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

Introducing the legal system of Bangladesh through a critical lens, from its ancient roots to the British social period, offers a fascinating trip through the elaboration of governance and justice in the region. Bangladesh, with its rich literal and artistic shade, has witnessed the interplay of different legal traditions and influences over the centuries. The legal frame of Bangladesh is a testament to its dynamic history, shaped by indigenous legal customs, religious laws, and foreign interventions. Shoveling into its ancient origins unveils a complex mosaic of legal practices deeply embedded in original customs and traditions. From the time of the Mauryan and Gupta conglomerates to the Mughal period, indigenous legal systems governed colorful aspects of society, reflecting the different ethnical and artistic fabric of the region. still, the appearance of the British East India Company in the 18th century marked a vital moment in Bangladesh's legal history. With British colonization came the duty of English common law and the establishment of a homogenized judicial system, unnaturally altering the legal geography of the region. This period of British rule not only introduced new legal principles but also laid the foundation for the ultramodern legal institutions and practices that continue to shape Bangladesh's legal system moment. A disquisition of Bangladesh's legal trip necessitates a critical examination of both durability and change, tracing the enduring patrimonies of Indigenous legal traditions alongside the transformative impact of colonialism. By interrogating the complications and contradictions essential in this literal line, we can gain deeper perceptivity into the challenges and openings facing Bangladesh's legal system in the contemporary period. therefore, this critical analysis tries to unravel the intricate layers of the legal system of Bangladesh, illuminating its literal foundations, socio-artistic influences, and ongoing elaboration. Through a nuanced examination of history, we aim to ripen precious perspectives that exfoliate light on the complications of justice, governance, and legal pluralism in present-day Bangladesh.

II. Hindu period: Ancient judicial system

During ancient times, Bangladesh was part of the Indian subcontinent and was influenced by Hindu legal traditions. According to renowned legal historian Sir Henry Maine, customary laws and indigenous systems of justice played a vital role in resolving disputes within local communities (Maine, 1861). The Hindu period extended for nearly 1500 years.

Positive things:

·         Codification of laws: Hindu rulers in Bangladesh introduced codified legal systems, which helped in organizing and streamlining the legal framework.

·         Prominent Point on justice: The Hindu legal systems placed importance on delivering justice, with the implementation of various laws and regulations to ensure fairness.

·         Influence of Dharma shastra: The influence of Dharma shastra, Hindu religious texts guiding law and moral philosophy, contributed to a system based on principles of morality and righteousness.

·         Establishment of local courts: Local courts were established under the Hindu rulers, providing access to justice at the grassroots level and resolving disputes within communities.

·         Glorious Vedic Past: Vedic period formed the foundations of Hindu religion and law. Hindu law had been concretized down the ages in various material sources, namely, smritis, commentaries, customs, judicial decisions, legislations, etc., their understandings or interpretations being greatly modified by rishis and scholars under changing objective material conditions of life, nature, and society.

Negative things:

·         Distinction against lower castes: The Hindu legal systems in Bangladesh often perpetuated discrimination against lower castes, with unequal treatment under the law.

·         Rigidity in social ranking: The legal systems of the Hindu period reinforced the rigidity of the caste system, leading to social stratification and oppression of marginalized groups.

·         Lack of gender equality: Women often faced unequal treatment under these legal systems, with limited rights and opportunities compared to men.

·         Punitive measures: Punishments under the Hindu legal system could be severe and sometimes disproportionate, leading to instances of injustice and abuse of power.

III. Muslim period: Judicial System of Sultanate and Mughal Empire

The Muslim period started with the first major invasion by Muslims in 1100 A.D. The Muslim emperor followed the laws of the Holy Quran, Sunnah, Ijma, and Qais. During the Muslim period, the civil administration of the Sultanate and the head of the highest court was the Sultan. The Sultan was assisted by two reputed Muftis. During the Muslim period, the Court was regulated by two Muslim Codes, namely- Fiqh-e-Firoz Shah and Fatwa-I-Alamgiri.

Positive things:

Implementation of Islamic legal principles: During the Islamic period in Bangladesh, Islamic legal principles were introduced, establishing the moral and ethical basis of governance and justice (Khan, 2010).

Emphasis on justice and fairness: Islamic law emphasizes the importance of fairness and justice for all individuals, irrespective of their social status or status (Kabir, 2004).

Introduction of Islamic courts: The establishment of Islamic courts provided Muslims with access to justice and settled disputes according to Islamic law (Hossain, 2017).

Elevation of legal literacy: Muslim rulers patronized jurists, enhancing legal concepts and interpretations in the Islamic legal system (Ahmad, 2000).

Negative things:

Discrimination against non-Muslims: Non-Muslims faced discrimination in the Islamic legal system and received unequal treatment in some legal matters (Rahman, 1996).

Inadequate flexibility in implementation: The rigid application of Islamic law sometimes leads to inflexibility in responding to evolving social needs and circumstances (Ahmed, 2000).

Limited rights for women: Under Islamic law, women often had restricted legal rights and protections, especially in matters of marriage, divorce, and inheritance (Kabir, 2004).

Severity of punishment: Punishment under Islamic law can be severe, resulting in injustice and the potential for abuse of power (Rahman, 1996).

Order Discriminations: During the Muslim period, trial by ordeal was banned, and a Qazi, Sikdar, amin, and amil were appointed to handle civil and criminal cases. (Halim, 2008, p. 48)

IV. British Period: Modernization of Ancient Indian Judicial System

The British period in India began in the mid-18th century and lasted nearly two centuries. Grant of Charter of 1661 by Charles II empowered the East India Company to administer the people who lived in the Company’s factories or trading centers at the three presidency towns namely- Madras, Bombay and Calcutta, both civil and criminal justice according to English law. The Charter of 1668 granted the Company the power to establish laws, orders, ordinances, and constitutions for the governance of Bombay. In 1687, the Company established a Municipal and Mayor's Court at Madras to handle civil and criminal cases. The modern judiciary in India began with Mayor's courts in Calcutta, Madras, and Bombay in 1728. The Supreme Court of Judicature was established in Fort William in 1774. Between 1834 and 1861, two separate courts administered justice in India.

Positive Things:

·         Introduction of modern legal principles: The British period brought about the introduction of modern legal principles, including the establishment of courts based on English common law, which contributed to the development of a more structured legal system (Chowdhury, 1995).

·         Codification of laws: British rulers initiated the codification of laws, leading to the compilation and systematization of legal statutes and regulations, which enhanced legal clarity and predictability (Ahmed, 2003).

·         Promotion of legal education: The British administration promoted legal education through the establishment of law colleges and training institutes, fostering the growth of a professional legal community (Haque, 2009).

·         Protection of property rights: British colonial rule introduced legal mechanisms for the protection of property rights, providing individuals with greater security and certainty in land ownership and transactions (Kabir, 2013).

Negative things:

·         Obstruction and exploitation: The British Pioneer administration often used legal systems to quash dissent and exploit local resources, leading to widespread social and economic injustices (Rahman, 2007).

·         Marginalization of native laws: The imposition of English common law marginalized native legal systems, undermining usual forms of justice and cultural practices (Hossain, 2011).

·         Discriminatory legal practices: British colonial laws sometimes perpetuated discriminatory practices, particularly against indigenous communities and minority groups, exacerbating social inequalities (Khan, 2017).

·         Legacy of legal imperialism: The British period left a legacy of legal imperialism, characterized by a legal system that prioritized colonial interests over the needs and rights of the local population (Islam, 2015).