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Legacy of Colonialism: Colonized laws which holds back for Reformation and Liberal Criminological Perspective in Bangladesh

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Abstract

Recent efforts to 'decolonize' knowledge frameworks and social structures within postcolonial appears to be a part of a decades-long movement to reform ancient colonial ideological foundations of knowledge and adapt colonial institutions to contemporary contexts. Bangladesh, India, Pakistan, post-colonial regions of the Southern part of Asia, have legal frameworks and penal codes that reflect this significantly more clearly than anywhere else. The legal framework also has an effect on the parameters of criminology within a particular country; from defining crime in terms of legislation, the overall crime prevention strategy, and the law enforcement forces that protects it. Colonizers enacted laws primarily to establish their own identity, as well as a means of regulating the most dangerous aspects of a seemingly rebellious community. If, on the other hand, a country's laws proceed to be centered on those enacted during the colonial period, which placed a focus on controlling the masses of the occupied country, post-colonial countries risk being misled in their efforts to maintain control over their own citizens, rather than choosing to focus on rehabilitation and other advanced and modern criminological perspectives.
Conference Proceedings
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Legacy of Colonialism: Colonized laws
which holds back for Reformation and
Liberal Criminological Perspective in
Bangladesh
Maisha Tabassum Anima
Introduction
Recent efforts to 'decolonize' knowledge frameworks and social structures within post-
colonies appears to be a part of a decades-long movement to reform ancient colonial
ideological foundations of knowledge and adapt colonial institutions to contemporary
contexts. Bangladesh, India, Pakistan, post-colonial regions of the Southern part of Asia, have
legal frameworks and penal codes that reflect this significantly more clearly than anywhere
else. The legal framework also has an effect on the parameters of criminology within a
particular country; from defining crime in terms of legislation, the overall crime prevention
strategy, and the law enforcement forces that protects it. Colonizers enacted laws primarily
to establish their own identity, as well as a means of regulating the most dangerous aspects
of a seemingly rebellious community. If, on the other hand, a country's laws proceed to be
centered on those enacted during the colonial period, which placed a focus on controlling the
masses of the occupied country, post-colonial countries risk being misled in their efforts to
maintain control over their own citizens, rather than choosing to focus on rehabilitation and
other advanced and modern criminological perspectives.
Countries in Asia continue to sustain colonial-era legislation, which maintains the
foundation of imposing control over local communities driven by ideological tensions. The
paper provides an in-depth analysis of Bangladesh's legal practices, as well as the citizenry's
interpretations of legal consequences inflicted by colonial-era legislation. Through a historical
backdrop and an assessment of the current legal landscape, this paper will focus solely on the
background perspective of assembling the legal frameworks of pre-colonized Bangladesh. By
concentrating on the negative effects of colonial laws, the main objective will be to try to set
some ideas for this region to spring up from the colonial antediluvian laws, most of which are
not liberal for this modern world.
'In India, there are several tribes of people who became thieves during the tumultuous
anti-British period. They are slowly being rehabilitated and will eventually become
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productive members of society, but for now, they hold on to their criminal heritage and
are tough to deal with. By the way, what are your plans for these people's political
rights? They're referred to as vermin by the locals, yet I assume they'll be voters just like
everyone else.
- R. Kipling, Under the Deodars
South Asian countries share common traditions, common ancestry, shared culture, and
shared history. As a result, it is not perplexing that Bangladesh, India, and Pakistan all end up
sharing a colonial legacy of repressive and authoritarian laws, colloquially referred to as the
"colonial hangover." When those laws were enacted, their tone, objective, and approach
were all designed to limit and oppress the people on behalf of the imperial overlords, rather
than to protect their rights, affirm their dignity, and confirm their freedom.
The Penal Code 1860, the Police Act 1861, the Evidence Act 1872, the Code of Criminal
Procedure 1898, and the Jail Code, all British colonial legacies, are all still in effect in
Bangladesh with very minor changes to the language and execution. The philosophy of
constitutional law, the precedents of the Supreme Court, international treaty obligations and
the adaptation of specific laws all influence the way criminal justice is administered in
Bangladesh. There is a widespread belief that Bangladeshi law today is heavily influenced by
colonial precedents.
When it comes to British legal changes in this land, Akbar Ali Khan says they were revealed
as "isomorphic mimicry," which seemed to be a western analogue but was really the
byproduct of exploitation for the poor and marginalized.
The result of colonized laws: A mode of retaining
power
The colonial drafting pattern outcomes in laws with colonial features that are geared toward
the executive, are incapable of ensuring accountability, and foster a social attitude of defying
and sidestepping the law. A colonial statute encourages colonial governmentality, which
refers to the particular techniques utilized by colonial rulers to enslave the locals. Colonial
administrations were protected by these laws. Hegemony and domination are tools employed
by colonial administrations to exert more power and keep their subjects under constant
watch. Section 5 of the Official Secrets Act of 1923, for example, states that any
communication not in the interest of the state is illegal. It's crucial to remember the term "in
the interest of the state." Having control of a colony was important because it provided a
resource pool for the state. In this way, the interests of such governments were at odds with
those of citizens living in colonial areas.
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People's lives have been impacted by colonialism. Former colonial powers' legacies
live on and affect the functioning of countries exposed to colonial control decades or even
centuries afterwards. When a colonial power withdraws its hold on a region, but another
takes it over, the situation worsens dramatically. Such encounters often leave a mishmash of
perceptions, which may lead to mistrust, confusions, and even immaturity.
In her study on how colonial laws affected the overall scenario, Arpeeta Shams Mizan,
2007, highlighted three main reasons. When indigenous community-based codes were
replaced by colonial laws, it disrupted legal practices and public views of law throughout the
Indo-Pak and Bangladeshi subcontinents. Bangladesh then contradicts the goal of the law by
complying to colonial laws and drafting traditions without acknowledging historical, cultural
and social disparities between independent Bangladesh and the colonial subcontinent. It also
reinforces colonial ideas about law as government rather than as a protection, eroding public
confidence in it (Arpeeta Shams, 2007)
History
Following the Sepoy Mutiny in 1857, the Crown established rule in India, and colonial
subordination began formally. This progressively prepared the way for the codification of laws
(which was completely foreign to the Common Law system) and the formation of a court
structure, so offering a 'comprehensive ideology through which to dominate' (Barry, 2012).
In the colonial culture, identification with the aggressor bound the rulers and the
ruled in a dyadic relationship. The Raj saw Indians as crypto-barbarians who needed
to further civilize themselves. It saw British rule as an agent of progress and as a
mission. Many Indians in turn saw their salvation in becoming like the British, in
friendship and in enmity.
- A. Nandy, An Intimate Enemy: Loss and Recovery of self under Colonialism,
1994
Emergence of the colonial history
Bangladesh, located in the Ganges delta, has long been a popular destination for settlers and
has been exposed to a variety of outside influences. With this exposure and the influx of
immigrants, the cultural mix was widened and a lifestyle that was freely inspired by a wide
range of sources (Huque, 2015). Bengal was ruled by autonomous lords and only seized by
the British Empire during the Mughal era, in contrast to central India, which resisted foreign
invaders' raids and annexations.
Following the dissolution of the Mughal empire, "hereditary noblemen ruled East
Bengal as semi-independent rulers, paying a minor tribute to the British government" (Huque
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1988). The British colonial authorities attempted to handle the administration and control of
Bengal using a variety of means, including boundary redefinition.
Attempts by the British Governor-General to divide Bengal for administrative reasons
had failed because an Indian-led campaign tried to overturn the decision. Demand for the
establishment of Pakistan increased as the nationalist movement gained steam, and the
Indian subcontinent was divided into two states as a result of this increase in demand.
Pakistan's eastern wing was created by dividing Bengal, which eventually became Bangladesh.
Since East Bengal (future Bangladesh) was bordered by India on three sides, the fact
that India and Pakistan had a tense relationship didn't help much. Military war erupted
between East and West Pakistan because of Pakistan's political elite's discriminatory policy,
their refusal to share national assets with Bangladesh, and their refusal to transfer power
(Jahan 1972). People in Bangladesh were outraged by political and economic injustice, as well
as by the cultural superiority of Pakistani rulers. Pakistan's colonial control over Bangladesh
finally crumbled as a result of the system's failure to keep up under pressure. In 1971, the
nation proclaimed its independence and has since been well-known around the globe.
Bangladesh's birth generated high hopes among the country's population and
authorities. Protracted years of colonial dominance and marginalization of nationalist ideals
had only reinforced the people's drive to achieve their objectives. Nationalist leaders
utilized this mindset in their struggle against Pakistani control, emphasizing the inequalities
and unfairness associated with a colonial system and promising to abolish colonial rule's
"evils" upon taking power.
Shaping of Bureaucracy following the British legacy
Several conclusions may be drawn from Bangladesh's experience in creating an administrative
and political structure. It's unsurprising that there were suggestions to replicate the United
Kingdom's parliamentary democracy model. This was presumably done to isolate the political
leadership from Pakistan's presidential system.
The age of exploration impacted not just the elite, but also the general populace.
Citizens got increasingly politically involved as a result of increased chances to express and
organize opposition. Bangladesh adopted a quickly produced written constitution. Many of
the country's legislation were influenced by British parliamentary democracy and aimed to
create a stable political environment. Pakistan's history of unrest and military intervention,
on the other hand, would quickly weaken British influence. Faced with threats to their power
and legitimacy, Bangladesh's leaders have violated and amended the constitution, turning it
into a farce.
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Consequently, parliament had turned into a weapon in the power struggle, just as in
Pakistan. This legacy of colonialism permeates every aspect of Bangladeshi politics, from the
way parties operate to their organizational structures. Several people seemed to want
democracy, and many political parties pledged to work toward that end. However, the history
of Pakistan bred authoritarian tendencies in these political groups. Because of this
uncertainty, they've either been strongly opposed to the regime or unwavering supporters.
The advent of personality cults has aggravated the matter even more, unfortunately.
Because of Pakistani administration, the military has always had a privileged status.
Government inefficiency and corruption, civic unrest, and the threat of foreign intervention
have all been used by Bangladeshi generals to grab power. On one hand, they have clearly
learnt from their experiences and avoided becoming involved in politics whenever possible.
Bangladesh's bureaucracy developed in a similar way after the country gained its
independence. As the most well-organized and competent entity in society, it has become a
crucial administrative instrument by relying on Britain's tradition of impartiality and
neutrality. It has, however, been accused of adhering to Pakistan's habit of meddling in power
politics. To safeguard their positions, senior civil and military bureaucrats have rejected all
previous attempts to alter governmental administration and the social structure. The
situation may improve with the assumption of power by an administration that is expected
to rely on the support of bureaucracy.
Impact of Colonialism
Indeed, colonial experience has the potential to be beneficial in that it speeds up progress by
bringing in new ideas and influences. In this way, colonial rule exposed many developing
countries to western and liberal philosophies as well as educational institutions. As a result,
pupils of the colonial educational system have gone on to spearhead anti-colonial
movements. As the political and administrative structures of conquering powers are
enforced, democracy, equality, basic rights, and equity are all strengthened.
At the same time, indigenous peoples have suffered under colonial control. Ruler
intolerance, oppressive tactics, and strict law and order enforcement are all examples of how
colonial powers violated democratic principles in their colonies. The indigenous peoples are
caught between the policies of two colonial powers, and they must make a choice. Following
independence, indigenous nationalist leaders are drawn to the colonial power's democratic,
egalitarian, equitable, and balanced political and administrative structures. However, in order
to impose their authority in the face of dissent and criticism, such leaders had to employ the
colonial powers' other (negative) tactics. Governments become repressive, exercising severe
supervision in the name of law and order. As a result, utter chaos reigns as leaders adopt
governing techniques according to their whims.
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How colonial rules have shaped Bangladesh
Although the British left the subcontinent 74 years ago, their colonial rule continues to have
repercussions in numerous aspects of modern Bangladesh. In 1970, the National Parliament
was convened with elected members of Pakistan's Provincial and National Assemblies to lead
the country following the Liberation War, and a constitution was drafted within nine months.
The constitution allows for a multi-party system of government, the protection of
fundamental rights, a parliamentary form of government, the judiciary's independence, and
the constitution's four guiding principles were democracy, socialism, secularism, and
nationalism. In 1975, control of the military commenced and lasted 15 years. The British
colonial legacy may still be observed in Bangladesh's form of administration. The idea of a
parliamentary system of government came from the British.
In his speech to the Privy Council, Lord Macaulay made it clear that the Indian people
did not want to accept a British legal system, and that the British would establish one in order
to keep the Indians under control.
British law maintained a number of pre-existing concepts. As with the Moghul
administration before them, the colonial masters thought that personal law was determined
by a person's religious beliefs. As a consequence, Muslims and Hindus adhered to distinct sets
of rules. This distinction is still maintained in India, Pakistan, and Bangladesh.
A festering culture of non-accountability
The best instance of ambiguity is the "good faith clause." The word "good faith" originates in
the realm of contractual obligations. On the other hand, the colonial criminal laws of the
Indian subcontinent are filled with provisions requiring good faith. There is no definition of
good faith anywhere, and it has grown to mean "lack of intent to break the law," "operating
in good faith," and so on throughout the decades. In effect, this means that any conduct or
omission that would ordinarily constitute a crime will not be regarded an offense if committed
by a state authority in "good faith." Without a clear idea of what constitutes good faith on the
part of an officer, one must depend on executive orders and judicial interpretation, only after
a violation has occurred.
The Official Secrets Act of 1923 does not provide a definition of the term "state
interest." In a similar vein, the Penal Code of 1860 does not provide a term for "modesty of a
female." A 2018 statute, the Digital Security Act, maintained that tradition by explicitly
prohibiting any characterization of "religious feeling."
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The formation of police
The Indian Act of 1857 established the police force. The police force undertook the operation
in order to probe the British East India Company's misdeeds. The British imprint may still be
observed in the Bangladesh police force. The Bangladesh Police Training Academy was
founded in 1912 in Rajshahi's Sarada district and continues to function following the colonial
heritage.
Lower constables, middle inspectors, and higher superintendents are British-
administered titles that are still in use in the Bangladesh Police ranks. Bangladesh Police
Department is responsible for preserving law and order and ensuring the public's protection.
Section 54 of the Criminal Procedure Code is yet another evidence of the police having the
authority to arrest someone on the basis of "mere suspicion."
The majority of British Raj executive officers being White, and the few "local" Indian
Civil Service officials were also groomed to serve the colonial system in a similar manner as
Whites. Officers were pitted against the general public as a result of this strategy. Not the
people, but the Crown's servants were in charge of them all. A good example of administrative
dominance may be seen in provisions that ban "false, frivolous, and vexatious claims." While
they appear to be pro-victim, they were actually playing the role of a safeguard for white
British settlers of Indian mofussil communities seeking protection from charges brought by
native Indians.
For the powerful
The following feature is an excessive reliance on the executive. Written laws with common
law roots are often centered on clarity, ensuring that the law's intended meaning is
transmitted properly. However, colonial legislation were designed using unnecessarily
lengthy phrases in order to enable the government and the judiciary to bend the law in
whichever manner suited their interests. Because of the high level of openness, the executive
branch was able to use discretion. Many Bangladeshi legislation (written after 1971) feature
the term "any or all such as the Government may declare by publishing in the Official
Gazette," for example. Consequently, a person may never completely comprehend the scope
and implications of a certain piece of law.
Colonial laws: Psychology behind it
In most cases, European colonial powers used a tactic of 'superimposing' state laws, that is,
putting laws enacted by the colonial powers on top of laws enacted by other sources (CUP,
2002). Since most pre-colonial Indian laws were customary, colonial rulers perceived India as
possessing no legal system at all (Rattigan, 1885). The colonial regulations formed to be a part
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of the European powers' civilizing effort in Africa and other parts of the world. According to
Luigi Nuzzo,
‘The birth of colonial law proper occurred in tandem with…the problem of
establishing law governing relations with peoples of another religion or peoples
considered to be on a lower level of civilization had assumed a central role in the
international law debates of the West’.
According to European legal academics, the colonial laws were viewed as a step in
the establishment of 'colonial consciousness,' which was intended to psychologically
manipulate colonized populations into engaging in European expansionist ambitions (Luigi
Nuzzo, 2011).
Codification: The First Blow of Colonization over the
Legal System
Codification has frequently been used as a weapon of imperialism (Elizabeth Kolsky, 2005).
Many English experts criticized the IPC 1860 as "suitable only for backward overseas colonies"
(Wing-Cheong, 2013). Partha Chatterjee argues in his book The Nation and Its Fragments that
such a stereotypical separation exists between the colonizer and the colonized, which he
thinks is the source of colonial authoritarian behavior. As a feature of colonization, the dual
standard of codified laws favored the executive's priorities (Partha, 1993). The 1871 Criminal
Tribes Act is an example. Because of their tribal origins, certain Indians would be treated as
born criminals under this law. The Act claimed that certain tribes were "addicted" to the
"systematic conduct of non-bailable offenses," and that the Local Government Officer
designated by the colonial government would be the sole judge of whether a tribe possessed
such criminal proclivities (Criminal Tribes Act, 1871).
Colonial Impact in Drafting: The Bangladesh Case
By fusing ancient and new concepts, incoherent colonial and modern legal patterns coexist in
a single textual body. For example, rape is defined as having sexual relations with a wife under
the age of 13 in the Penal Code 1860 (section 375), but the Suppression of Violence Against
Women and Children Act 2002 did raise the age to 14 (section 9) and the most recent Child
Marriage Restraint Act 2017 highlights the age to 18 (section 9).
In terms of specific crimes
In accordance with the colonial tradition, laws are formed in a power-driven, command-
based, and top-down manner. When it comes to legislative deliberations, there is limited
place for public participation, and citizens' prospects of gaining justice are usually minimal.
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Under British rule, independence fighters and others only suspected of having similar political
leanings were often prosecuted under Sections 122 and 123 of the colonial Penal Code (which
included "Offence of Sedition"). Speech that undermines state sovereignty or endangers
public safety is illegal in Pakistan, which has strengthened various characteristics of this
repressive colonial rule. This legislation is still in effect in Bangladesh. In an interesting
outcome, numerous newly enacted legislation such as the Information and Communication
Technology Act prohibit defamation of any person using cyber-technology in a manner
similar to the one outlined in this chapter. Compared to colonial tyranny, this method has
striking similarities to it.
The pursuit of justice and sound government has been pushed to the back burner.
Indeed, the judiciary was a subordinate institution to the colonial government. It behaved
more like an extension of the bureaucracy than a check on it in certain instances. For example,
in the 1930s, specialized courts were set up to try freedom fighters like Bhagat Singh and the
people behind the Chittagong Armory Raid.
India's struggle for judicial independence started as soon as the country was
partitioned in 1947. Both the bureaucracies in India and Pakistan opposed efforts to separate
the lower criminal courts from the administration. Unlike judges, magistrates were vested
with both legal and administrative powers. As the colonial authority had predicted, they were
now able to use more force. The judicial responsibilities of judges in India were separated
from their executive functions in 1975, and Pakistan followed suit in 1997. In December 1972,
Bangladesh's constitution established an independent judiciary, but the courts were stripped
of their independence in 1975 and returned to their previous subservient position. In 2007,
the lower criminal court was finally separated from the executive branch of government, a
move that had been anticipated for years. These actions were taken in line with a Supreme
Court decision from 2000 imposing what is known as "judicial separation."
Bangladesh's rape legislation is based on Section 375 of the Penal Code 1860, which
was passed during the British colonial period of the country's history. Rape is classified as a
gender-specific crime under Section 375 of the Code, a holdover from the time period (i.e. by
a man against a female, who is not his wife). When it comes to sexual intercourse, the law
considers fourteen-year-old girls to be incapable of consenting, thus any sexual activity with
one of them will always be treated as an infraction of their civil rights under the law. Those
found guilty of rape face a prison sentence of up to 10 years or maybe life in prison (section
376). Marital rape is a crime if the victim is a minor under the age of thirteen. Raped men and
hijras (transgender people) are not included in the related sections.
The infamous Section 155(4) of the Evidence Act 1872, which allows defense attorneys
to demonstrate that a rape complainant has a "general immoral character" in order to
undercut her credibility in court, is another example of Victorian morality influencing our laws
today. Section 155(4) of the Evidence Act 1872, which allows defense attorneys to
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demonstrate that a rape complainant has a "general immoral character" in order to undercut
her credibility in court. Because the defense's focus on a woman's morality unavoidably leads
to interrogation about her lifestyle, attire, and sexual history, Section 155(4) is eventually
used to prosecute the victim of rape rather than the defendant of rape.
The 2000 Act went further in reform than its predecessors, introducing minimum
victim safe guards such as a restriction on disclosing the identity of a rape victim (section 14),
closed-door examinations of rape victims in court (section 20), and a strong emphasis on the
necessity of conducting immediate medical examinations of rape victims (section 32). This
law also included a new offense of failing to prevent custodial rape, which carries between
five and 10 years in prison.
Successive administrations have ignored the constitutionality of discriminatory
legislation such as section 375 of the Penal Code and section 155(4) of the Evidence Act, which
clearly contradict the Constitution's core principles of non-discrimination and gender
equality. Unfortunately, despite our successful efforts to free ourselves from colonialism in
1947 and again in 1971, rape victims in our nation are still subject to the outdated laws
imposed on us by our occupiers.
Among other statutes, the Official Secrets Act, 1923 (OSA) is a commonly used statute
that is currently in force in Bangladesh, India, and Pakistan. The law is commonly referred to
as anti-espionage statute and covers all aspects of secrecy and confidentiality pertaining to
the government or state affairs. Sections 3 and 5 of OSA are the most frequently used. Among
other things, Section 3 criminalizes espionage, while Section 5 criminalizes the unauthorized
release of secret government material, which covers everything from a secret official code to
a password to a drawing to a plan to model to article to document to any secret official code.
However, the OSA has come under criticism for the manner in which it has targeted the media
and press. Investigative journalism, in particular, has suffered the most severe consequences.
Reformation:
Bangladesh has made some significant strides toward developing a legal system free of
colonial remnants. However, more work remains to be done. Allowing Bangla, the native
language, to be used in court alongside English was a critical move. The Rules of the Supreme
Court's High Court Division were revised to reflect this in 2012.
Additionally, the judiciary has become more proactive in defending human rights and
personal freedom. Probably the most visible manifestation of this tendency is public interest
litigation (PIL). The word refers to the fact that courts accept cases brought by public-spirited
individuals on behalf of everyone else, even if they are not personally impacted. PIL lawsuits
disproportionately assist the vulnerable and marginalized segments of society who lack access
to the courts for a range of reasons.
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The Supreme Court of India pioneered PIL, and supreme court judges in Bangladesh and
Pakistan quickly followed likewise. The PIL has altered public perceptions of the judiciary. It
enables the court to handle allegations that might not be addressed otherwise. It establishes
a framework for holding government officials responsible.
In a 2016 public interest litigation (PIL) decision, Bangladesh's Supreme Court provided
guidelines on how to interpret Section 54 of the Code of Criminal Procedure 1898. As a
consequence, the police were only able to detain people if they had a warrant in their
possession. Similarly, the Supreme Court found that a provision requiring the consent of the
government before prosecuting public employees was unconstitutional in another instance.
According to the Supreme Court in another instance, officers of the security forces are not
exempt from punishment if someone dies in jail while participating in an anti-terrorist
operation.
These kind of decisions signal a shift away from the colonial legacy of shielding
government personnel from the consequences of any action committed in ostensibly "good
faith." These are positive steps. Bangladesh, however, does have a long way to go before
ensuring that government institutions never operate above the law.
Conclusion (Continuing the Colonial Legacy)
Bangladesh's independence leaders' aim for a new legal system capable of meeting the needs
of the nascent nation has mostly been unattained. The legal system of the emerging nation
has not been decolonized.
Our laws have retained their colonial character. We have a strong supporter of
coloniality in our legal system, and notably in our administration. A period when governments
exercised great influence over individual liberty was the context in which these legislation
were created. At a time when human rights are being fought for, colonial laws are not only
out of date, but they are also plainly anti-human rights. And what's even more disturbing is
that when it comes to legislating, an independent and sovereign Bangladesh still follows the
same patterns and characteristics. Due to the retention of these colonial statutes, the
Bangladeshi legal system which is made up of three departments: the legislative, executive,
and judicial works in a way reminiscent of the British Raj.
Reference
A. Nandy, An Intimate Enemy: Loss and Recovery of Self under Colonialism (Delhi: Pluto,
1988), p. 34.
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Arpeeta Shams Mizan, Continuing the Colonial Legacy in the Legislative Drafting in
Bangladesh: Impact on the Legal Consciousness and the Rule of Law and Human
Rights, 6 I.J.L.D.L.R. 3 (2017).
Barry Wright, ‘Macaulay, the India Penal Code and Labour in the British Empire’ (Universiy of
Queensland Conference, March 2012) Retrieved from:
https://ssl.law.uq.edu.au/calendar-of-events-files/law-research-seminar-series.pdf
Criminal Tribes Act 1871
Elizabeth Kolsky, ‘Codification and the Rule of Colonial Difference: Criminal Procedure in
British India’, (2005) 23(3) L.His.R. 632
Huque, A. S. (1988). Politics and Administration in Bangladesh, Dhaka, University Press
Limited.
Huque, A. S. (2015). The impact of colonialism : thoughts on politics and governance in
Bangladesh The impact of colonialism : thoughts on politics and governance in
Bangladesh. March 1997. https://doi.org/10.1080/714041319
Lauren Benton, Law and Colonial Cultures (CUP, 2002)
Luigi Nuzzo, ‘Colonial Law’, European History Online (2011). Retrieved from: http://ieg-
ego.eu/en/threads/europe-and-the-world/European-overseas-rule/luigi-nuzzo-
colonial-law
Official Secrets Act, 1923
Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (PUP
1993)
R. Kipling, Under the Deodars (New York: United States Book Company 1891), p. 210.
Wing-Cheong Chan, Barry Wright,Stanley Yeo, Codification, Macaulay and the Indian Penal
Code: The Legacies and Modern Challenges of Criminal Law Reform (Ashgate Pub.
Ltd., 2013)
W.H. Rattigan, ‘Customary Law in India’ (1884-85) 10 L. MAG. & L. Rev. 1,3-4
... The Penal Code 1860 was a product of its time, deeply entrenched in the Victorian morals and colonial administrative objectives. Its primary aim was to establish a unified legal system in the colonies, harmonizing the diverse legal traditions that existed (Anima, 2022). The Code, while comprehensive for its time, was designed more as an instrument of control rather than an embodiment of justice, especially regarding issues of personal autonomy, such as sexual offences (Sharma, 2020). ...
Research
Full-text available
This research critically examines the handling of sexual offences in the Penal Code 1860, highlighting the disconnect between its archaic provisions and the modern realities of sexual crimes. Through a qualitative analysis of the legal framework and relevant literature, the study identifies significant limitations in the current law, including outdated definitions and inadequate punitive measures. It emphasizes the need for legal reforms to align the Code with international human rights standards and effectively address contemporary sexual offences. The findings provide crucial insights for legal reform, aiding policymakers, practitioners, and scholars in the field of criminal law and human rights.
Article
Full-text available
On July 10, 1833, an aspiring young English lawyer named Thomas Babing-ton Macaulay stood before the Parliament and presented an impassioned argument about the future role of British governance in India. Whereas in Europe, as Macaulay saw it, "The people are everywhere perfectly com-petent to hold some share, not in every country an equal share, but some share of political power," in India, Macaulay asserted, "you cannot have representative institutions." Thus the role of the British colonizers was "to give good government to a people to whom we cannot give a free govern-ment." 1 At the core of Macaulay's good but not free government stood what he saw as one of England's greatest gifts to the people of India: a rule of law. Later that year, Macaulay set sail for the subcontinent charged with the momentous task of codifying the law of India, creating in his words "one great and entire work symmetrical in all its parts and pervaded by one Elizabeth Kolsky is an assistant professor of South Asian History at Villanova Uni-versity <elizabeth.kolsky@villanova.edu>.
Article
The Paper is an in-depth study of the practices prevalent in Bangladesh regarding law making and people's perception as to legal sanctions resulting from such laws bearing colonial resemblance. The critical analysis focuses on the relation between how the common people perceive law in their public life and its impact in the long run upon the realization of human rights in a developing country. In doing so, the Paper draws upon historical discourse on colonial codification, scrutinizes the existing colonial drafting patterns followed by the law makers in independent Bangladesh, and argues that colonial drafting patterns impede the development of legal consciousness in public life. The Paper also analyses the Bangladeshi attitudes towards compliance as well as non-compliance with law especially focusing on the popular tendency of widespread indifference towards legal sanctions. Taking the Law of Torts, which is highly underdeveloped in Bangladesh, as an example, the Paper shows how lack of legal consciousness breeds impunity leading to a culture of disrespect to human rights.
Book
Enacted in 1860, the Indian Penal Code is the longest serving and one of the most influential criminal codes in the common law world. This book commemorates its one hundred and fiftieth anniversary and honours the law reform legacy of Thomas Macaulay, the principal drafter of the Code. The book comprises chapters which examine the general principles of criminal responsibility from the perspective of Macaulay, and from more recent accounts by lawmakers and reformers. These are framed by chapters that examine the history and conceptual underpinnings of Macaulay's Code, consider the need to revitalize the Indian Penal Code, and review the current challenges of principled criminal law reform and codification. This book is a valuable reference on the Indian Penal Code, and current debates about general principles of criminal law for legal academics, judges, legal practitioners and criminal law reformers. It also promises to have wider scholarly appeal, of interest to legal theorists, historians and policy specialists. © Wing-Cheong Chan, Barry Wright and Stanley Yeo 2011. All rights reserved.
the India Penal Code and Labour in the British Empire
  • Barry Wright
  • Macaulay
Barry Wright, 'Macaulay, the India Penal Code and Labour in the British Empire' (Universiy of Queensland Conference, March 2012) Retrieved from: https://ssl.law.uq.edu.au/calendar-of-events-files/law-research-seminar-series.pdf Criminal Tribes Act 1871
Customary Law in India
  • W H Rattigan
W.H. Rattigan, 'Customary Law in India' (1884-85) 10 L. MAG. & L. Rev. 1,3-4