Legal History of Bangladesh

History & Development of Legal System in Bangladesh: Hindu Period to Pakistan Period Md. Ziadul Islam Chowdhury Sadi Department of Law University of Dhaka Legal System has developed gradually in Bangladesh with her growth as a nation over the centuries. Before the advent of British rule this part of the country was under Mughal rule. The Mughals seized power from the Turko-Afghan sultans who ruled the country since the beginning of the 13th century. It was under the Hindu ruler (Aryans) for 1500 years before and after the beginning of Christian era when they conquered the land by vanquishing the indigenous people.

During the Turko-Mughal rule the country formed the eastern part of Subah Bangla and, during the British rule, eastern part of the province of Bengal. Historical development of Legal System of Bangladesh: Legal history of Bangladesh can conveniently be studied under five important periods — Hindu Period, Muslim Period, British Period, Pakistan Period and after independence (or Bangladesh period). HINDU PERIOD: Introduction & Sources of Law Legal system in Bangladesh under Hindu period is also known as Aryan legal system because during Hindu period law and legal system were mainly developed by Aryans who migrated from central Asia[1].

After coming to India the Aryans followed certain norms in their conduct with one another. The rules of conduct (achar) of each class included religious observances which were binding, and violation of the same was expiated by the rituals of penance (prayaschitta). The Brahmins, the priestly class, helped the wrongdoers in performing those rituals. Those rules of conduct were called dharma and included duties and obligations. In course of time it became the dharma of the king to compel the people to observe their rules of conduct and the Brahmins, as the repository of knowledge of those rules, advised the king in administering the same.

Legal obligations and their violations were subject matter of litigation (vyavahara). The king and the judges appointed by the king decided the litigations. It was the obligation of the subjects to obey the command and law laid down by the king. As military chief he had the power to coerce people to obey his orders. The king maintained social order by awarding punishment (danda) to the violators of the law. Dandaniti or the rules about punishment was an essential part of the education of the king After Bengal came under Aryan rule, the system of law of the Aryans as modified by local customs and usages was in operation.

During the rule of the Pal’s the chief justice was called Mahadandanayaka or Dharmadhikar and during the rule of Chandras Varmans and Sen’s he was known as Mahadharmadhyaksha. That system of law was also known as Hindu law. Laws compiled by Gautama, Budhyana, Apastamba, Harit, Vaisishtha, Visnu Manu, Yajnavalkya, Narada, Brihaspati, Katyanya etc were the main sources of the new legal system. In Bengal Jimutabahana’s Dayabhaga, a digest of all codes of hindu law was followed in respect of inheritance and partition of joint property and in the rest of India Vijnaneshwar’s Mitaksara, a commentary of the code of Yajnavalkya was followed.

Administration of Justice: (1). Organization of Court Structure: I. King’s Court: During Hindu Period, the King was regarded as the fountainhead of the justice. He was respected as the Lord of Dharma and was entrusted with the supreme authority of the administration of justice in his kingdom. The King’s Court was the highest court of appeal as well as an original court in cases of vital importance to the state. In the King’s Court king was advised by learned Brahmins, the Chief Justice and other judges, ministers, elders and representatives of the trading community. II.

The Chief Justice’s Court: Next to the King’s Court was the Chief Justice’s Court (Pradvivaka) which consisted of the Chief Justice and a board of judges to assist the Chief Justice. All the judges were from three upper castes preferably Brahmins. III. Special Tribunal: Sometimes some of the judges who were the member of the Chief Justice’s court constituted separate tribunals having specified territorial jurisdiction. Brihaspati[2] has stated that there were four kinds of tribunals: stationary, movable courts held under the royal signet in the absence of the King, and the commissions under the King’s presidency. IV.

Courts in Towns and Districts: These courts were presided by government officers under the authority of the King. Government officers were the judges of those courts in Towns and Districts. V. Village panchayats: In villages the local village councils or Kulani, similar to modern panchayats, consisted of a board of five or more members to dispense justice to villagers[3] it dealt with small and petty civil and criminal cases. The Judges were selected by the government persons versed in law. (2. ) Judicial Procedure: I. During Hindu Period, judicial procedure was elaborate as suit or trial consisted of four parts: i. he Plaint (poorvapaksha) ii. The Reply (uttar) iii. The trial and the investigation of dispute by the court. (kriyaa) iv. The verdict or decision. (nirnaya) II. Ordinarily evidence was based on any or all the three sources, namely, documents, witnesses, and the precision of incriminating objects. [4] III. Trial by Ordeal: In certain cases, Ordeal which was a kind of custom based on religion and faith in God was a means of proof to determine the guilt of the person.

The application of trial was limited only to the cases where any direct evidence on either side maws not available. The ordeals which were commonly followed are: Ordeal by fire, Ordeal by water, Ordeal by poison, Ordeal by balance, Ordeal by lot, Ordeal by rice-grains. IV. Appointment of Judges and Judicial Standard: During Hindu Period, generally a bench of two or more judges would administer justice. Even the king decided cases in his council. Cast consideration played an important role in the appointment of Chief Justice and other judges. In case of appointment of Chief Justice first preferences were given to Brahmins.

In order of preferences next came Kshatriyas and Vaisyas. But in no case was a Sudra appointed a judge. The standards laid down for the Chief justice was very high. He must be a person of purity. He must be versed in law and have prudence to understand which is right and wrong, which is true or false, good or bad. Dishonesty in a judge was regarded as the most reprehensible crime. Another most important part is that a woman was never allowed to be a judge. V. Crimes and punishments: With regard to crime and punishments, the following principals were followed: ) Crime and punishments was based on the idea of removed impurities from the accused person and reformed his character. 2) Judges always used to consider the relevant circumstances before deciding the actual punishment. 3) Punishment could be inflicted separately or together having considered the nature of offence. 4) Old people over 80 years, boys below 16, women and a person who suffered from disease were to be given half of the normal punishment and a child before 5 years was considered to be immune from committing crime. ) The severity of punishment depended on the caste 6) Motive of the offender and nature of the offence and the financial position of the offenders were considered by the judge while giving punishment 7) There were four method of punishment[5]: (a) by gentle admonition (b) by severe proof (c) by fine and (d) by corporal punishment. Critical Evaluation of Hindu Period: Merits: The following components were positive for efficient judiciary: 1. Apart from cast consideration only a highly learned and qualified Person in law could be allowed hold the office of a judge. . Judges were required to take the oath of impartiality. He was also required to follow prescribed procedure. Demerits: Legal system under Hindu Period was full of many defects, such as 1. Trial by ordeal was unreasonable and harsh. 2. Its greatest drawback was that sometimes a person proved his innocence by death as ordeal was not only painful and dangerous but also detrimental to the judicial principle or norms or values. 3.

Brahmins were exempted from death sentence. This is not acceptable and contrary to the concept of equity before law and equal protection of law. 4. There was a long gap between the higher castes and lower castes. 5. Sudra and woman were not allowed to old the post of judge which was discriminatory. 6. Cast consideration played negative role in case of judicial procedure. Hindu Period exists about 1500 years before King Laxman Sen was defeated by Bakhtyar Khilji in 1204 A. D and thereby Muslim Period began in Bangladesh. MUSLIM PERIOD

Muslim period in Bangladesh began towards the beginning of the 13th century[6] and continued up to the middle of the 18th century (1757), amd the legal system of Bangladesh under Muslim period can conveniently be devided studied under two separate periods- the Anti Mughal or Sultanate period and the Mughal period. Anti-Mughal period in Bangladesh continued up to 1529[7]. Mughal Period in Bangladesh began in 1529 and continued up to 1757. Here it is pertinent to point out that during the rule of Shur dynasty from (1540-1563)[8] Sources of Law: There were three important sources of law in Muslim period: 1.

Royal decree 2. Muslim Law obtained from Islam 3. Local custom or customary law But in case of inheritance, marriage, divorce etc personal laws of Hindu’s and Muslim’s were applicable. In other words, in case of inheritance marriage or divorce, Muslim’s were required to follow Muslim Law but Hindu’s were required to follow Hindu Law. Institution of lawyers: Litigants were represented before the Courts by professional legal experts. They were popularly known as Vakils. Thus the legal profession flourished in during the Medieval Muslim period.

Though there was no institution of lawyers like the “Bar Association” or “Bar Council” as it exists today, still the lawyers played a prominent role in the administration of justice. The Courts were assisted by Mufti, who was well versed in canon and lay law to assist the court. He was in many respects a forerunner like the “Attorney General” of present day. Courts and Benches: During Anti-Mughal and Mughal courts and judges system was not same, so we have to discuss the courts and judges system of Muslim Period under two separate parts Anti Mughal or Sultanate Period:

After the conquest of Bengal by bakhtiyar khilji in 1204 AD, the application of Hindu law was limited to the personal laws of the Hindus, and in the administration of justice the principles of Islamic law were applied. The country was then either ruled by independent sultans or by the representatives of the Delhi sultanate until the conquest of the province by the Mughals. None of the independent sultan except the rulers of Hossain Shahi Dynasty could rule the country for long. Hence those rulers could not consolidate their power to administer the country peacefully.

The court structure of the Sultanate period was given below: 1. Courts at the central: |Name |Characteristics |Presided over by |Assistant | |The King’s Court |Exercised both original and appellate |King or Sultan |Two reputed Muftis highly | | |jurisdiction on all cases. | |qualified in law. | |Diwan-e-Muzalim and |Highest Court of Criminal and civil appeal | | | |Diwan-e-Risalat |respectively. | | |Sadre Jahan’s Court[9] |The ecclesiastical matter was administered by |Sadar-e-Jahan | | | |this court | | | |The Chief Justice’s |Highest court next to the kings Court, dealt |Chief Justice |Mufti, Pundit, Mohtasib and | |Court |with all the cases |(Qazi-ul-Quzat) |Dadbak | |Court of Diwan-e-Siyasat|Dealt with cases of rebels and high treason. | |Mufti, Pundit as an expert in| | | | |laws of the land | 2. Provincial Courts: |Name |Characteristics |Presided over by |Appeal was allowed to | |Adalat Nazim Subah |This Adalat exercised both original and |Nazim, on behalf of Sultan |the central court at | | |appellate jurisdiction. | |Delhi. | |Adalat Qazi-e-Subah |It had urisdiction to try all civil and |Chief provincial Qazi |Chief Justice’s Court | | |criminal cases and to hear appeal from district | | | | |Qazi. | | | |Diwan-e-Subah |The Court Dealt With The Cases Both Original And|Diwaan | | | |Appellate Concerning revenue matters | | | |Sadre Subah |Chief ecclesiastical court deal with matter | | | | |relating to grant stipend, lands etc. | | | 3. District Courts: Name |Characteristics |Presided over by |Appeal was allowed to | |The district Qazi’s court |Empowered to hear all civil and criminal cases |Qazi, appointed by Sadre |Adalat Qazi-e-Subah | | |and to hear appeals from the decisions of |Jahan | | | |Parganah Qazis, Kotwals and Panchayets | | | |Faujdar court |Tried petty criminal cases related to security | |Adalat Nazim Subah | | |and suspected Criminals | | | |Court of Sadar |Dealt with the grant of land and registration of| |Sadre Subah | | |land. | | | |Court of Amils |Tried the cases of revenue | |Diwan-e-Subah | |Court of Kotwals |Authorized to try police and municipality case | | | 4.

Parganah Court’s: |Name |Characteristics |Presided over by |Appeal was allowed to | |The Courts of |Had all the power of district Qazi in all cases |Parganah Qazi |The district Qazi’s court | |Qazi-e-Parganah |except hearing appeals. | | | |Court of Kotwals |Having power to try petty criminal cases. |Kotwal (Chief Executive |The district Qazi’s court | | | |officer) | | 5.

In Village: In each village the village panchayat, a body of five leading men administered justice. They dealt with the petty cases both civil and criminal. The panchayat used to decide the cases according to local custom. Mughal Period: The machinery of justice of the Mughal Period was considered to be the “Fountain of justice” with a view to maintaining law and order and to protect the interest of the citizens. The emperor created a separate machinery of justice which was extolled by the people irrespective of religion and race. The Mughal emperors organized both civil and criminal courts in the capital, province, district, parganah as well as village level. Theses were as follows 1. In the capital of the Mughal emperor or in Delhi : Name |Characteristics |Presided over by |Assistant | |The Emperor’s Court |Exercised both original and appellate |Emperor or Sultan |Mohtasib-e-Mumalik | |(Highest Court of the |jurisdiction on all civil and criminal cases. | |(Attorney General). Chief | |empire) | | |Justice, Darogha-e-Adalat, | | | | |a Mufti and a Mir Adil. | |The Chief Justice’s Court |Highest court next to the kings Court, dealt |Chief Justice |One or two Qazis of great | | |with all the cases and also hear appeals from |(Qazi-ul-Quzat), appointed |eminence and four officers | | |the provincial courts |by emperor. Daroga-e-Adalat, Mohtasib | | | | |and Mir Adil | |The Chief Revenue Court |Highest court of appeal to decide the revenue |Diwan-e-Ala | | | |cases | | | |The Court of Qazi of Delhi|This court sat at Delhi in absence of | | | | |Qazi-ul-Quzat to decide civil and criminal | | | | |cases. | | |Court of Qazi Askar |It was Special court to decide milltary aspects|Qazi Askar | | | |and was moved from place to place with troops. | | | 2. Provincial Courts: |Name |Characteristics |Presided over by |Appeal was allowed to | |Adalat Nazim Subah |This Adalat exercised both original and |Nazim, or the Governor |Emperor’s Court | | |appellate jurisdiction and also hear appeal from| | | | |subordinate courts. | | |Adalat Qazi-e-Subah |It had jurisdiction to try all civil and |Chief provincial Qazi |Chief Justice’s Court | | |criminal cases and to hear appeal from district | | | | |Qazi. | | | |Adalat Diwan-e-Subah |The Court Dealt With The Cases Both Original And|Diwaan |Diwan-e-Ala’s Court | | |Appellate Concerning revenue matters | | | 3. District Courts: Name |Characteristics |Presided over by |Appeal was allowed to | |The district Qazi’s court |Empowered to hear all civil and criminal cases |Qazi-e-Sarkar (principal |Qazi-e-Subah | | |and to hear appeals from the decisions of |judicial officer) | | | |Parganah Qazis, Kotwals and Panchayets | | | |Faujdar Adalat |It had jurisdiction to try all the cases related|Faujdar |Adalat Nazim Subah | | |to riots and state security. | | | |Court of Kotwal |Dealt with petty criminal cases. |Kotwal |Qazi-e-Sarkar | |Amalguzari Kachari |Decided the cases of revenue matters. |Amalguzar |Diwan-e-Subah | 4. Parganah Court’s: |Name |Characteristics |Presided over by |Appeal was allowed to | |The Courts of |Had all the power of district Qazi in all cases |Parganah Qazi |The district Qazi’s court | |Qazi-e-Parganah |except hearing appeals. | | |Court of Kotwals |Having power to try petty criminal cases. |Kotwal (Chief Executive |The district Qazi’s court | | | |officer) | | |Courts of Amin-e-Parganah |This court decided all revenue matters of |Amin |District Amalguzar | | |Parganah. | | | 5. Village Level: The village was smallest administrative units. From ancient time village council (Panchayat’s) were authorized to administer petty civil and criminal cases. Generally, the panchayats meetings were held in public places.

It was presided by five panchs elected by the villagers. Sarpanch or Village-Headman was generally president of the panchayat[10]. Panchayats were mostly governed by their customary law. During the Mughal rule, the legal system introduced by the Sultanate was not changed, rather consolidated. Critical evaluation of Judicial Procedure during Muslim period: Today’s Criminal court or Fauzdari Adalat as is called in Bangla are the improved image of Fauzdari Adalat o those days of Muslim Period. At the village level the Mughal retained the ancient system of panchayet for the settlement of small disputes. During Muslim Period Islamic Laws were required to be followed by the state.

Civil and criminal laws were partly Muslim laws and partly customs and the Royal Decrees. Personal laws of Hindu’s and Muslim were applied in their own fields. However, the following points were helpful for the independence, impartiality and efficiency of the judiciary in Bangladesh during Muslim Period. Positive Sides: 1) The Judicial Procedure was not a long drown out matter. The decisions of cases were speedy. The judicial procedure was among others with provisions for pleadings, calling of evidence etc. 2) The Muslim prohibited the use of trial by ordeal to determine the guilt of a person. Generally no consideration was shown to the people for their rank, religion and cast.

Inequity of cast system as was prevalent in Bangladesh during Hindu period was avoided. 3) Litigants were represented before court by professional legal experts. It was conducive to ensure fair justice. High standard of legal learning was necessary both for acting as a Qazi and for the legal practices. 4) The judges of higher rank were required to be appointed by Sultan, from the men of high scholarship and reputed sanctity or character wherever available. 5) Promotion facilities were available for the judges of high judicial reputation. During Mughal Period a chief provincial Qazi was promoted to the office of the Chief justice for his high judicial reputation. 6) Corrupt judicial officers were punished and dismissed.

Contempt of courts was regarded as serious offense and was severely punished during Muslim Period. 7) The principles of Estoppel and res judicata were recognized during Muslim Period. [11] Negative sides: Judicial system of Bangladesh under Muslim Period was not free from defects. The Muslim law under Muslim Period particularly in criminal affairs had many glaring defects: 1) Out of different forms of punishment, the law of blood money or “Diya” was not reasonable. In case of murder, the heir of the deceased could accept blood-money instead of retaliation and in consequence, many evil practices developed out of it. 2) During Mughal Period combination of both xecutive and judicial responsibility is in one hand. For example, provincial government court was detrimental to maintain judicial independence. 3) In many cases Muslim criminal law was not certain and uniform. In practice, it was discovered that the law laid down in Hedaya and Fatwa-e-Alamgiri was mostly confusing. 4) The Muslim law did not draw any distinction between public law and private law. It had not developed the idea that crime was an offence not only against the injured individual but also against the society as well. 5) Muslim criminal law suffered from much illogicality. This is because crime against God was regarded crimes of an atrocious character.

Crimes against human being were regarded as crimes of private nature and punishment was regarded as private rights of the aggrieved party. 6) In cases where murdered person left no heir to punish the murderer or to demand blood-money, no specific provision was available in Muslim Law. A minor heir was to wait till he attained majority. 7) Through Muslim Law tried to distinguish between murder and culpable homicide, it did not rest on the intention or want of intention of the culprit. It rested on the method of weapons employed in committing the crime. This was peculiar and generated grave injustice. 8) The law of evidence under Muslim Law was very difficult and unsatisfactory and not reasonable.

For example, in cases of evidence, one Muslim was regarded as being equivalent to those of two Hindu’s. Evidence of two women was as being equal to that of one man. 9) Evidence was to be direct, no circumstantial evidence was allowed. To convict a man for rape, for example, it was necessary to have four witnesses who would swear that they had actually seen the accused in very act of committing the offence. A thief would be convicted only the evidence of two men (or of one man and two women). It was an invariable case rule to exclude the evidence of women in all cases under “hadd” or “qisas”. BRITISH PERIOD: In Bangladesh British period began with the consolidation of British power in Bengal from 1757 and continued up to 1947.

But to properly understand the development of legal system under British period, it is of vital importance to consider the significant early development of law and judicial system under the East-India Company since the very beginning. The British came to India in 1601 as a body of trading merchants in the name of East-India Company. On the last day of December, 1600, Queen Elizabeth I issued a royal Charter to the said company giving it the power to make reasonable bye-law ordinances for the good government of the company and its servants provided that they were not contrary to the law, statutes or customs of the English Realm. Sources of Law: 1. English law from the UK: ) Royal Charter issued by the British crown: Charter of 1600, Charter of 1661. b) Act passed by the British Parliament: e. g. The Regulating Act, 1773, The Government of India Act, 1858 2. Local or native law: a) Act passed by the Indian Legislature or Parliament: e. g. The Contract Act, 1872 b) Order of the Governor General in Council called Regulation: e. g. The Permanent Settlement Regulation, 1793 c) Order of the Supreme Court 3. Local custom or customary law 4. Religious Law: Hindu Law and Muslim Law were applicable in the fields of marriage, divorce, inheritance, succession etc. In other words, personal laws were applied in their own field. Bar:

Regarding development of legal profession under British Period, it is important to point out here that the legal profession as it exists in Bangladesh today has its beginning in the first years of British Rule. The Bengal Revolution VII of 1793, created for the first time a regular legal profession for the company’s court. Earlier the first real step in the of organizing a legal profession was taken in 1774, when the Supreme Court was established in Kolikata by the Charter of 1774 pursuant to the Regulating act, 1773. The Supreme Court under clause 11 of the Charter of 1774 was given power of enrolment of two categories of legal professionals: (1) Advocates in Scotland, (2) Attorneys who were Barristers and solicitors to appear and plead before it.

An Indian lawyer had no right to appear before the Supreme Court. However subsequently the Legal Practitioners Act, 1846, 1863 and 1879 made important innovations in this field. Lastly the Indian Bar Council Act, 1926 made provisions for the establishment of a Bar Council for every high Court. Benches: The court and judges were functioned under two separate authorities during British Period: The Company’s Court and the King’s Court[12]. Legal System Under Company’s Rule: After the battle of Palashi (1757), the power of the Nazim started to dwindle further. However, the East India Company did not assume power till the granting of Diwani in 1765.

In 1772 the Company’s governor Warran Hastings for the first time appointed English Collectors in each district for collection of revenue and administration of civil justice to the litigants with the help of Muslim Ulama and Hindu Pundits, but did not interfere with the administration of criminal justice by the Qazis in the districts. The collectors were empowered to control police force and had magisterial power to arrest offenders and send them for trial to the criminal court of the Qazis. Lord Cornwallis divested the collectors of judicial power and appointed English officers as judges of the district civil courts. He also stripped the Qazis of their power to administer criminal justice, and created a circuit court of sessions in each division with English officers to decide criminal cases of grave nature with the help of a Qazi and a Mufti.

He established divisional courts to hear appeals from the decisions of the district civil courts with the same judges of the circuit court of sessions. The divisional courts had to decide cases with the help of Muslim ulama and Hindu pundits. Petty offences were tried by the judges of the district civil courts as Magistrates. Petty civil cases were tried by native judicial officers, called Munsifs. He also issued licenses to the legal practitioners and allowed them to receive fees from their clients for their services and this created the legal profession. Lord Hastings again bestowed magisterial power on the collectors and appointed native judicial officers called Sadar Amin in the district civil courts.

Sadar Dewani Adalat initially constituted with the Governor General and members of his council and subsequently with experienced senior English officers, heard appeals from the decisions of the district or divisional civil courts called Mofussil Dewani Adalat, Sadar Nizamat Adalat constituted with the self same judges of Sadar Dewani Adalat heard appeals from Mofussil faujdari Adalat. The Regulating Act of 1773 empowered the governor general-in-council to make regulations for administration of the country. Under Section-13 of the Regulating Act of 1773, George III, The King of England issued a charter in 26th March, 1774, which established a Supreme Court in Kolikata to decide civil, criminal, equity, admiralty and ecclesiastical cases arising within Calcutta presidency town except petty civil cases. On the other hand, the Supreme Court tried other civil disputes and also tried the accused charged with grave offences with the help of grand jury and petty jury.

The Supreme Court had power to issue writs like the King’s Court of England and also power of supervision and control of the subordinate courts. By the Act of Settlement 1781, the power of the Supreme Court to issue writs was much circumscribed and limited within the Presidency town. Those courts in the presidency town had jurisdiction on the residents of Calcutta and the European servants of the Company serving in India, and administered justice according to the English law. But the courts set up by the Company administered justice according to Islamic law as modified by the regulations and subsequently by the Acts made by the Governor-General-in-Council as legislature from time to time.

Lord William Bentink created the posts of principal Sadar Amins in the district civil courts with power to hear appeals from the decision of Munsifs and Additional Judges to exercise all powers vested in the district judges. He abolished the circuit courts of sessions and the divisional courts. He appointed District Officers not only to supervise the functions of the collectors but also to hold sessions to try offenders charged with grave offences. He also made a regulation authorizing the governor general to empower district judges to hold sessions to try cases of grave offences. District and sessions judges were empowered to reject Fatwa of the Qazis and muftis in cases where they obtained opinion of the Jury or assessors. Gradually District Judges were also made Session Judges to try grave offences with the help of jury or assessors.

Under the Charter Act of 1833, the governor general in-council was turned into a legislature with a law member, and was empowered to make Acts instead of regulations. Law commissions were constituted with eminent jurists to codify laws. These steps gradually replaced Islamic laws with the principles of common law of England. Legal system under British Crown rule: In 1858, Queen Victoria by a proclamation (The Government of India Act, 1858) took over the administration of India from the hands of the Company. Codification of laws by the extended legislature under Government of India Acts was accelerated on the basis of recommendations of the law commissions. In 1862, the Calcutta High Court was established by amalgamating the Supreme Court, the Sadar Diwani Adalat and the Sadar Nizamat Adalat.

At the same time, the Islamic system of law was replaced by the English common law system in 1862 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 qazis, muftis, moulavis and pundits were abolished. The judicial officers of the subordinate courts were appointed from amongst the law graduates, practicing lawyers and administrative officers who were members of the Indian Civil Service (ICS). High court judges were appointed from amongst the practicing Barristers, Advocates and the District Judges. The lowest level civil court was presided over by the Munsif and criminal court by the Magistrate in the subdivisional headquarters. However, there were three classes of magistrates having first class, second class and third class power of imposing sentences.

Above these aforesaid courts were the courts of District Judges, Additional District Judges and Subordinate Judges in civil matters, and the courts of the District and Additional District Magistrates, The Session Judges, Additional Session Judges and Assistant Session Judges in criminal matters in the district headquarters. The session courts were presided over by the same officer who decided civil cases also as district judge, additional and subordinate judge. Appeal lay with the high court from the decision of the district court and with the Privy Council in England from the decision of the high court. Till the partition of the country in 1947, the modified English legal system was in operation. Codification of Laws in Bangladesh during British Period:

The legal system prevailing in Indo-Pak-Bangladesh sub continent near about the beginning of the 19th century was full of confusion and chaos. There existed five different kinds of law which conflicted each other, they were i) The Act passed by the parliament ii) The Charter Act iii) The orders of Governor General-in-Council iv) The orders of The Supreme Court and v) The laws made by the different Presidencies. There was uncertainty whether a particular proposition of law was applicable or not either in the mufussil or in the presidency town till the highest court had given a verdict. Indeed, haphazard growths of law, lack of uniformity amongst various laws were the important features of the then legal system.

Moreover, laws were not up to the need and expectations of the people. In practice, it became extremely difficult for the lawyers, judges and public at large to find out as to which laws they must obey. As a result, of this state of laws, injustice was bound to come in. Corrupt practices and chaos gradually developed. Thus it became a greater danger not only to the administrative and judicial machinery but it gave a jolt even to the pillars of the British Empire in India which include Bangladesh also. The condition of various laws as stated above, provoked comments and criticism from many leading people who put emphasize on the codification of various laws.

The creation of All-India Legislative Council of 1833, under the Charter Act of 1833 and creation of four law commission time to time were the direct reflection of those comments and criticism. The Charter Act of 1833 created the Law Commission of 1834, 1853, 1861 and 1879 (four law commission) for codification of various laws. As a result of gigantic works of four law commission for a long long period many important laws like The Penal Code, The Code of Civil Procedure (C. P. C. ), The Code of Criminal Procedure (Cr. P. C. ), The Contract Act, The Limitation Act, The Specific Relief Act etc. were codified and enacted and saw the light of the day.

These laws are still in force in our country. From The Development of Legal System under British Period, it is convincing that the British brought into this country not only the mass of legal rules strictly known as Common Law but also their tradition outlook and techniques in establishing, maintaining and developing the judicial system. The far reaching impact of which will not be removed in near future PAKISTAN PERIOD During the Pakistan period except abolition of the jurisdiction of the Privy Council and conferment of the same on the federal court established under the Government of India Act 1935, there was no change in the structure and constitution of the courts.

By an amendment of the Act of 1935 the high courts were given power to issue writs, but subsequently that amendment was declared invalid by the federal court. The Constitution of Pakistan 1956 empowered the high courts to issue writs not only to enforce fundamental rights, but also to declare any action of public authorities to be without lawful authority and of no legal effect and other remedies. The Supreme Court which replaced the federal court was given power to issue writs to enforce fundamental rights in addition to the power to hear appeals from the decision of the High Courts. The Supreme Court and the high courts could also declare null and void any laws which were inconsistent with the fundamental rights.

The laws made during British rule continued with minor modifications. However, after the promulgation of martial law in 1958, the Constitution was abrogated. Trial by jury was abolished in June 1959, and in 1961 conciliation courts were constituted with the Chairmen of the Union Prishads and representatives of the disputing parties to decide petty civil and criminal cases. The Constitution of 1962 as amended in 1964 gave power to the high courts to enforce fundamental rights in addition to power to issue writs, and the Supreme Court to hear appeals from the decisions of the high courts. But the constitution was again abrogated in 1969 after the promulgation of second martial law. Conclusion:

The statement that “the roots of the present lie deep in the past” is nowhere true than it is in the case of the development in the legal System of Bangladesh. Its roots go back from ancient Hindu Period to Pakistan period of near past. In past through various stages the legal system gradually developed as a continuance historical process. The process of evaluation has been partly indigenous and partly foreign and the legal system of present day emanates from a mixed system which have structured legal principles and concepts modeled on both Indo-Mughal and English Law. Book References: 1. Legal System of Bangladesh: Dr. Md. Ansar Ali Khan. 2.

Legal System of Bangladesh: Barrister Md. Abdul Halim. 3. Legal System of Bangladesh: Mir Abdul Halim and N. E. Siddiki, 4. Legal System of Bangladesh: ABM Mofizul Islam Patwary 5. Landmarks in Indian Legal and Constitutional history: V. D. Kulshreshtha Web References: 1. Banglapedia: www. banglapedia. com. bd 2. Wikipedia: www. wikipedia. org 3. Ministry of Law, Justice and Parliamentary Affairs, Peoples Republic of Bangladesh : www. minlaw. gov. bd 4. GlobalEx: a guide to Indian legal research: www. nyulawglobal. org 5. Google search engine: www. google. com. bd ———————– [1] Legal System of Bangladesh: Prof. Dr. Ansar Ali Khan, 1st edn, P. 9 [2] Brihaspati . Ch. 1, pp. 1-3 [3] S. Varadachariar: The Hindu Judicial System, p. 88. [4] P. V. Kane: History of Dharmashastra, Vol. III, Ch. XV, p. 330-360 [5] Stated in Manu, Yajnavalkya and Brihaspati [6]. Muslim period in Bangladesh was first started at the beginning of the end of 13th century (1204), when Ikteer Uddin Mohammad Bin Bakhtyar Khilji, who died in 1206, concurred Bengal. [7]. The ruler of Bengal Sultan Naseeruddin Nusrat Shah admitted the subordination of Mughal emperor Babor in 1529 and thereby Mughal period was established in Bangladesh since then [8] . Bangladesh was grown under the rule of Sher Shah Shur in 1540. [9] .

The Sadre Jahan and the Chief Justice court remain separate for a long period of time and Sultan Alauddin amalgamated them. However these were again separated by Sultan Firoz. [10] Landmarks in Indian Legal and Constitutional history: V. D. Kulshreshtha, edn. 18th p. 24 [11] Landmarks in Indian Legal and Constitutional history: V. D. Kulshreshtha, edn. 18th p. 25 [12] These two types of courts were existing in Bangladesh from the year of 1601 to 1861. After that, by the Government of India Act, 1858, the powered of the East-India Company was transferred to the British Crown. Since the period from 1861 to 1947, Bangladesh was directly controlled and administered by British Crown.

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