, New Delhi. He can be reached at: zahid.bangladesh@gmail.com.

First published in The Daily Star, Bangladesh, on August 1, 2008.

Judiciary must take bold steps to get rid of backlog of cases

Zahidul Islam Biswas
Backlog of cases appears to be a common predicament of the judiciaries worldwide. Countries from both developed and developing world have been facing this problem more or less alike. However, this difficulty for Bangladesh judiciary seems going from bad to worse every year. According to latest annual report on the judiciary, still the Appellate Division of the Supreme Court has 8,997 cases pending, the High Court 2,62,349 cases and the judicial magistracy 6,02,173 cases as of December 31, 2007 although the disposal rate of cases has increased.

It is a matter of hope that the judiciary after being formally independent on November 1, 2007, has shown its efficiency to a good extent. After the separation of the judiciary from the executive and with the introduction of judicial magistracy, the rate of disposal of criminal cases in the courts of magistrates increased by 51 per cent in December 2007 in relation to the cases disposed of by the judicial magistrates in November 2007.

According to the said report, 5,63,344 cases were pending with the judicial magistracy as of November 1, 2007 and 34,131 cases were filed in November 2007, while the magistrates disposed of 33,104 cases. On December 1, 2007, the judicial magistracy had 5,64,371 cases pending and 87,789 cases were filed in December 2007, while 49,987 cases were disposed of. On an average, 137 cases were disposed of by each of the 242 judicial magistrates in November, in a month after the judiciary became independent of the executive.

However, while there are a huge number of cases pending and the rate of filing cases is greater than the rate of disposal indicating increase of caseload every year, it is certain that judiciary will have to bear the huge backlog of cases on its shoulder for an uncertain period of time unless special steps are taken to heal the cancer of the judiciary.

Understandably, this problem is not just a setback of the judiciary, but it is a great predicament of any nation. Backlog of cases obstructs the 'access to justice' which is considered to be the 'most basic human rights', as 'access to justice' does mean not only the presence of justice mechanisms like courts, tribunals etc. but also the ability of those mechanisms to deliver affordable and timely justice to the citizens. Backlog of cases does not only delay the disposal of cases and impose huge expense on the justice seeker but also perpetuates tensions among litigants.

For this reason fighting against this judicial handicap is getting more and more importance globally day by day. Bangladesh realizing the gravity of the problem started tackling the problem long ago. First attempt to tackle the backlog of cases was to establish a number of tribunals to deal with disputes from some specified areas. The underlying assumption for establishing various tribunals was that in the existing adversarial judicial system the formal trial procedure takes a longer period of time. This is because of their strict following of Code of Civil Procedure or Code of Criminal Procedure. By contrast, the tribunal as a special justice mechanism following suitable speedy procedure for dealing with some disputes of specific areas could be better equipped to deliver timely and inexpensive justice. But it seems that the history of tribunal does not confirm this assumption. Bangladesh's special tribunals have failed to contribute in improving the caseload situation of Bangladesh judiciary.

The next attempt, that was taken more than a decade ago, was to introduce ADR (Alternative Dispute Resolution) mechanisms, which includes mediation and conciliation, among others. In Bangladesh's adversarial judicial system, trial procedure is dominantly controlled by the lawyers of the both sides of litigation, where the judges play minimal role to control the trial. Lawyers takes repeated time to make them well prepared for dealing with the case, or for sometimes to frustrate the aim of the case itself by delaying its progress. ADR is introduced against this backdrop. One example of that is introducing mediation in the family courts of the country. It is claimed that the ADR programme in family courts is a great success, and following that success scope for ADR is created in all other civil courts by amending the Code of Civil Procedure. The previous government was even planning to introduce ADR in criminal courts also.

It is mentionable that there are serious arguments against ADR; however, I am not going to rehearse that discussion here. Simply put my argument is that given the nature of disputes and cases, all these cannot be sent to be resolved through ADR mechanisms. Moreover, Moreover, if Bangladesh's social structures, power practice and litigants' mind are taken into account, how much ADR can contribute in other critical civil and criminal cases is uncertain. Moreover, sociologists such as Laura Nader have argued that even the American ADR models, which are often cited in India and Bangladesh now, actually divest the poor of justice. Similarly Galanter has argued that the informalism introduced by Lok Adalats is a debased form of informalism since it bypasses law rather than ensure that good law is available to all. Hence, the demand for strengthening the formal courts of law than relying on ADR finds persuasion in these arguments.

However, the point to discuss here is that all the times there were some attempts of legislative changes to deal with the backlog of cases. Time to time, various special laws and procedures have been made, and both Code of Civil Procedure and Code of Criminal Procedure have been overhauled to respond the need of speedy justice. But evidently Bangladesh judiciary has failed to deal with its enormous backlog of pending cases, denying its citizens right to justice.

Understandably, all these abovementioned attempts were made considering only some aspects of the backlog of cases. In other words, these attempts were piecemeal ones to tackle the judicial malaise. Consequently success was also piecemeal, not comprehensive or overwhelming. It otherwise reveals that for an overwhelming development of the 'caseload situation' there is a need for a comprehensive approach to analyse the entire situation and take comprehensive actions that will weightily take into consideration the administrative and financial aspects, among others, of the judiciary.

Generally, the state of court administration is considered a great contributing factor in the backlog of cases. In the case of Bangladesh, we see the judge-population ratio is one of the lowest in the world. I don't have exact data in my hand this moment, but I guess the ratio is not more than 12/13 judges per million population. Comparing to developed world's judiciary, the ratio may evoke disbelief among many of us. A paper shows that even twelve years ago the numbers of judges for per million people were 41 judges in Australia, 75 in Canada, 51 in England and 107 in the USA.

In developed country's judiciary, along with judge- population ratio, another aspect which is taken equally importantly or more importantly is the ratio of case management staff number of cases. Court administration cannot succeed without the unstinted support of the Court staff and its Registry. In fact, they are the backbone of the system and the administrative burden really falls on them. Though there is no data as to this ratio in Bangladesh, undoubtedly it is also one of the lowest in the world.

While the unjustified shortage of court staff is contributing mismanagement of trial, proceedings and records, the ancient or traditional management technology have been worsening the situation. Most of the case management work - for example maintaining case files, keeping records of document and evidence, writing warrant, summons, notice, order, judgment etc is done manually, following century old format. Many developed courtiers, like USA, Australia, United Kingdom, Canada, who had faced same type of case management problem due to shortage of staff have been gradually overcoming this by introducing 'e-management' of cases. Their experiences show that by using modern information technologies like computer data base and internet etc. these case management problems can be overcome to a great extent even with the existing 'insufficient' number of staff. Hopefully, 'modern technology has been introduced in the management of court and cases that will help in bringing transparency to the judiciary', as the immediate past chief justice of Bangladesh recently said at the launch of the 2007 annual report of the judiciary.

Along with all these comes the role of law enforcing agencies, i.e., the police department. Criminal justice system is very much dependent on police and thana administration. Corruption in the Bangladesh police administration contributes heavily in the malaise of Bangladesh legal system. Without taking care of this department, nothing good can be expected overnight from the present independent judiciary.

No doubt, for improving court administration, the number of judges and management staff and infrastructure development is must, for which huge financial investment is necessary. In Bangladesh, the expenditure on judiciary in terms of GNP is again one of the lowest which is not more than 0.5 percent I guess. On the contrary it is 4 per cent on the average in other developed countries. Considering this trivial financial care of the judiciary, the poor administration of justice in Bangladesh is not inconsistent.

While this is a general discussion on the causes underlying the backlog of cases Bangladesh judiciary, the concerned experts are expected to reveal more causes. The point here is that for getting rid of the backlog of cases all these expressed and hidden causes have to be taken into account.

Now Bangladesh Judiciary is separate from executive. This separation is a result of a long struggle. It is now the responsibility of the judiciary to reap the benefits of being independent and to stand by the justice hungry people of the country. However, after separation of judiciary form executive, the judiciary is theoretically independent; practically it is still dependent upon the other partners in government, i.e., the executive and legislative branches of government, specifically in cases of legislative changes, police cooperation, allocation of national budget for judiciary etc.

In such a position judiciary must make a clear vision of how much time and in which way it wants to overcome the suffocating backlog of cases. Then it has to convey its vision to other partners of the government and convince them so that they cooperate to fulfil that vision. And at the same time judiciary must update the common citizens on this vision for upholding their confidence in judiciary. But, above all, the judiciary must be cautious that it does not sacrifice access to 'justice' for the sake of 'access' to justice.

The writer, an advocate of the Supreme Court of Bangladesh, is currently with the Centre for the Study of Law and Governance, JNU, New Delhi. He can be reached at: zahid_biswas@hotmail.com.
First published in The Daily Star, Section: Law & our Rights, Issue no. 74, June 28, 2008.
Also available at: http://www.thedailystar.net/law/2008/06/04/index.htm

Appeal Against A Kerala High Court Judgment

Controversy overruled

Zahidul Islam Biswas

Recently Indian Supreme Court encountered a very interesting but important case. It was actually an appeal case against a Kerala High Court judgment. This is interesting because it provided a good humour for the common people. At the same time it is important because it created some sort of tensions among Muslims in India. After all it involved questions of constitutionality and right to religion.


However, the fact of the case is simple. After being elected in 2006 Assembly elections, 11 MLAs of the Indian Union Muslim League, Indian National League and Congress had taken oath in the name of Allah on May 24, 2006. It was not an unprecedented phenomenon for Muslim MLAs to swear in the name of Allah. But this time, Madhu Parumala, vice president of the Bharatiya Janata Yuva Morcha, Kerala unit, could not bear it. He filed a case in the Kerala High Court against this oath taking as violative of Article 188 and third Schedule of the Constitution under which a Member of the Legislature or Parliament has to swear only in the name of God or solemnly affirm.


After hearing, Kerala High Court did not found any logic in favour of Madhu Parumala and upheld the constitutional validity of the oath. But Madhu was not content with the judgment of Kerala High Court. So, he appealed against it in the Supreme Court. But the Supreme Court also frustrated this leader.
On 16 November 2007, the Supreme Court of India passed its judgment declaring that the legislators taking oath in the name of "Allah" at the time of their swearing-in is legal and constitutionally valid. While the issue is final herewith, a few conversations during the proceeding are quite sharable.
While dismissing a petition the Supreme Court bench headed by Chief Justice K G Balakrishnan posed a question, 'If somebody is unable to read English the oath is translated in language he/she understands. Then will it be the infraction of the Constitution?' Then the apex court observed that swearing-in in the name of 'Allah' did not amount to 'infraction' of the Constitution.


Another judge of the bench Justice R V Raveendran said, 'Allah is an Arabic word for God, so what is the problem?' Problem is that, as Madhu's counsel said, oaths by the MLAs in the name of Allah were taken for publicity.


'By filing such petition you are also seeking publicity.'

The bench shot back.


Zahidul Islam Biswas, an advocate of the Supreme Court of Bangladesh, is currently with the Centre for the Study of Law and Governance, JNU, New Delhi. He can be reached at: zahid_biswas@hotmail.com.

This writeup has been first published in The Daily Star on 1 March 2008

HIV Patients' Right To Marry: Indian-Bangladeshi Laws In Perspective

Zahidul Islam Biswas

One of the hotly debated legal issues of the present time is whether HIV patients should have right to marry. Though a good number of countries have already enacted laws giving legal right to marry to the AIDS patients, it is still undecided in most of the countries of the globe. India and Bangladesh are two neighbouring countries which do not have any specific legislation settling the issue, though HIV/AIDS is considered to be a great threat to both Indian and Bangladeshi society. This write-up examines the present legal position regarding this issue in both the countries.

According to Islamic law and other modern laws, marriage is a civil contract which permits two persons of opposite sexes to live together. A successful marital life requires both mental or psychological and physical union of two persons. That is why the conditions for contract of marriage include both mental and physical elements. For entering into a marriage contract, a person has to attain a specified age, has to be mentally and physically healthy. Like any other contract, if any of these mental or physical conditions is not fulfilled, a person cannot marry. Even after marrying, if any of the conditions becomes absent, for example, if any of the spouses becomes insane or sexually incapable, the spouse is allowed to come out of that contract marital bondage. All these issues are regulated by laws of marriage and divorce.

Almost all marriage laws - for example, personal laws of Muslim, Hindu, Christian, Persian, as well as Special Marriage Act - provide the 'venereal disease' or 'sexually transmitted disease' as a ground for divorce to either husband or wife. HIV positive or AIDS is also a 'sexually transmittable disease'. Hence, legally HIV positive is also treated as a valid ground for divorce. (However, when recently an Indian court allowed divorce on the ground of HIV, it created huge controversy among the citizenry. In an earlier article titled 'whether HIV should be a valid ground for divorce' -- which can be found in The Daily Star, 17 Nov 2007 or at www.thedailystar.net/law/index.htm - I discussed about the controversy.) Now, if HIV positive is treated as a valid ground for divorce, it might also be treated as a legal incapacity to enter into a marriage contract. Then comes a question whether an HIV patient has right to marry.

Neither the Indian nor the Bangladesh Constitution has specifically recognised right to marry as a fundamental right. Though some legal experts argue that the right to marry is constitutive of one's right to life and that this right cannot be qualified on the basis of the health status of the person, seemingly, it is a legal right for only those who are mentally and physically capable. This, however, does not mean that a person suffering from a disease that makes him/her sexually incompetent loses his/her right to marry. When a person suffers from sexual disease, his/her right to marry becomes suspended only, and it revives again when the person recovers from the disease.

But when the disease is HIV positive or AIDS, which is medically treated as rarely recoverable, does the AIDS patients lose their right to marry? Suppose, an innocent 25 years youth is in some way infected with HIV positive and there is no possibility to recover from it, should his/her right to marry be suspended lifelong? These are questions to which there are no clear-cut answers in Indian or Bangladesh laws.

Legally, every young person has right to marry and to enter into a marriage contract. But unlike any commercial contract, responsibilities of the contract of marriage are not limited only within the contractual parties. Marriage is the foundation of a family as well as social relations. A couple owes a great responsibility to the family and society. In other words, right to marry is not an absolute one; it has to correspond to some other duties. For example, among the various objectives of a marriage, two prime objectives are to legalise the sexual intercourse between two persons of opposite sexes, and to procreate children. But through marriage, law does not only give right to two adult persons to satisfy their biological needs and to give birth to legitimate children, but also does impose a duty not to harm their life partner and children in any way. If a person is not able to perform this duty, he/she cannot exercise his/her right to marry.

Undoubtedly, HIV/AIDS is a deadly disease which can easily be transmitted to husband from wife and vice versa through sexual intercourse and it may infect the baby in the womb. Apparently, both Bangladeshi and Indian laws do not permit an HIV/AIDS patient to marry a healthy person and to infect their future innocent generation. These laws not only disallow it but also regard it as an offence. The penal provisions regarding this are same in both countries.
Section 269 of the Penal Code provides that whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Again, section 270 of the Penal Code also states whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Hence, if a person suffering from the dreadful disease AIDS, knowingly marries a man or woman and thereby transmits infection to that person, he/she would be guilty of offences indicated in sections 269 and 270 of the Penal Code.

But if the global character of AIDS, its spread, infections, and human rights of the AIDS patients are taken into consideration, such a swiping legal decision cannot be made. And logically, the above mentioned legal provisions should not be applicable to a case of HIV/AIDS. In fact, these legal provisions were made at a time when HIV/AIDS was not detected. These provisions were made taking in consideration the other common diseases that are curable by proper treatment.
However, in absence of clear statutory provisions or policy guidelines, it is the court to decide whether these legal provisions will be applicable to a case of HIV/AIDS. So far as I know, no Bangladeshi court has faced the issue till today. But Indian courts faced this issue almost a decade ago. In November 1998, a Division Bench of the Supreme Court of India held that if an HIV patient after knowing that s/he has been suffering from such dreadful disease decides to marry s/he shall be punishable under section 269 & 270 of the Indian Penal Code.

This judgement not only equated HIV to a 'venereal disease in a communicable form' but also observed that “AIDS is the product of undisciplined sexual impulse. This impulse, being the notorious human failing if not disciplined, can afflict and overtake anyone how high so ever or for that matter, how low he may be in the social strata.”

Of course, the court observed that the patients suffering from the dreadful disease AIDS deserve full sympathy. They are entitled to all respects as human beings. They should not be avoided, which otherwise, would have bad psychological impact upon them. But, sex with them or possibility thereof has to be avoided as otherwise they would infect and communicate the dreadful disease to others. The court cannot assist that person to achieve that object.
At least one point is clear from these observations that the honourable Supreme Court Bench failed to take note that HIV also spreads through other non-sexual means, and any innocent person can be a victim of HIV/AIDS anytime.

The decision of the Supreme Court sent shock waves in the HIV community throughout the world. Subsequently another petition was filed before the Supreme Court against this judgment. A three-Judge-Bench decided that the earlier above decision was made without hearing all concerned groups (especially the NGOs) who are active in this field. Therefore, the learned three-judge-bench expunged the observations made in the abovementioned judgment and restored the rights of an HIV infected person to marry.

Nevertheless, the debate whether HIV/AIDS patients should have right to marry is not over. However, the overwhelming opinion world wide is that law should not take away the right of an HIV/AIDS patient to marry, as it is a basic human right. What law can do is to provide guidelines how they should exercise their right to marry. For example, as Indian Supreme Court guided, an HIV positive person must disclose his/her status to the other party. Then, if an infected or uninfected person knowingly wants to marry an HIV/AIDS patient, law should not bar them. Again after marriage, their right to parenthood shall be suspended; so long scientific development ensures that HIV/AIDS parents can give birth to an uninfected baby.

In fact, HIV/AIDS is not just a disease. It is a global problem. So, all the issues related to AIDS should be decided globally. The world community should come forward to adopt a unique policy based upon human rights of HIV patients. Hopefully, UNAIDS has already been working for this purpose. Among the 12 International Guidelines on HIV/AIDS and Human Rights provided by UNAIDS, guideline 3 is very much pertinent here. It says, states should review and reform public health laws to ensure that they adequately address public health issues raised by HIV/AIDS, that their provisions applicable to casually transmitted diseases are not inappropriately applied to HIV/AIDS and that they are consistent with international human rights obligations.

When it is important to see how much of these guidelines are being followed by the states, it must be kept in mind that law and policy is never a complete solution of any problem, but a partial solution only. As it is claimed by AIDS activists, the basis of discrimination against people living with HIV/AIDS is fear, and this fear comes mostly from wrong or distorted information. So, along side law and policy but with the same gravity, these countries must adopt a sufficient measure to correct misunderstandings about HIV.

Zahidul Islam Biswas, an advocate of the Supreme Court of Bangladesh, is currently with the Centre for the Study of Law and Governance, JNU, New Delhi. Email:zahid_biswas@hotmail.com

First published in The Daily Star on February 9, 2008.

Paletinian loss of land from 1946 to 2000