A Critical Analysis on the Legal System of Bangladesh : From the ancient to the British period

Introduction :

The root of present legal system of Bangladesh has its origin mainly to 200 years British rule in the Indian sub-continent. We don’t get the legal system of Bangladesh by overnight. It is the result of evolution of three periods such as Hindu period, Muslim period and British period. It proceed through different phases and has been matured gradually through a historical process. On this process some elements of the present legal system of Bangladesh are leftovers of ancient period which go back over to Hindu and Muslim administration. The history of Indian sub-continent consist of five hundred years with Hindu and Muslim period which advanced the British period and each period had its own legal system but on the process of evolution the legal system of present day creates from a mixed system which have a formation, legal principals and perceptions moulded on both indo-Mughal and English law.

Hindu Period : Ancient Judicial System

Around 1500 years before and after the beginning of the Christan era Hindu period belongs to. During into several independent states and each state had a king who belongs to supreme authority. The king was treated as the foundation of justice.[1] He was empowered with supreme authority of the administration of justice in his own kingdom. The important characteristics of judicial system of Hindu period were given below.

Organisation of Court Structure

1. The king’s Court :

The king’s court was the highest court of appeal in the state and was court of jurisdiction for cases of vital important to the state. The king was advised by learned Brahmins, the Chief Justice and others judges, ministers, elders and representatives of the trading community in the king’s court.

2. The Chief Justice’s Court :

The Chief Justice’s court belongs to after the king’s court which made up of the chief justice and board of judge to help the Chief Justice. All the judges in the board came from the three upper caste especially Brahmins.

3. Special Tribunal:

Different types of tribunals used to be formed often with specified territorial jurisdiction among judge.[2] They were the members of the board of Chief Justice Court.

4. Town or District Court :

Under the authority of the king town and district court were led by the government official to administer justice under the authority or the king.

5. Village Council :

The local village council was organized at village level to deal with petty civil and criminal matters. It is made up of a board of five or more members.

Judicial Procedure

1. Stage of Suit:

A suit or trial formed by four stages such as-the plaint, the reply, the trial and the verdict or decision of court.

2. Bench for more than one judges:

The administration of the justice was governed by a bench of more than one judges though the king decided cases in his council.

3. Appointment of judges and Judicial Standard :

The caste played a vital role to appoint the Chief Justice and other judges. It is compulsory to appoint the Chief Justice of from Brahmins. A Sudra couldn’t be opened as a judge. The person who were highly qualified and learned in law got appoint as judges. Women could not be a judges.

4. Doctrine of Precedent:

The statements of the king’s court were binding on all lower courts. The lower courts followed the principals of low declared by higher courts which deciding cases.

5. Evidence :

To reach a fair verdict evidences like documents, witnesses and the possession of incriminating objects were used.

6. Trial by Ordeal:

An important feature of Hindu period was Trial by ordeal. Ordeal is one type of custom build on religion and faith on God. It applied when any evidence on either sides was not avoidable. It is painful and dangerous because it caused death to the accused during the ordeal. Some mentionable ordeals are ordeal by fire ordeal by water, ordeal by poison, ordeal by rice grains and ordeal by lot. [3]

7. Trial by Jury :

Ancient jury system of Indian was not in the same structures of today’s world. The administration of justice used to assist by the community member. The check the cause of the conflict and every the original facts in front of judge through the verdict was declared by the judge.

8. Crimes and Punishment :

There are  four methods of punishment by gentle admonition by sense reproof by fine and by corporal punishment caste consideration punishment. Different crimes such as murdered, adulteration, rape, contempt and treason had different punishment including fines. branding rousting alive, drowning and impalement.

Critical Analysis on the legal system of Hindu Period :

The legal system of ancient Hindu administration was rooted in the authority of the king, who was considered as the topmost body of the justice within his kingdom. It replicates a complex blend of tradition, religion and social hierarchy. However, a critical analysis reveals both strengthsand shortcomings in this system.

One of the strengths of this system lay on its hierarchical structure which consisted with various levels of courts classifying to different kinds of disputes and jurisdictions. From the king’s court, which served as the supreme appellate body and handled the important cases to town and village councils dealing with local matters. This system provided accessibility to justice among different strata of society.

This system heavily depend on caste considerations in the appointment of judges. The compulsory appointment of Brahmins as Chief Justice, the exclusion of Sudras from judicial roles and the absence of women from the judiciary were the major inequalities within society. The reliance on superstition and physical trials to determine guilt or innocence not only lacked empirical basis but also harmful and sometimes death. The approach of this system to crimes and punishments was in consisted. It was based on some factors like caste, age and social status.

Overall, while the ancient Hindu legal system demonstrated, the elements of organization was caste-based, more practice of superstitions and lack of uniformity in punishment. The important principles like equality, fairness and human rights were absence in the administration of justice. This system highlight disparities in punishment and a lack of uniformity in the application of justice.

Muslim Period

In Indian subcontinent Muslim period began in 1100 A.D with the attack by Turkish Muslims. The Quran is the main source of Muslim law. Allah is the the all powerful and the ruler is the servant of Allah to carry out Allah’s will on the earth. In Indian sub-continent the entire Muslim period was divided into two separate periods such as

(i) The Sultanate of Delhi

(ii) The Mughal Empire

Muslim Sultanate was founded at Delhi by the termination of twelfth century by Muhammad Ghor Starting from 1206 to 1526 Muslim Sultanate belongs for thirty years. In 1526 Zahiruddin Balear conqured the Delhi then Delhi Sultanate come to an end and he established the Mughal Empire in Indian that belongs until 1857.[4]

Legal System under the Sultanate :

The Sultan was the supreme authority of the administration of justice in his kingdom. According to the administrative unit the legal system of sultanate was organised. A structured categorization and grouping of the court were available at the seat of the capital in Provinces, District, Parganahs and villages.

Courts at Centre : The courts founded at the capital of the Sultanate were as follows : The king’s court, Diwan-e-Mazalim, Diwan-e-Risalat, Sadre Jehan’s court, chief Justice’s court and Diwan-e-Siyasat.

The Sultan led the king’s court. It is the highest court which practiced both original and appellate jurisdiction. Two highly educated Muftis held the Sultan to carry out the judicial functions.[5] The other two highest courts criminal and civil appeals were the court of Diwan-e-Mazalim and court of Diwan-e-Risalat. Generally the Sultan presided these two counts. The Chief Justice is called Qazi-ul Quzat who was the orginal head of the judiciary and he adjudicate all types of cases. The Sultan appointed Qazi-ul Quzat from amongst the most virtuous of the learned man in his kingdom. Sultan Nasiruddin appointed Sadre Jahan and Chief Justice remained divided but they were united by emperor Ala Uddin. Sultan Firoz Tuughlag separated their posts again. The court of Diwan-e-Siyasat was created to decide the cases of rebels and high treason. It’s main purpose was to deal with criminal prosecution. There are some other officers attached to the court of Chief Justice were as follows.

(a) Mufti :

The Chief Justice selected the Mufti and the Sultan appointed him. He carry out as a legal specialist. It the conflict arose between the opinion of the Mufti and judge it was referred to the Sultan for solution.

(b) Pandit :

Pandit was a Brahmin seolar in law of Hindu and he carry out as expert of law in civil cases of Hindu and his position was equal to the Mufti.

(c) Mahtasib :

He was charged with the prosecution for the violation for religious law.

(d) Dadbak :

He was the clerk of the court and he ensured the attendance of persons summoned by the court and also carry out the taste of trying of petty civil case.

Provincial Court :

In the province there were four courts established such as Adalat Nazim-e-Subah, Adalat Qazi-e-Diwan-e-Subah and Sadre-e-Subah.

(a) Adalat Nazim-e-Subah :

Nazim represented the Sultan in the province. Nazim presicled over the Adalat Nazim-e-Subah. Nazim practiced both orginal and appellate jurisdiction.[6] He sat only a judge in orginal cases and appeal transferred to the central Appeal court at Delhi from this verdict. The Nazim sat with the Qazi-e-Subah second appeal transferred before the central court at Delhi from the decision of this Bench.

(b) Adalat Qazi-e-Subah :

This Chief Qazi of the province presided over the Adalat Qazi-e-Subah. It deals with all cases of civil and criminal matters and also heard appeals from the courts of District Qazis Appeal from this court lay to the Adalat Nizam-e-Subah. It had the supervisory jurisdiction. Over the administration of justice. The Sultan appointed the Qazi-e-Subah amongst persons who had great character for learning and scholarship of law. Mufti, Pandit, Mohtasib and Dadbak were attached with this court too.

(c) Diwan-e-Subah :

Diwan-e-Subah dealt with both original and appellate jurisdiction in all revenue matters. It had supreme authority over all the cases regarding revenue in the province.

(d) Sadre-e-Subah :

This was the Chief religious court in the province. It also dealt with the matters to grant of stipend lands etc.

District Court :

In the district level the following courts were established :

(a) The District Qazi’s Court :

This court dealt with all civil and criminal matters and also heard appeals from the decision from Parganah Qazis, Kotwals and village panchayats. The Sadre Jahan appointed the Qazi-e-Subah. The Qazi presided over the District Qazi’s Court. Four officials helped this court.

(b) Faujder Court : This court dealt with petty criminals cases regarding security and suspected criminals. Appeal from this court transferred with the court of Nazim-e-Subah.

(c) Court of Mir Adils : This court had jurisdiction to try land revenue matters. Appeal from this transferred to the court of Diwan-e-Subah.

(d) Court of Kotwals : This court dealt with police and municipality cases.

Pargnah’s Court :

At each Parganah there were the courts of Qazi-e-Parganah and Kotwals. Except hearing appeals, the court of Qazi-e-Panganah had all jurisdiction of District Qazi in all civil and criminal cases. The kotwal dealt with petty criminal cases.

Village Courts :

A panchayat was constitute to dealt with the executive and judicial of affairs for each group of villages. It had jurisdiction to try petty civil and criminal cases.

Legal system under the Mughal Administrative :

During the Mughal period the Mughal emperor was considered the fountain of justice. Mahakuma-e-Adalat was a separate department created by the emperor to execute and look after judicial administration properly.[7]

The courts functioning during this period were as follows :

Courts of Capital :

This court constitute with three important courts at the capital city of Delhi. They were :

(a) The Emperor’s Court :

It was the highest court of empire and presided over by the emperor. This court dealt with both civil and criminal cases. If constitute by the Chief Justice and other Qazis of the Chief Justice’s Court. The Emperor presided over while hearing appeal and Daroga-e-Adalat, Mufti and Mir Adil helped the emperor for the first instance. For authoritative interpretation of law on particular point the emperor referred it to the Chief Justice’s Court.

(b) The Court of Chief Justice :

It was the second important court presided over by the Chief Justice. Two Qazis who appointed to this court as judge helped the Chief Justice. This court dealt with original, civil and criminal cases and appeals from Provincial courts.

(c) Chief Revenue Court :

This court was given highest authority to decide revenue cases. Four officials were appointed to help this court.

Besides above mentioned three courts, there were also two courts in Delhi : A special court named Qazi-e-Askar dealt with military matters. Another was the court of Qazi of Delhi which dealt with local civil and criminal matters in the absence of the Qazi-ul-Quzat.

Provincial Courts :

Three types of courts belonged to each province. They were :

(a) The Governor’s court (Adalat-e-Nazim-e-Subah) :

The Governor or Nazim was empowered to deal all cases arising in the province and he presided over this court. This court was given authority to hear appeals from the subordinate courts.

(b) The Provincial Chief Appeal Court  (Qazi-e-Subah’s Court) :

This court dealt with the decisions of the Qazis of the districts. The legal authority of Qazi-e-Subah were equal with those of Governors. This court was given authority of original, civil and criminal jurisdiction. 

(c) Provincial Chief Revenue Court (Diwan’s Court) :

This court had original and appellate jurisdiction in all revenue matters presided over by Diwan-e-Subah. Four officers appointed to this court were Peshker, Darogha, Treasurer and Cashier.

District Courts : 

There were four courts in each district. They are :

(a) District Qazi :

It was the chief civil and criminal court of the district had jurisdiction to try all civil and criminal matters.[8] The principal judicial officer in the District was Qazi-e-Sarkar. Six officers were appointed to this court.

(b) Faujdar Adalat :

This court dealt with all cases regarding riots and state security and presided over by a Faujdar. Appeals from this court lay to the court of Governor.

(c) Kotwali Court :

This court dealt with all petty criminal cases. Appeals from this court lay to the Qazi-e-Sarkar.

(d) Amalguzari Kachari :

This court dealt with all revenue matters presided over by an amalguzar. Appeals from this court lay to Diwan-e-Subah’s adalat.

Parganah’s Court :

There were there courts in each parganah.

They are :

(a) Qazi-e-Parganah’s Court :

This court had all powers all civil and criminal cases and had no appellate jurisdiction.

(b) Court of Kotwal :

This court was authorised to try all petty criminal cases. Appeals from this court lay to the court of District Qazi.

(c) Amin-e-Parganah :

This court dealt with all revenue matters. Appeals from this court transferred to the District Amalguzar.

Village Courts :

There are two types of courts in each village : Such as court of village panchayat and the court of Zaminder. The panchayat had empowered to try petty local civil and criminal matters.

Crime and Punishment in the Mughal Administration :

During the Mughal period, there were two Muslim codes suchas Fiqh-e-Firoz Shahi and Fatwahi-i-Alamgiri requited the judicial procedure. There were three types of evidence-

(i) full corroboration

(ii) testimony of a single individual

(iii) admission including confession.

There were three types of Muslim criminal law under three heads-

(i) crimes against God

(ii) crimes against the king

(iii) crimes against the individual

Three forms of punishment, as recognised by the Muslim law, were : Hadd, Tazir and Qisas.

a) Hadd : Hadd provided a fixed punishment as laid down in Islamic law for crimes like theft, robbery, whoredom, apostasy, defamation and drunkenness which was applicable to Muslim and non-Muslim.[9] The state was under duty to prosecute all those person who were guilty under hadd. There was no compensation under it.

b) Tazir : It means prohibition and was applicable to all offences not classified under Hadd. It included crimes like gambling, counterfeiting coins, causing injury, minor theft etc. The courts exercised their discretion in awarding suitable punishment to the criminals. They were given freedom to create new method of punishing the criminals.

c) Qisas and Diya: Qisas or blood-fine was imposed in cases relating to homicide. It followed the principle of life for life and limb for limb in case of willful killing. It was considered the victim’s personal right. Diya was a sort of blood money paid by the man who killed another man if the murderer was convicted but not sentenced to death for his offence. Qisas became Diya when the people of victim satisfied with money as compensation.

Critical Analysis on the legal system of Muslim Period :

The legal system of Muslim administration reflects a structured and hierarchical approach to justice. It was mainly based on Islamic principles with courts established at various levels of governance to ensure the justice throughout the empire. The key strenghths of this system was its systematic classification and structure of courts. There was a clear representation of jurisdiction and powers at all the counts from capital courts to provinces, districts, parganahs and villages. At the topmost of the judicial hierarchy were the courts of capital, presided over by the Sultan or Emperor himself. These courts had given both original and appellate jurisdiction and were helped by learned scholars in Islamic law.

The legal system of Muslim administration had some limitations also. It was much depend on Islamic law which limited the rights and protections to non-Muslims within the empire. The position of Brahmin experts was similar to that of Muftis, indicating a potential imbalance in legal representation. This system emphasis on fixed penalties and compensation may have led to inconsistencies in sentencing and raised concerns about fairness and justice. Courts often had supervisory powers over local administration and were tasked with ensuring compliance with state laws and regulations.

Finally it was characterized by a hierarchical structure, clear jurisdictional boundaries and adherence to Islamic principles of justice. Though it provided a structure for the administration of justice, it also faced challenges in ensuring fairness particularly for non-Muslims and consistency in sentencing.

British Period :

The judicial system of ancient India has become modern by the British ruler under a series of Royal Charters. The steps of the development of the judicial system in British India may be divided into four periods.

First period: Early Administration of Justice until the Charter of 1726.

It was the beginning of the British ruler to interfere into the administration of justice in India. East India company gradually established control over Bombay, Madras and Kolkata which were later known as presidency towns. Administration of justice in three presidency towns was haphazard till 1726 and finally the company took  part in the judicial in assisting with the local Mughal authorities.[10] The company had brought several changes in the three presidency towns at different times. By the company’s charter of 1687, the first Mayor’s court was set up in India. It had no particular principles of law and procedure by company. In 1765 the company achieved terrain procurement of Bengal, Bihar and Orissa. The company started practiced Diwani and military power but until 1772 the administration of both civil and criminal justice were remain to native people.

Second Period : The Era of the Moyor’s Court:

Administration of justice from the charter of 1726 till the regulating act of 1773.

It was divided into two parts. From the charter of 1726 till the charter of 1753 was first part identify with the starting of the intervention by the British Crown. From the charter of 1753 till the regulating Act of 1773 was the second part. King George I issued the charter of 1726 which was the first step of the inauguration of British law in each presidency towns in India. Following changes were made by this charter.

Civil Judiciary :

Mayor’s court constituted for each of the Presidency town consisting of a Mayor and nine Alderman. The Mayor’s courts. The Mayor courts were declared to be courts of record and were authorised to try, hear and determine all civil action. It was authorised to exercise its jurisdiction over all person living in the presidency town. For the first time an appeal was allowed to the governor-in-council from the decision of the Moyor’s court. The decision of the governor-in-council went to the privy council in England in cases where the sum involved was either 1000 pagoda or more. This court derived their authority from the British crown. That is why it was called royal courts in true sense.

Criminal Judiciary :

Criminal Justice in each presidency town was fully powerful extend in the Governor and five senior members of the council of the company. Each have the same power. A justice of the peace could arrest and punish those who were guilty of minor crimes. Three justices of the peace were form jointly a court of record and they were hold quarter four times a year to try and punish every criminal offence committed in the presidency towns. The grand jury and petty jury helped the trial at these session courts Criminal justice was vested in the governor in council and they had both original and appellate jurisdiction in some specified criminal matters for example treason and serious crimes like murder etc.[11]