কোটা ইস্যুতে রোববার সুপ্রিম কোর্টে শুনানি, আশা করি সমাধান আসবে কারফিউয়ের সময়সীমা আরো বাড়ল কারফিউ প্রত্যাহার দাবি বিএনপির, আমির খসরু আটক কোটা আন্দোলনে কারফিউয়ের দিনেও ঢাকাতে ১০ জনের মৃত্যু বাংলাদেশের ছাত্রদের প্রতি সংহতি পশ্চিমবঙ্গে কোটা নিয়ে আপিল শুনানি রোববার চট্টগ্রাম ও রাজশাহী শহরের পরিস্থিতি নরসিংদীর কারাগারে হামলার পর পালিয়েছে আট শতাধিক আসামী শনিবার ঢাকায় কারফিউ-র যে চিত্র দেখা যাচ্ছে প্রধানমন্ত্রীর দুই বিদেশ সফর বাতিল বিএনপি নেতা নজরুল ইসলাম খান আটক সরকারের কাছে 'আট দফা দাবি' কোটা সংস্কার আন্দোলনকারীদের: ‘শাটডাউন’ কর্মসূচি চলবে নুরুল হক নুরকে আটক করা হয়েছে নাহিদ ইসলাম এখন কোথায়? হাইকোর্টের রায় বাতিল চাইবে রাষ্ট্রপক্ষ: অ্যাটর্নি জেনারেল শনিবার সহিংসতায় মৃত্যু হয়েছে আরো অন্তত সাত জনের কখন ফিরবে ইন্টারনেট সংযোগ - কেউ জানে না রোববার ও সোমবার সাধারণ ছুটি ঘোষণা কারফিউ দিনে ঢাকায় যে চিত্র দেখা গেছে সাতক্ষীরায় ছাত্রদল নেতার ইন্ধনে থানা ঘেরাওয়ের চেষ্টা!

A critical analysis on the Legal System of Bangladesh: From the ancient to the British period

Md.Rafy Fakir ( Contributor )

প্রকাশের সময়: 20-05-2024 11:57:12 pm

1.INTRODUCTION:

In this study, the judicial system of Bangladesh has not full-fledged rapid or in any particular period of history. The present legal system of Bangladesh owes its source mainly to 200 years British rule in the Indian subcontinent although some elements of it are remnants of pre-British period tracing back to Hindu and Muslim administration. It passed through several stages and has been increasingly established as a continuous historical process. The way of the evolution has been come from various system- partly from foreign, original. Legal principles and concepts modeled on both Indo-Mughal and English law-the structure. Over 500 years with Hindu and Muslim the Indian subcontinent has been rolled which periods which preceded the British period and every period had a distinctive legal system of its own. Over a period of two decades, it was not perfect rather suffered from what has been defined as internal colonialism[1]. It finally emerged as a autonomous nation in 1971 through protracted mass agitation and a war of liberation, which claimed millions of lives. The Judiciary of Bangladesh consists of a. The Supreme Court of consists of 3 parts 1. Supreme Court, 2. subordinate courts and 3. Panel Court. The Appellate Division (AD) and the High Court Division are the two divisions which were comprises by Bangladesh. It is the vertex court of the country and other courts and panel are lower to it. In this paper, I have briefly discussed the judicial system of Bangladesh from ancient British period. Under the cap of Hindu, Muslim, British.

 

 

2.Hindu period:

In a period of around 1,500 years before and after the beginning of the Christian era the Indian subcontinent was ruled by the Hindu kings on Ancient judicial systemin ancient times. On that period, this subcontinent was divided into several independent states and the king was the highest authority of every single country and was reflected to be the fountain of justice [2]. There were five key types of court system in ancient Bengal – The King Court, the Chief Justice Court, special tribunals, town or district courts and village courts. The King’s Court was known as the highest court of appeal in the state as well as the original court. King was supported by Brahmins, the chief justice and other judges, ministers and learned men for liquidating of his judicial functions. Under the king, there was the chief justice and other judges who used to receive guidance from learned Brahmins[3]. In case of the appointment of the chief justice and other judges the Brahmins were first priority to be. In the appointment of the chief justice and other judges it was clear that the caste consideration played very important role. The Brahmins were first priority to be appointed as a chief justice and other judges. The Kshatriyas and Vaisyas were of the next preference but a Sudra was never measured to be appointed as a judge. Apart from this, women were not permitted to hold the office of a judge. Judges were obligatory to take the oath of detachment when deciding clashes between citizens. The judicial trial contained of four stages like the plaint, the reply, the trial and enquiry and finally the verdict or decision of the court. The management of decision was governed by a bench of more than one judges even the king decided cases in his council. To reach a fair verdict doctrine of instance and indications like documents, passersby and the custody of incriminating and circumstantial evidence was used. Another important feature of ancient judicial system was provisional by ordeal. Major types of ordeals were ordeal by fire, water, poison, rice grains and lot. For instance, ordeal by poison is explained here. There are different types of justice system-

1.The ordeal by poison. Which method was based on the view that God protects innocent people? The person was declared to be innocent if the person survived,

2.By gentle admonition

 3.By fine and

4.By corporal punishment.

Caste contemplation was a great factor in determining punishment. According to Gautama, a Brahmin could flout asudra with impunity in contempt cases. A Kshatriya or Vaisya abusing a Brahmin was tube punished with 100 panes (24 panes ¼a copper coin) and 150 panes, respectively Asudra was punished by corporal punishment cutting of the tongue. Similarly, for committing murder the murderer was to pay 1,000cows for killing a Kshatriya, 100 for a Vaishya and 10 for a Sudra.The murderer would be put to death and his property confiscated, if a person of a lower caste killed a Brahmin. One person will be branded and banished when one Brahmin killed another Brahmin. If a Brahmin killed a person from lower caste, he was to compound for the offence by fine. From the above analyses of ancient judicial system of Hindu period we can admit that the judicial system was not based on rule of law rather on quirk and caste reflection. Though judges were promised for fair and neutral judgment, however, the king himself headed the judiciary and was free to make any changes in the structure of the justice, so the independence of judges were not out of questions.[4]

 

 

 

     

    3.Muslim period:

 The Muslim period starts with the raid of the Muslim rulers in the Indian subcontinent in 1100 AD. Its legal system which known as Judicial system of sultanate and Mughal Empire. . The period of conquest of India by Muslim in the year 712 when Muhammad bin Qassim, the famous Arab general, defeated King Daher and conquered Sindh and Multan. In 1206 Muhammad Ghori made the permanent conquest in India. 991 successive raids began with incursions from various Muslim generals. The theory based on the Holy Quran was brought by the Muslim rulers after conquering all the states by their own. The Holy Quran says the king is a humble servant of ALLAH and he has to carry out his will on the earth and sovereignty lies in the hand of Almighty ALLAH [5] .In Muslim period, everyman was considered as equal before Allah (Creator)overriding distinctions of class, nationality, race or color and the ruler was Almighty’s chosen agent and trustee. The Sultanate of Delhi and the Mughal Empire are the two parts in which the whole Muslim period in India is based on. From 1206 to 1526, India was ruled by the sultans (the Muslim rulers) known as the Sultanates of Delhi. On the other hand, in 1526 Delhi Sultanate came to an end when Delhi was captured by Azharuddin Babar who founded the Mughal Empire in India that existed until 1857.The judicial system under the Sultanate the Sultan was the prime authority of the administration of justice in his Sultanate. The judicial system under the reign of Sultanate was organized on the basis of administrative units. A systematic classification and gradation of the courts were available at the seat of the capital, in provinces, districts, Parganas, and villages. The powers, functions and jurisdictions of each court were clearly defined. The courts established at the capital of the Sultanate were as: the King’s Courts, Diwan-e-Mazalim, Diwan-e-Risalat, Sadre   Jehan’s Court, Chief Justice’s Court and Diwan-e-Siyasat . The highest court in the capital was the King’s Court, which exercised both original and appellate jurisdiction. the Sultan himself was presided over by this and the two muftis assist him. The Muftis are the legal experts of high reputation. In addition, there was a separate Court of Chief Justice. The Chief Justice known as Qazi-ul-Quzat was the highest judicial officer next to the Sultan Qaziul-ul-Quzat was appointed by the Sultan from amongst the most virtuous of the learned men in his kingdom. the Sadare Jahan was created by Sultan Nasir Uddin, in 1248. the Sadare Jahan was a superior judicial post, which became more powerful than the Chief Justice. The Sadare Jahan, was the de facto head of the judiciary and he occasionally presided over the King’s Court? The office of the Sadare Jahan and Chief Justice were amalgamated by Sultan Allaudin Khilji (1296-1316), but Sultan Firoz Shah Tughlaq (1351-1388) again separated them.The Court of Diwan-e-Siyat was constituted to decide the cases of rebel and high treason, etc.? Its main purpose was to deal with criminal prosecutions. There were some other judicial officers attached to the Court of Chief Justice as: Mufti, Pandit, Mohtasib and Dadbak.  There were four courts, which are-

1.Adalat Nazim-e-Subah, 2. Adalat Qazi-e-Subha, 3. Governor’s Bench (Diwan-e-Subha) and 4. Sadre-e-Subah. also, there are another four typs of courts was formed at the district levels, which are- 1. the District Qazi’s Court, 2. Faujdar Court, 3. Court of Mir Adils and 4. Court of Kotwals. Beside these, there were two separate courts like Pargana’s Court for Parganah and Village Court for Village [6].

 

 

 

 

 

 

 

 

 

 

 

 

 

3.1 Judicial system under Mughal Empire:

The Mughal Emperor was measured the “cascade of righteousness throughout the Mughal period (1526-1857).to administering justice properly the sultan created a different department of justice which is named Mahakam-e-Adalat. During Mughal period Quran, Sunna (Ideology of Prophet SM), Ijma, Qiyas and Fatwa were the fundamental sources of laws and legal procedures. The judicial procedure was regulated by two Muslim Codes namely Fiqh-e-Firoz Shahi and Fatwah-I-Alamgir and crime was classified under three broad categories:

(1) crime against God;

(2) crime against king; and

(3) crime against private individual.

 

3.2 The judicial system under the Sultanate:

The sultan was the utmost consultant to order justice in his territory. The justice system under the sultanate was ordered on the basis of organizational divisions.

On that the court existed at seat of-

1.The capital,

2. In provinces,

3.Districts,

4.Parganahs,

5.Villages.


 

    

     4.British period:

The British period in Bengal began with consolidation of power of the East India Company and the British ruler modernized the judicial system of ancient India under a series of Royal Charters. Bombay, Madras and Calcutta, individually known as presidency towns. East India Company gradually established control and possession over presidency towns[7]. The administration of justice in three presidency towns was haphazard and ultimately the Company participated in administration of justice in co-operation with the local Mughal authorities, Till 1726. In three-presidency towns Some changes were brought by the company on the judicial system with the intervention of some charters issued from time to time. the first gateway to introduce English legal and judicial system in India was the Charter of 1726 issued by King George-I, by way of granting Letters Patent to the Company. After that to remove the defects of the Charter of 1726 King George-II issued Charter of 1753.he House of Commons appointed a secret committee to improve the judicial system, the secret committee of House of Commons intervened and passed the Regulation Act 1773,in 1772.King issued a separate Charter of 1774 with a view to establishing the Supreme Court of judicature at Calcutta to decide civil, criminal, equity, admiralty under this Act  and ecclesiastical cases arising within Calcutta presidency town except petty civil cases. issuing writs also power The Supreme Court had to like the King’s Court of England and also power of supervision and control of the subordinate courts. Subsequently, in 1801 Supreme Courts were established in Madras and in 1824 in Bombay. Another change made by appointed a class of officials called “Commissioner” and placed in charge of a division comprising several districts, which effected widely in administrative and judicial machinery, In 1829. They were authorized to hear appeals from magistrates. The judicial and administrative functions were fully concentrated by one hand. In 1853, the first Law Command was recognized in India and an all-India administration was bent whose laws were to be obligatory on all courts [8].In 1858 East India Company was disbanded and the Government of India was taken over by the British Crown, following the event of mutiny in 1857. Several kinds of experiments were made on judicial administration in the subsequent periods like The Civil Procedure Code (CrPC), Criminal Procedure Code (CPC), Penal Code, Evidence Act, etc. were enacted and with this similar legal terms, Indian High Courts Act, which provided for the establishment of High Courts in three presidency towns (Calcutta, Bombay and Madras) replacing the Supreme Court enacted by the British Parliament in 1861[9].  The practicing barristers, advocate and the district judges were appointed as the judges of High Court. In 1862 the Islamic system of law was replaced by the English Common Law system with some modifications allowing both Hindus and Muslims to be regulated by the rules of their respective personal laws as enjoined by their respective religion. In 1864, the posts of Qazi’s, muftis, molaves and pundits were abolished [10].

 

 

 

 

 

 

 

 

 

 

 

 

 

5.Conclusion:

After completing the study, the ancient judicial system never follows the rules of act besides on quirk and caste refection. Religious law always administered the justice. By expounding the Hindu law, the King was assisted by the learned Brahmins to enforce the justice in Hindu period [11]. The King himself lead the judiciary although the judges was promised for fair and impartial judgment. The king was free to make any changes in the structure of the court by his own, for that independence of judiciary was not ensured Similarly, in the Muslim period, the Sultan or Emperor was the supreme authority of administration of justice as state head and a learned law officer Mufti was assigned to explain the Islamic legal provision to assist the Qazi’s[12]. Although, equality before law was a common feature and Qazi’s were fulltime judges at every level of administration, however, the executive authority was empowered to exercise judicial functions. Therefore, the judiciary was not independent. The law of evidence under Muslim law was also very defective, unsatisfactory and of primitive in nature. For proving, to make guilty a man for rape, four witnesses were necessary. Those four had to see the accused by their own eye in the very act committing the crime. The punishment is so rough and tough that no man or women could even think of it. It’s like a nightmare. However, the justice system of Hindu period is very much worse than the Muslim period. When the British period came than many important steps are taken to polish the judicial path but many steps were not free from imperfections. The government always in the back to control the judiciary. The government giving directions to the courts and controlling the judges and overall judiciary. At the starting of that period the rulers follow the policy of the Muslim and Hindus law for the administration of justice. However, the books of law were in Arabic and Sanskrit and were not pure law books so the English judges couldn’t understand the laws of Hindu and Muslim. For the assessment of the British justice judges, native law officers, Qazi sand pandits were appointed. Muslim and Hindu Laws were codified and translated into English specially the personal them[13].



[1] Panday, P. K., & Mollah, A. H. (2011, February 8). The judicial system of Bangladesh: an overview from historical viewpoint. International Journal of Law and Management. /International Journal of Law and Management.

 

[2]Akkas, S.A. (2004) Independence and Accountability of Judiciary—A Critical Review. Centre for Rights and Governance (CRIG), Dhaka, 22. - References - Scientific Research Publishing. (n.d.). 7

[3] (Huda, 1997, p. 740) Quinlivan Library, Notre Dame University Bangladesh catalog › Details for: The Constitution of Bangladesh (vol. 02) /. (n.d.).

 

[4] Abdel Halim Hassan, I.H. (2008) Application to Differential Transformation Method for Solving Systems of Differential Equations. Applied Mathematical Modelling, 32, 2552-2559. - References - Scientific Research Publishing. (n.d.).

 

[5] M. F. Husain. (2024, April 16). Wikipedia. https://en.wikipedia.org/wiki/M._F._Husain

 

[6] Panday, P. K., & Mollah, A. H. (2011, February 8). The judicial system of Bangladesh: an overview from historical viewpoint. International Journal of Law and Management. /International Journal of Law and Management

[7] Mootham, O. (1983), The East India Company’s Sadar Courts: 1801-1834, The Indian Law Institute, New Delhi

[8] Abdel Halim Hassan, I.H. (2008) Application to Differential Transformation Method for Solving Systems of Differential Equations. Applied Mathematical Modelling, 32, 2552-2559. - References - Scientific Research Publishing. (n.d.).

[9] Abdel Halim Hassan, I.H. (2008) Application to Differential Transformation Method for Solving Systems of Differential Equations. Applied Mathematical Modelling, 32, 2552-2559. - References - Scientific Research Publishing. (n.d.).

 

[10] Panday, P. K., & Mollah, A. H. (2011, February 8). The judicial system of Bangladesh: an overview from historical viewpoint. International Journal of Law and Management. /International Journal of Law and Management.

[11] Huda, A.K.M.S. (1997), The Constitution of Bangladesh, 1st ed., Vol. II, Rita Court, Chittagong

[12] Khan, I.S., Islam, S.A. and Haque, M.I. (1996), Political Culture, Political Parties and

[13] Panday, P. K., & Mollah, A. H. (2011, February 8). The judicial system of Bangladesh: an overview from historical viewpoint. International Journal of Law and Management. /International Journal of Law and Management

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