Expanding ‘Person’ definition under Section 17 prevents false cases, ensuring justice
Introduction
Bangladesh is currently grappling with a grave and escalating crisis of sexual violence, with recent horrific incidents, as the tragic case of 8-year-old Asia, who was brutally raped and ultimately lost her life, shedding light on the deep-rooted problem. While the nation faces an alarming increase in the number of rape cases, the challenge is compounded by the rise in false rape accusations, undermining justice for both survivors and the accused.
To address this growing issue, this article proposes an urgent need for reform through the expansion of the definition of “ব্যক্তি” (person) under Section 17 of The Prevention of Oppression Against Women and Children Act, 2000, with the aim of curbing the misuse of legal provisions and ensuring accountability for all parties involved.
The core objective of Section 17 of The Prevention of Oppression Against Women and Children Act, 2000 is to deter malicious prosecutions and protect individuals from harm caused by false cases. The term “ব্যক্তি” (person) in Section 17(2) has been restrictively interpreted to mean only natural persons, creating a significant legislative gap.
This narrow interpretation effectively allows institutions, state actors, and even the tribunal itself to evade accountability for filing frivolous or vindictive cases. The judicial system must recognize that justice cannot be served through such a limited lens. To truly align with the statute’s purposive intent and uphold justice, we must adopt a broader interpretation of “ব্যক্তি” that encompasses legal persons (including companies, NGOs, and government bodies), state actors (such as public prosecutors, police, and regulatory authorities), and the tribunal itself (to enable suo motu cognizance).
Grounds for Expansive Interpretation
Purposive Interpretation: Addressing the “Mischief”
The Mischief Rule, originating from Heydon’s Case [Heydon’s Case (1584) 3 Co Rep 7a, 76 ER 637(1584)], directs courts to identify the gap or “mischief” that the legislature intended to remedy. As Lord Coke noted, “The office of all judges is always to make such construction as shall suppress the mischief, and advance the remedy.” The legislature, in enacting Section 17, intended to curb all forms of abuse through false cases, regardless of whether the perpetrator is an individual, institution, or state entity. The mischief being addressed is not merely individual malice but the systemic abuse of legal processes to harass and harm others.
Restricting “ব্যক্তি” to natural persons would defeat this purpose, as powerful entities could weaponize legal processes with impunity. Consider a scenario where a government agency files baseless charges against a citizen to silence criticism or stifle opposition. Without an expansive interpretation, such conduct would remain beyond the remedial scope of Section 17, creating an unconscionable imbalance of power. This would render the provision ineffective against some of the most pernicious forms of legal harassment.
The statutory goal is clearly reflected in the phrase “অন্য কোন ব্যক্তির ক্ষতি সাধনের অভিপ্রায়ে” (intent to harm another person) in Section 17(1). This language emphasizes protecting any victim—whether individual or institutional—from harm. The focus on the harm caused rather than the nature of the perpetrator suggests a legislative intent to cast a wide protective net.
Legal Precedent: “Person” Includes Legal Entities
Comparative jurisprudence within Bangladesh’s legal framework strongly supports an inclusive definition of “person.” The Penal Code (Section 11) explicitly states that “the word ‘person’ includes any company or association or body of persons, whether incorporated or not.” Similarly, the Companies Act recognizes the legal personhood of corporations for various purposes, including liability. This establishes a clear precedent for inclusive definitions within the Bangladeshi legal system.
A particularly relevant example is found in the Cyber Security Act 2023, where “person” includes institutions for liability purposes. The consistency of this approach across multiple statutes indicates a legislative pattern of recognizing the legal personhood of entities beyond natural persons.
International practice further reinforces this interpretation. In India, Section 11 of the Indian Penal Code explicitly defines “person” to include “any company or association or body of persons, whether incorporated or not. “The UK’s Interpretation Act 1978 similarly extends the definition of “person” to encompass “a body of persons corporate or unincorporate.” As Justice Bhagwati observed in Maneka Gandhi v. Union of India (1978 AIR 597), “The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than to attenuate their meaning and content.” This principle applies equally to protective statutory provisions like Section 17.
State Actors and Institutional Accountability
The Public Trust Doctrine, a cornerstone of administrative law, mandates that state actors exercise their powers in good faith and for the public benefit. As articulated by the Supreme Court of Bangladesh in Kudrat-E-Elahi Panir v. Bangladesh [44 DLR (AD) 319 (1992)], public officials are “trustees of the power vested in them.” Allowing state actors such as prosecutors or police to file false cases under the guise of official duty violates constitutional safeguards, particularly Article 31 of the Bangladesh Constitution, which guarantees the right to protection of law.
Consider a scenario where a corrupt official misuses their position to implicate a political rival in a false case. Without accountability under Section 17, such abuse of power would remain unchecked, eroding public trust in the legal system. As the maxim goes, “Ubi jus, ibiremedium” (where there is a right, there is a remedy). If citizens have a right to be protected from false cases, this right must extend to protection against all perpetrators, including state actors.
The necessity of deterrence cannot be overstated. Without accountability, state and institutional power becomes a tool for oppression rather than protection. As Lord Acton famously noted, “Power tends to corrupt, and absolute power corrupts absolutely.” Expanding “ব্যক্তি” ensures that even government bodies face consequences for malicious prosecutions, creating a more balanced legal ecosystem where power is tempered by responsibility.
Tribunal’s Inherent Authority for Suo Motu Action
The Doctrine of Necessity supports the tribunal’s inherent power to act suo motu against false cases, even if Section 17(2) mentions “written complaint by a person.” In Abdul Quader Mollahvs. The Chief Prosecutor, International Crimes Tribunal, Dhaka[66DLR(AD)289], the courts upheld inherent judicial powers to prevent abuse of process. As the judgment stated, “Courts possess inherent powers to do all things that are reasonably necessary for the administration of justice within the scope of their jurisdiction.”
The maxim “salus populi suprema lex” (the welfare of the people is the supreme law) supports this interpretation. If the tribunal is deemed a “ব্যক্তি,” it can self-initiate proceedings against mala fide litigants, aligning with the spirit of Section 17. This functional interpretation recognizes that the tribunal, as a guardian of justice, must have the tools to protect the integrity of the legal process.
Counterarguments and Rebuttals
“ব্যক্তি” Literally Means Natural Person
While it is true that “ব্যক্তি” in common Bengali usage often refers to a natural person, statutory interpretation is not bound by literal meaning alone. As noted in the landmark case of Heydon’s Case (1584), “The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy.” Courts must prioritize legislative intent and societal welfare, as directed by Article 8 of the Bangladesh Constitution, which emphasizes the fundamental principles of democracy and social justice.
The maxim “ut res magis valeat quampereat” (it is better for a thing to have effect than to be made void) supports looking beyond literal interpretation to give full effect to the statute’s purpose. s the Supreme Court of Bangladesh has consistently relied on the principles established by the Supreme Court of India, it follows that “where the usual meaning of the words does not convey the object or the intention of the legislature, a more extended meaning may be given to them. If a provision in a legislation, the general object of which is to benefit a particular class of persons, is ambiguous and capable of two meanings—one that preserves the benefit and the other that takes it away—the meaning that preserves the benefit should be adopted” (Mahadeo Lal v. Administrator General of West Bengal, AIR 1960 SC 936).
Lack of Explicit Definition
While Section 17 does not explicitly define “ব্যক্তি,” the General Clauses Act 1897 (applicable in Bangladesh) states that “person” includes “any company or association or body of individuals, whether incorporated or not.” This general definition aids expansive interpretation unless specifically excluded by the statute in question. Section 17 contains no such exclusion, suggesting that the general inclusive definition should apply.
As Justice Holmes famously stated, “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.” [Towne v. Eisner, 245 U.S. 418 (1918)]. The living nature of legal language allows for adaptive interpretation to meet changing societal needs and values.
Risk of Overburdening the Tribunal
Concerns about overburdening the tribunal with expanded liability are valid but can be addressed through procedural safeguards. Section 17(1)’s provision of a 7-year sentence for false complaints already creates a significant deterrent against frivolous claims. Additionally, the tribunal can implement preliminary inquiry mechanisms to screen complaints before formal proceedings.
The fear of increasing the workload of courts cannot be a ground for denying justice. The maxim “fiat justitia ruatcaelum” (let justice be done though the heavens fall) reminds us that administrative convenience must yield to substantive justice when the two conflict.
Recommendations for Strengthening Section 17 and Preventing Abuse
To ensure that Section 17 fulfills its intended purpose effectively and to prevent false cases, the following recommendations are offered:
Inclusion of Legal Persons and State Actors under Section 17:
It is advised that “ব্যক্তি” under Section 17 be expansively interpreted to include legal persons, state actors, and the tribunal itself. This interpretation will close the current accountability gap and ensure that all entities capable of filing false cases are subject to the appropriate legal consequences, thereby promoting fairness and accountability across all levels of litigation.
Suo Motu Authority for the Tribunal:
It is strongly recommended that the tribunal be granted suo motu authority to initiate proceedings under Section 17 when it becomes apparent that a case before it was filed with malicious intent. This power will act as a safeguard, preserving the integrity of the judicial process and preventing the abuse of resources and the court’s time. By proactively addressing instances of malicious litigation, the tribunal can serve as a guardian of justice.
Clear Guidelines for Prosecuting Institutional and State Abuses:
It is essential to establish clear and structured guidelines for prosecuting institutional and state abuses under Section 17. These guidelines should outline specific criteria for evidentiary standards, ensure procedural safeguards, and provide for remedial measures appropriate to the different categories of perpetrators (be they individuals, institutions, or state actors). Such guidelines will promote consistency, fairness, and efficiency in handling these sensitive matters.
Conclusion
A restrictive interpretation of “ব্যক্তি” undermines the rule of law and enables systemic abuse of legal processes. As Justice Brandeis observed, “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” [Olmstead v. United States, 277 U.S. 438 (1928)]. When powerful entities can abuse legal processes with impunity, it teaches a dangerous lesson about the uneven application of justice.
By adopting a rights-centric, purposive approach to interpreting “ব্যক্তি,” the tribunal can fulfill its constitutional mandate to protect all victims—individual or institutional—from the scourge of false cases. As enshrined in the preamble to the Bangladesh Constitution, “it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation—a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens.” This aim cannot be achieved without holding all perpetrators of false cases accountable, regardless of their nature or stature.
The expansion of “ব্যক্তি” is not judicial overreach but rather judicial fidelity to the deeper purpose of the law—to protect the innocent, deter the malicious, and uphold the integrity of justice itself.
The Author Mokarramus Shaklan is an Advocate of bangladesh Supreme Court.
