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Dhaka Tribune

Evidence Act amendment bill placed in parliament

The proposed act incorporates admissibility of digital evidence by the court meaning that digital pieces of evidence will be accepted once the bill gets parliament’s nod

Update : 31 Aug 2022, 08:38 PM

The draft of “Evidence (Amendment) Bill, 2022” proposing to repeal the provisions that allowed questioning about a rape survivor’s character during cross-examinations in court was placed in parliament on Wednesday.

The bill, placed by Law Minister Anisul Huq, was sent to the relevant standing committee for further examination. The committee was asked to submit its report within 30 days.

The proposed act also incorporated the admissibility of digital evidence by the court, meaning that digital pieces of evidence will be accepted from now, if the law gets parliament’s nod.

Evidence, documents and other things have been coming online after the inception of digital or online trials of cases amid the Covid-19 pandemic. There is nothing directly stated about online or digital evidence in the existing Evidence Act.

With the existing law, many legal complications might appear if any aggrieved person files a petition with the higher court, challenging the verdict of the lower court in case of acceptance of digital evidence or documents.

In the draft law, a provision was kept for forensic examination of digital evidence.

If the court thinks it necessary or any party of the case doubts the authenticity of such evidence, these can be subjected to forensic examination.

If anyone tampers with evidence, the person will be dealt with as per Section 211 of the Penal Code or Section 57 of the Digital Security Act.

According to the proposed law, in prosecution for an offence of rape or attempt to rape, no question can be asked during cross-examination relating to the general immoral character or previous sexual behaviour of the victim.

It also mentioned that such questions can only be asked with the permission of the court when necessary in the interest of justice to be ensured.

Earlier on March 14, the cabinet approved the draft bill 2022 in principle.

The law and justice division placed the draft proposing amendments to the Evidence Act, 1872 against the backdrop of a long-running demand from rights bodies for scrapping the provision, which they said is disgraceful for women and goes against the principle of equality in the eyes of law.

Rights campaigners have long been pressing for amending the 150-year-old Evidence Act.

An insight into the proposed bill

Section 155(4) of the act says: “When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.”  

According to Section 146(3) of the act, when a witness is cross-examined, s/he may, in addition to the questions hereinbefore referred to, be asked any questions which tend -- to shake his/her credit, by injuring his/her character, although the answer to such questions might tend directly or indirectly to criminate him/her or might expose or tend directly or indirectly to expose him/her to a penalty or forfeiture.

The High Court in November 2021 put off the hearing of the rights groups’ writ petition seeking to scrap the Evidence Act’s two provisions that defence lawyers had been using to humiliate rape victims by questioning their character during the trial of the offenders as the court was informed that the government had already decided to repeal Section 155(4) and Section 146(3) of the Evidence Act 1872.

The writ remained pending for hearing.

The writ petitioners — Bangladesh Legal Aid and Services Trust, Ain O Salish Kendra and Naripokkho — filed the writ petition as public interest litigation in the wake of the delivery of a judgement in a rape case.

The women’s rights activists renewed the demand for the repeal of the two provisions after Qamrunnaher, the judge of Women and Children Repression Prevention Tribunal-1, Dhaka in the Raintree Hotel rape case’s judgement made some observations humiliating two rape victims.

The judge in the verdict on November 11, 2021 acquitted all five accused of raping two university students.

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