PUBLIC INTEREST LITIGATION (PIL)

1. The State
2. Fahima Nasrin

The Metropolitan Police Commissioner, Khulna

On 20.4.2008, a young girl named Arifa, along with Ripon was caught red-handed having in their possession 29 bottles of Phensidyl, which were strapped to various parts of Arifa’s body. The police seized the incriminating articles in the presence of witnesses and produced Arifa and Ripon before the Magistrate on 21.04.2008. The informant stated in the F.I.R that Arifa was 10 years old. Arifa and Ripon were sent to jail custody, with bail rejected. Arifa was not sent to any safe place before she was produced before court either, her arrest being in violation of the provisions of the Act.

The Court directed that the best interests of the child must first be considered. The parents of the children who are brought before the police under arrest or otherwise must be informed without delay. A probation officer must be appointed immediately to report to the Court with regards to matters concerning the child. Bail should be considered as a matter and detention or confinement should ensue only as the exception in unavoidable scenarios. In dealing with the child, its custody, care, protection and wellbeing, the views of the child, its parents, guardians, extended family members as well as social welfare agencies must be considered. Where the best interests of the child demands its separation from its parents, special protection and assistances must be provided and there must be alternative care for the child. Steps must be taken to assist the parents to mend their ways and to provide a congenial atmosphere for the proper development of the child. If a child is detained or placed in the care of someone other than the natural parents, its detention and placement must be reviewed at short intervals. Imprisonment shall be used only as a measure of last resort and for the shortest period of time, particularly keeping in view the age and gender of the child. If detention is inevitable, then the child shall be kept in the appropriate Homes/Institutions separated from adults and preferably with others of his/her same age group. Every effort must be made at all stages for reintegration of the child within the family and so as to enable him/her to assume a constructive role in society. Due consideration must be given to the fact that children come into conflict with the law due to failure of their parents/guardians or the State to provide adequate facilities for their proper upbringing. The legislature should consider amending the Children Act 1974 or formulating new laws giving effect to the provisions of the UNCRC as is the mandate of that Convention upon the signatories. The use of Children as ‘drug mules’ should be made an offence and incorporated in the Children Act, making the parents/guardians of any child used for carrying drugs criminally liable. The State must make provision for diversion of child offenders from the formal placement in government safe homes/prisons to be placed in an atmosphere where the child may be guided in the more congenial surroundings within a family unit either with relatives or unrelated foster families if necessary on payment of costs for the child’s maintenance. The learned CMM and in due course any other Court dealing with the child will bear in mind the observations made by High Court and decide upon the issue of granting bail and giving custody of the accused child. The authorities concerned are directed to take appropriate steps for training their officials on compliance with the legal provisions relating to children. The police authorities may further consider setting up special units in every police station with officers properly trained and sensitised to deal with child offenders and children generally.

Mr. Justice
Md. Imman Ali
Mr. Justice Md. Emdadul Huq

The Court issued a Rule Nisi upon the respondents to show cause as to why they should not be directed to conduct a comprehensive study in order to review the implementation of existing laws and legal framework of Bangladesh providing women and children protection from sexual offences including stalking, harassment, rape along with pornography, blackmailing, murder, cyber offences etc., report the findings of the study to this Court and take necessary measures to ensure adequate legal protection of women and children.

Ms. Justice Naima Haider
Justice Mr. Zafar Ahmed